Court File and Parties

Court File No.: 1533/12 Brampton
Date: March 22, 2017
Ontario Court of Justice

Between:

ZIAULLAH KHAN

— AND —

AMAL TALAOUI a.k.a. AMAL TALAOUI BALUCH

Before: Justice J.W. Bovard

Heard on: May 5, 6, 7, 8, 19, 20, 21; July 15; August 5; October 21, 22, 23; November 23, 24, 2015

Reasons for Judgment released on: March 22, 2017

Counsel:

• Mr. Ziaullah Khan — representing himself
• Mr. P.K. Steckley — counsel for the respondent

Introduction

[1] On December 31, 2012, Mr. Khan brought an application for custody of the parties' child, Nisma Baluch, born on February 4, 2011. In her answer, Ms. Talaoui made claims for ongoing and retroactive child and spousal support. She also made a claim for ongoing s. 7 expenses. The parties went through two Islamic wedding ceremonies, but they were never married under Canadian law.

[2] Ms. Talaoui is from Morocco. Ms. Talaoui works full-time. She left her family in Morocco and immigrated alone to Canada in June 2008. Mr. Khan has lived in Canada for approximately 35 years. He is married to another woman with whom he lives in Mississauga. They have adult children, all of whom live in the Greater Toronto Area (GTA). He is a semi-retired business man.

[3] The parties met online in 2008. Ms. Talaoui said that it was a dating site. Mr. Khan said that it was just a friendship site that he joined in order to find out about Morocco because he and his wife were thinking of buying property there. During their communications, Ms. Talaoui told Mr. Khan that she wanted to emigrate to Canada. He said that he would help her.

[4] After Ms. Talaoui arrived in Montreal from Morocco they contacted each other and began a clandestine affair. During the affair Mr. Khan paid for all of Ms. Talaoui's expenses. They travelled on what he told his family were business trips. After a while, he moved Ms. Talaoui from Montreal to Mississauga. He arranged for her to board with a family and later he installed her in his son's condominium. He arranged employment for her. They continued their affair. Mr. Khan told his wife and family that Ms. Talaoui was just a friend that he was helping and who was going to help him to buy property in Morocco.

[5] According to Mr. Khan, Ms. Talaoui told him that they had to go through an Islamic wedding ceremony so that he could travel with her in Morocco to look at properties and eventually purchase property in Morocco. They went through an Islamic wedding ceremony in Mississauga, which Mr. Khan's wife and his children attended reluctantly.

[6] After this ceremony, Ms. Talaoui and Mr. Khan travelled to Morocco and participated in another Islamic wedding ceremony there. Mr. Khan assured his wife and family that the ceremonies were just to enable him to gain the required status in Morocco to allow him to buy property there. They were not happy about the Moroccan wedding ceremony but they went along with it.

[7] When they returned to Canada after the Moroccan wedding ceremony they continued their affair. As time passed, Ms. Talaoui got pregnant with the parties' child, Nisma. This caused Mr. Khan to reveal to his wife and children that he was having an affair with Ms. Talaoui and that she was pregnant. They were shocked and dismayed, but agreed to accept Ms. Talaoui and the child into their lives.

[8] As Ms. Talaoui's pregnancy progressed she and Mr. Khan started to argue and not get along very well. Mr. Khan claims that he never cohabited with Ms. Talaoui. She claims that he did. Their relationship deteriorated to the point that Mr. Khan filed an application for custody of Nisma in December 2012. Ms. Talaoui filed her answer in February 2013. Their relationship deteriorated even more.

[9] The case management judge, Clay J., made several temporary and final orders regarding access and child support. Mr. Khan is paying child support as ordered. Regarding the parenting arrangements, Mr. Khan believes that the current temporary court order establishes a shared parenting regime. Ms. Talaoui disputes this. She maintains that Nisma is with her the majority of the time.

[10] The issues at trial were the following:

1. Custody and access;
2. Child support (retroactive and ongoing);
3. Day care and RESP expenses (retroactive);
4. S. 7 expenses (ongoing);
5. Spousal support (retroactive and ongoing);
6. Life insurance as security for child and spousal support;

[11] The trial lasted 14 days. On October 22, 2015, on the 11th day of trial, Mr. Khan fired his lawyer. He represented himself from there on in. The trial finished on November 24, 2015. Due to problems obtaining the transcripts, which Mr. Khan wanted in order to make his written submissions, he did not file his reply to Ms. Talaoui's submissions until June 24, 2016. He also brought a 14B motion to reopen the case. The court denied the motion.

[12] For ease of reference, I will list the paragraphs of my judgment that correspond to the final orders that I made regarding the issues that I had to decide:

1. Custody (para. 209)
2. Access (paras. 219 to 230)
3. Child Support
   • a. Ongoing (paras. 237 to 238)
   • b. Retroactive (paras. 255 to 259)
   • c. S. 7 expenses (ongoing) (para. 265)
4. Day care and RESP expenses (retroactive) (para. 265)
5. Spousal support
   • a. Ongoing (paras. 332; 358 to 361)
   • b. Retroactive (paras. 385 to 387)
6. Life insurance as security for child and spousal support (paras. 390 to 391)

Relevant Previous Final Orders

[13] On July 25, 2014, Justice Clay ordered on a final basis, without prejudice to the parties' claims for custody, that:

On a Final basis the parties shall register the child, Nisma Baluch born February 4, 2011, in the full-time program at Rotherglen Private School for the period commencing September 2014. The child, Nisma Baluch, shall be enrolled at Rotherglen Private School for the Montessori program located at 3553 South Commons Court in Mississauga, Ontario, and subsequent programs which correspond with her age group and level of development, including the elementary school program and primary school, at their respective campuses.

On a Final basis the Applicant, Ziaullah Khan, shall be fully and solely responsible for all costs associated with the child's, Nisma Baluch, schooling at Rotherglen Private School for as long as she is enrolled there, including but not limited to:

• a) Tuition fees;
• b) School uniform costs;
• c) Before or after school program fees;
• d) Arts and sports fees, and all
• e) Other program related costs.

On a Final basis, if the Respondent, Amal Talaoui Baluch, incurs any fees or expenses related to the child's Nisma Baluch, schooling at Rotherglen Private School, the Applicant shall reimburse her for same within 7 days of the Respondent providing a receipt in the child's, Nisma Baluch, back pack, failing which it shall be enforceable as child support through the Family Responsibility Office, with 100% payable by the Applicant. If the fees or expenses relate to a discretionary after school event or sports fee at Rotherglen Private school, the Respondent shall obtain the Applicant's consent, prior to if seeking reimbursement.

The Respondent shall provide the Applicant with the child's, Nisma Baluch, Birth Certificate and Immunization records for purpose of enrollment at Rotherglen Private School with the documents to be returned to the Respondent immediately thereafter.

This Order is without prejudice to the custody claims advanced by either party in the herein proceedings and shall not be used by either party to advance their claim for custody.

On a Final basis the Respondent shall be involved in all steps required to register the child, Nisma Baluch, at Rotherglen Private School. Both parties shall be listed as the child's, Nisma Baluch, parents on the school contact information.

On a Final basis the child, Nisma Baluch, shall attend the program full-time, from the commencement of school each day, believed to be at 9:00 a.m. to the completion of school each day, believed to be 4:00 p.m. and shall not be removed from school early unless she is sick and unable to attend as per the school's policy, with the exception of early withdrawal on Fridays at 12:00 p.m. to allow the Applicant's parenting time, but only when the child, Nisma Baluch, is in the pre-school program, not when she starts the primary or elementary school programs…

Relevant Temporary Orders

[14] On June 14, 2013, Justice Clay ordered that Mr. Khan pay $809 per month in child support starting on February 1, 2013. This was based on an imputed annual income of $91,000.

[15] On October 22, 2013, Justice Clay ordered that Mr. Khan shall have access to Nisma as follows. He shall pick her up from the daycare centre:

• (a) On Mondays and Tuesdays at 5:00 p.m.
• (b) On Wednesdays and Thursdays at 3:00 p.m.
• (c) On Fridays at noon.

[16] On Mondays and Tuesdays and every other Friday Mr. Khan shall take Nisma to Ms. Talaoui's residence by 7:00 p.m.

• (a) On Wednesdays and Thursdays Mr. Khan shall keep Nisma overnight and take her to the child care centre at 9:00 a.m. the next morning.
• (b) Every other Friday Mr. Khan shall keep Nisma and return her to the child care centre at 9:00 a.m. the following Monday morning.

The Evidence

Mr. Khan's Evidence

[17] Mr. Khan is 67 years old. He has firm roots in the Greater Toronto Area (GTA). He is a Canadian citizen and has lived in Canada for over 35 years. He is married to a French Canadian woman. They have three adult children, all born in the GTA. His children are successful, law-abiding persons. Mr. Khan also has siblings who live in the GTA with their families.

[18] Mr. Khan is self-employed as an investor. He said that he owns many properties in Mississauga and Oakville. Some of these are commercial properties. He also owns a large farm in the area of Airport Road and Highway 89. He said that all of the properties except the farm are in his wife's name but I think that he meant that they have joint tenancy.

[19] Ms. Talaoui is 42 years old. She said that she was born in Morocco to wealthy parents. She had a good childhood. She has a B.A. in economics from a Moroccan university. She never had any problem finding employment. She made a good living and lived with her family who paid for everything. She was happy.

[20] However, she decided to immigrate to Canada because it is a peaceful country, women are freer here, and the health care services are better. She arrived in Canada on June 14, 2008. She likes Canada more than Morocco because she feels that she has more opportunity to build a better future here.

[21] Ms. Talaoui is employed. Her annual income is $41,600. She got married during the trial. She lives with her husband and Nisma in Mississauga.

[22] Mr. Khan and Ms. Talaoui met online. Ms. Talaoui said that it was on a marriage website where people go to find a marriage partner. Mr. Khan did not tell her that he was married. He told her that he wanted a Muslim girl from a Muslim country. He admitted that he was "romantic" with her from the beginning. He sent her an email on May 10, 2008 in which he told her "Amal! You must be a blessed girl. Hijab or no hijab, what inside you (sic) is important. It must be good. You can call your self (sic) lucky because I just ended communicating with some one (sic) in Morocco who was getting on my nerves just after four or five messages. I was going to give up on Morocco (sic) girls".

[23] Notwithstanding this, Mr. Khan denied that the real purpose of his communication with Ms. Talaoui was romance. He maintained that he started communicating with her because he was thinking of buying a vacation property in Morocco. He went on the "friendship site" to find out information that would be useful to him about Morocco. Ms. Talaoui sent him an email. Then it got romantic. She told him that she was coming to Canada and she wanted information about Canada. He gave her his cell telephone number. When she arrived in Montreal in June 2008, she called him.

[24] Ms. Talaoui said that Mr. Khan never mentioned in his emails anything about wanting to buy property in Morocco. In cross-examination, Mr. Talpur, Mr. Khan's then lawyer, referred Ms. Talaoui to her affidavit, which is in vol. 1, tab 11 of the continuing record. In that affidavit she referred to Mr. Khan's communications on the website. She stated "The Applicant said that he was looking for a place to spend the winter". Ms. Talaoui replied that he did not specify Morocco.

[25] In the same affidavit she stated that "Previous to our separation" Mr. Khan wanted to "acquire property" in Morocco. She also said in that affidavit that Mr. Khan "has every intention to purchase a property in a warm country such as Morocco…" Ms. Talaoui responded that this statement refers to the time after they got married, not to their email communications when they met online.

[26] Mr. Khan testified that he wrote in an email to her that he was looking forward to seeing her and that "we will take it from there". He testified:

"What's wrong with that? You get a female coming and I wanted to know her, she wanted to know me and I'll see, I'll decide after I see her what she's good for. A business, her charm, a friendship or just to dump her, leave her".

[27] He wrote to her that he hoped "you agree with me. I just do not like to heart (sic) you". [He testified that he meant "hurt" you].

[28] Mr. Khan told his wife, Diane Khan, that he had made contact with Ms. Talaoui. She was in Montreal and she was going to help him to buy property in Morocco. Mr. Khan and Ms. Khan went to Montreal. He said that Ms. Khan told him to drop her off at her mother's home and to go see Ms. Talaoui alone.

[29] He went to see her and she invited him to have lunch with her in her apartment. They talked about Morocco and he gave her a laptop and a watch. Mr. Khan said that giving gifts in these situations is normal in his culture.

[30] After this, Ms. Talaoui asked him to go to a jazz festival. He agreed. It was raining and as they were under his umbrella she drew close to him. Later, in his car, she kissed him on the lips and told him that she had a plan for him.

[31] They went back to her apartment and she gave him more to eat. It was delicious. He asked her about the ingredients. She said that it had a "love spice" in it. She told him to stay with her and not go to a hotel. He agreed and they had sex. The next day, they went to a park. She asked him if he was married and he told her that he was.

[32] Mr. Khan said that she told him that she had come to Canada to make money to send to her family. She was taking a training course to find employment but she did not have any money. She asked him for money. Mr. Khan told her that he would give her financial support if she would be his travel companion. He said that she told him that she would give him her body and her heart if he gave her security. Mr. Khan left Ms. Talaoui's apartment to go see his wife and ask her if she could find a job for Ms. Talaoui.

[33] From that time on, Mr. Khan and Ms. Talaoui had a clandestine affair during which they travelled together (he told his family that he was on business trips) and he provided economic support for her. Mr. Khan described his feelings for her as follows:

Then I became very romantic. She was actually, I ask her I don't know how to be romantic. She write me romantic email and I will respond back and she said that Moroccan girls are very romantic at all. I was deadlike. I was slow like a turtle, she make me like a rabbit. She revive me. It's my age, you know, like, and I got really excited, I felt young and I felt good with her. That was the main reason why I got more pulled towards her.

[34] Mr. Khan testified that his wife works for Unisource as "a French analyst or something". She arranged for Ms. Talaoui to have a job interview with a company in the GTA. Mr. Khan brought Ms. Talaoui to Mississauga and put her up with a family that he knew. He paid a monthly fee for her to stay there. This would help improve her English and she would not be alone because he did not have a lot of time to spend with her. He said that Ms. Talaoui preferred to live with a family.

[35] He testified that this arrangement suited him. They continued their affair. He said "I put her with the family because I didn't want her to, demand too much to stay with her or something because I'm married with three kids".

[36] After a while, Ms. Talaoui told Mr. Khan that she wanted to meet his wife. He took her to his wife's work place and he waited outside. They had a 20 minute visit. They spoke in French and the visit went well. Ms. Talaoui told him that he was lucky to have such a nice wife.

[37] Ms. Talaoui got a job and Mr. Khan took her back and forth to work every day. He also taught her how to drive. He worked all of this into his daily routine of taking and picking up his children from university.

[38] Mr. Khan introduced her to their family doctor, helped her to get her OHIP card, open a bank account, and get a MasterCard and Visa with $500 limits to help her "stand on her feet".

[39] Mr. Khan said that he and Ms. Talaoui discussed him buying property in Morocco. They talked about going to Morocco to look at properties. But first, she said that they had to have an Islamic marriage. This would pave the way with the Moroccan government and her family for them to be able to travel together in Morocco to look for properties. Mr. Khan said that Ms. Talaoui "just said in the ceremony that we'll use, she promised it would be used only in Morocco for the Moroccan national to purchase a property..."

[40] They did not get married under Ontario law, but instead went through an Islamic marriage ceremony in Mississauga at which an Imam officiated. He asked him to prepare a marriage certificate in Arabic that they could use in Morocco. But it was just to help him to obtain status in Morocco.

[41] During his testimony Mr. Khan had difficulty calling this a marriage. He said that it was a "Ceremony to show Moroccan government that we are getting married, we got married for them". He said that it was a "fake" marriage.

[42] It was for the purpose of convincing the Moroccan embassy that they were married so that he could apply for citizenship in order to be able to buy property there. He signed the certificate as the bridegroom and Ms. Talaoui signed it, too. He did not know what it said because it was in Arabic.

[43] His wife, children and other family members attended the wedding. He said that it was just a façade for business purposes. There was no food or drink or any type of festivities at the wedding. Afterwards, they all went out for Chinese food. Then he dropped off Ms. Talaoui at her residence and he went home with his wife and children.

[44] In spite of having gone through the Mississauga Islamic marriage ceremony, Ms. Talaoui told him later that they would have to have another marriage ceremony in Morocco for the same purposes. She said that the Canadian ceremony was not elaborate enough to convince anyone in Morocco. Ms. Khan did not like the idea of the "Moroccan marriage" but Mr. Khan told her that it was just for business purposes so she went along with it.

[45] Ms. Talaoui quit her job and they went to Morocco and went through another marriage ceremony. While in Morocco, at times Mr. Khan slept in a rented place and Ms. Talaoui stayed with family. When he and Ms. Talaoui travelled around looking at properties they stayed in hotels and slept together. They were there for two weeks together.

[46] When Mr. Khan returned to Mississauga he showed his wife and family pictures of the Moroccan wedding. They were quite upset. They told him that they did not want to buy property in Morocco any longer. He agreed with them and changed his mind about buying property there.

[47] Mr. Khan said that he never lived with Ms. Talaoui. But when they returned to Mississauga, they continued their relationship as before because she "lured me back into her charm and romance". He set her up in a condominium at Square One that belonged to his son. Mr. Khan paid for all of the expenses. He saw Ms. Talaoui frequently during the day after he dropped off his children at university.

[48] He said that he would spend the day with her, but he did not stay overnight. He did not have any of his things in the condominium. He lived with his wife and children. His family, including Ms. Khan, suspected that he was having an affair with Ms. Talaoui, but they did not say anything. Referring to his wife, Mr. Khan said "She suspected but not sure as I did not stay overnight. For me, it was quite easy for me to convince her that there's nothing going on". On weekends Ms. Talaoui would spend time with Mr. Khan and his family.

[49] Mr. Khan and Ms. Talaoui continued to go on "business trips" now and then. Mr. Khan said that "So I plan a trip, telling the family that I'm going for business trip and I took her for a few days with me".

[50] Mr. Khan wanted to have a child with Ms. Talaoui. She told him that she had a medical condition that prevented her from getting pregnant. However, he took her to his family doctor and to a fertility clinic and eventually Ms. Talaoui got pregnant.

[51] Mr. Khan had not told Ms. Khan or any of his family that he was planning to have a child with Ms. Talaoui. He said "I wanted to take my time as they were sensitive. I wanted to do what I want to do about decision for having another baby".

[52] Ms. Khan and the children were very upset when they found out that she was pregnant. However, they decided to welcome the child into their family. Mr. Khan adduced evidence through his sons and daughter and his own testimony that his wife and family have accepted Nisma into their family. They spend a lot of time with her and have a good relationship with her.

