COURT FILE NO.: FS-10-358298
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MANAR GAMIL GAYED SHOUKRI
In person
Applicant
- and -
HANI WADIE GOURGUI MISHRIKI
Martin Schulz, for the Respondent
Respondent
HEARD: November 27–30, December 3-6, 2012
MESBUR J.
Introduction:
[1] This matrimonial case raises the usual issues of spousal and child support, retroactive support, and equalization of net family property. The parties have settled custody of and access to their children, Mariam now seventeen, and Mark, eleven. The applicant mother has custody of the children, and the respondent father has specified access to Mark. Given her age, Mariam makes her own arrangements to see her father.
[2] The parties also settled the issue of child support on the basis that father would pay full table support for the children even though it might be argued that Mark resides with him more than forty percent of the time. The Minutes of Settlement the parties executed provide that this issue can be revisited once the mother earns at least $40,000 a year. Since the mother secured full time employment in June of 2012 and currently earns $42,500 annually, father takes the position he should pay only a setoff amount for Mark.
[3] The equalization is not complex in itself, but is complicated by the fact that the parties’ former family home is located in Egypt, raising certain valuation issues. Also, post-separation adjustments, and which party had use of various joint accounts post-separation raise other issues.
[4] I turn first to my findings of fact. Many of the facts are not in dispute.
Factual findings:
Early days of the marriage in Cairo
[5] Both parties are Egyptian by birth, and spent their childhood and early adult years in that country. Both are Orthodox Christians by faith. The wife described Egypt as a deeply religious and traditional country.
[6] The wife described her family as prominent members of the Egyptian Christian community. She is one of three children; he brother is a gynecologist in the UK, and her sister works and lives in Toronto. The wife completed a Bachelor of Commerce degree at a prestigious university in Cairo, and after graduating in June of 1991 almost immediately began to work as an accountant.
[7] She worked almost continuously until the marriage, earning what she recalled as being good pay. Since she was living with her parents until the marriage the wife was able to save a good portion of her income. She did not, however, have any records showing what her savings were at the date of marriage.
[8] After the parties married they lived in apartment in Cairo that was owned by the husband’s mother. She had purchased the apartment about a month before the parties married. The wife suggests that this property was somehow a gift to her and the husband, in keeping with the customs and traditions in their Egyptian community. She says it is customary for the groom’s family to purchase an apartment for the couple, while the bride’s parents customarily furnish it. She says the husband’s parents “had to” gift the apartment to her and the husband otherwise everyone would look at them and wonder what kinds of people they were. She led no independent evidence to support this.
[9] While the husband conceded that sometimes the parents of a groom will purchase an apartment for the newlyweds, this is hardly a statement from which I can infer the intention to make a gift, particularly when title remained in the name of the husband’s mother.
[10] The husband is a professional engineer by training. He also studied and qualified in Egypt. Until the parties relocated to Canada, the husband spent his professional career working for an engineering company called Dar Al Handasah. He spent a large part of his career with them working on the building of the new airport in Dubai, in the United Arab Emirates.
[11] The parties married in May of 1994. The wife says her parents disapproved of her choice of husband, but she was insistent on marrying for love, and they eventually consented to the marriage, and participated in it.
[12] Within three months of the marriage the wife became pregnant with the parties’ first child, Mariam. The wife worked right up until Mariam was born on July 1, 1995. After that the wife stayed out of the work force until sometime in 1997 when Mariam was two.
[13] Although the husband had already qualified as an engineer when the parties married, he was ambitious and wanted to upgrade his qualifications. He obtained both a Masters degree and a PhD after the parties married. He did both while he was working full time. This, of course, took considerable time, meaning the wife was primarily responsible for all the household responsibilities, including raising the parties’ daughter, while the husband focussed on his career and his studies. After 1997 the wife did all this and worked full time as well until Mark was born in May of 2001.
The Suez Canal Street apartment in Cairo
[14] The Cairo apartment the parties first lived in remained in the mother-in-law’s name until it was sold when Mariam was about three or four. At that time, a new and larger apartment was acquired in a better Cairo neighbourhood, on Suez Canal Street. The apartment was large enough to provide Mariam with her own room, and also was big enough to accommodate Mark when he was born in 2001. Title to this apartment was registered in the husband’s name alone. The funds to buy it came from the sale of the first apartment, which of course belonged to the husband’s mother. The husband takes the position that as a result the Suez Canal St. apartment was a gift to him. I agree. I can see no other interpretation of the flow of money from the first apartment to the second.
