ONTARIO

SUPERIOR COURT OF JUSTICE

Family Court

COURT FILE NO.: FD1667/07
DATE: December 13, 2012

BETWEE N:

Amneh Qaraan

Monique Rae Bennett for the applicant

Applicant

• and -

Aziz Qaraan and Qaraan Investments Inc.

Norman A. Pizzale for the respondents

Respondents

HEARD: February 23, 24, 27, 28, 29, 2012; March 1, 2, 19, 20, 21, 22, 23, 26, 2012; April 16, 2012; and May 1, 3, 14, 22, 2012; additional written submissions received in June 2012

MITROW J.

INTRODUCTION

[ 1 ] The issues in this trial are equalization payment, spousal support and child support.

[ 2 ] The applicant, Amneh Qaraan (“Ms. Qaraan”), and the respondent, Aziz Qaraan (“Mr. Qaraan”), were both born in Jordan. They were married to each other in Jordan on September 27, 1990 and they separated on February 28, 2007. Mr. Qaraan has lived in Canada since approximately the mid 1960s and Ms. Qaraan came to Canada soon after the marriage.

[ 3 ] Mr. Qaraan was born February 1, 1943. Ms. Qaraan was born October 5, 1970. At the time of trial, Mr. Qaraan and Ms. Qaraan were ages 69 and 41, respectively. The parties have three children: Fatima Qaraan, born February 8, 1992; Aziz Qaraan, born January 12, 1993; and Mohammed Qaraan, born March 2, 2005. The children were ages 20, 19 and 7 at the time of trial.

[ 4 ] All issues regarding custody and access were settled pursuant to a final order made on consent dated November 7, 2011. Pursuant to this order, custody was awarded to Ms. Qaraan and Mr. Qaraan was awarded access.

[ 5 ] The parties were divorced by an order of this court dated November 8, 2010. Pursuant to an interim order, the granting of a divorce had been severed from all corollary relief issues and, in the severance order, it was ordered that the divorce was to proceed on the basis that the parties have been living separate and apart since February 28, 2007.

[ 6 ] Mr. Qaraan was predeceased by his first wife in 1989. He had two children from his first marriage but Mr. Qaraan’s son from that marriage died in early 1990. Mr. Qaraan and Ms. Qaraan have both remarried. More about that later in these reasons.

[ 7 ] This was a long trial with some unusual facts and circumstances. There was much evidence regarding Mr. Qaraan’s relationship, post-separation, with Ms. Lore Bowler (who was referred to throughout the trial as Lore Mioc, her previous married name, and for convenience will be referred to in these reasons “Ms. Mioc”). Much of the focus on Ms. Mioc was unnecessary and not helpful to the determination of the issues at trial.

[ 8 ] I intend to deal only briefly with some of the background facts at this time as the relevant details regarding the parties, their incomes, their relationship and the circumstances of the children are set out later in these reasons.

[ 9 ] In relation to the equalization of net family properties, there were only some minor disputes regarding Ms. Qaraan’s net family property. It was clear that Mr. Qaraan would owe a significant equalization payment. The evidence at trial regarding property related primarily to disputes regarding various assets and liabilities comprising Mr. Qaraan’s net family property. As the trial unfolded, some of these disputes were resolved. In dealing with equalization payment, these reasons deal only with matters that were disputed or unresolved in relation to family property.

[ 10 ] The division of household contents was settled during the trial (Ex. 17) and an order implementing this agreement is included at the end of these reasons.

[ 11 ] Mr. Qaraan’s income was derived from ownership and rental of apartment buildings. Although some apartment buildings were owned by his corporation, Qaraan Investments Inc. (it was later added as a party), there was agreement at trial that any apartments owned by Qaraan Investments Inc. were held in trust for Mr. Qaraan pursuant to a trust agreement, and further, that all apartment rental income from apartments owned by Qaraan Investments Inc. was always treated as Mr. Qaraan’s personal income and included in his personal income tax returns. Any sales of apartments owned by Qaraan Investments Inc. were also reported on Mr. Qaraan’s personal income tax returns.