[53] Mr. Khan said that after Ms. Talaoui got pregnant she changed quite a bit towards him and his family. He described her attitude as follows:

…very dry. She stay quiet. Not the same hospitality after three months. She had constant contact with her family in Morocco. I believed it was giving news but it was more than that. All the time on the phone, all the time to internet and she start a little dry with my family…

[54] After Nisma was born, Mr. Khan became concerned that it was not safe for her to live in the penthouse because she might fall off of the balcony. He was also concerned that when fire alarms went off Ms. Talaoui would have to climb down 35 flights of stairs. Therefore, when Nisma was one year old he provided a house for her and Ms. Talaoui. She had lived in the condominium for about two years. Mr. Khan paid for all of the expenses to move and set up the new house. The evidence shows that Mr. Khan loves Nisma very much and that he spends a lot of time with her.

[55] He disagreed with Ms. Talaoui's desire to make Nisma a Moroccan citizen. He felt that she had "a staged plan. Plan one, convince me for the first ceremony; plan two is the ceremony in Morocco. Now the pregnancy, of course I wanted it, but she showed, she help me to make that plan…"

[56] When Nisma was three months old Ms. Talaoui wanted to take her to Morocco. Mr. Khan did not want her to go so he took Nisma's passport. Mr. Khan said that at one point he had Ms. Talaoui's passport but he was just holding it for her at his house because she gave it to him for safekeeping. He said that he gave it back to her when she asked for it. After he gave it to her in December 2011, she kept it. Mr. Khan denied demanding Ms. Talaoui's paperwork when they met.

[57] One day, CISIS came to see Mr. Khan. They told him that they had received an anonymous tip that he was a supporter of Al-Qaeda. He said that later, Ms. Talaoui admitted that she called CISIS. She did this because she did not want him to go to Morocco because her family did not like him and they did not want him to go there.

[58] Mr. Talpur, Mr. Khan's then lawyer, asked Ms. Talaoui whether it was true that she "accused Mr. Khan of supporting terrorism". She testified that she said that. This can be seen in her affidavit in vol. 1 of the continuing record, at tab 10, where she stated that Mr. Khan "supports the Al-Qaeda and he sends money to them, with no conditions attached". She testified that she said that because he was sending money to a girl in Pakistan. But she denied calling CISIS.

[59] Later, when he and Ms. Talaoui decided to go to Morocco with Nisma, the border authorities stopped him because his name was on the no-fly list. However, the authorities noticed that his date of birth was different so that cleared up the matter and he went on to Morocco with Ms. Talaoui and Nisma.

[60] In Morocco they stayed at Ms. Talaoui's sister's apartment by the beach. Two days after they arrived, Mr. Khan's son arrived. One day, Ms. Talaoui's brother asked him if Nisma had been circumcised. Mr. Khan and his son were shocked at the question. Ms. Talaoui was there when her brother asked this. She was feeding Nisma. Nothing more was said about it.

[61] He testified that he thought that Ms. Talaoui was circumcised but he was not sure. This remark is the basis of his fear that if Nisma goes to Morocco they will circumcise her. However, later during the trial, after he testified to this, he agreed that Ms. Talaoui is not circumcised. In fact, Ms. Talaoui submitted as exhibit 12, a report from Dr. Corbet that states that she is not circumcised.

[62] Mr. Khan said that Ms. Talaoui's family treated Nisma well. However, he would not let Nisma go with them unless he was there. This upset them. They were very "dry" towards him.

[63] While in Morocco, there were visits with Ms. Talaoui's family. In addition, Mr. Khan, his son, and Ms. Talaoui travelled around Morocco visiting cities and beaches.

[64] After two weeks, his son returned to Canada. Mr. Khan stayed on for one and a half months more. During this time he and Ms. Talaoui were not getting along. They returned to Canada in February 2012. Ms. Talaoui kept living in the house that Mr. Khan provided for her. He was afraid that if he did not let her stay there she would take off with Nisma. So he wanted her "to go under my eyes". He also gave her a Jaguar. But their relationship continued to deteriorate.

[65] Mr. Khan testified that Ms. Talaoui told him to divorce his wife and marry her so that the community would recognize Nisma. He refused. She threatened to take Nisma to Morocco. He kept Nisma's passport.

[66] Ms. Talaoui's mother was ill so she bought a ticket and went to Morocco in April 2012 to see her. Nisma stayed with Mr. Khan in Mississauga. She was breast feeding at the time and she cried for three or four days. His wife looked after her.

[67] After ten days, Ms. Talaoui returned to Mississauga. Ms. Talaoui's mother died shortly after so she returned with Nisma to Morocco. Mr. Khan did not know where she got the money to travel.

[68] Mr. Khan said that after she returned, between June 2012 and up to December 2012 (when Mr. Khan brought this application), she demanded that he give her the farm and the house or she would leave with Nisma; he would never see her again. She threatened to put him in prison.

[69] He said he would be willing to put the house in Nisma's name. He was afraid that otherwise, she would sell it because it was paid off. He told her that he would buy her another one with a minimum down payment, but she declined the offer.

[70] He was frustrated so they stopped talking in May 2012. In spite of this, Ms. Talaoui kept letting him see Nisma. He saw Nisma daily, but for shorter visits. Then in July 2012, Ms. Talaoui found employment. They put Nisma in daycare. Ms. Talaoui would take her to daycare at 9:30 a.m. and Mr. Khan would go there and be with her until noon.

[71] After daycare, Mr. Khan would take Nisma to his house and she would stay there until Ms. Talaoui finished work. Then his sons would take Nisma to Ms. Talaoui's home. This lasted until December 2012. He decided to list the house for sale. He wanted to buy another one in Nisma's name.

[72] Mr. Khan said that he paid off a loan that Ms. Talaoui had. Tab 16 is a bank transfer dated September 17, 2010, that was used to pay off the loan. It is for $1,000 from Mr. Khan to Ms. Talaoui's sister. It says "Gift for mom" because otherwise the money cannot be sent.

[73] In addition to his offer to buy a house for Ms. Talaoui, he offered to pay for courses and to set her up in business. She declined all of his offers. Moreover, in addition to reporting him to CISIS, he said that she called the police and the Children's Aid Society to tell them that he had guns, which he does, but he has a fire arms acquisition certificate for them.

[74] Mr. Khan thinks that Ms. Talaoui puts her family before Nisma, however, he said that this does not prejudice Nisma. The reason that he brought his application for custody of Nisma was to ensure that Ms. Talaoui and Nisma stay in Canada. Mr. Khan does not have any issue with Ms. Talaoui's ability as a parent.

[75] But several things worry him with regard to Ms. Talaoui's close ties to her family in Morocco. Her family is a close knit family and she is very attached to them. In addition, he knows that Ms. Talaoui's sister married a man from Saudi Arabia. She flew to Morocco to have their baby and refused to return to Saudi Arabia. Then she used their baby as leverage to control her husband. In addition, he said that once he went to a wedding in Morocco and saw a lot of Moroccan women with white children and no husbands. This worried him.

[76] After she received the application, Ms. Talaoui and Nisma moved out of the house in January 2013. Mr. Khan did not ask for the Jaguar back, but she told him to come and get it. She bought a car of her own.

[77] Their first court date was in February 2013. Although Mr. Khan disagrees with the characterization that Nisma's primary residence has been with Ms. Talaoui, the endorsement record and the evidence reflect that throughout the proceedings Nisma's primary residence has been with Ms. Talaoui. But it is true that she spends a lot of time with both of her parents.

[78] Mr. Khan has always been very generous with regard to paying for expenses concerning Nisma. In addition to child support of $809 per month, he pays $220 per month for piano and Spanish lessons and $1,075 for private school. He testified that his expenses for enrolling Nisma in extracurricular activities is approximately $3,000 a year. He also buys many gifts for Nisma.

[79] Mr. Khan testified that Nisma speaks French with his wife. Other than him, his whole family is bilingual in French and English. Nisma enjoys her time with him and his family. She plays with Mr. Khan's daughter's children who are around the same age as Nisma.

[80] Mr. Khan has gotten Nisma involved in many extracurricular activities, such as, piano, language lessons, and sports activities.

OCL Report

[81] Ms. Barclay on behalf of the OCL wrote a report. Mr. Khan takes issue with much of it. I will discuss Mr. Khan's concerns that I found were relevant to the issues of custody and access. Where convenient, in numbered and lettered paragraphs, I state what Ms. Barclay said in her testimony about his concerns. I discuss the rest of her testimony later on in the judgment. Where I thought that it would be useful I made comments in paragraphs marked with an arrow head.

1. Ms. Barclay did not describe in detail Mr. Khan's interaction with Nisma when she came to his home to interview him as she did for Ms. Talaoui (OCL report, pgs. 11, 12). For example, she mentioned that when she met Ms. Talaoui she was carrying Nisma on her hip and Ms. Talaoui touched Nisma's hair and kissed her. But she failed to mention that when she went to Mr. Khan's home he was playing with Nisma as she rode her bicycle outside of the house.

   (a) Ms. Barclay testified that it was significant that Mr. Khan was playing with Nisma when she arrived to interview him, but that she did not have a concern with Mr. Khan in this regard. She also said that she usually begins her description of the event from the time that she is greeted. When she arrived at Mr. Khan's home she saw Mr. Khan and Nisma playing with the bicycle but she went to the front door where Ms. Khan greeted her.

   ➢ I do not see this as an indication of any bias against Mr. Khan.

2. Ms. Barclay told him that if he did not consent to her visiting Nisma's daycare she would write in her report that he refused to cooperate. Mr. Khan refused because on October 22, 2013, Justice Clay ordered that the daycare centre should not provide a report.

   ➢ I understand his reason for refusing and I do not think that it is a sign of lack of cooperation.

3. Ms. Barclay only investigated the daycare centre where Mr. Khan had a bad relationship with the centre. She declined to investigate the two other daycare centres with which Mr. Khan and Nisma were involved where he had a good relationship with the centres.

   ➢ Mr. Khan's relationship with the daycare where he had a problem did not figure in my deliberation on the issues before the court.

4. Although Ms. Barclay acknowledged in her report that he gave her the following three letters, she did not discuss them in her report. Mr. Khan sent two of them to Passport Canada and Passport Canada sent the third one to him:

   (a) To the Consulat Général du Royaume du Maroc (August 3, 2012) in which he says that Ms. Talaoui "enticed me towards having an intimate relationship with her, and in February 2011 we had a baby girl". He states further that Ms. Talaoui and her family are trying to take the baby away from him and take her to Morocco. He fears that they will try to extort a large amount of money from him to get her back. Therefore, he requests that the Moroccan government not issue any travel documents for the baby.

   (b) To Canadian Border Services (July 10, 2012) in which he requests a "red alert/system lookout on (sic) for my child, Nisma Baluch…" He expresses his fears that Ms. Talaoui and her family will take Nisma to Morocco and then try to extort money from him to get her back.

   (c) Passport Canada to Mr. Khan (July 13, 2012) responding to his letter of July 10, 2012. They said that they "complied with your request and added her name to the Passport System Lookout (SL)".

   ➢ These letters do not assist the court in deciding the issues before it.

5. Ms. Barclay acknowledged receiving from Mr. Khan a letter from a real estate agent but she did not comment on it in her report (OCL report, pg. 11);

   (a) *The letter (exhibit 2) was written by Mr. Mark Meacoe, Mr. Khan's real estate agent. It concerns the sale of the "penthouse" in which Mr. Khan had installed Ms. Talaoui and the sale of the house into which he moved her afterwards. Ms. Talaoui wanted to move out of the house before Mr. Khan sold it. He wanted her to stay and he asked Mr. Meacoe to convey his wishes to her. Mr. Meacoe's letter states that Ms. Talaoui wanted to move in January 2014 regardless of whether the house was sold.

   ➢ I do not see the relevance of the letter to the issues of custody and access with which Ms. Barclay was dealing in her report. It is not surprising that she did not mention it.

6. Ms. Barclay knew that Ms. Talaoui wanted to move to Burlington, Ontario or Kingston, Ontario but she still recommended that she get sole custody of Nisma.

   ➢ This is not completely accurate. On page 11, para. 1, of her report, Ms. Barclay stated "She is planning on Moving to Burlington and hoping to purchase a home, wanting a family environment for Nisma. Later in the assessment she asked about relocating to Kingston, as she was dating someone who would be living there for school. She was inquiring and had no firm plan at the time."

   ➢ On page. 27 of her report, she stated that "At the end of the assessment, Ms. Talaoui inquired about moving within Ontario. As Nisma currently has a positive and loving relationship with each parent and she has almost daily contact with her parents, a move that would not allow for the contact would not be good for Nisma. There were no formal plans and so a full assessment of the issue could not be explored, but it is in the best interest of Nisma that the parents reside close to one another in order to allow her to see both parents and extended family regularly".

   6(a) Ms. Barclay addressed this issue in her testimony. She testified that a man that Ms. Talaoui was seeing was planning to relocate to Kingston for the purpose of pursuing his studies at St. Lawrence College. Ms. Talaoui consulted her with regard to moving to Kingston, but Ms. Talaoui had not decided to do so. Ms. Barclay explained as follows:

   Q. But you said she wants to move to Kingston. A. He was relocating to Kingston for studies. Q. Okay. A. At St. Lawrence College. And she was inquiring as to whether it would be an option for her. She did not have a specific plan in place. So she had consulted with her lawyer, and at that point I advised at that stage I couldn't make recommendations for mobility, it was too late in the assessment process, and that it was too late for me to investigate a plan, and she really didn't have a firm plan in place. She stated that she wasn't engaged. And that she was just inquiring, she was trying to be fair and understand what her rights were. That was, that was mainly it. She wasn't wanting to, yes just looking into it, there's just some repeats of some stuff here. And that she was - she wanted to do what was in the best interest of Nisma. If she couldn't move that then he would attend his course and they would maintain the relationship long distance.

   6 (b) As far as moving to Burlington, Ms. Barclay testified that Ms. Talaoui was considering this as a possible option in order to reduce her costs. There is no evidence that she was planning to move there.

7. Ms. Barclay stated that Nisma resided primarily with Ms. Talaoui. This ignored that Mr. Khan was also a caregiver to Nisma and that they had a type of shared custody regime in place (OCL report, (pg. 2).

   ➢ I note that Ms. Barclay's report is dated July 24, 2014. As Mr. Steckley pointed out during the trial, she could have been referring to Justice Clay's order of June 14, 2014 in which he made a temporary access order for Mr. Khan and then ordered that "The child shall be with the Respondent mother at all other times".

8. Ms. Barclay should not have included a police occurrence in her report (OCL Report, pg. 17). Mr. Khan says that the allegation is false.

   ➢ I note that the police did not lay any charges. This had no influence on my decisions in the case.

9. Ms. Barclay described him as "rigid in scheduling", with which he disagrees (OCL Report, pg. 27). He says that Ms. Barclay did not discuss scheduling or court ordered access with him. He stated that there have not been any problems with court ordered access. He also disagrees with her assessment that he has a win/loss attitude toward Nisma's time with him and Ms. Talaoui.

   9 (a) Ms. Barclay referred to an incident in which Ms. Talaoui demonstrated flexibility, but Mr. Khan did not. Ms. Talaoui allowed Mr. Khan to have Family Day as an extension of his access, but he did not reciprocate by giving her Good Friday when she was off of work because it was not her scheduled day. Mr. Khan testified that he did not recall Ms. Barclay speaking with him about this incident.

   ➢ On this point of being flexible, Mr. Steckley asked Mr. Khan in cross-examination about Ms. Talaoui's request for extended time with Nisma for a summer vacation, which he refused. In a letter to him around June 16, 2014, she told him "Be advised that I have one week vacation from June 19th to June 27th. Nisma will stay with me during this week. I will stop her from school that she will rest and enjoy time with me, friends and family".

   ➢ He refused her request. "He testified that "I will not let her go on a vacation without disclosing where she's going…" He testified further to the effect that she should have gone to court to ask for permission or at least arranged it through counsel. He also said that she waited until the last minute to make him look inflexible to the court.

   ➢ But in the letter that he sent to her in response, on June 17, 2014 he said that she had "purposely" selected a time during his "weekday nights and weekend with Nisma". He told her that Justice Clay had set up an access schedule according to Nisma's best interests and that Nisma was accustomed to this schedule. He told her that Justice Clay's order must be followed. In addition, he told her that "I will be forwarding your letter and my response to my attorney to take the appropriate action if Nisma is missing". There was nothing in his letter about Ms. Talaoui not indicating where she was going with Nisma or about her going to court to ask for an order permitting the extended time with Nisma.

   ➢ Mr. Khan testified that once, he cooperated with Ms. Talaoui and agreed that Nisma could go with her to Niagara Falls one day during his access time. Ms. Talaoui agreed that once, he gave her access to Nisma on July 17, 18 to celebrate Eid. She did not state specifically the year that this occurred, but she agreed in cross-examination that it was "last year", which would make it 2014.

10. Ms. Barclay never discussed with him how Ms. Talaoui behaved. Specifically, she did not discuss with him her conclusion that Ms. Talaoui placed Nisma's interests ahead of her own and was willing to be flexible. Mr. Khan did not say why this was objectionable, however. He just said that he spent a lot of time with Nisma, including when Ms. Talaoui was working, thereby avoiding the need for a babysitter.

11. Mr. Khan did not like that Ms. Barclay referred to the age difference between him and Ms. Talaoui or between Nisma and Mr. Khan's children. He did not think that it mattered.

    ➢ Their difference in age did not influence me in the decisions that I made in the case.

12. Ms. Barclay reported that Mr. Khan denigrates Ms. Talaoui, but she did not mention that Ms. Talaoui says disparaging things about him.

    ➢ The court notes that both parties have said disparaging things about the other.

13. The report is old (July 2013). Since the report, Nisma enrolled in private school; Nisma has her own room; Nisma is older and she has developed a lot, and Nisma has accepted the status quo.

    ➢ The court has taken into consideration how the passage of time affects Ms. Barclay's report.

Azim Baluch and Kasim Baluch

[82] Mr. Azim Baluch (Azim) and Mr. Kasim Baluch (Kasim), Mr. Khan's sons, testified. They basically said the same things so I will summarize their evidence together. They were born in the GTA and have lived their whole lives here. Mr. Khan has been an exemplary father. He has always been loving and supportive in every way. They had a very good childhood and continue to have a very close and supportive relationship with Mr. Khan and with their whole family. Kasim described Mr. Khan as having a "pretty strong character".

[83] They are both graduates of postsecondary institutions. Mr. Khan paid for all of their schooling. They always lived at home. As they have grown older they have found good jobs. They have been very successful and have very rewarding lives. They have no complaints whatsoever. Asim married in December 2015 and has moved out of Mr. Khan's home.

