Court File and Parties
Citation: CITATION: Abdelsamie v. Farid, 2024 ONSC 694
Divisional Court File No.: DC-23-1424 (Oshawa)
Date: 20240202
Superior Court of Justice – Ontario
Divisional Court
Re: Mohamed Abdelsamie, Applicant (Appellant)
And: Reem Farid, Respondent (Respondent in Appeal)
Before: D.L. Corbett, McGee, Ryan Bell JJ.
Counsel: Sarah A. Strathopolous, for the Applicant (Appellant) Reem Farid, Self-Represented Respondent (Respondent in Appeal)
Heard: January 25, 2024
Endorsement
McGee J.
Overview
[1] The parties’ seventeen-year marriage ended in June of 2016. Following a four-day trial heard in May of 2022, the trial judge made a final order on July 7, 2022 (amended August 22, 2022[^1]), that limited the duration of non-compensatory spousal support payable to the Appellant, Mr. Abdelsamie to a period of 19 months from the date of separation to December 2017 when the Appellant obtained his first employment position in Canada. The trial judge dismissed his claim for compensatory spousal support (2022 ONSC 3931).
[2] From January to June of 2017 the parties’ two minor children alternated residences between their parents’ homes on a week-about basis. From July 2017 until September 2021 each parent had one child in their primary care. After September 2021 both children were in the Respondent, Ms. Farid’s, primary care.
[3] Mr. Abdelsamie asks that the trial judge's findings that (a) he is not entitled to compensatory spousal support, and (b) his entitlement is limited to non-compensatory spousal support for a period of 19 months be set aside in the face of (i) a Spousal Support Advisory Guidelines (“SSAG”) duration of 8.5 to 17 years and (ii) subsequent periods of shared and split parenting. He argues the findings demonstrate errors of law that have resulted in final orders that are clearly wrong.
[4] The Appellant further asks that this court order that the Respondent pay recalculated spousal support arrears of $94,248 (net of tax and child support adjustments) and ongoing spousal support of $1,415 per month based on the mid-range of the SSAG for a fixed ongoing period of spousal support eligibility of January 1, 2023 to December 31, 2028. In the alternative, he asks that this court decide the amount of retroactive and ongoing spousal support.
[5] For the reasons set out below, I would allow the appeal, and return the matter to the Newmarket Superior Court of Justice Family Branch for a new trial.
Factual Background
[6] The parties were married in Egypt on April 27, 1999. They were each enjoying a successful career in financial services while facing somewhat limited prospects. They made the joint decision to apply to immigrate to Canada and it was agreed that the Respondent, who had a better facility in English, would study abroad to enhance their points-based application. She obtained a master’s degree in business administration from John Hopkins University in Washington D.C. She returned to Egypt in 2003.
[7] The parties’ son and daughter were born in Egypt in 2003 and 2004. While the parents were awaiting an answer to their immigration application, the Appellant accepted a job in Ryadh, Saudi Arabia, that provided him with income in the range of $100,000 CAD, plus housing and other benefits. He moved there in 2005, and the Respondent and the children followed in 2006.
[8] Shortly upon her arrival in Saudi Arabia, the Respondent also received an attractive job offer, but by then, the family’s application to immigrate to Canada had been accepted, so instead, she and the children moved to Calgary, Alberta in July of 2007. The Appellant joined them briefly, and then for disputed reasons, returned to Saudi Arabia to continue his employment, the income from which continued to support the family. He moved to Calgary on a permanent basis in January of 2009.
[9] Thanks to the Respondent’s hard work and determination, she succeeded in establishing herself in Calgary as a senior business analyst. By June 2013, her success led the parties to incorporate Tamr Consulting Ltd. The Respondent increased her income as a self-employed contractor and the family benefitted through income splitting and other tax advantages.
[10] In 2015 the Respondent incorporated eCMS Consulting Inc., a company that she operated until the month prior to trial. At trial, the following findings were made as to her post separation income for support purposes: $83,000 in 2016, $134,623 in 2017, $144,908 in 2018, $131,917 in 2019, $241,878 in 2020 and $200,210 in 2021.
[11] In April 2022, BMO offered the Respondent a position with a base salary of $116,000 per year. She accepted this position and dissolved eCMS. She has not appealed the trial judge’s findings of income.