[15] Although the wife again suggests the Suez Canal St. apartment belonged to her and the husband, I can see no basis on which to come to that conclusion. Title could well have been placed in both parties’ names if the husband’s parents or mother had wished to do so. It was not, leading to the inescapable conclusion that the property was a gift to the husband alone.
[16] The husband’s position about the Suez Canal St. apartment was somewhat fluid throughout the trial. At one point, he seemed to take the position that his mother or father or parents together lent the money from the sale of the first apartment for the purchase of the Suez Canal St. property instead of gifting it. Even if that were the case, the result would be the same. Either the husband is entitled to an exclusion for the apartment, or its value is offset by the debt to acquire it. Either way, the net mathematical result is the same.
Complaints of abuse
[17] The wife says that the husband began to abuse her almost from the beginning of the marriage. She says that because of societal attitudes about the place of women in Egypt she was not in a position to complain to anyone about the treatment she received.
[18] The husband vehemently denies any abuse. In fact, he shouted out in court at least twice during the trial, denying what the wife was saying in her evidence. His tone and demeanour were quite aggressive, and he had to be admonished to control himself. His behaviour lends some credence to the wife’s position.
[19] That being said, the issue of abuse is of little or no relevance to the issues I need to determine, and I will have no more to say about it, even though allegations of this nature were central to the wife’s final decision to end the marriage.
The move to Dubai
[20] In December of 2003 the husband began to work on the Dubai airport project in Dubai. This assignment marked a significant increase in the husband’s remuneration, particularly because he was entitled to a housing and transportation allowances in addition to his salary. This, coupled with the fact there is no income tax in Dubai meant the parties had significantly more disposable income.
[21] The wife testified she was delighted when the husband moved to Dubai because it meant he was away from her a great deal.
[22] In 2004 Mariam was already in school and Mark was in nursery school. The wife was working at Mariam’s school. She says that although the pay was not particularly good, the benefits, including a reduction of school fees, made the job worthwhile.
[23] Mariam finished out the 2003/2004 academic year, and then the wife and children joined the husband in Dubai. The Suez Canal St. apartment remained vacant until the husband sold or transferred it to his mother after the parties separated in 2008.
The parties live in Dubai
[24] The parties found accommodation in the diplomatic area of Dubai. The apartment appears to have been large and comfortable, large enough to accommodate the family and a live in housekeeper. The wife soon found work in Dubai, once the parties were able to hire a housekeeper to take care of the children.
[25] During the time in Dubai, the husband was earning tens of thousands of United Arab Emirates Dhirams (AED) per month. For example, by June of 2008 he was earning a base salary of AED 25,500 per month, plus an additional AED 12,000 housing allowance and AED 2,000 as a monthly transportation allowance for monthly total of AED 39,500. At the April 208 exchange rate of 0.275974 this represented $10,900 CAD per month, on a tax free basis.
[26] The wife also found employment in Dubai, and began at a job where she earned about AED 12,000 per month. She changed jobs and ended up in a position where she was earning AED 17,000 or 18,000 per month. This represented an additional $4,900 a month for the family. I believe the wife when she says she pooled her income with the husband’s to meet the family’s expenses. I do not believe the husband when he claims she banked her income and kept it for herself. I do not believe him when he claims that as a result his income was insufficient to meet the family’s expenses, and he had to borrow extensively from his father. He provided no credible independent evidence to support his contention about borrowing funds.
Applying for Canadian immigration in 2002.
[27] The parties decided to explore immigrating to Canada. In 2000 they made application to come to Canada as landed immigrants. In 2002 their application was approved, and the family arrived in Canada as landed immigrants, settling in Montreal. The wife immediately found work there.
[28] The husband was unable to find work, and returned to Dubai almost immediately. The wife followed shortly after.
[29] Even though the parties did not continue to reside in Canada, they had applied for and obtained the child tax credit for both children when they first came to Canada in 2002. They opened a bank account where the child tax credit was deposited and continued to grow.