[84] Azim and Kasim said that their extended family with Mr. Khan and their mother is a happy one and everyone gets along. They have all accepted Nisma and love her very much. The whole family spends a lot of time with her. They report that Nisma enjoys her time with them very much. They are all very close. In addition to involving Nisma in many activities she is exposed to French and English in their household because Ms. Khan is French and Kasim is bilingual. In short, Nisma is thriving with them.

[85] They confirmed what Mr. Khan said about wanting to buy property in Morocco. They also confirmed Mr. Khan's evidence with regard to the sham marriages. Azim said that he did not think that this was a good idea, but Mr. Khan "was kind of stubborn about it". Kasim confirmed that after the Mississauga sham marriage Mr. Khan went home with Ms. Khan and he spent the night at home.

[86] Azim and Kasim help Mr. Khan with access visits by picking up and dropping off Nisma at Ms. Talaoui's residence. Both of them have been involved very closely with the situation between their father, Ms. Talaoui, Nisma and their own family.

[87] They both said that Mr. Khan has never lived with Ms. Talaoui. Azim said that although he did not spend every single night at home, he is confident that Mr. Khan did. The most that Azim would be away would be for the odd weekend. He said had Mr. Khan been absent from home even one night, Mr. Khan and/or his brother would have mentioned it.

[88] Azim and Kasim confirmed Mr. Khan's evidence about his deteriorating relationship with Ms. Talaoui and about her threatening to put him in jail and taking Nisma to Morocco. Azim said that Ms. Talaoui never said explicitly that she wanted to move back to Morocco, but she said that she wanted to "go back to Morocco" with Nisma. He said that after his father brought his application for custody Ms. Talaoui told him (Azim) that her lawyer told her that she could take Nisma and that they would not see her.

[89] Azim testified that the only "threat" about Ms. Talaoui taking Nisma to Morocco was when she told them that she wanted to go to Morocco with Nisma and that they were not invited. He admitted that she did not say that she was going to stay there, though.

[90] Azim said that when Ms. Talaoui moved out of the house in which she was living with Nisma after they moved her from the penthouse she did not reveal her new address until her next court appearance. They did not see Nisma for a few days.

[91] Kasim said that on a few occasions Ms. Talaoui said that she wanted to "take Nisma and go". He also stated that Ms. Talaoui told him and Azim to tell Mr. Khan that if he did not give her the house to which Mr. Khan moved her and Nisma after the penthouse, he would never see Nisma again.

[92] Kasim went to work for Air Canada at the airport so that he could get information about how they could detect if Ms. Talaoui was leaving the country with Nisma. Ms. Barclay, the author of the OCL report, testified that "he worked at Air Canada at the request of his father so that he could investigate security issues at the airport".

[93] Kasim stated that he was with Mr. Khan, Nisma, Ms. Talaoui and her brother when her brother asked if Nisma had been circumcised. He agreed, however, that Ms. Talaoui has never told him that she wanted to circumcise Nisma.

[94] Azim complained that Ms. Barclay's OCL report did not include anything about Ms. Talaoui's threats. Ms. Barclay also failed to mention that one of the reasons that he helps his father with access is so that he can spend more time with Nisma. Ms. Barclay also mistakenly said that he, instead of his brother, Kasim, went to Morocco with Mr. Khan. Aside from that he said that the report is accurate with regard to what he told to Ms. Barclay.

[95] In short, Azim and Kasim confirmed everything that their father said. Their testimony agreed with their father's and with each other's in all respects.

Mark Meacoe

[96] Mr. Mark Meacoe testified that he was the real estate agent that helped sell Mr. Khan's son's condominium at Square One where Mr. Khan had installed Ms. Talaoui. He said that it was not "quite a penthouse, but it was on the 35th floor". He was familiar with the contents of the condominium. He said that he did not see any of Mr. Khan's clothes or other things in the condominium. He said that it is common for real estate agents to "look at items in the bathrooms for, you know, male toiletries and female toiletries to see if, we look for cases of divorces, and you know, try to find an edge for clients…" He said that there were no "male items" in the condominium. When Mr. Khan introduced him to Ms. Talaoui he did not introduce her as his wife.

[97] Mr. Steckley asked him if he looked in the closet in the bedroom. Mr. Meacoe stated "At that time no". When the court asked him to clarify this, he said that his response to Mr. Steckley's question about looking in the closets was in reference to "the listing side where I walked through. I don't recall looking at the listing side. When I did show the copy (sic) to a couple of potential buyers we definitely looked through the closets".

[98] Mr. Meacoe agreed that this strategy is used mainly when acting for a buyer. When he acts for a seller, as in Mr. Khan's case, his focus "is not on looking specially for items that show that a man and female are living in the house". He said that it was possible that during his examination of the condominium washrooms that he missed male toiletries in one of the washrooms. But he confirmed that he did not see "male items like razors, shaving cream, that kind of thing, toothbrushes, there was only two there…"

[99] Mr. Meacoe agreed that the fact that all real estate agents use this technique diminishes how effective it is in revealing the state of the sellers' marital situation.

Tevfik Aydoner

[100] Mr. Khan called Mr. Aydoner to testify as a character witness for him. Mr. Aydoner said that he has known Mr. Khan for about 15 years. Mr. Aydoner is a businessman and the founder and director of a charitable organization that helps youth and promotes the teachings of Islam.

[101] He knows that Mr. Khan is also involved in community work to help those less fortunate. Mr. Aydoner visited Mr. Khan's home on a couple of occasions. He said that Mr. Khan goes to his community centre "maybe every two years or so". It was not very often, "maybe seven, eight times in 15 years". Then he said that "as far as our relation go (sic), that was all and I cannot tell much if you ask me about his character in a court I cannot say anything".

Nazia Khan

[102] Ms. Nazia Khan (Nazia) is Mr. Khan's eldest daughter. Like her brothers, Azim and Kasim, she was born in the GTA and has always lived in the GTA. Nazia finished university. In addition, she has a high honours diploma in early childhood education from Sheridan College. She is currently enrolled in a masters program at the University of Western Ontario. She is studying educational psychology and special education. Mr. Khan has paid for all of her education up to now and will pay for her masters program as well.

[103] Nazia is married and has two children, a boy and a girl, aged 6 and 4 years respectively. When she testified she was due to have another child in five months. She works at English and French speaking daycare centres advising teachers and families how to care for children with special needs. Currently, she does not work with the children directly, but she has in the past.

[104] She echoed Azim and Kasim's testimony in saying that they all had a wonderful childhood and that Mr. Khan is a very loving and supportive father and an all-around very wonderful person. She described his personality as "a stronger, firmer type A" personality. Their family loves Nisma very much and they do a lot of activities with her. Her children and Nisma get along very well.

[105] Nazia also confirmed Azim, Kasim and Mr. Khan's evidence regarding the sham weddings and many of the problems between Ms. Talaoui, Mr. Khan and his family after Nisma was born. Nazia said that "from the time that Nisma was born…as soon as she recovered and everything, then she constantly wanted to go to Morocco again. I was worried still because…she wasn't firmly grounded here. I fell that she wasn't, like she didn't settle herself. She really had nothing to lose to leave if she wanted to…"

[106] At the time of Nisma's birth Ms. Talaoui did not have any close friends here except for the Khan family. Ms. Talaoui was very attached to her own family and spoke often to them. Her family wanted her to go to Morocco. Nazia played an important part in convincing Ms. Talaoui not to go to Morocco with Nisma right after she was born because Nisma was very young and had not had the required vaccinations.

[107] Nazia admitted that Ms. Talaoui never said that she wanted to move back to Morocco. She just talked a lot about her family. She described the Khan family's fear about Ms. Talaoui taking Nisma to Morocco permanently in this way:

Well, she would say that she wants to go to Morocco and she—we never had an itinerary to come back. So she was just like, I'm going to go to Morocco and see my family, or I'm going to go there, I'm going to do this, I'm going to do that. There was always different reasons that came up. So for us that was worrisome too because if, if someone makes up different reasons all the time, it's like what's, what's happening. We were not—there was no confidence in terms of we know exactly what's going to happen.

[108] Nazia seemed very concerned that when Ms. Talaoui expressed a desire to go to Morocco she did not give details about the potential trip. She was also concerned that Ms. Talaoui was "very emotional" and impulsive. She said that "So for me, in her behaviour, as well as in the terms of not having any information from her, that was concerning for me. That's why I'm convinced that, you know, even now if she would go—she would be able to go back, she'd go and take Nisma with her". She felt that Ms. Talaoui was not stable mentally and emotionally and that she was making rash decisions.

[109] Nazia had some differences with Ms. Talaoui concerning child rearing. She said that when Nisma was young Ms. Talaoui would want to eat before Nisma even though Nisma was hungry. She would also be on the telephone for "a certain period of time". But Nazia conceded that maybe she did that because members of Mr. Khan's family were there to watch Nisma. She also called her "wishy-washy" in her handling of Nisma. Nazia said that when Nisma was a baby and Ms. Talaoui behaved in these ways Nisma would cry very hard.

[110] Nazia is "convinced" that Ms. Talaoui will leave Canada and take Nisma with her. She bases this belief on seeing a lot of "instability" and on lies that she has told about the Khan family. She feels that Ms. Talaoui is not "grounded" in Canada. She was upset that while at court one day Ms. Talaoui raised her voice to her outside of the court room and told her that she was ashamed of her as a Muslim. Nazia said that it felt as if Ms. Talaoui were pulling herself away from her. She felt that Ms. Talaoui was not grateful for everything that the Khan family had done for her.

[111] Nazia also had criticisms of the OCL report. She said that there were a lot of lies "in terms of my family not caring for Nisma". They have always loved Nisma. She listed these lies as being "what Amal [Ms. Talaoui] told her in terms of us, like being angry, that she wants to take her inheritance, that my mom doesn't care for her".

[112] In addition, Nazia objected to Ms. Talaoui's statements that she (Nazia) does not care about Nisma and that her brother is angry because Nisma is going to take away his inheritance. She told Ms. Barclay that Ms. Talaoui was motivated by money because "there have been times where there's issues about the property in terms of what Amal [Ms. Talaoui] wanted".

[113] Nazia was upset that Ms. Barclay made a mistake about her employment. She erroneous described her as a therapist, which is what she used to do. She also mistakenly stated that Nazia loves Ms. Talaoui. Nazia was upset that Ms. Barclay said that Mr. Khan was very protective of Nisma because it sounds like he coddles her and is being over-protective. Nazia testified that Ms. Barclay failed to mention that her children and Nisma get along very well.

[114] In general, Ms. Barclay did not explain sufficiently the benefits that Nisma gets from her relationship with the Khan family. She did not explain adequately that the Khan family loves Nisma very much and that they are mutually quite attached to each other.

[115] With regard to the circumcision issue, Nazia admits that Ms. Talaoui has never stated that she wanted to circumcise Nisma.

[116] Nazia indicated that much has changed since Ms. Barclay wrote her report. Nisma now has a nice room of her own at the Khan home and she goes to a new school. Nisma seems more adjusted and happier. In general, Nisma's relationship with the Khan family has deepened.

[117] Nazia concedes that she has not had any meaningful contact with Ms. Talaoui since 2012. However, she is still convinced that if she had the chance, Ms. Talaoui would take Nisma to Morocco permanently. She explained her reasons as follows:

It's—a lot of it is behaviour wise. A lot of it is how I know of it. Again, she used to always talk about how great Morocco is, and how it's not the same here and that kind of thing, so even before Nisma was born I was like, oh, she's probably just going to end up going back. Right, and she still maintains strong ties with her family, which is good.

Andrea Barclay

[118] Ms. Barclay is the author of the OCL report in this case. She recommended that the court grant Ms. Talaoui sole custody. She stated:

I could not recommend sole custody to [Mr. Khan] based on his—he demonstrated a very low value of Ms. Talaoui Baluch that caused me a lot of concern in that he would not incorporate her thoughts or ideas. He said a lot of things that… would suggest he was very dismissive of her. I was quite concerned with the erosion of her role as mother in this family, that Mr. Khan had suggested…that Ms. Khan was a better mother, that she was of Canadian standard, that she was a good mother and Ms. Talaoui Baluch was uneducated, of low foundation and had a lot of negative things to say about her…I had a lot of concern that…Ms. Talaoui Baluch was being marginalized and that the erosion of her role…

[119] Ms. Barclay testified that she "observed rigidity and inflexibility with Mr. Khan with respect to Ms. Talaoui Baluch throughout the assessment…" She stated that he had a "win/lose attitude". She gave the example of when Justice Clay increased his access on October 22, 2013. She said that he was "bragging in my office about the fact that that had occurred" and that he felt that it was in Nisma's best interest to spend more time with him and less with Ms. Talaoui.

[120] Ms. Barclay also found that Mr. Khan was vehement about not being separated from Nisma, which hampered Nisma's ability to develop autonomy. She gave the following examples:

(1) At the time of the report he had set her bed up in his bedroom where he and she slept while Ms. Khan slept in another bedroom;

(2) Mr. Khan did not want Ms. Barclay to interview Nisma alone;

(3) Mr. Khan had trouble being separated from Nisma when she went to daycare;

(4) Mr. Khan had trouble being separated from Nisma at Ms. Barclay's office.

[121] Ms. Barclay noted that "the doctor reported that she had an elevated separation anxiety that he felt that was not developmentally appropriate. On the contrary, I think mom encouraged a sense of autonomy. She wanted her in daycare, she recognized that she need…to play with other kids her age, she – a sense of autonomy within the condominium as well".

[122] With regard to language and culture, Ms. Barclay testified that Ms. Talaoui speaks to Nisma in Arabic, English and French. No one in Mr. Khan's family speaks Arabic, nor do they share Nisma's Moroccan culture. In fact, the evidence is that they disapprove of Moroccan culture. Ms. Barclay stated that it would be beneficial for Nisma to be exposed to her Moroccan culture and the Arabic language. She testified that:

I don't have any concerns with that. I think in some ways though that because of my concern with the erosion of her role that that would be something that maybe that her [Nisma] and her mom would share, that would be solidifying for her, in terms of her cultural development, and her sense of identity. That would be, you know, in seeing her mom as, you know, her mother and that she is half of her mother. So that would, I think that would be a positive in the relationship with her mother, and that I don't foresee any negatives to that.

[123] Ms. Barclay felt that it was important that Ms. Talaoui "continue to provide in a mothering role, as opposed to having Ms. Khan provide that role, especially because Ms. Khan …presented as somewhat conflicted about that". Ms. Barclay testified that Ms. Khan told her that with respect to this case, Mr. Khan does not include her in any of it. She had not even read the "court papers". In spite of this, she agreed that it was best for Mr. Khan to have custody of Nisma.

[124] Although, now, Ms. Barclay observed that Ms. Khan was very kind to Nisma and that they definitely had "an attachment", at first Ms. Khan had a hard time when Nisma was born. She cried throughout the whole interview with her. Ms. Khan said that she felt betrayed and she was "very heartbroken".

[125] Ms. Barclay testified that Ms. Khan "felt very betrayed and blames Ms. Talaoui Baluch for everything". She is angry at Mr. Khan, but she feels more betrayed by Ms. Talaoui Baluch because she befriended her and accepted her into the family. Ms. Barclay thought that Ms. Khan should get counselling to help her with these feelings. However, in spite of this, Ms. Barclay did not think that there was a problem with Ms. Khan interacting with Nisma.

[126] However, Ms. Barclay recognized that it was beneficial for Nisma to have "almost complete equal time with their parent and that's pretty ideal in this situation". Ms. Barclay agreed that Ms. Khan and the rest of the Khan family are "very significant to Nisma", but she concluded that this should not be given precedence over her relationship with her mother.

[127] Ms. Barclay agreed that Mr. Khan is very caring and that he is actively involved in Nisma's life. He does, however, have an aggressive and stubborn side. She said that "where he feels in any way that…his ideas are not being agreed upon then he… becomes quite aggressive in terms of his way to go about ensuring that his views are expressed and it may be at the expense of people around him". She testified that "…how I found Mr. Khan is that he really often, he wanted it his way, and there was very little room for empathy or consideration of another point of view".

[128] Ms. Barclay said that "My experience with him was as aggressive and so I felt that that was kind of a pattern for Mr. Khan, and…not aware of the impact to his children when it was pointed out he still wasn't able to stop the behaviour with respect to Nisma, when I would caution him on not talking negatively in front of her and the impact of that, he would continue to do it".

[129] Ms. Barclay referred to an instance that she put in her report regarding when she was at the Khan residence interviewing the family: "Ms. Khan sat beside Nisma on the piano bench and began to play with her. Mr. Khan sharply told Ms. Khan to sit on the couch with a wave and she complied". Ms. Barclay testified that "even though I'd explain (sic) the purpose of my observation, it was more important that…I see Nisma's skill in piano playing than for me to observe interaction which was very positive …between Nisma and Ms. Khan".

[130] Ms. Barclay found Mr. Khan's behaviour to be a concern. She thought that he spoke sharply to Ms. Khan and had been disrespectful, dismissive and rude to her. She noted that when Ms. Khan moved to the couch she was "quite dejected looking". She seemed embarrassed.

[131] Another thing that Ms. Barclay noted that she felt showed disrespect on behalf of Mr. Khan for Ms. Khan was that he "referred to her as weak on two occasions and when he reported about choosing to have another baby against the wishes of Ms. Khan…he stated that he felt that he could manage her".

[132] Ms. Barclay agreed with the court's interpretation of her report that it portrayed Mr. Khan as a very controlling individual. Her evidence in this regard is illustrated in the following exchange between her and the court:

THE COURT: The picture that I get, or one of the pictures I get from reading your report, is that Mr. Khan is running the whole show with his family, with regard to Nisma. He's enlisted his sons to do pickups and drop-offs. He got his one son to get a job at Air Canada to investigate risks of.... A. Security. THE COURT...escape from Canada by Ms. Baluch. He seems to have dominated his wife into, accepting this situation, which you report, she's not very happy about, although she apparently loves Nisma and has a good relationship with her. And, I'm wondering, is this a correct impression that I'm getting from your report? A. That would be my impression, yes. That would certainly - yes that would be the impression that I got. At the expense, I think, was my concern, even of his adult children, in the sense that they were exhausted and they were overwhelmed by it. And at the expense of Ms. Khan who was in great distress in my office. And I think that, that either the lack of awareness on his part or the disregard, but I don't know that it was disregard. The lack of awareness I'll say, possibly on - that this had great impact at their expense. So - and his pursuit of what he wanted and what he felt was very important with respect to Nisma.