[12] In contrast, the Appellant struggled in Canada. He was unable to find work in his field, which he attributed to language and education barriers. He upgraded his education, completing two levels of a Certified Financial Analyst course, but he remained unable to secure employment in Alberta. Believing that there would be better career opportunities in Ontario, he enrolled in a program at Seneca College in Markham, Ontario. He moved to Ontario and completed the course in August of 2016.
[13] The Respondent did not want to move to Ontario. In her view, her spouse’s failure to obtain steady employment, his preoccupation with day trading, and his lack of contribution to the home and childcare had brought the marriage to an end. She asked for a divorce.
[14] Ultimately, it was agreed that the parties would move to Ontario, but in separate residences. Their Alberta home was sold, and the net proceeds of sale divided equally. Later within these proceedings they agreed to June 2, 2016 as their date of separation.
[15] The Appellant’s December 2016 Application in the Newmarket Superior Court of Justice Family Branch sought final orders for custody, child support, spousal support (compensatory and non-compensatory), equalization, and a divorce. In her January 2017 Answer and Claim, the Respondent mirrored the Appellant’s claims. Relevant to this appeal, she vigorously opposed his claim that he was entitled to spousal support.
[16] The Appellant began driving for Uber. It was not until December 2017 that he was finally able to secure a fulltime position in the financial services sector. He was hired at the hourly rate of $16.50 per hour, which increased to $19.50 per hour by the time of trial. The trial judge found that the Appellant had earned $25,000 in 2016 and 2017 (being an agreed amount of imputed income), $38,370 in 2018, $41,353 in 2019, $42,417 in 2020, and $41,874 in 2021. The trial judge averaged his last three years’ income as his income for the payment of child support.
[17] For the first six months of 2017, the children, then 13 and 14, alternated residences between their parents on a week-about basis. Thereafter, the daughter lived with the father, and the son lived with the mother in a split custody arrangement. Four years later, in September 2021, when their daughter was 17 and their son was 18, the daughter also moved into her mother’s residence.
[18] The litigation was bitterly contested. Pursuant to a temporary order, the Respondent began paying the Appellant $300 per month in temporary spousal support, $460 per month in set-off child support, and all the children’s section 7 expenses as of May 1, 2018.
[19] In May of 2022 the parties proceeded to trial on the issues of spousal support and child support. The trial judge dismissed the Appellant’s compensatory support claim and ordered non-compensatory spousal support in the amount of $893 per month for a fixed period of 19 months, being June 2016 to December 2017.
[20] The amount of $893 was the mid-point value within a SSAG range calculated on income of $83,000 for the Respondent and imputed income of $25,000 for the father. No reasons were given with respect to duration. The SSAG range used to determine the amount of support identified duration as 8.5 to 17 years.
[21] The final order required (a) that the Respondent pay the Appellant $41,941 being the final sum after adjustments for retroactive spousal and child support, without adjustment for tax, (b) that the Appellant pay the respondent $3,220 in a child support repayment and $182 for section 7 expenses, (c) that the Appellant pay ongoing child support for two children in the amount of $623 per month based on his averaged income of $41,888 and (d) that the parties share all section 7 expenses proportionate to their income, being 26% by the appellant and 74% by the Respondent.
Issues on Appeal
[22] The Appellant does not take issue with any of the facts as found by the Trial Judge. The issues to be determined on this appeal are as follows:
a. Did the trial judge err in law by dismissing the Appellant’s claim for compensatory spousal support?
b. Did the trial judge err by not adequately considering the duration of spousal support?
Jurisdiction
[23] This appeal was originally brought to the Ontario Court of Appeal but was transferred to the Divisional Court under s.110 of the Courts of Justice Act.
Standard of Review
[24] The appellate standard of review applies to this appeal: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Questions of law are reviewed for correctness, questions of fact are reviewed for a palpable and overriding error, and questions of mixed fact and law are reviewed on the deferential standard, except “extricable questions of law” for which the correctness standard applies.
[25] Considerable deference is owed to a first instance decision on support: Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518. As set out in paragraph 12 of Hickey, the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. Orders should not be overturned unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong.