[ 12 ] It was also agreed that Qaraan Investments Inc. was solely owned by Mr. Qaraan and would be jointly and severally liable with Mr. Qaraan for any equalization and support payments made at trial and an order to reflect that agreement is also included below.

Brief Background Facts

[ 13 ] There was much evidence about why Ms. Qaraan and the three children went to Jordan on the date of separation and conflicting evidence about how long Ms. Qaraan and the children were to remain in Jordan but, given the parties’ agreement that February 28, 2007 is the date of separation, it is unnecessary to deal with much of that conflicting evidence. I will note, however, it was quite apparent that the decision for Ms. Qaraan to go to Jordan with the children was orchestrated largely by Mr. Qaraan.

[ 14 ] While in Jordan, Ms. Qaraan and the children only saw Mr. Qaraan on one occasion, in the summer of 2007 for about a week, but they were required by Mr. Qaraan to travel to Turkey to visit with him there – a somewhat lengthy and arduous journey by bus for herself and the children, as explained by Ms. Qaraan.

[ 15 ] In early September 2007, Ms. Qaraan and the children returned to London, Ontario –most unexpectedly from Mr. Qaraan’s perspective. Mr. Qaraan at this time was back in London. Ms. Qaraan’s sudden departure from Jordan was prompted, in part, by third party reports received by Ms. Qaraan that Mr. Qaraan was involved in a relationship with Ms. Mioc. Ms. Qaraan’s appearance on the scene in London was followed quickly by litigation, including an order made in December 2007 that required (as a term of an adjournment) that Mr. Qaraan and Ms. Mioc were not to enter the matrimonial home, with a minor exception permitting Mr. Qaraan to retrieve business records.

Discussion of Issues in These Reasons

[ 16 ] These reasons deal first with the issue of equalization payment. Next, Mr. Qaraan’s income is dealt with for the purpose of calculating child support. Mr. Qaraan’s income for each of the years post-separation was a significant issue at trial. The amount of child support is then dealt with, based on findings made as to Mr. Qaraan’s income for child support purposes. Next, the issue of spousal support is discussed and the amount of spousal support for each year subsequent to separation is dealt with. Finally, prospective s. 7 expenses for Aziz are dealt with. Child support and spousal support are dealt with as corollary relief issues pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) c.3 [as am. by S.C. 1997, c.1].

EQUALIZATION PAYMENT

ISSUE 1

Issues Relating to the Property Owned by Mr. Qaraan in Al Taibeh, Jordan

[ 17 ] There are two disputes in relation to property owned by Mr. Qaraan in Al Taibeh, Jordan that are as follows:

a) Is Mr. Qaraan entitled to a date of marriage deduction for any property he owned in Al Taibeh at date of marriage?

b) What is the value of the property owned by Mr. Qaraan in Al Taibeh as at date of separation?

[ 18 ] Mr. Qaraan owned property in Al Taibeh, Jordan. English translations of records from Jordan (including in some cases copies of the records in their original Arabic language) were tendered as exhibits at trial. However, this documentary record is far from complete.

[ 19 ] The relevant land consists of two parcels, known as tract 114 and tract 115 in Al Taibeh. Mr. Qaraan testified that as a child (approximately age 7) his grandmother gave him “35 percent” of tracts 114 and 115, and that the remaining 65 percent that had been owned by his grandmother was eventually transferred to Mr. Qaraan’s father, who then transferred it to Mr. Qaraan’s mother when Mr. Qaraan’s parents separated (this occurring prior to Mr. Qaraan’s marriage to Ms. Qaraan).

[ 20 ] However, portions of the land acquired by Mr. Qaraan prior to the date of marriage were sold by him in 1950 and 1960. This appears to be verified by translated documents obtained by Mr. Qaraan (Ex. 8b, tab 31(c)) dated January 29, 2012 from the Director of Lands Registry in Jordan. (It is not clear, and was not explained, how a sale could have occurred in 1950 when Mr. Qaraan was age 7.) In his evidence in-chief, Mr. Qaraan described the parcels he sold as infertile, rocky land, as contrasted to the more fertile land he retained. He also claims to have built a dwelling on the retained parcel. Mr. Qaraan estimated he sold approximately 20 percent of the 35 percent parcel given to him by his grandmother. No records were provided by Mr. Qaraan at trial to corroborate that the amount of land he received from his grandmother was 35 percent of the original parcel and that the fraction that he sold was 20 percent.