[133] With regard to Ms. Talaoui's behaviour, Ms. Barclay noted that in the midst of this high conflict case Ms. Talaoui made inappropriate allegations regarding mental health and sexual impropriety. She was also concerned that Ms. Talaoui did not tell her that she had a new relationship. However, after considering all of the circumstances she stuck by her recommendation that Ms. Talaoui have custody. An important factor for Ms. Barclay in arriving at this recommendation was her concern that Ms. Talaoui's relationship with Nisma was not valued by Mr. Khan and his family. However, she testified that Ms. Khan told her that "she recognized that the role of Ms. Talaoui Baluch, as mother, was important, and that she often had to remind Mr. Khan of that".

[134] Ms. Barclay noted that both Mr. Khan and Ms. Khan spoke of Moroccan women as not being good persons. Ms. Barclay testified that Mr. Khan spoke of Ms. Talaoui as follows:

He talked about Ms. Khan (sic) [Ms. Talaoui] being of low foundation… "She's not educated…to be a mother. My wife knows how with the Canadian standard. Over there children have to cry and children are ignored. The reality isn't Ms. Talaoui-Baluch has not been educated in how to care for her child such as hitting not feeding her, there's not Children's Aid Society in Morocco…in those countries they are backward and poor. It's just the way she's brought up"….The Moroccan standards are low, child abuse and beatings are common. She's a Moroccan mother…" and then he stated "he's never seen her harm Nisma but…she ignores Nisma. She will not leave the phone or internet to attend to Nisma. The Moroccan children are ugly she does not belong there. They sell children to make good money". I believe…it may have been Nazia, made a comment about her going there and…female circumcision being a common practice.

[135] Ms. Barclay explained her concerns further as follows:

I do have concerns around the fact that Nisma would…experience conflict with respect to her own identity as a female and watching her father either speak about her mother or treat her mother in a poor or Ms. Khan in a poor manner, in a disrespectful manner…one of the examples that caused me a lot of concern is that Mr. Khan described Moroccan children as ugly and I think that, he said that his child – he was very fearful she would be there and Moroccan children are ugly, that his daughter is beautiful she should not be there. And I really felt that…his child is half Moroccan, and the concept that he did not see her in that light, that he was so disrespectful and denigrating of Nisma's mother's culture and Nisma's own culture was very concerning to me with respect to the conflict that could create for Nisma in terms of her own identity.

[136] Ms. Barclay testified that Ms. Talaoui told her that Nisma was telling her "to go away. You are dirty, you are from Africa, you're making trouble with daddy". Ms. Barclay said that she had seen Mr. Khan say negative things about Ms. Talaoui in front of Nisma.

[137] In addition, Mr. Khan told Ms. Barclay that "he would tell Nisma that it was mommy's fault that… she was…in this bad daycare and that once he gets the rights to her…that he will make it better. Mr. Khan said that "he might joke sometimes, but that he's not really serious." Ms. Barclay was concerned that this kind of behaviour would create a conflict for Nisma because Mr. Khan, whom she loves, is saying bad things about her mother, whom she also loves. This could damage the relationship between mother and child.

[138] But in spite of all of this, Ms. Barclay testified that Mr. Khan and his family were not concerned with Ms. Talaoui as a mother; their sole issue was that they were afraid that she would move to Morocco with Nisma.

[139] Ms. Barclay said that she "had no evidence or anything to indicate that she had any plans to move". Ms. Talaoui never told her that she wanted to move to Morocco. On the contrary, she told her that it would be considered a failure on her part to do so. When Ms. Barclay was in Ms. Talaoui's home for their interview she said that it was fully furnished and that she never thought that it was a temporary dwelling.

[140] Ms. Barclay said that she thought that Mr. Khan's fear that Ms. Talaoui would take Nisma to Morocco was one of the reasons that he told Ms. Barclay that he wanted custody with supervised access to Nisma for Ms. Talaoui. He said that the other reason was "due to her behaviour she's insulted me, and not one ever insults me".

[141] With regard to Mr. Khan and Ms. Talaoui's relationship while they were having their affair, Ms. Barclay said that Mr. Khan told her that he would sleep over at Ms. Talaoui's home, but he did not say how often.

[142] Ms. Barclay said that in preparing her report she spent seven hours interviewing Ms. Talaoui and four and one half hours with Mr. Khan. But she spent a lot of time with Mr. Khan's family. Therefore, she felt that she gave both sides adequate opportunity to speak with her and to express their concerns. Furthermore, she always gives the parties more time if they request it.

[143] Ms. Barclay recommends that Ms. Talaoui have custody, but on the basis that Nisma be able to spend as much time with both parents as is beneficial for her. She testified that "my recommendations were…being as close to 50 percent without tearing the child in two, that you could make so that each had alternate weekends… I think that [Ms. Talaoui] would look at Nisma's interest and not necessarily just what she wanted…my assessment was that she would do what was good for Nisma, but not at the diminishment of her relationship with her father".

[144] The court asked Ms. Barclay if the following summary of her reasons for recommending custody be granted to Ms. Talaoui was correct and she gave this answer:

THE COURT: Okay, thank you. What I understand your final conclusion being based on, after considering everything, you said if Mr. Khan were to get custody you feared that Ms. Talaoui-Baluch's role as mother would be at risk and be diminished and not nurtured and fostered as it should be. Is that the basic reason why you decided that you thought custody for her is more in the best interest of Nisma? A. That's a large part of it, yes. I think that Mr. Khan when he spoke of her really devalued her as a human being and that was a concern for me in terms of then he would not value her opinion. I think that when, you know, when out of passion for his love for his daughter, or whatever his motivation may be, you know, I think that he - really only has a very narrow perspective, and does not take into account the perspectives of the people around him. So I think that that would be a concern that I have. If he did not value the relationship, you know the suggestion that Ms. Talaoui-Baluch should only have supervised access, that he did not value her as an educated mother or, you know, did not value her role, felt that his wife's role as Canadian Standard was a better model. He wanted Nisma to live with him. And he was inconsistent, he would say she can have, if you give me full custody she have all the time she wants, but it would have to be supervised and holidays should be shared, but it would have to be supervised, and summer could be split but it would have to be supervised. So I think, you know, the impression I got really was that his - he wanted to absorb Nisma into his family and that, you know, that he would allow Ms. Talaoui-Baluch to have some time with her. So I think that was the overall sense that I got, and that he felt that that was good for Nisma, he really did. I think he believes that. So, just that, you know, in terms of the comments he would make about Ms. Talaoui-Baluch or the daycare in front of, in front of Nisma to Nisma. Really, again, devalues her to, you know to - devalues Ms. Talaoui-Baluch to her own child, so - which caused me concern. So that was, that was one of the main pieces. I think that's, that I felt that because I was told consistently that the issue was the, the issue of the concern with abduction, that if I removed that concern really there was then, technically, no other issues despite what was continuously presented…So - and I felt that Ms. Talaoui-Baluch presented a more business like, I would suggest, approach to, approach to the co-parenting where Mr. Khan presented a very one-sided perspective to co-parenting. In fact, I would say he was not willing to co-parent. He wanted to co-parent with Ms. Khan I would suggest.

[145] Ms. Barclay acknowledged that the situation is fluid and that her report only considers the situation as it existed at the time that she wrote it. She stated that her investigation ceased as soon as she filed her report. Consequently, her report does not consider any developments after she filed it.

[146] That was all of Mr. Khan's testimonial evidence regarding the issues of custody and access.

Ms. Talaoui's Evidence

Dr. Aly Hindy

[148] Dr. Hindy serves the Islamic community three days a week as an "Imam, religious leader, marriage officer, counsellor for family counselling". He performed an Islamic marriage for Ms. Talaoui and Mr. Khan in March 2009. Mr. Khan contacted him a few days prior. He did not mention anything about buying property in Morocco or about it being a fake marriage.

[149] He did not have a marriage license so Dr. Hindy only did an Islamic marriage. He told Ms. Talaoui that without a marriage license the marriage would not be registered. He told her that "you don't have a marriage license so it's not registered, so you better make sure about the dowry…because you…don't have much rights in the Canadian system…because this marriage is…not registered".

[150] Dr. Hindy testified that recently, Mr. Khan approached him and asked him to perjure himself and say that the marriage never took place if anyone asked him.

Q. Did Mr. Khan, specifically tell you to testify that this ceremony had never happened? (emphasis added) A. Yes, he said that if somebody asks you about this you say I don't know anything about it. Just say, I don't know, I don't know, I don't know what happened, I don't know these people. I don't know if they are married or not, I - he want me completely - completed my everything. How can I deny something like that, my picture is there and it's signed, and this is not, you know, my principle. You know, how can I, how can I lie, you know. So he asked me to lie about the whole thing and he said this woman does not deserve anything and she wanted to take my money and she wanted to do so, so I completely deny everything. You know this is not the way to observe dispute, you have to solve it, but it's not by lying.

Ms. Talaoui

[151] Ms. Talaoui testified that she is 42 years old. She was born in Morocco into a wealthy family. She has two sisters and three brothers. She had a wonderful childhood and she continues to have a good relationship with her family. She denied that she was beaten when she was a child. Her brothers were disciplined physically from time to time, but never the girls.

[152] Ms. Talaoui has a Bachelor of Arts degree in economics from the University of Morocco. After she obtained her degree she worked at various jobs in accounting and human resources. She also worked for Shell and Mobil and for Alcan as a "foreign purchaser". She worked for Alcan for four years and then went to work for an architect. After this, in 2008, she immigrated to Canada. It took her five years to obtain her Canadian permanent resident visa.

[153] Ms. Talaoui became a Canadian citizen on February 15, 2013. In Canada she has the opportunity to continue her studies in finance, where as in Morocco she would not be able to do this because if you take a break from your university studies for one or two years you are not allowed to return.

[154] In addition, women are better off in Canada than in Morocco. She stated that:

A. Like you can, you can - for, like for a woman, she can like do any job. She can study whatever she can, and where, wherever she, she want to start, like even at the age of like 40 or 50, and like I got - I had the opportunity to meet some people that are older but the - just they, they change their career, like totally different than when they start. For example, a kind of - there is a lot of rights here in, in Canada as human rights or women rights or like children rights, lots of things which is - we're still missing those kind of things in our countries. Q. In Morocco? A. Not only Morocco. Q. Mm-hmm. A. For example, Morocco or Tunisia or Eritrea or all Arabs and Muslim countries, so the woman, she's still - she still can't do a lot of things, even in Saudi Arabia, the woman, she can't even drive a car. So here, we have the right to drive. We have the right to travel, to, to do whatever we want, as long as that it is like safe things and safe place.

[155] Ms. Talaoui testified that she never threatened to take Nisma to Morocco and not return. It took her five years to get her visa to come to Canada. When she finally got it, it was like achieving her dream. She considers Canada her country. Since living here she has gotten used to how things are done in Canada. She said that it would be very difficult to return to live in Morocco. She will never go back to live, just to visit her family. The longest that she would go back for would be four weeks.

[156] She does not have any regrets about coming to Canada. Nisma was born in Canada. Ms. Talaoui said that she has a good life here. She does not want to return to Morocco to live. Ms. Talaoui does not own any property in Morocco or have any business interests there.

[157] Ms. Talaoui married Ahmed Salem in October 2015. They met at their Mosque approximately two weeks before they married. According to Mr. Salem's testimony this is not unusual in their culture. Mr. Khan did not challenge this evidence as being culturally inaccurate.

[158] Mr. Khan was upset about the marriage because he said it was so sudden. The marriage occurred in the middle of the trial after Mr. Khan had testified. The court allowed him to reopen his case in order to give evidence on the matter because it was a significant change in Ms. Talaoui's circumstances with regard to Nisma's living environment. He gave his evidence at the end of Ms. Talaoui's case, after Ms. Talaoui and Mr. Salem testified about their relationship and how it affects Nisma. Mr. Khan stated that:

I cannot see the -- any -- any - any reason to believe that my daughter is feeling comfortable or feeling satisfied with his presence, all of a sudden a new man in her life with her mother. There -- I could not conclude any purpose for this marriage or event and just bringing me doubts in my mind that how my daughter future gonna be by creating this marriage all of a sudden. Mr. Saleem (sic) appeared to be incapable of taking care of himself and how is he going to take care of my daughter, Nisma, if suddenly mother is out and he's alone. I do not see any -- his limitation and abilities to take care of my daughter if Amal has our daughter with her. After cross-examine Mr. Saleem (sic) clearly indicated to me the major impact on Nisma's life, because of inappropriate involvement which happened, he admitted, since he moved in. I'm very much concerned about this marriage and effect on my daughter's future and proved me only the -- the respondent desperate attempt for this marriage and irrational move to prove the court that she's finally settling down here in Canada. No other meanings of this marriage I see it, which I still feel my daughter will be not safe to be trusted with the respondent, who will attempt to remove her. And this man she married is -- can't even support the family who's living on a government assistant income. There's no other income other than support from the government. I don't see any finance gaining for -- for this family by taking a – a dependant man, who's dependant on others, retired, no other income coming, other than that. Thank you, Your Honour, that's all I can....

[159] Ms. Talaoui and Mr. Salem live together with Nisma in a rented home. They plan to buy a house within the next two years. Ms. Talaoui says that Nisma and Mr. Salem get along well. Nisma likes him and feels comfortable with him. She calls him "Baba".

[160] She added that Nisma is going to school in Mississauga and that she does not want her to study outside of Canada. In addition, Ms. Talaoui has made friends in Mississauga where she currently lives with her husband and Nisma. They plan to remain in Mississauga. They have not discussed moving away to anywhere. Moreover, Ms. Talaoui has employment here. She currently works at First Data. Her hours are 10:00 a.m. to 6:00 p.m., Monday to Friday. She earns $20 per hour. She is not required to work on weekends.

[161] Regarding her relationship with Mr. Khan, she said that she met Mr. Khan online on a "marriage website". She was looking for a man in Canada that she could marry. She stated:

I had this idea to, to find like somebody here in Canada, because for me, is - I'm moving from Morocco and to my destination which is Canada, so to live there and raise a family here, get married and raise family and live here. That's - Canada will be my, my actual country.

[162] Ms. Talaoui said that Mr. Khan never talked about buying property or said that he was married. She said that he wanted to get married and was looking for a "Muslim-born girl from a Muslim country".

[163] Once in Canada, Ms. Talaoui took several government sponsored courses to help her find employment, which included an eight-week English language course. She met Mr. Khan in person two weeks after her arrival. He encouraged her to move to Mississauga.

[164] After three or four months, he told her that he was married, but that he was separated from his wife and that they just lived together for the sake of the kids. Also, a divorce would take five years and he would have to share his wealth with his wife, to which she had never contributed.

[165] Once, while she was still living in Montreal, they travelled to Kingston on July 19, 2008. While they were there he told her that he wanted to marry her. After this, in Toronto, on August 31, 2008, he gave her an engagement ring. He encouraged her to move to Mississauga. In September 2008, she moved to Mississauga. She said that she was coming here to marry him. They recorded a message that they sent to her parents in Morocco to seek their approval.

[166] He helped her find her first job at Western Plastics on October 1, 2008.

[167] She obtained a six week placement employment at Pepsi in Mississauga. After that, she obtained employment at the Loblaws head office in Brampton. She is a customer support specialist. Since she spoke French she dealt with the company's business in Quebec. She left on maternity leave for one year and then obtained employment at Apple Express as a bilingual customer service representative where she currently works.

[168] Regarding the marriage ceremony in Mississauga, Ms. Talaoui said that, as with his family, he told her the same day that he had arranged for the ceremony to take place. He had not consulted with her about it, but she was not surprised by it. As indicated on the Islamic marriage certificate he promised her a dowry of $5,000 and 50 hectares of his farm. He only gave her the $5,000. Mr. Khan never said that he was interested in buying property in Morocco. She said that anyone can buy property in Morocco. You do not have to be a citizen.

[169] One day after the marriage ceremony, Mr. Khan took her to meet his mother and he introduced her as his second wife. They went to Vancouver about one year later on a honeymoon.

[170] After the Mississauga ceremony they went to Morocco and went through another Islamic marriage ceremony. She said that when they returned to Mississauga they lived in the "penthouse" condominium. She said that he spent every other night with her. He had his clothes there and they were living as husband and wife. During the days she spent time at his home cooking and cleaning.

[171] In addition, Mr. Khan asked her to change her name to Baluch and he presented her as his second wife to his friends. I note that there is no other evidence to support that he introduced her to anyone as his second wife.

[172] Concerning, the circumcision issue, Ms. Talaoui denied that her brother ever asked Mr. Khan whether Nisma was circumcised. She said that in her culture they do not circumcise girls. She has no intention of getting Nisma circumcised. Although at first Mr. Khan stated that Ms. Talaoui was circumcised, he later conceded that she was not.

[173] With regard to moving from the "penthouse" condominium to the house that Mr. Khan owned on Cawthra St., she said that while they were in Morocco on their second trip there, he had all of her things moved to the house without consulting her.

[174] Ms. Talaoui said that Mr. Khan has threatened to kill her if she got custody. She said that once he choked her in the bathroom at the Cawthra house while his wife was in the living room screaming. She reported this to the police but they did not lay any charges. He also told her once that he and his brothers had decided to have her deported.

[175] Although Mr. Khan's then counsel, Mr. Talpur, asked Mr. Khan generally if he had ever threatened Ms. Talaoui and he denied that he had, Mr. Steckley did not put these specific allegations to Mr. Khan. This offends the rule in Browne v. Dunn. Consequently, their evidentiary value is very low and I do not ascribe any weight to them. There is no other evidence to support Ms. Talaoui's allegations.

[176] With regard to Mr. Khan being flexible concerning access, Ms. Talaoui testified in the same vein as Ms. Barclay about this. Therefore, I will not address her evidence in this regard because it would be repetitious.

[177] With regard to Azim's evidence that they did not see Nisma for a few days after Ms. Talaoui moved out of the house in which she was living with Nisma after they moved her from the penthouse, Ms. Talaoui testified that she advised her lawyer to give Mr. Khan her new address because he had to drop off Nisma every night.

Dr. David Venturi

[178] Dr. David Venturi is the family doctor for Mr. Khan's family and for Ms. Talaoui and Nisma. He has been the Khan family doctor for approximately 15 years. All of the Khan children were well looked after by Mr. and Ms. Khan. He has been Nisma's doctor since she was born. Both Ms. Talaoui and Mr. Khan bring her in for visits. He has no concerns with the way either of them are caring for Nisma. She is a thriving, healthy young girl.

Ahmed Salem

[179] Mr. Ahmed Salem is Ms. Talaoui's husband. They were married at the end of October 2015. He met her at the Mosque earlier that month. He said that it is not unusual in his culture for parties to marry after having known each other for a short time.