Analysis
The Trial Judge Erred in Law by Dismissing the Appellant’s Claim for Compensatory Spousal Support
[26] Subsections 15.2(4) and 15.2(6) of the Divorce Act set out the factors and objectives that the Court is to consider when considering support claims. Relevant to this appeal, those factors and objections include “recogniz[ing] any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown”"apportion[ing] between the spouses any financial consequences arising from the care of any child", and "reliev[ing] any economic hardship…arising from the breakdown of the marriage".
[27] In Moge v. Moge, 1992 25 (SCC), 1992 CarswellMan 143 (S.C.C.) at paras. 44, 48, 53-55, 70-72, 74-75, 78, 80, 85, and 110, and Bracklow v. Bracklow, 1999 715 (SCC), 1999 CarswellBC 532 (S.C.C.) at paras. 34-37, the Supreme Court of Canada confirmed that "no single [spousal support] objective is paramount; all must be borne in mind." The Courts have also set out a series of principles that must be considered whenever a court is dealing with a claim for spousal support under the Divorce Act. These principles include “a fair and equitable distribution of resources to alleviate the economic consequences of marriage or marriage breakdown for both spouses, regardless of gender.”
[28] Here, the parties were married for 17 years, had two children, and operated as an economic partnership, making joint education, career, and international immigration decisions. At the time of separation, the Appellant was 46 years old and was not earning any income despite having previously earned a significant income in Saudi Arabia. At the time of trial he was earning only $41,874 per year. Prior to her acceptance of an employment position with base pay of $116,000, the Respondent had been earning in excess of $200,000 per year.
[29] The Trial Judge found that "the parties both agreed to raise their family in Canada making many important decisions and personal sacrifices in furtherance of this plan." Notwithstanding this finding, the trial judge dismissed the claim for compensatory spousal support because (a) at the time of the marriage, both parties were employed on a full-time basis earning similar incomes, (b) the Appellant did not meaningfully contribute to the Respondent’s MBA and there is no evidence that her degree impacted appreciably on her career or that any contributions he did make diminished his earning capacity, (c) although the Appellant was out of the workforce for a number of years, he used this time to further his education and did not primarily care for the children or perform household tasks beyond grocery shopping, (d) the Respondent did not demand that the Appellant leave his job in Saudi Arabia and join her in Canada, and (e) the trial judge did not accept the Appellant’s evidence as to why he was unable to find employment or did not complete the required third level of his CPA course of study.
[30] The reasons given at (a) to (d) are not a sufficient basis in law to dismiss a claim for compensatory support because they inform the narrative of the relationship, not the economic consequences to the spouses upon its dissolution. The reasons do not consider the overall objectives of an award for spousal support or the compensatory basis for spousal support that is incorporated within the SSAG “with child support” formula, as explained in chapter eight of the SSAG Revised User Guide.
[31] As Justice McLachlin (as she then was) specifically explained in her concurring reasons in Moge at paragraph 119,
A formalistic view of causation can work injustice in the context of s. [15.2(6) and] 17(7) [of the Divorce Act], as elsewhere. The question under [s. 15.2(6)(a) and] s. 17(7)(a) is whether a party was disadvantaged or gained advantages from the marriage, as a matter of fact; under [s. 15.2(6)(c) and] s.17(7)(c) whether the marriage breakdown in fact led to economic hardship for one of the spouses. Hypothetical arguments after the fact about different choices people could have made which might have produced different results are irrelevant unless the parties acted unreasonably or unfairly. In this case, for example, Mrs. Moge in keeping with the prevailing social expectation of the times, accepted primary responsibility for the home and the children and confined her extra activities to supplementing the family income rather than to getting a better education or to furthering her career. That was the actual domestic arrangement which prevailed. What Mrs. Moge might have done in a different arrangement with different social and domestic expectations is irrelevant.
[32] The trial judge may have been led into error by the Respondent’s focus on the parties’ choices during the marriage, specifically, whether the Appellant should bear the consequences of having chosen to immigrate to Canada.
[33] A claim for spousal support is not a claim in tort. Using a “but for” analysis to assess compensatory support claims is inconsistent with the Supreme Court’s determination in Moge that, when dealing with spousal support claims, the court must consider what actually happened in the relationship, and not what might have happened had the spouses made different choices.
[34] The goal of compensatory support is to ensure that the post separation economic consequences of the roles adopted by spouses during a relationship are not disproportionately borne by one spouse alone, but instead, are shared equitably.