[30] The plan was to apply for Canadian citizenship after the parties had fulfilled three years of being landed immigrants.
Returning to Dubai
[31] When he returned to Dubai, the husband continued to work on the Dubai airport. The wife returned to work as well, working as an accountant for a number of different multinational corporations. She had positive reviews from all her employers.
[32] The parties still planned to come to Canada if they could. Three years after becoming landed, they applied for Canadian citizenship. In 2008 they were advised they would be interviewed for citizenship.
The move to Canada in 2008
[33] The parties had not, however, lived continuously in Canada since becoming landed immigrants. In the citizenship interview the wife disclosed that the parties had not actually been living in Canada for the requisite three years in order to qualify for citizenship. They were denied citizenship, but remained landed immigrants. They decided the wife would remain in Canada to establish the proper residency.
[34] The parties brought money from Dubai to Canada and added it to their bank account here. They used part of the money to purchase a new vehicle for about $16,000, rent a townhouse and buy furniture for it. They paid cash for the car and furniture. The townhouse rental was $1,800 per month.
[35] The plan was for the husband to return to his job in Dubai. According to the wife, he promised to send $4,000 a month to cover the family’s expenses. This did not occur with any particular regularity.
[36] Before the husband went back to Dubai, the parties went to the HSBC where the husband opened what the bank calls a “Premier” relationship. As I understand it, the plan was for the husband to deposit the $4,000 a month into this account.
[37] The wife takes the position that in order to have this kind of Premier banking arrangement, a person needs to have and maintain at least $100,000 in personal account and investment balances. She points to a printout from the HSBC website to support this position.[^1]
[38] Husband denies that the bank required a balance such as this, and also denies that he had balances like this. I reject the husband’s position. First, although Exhibit 27 appears to be from a US website, it confirms what the wife says. I find it more likely than not a premier banking arrangement requires this kind of balance in Canada as well.
[39] Second, the wife has produced banking documents to show that husband had accounts totalling about $100,000 at the time he opened the HSBC accounts. The husband’s suggestion that the bank relied on his father’s accounts with the bank, because the father has a similar name to his simply strains credulity.
[40] Although the husband opened the accounts with HSBC, he soon closed them, and never deposited the promised funds in the HSBC accounts. In fact, he provided very little in the way of ongoing support to his wife and children as promised.
[41] The husband returned to Canada from Dubai in the fall of 2008. It was then the events giving rise to the parties’ separation occurred.
The separation
[42] The wife says that in February of 2008 she discovered the husband was unfaithful to her. She came to this conclusion after finding a string of emails between the husband and another woman. She introduced some of the emails into evidence at trial. While the husband denies any affair, the emails could lead a person to believe there was something going on between the husband and this person. In any case, this discovery marked the beginning of the end of the marriage for the wife.
[43] The wife describes a physical altercation between the husband and her on October 5, 2008 as precipitating the separation. Although the police were involved, no charges resulted from this event, even though the wife presented at the hospital with numerous bruises and a broken tooth. She was seen by victim support services at the hospital, and spent the next week or so in a women’s shelter. The parties have not lived together since that date, October 5, 2008.
[44] The wife says her husband was not charged as a result of this incident because he persuaded her family members to lie to the police and tell them the wife was unstable and had inflicted the wounds on herself. Again, it is not particularly relevant to determine where the truth lies concerning this incident. It is enough to confirm that it marked the date when the parties separated with no reasonable prospect of resuming cohabitation, namely, the valuation date for equalization of net family property.
[45] Within two days of this incident the husband returned to Dubai.
The proceedings in the Ontario Court of Justice
[46] With the assistance of workers from the shelter and a legal aid lawyer, the wife immediately commenced proceedings in the OCJ with a view to obtaining a restraining order against the husband. She proceeded first without notice to obtain such an order. After the matter was returned on notice, the parties entered into a number of consent orders relating to the husband’s access to the children. The court also made a child support order on January 20, 2009.
[47] The husband was still working in Dubai at this time. Brownstone J found that the husband’s annual income in Dubai was $159,164 which was tax free. He grossed that amount up to $268,600 and ordered the husband to pay $3,368 per month in table support for the two children, commencing December 1, 2008. The court did not deal with the issue of spousal support, but adjourned the matter to March 3, 2009.