[180] He has a very good relationship with Nisma. She calls him "Baba". They live in a three bedroom house where Nisma has her own room. Mr. Salem said that he has a lot of experience with children. He has five of his own and 11 grandchildren. Ms. Talaoui and Nisma know his family. Some of his children and their kids see Nisma regularly and they get along well. He considers Nisma to be his daughter and has taken full responsibility to do everything to help Ms. Talaoui and Mr. Khan raise her. He described how he feels about this as follows:

A. Yeah, that's my duty. I have to take care of her. It's my duty as a human being, as a father. That's humanity before anything and I -- don't -- don't forget that I am a father. I'm a father, don't forget that. I have five --five children and I have 11 granddaughters and sons and that's my duty as a human being, as a father, as a religious man. It's easy.

[181] He accepts that Mr. Khan is her biological father. He sees himself as a "second father". Mr. Khan cross-examined Mr. Salem on the issue of Nisma sleeping in the same bed with him and Ms. Talaoui. It appears that at times Nisma sleeps next to her mother in the same bed with Mr. Salem. This upset Mr. Khan, however, there is no evidence that anything untoward has ever occurred.

[182] Mr. Salem is 64 years old. He was born in Egypt. He has lived in Canada since April 1, 1995. He has five adult children, all of whom graduated from university in Canada. He divorced from their mother approximately 15 years ago. He is very happy living in Mississauga with Ms. Talaoui and Nisma. He has no intentions of ever returning to Egypt, not even to visit.

[183] Mr. Salem retired about six years ago. He was a holistic therapist in a health centre. He described his education as follows:

I am a dermatologist, as a physician from Egypt and I have another diplomas for -- in forensic medicine in the government for nine years in Egypt. After moving to Canada I chose the holistic medicine and the treatment of addiction, like alcohol and the drug addicted and I got two diplomas, separate diplomas. And because I like the forensic science, I got diploma in the forensic here in Canada, too, but I don't practice because it's very hard to practice in forensic here.

[184] He receives $6,000 a year from an ODSP disability pension. In addition, he receives approximately $70 per month from CPP. When he turns 65 he will receive an old age pension. He is on ODSP because he hurt his knee and shoulders at work. However, he is fine now and he said that he moves very well. He does not have any problems with mobility. The only medication that he takes is Tylenol or other similar pain medications. They keep them locked up and well away from Nisma's grasp.

[185] Mr. Salem said that he might start a holistic and relaxation clinic, but as of the moment he does not have any concrete plans. He has never had his own business before.

[186] Mr. Salem does not have a criminal record or any outstanding charges. He has never been involved with the Children's Aid Society. He does not smoke or have any addictions. He has no dependents other than Ms. Talaoui and Nisma.

Hnia Elkhyar

[187] Ms. Elkhyar testified that she has known Ms. Talaoui for about four years. They are both from Morocco. Their children are about the same ages and they play together. Ms. Elkhyar said that Ms. Talaoui is a very good mother. She observed that Ms. Talaoui is a hard worker and that she talks about her future in Canada. Ms. Talaoui has never said that she is unhappy in Canada. She has never said anything about wanting to return to Morocco to live.

[188] This, along with the documentary evidence, is all of the evidence regarding custody and access. Now, I will turn to an analysis of the evidence and the law as it relates to the parties' claims for custody and access.

Analysis Regarding Custody and Access

[189] Section 24 of the Children's Law Reform Act deals with custody and access. Except for s. 24 (2) (b), the whole section is relevant to the case at bar.

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1) .

(2) The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person entitled to or claiming custody of or access to the child, (ii) other members of the child's family who reside with the child, and (iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1) ; 2009, c. 11, s. 10 .

[190] Neither party requested joint custody or any type of custodial arrangement other than sole custody.

[191] In the circumstances of this case the court finds that no other type of custodial arrangement would be in Nisma's best interest. The parties do not get along sufficiently to make joint custody or any type of shared parenting arrangement feasible. Such a plan would surely result in frequent acrimonious exchanges between the parties that would be harmful to Nisma. Therefore, I did not consider any other type of custodial arrangement other than sole custody.

[192] After considering all of the evidence I agree with Mr. Steckley's submission that "It appears clear that there is love, affection and emotional ties between Nisma and both parents". I would add that the evidence shows that this is equally true with regard to Mr. Khan's family and with regard to Mr. Salem.

[193] However, I share Mr. Steckley's concern that Ms. Khan did not testify. Mr. Khan mentioned her in his Form 35.1 affidavit as a person who would support him in caring for Nisma. She lives with Mr. Khan in the household where Nisma would be living if the court awarded custody to Mr. Khan, but Mr. Khan did not provide any evidence from her regarding her feelings, attitude or acceptance of such an eventuality.

[194] I find it very curious and troubling that a person who would play a major role in Nisma's care should the court award custody to Mr. Khan, did not testify. Mr. Steckley makes a good point when he submits that "The fact that she was not called as a witness…suggests that Ms. Khan may not be as accepting of Nisma, or the entire situation, as [Mr. Khan] would have the Court believe".

[195] I note that there is no evidence before the court to explain why Mr. Khan did not adduce any evidence from Ms. Khan. Such evidence would have been very helpful to the court in assessing the family environment in which Nisma would be living if Mr. Khan were granted custody. Without evidence from Ms. Khan the court is left in the dark about how she feels about Mr. Khan being granted custody and about the role that she is prepared to play in rearing Nisma. The court feels that evidence regarding Ms. Khan's attitude toward such a scenario is crucial in assessing how welcome Nisma would be by Ms. Khan.

[196] Another important concern is that the court has been deprived of hearing if Ms. Khan has changed her attitude towards Ms. Talaoui and Moroccan culture.

[197] Perhaps the reason that Mr. Khan did not call Ms. Khan as a witness is explained at least in part by Ms. Barclay's testimony that Ms. Khan told her that Mr. Khan has largely excluded her from the case. Ms. Barclay testified that Ms. Khan told her that with respect to this case, Mr. Khan does not include her in any of it. She had not even read the "court papers". In spite of this, Ms. Khan felt that it was best for Mr. Khan to have custody of Nisma.

[198] It follows that since Mr. Khan largely excludes Ms. Khan from the case, her opinion about who should have custody is a somewhat uniformed opinion.

[199] With regard to Ms. Talaoui as a mother, Mr. Khan's evidence is that he does not have any issue with her ability to be a good mother. But he did express concern over Nisma sleeping in the same bed with Ms. Talaoui and her husband, Mr. Salem. However, there is no evidence that this was harmful to Nisma. In any case, in their new home Nisma will have her own bedroom.

[200] Mr. Khan repeatedly stated that the reason that he wants custody is because he and his family fear that Ms. Talaoui will move to Morocco with Nisma and keep her there. After considering all of the evidence in this regard, I find that this fear is not objectively substantiated. It is an imagined, hypothetical and somewhat hysterical fear based on speculation and on an exaggerated and unrealistic interpretation of the circumstances. I find that Mr. Khan is mischaracterizing the circumstances in order to try and create the impression that if the court grants custody to Ms. Talaoui she will take Nisma away to Morocco.

[201] The evidence shows that Ms. Talaoui tried for five years to obtain a visa to emigrate to Canada. She wanted to come to Canada because she felt that as a woman her future would be brighter here. She is now a Canadian citizen. Her daughter was born in Mississauga and has lived here all of her life. Ms. Talaoui married a man who emigrated from Egypt many years ago and who has no interest in returning. They live together with Nisma in a house in Mississauga. Ms. Talaoui has friends in Mississauga.

[202] During the eight years that Ms. Talaoui has been in Canada she has gone to Morocco three times: (1) with Mr. Khan for the marriage ceremony; (2) for 10 days after Nisma was born during a time that her mother was gravely ill; (3) with Nisma and Mr. Khan. Ms. Talaoui wanted to take Nisma with her when she visited her sick mother, but Mr. Khan and his family prevailed on her to leave her with them. Aside from perhaps words spoken out of anger and frustration at Mr. Khan at times, there is no indication that Ms. Talaoui ever planned, or now plans to go to Morocco with Nisma on a permanent basis. I find that the credible evidence and all of the circumstances show that anything that Ms. Talaoui may have said about taking Nisma away from Mr. Khan were just words of anger and frustration at Mr. Khan.

[203] In addition, Ms. Talaoui's employment history shows that she is keen to work in Canada. She has held several jobs and she is currently employed at the highest paying job that she has had in Canada.

[204] It is somewhat understandable that Mr. Khan's love of Nisma makes him fearful that Ms. Talaoui will take Nisma to Morocco and stay there. However, I find that his imagination has gotten the best of him in this regard. There is nothing in the evidence that persuades me that there is a realistic danger that Ms. Talaoui will abscond to Morocco with Nisma.

[205] The evidence persuades me that Ms. Talaoui is a loving and capable mother who is willing to encourage a meaningful relationship between Nisma and Mr. Khan and his family. I find that the evidence shows that Ms. Talaoui is providing a healthy, stable environment for Nisma. The only problem is the acrimony between her and Mr. Khan. This is something that both parties will have to resolve for Nisma's sake.

[206] On the other hand, I find that the evidence paints Mr. Khan as a domineering person who tries hard to control his environment including the members of his family and Ms. Talaoui. I fear that should the court grant custody of Nisma to Mr. Khan he will tend to shut out Ms. Talaoui because of the rancor that exists between them. This would be a constant tension that would not be in Nisma's best interests.

[207] Moreover, the evidence shows that both he and his family think very little of the Moroccan culture. If the court were to grant Mr. Khan custody Nisma would be exposed to this negative attitude in her home, which would likely affect negatively her opinion of herself and of her mother. This would not be in her best interests. Nisma is half Moroccan.

[208] In addition to English and French, Ms. Talaoui speaks Arabic, which is part of Nisma's heritage. No one in Mr. Khan's family speaks Arabic. The most that they could do would be to enroll Nisma in Arabic language classes and teach her about Moroccan culture from sources outside of her family.

[209] This would be a poor substitute for being able to learn the language and culture from her mother at home. Furthermore, given their attitude towards Moroccans I doubt that they would make meaningful efforts to teach Nisma about her Moroccan culture.

Disposition Regarding Custody

Custody

[210] The court orders on a final basis that Amal Talaoui have custody of the parties' child, Nisma Baluch, born on February 4, 2011. For further clarification the court orders on a final basis that:

1. Primary Residence

Nisma's primary residence shall be with Amal Talaoui.

2. Grooming

Amal Talaoui shall be solely responsible for Nisma's grooming. Ziaullah Khan nor anyone else shall cut the child's hair or pluck her eyebrows without Amal Talaoui's permission.

3. Travel and Passports

i. Amal Talaoui shall have the right to possess Nisma's passport and all other travel documents. Should a passport or any other travel document be required for Nisma, Amal Talaoui and Ziaullah Khan shall cooperate with each other in doing all that is necessary to make the application to acquire the passport or other document. Amal Talaoui shall keep Nisma's passport at her residence. She shall make it available to Ziaullah Khan as required for the purpose of his travel with Nisma.

ii. Ziaullah Khan shall be named in Nisma's passport or other travel document as the person to contact in case of an emergency.

A. Amal Talaoui's Travel with Nisma

i. Amal Talaoui shall have the right to travel anywhere with Nisma for a maximum of four weeks per year. But, she shall not travel for more than two consecutive weeks on any trip. Ziaullah Khan's consent is not required for any travel by Nisma with Ms. Talaoui.

ii. For every trip of one week's duration or more Amal Talaoui shall give Ziaullah Khan 21 days notice unless they agree otherwise. The notice shall contain a detailed itinerary that shows the route to be taken, flight details if applicable, contact information so that Ziaullah Khan can contact Amal Talaoui and Nisma during the trip, and the locations at which they will be staying.

iii. Amal Talaoui shall not unreasonably prevent contact between Nisma and Ziaullah Khan during any travel that she does with Nisma. During any trip, Ziaullah Khan shall have access to Nisma via electronic means once a day or more frequently if agreed to by Amal Talaoui.

iv. Amal Talaoui shall advise Ziaullah Khan of her return home from the trip within 12 hours of returning.

B. Ziaullah Khan's Travel with Nisma

i. Ziaullah Khan shall have the right to travel anywhere with Nisma for a maximum of four weeks per year. But, he shall not travel for more than two consecutive weeks on any trip. Amal Talaoui's consent is not required.

ii. For every trip of one week's duration or more Ziaullah Khan shall give Amal Talaoui 21 days notice unless they agree otherwise. The notice shall contain a detailed itinerary that shows the route to be taken, flight details if applicable, contact information so that Amal Talaoui can contact Ziaullah Khan and Nisma during the trip, and the locations at which they will be staying.

iii. Ziaullah Khan shall not unreasonably prevent contact between Nisma and Amal Talaoui during any travel that he does with Nisma. During any trip, Amal Talaoui shall have access to Nisma via electronic means once a day or more frequently if agreed to by Ziaullah Khan.

iv. Ziaullah Khan shall advise Amal Talaoui of his return home from the trip within 12 hours of returning.

v. There shall be no make-up time for missed parenting/access time, unless the parties agree otherwise.

4. Legal Documents

i. Amal Talaoui shall have right to obtain, renew and/or replace all legal documents relating to Nisma, including but not limited to Nisma's passports, birth certificates, social insurance cards and health cards, without the consent of Ziaullah Khan.

ii. Ziaullah Khan may have notarized certified copies of these documents if he wishes. If so, Amal Talaoui shall either obtain notarized certified copies and give them to Ziaullah Khan, or she shall make the document(s) available to Ziaullah Khan so that he can make notarized certified copies of the document(s).

iii. If Amal Talaoui gives the document(s) to Ziaullah Khan so that he can obtain notarized certified copies of the document(s), he shall return the document(s) to Amal Talaoui within 48 hours.

5. Relocation

Neither party shall relocate Nisma's residence for a distance greater than 50 kilometers from the other party without an order from the court.

6. Decision Making

i. Amal Talaoui shall have sole decision making authority in all areas of Nisma's life.

ii. Amal Talaoui shall keep Ziaullah Khan fully informed of her decisions with regard to Nisma's education (whether it is part of the school curriculum or in addition to it), health, and religion. This includes decisions regarding registering Nisma in out of school activities such as sports, music, dance and any other similar activities.

7. General Activities

i. Amal Talaoui and Ziaullah Khan shall advise each other of all important events, functions, or appointments for Nisma in a timely manner in order that they can attend if they wish. A non-exhaustive list of examples of these functions or appointments are:

• a) medical appointments;
• b) school activities, such as meetings with school officials, plays and graduations, sporting events;
• c) dance, acting or music rehearsals.

ii. With the exception of strictly Khan or Talaoui family social events, both Amal Talaoui and Ziaullah Khan shall be entitled to participate in events, functions or appointments regarding Nisma.

iii. Neither Amal Talaoui nor Ziaullah Khan shall arrange activities for Nisma when Nisma is scheduled to be with the other parent without that parent's consent.

iv. Ziaullah Khan shall be at liberty to attend scheduled school events and extracurricular activities whether or not they occur during his parenting time.

8. Emergencies

i. Amal Talaoui and Ziaullah Khan shall notify each other immediately of any emergency regarding Nisma that occurs while Nisma is in their care.

ii. Amal Talaoui and Ziaullah Khan shall both be named as emergency contacts with Nisma's schools, doctors and with regard to any activity in which Nisma is involved that asks for an emergency contact.

9. Contact Information

i. Within five days of the date of this order, Amal Talaoui and Ziaullah Khan are to provide the other by email with their current street address, phone number, email address and any other contact information where they can be reached at all times.

10. Religious Education and Observance

i. Neither party shall interfere with the religious observance of the other with Nisma. However, Amal Talaoui shall have the right to decide whether or not Nisma participates in formal religious education, and if so, the particulars of that religious education.

11. Communication

Amal Talaoui and Ziaullah Khan shall abide by the following principles in their relationship with each other and their contact with Nisma:

i. Neither party shall go to the other's home except for the purpose of picking up or dropping off Nisma, or on the consent of the other. Nisma shall take responsibility for the movement of her possessions as necessary between the parties' homes.

ii. With the exception of emergencies or other occasions when it is impracticable, the parties shall communicate only through the Family Wizard.

iii. Within 14 days of the date of this judgment the parties shall register for the services of the Family Wizard. Until the parties register for the Family Wizard they shall communicate only though emails, or their lawyers. They shall not erase any of their emails. The emails shall not be read by Nisma. Each party will respond promptly by return email to the email of the other. The parties shall exchange information regarding Nisma's care, developmental milestones, food likes and dislikes, scheduled activities and appointments, medical and otherwise, and any requests for changes in the parenting schedule.

iv. None of the emails between the parties regarding Nisma shall be deleted nor shall they be forwarded to third parties without the other parent's consent.

v. Emails shall be brief, respectful, related solely to Nisma, with no reference to either of the parties or their activities.

vi. Amal Talaoui and Ziaullah Khan shall diligently maintain the following communication materials, which shall be the primary form of communication with respect to Nisma, and which they shall exchange at the time of access exchanges:

• a. a communications log which shall be used to provide and exchange all pertinent information related to Nisma, including but not limited to information regarding Nisma's health, homework, activities, special events, routines, child care strategies in each home, and any other issues relating to Nisma. The communications log shall not be used to write negative comments, or to raise issues that the parties can reasonably expect would create or exacerbate conflict between them.
• b. An appointments calendar in which each party shall diligently record all appointments for Nisma.
• c. A medical log in which each party shall diligently record in a timely fashion all medical information respecting Nisma, including but not limited to:
  • 1. the names and contact information of all medical professionals involved with Nisma;
  • 2. Nisma's current medications and the reasons why the medications have been prescribed;
  • 3. the dosages for Nisma's medications including full details about how the medication should be administered;
  • 4. a detailed log of the date and time of day when the medications were taken and in what dosage;
  • 5. a detailed log regarding any medical treatment or appointments which Nisma attended while in each party's care.

i. Amal Talaoui and Ziaullah Khan shall refrain absolutely from denigrating each other or members of each other's household or families in Nisma's presence or within earshot of her.

ii. They shall not question Nisma about the other party's personal life and activities.

iii. They shall not video or audio record Nisma for the purpose of recording statements or discussions about the other party, members of their household or family, or parenting issues.

iv. They shall refrain absolutely from engaging in any disputes with each other in Nisma's presence or within earshot of her, and from involving Nisma in any manner in conflicts which may arise between the parties.

v. They shall not use Nisma to pass messages or documentation on to each other.

vi. They shall encourage Nisma to have a strong and positive relationship with both parents, and shall use all reasonable efforts to foster a meaningful relationship between Nisma and extended family members.

vii. Neither Amal Talaoui nor Ziaullah Khan shall discuss with Nisma, or with another party in Nisma's presence, past, present or future legal proceedings or issues between the parties related to past, present or future legal proceedings. This includes any outstanding property or financial issues relating to the parties or to Nisma, and conflicts between the parties relating to parenting issues. Each party may respond briefly, in a reasonable manner, to questions with respect to such matters initiated by Nisma.

viii. Neither Amal Talaoui nor Ziaullah Khan shall leave out or accessible to Nisma information or documents pertaining to any issue arising from their separation and divorce, and neither will permit Nisma access to their personal email where communications regarding these matters are stored. Both parties shall ensure that Nisma will not have access to information regarding their separation and divorce by password-protecting any area of their personal computers that hold such information.

ix. The parties shall share all documents pertaining to Nisma by scanning the document and then sending it to the other party by email. They shall not rely on Nisma to transport documents between them.

x. If one party finds what Nisma has said about the other party to be of significant concern, that party shall first ask the other party, by email, what actually happened. If a complaint is made by Nisma to one party about the other, Nisma shall be encouraged to talk directly to the party he or she is complaining about.