[35] Nor is reason (e) – alone or balanced with the other reasons – a sufficient basis to dismiss a claim for compensatory support. The remedy for not accepting the Appellant’s explanations as to why he was unemployed or had not completed his CFA designation is to impute his income for support purposes in the same manner as income is imputed for child support purposes under s. 19(1)(a) of the Federal Child Support Guidelines: see Perino v. Perino 2007 46919 (ON SC), [2007] O.J. No. 4298 (SCJ). That is, the remedy is to impute income to the Appellant on a finding that he was intentionally unemployed, or underemployed.
[36] The error in dismissing the claim for compensatory spousal support resulted in the SSAG range not reflecting the Respondent’s post separation increases in income. Instead of using the findings of the Respondent’s income from 2017 to 2022, the trial judge used only the Respondent’s 2016 income of $83,000 and the Appellant’s imputed income of $25,000.
[37] The error was then compounded by the limited duration of support. The result was that the Appellant, with one child in his primary care from 2017 to 2021, received only set off child support and no spousal support to balance the parents’ net disposable incomes.
The Trial Judge Erred in Law by Not Adequately considering the Duration of Spousal Support
[38] The trial judge gave no reasons for limiting the duration of spousal support to 19 months in the face of a SSAG calculation that provided for 8.5 to 17 years of duration.
[39] The core concept upon which the SSAGs are built is income sharing, and the SSAGs equally apply to compensatory and needs-based (non-compensatory) support claims. Quantum and duration are interrelated parts of the formula because the end of entitlement for spousal support is the end of duration: see Fisher v. Fisher, 2008 ONCA 11 (C.A.) at para. 97.
[40] The objectives for needs-based spousal support are outlined in Bracklow v. Bracklow 1999 715 (SCC), [1999] 1 SCR 420 (S.C.C.) at paras. 23, 30 and 46. One of the purposes of needs-based support is to relieve financial hardship, while another purpose is grounded in the “social obligation model” of marriage, in which marriage is seen as an interdependent union. It embraces the idea that upon dissolution of a marriage, the primary burden of meeting the needs of the disadvantaged spouse falls on their former partner.
[41] As is often stated, “need” and the ability to be self-sufficient is relative. It is not measured solely by ensuring a subsistence existence, but rather, it should be assessed through the lens of viewing marriage as an economic partnership: see Marinangeli v. Marinangeli, 2003 27673 (ON CA), 2003 CarswellOnt 2691 (C.A.) at para. 74.
[42] Although not binding, the SSAG must not be lightly departed from. When a trial judge decides to award a quantum or duration of spousal support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the SSAG range or duration does not provide an appropriate result: see Fisher at para. 43-48.
[43] Here, there is no basis for appellate review of the 19-month duration or why the trial judge departed from the suggested range of 8.5 to 17 years. In the absence of any reasons for departure, the period of duration must be set aside. It was an error in law to depart from the SSAG on duration without providing compelling reasons as to how spousal support for a period of 19 months achieves the objectives of compensatory, or non-compensatory spousal support following a 17-year marriage in which the parties moved three times, requalified in a foreign jurisdiction (and language) and in which the Appellant had primary care of one child for four years post separation.
Disposition
[44] I would grant the appeal. I decline to recalculate the amount of retroactive and ongoing child and spousal support because to do so requires findings of fact that are not available to an appellate court. The appropriate amount of support and its duration is a complex determination. The mid-range amount of support is not a default amount.
[45] The matter is remitted to the Newmarket Superior Court of Justice Family Branch for a new trial. The Respondent shall pay costs to the Appellant of $5,000.
“McGee J.”
I agree: “D.L. Corbett J.”
I agree: “Ryan Bell J.”
Date of Release: February 02, 2024
CITATION: Abdelsamie v. Farid, 2024 ONSC 694
DIVISIONAL COURT FILE NO.: DC-23-1424 (Oshawa)
DATE: 20240202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Ryan Bell and McGee JJ.
BETWEEN:
Mohammed Abdelsamie
Appellant
– and –
Reem Farid
Respondent
REASONS FOR DECISION
McGee J.
Date of Release: February 02, 2024
[^1]: The final order was amended on consent to correct an error in calculating the amount of child support owing. Although a neutral citation was assigned to the trial judge’s decision, it does not appear online. It should be uploaded to legal databases so that it is available publicly.