[ 21 ] It was Mr. Qaraan’s testimony that after the date of marriage his mother’s 65 percent passed by inheritance to Mr. Qaraan and his four siblings which, according to the law of Jordan (as explained by Mr. Qaraan, a non-lawyer), meant that the five children (consisting of Mr. Qaraan, his two brothers and his two sisters) inherited their mother’s portion, with the males receiving two shares for each share that the females received. Put another way, 65 percent owned by Mr. Qaraan’s mother was divided into eight shares, with Mr. Qaraan and each of his two brothers receiving two shares (or 25 percent each) and each of Mr. Qaraan’s two sisters receiving one share (or 12.5 percent each).

[ 22 ] Mr. Qaraan testified that he believed his mother died in 1993, but there was no issue at trial that his mother died not too long after the date of marriage.

[ 23 ] The aforementioned Lands Registry exhibit stated that in 1993 Mr. Qaraan purchased a portion of tract 115 from Ms. Qaraan and in 1994 he purchased a portion of tract 115 from one of his brothers. In his evidence, Mr. Qaraan agreed with this exhibit regarding the purchase from his brother in 1994, but Mr. Qaraan testified he never purchased anything from Ms. Qaraan. He could not explain why this Lands Registry record referred to a purchase by him from Ms. Qaraan. Ms. Qaraan’s testimony was that Mr. Qaraan transferred some of that land to her and then she transferred it back to Mr. Qaraan. It should be noted that the purchases made by Mr. Qaraan in 1993 and 1994 as evidenced in the Lands Registry exhibit were also corroborated by a translated document (Ex. 13a, tab 4(c)) obtained by Ms. Qaraan (however, this exhibit mentions only Mr. Qaraan’s brother as a transferor and makes no mention of Ms. Qaraan being a transferor). In fact, from this exhibit it is unclear who the transferor was in the 1993 purchase by Mr. Qaraan.

[ 24 ] The evidence as to whether Ms. Qaraan may have owned any land in Al Taibeh for a brief time period subsequent to the date of marriage becomes moot because Mr. Qaraan conceded that he owned all of the land known as tracts 114 and 115 as at date of separation (with the exception of the parcels sold in 1950 and 1960). Also, there is no dispute between the parties that after Mr. Qaraan’s mother died, Mr. Qaraan purchased from his siblings those portions of the land inherited by his siblings from their (and Mr. Qaraan’s) mother.

[ 25 ] I find as a fact that on the date of separation Mr. Qaraan owned tracts 114 and 115 in Al Taibeh, with the exception of those portions he conveyed in 1950 and 1960. It is also not in dispute that Mr. Qaraan sold all his interest in the Al Taibeh property subsequent to date of separation. This sale was made by Mr. Qaraan in contravention of an existing interim preservation order (see, for example, the order dated February 26, 2009). Mr. Qaraan conceded this, offering the meritless explanation that he thought the order would not prevent dissipation of land in Jordan. Mr. Qaraan’s memory as to when he sold the land was unclear – he thought it may have been 2008 and 2009. However, the Lands Registry record confirms it was “11/08/2010” which I infer to be August 11, 2010. I find Mr. Qaraan sold this land in 2010.

[ 26 ] Although Mr. Qaraan admits owning this asset at date of separation, his efforts at providing documentary evidence of the value of this land as of date of separation are most disorganized, to put it charitably.

[ 27 ] Mr. Qaraan produced English translations of two documents, one for each of tracts 114 and 115, purporting to be appraisals of this property by one Mahmoud Ahmed Alawneh, described as a certified surveyor. (It should be noted that the description “certified surveyor” appears at the top of the translation, whereas under the signature line at the bottom of the translation Mr. Alawneh is described as a “certified survivor,” which I take to be a clerical error.) The exhibits that consist of the English translations of Arabic documents for each of the appraisals are found at Ex. 8a, tabs 4 and 5.