12. Nisma's Name

Neither party shall change Nisma's name – either formally or informally – without the written consent of the other party or a court order.

Access

[211] Mr. Steckley submitted that Justice Clay's temporary order made on October 22, 2013, "as with all temporary Orders was based on imperfect information available…at the time". He states that Justice Clay did not have the benefit of viva voce evidence, tested by cross-examination, nor the benefit of Ms. Barclay's OCL report. Mr. Steckley argues that Justice Clay's order should not be "the governing word on access going forward".

[212] Mr. Steckley pointed out that Ms. Barclay's conclusion was that the existing access order keeps Nisma away from Ms. Talaoui "for too long, given her developmental age".

[213] The effect of Justice Clay's order is that every other week Mr. Khan has Nisma overnight from Wednesday to Monday morning. That is 5 days. In addition, he has her for two hours on Monday and Tuesday.

[214] On the other week, he has Nisma overnight on Wednesday and Thursday, plus two hours on Monday and Tuesday, and seven hours on Friday.

[215] Ms. Barclay stated in her evidence that "for a child to be apart from a parent for more than three days at her developmental stage is not supported". She further stated that "it would be unusual for a two and a half, three year old, to be apart from either parent for a five-day overnight".

[216] Nisma will be six years old on February 4, 2017. Therefore, she is twice as old as she was when Ms. Barclay wrote her report. When she testified, Nisma was four years old.

[217] The parties appear to be complying with Justice Clay's temporary order. There was no evidence of any problems with following this regime. Moreover, Nisma is older now and she is accustomed to this arrangement. Ms. Barclay (OCL) recommended maximum contact with both parents and their families, which Justice Clay's order provides.

[218] In these circumstances, the only aspect of the order that I would change is to eliminate Wednesday overnights with Mr. Khan on the weeks that he has Nisma over the weekend. The reason is that in this way Nisma will have a more balanced exposure to both parents every week.

[219] As it stands, every other week Ms. Talaoui sees Nisma for only two days on the weeks when Mr. Khan has her from Wednesday to Monday morning. With this change Ms. Talaoui will see Nisma for three days on the weeks that Mr. Khan has Nisma over the weekend. Other than this, I cannot see any reason in these circumstances to alter the current access arrangements.

Disposition Regarding Access

[220] The court orders on a final basis that beginning on the week of March 27, 2017, Ziaullah Khan shall pick up Nisma from the daycare centre as follows:

• (a) On Mondays and Tuesdays at 5:00 p.m.
• (b) On Wednesdays and Thursdays at 3:00 p.m.
• (c) On Fridays at noon.

[221] On Monday, Tuesday, and every other Wednesday and Friday Ziaullah Khan shall take Nisma to Amal Talaoui's residence by 7:00 p.m. This arrangement shall begin on the week of March 27, 2017.

[222] Every other Wednesday Amal Talaoui shall keep Nisma overnight and take her to the child care centre at 9:00 a.m. the next morning. This arrangement shall begin on the week of March 27, 2017.

[223] Every Thursday Ziaullah Khan shall keep Nisma overnight and take her to the child care centre at 9:00 a.m. the next morning.

[224] Every other Friday Ziaullah Khan shall keep Nisma and return her to the child care centre at 9:00 a.m. the following Monday morning. This arrangement shall begin on the week of March 27, 2017.

[225] The times and locations shall change as required according to the schedules of new daycare centers and/or schools that Nisma attends from time to time.

[226] This access schedule shall be applicable throughout the year with the exception of the parties' four weeks of holiday time with Nisma and Mother's Day and Father's Day. If Nisma is not in school, for the purpose of Ziaullah Khan's access, pick up and drop off shall take place at Amal Talaoui's residence.

[227] If either party is unable to meet the other party at the access exchange location due to inclement weather, traffic congestion, or other reasonably unforeseen event, that party shall advise the other party by email/text as soon as possible.

[228] Upon either party realizing that he or she cannot care for Nisma during one of the periods during which they normally care for her, they shall notify the other party immediately and the other party shall have the right of first refusal with regard to caring for her.

Mother and Father's Day

[229] Regardless of whose turn it is to be with Nisma according to the access schedule, Ms. Talaoui shall have Nisma for Mother's Day and Mr. Khan shall have Nisma for Father's Day. There shall be no make-up of access if either party misses time with Nisma due to Mother's Day or Father's Day.

Nisma's Birthday

[230] The parties shall share time equally with Nisma on her birthday unless they agree otherwise in writing.

Other Holidays

[231] Within 14 days of the date of this judgment, each party shall provide to the other a list of a maximum of five holidays that they wish to share with Nisma.

(1) If they select the same holiday, Amal Talaoui shall have Nisma on the day of that holiday in even numbered years and Ziaullah Khan shall have Nisma on the day of that holiday in odd numbered years.

(2) With regard to holidays that they do not both select, the selecting party shall have Nisma on the day of that holiday regardless of the regular access schedule. There shall be no make-up access for any lost access time.

(3) For all other holidays that the parties do not select, the regular access schedule shall be in force.

Analysis Regarding Child Support and S. 7 Expenses

Ongoing Child Support

[232] Regarding child support, Mr. Khan does not object to paying what he pays now: $809 per month. This is pursuant to a temporary order that Justice Clay made on June 14, 2013. Justice Clay ordered that Mr. Khan pay this amount starting on February 1, 2013. He based his order on an imputed annual income of $91,000.

[233] Mr. Khan testified that his income in 2013 was $106,000; in 2014 it was between $108,000 and $109,000. In 2015 it was less because he has two stores that are not rented. He estimated that it was between $100,000 and $110,000. But then he said that he did not know "'til we get the rental---" He does not have any other source of income other than from the rental of his properties.

[234] The financial statement that he swore on March 13, 2013 is exhibit 5. It reflected his income in 2012. He testified that although he read it before signing it, it is wrong. His annual income was $91,440 or $92,000, not $7,620. He said that his then lawyer, who he fired afterwards, made a mistake when he filled it out. His monthly income was $7, 620, which when multiplied by 12 equals $91,440.

[235] Curiously, he testified that his next lawyer made the same mistake on his November 10, 2014 financial statement. He said that his income for 2014 was $92,000. Later in his testimony, he said that "I admit I make about 90---85,000 to the maximum of $110,000 my rental income (sic)". His last financial statement in these proceedings is dated March 25, 2015. On page 2 it states that his annual income is $7,090.40, which he says is another mistake by his lawyer. His testimony appears to be at odds with his financial statements and inconsistent with itself.

[236] Based on the evidence before the court, determining Mr. Khan's income with exactitude is impossible. However, as stated above, his testimony at trial, which is the latest word on this, gives a strong indication of his income for the last three years. I note that the amounts are all within striking range of the amount that Justice Clay imputed ($91,000). Accordingly, based on his testimony, I find as a fact that his income for the years 2013, 2014 and 2015 was follows:

• 2013 - $106,000
• 2014 - $108,000 - $109,000
• 2015 - $100,000 - $110,000

[237] Mr. Steckley argued that the court should make an order for child support based on an imputed income of $106,088. Based on Mr. Khan's evidence that his annual income for 2015 was between $100,000 and $110,000, I will impute an annual income to him of $105,000 for 2016.

Disposition on the Issue of Ongoing Child Support

[238] The court orders on a final basis that commencing January 1, 2017, Ziaullah Khan pay to Amal Talaoui $919.00 per month for the support of their child, Nisma Baluch, born on February 4, 2011. This is the table amount based on an annual income of $105,000. All previous temporary child support orders are hereby vacated.

[239] A support deduction order shall issue.

Retroactive Child Support

[240] Ms. Talaoui requests the court to order that Mr. Khan pay retroactive child support from May 2012 to January 2013. She requests that the order be for $928 per month, based on an annual income of $106,088. It is not clear from the evidence or from Mr. Steckley's written submissions why she chose these dates.

[241] Ms. Talaoui testified that prior to Justice Clay's order of June 14, 2013, Mr. Khan did not pay any child support. Mr. Steckley asked her if she asked him for child support prior to Justice Clay's order. She said "Yeah, he knows because the – from the beginning of the case it was for child supports, (sic) spouse support (sic) and the child custody".

[242] Mr. Steckley asked Ms. Talaoui again if she asked for child support prior to Justice Clay's order. It will be helpful to reproduce the exchange that she had with him:

MR. STECKLEY: Q. Right. And prior to serving Mr. Khan with your answer in the court proceedings, did you ever ask him for child support? Did you ever ask him for child support prior to serving him with your answer? A. Yeah, it was my answer for the case - my first answer for, for the case when it started it was for that's, that he has to pay the child support, his spouse support and the, the matter it continues for child custody. Q. I understand that, but I'm asking, prior to the answer did you make a request to him for child support? A. Yeah. Q. Okay. A. Mm-hmm. Q. And how did you make that request? A. My lawyer she - through the - I don't think the words personally, but my lawyer she did. Q. Okay. And did you get any response from the applicant to that request? A. No, till the order from Justice Clay. Q. Okay. THE COURT: Who was your lawyer then? A. It was Ramcharan, the lawyer Ramcharan. Then after it was Shuman Law. THE COURT: Oh. A. Then Shuman. MR. STECKLEY: Q. Do you remember when your lawyer made that request for child support prior to the answer? A. I don't remember exact, but just everything is on the, the, the process of the case.

[243] I find that this evidence establishes that Ms. Talaoui did not ask for child support until she filed her answer in February 4, 2013. I do not rely on her evidence regarding her then lawyer asking for child support prior to her filing her answer because it is too vague and uncertain.

[244] In D.B.S. v. S.R.G., Bastarache J. said that, "At all times, a Court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix." At paragraph 133, he summarized the factors that must be considered in deciding to make a retroactive award:

In determining whether to make a retroactive award, a Court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a Court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

Reason for Delay in Asking for Child Support

[245] My understanding of Ms. Talaoui's evidence is that at an unspecified time before she filed her answer to Mr. Khan's application, her then lawyer requested child support from Mr. Khan on her behalf. However, based on the evidence it is not possible to determine when this was.

[246] This information would not have been difficult to find. All she would have had to do is to ask her previous lawyer. He or she could have produced any letters written to Mr. Khan in this regard, or provided an affidavit with the details of these requests. Without more specific information the court is left to guess when her previous lawyer made these alleged demands and what he or she said exactly.

[247] Rather than guess at a date, I think that it is best to rely on the concrete evidence of when Ms. Talaoui clearly put Mr. Khan on notice that she wanted him to pay child support, which is February 4, 2013 when she filed her answer. I will use that date as the operative date of notification to Mr. Khan by Ms. Talaoui that she wanted him to pay child support.

[248] With regard to why the person seeking a retroactive order did not apply for child support earlier, McLachlin C.J. stated at paragraph 100 of D.B.S. that "The circumstances that surround the recipient's choice (if it was indeed a voluntary and informed one) not to apply for support earlier will be crucial in determining whether a retroactive award is justified."

[249] Considering the evidence and all of the circumstances of this case, I think that it is reasonable to surmise that the reason that Ms. Talaoui did not seek child support earlier was that Mr. Khan was paying practically all of the bills for her and Nisma. Therefore, she did not feel the need to ask him for "child support" per se during this time.

The Conduct of the Payor Parent, the Circumstances of the Child, and the Hardship the Retroactive Award Might Entail

[250] The other factors that I must consider are: "the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail".

[251] I do not find that Mr. Khan behaved in any untoward manner with regard to the payment of child support. The evidence establishes that although he was not making periodic child support payments according to the Child Support Guidelines, he was generously providing for Nisma.

[252] I recognize that this form of "child support" does not excuse one from payment according to the Guidelines, but in the circumstances of this case it can be safely said that the child was not wanting for any material thing. Mr. Khan never tried to avoid his responsibility to provide for Nisma and he did so quite generously. Ms. Talaoui has never complained that she or Nisma lacked material or financial support.

[253] With regard to any hardship that a retroactive award might cause, I find that given Mr. Khan's comfortable financial status, there would not be any hardship caused should the court make a retroactive award.

[254] Regarding how far back a retroactive order should reach, the court in D.B.S. stated in paragraph 118 that:

Having established that a retroactive award is due, a court will have four choices for the date to [page283] which the award should be retroactive: the date when an application was made to a court; the date when formal notice was given to the payor parent; the date when effective notice was given to the payor parent; and the date when the amount of child support should have increased. For the reasons that follow, I would adopt the date of effective notice as a general rule.

[255] On December 31, 2012, Mr. Khan threw down the legal gauntlet. This act created a divide between him and Ms. Talaoui and established a new context. Before this event, Mr. Khan provided financially for Ms. Talaoui and Nisma and Ms. Talaoui apparently did not mind the arrangement. However, beginning with the filing of his application a new regime was created: now their relations vis-à-vis Nisma and each other would be dictated by a legal process.

Disposition with Regard to Retroactive Child Support

[256] Given all of the circumstances outlined above, I find that it is appropriate to make a retroactive award that commences on February 4, 2013, the day that Ms. Talaoui filed her answer and clearly put Mr. Khan on notice that she wanted him to pay child support.

[257] I will base the retroactive award for child support on the evidence of Mr. Khan's annual income determined above; namely, that in 2013 it was $106,000; in 2014 it was between $108,000 and 109,000 (I will use $108,500 to calculate the retroactive child support order), and in 2015 it was between $100,000 and $110,000 (I will use $105,000 to calculate the retroactive child support order).

[258] The court orders on a final basis that Ziaullah Khan shall pay the table amount of retroactive child support to Amal Talaoui for their child, Nisma Baluch, born February 4, 2011 as follows:

• i. From February 1, 2013 to December 31, 2013: $927 per month;
• ii. From January 1, 2014 to December 31, 2014: $942 per month;
• iii. From January 1, 2015 to December 31, 2015: $919 per month.

[259] Mr. Khan shall receive credit for all court ordered child support payments that he made during these time periods. He shall pay in full all the arrears owing for these time periods within 60 days of the date of this judgment.

[260] Support deduction orders shall issue for retroactive child support payments as well as for the arrears owing.

S. 7 Expenses

[261] Mr. Khan did not refer to s. 7 expenses in his written submissions.

[262] Ms. Talaoui requests that on an ongoing basis the parties pay their proportionate share of "all uninsured medical or dental expenses, and any other agreed upon s. 7 expenses (with the exception of Nisma's schooling, which is provided for on a final basis in the Order of Justice Clay, dated July 25, 2014)". She asks the court to base these payments on an imputed income of $106,088 for Mr. Khan and on an income of $41,600 for Ms. Talaoui.

[263] I will reproduce Justice Clay's order here for ease of reference:

(1) commencing September 2014, Nisma be enrolled full-time in the Montessori program and subsequent programs that correspond with her age and level of development at Rotherglen Private School;

(2) Mr. Khan "shall be fully and solely responsible for all costs associated with [Nisma's] schooling at Rotherglen Private School";

(3) Mr. Khan shall reimburse Ms. Talaoui for "any fees or expenses related to the child's Nisma Baluch, schooling at Rotherglen Private School" within 7 days of Ms. Talaoui providing a receipt to Mr. Khan for the expense "failing which it shall be enforceable as child support through the Family Responsibility Office, with 100% payable by [Mr. Khan].

a. Ms. Talaoui shall seek Mr. Khan's consent for expenses related to discretionary after school events or sports at the school if she seeks reimbursement.

[264] I find that in his written submissions, Mr. Steckley, counsel for Ms. Talaoui, framed Justice Clay's order too broadly with regard to payment for schooling. My interpretation of Justice Clay's order is that Mr. Khan is responsible for 100% of the fees for Nisma's schooling "at Rotherglen Private School", not at any other school. I am supported in this interpretation by the fact that Justice Clay made a point of specifying Rotherglen Private School three times in his order.

[265] Aside from this, I find Ms. Talaoui's request to be reasonable.

Disposition Regarding Ongoing S. 7 Expenses

[266] The court makes the following final order regarding s. 7 expenses:

i. Beginning on January 1, 2017, on an ongoing basis and according to their respective incomes, Ziaullah Khan and Amal Talaoui shall pay their proportionate share of all uninsured medical or dental expenses, including day care expenses and any other reasonable s. 7 expenses for their child, Nisma Baluch, born on February 4, 2011.

ii. In addition, if the parties contribute to a RESP plan, their payments shall be in accordance to their respective incomes.

iii. These orders are retroactive to February 1, 2013.

iv. Payment of a party's share shall be made within 14 days of receiving proof in writing that the expense was incurred and paid for, or according to any other arrangement for payment on which the parties agree.

v. Neither party shall be required to pay his or her share of any expense for which there is no proof of payment by the other party.

vi. Ziaullah Khan shall pay any arrears accrued for any of these expenses at the rate of $100 per month beginning on January 1, 2017.

Spousal Support

[267] In Andrews v. Andrews the Ontario Court of Appeal laid down a pathway for judges when they have to consider the issue of spousal support. They said:

In Halliday v. Halliday, this court emphasized that trial judges must follow the provisions of Part III of the Family Law Act in determining the amount and form of spousal support. The court wrote:

Part III of the Family Law Act deals with support obligations. Its provisions chart the course which a trial judge must follow in determining whether a spouse is entitled to support and, if so, the amount of support and the form of support…

The trial judge was obliged to consider and determine if the appellant was a spouse within the meaning of s. 29. He was then obliged to consider s. 30 which provides that "every spouse has an obligation to provide support ... for the other spouse, in accordance with need, to the extent that he ... is capable of doing so". Then, the trial judge must consider the purposes of a support order found in s. 33(8) and, in determining the amount and duration of support in relation to need, must consider all the circumstances of the parties, including the factors stipulated in s. 33(9). Finally, the trial judge, in awarding support, may choose from the various forms of support contained in s. 34(1).

[268] There is currently no order for spousal support. Ms. Talaoui requests an order for ongoing spousal support in the amount of $1,144 per month. She also asks the court to make a retroactive order to May 2012, based on an imputed income of $106,088 and Ms. Talaoui's income of $41,600.

[269] Mr. Khan's then lawyer, Mr. Talpur, simply told the court that his position was that there was no evidence that would give rise to a claim for spousal support. Mr. Talpur did not develop this argument, but I think that it is based on the fact that Ms. Talaoui and Mr. Khan never married under any law that is recognized by any Canadian jurisdiction, and on the contention they never cohabited. Therefore, they are not "spouses".

[270] I have read Mr. Khan's written submissions with regard to spousal support. Concerning ongoing spousal support, his position is basically the same as that stated by Mr. Talpur. He submitted that he never lived with Ms. Talaoui. He wrote that "The Applicant and Respondent's relationship was in such a nature that it does not give rise to spousal support".

[271] Mr. Khan mentioned that Justice Clay did not order that he pay spousal support. He said that it was because of all of the payments that he was already making with regard to Nisma's schooling, child support and extracurricular activities. There is no evidence that these are the reasons that Justice Clay refrained from ordering spousal support. In any case, the fact that he did not order it does not settle the matter. This issue is now in the trial court's hands.

[272] Regarding retroactive spousal support, the only thing that Mr. Khan wrote was that :

This is not an appropriate case for an Order of retroactive spousal support. Mr. Khan has a spouse, Diane Khan and the Applicant supported the Respondent with a residence and car for transportation until the court process began. The Respondent left the residence and returned the car after the initial minutes of settlement were served by the Applicant.

[273] Mr. Khan stated that Ms. Talaoui "corrected her claim of asking for Spousal support and no longer wishes to claim spousal support". However, it is clear from Mr. Steckley's written submissions on behalf of Ms. Talaoui that she still seeks spousal support.

[274] Mr. Steckley argues in his written submissions that Ms. Talaoui and Mr. Khan's relationship was more than a "business relationship" as Mr. Khan tried to portray it. Mr. Khan was intent on having a relationship with Ms. Talaoui and in having a child with her.

[275] Mr. Steckley submitted that "Ms. Barclay testified that the Applicant had told her that he had in fact slept over regularly at the Respondent's residence, which coincides with the information provided by the Respondent (Transcript, May 21, 2015, p.34, line 12)".

[276] This is not accurate. I will reproduce Ms. Barclay's testimony from the transcript where Mr. Steckley was questioning her.

Q. Thank you. Now I want to turn you back to your, your attention back to your cross-examination yesterday, you had mentioned that in your final interview with Mr. Khan that he had finally come clean with regards to his relationship with Ms. Baluch at that time? A. That he admitted that he married her.... Q. Yes. A. ...in a religious ceremony. Q. Right. And I believe you also mentioned that he mentioned to you that he'd sleep over at her place? A. I have to refresh my memory. Yes, I would sleep over there and I would mix her with my family. Q. Okay. Did he say how often he would sleep over? A. He did not say, no.

[277] As can be seen, Ms. Barclay did not testify that Mr. Khan told her that he slept over at Ms. Talaoui's place "regularly". She said that he did not say how often he would sleep over.

Were Amal Talaoui and Ziaullah Khan Spouses?

[278] Section 30 of the Family Law Act states that: "Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so".

[279] In the case at bar, the first issue that I must decide with regard to spousal support is whether Amal Talaoui and Ziaullah Khan were spouses under the Family Law Act.

[280] Section 1 (1) is the general definition section of the Family Law Act. It defines spouse as follows:

"spouse" means either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

[281] In Debora v. Debora, the Ontario Court of Appeal dealt with the definition of spouse in s. 1. With regard to s. 1 (1) (a), they held that "on a plain construction analysis of the language of the definition of spouse… Subsection 1(1) (a) of the Family Law Act refers to persons who are married, which can only refer to persons who are considered married under the laws of Ontario".

[282] In the case at bar, it is clear that s. 1 (a) does not apply. There is no dispute with the fact that Ms. Talaoui and Mr. Khan are not spouses under s. 1 (1) (a). They never married under Ontario law or under any law that would be recognized in Ontario as a legal marriage.

[283] Instead, they participated in two Islamic marriage ceremonies. The first one was in Mississauga on March 8, 2009 and the second one was in Morocco shortly afterwards. They both recognized that neither of the Islamic marriages were binding in Canada. The evidence shows and I find as a fact that the parties were never married under any law that is recognized as a legally binding marriage in Canada.

[284] This gives rise to a possible issue with regard to whether they might be spouses pursuant to s. 1 (b) as a result of entering into the Islamic marriage in Mississauga and/or the one in Morocco that is "voidable or void".

[285] Debora dealt with this issue. The facts of the case are not on all fours with the case at bar, but there are useful similarities. The case is especially useful because it gives an interpretation of "voidable or void" in s. 1 (1) (b) Family Law Act. Carthy, J.A. set out the facts as follows:

The parties hereto entered into a Jewish religious marriage on April 3, 1987. On July 20, 1994, the parties were married in a civil ceremony pursuant to the provisions of the Marriage Act, R.S.O. 1990, c. M.3. Between those dates, the husband acquired substantial assets. The parties then separated and the issue arose as to whether the equalization date for the division of assets, pursuant to the Family Law Act, R.S.O. 1990, c. F.3, should be 1987 or 1994. The plaintiff instituted an action for a declaration that the definition of a spouse in s. 1(1) (b) of the Family Law Act gave her the status to claim as such from and after April 3, 1987. The defendant moved for summary judgment. Walsh J. of the Ontario Court General Division allowed the motion and dismissed the action in respect of this issue. The plaintiff appeals from this disposition.

[286] In addition, the case is useful because the court also interpreted s. 1 (1) (a) and what "good faith on the part of a person relying on this clause to assert any right" means. The court held as follows:

…Subsection 1(1)(b) refers to marriage which, prima facie, would carry the same meaning. There is then a reference to "voidable or void". Those words have no relevance or application to the circumstances of the parties to this appeal. The religious ceremony was not void or voidable and these words have obvious reference to the statutory marriage, which may, in particular circumstances, be void or voidable. We then come to the words "in good faith on the part of the person asserting a right under this Act." As I read it, this would refer to the respondent, (not the applicant), in the Reaney case who, unknowingly, married a bigamist. There, the marriage is void or voidable because one of the parties was legally disqualified from entering a second marriage. The innocent party to that purported marriage is given a status under the Family Law Act that he or she does not have under the Marriage Act. That is, in my view, the type of fairness which the Legislature intended to build into the scheme of distribution of assets under the Family Law Act.

[287] In this passage, Debora makes it clear that "voidable or void" in s. 1 (b) refers to a marriage under the laws of Ontario, which would be valid except for the existence of a legal impediment, such as, one of the parties already being in a legally binding marriage.

[288] In light of the evidence in the case at bar and of the holdings in Debora, I find that Ms. Talaoui and Mr. Khan were not "spouses" as defined in s. 1 (1) (a) or (b) of the Family Law Act.

s. 29 Family Law Act

[289] A finding that Ms. Talaoui and Mr. Khan are not spouses under s. 1 (1) does not end the matter, however, because s. 29 in Part III of the Family Law Act, which deals with support obligations, provides an additional definition of spouse.

"spouse" means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child.

[290] The issue that arises in the case at bar is whether Ms. Talaoui and Mr. Khan "cohabited in a relationship of some permanence".

[291] Section 1 (1) of the Act defines "cohabit" as "to live together in a conjugal relationship, whether within or outside marriage". (emphasis added)

[292] Can one be in a conjugal relationship outside of marriage? Black's Online Legal Dictionary defines "conjugal rights" as "Matrimonial rights; the right which husband and wife have to each other's society, comfort and affection".

[293] The Online Oxford English Dictionary defines conjugal as "relating to marriage or to the relationship between a married couple". This definition appears to limit a conjugal relationship to one that involves a marriage, which appears to render the definition of "cohabit" in s. 1 (1) contradictory.

[294] On the other hand, one could say that the Legislature decided in its wisdom, as is its right, to stretch the meaning of "cohabit" to include non-married couples to be able to "cohabit" according to the Family Law Act.

[295] I find that the latter is the case because the spirit of the Family Law Act in ss. 1 and 29 is to widen the traditional grounds under which deserving spouses can share in the financial rewards of their relationships in order to prevent the injustices that occurred in the past when conjugal rights were defined more narrowly.

[296] I find support for this interpretation in Stephen v. Stawecki where the Ontario Court of Appeal interpreted s. 29 of the Family Law Act in an expansive manner with regard to the physical living arrangements that a couple has. The court found that:

…the jurisprudence interprets "live together in a conjugal relationship" as a unitary concept, and that the specific arrangements made for shelter are properly treated as only one of several factors in assessing whether or not the parties are cohabiting. The fact that one party continues to maintain a separate residence does not preclude a finding that the parties are living together in a conjugal relationship: see Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.) ; Thauvette v. Malyon, [1996] O.J. No. 1356 (Ont. Ct. Gen. Div.) ; Campell v. Szoke, [2003] O.J. No. 3471 (S.C.) .

[297] I also find support for this conclusion in that the definition of "cohabitation" is expanding: See: Kim v. De Camillis Estate (1999), 47 R.F.L. (4th) 335 (B.C.S.C.) .

[298] Ms. Talaoui and Mr. Khan clearly did not actually live together when she lived in Montreal, but their meeting there was the beginning of a relationship in which both sought something. Mr. Khan wanted a mistress and a child. Ms. Talaoui wanted financial security, to advance her education and to work in Canada. Thus, a mutual dependency was begun.

[299] Therefore, I will examine the evidence of their relationship with regard to Ms. Talaoui and Mr. Khan ever having actually lived together and also, with regard to their relationship as a whole.

[300] Mr. Khan moved Ms. Talaoui to Mississauga where she lived in three places: (1) the family with which Mr. Khan boarded her when she first moved to Mississauga, (2) Mr. Khan's son's high rise condominium, and (3) the house on Cawthra Street.

[301] With regard to actually living together, it is not disputed that Mr. Khan did not actually live with Ms. Talaoui when she boarded with the family in Mississauga, or when she lived on Cawthra Street. Ms. Talaoui's claim is that they actually lived together when Ms. Talaoui lived in Mr. Khan's son's high rise condominium. I agree that based on the evidence this is the only time during which they could have actually lived together.

[302] Next, I will examine the evidence with regard to Ms. Talaoui's stay in the high rise condominium.

[303] While Ms. Talaoui lived in the condominium Mr. Khan saw her frequently during the day after he dropped off his children at university. He said that he did not stay overnight with her. He did not have any of his things in the condominium. During this time Mr. Khan lived with his wife and children in their house. On the weekends, Ms. Talaoui spent time with Mr. Khan and his family at their home. She helped to cook and clean.

[304] Azim and Kasim Khan testified that Mr. Khan did not live with Ms. Talaoui. Although Azim spent the odd weekend away from home, he was confident that Mr. Khan spent all of his nights at home with Ms. Khan. He said that had Mr. Khan been absent from home for even one night he or Kasim would have told him.

[305] Mr. Mark Meacoe, the real estate agent that sold the condominium, said that when he did his "walk through" the unit, he did not see any of Mr. Khan's clothes or other belongings. There were no "male items" in the unit.

[306] He said that it was possible that during his examination of the condominium washrooms that he missed male toiletries in one of the washrooms. But he confirmed that he did not see "male items like razors, shaving cream, that kind of thing, toothbrushes, there was only two there…"

[307] He said that he looked in the closets and did not see any male items there. In addition, there is no evidence that he saw any male items in the rest of the condominium as one would expect if Mr. Khan had been spending a lot of time there, including overnight.

[308] Ms. Talaoui testified that she actually lived in the condominium with Mr. Khan. She said that he spent every other night with her. He had his clothes there. They were living together as husband and wife.

[309] Even if Ms. Talaoui and Mr. Khan actually lived together in the condominium, the evidence shows that Ms. Talaoui did not live in the condominium for three years. This means that s. 29 (1) (a) does not apply because they could not have cohabited there "continuously for a period of not less than three years". I find that s. 29 (1) (a) must be intended to deal with situations where a couple physically live together "common law".

[310] The reason that I say this is because s. 29 refers to "persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (emphasis added)

[311] The Legislature must have intended that there be a difference between (a) and (b), otherwise they would be repetitious. Moreover, this interpretation fits with what I find is the expansive spirit of the Family Law Act discussed above. I grant that one could argue that (b) deals with situations where a couple lived together for less than three years. But even if that is correct, I find that it also covers relationships where the couple may have not actually lived together at all.

[312] I find support for this interpretation in (as she then was) Justice Karakatsanis' judgment in Campbell v. Szoke where she pointed out that:

Molodowich v. Penttinen (1980), 17 R.F.L. (2d) 376 at 381-382 has set out a non-exhaustive list of criteria to be considered in determining whether a conjugal relationship exists. Elements to consider include shared shelter, sexual and personal behaviour, services, social activities, economic support, children as well as the societal perception of the couple. These were confirmed as generally accepted characteristics of a conjugal relationship by the Supreme Court of Canada in M. v. H., [1999] 2 S.C.R. 3 . (para. 59). However, it is recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be conjugal. (Emphasis added)

[313] In paragraph 52, Justice Karakatsanis stated that:

The fact that parties maintain separate residences does not prevent the finding of cohabitation. The court must look at all of the circumstances and consider the reasons for maintaining another residence… Continuous daily cohabitation is not a necessity for a finding under s. 29 of the Family Law Act …Whether a couple has cohabited continuously is both a subjective and an objective test. Intention of the parties is important…In Macmillan-Dekker v. Dekker, [2000] O.J. No. 2957 at 2 2, Wilson J. said: "Objective contemporaneous evidence is more probative of the nature of the parties' relationship than the viva voce evidence of the parties in the midst of acrimonious and bitter proceedings.

[314] I find the observation by Wilson J. to be quite germane. In my opinion, Mr. Khan's credibility is low. It is particularly damning that he asked Dr. Aly Hindy, the Imam that performed the Islamic marriage ceremony in Mississauga to perjure himself and say that it never happened.

[315] In addition, he admits that he was dishonest in carrying on an affair without telling his wife and children. He admitted to lying to them about the nature of the trips that he took with Ms. Talaoui.

[316] Azim testified that Mr. Khan spent every night at home. He said that other than the odd weekend, he [Azim] spent the night at home. His brother or Mr. Khan himself would have told him if Mr. Khan did not spend the night at home. There is no evidence that Azim was dishonest with the court, but I have to consider his evidence in the light of his relationship with Mr. Khan, his father. This gives him a natural bias in favour of Mr. Khan.

[317] In addition, I find that Mr. Khan is a very strong-headed person and that he is a domineering figure with regard to his family. Given his effort to persuade Dr. Aly Hindy to perjure himself, I do not put it past him to have pressured Azim to testify in a manner that would favour him as much as possible.

[318] With regard to Ms. Talaoui, there is no evidence of her being dishonest. However, I consider that her relationship with Mr. Khan is "acrimonious and bitter". Also, it is in her interest to portray their relationship as one of a couple that cohabited together as spouses.

[319] As Justice Wilson stated, I have to look beyond "the viva voce evidence of the parties in the midst of acrimonious and bitter proceedings."

[320] The evidence of Mr. Meacoe, the real estate agent, does not support what Ms. Talaoui said about Mr. Khan living in the condominium. I acknowledge that he was Mr. Khan's witness and they seem to have a business relationship to the extent that he acted as Mr. Khan's agent for the purpose of selling the condominium. But there is no evidence that their relationship went any further.

[321] I found Mr. Meacoe's evidence to be credible because he was consistent and what he said was plausible. Also, he admitted that during his survey of the condominium he may have missed some articles that would have indicated that Mr. Khan was staying there. However, it would be unlikely that a person with his experience in the field would have missed very much, especially numerous items that should have been present if Mr. Khan lived in the condominium or at least spent a lot of time there, especially overnight.

[322] Next, I will consider the non-exhaustive list of factors mentioned in Campbell v. Szoke in light of this evidence.

Shared Shelter

[323] When I consider all of the evidence, circumstances and the law, I am not persuaded that Ms. Talaoui and Mr. Khan actually/physically lived "together in a conjugal relationship" in the condominium. I believe that Mr. Khan visited Ms. Talaoui in the condominium frequently, but I am not persuaded that he lived with her in the condominium or that he regularly spent the night with her there.

Sexual and Personal Behaviour

[324] I am persuaded by the evidence that Ms. Talaoui and Mr. Khan had a sexual relationship while she lived in the condominium. There is no dispute about this. There is no evidence that Ms. Talaoui was unfaithful to Mr. Khan. Mr. Khan was living with his wife during his whole relationship with Ms. Talaoui, however, shortly after they began their relationship Ms. Talaoui knew that he was married.

[325] I note that in Mahoney v. King the court said that "It appears from the case-law that parties may cohabit within the meaning of the Family Law Act when one party is still legally married to another". See also: Sullivan v. Letnik.

[326] The court observed in addition that "It appears also from the case-law that the parties may be found to be cohabiting, even if they maintain separate residences. (See Thauvette v. Malyon (1996), 23 R.F.L. (4th) 217 (Ont. Gen. Div.), McEachern v. Fry Estate [1993] O.J. No. 1731 (Gen. Div.)

[327] It is not clear if Mr. Khan and Ms. Talaoui regularly ate meals together. There was some gift-giving between them. Mr. Khan made provisions for Ms. Talaoui's health care.

Services

[328] Campbell v. Szoke does not explain what "services" means exactly. I assume that it refers to the things that persons in relationships do for one another. The evidence is that during the time that Ms. Talaoui lived in the condominium Mr. Khan took care of Ms. Talaoui financially and helped her continue to adjust to life in Mississauga. Ms. Talaoui took care of Nisma when Mr. Khan was not parenting her. She also helped out with the cooking and cleaning at Mr. Khan's home.

Social Activities

[329] Throughout their relationship Mr. Khan and Ms. Talaoui shared many social activities. They saw each other frequently. They travelled together. They shopped together. They spent a lot of time with Mr. Khan's family at his home.

Economic Support

[330] Mr. Khan helped Ms. Talaoui find lodging, employment, and to obtain banking services. He also provided her with a car. In addition, he paid for almost all of Ms. Talaoui's expenses from 2008 when he met her until the end of 2012.

Children

[331] They have one child together.