[ 28 ] The Arabic versions of the original appraisals were never produced. Mr. Qaraan testified that he obtained these translated documents from a lawyer in Jordan.

[ 29 ] According to the appraisals, tract 114 was valued at 25,172 dinars and tract 115 was valued at 41,695 dinars, which I find on the evidence is equivalent to $40,957.70 Canadian (tract 114) and $68,831 Canadian (tract 115) using currency conversions as at the date of separation (see Ex. 8a, tabs 4 and 5).

[ 30 ] Somewhat inexplicably, these valuations are as at January 1, 1990 (which appears to be the most reasonable conclusion from the exhibit as to the date at which the properties were valued). In fact, Mr. Qaraan was cross-examined as to why he was obtaining valuations of these tracts of land as at January 1, 1990 rather than at date of separation. Mr. Qaraan provided no credible response to this question.

[ 31 ] Regarding the sale of the Al Taibeh properties in 2010, no documents regarding the actual sale were produced. Mr. Qaraan testified that the sale was conducted by his current brother-in-law (meaning the brother of his present wife), who apparently sold these properties on behalf of Mr. Qaraan. Mr. Qaraan thought that the sale price was 55,000 dinars, a figure scoffed at by Ms. Qaraan, as it is less than the 1990 values. Ms. Qaraan testified she “heard” from others that the sale price in 2010 was at least 75,000 dinars.

[ 32 ] In their net family property (“NFP”) statements, both parties used for date of separation the values produced by the certified surveyor in Jordan, although Ms. Qaraan submits that she is prepared to use these numbers only on the basis that there should be no date of marriage deduction allowed to Mr. Qaraan regarding the Al Taibeh property, and further, that Ms. Qaraan be entitled to an additional amount of money because of the home she began to build on that Al Taibeh property post-separation (that issue is discussed below).

[ 33 ] Mr. Qaraan has a somewhat unenviable record in this proceeding of failure to make timely disclosure and also non-compliance with court orders. It appears that Mr. Qaraan perceived little benefit to himself to obtaining valuations of the Al Taibeh property as at date of separation and, therefore, he instead produced old historical values close to the date of marriage, hoping to be able to use those values to obtain some deduction in relation to the portion of those lands he alleges he owned as at date of marriage.

[ 34 ] Also, there were no date of separation valuations of the Al Taibeh property produced by Ms. Qaraan. The oral testimony of each party as to the sale price – the sale occurring some three and a half years after the date of separation – is unreliable and consists primarily of inadmissible hearsay and I place no reliance on it.

[ 35 ] The situation presents itself that on the evidence at trial the only appraised value of the Al Taibeh property is the January 1, 1990 valuation by Mahmoud Ahmed Alawneh. Doing the best I can on the evidence and taking into account that both parties have used 1990 values in their respective NFP statements for the date of separation value, and there being no other reliable evidence as to the value of the Al Taibeh properties owned by Mr. Qaraan on date of separation, I find that the value of this property in Jordan owned by Mr. Qaraan at date of separation is $40,957.70 for tract 114 and $68,831 for tract 115.

[ 36 ] In relation to the date of marriage deduction for this land, the statutory onus of proof rests with Mr. Qaraan (s. 4(3) of the Family Law Act). I find that Mr. Qaraan has failed to discharge that onus. I am not prepared to rely on Mr. Qaraan’s evidence as to his alleged (approximate 28 percent) ownership of those lands at date of marriage, absent documentary corroboration of which there was none. There is no evidence to corroborate what percentage of the land was owned by Mr. Qaraan and what percentage was owned by his mother on date of marriage. No credible explanation was given by Mr. Qaraan why he failed to obtain records as to his percentage ownership at date of marriage. Mr. Qaraan has failed to discharge his onus of proof.

[ 37 ] I disallow any deduction by Mr. Qaraan in relation to the land in Al Taibeh, Jordan as at date of marriage.

(Decision continues with the remaining sections exactly as in the source text.)