Societal Perception of the Couple

[332] The evidence is scant in this regard. Mr. Meacoe said that Mr. Khan did not introduce Ms. Talaoui as his wife. He did not say what his impression was of them as a couple. Dr. Aly Hindy did not express an opinion on this subject. Mr. Khan's children testified that they knew that Ms. Talaoui was or had been Mr. Khan's mistress and that she gave birth to their child. They did not perceive them as a couple, however.

Disposition of the Issue of Whether Ms. Talaoui and Mr. Khan Were Spouses

[333] After considering all of the circumstances and the law, I find that Ms. Talaoui and Mr. Khan come within the definition of spouses in s. 29 (b) because they had, and lived in a "relationship of some permanence" and they have a child together. I find that this is a reasonable interpretation of their "relationship" as defined in s. 29 (b).

Should Mr. Khan Pay Spousal Support?

[334] Having determined that Ms. Talaoui and Mr. Khan are spouses under the Family Law Act, I will turn to the evidence and the law that impinges on whether Mr. Khan should pay spousal support. Although the evidence does not always allow for a specifically exact chronology, I will outline as detailed a chronology of their relationship as possible, including Ms. Talaoui's work history.

Chronology of Mr. Khan and Ms. Talaoui's Relationship and of Ms. Talaoui's Work History

1. January to June 2008 – the parties get to know each other online.

2. June 14, 2008 - Ms. Talaoui arrives in Montreal.

3. Soon after Ms. Talaoui arrives in Montreal in 2008 - Mr. Khan goes to Montreal to see her. They meet in person for the first time and their affair begins.

   a. While Ms. Talaoui is still in Montreal Mr. Khan sends job listings to her for a job at Western Plastics and encouraged her to move to Mississauga to work there.

4. Late 2008 - Mr. Khan moves Ms. Talaoui to Mississauga.

   a. Mr. Khan puts her up with a family in Mississauga and pays for all of her expenses.

5. October 1, 2008 to 2009 - Ms. Talaoui works full-time at her first job at Western Plastics in Mississauga and earns $11.00 per hour.

   a. In one part of her testimony Ms. Talaoui said that she quit this job because she and Mr. Khan got married in March 2009 and he told her that she did not need to work. But she also testified that she quit because they went to Morocco to get married.

6. March 8, 2009 - Ms. Talaoui and Mr. Khan participate in an Islamic marriage ceremony in Mississauga.

7. 2010 - Ms. Talaoui works at Pepsi Beverage Company in a six week placement as part of her schooling for which she did not get paid.

8. 2009 – 2011 – Ms. Talaoui lives in Mr. Khan's son's condominium. Mr. Khan pays for all of Ms. Talaoui's expenses except groceries and various minor items.

9. 2010 to January 2011 Ms. Talaoui works at Loblaws full-time and earns $16.00 per hour.

   a. She leaves this job in January to go on maternity leave. Nisma is born on February 4, 2011.

10. 2012 to 2015

    a. May 2012 – Mr. Khan and Ms. Talaoui stop talking.

    b. July 2012 - Ms. Talaoui finds full-time employment and earns $17.50 per hour. They put Nisma in daycare.

    c. Ms. Talaoui gets employment at First Data.

11. December 31, 2012 - Mr. Khan files his application for custody.

12. January 2013 – Ms. Talaoui moves out of the house on Cawthra.

13. June 14, 2013 – Justice Clay makes a temporary order for child support for $809 per month starting on February 1, 2013.

[335] Next, I will examine the purposes of a support order in s. 33(8) of the Family Law Act. This section states:

(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[336] Next, I will discuss each factor.

Recognize the Spouse's Contribution to the Relationship and the Economic Consequences of the Relationship for the Spouse

[337] Ms. Talaoui contributed to the relationship in the sense that she was a loyal and helpful companion to Mr. Khan. She helped him and his family at their home by cooking and cleaning. She was a homemaker and cared for Nisma when Mr. Khan did not have her. She did not contribute economically to their relationship except that when she worked she used her money to pay for household expenses like groceries and child related expenses.

[338] The economic consequences of the relationship for her were that she became accustomed to a life style in which she did not have to worry about money for her or for her child.

[339] I find that this factor militates in favour of making an order for spousal support.

Share the Economic Burden of Child Support Equitably

[340] Ms. Talaoui is of modest means. Before, Mr. Khan paid for all of her needs. Now, she has to cover the expenses of maintaining a household for Nisma with the earnings from her employment, which are just adequate at best. Her husband is on a disability pension so he does not contribute much to the family economically.

[341] I find that this factor militates in favour of making an order for spousal support.

Make Fair Provision to Assist the Spouse to Become Able to Contribute to His or Her Own Support

[342] Ms. Talaoui is a resourceful and competent person. She has demonstrated the will and the ability to be employed. However, her income is on the lower end of the scale. It is reasonable that her ability to contribute to her own support is strained in the circumstances. Especially since she has to pay her share of support for Nisma. This could impede her ability to improve her education as she testified that she would like to do. This could in turn present an obstacle to her gaining more remunerative employment.

[343] I find that this factor militates in favour of making an order for spousal support.

Relieve Financial Hardship, if This Has Not Been Done by Orders Under Parts I (Family Property) and II (Matrimonial Home)

[344] There are no orders under Parts I or II of the Family Law Act. Although there is no evidence that Ms. Talaoui is suffering from any type of dire financial hardship, the evidence shows that she leads a financially challenging life.

[345] I find that this factor militates in favour of making an order for spousal support.

[346] The important threshold issue and pre-condition to an award for spousal support is entitlement. Need "is only one factor relevant to entitlement to an award of spousal support".

Disposition with Regard to Whether Mr. Khan Should Pay Spousal Support

[347] After considering all of the evidence, the circumstances and the above mentioned factors delineated by the law, I find that Ms. Talaoui is entitled to receive spousal support.

[348] Although Mr. Khan helped Ms. Talaoui find employment and encouraged her to work, he also consciously created and fostered a financial dependency on him by Ms. Talaoui. The end of their relationship left Ms. Talaoui without this support. This pattern of dependency must be recognized and addressed in a fair manner.

s.33 (9) Family Law Act

[349] Next, I will consider the factors in s. 33 (9) Family Law Act. I will discuss the factors that are relevant to the case at bar. I discussed some of these factors above in relation to other issues. I will discuss the remaining ones below.

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent's career potential;

(k) Repealed : 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed : 2005, c. 5, s. 27 (12) .

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

Ms. Talaoui's Income

[350] Ms. Talaoui said that she has never received spousal support from Mr. Khan. She said that she did not ask for spousal support until February 2013 when she filed her answer to Mr. Khan's application for custody.

[351] Ms. Talaoui's financial statement indicates that she pays $1,400 per month for rent. She has been paying that amount since February 2013. She provided a lease agreement and postdated cheques that confirm the amount. Her financial statement lists other expenses as:

1. On average, $60 every two months for hydro;
2. $100 monthly for her cell phone;
3. $60 monthly for internet;
4. $800 monthly for groceries;
5. $200 monthly for meals outside the home;
6. $548.25 monthly for car expenses plus $401.72 for financing payments;
   • a. It appears that Mr. Khan co-signed for the loan to buy the car because her evidence was that "he contact the bank and they, they – the bank accept to give me the loan, and he gave me the car right away".
7. $200 monthly for clothes for herself and $300 for Nisma;
8. $100 monthly for Ms. Talaoui's hair care and beauty expenses;
9. $60.73 monthly minimum payment on a line of credit for legal fees;

[352] The notices of assessment that Ms. Talaoui adduced in evidence indicate that her income was:

• • 2012 - $22,761.81
• • 2013 - $36,872
• • 2014 - $37, 840

[353] She anticipates that her income will remain the same for the foreseeable future.

Mr. Khan's Income

[354] As indicated above during my disposition of the child support issue, on the evidence before the court, it is impossible to determine Mr. Khan's income with exactitude. However, his testimony at trial, which is the latest word on this, gives a strong indication of his income for the last three years. The amounts are all within striking range of the amount that Justice Clay imputed to him ($91,000) when he made his temporary child support order on June 14, 2013. Accordingly, based on his testimony, I find as a fact that his income for the years 2013, 2014, 2015 and 2016 was follows:

• • 2013 - $106,000
• • 2014 - $108,000 - $109,000
• • 2015 - $100,000 - $110,000
• • 2016 - $105,000 (imputed)

[355] The record shows that from the beginning of these proceedings Mr. Khan has not been completely forthcoming with information about his income. This is evidenced by the fact that Justice Clay had to impute income to him for the purpose of making an order for child support. Furthermore, in his testimony his evidence was general about his annual income. Finally, I had to impute income to him for 2016.

[356] But, nevertheless, throughout his testimony, Mr. Khan indicated that he does not want for money. He portrayed himself as very well off financially.

[357] The fact that Ms. Talaoui is married now does not automatically disentitle her to spousal support. But it can be a factor in the reduction of spousal support.

[358] Mr. Steckley provided a DivorceMate calculation based on the Spousal Support Advisory Guidelines that indicates the following ranges of spousal support based on a four year relationship:

• Low - $500 per month ($6,000 per year)
• Mid-range – $835 per month ($10,020 per year)
• High - $1,144 per month ($13,728 per year)

Disposition Regarding Ongoing Spousal Support

[359] After considering all of the evidence, circumstances and the law, I find that the mid-range amount of spousal support for three years is appropriate. I find that a non-compensatory spousal support order is justified on the basis of the economic dependency that Mr. Khan created and fostered for Ms. Talaoui during their four-year relationship. She became accustomed to not having to worry about her financial needs during this time.

[360] Now, she mostly has to fend for herself. Although she is married, her husband does not have much annual income. He is on a disability pension. He has retired and will receive the regular government old age pensions. He does not have any realistic prospects for a higher income in the future.

[361] Ms. Talaoui has proved to be a very resilient and resourceful person. She obtained employment soon after arriving in Canada and has kept working for most of the time that she has lived here. In addition, she has shown that she has the ability to obtain employment at higher salaries as she gains Canadian experience. It is for these reasons that I find that a spousal support order for three years in the mid-range is appropriate to permit her to adjust to her new financial circumstances.

[362] The court orders on a final basis that for three years beginning on January 1, 2017, Ziaullah Khan pay to Amal Talaoui $835 per month in ongoing spousal support.

Retroactive Spousal Support

[363] Ms. Talaoui asks for an order that Mr. Khan pay spousal support retroactive to May 2012. Mr. Steckley did not discuss the basis for this claim in his written submissions. Mr. Khan disagrees with having to pay any spousal support, much less retroactive spousal support.

[364] For the reasons stated below, I find that it would not be appropriate to make a retroactive spousal support order dating back to May 2012, but that it would be appropriate to make an order dating back to February 2013, the date that Ms. Talaoui gave Mr. Khan formal notice that she was seeking an order for retroactive spousal support order.

[365] The principles that apply to retroactive spousal support are similar to those that apply to retroactive child support. Of course, modifications have to be made in accordance with the principles of spousal support.

[366] I will analyze two periods: May 2012 to February 2013 and February 2013 to the present.

May 2012 to February 2013

[367] In D.B.S. v. S.R.G. 2006 SCC 37, [2006] 2 S.C.R. 231, Bastarache J. said that, "At all times, a Court should strive for a holistic view of the matter and decide each case on the basis of its particular factual matrix." At paragraph 133, he summarized the factors that must be considered in deciding to make a retroactive award:

In determining whether to make a retroactive award, a Court will need to look at all the relevant circumstances of the case in front of it. The payor parent's interest in certainty must be balanced with the need for fairness and for flexibility. In doing so, a Court should consider whether the recipient parent has supplied a reasonable excuse for his/her delay, the conduct of the payor parent, the circumstances of the child, and the hardship the retroactive award might entail.

Reasonable Excuse for His/Her Delay

[368] I found above that Ms. Talaoui did not ask for child support until she filed her answer in February 4, 2013. I will use the same date with regard to when she first asked for spousal support. There is no evidence on which a different date could be found.

[369] Above, I found that the reason that Ms. Talaoui did not seek child support earlier than when she filed her answer was that Mr. Khan was paying practically all of the bills for her and Nisma. Therefore, she did not feel the need to ask him for "child support" per se during this time.

[370] I find that the same reasoning applies to retroactive spousal support. From May 2012, the date from which she seeks retroactive spousal support, Mr. Khan was basically paying all of her expenses with the exception of groceries and a few other incidental items. She appeared content to continue in this fashion until he filed his application for custody.

[371] I find that this factor militates against an order for retroactive spousal support to May 2012. Ms. Talaoui did not provide a reasonable excuse for waiting to claim spousal support until she filed her answer in February 2013.

The Conduct of the Payor Parent

[372] There is no evidence that Mr. Khan did anything between May 2012 and February 2013 that would militate in favour of an order for retroactive spousal support back to May 2012.

[373] However, after February 2013, when the case was proceeding through the court, as I found above, Mr. Khan was not forthcoming with information about his income. Both Justice Clay and I have had to impute income to him.

[374] This factor favours making an order for spousal support dating back to February 2013.

Ms. Talaoui's Circumstances

[375] I will substitute the "circumstances of the child" with the circumstances of Ms. Talaoui, although I recognize that her circumstances affect the child's circumstances.

[376] My understanding of the evidence is that, although Ms. Talaoui and Mr. Khan were not getting along, he was still largely supporting Ms. Talaoui and Nisma between May 2012 and February 2013. Therefore, I find that this factor does not favour a retroactive order dating back to May 2012 as she requests.

Hardship the Retroactive Award Might Entail

[377] Given Mr. Khan's financial circumstances as outlined above, I find that a retroactive award dating back to May 2012 would not create any hardship for him.

February 2013 to the Present

[378] In February 2013, Ms. Talaoui gave formal notice to Mr. Khan that she was seeking an order for spousal support when she served and filed her answer. It is clear that as of February 2013, Mr. Khan knew that Ms. Talaoui was seeking a retroactive spousal support order.

[379] Should the court make a spousal support order dating back to February 2013?

[380] I find that it can be inferred from the evidence that Ms. Talaoui's standard of living dropped significantly after she moved out of the house on Cawthra and Mr. Khan stopped paying all of her bills. From this it can be inferred that she has demonstrated a "past need" dating back to February 2013. As stated above, the evidence shows that Mr. Khan had the ability to pay.

[381] The underlying basis for Mr. Khan's support obligation is a non-compensatory one based on the financial dependency that he created and fostered during his relationship with Ms. Talaoui. This dependence continued after February 2013 when Ms. Talaoui was living in her own apartment with Nisma and essentially paying her own way.

[382] Ms. Talaoui, who had been significantly financially dependent on Mr. Khan prior to February 2013, remained in this dependence after February 2013.

[383] I find that the evidence shows that Mr. Khan would not be unduly affected financially by a spousal support order dating back to February 2013. There is no evidence that it would effect a redistribution of capital.

[384] I found it troubling that the evidence shows clearly that Mr. Khan was significantly evasive about his income. He did not make a reasonably definite statement about his income until he was in the witness box at trial. And even then, all he shared was a range, again forcing the court to impute income to him.

[385] The record shows that this case was a difficult one to manage for the case management judge, Justice Clay. This was especially so with regard to Mr. Khan's financial status.

Disposition with Regard to Making a Retroactive Spousal Support Order

May 2012 to February 2013

[386] Based on the above analysis, I find that there is no justification for making an award for spousal support retroactive to May 2012.

February 2013 to the Present

[387] Based on the above analysis, I find that it is appropriate to make an order dating from February 2013 to February 2016.

Final Order with Regard to Retroactive Spousal Support

[388] The court orders on a final basis that Ziaullah Khan pay spousal support to Amal Talaoui in the amount of $835 per month from February 1, 2013 to February 1, 2016. Beginning on April 1, 2017, he shall begin to pay the arrears that have accrued by paying $835 per month until they are completely paid.

Life Insurance Policy as Security for Child and Spousal Support

[389] The last claim that Ms. Talaoui makes is for an order that Mr. Khan "obtain and maintain a life insurance policy as security for child and spousal support".

[390] Section 34 of the Family Law Act lists the orders that the court can make pursuant to an application under s.33 (Order for support). Section 34 (1) (i) and (2) are relevant to the case at bar.

34. (1) In an application under section 33, the court may make an interim or final order,

(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event;

(b) requiring that a lump sum be paid or held in trust;

(c) requiring that property be transferred to or in trust for or vested in the dependant, whether absolutely, for life or for a term of years;

(d) respecting any matter authorized to be ordered under clause 24 (1) (a), (b), (c), (d) or (e) (matrimonial home);

(e) requiring that some or all of the money payable under the order be paid into court or to another appropriate person or agency for the dependant's benefit;

(f) requiring that support be paid in respect of any period before the date of the order;

(g) requiring payment to an agency referred to in subsection 33 (3) of an amount in reimbursement for a benefit or assistance referred to in that subsection, including a benefit or assistance provided before the date of the order;

(h) requiring payment of expenses in respect of a child's prenatal care and birth;

(i) requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably ; (emphasis added)

(j) requiring that a spouse who has an interest in a pension plan or other benefit plan designate the other spouse or a child as beneficiary under the plan and not change that designation; and

(k) requiring the securing of payment under the order, by a charge on property or otherwise. R.S.O. 1990, c. F.3, s. 34 (1) ; 1999, c. 6, s. 25 (11); 2004, c. 31 , Sched. 38, s. 2 (3); 2005, c. 5, s. 27 (15) ; 2009, c. 11, s. 31 .

(2) The Ontario Court of Justice shall not make an order under clause (1) (b), (c), (i) , (j) or (k) except for the provision of necessities or to prevent the dependant from becoming or continuing to be a public charge, and shall not make an order under clause (d). (emphasis added)

[391] First of all, there is no evidence that Mr. Khan is "a spouse who has a policy of life insurance as defined under the Insurance Act". Secondly, Mr. Steckley did not provide any authority under which I can make an order that Mr. Khan "obtain and maintain a life insurance policy as security for child and spousal support".

[392] Therefore, this claim is denied.

Costs

[393] Within 14 days of the date of this judgment, Mr. Steckley shall send his written submissions on costs to my assistant, Ms. Janice Law, 905-456-4830. He shall send a hard copy and an email copy to her. On the same day he shall serve Mr. Khan with his written submissions. Mr. Steckley shall provide an affidavit of service to Ms. Law as soon as possible after Mr. Khan is served.

[394] Within 14 days of being served with Mr. Steckley's written submissions, Mr. Khan shall send his written submissions on costs to my assistant, Janice Law, 905-456-4830. He shall send a hard copy and an email copy to her. He shall serve Mr. Steckley with his written submissions.

[395] Within five days of being served with Mr. Khan's written submissions, if he wishes Mr. Steckley may send a written and email reply to Ms. Law.

[396] No submissions will be accepted after the above mentioned dates.

Released: March 22, 2017

Justice J. W. Bovard