[48] The husband did not appeal the order, nor did he move to change it. Between the time the order was made and the time an order was made in this court in July 2011 the parties agree the husband has paid a total of only $19,134.66 on account of this order. There is an issue about some additional payments the husband claims to have made. I will deal with this issue when I address the issue of retroactive support.
[49] In December of 2009 the OCJ application was dismissed as abandoned since no one appeared at a scheduled appearance. The following April the wife began this application. Before turning to the history of these proceedings I will address some of the history of the parties’ employment since their final immigration to Canada in 2008.
[50] Because the husband did not pay any regular support for a lengthy period of time, the wife and children had to vacate the townhouse. The wife sought and was granted benefits under the Ontario Works programme. She and the children had to move into Ontario Housing. They still reside in Ontario Housing, in a geared to income apartment.
The parties’ work history after the move to Canada in 2008
[51] When parties arrived in Canada in June, 2008, they brought significant funds with them at that time, and also had established a bank account here into which the child tax benefit for the children was deposited after they became landed in Canada in 2002. They soon found a townhouse to rent at a rental of $1,800 per month, furnished it, and purchased a car. Both the townhouse and the car were in the wife’s name. The plan was for the husband to return to Dubai and send money to support the family. The wife says the agreement was that he would send $4,000 a month to meet the family’s expenses, but he did not. Some funds arrived, but not the promised $4,000 a month.
[52] The husband returned to Canada on September 27, 2008. He testified that he soon learned that it would be very difficult to have his qualifications recognized in Canada. He still had his position in Dubai and therefore decided to return there. He did so two days after the parties separated. Although he denies it, I find it more likely than not that it was he who removed some $25,000 from the parties’ joint account just after the separation, and not the wife.
[53] It appears that the husband continued to work in Dubai from early October 2008 until he came back to Canada sometime in December of that year. He went back to Dubai in January 2009. In February 2009 he lost his job and returned to Canada in March 2009.
[54] The wife is very suspicious of this job loss, particularly since the husband says he received no severance, even after working for his employer for fourteen years. I have no evidence to suggest the husband was entitled to severance. His contract of employment has no such provision in it.
[55] While the timing of the job loss does raise some suspicion, I have no evidence to suggest it was anything other than legitimate. The Dubai airport was near completion, the husband had been away in Canada for some months, and was distracted by the court proceedings in Canada. He says these factors impaired his productivity and contributed to his losing his job.
[56] In early March 2009 the husband returned to Canada and participated in the proceedings in the OCJ. He then obtained some contract work with his former employer in Cairo. From April through June of 2009 he worked in Cairo at a salary of $US 3,500 per month.
[57] In the summer of 2009 the husband again returned to Canada. In July of 2009 there was another physical incident between the parties. This time the husband was charged, and was restrained from contacting the wife or children as a condition of his bail. The charges were eventually resolved by the husband entering into a peace bond in October of 2009.
[58] The husband says he returned to work in Cairo for one month between mid September and mid October of 2009.
[59] From January to April 2010 the husband worked as a volunteer at a Catholic French high school in Toronto. He assisted with mathematics. Although he hoped this would turn into some kind of paid employment, it did not.
[60] Again the husband returned to Cairo to work. He worked for his old company in May and June of 2010 at the rate of $3,650 per month. He returned to Canada around the end of June, 2010 and has remained here since.
[61] The husband actively looked for work in Canada. Like many immigrants he found it very difficult to have his foreign credentials recognized. For a brief period at the end of 2010 he received some social assistance. Even though he was allegedly in dire financial circumstances he was still able to rent a condominium apartment for himself at a rental of about $1,500 per month.
[62] Finally, in January of 2011 the husband found his first job in Canada, at a company that installs window coverings. His salary was $37,500 per year.
[63] Almost immediately after starting at his first position, the husband found a new position at a company called Skysolar at an income of $63,000 per year. This is an engineering firm that could provide supervised Canadian engineering experience for the husband. He wrote the necessary exams to qualify as a Canadian engineer, and after being supervised for the requisite period of time he was able to qualify as an engineer. He is now certified as a Professional Engineer.
[64] The husband got a raise in May of 2012, and now earns $74,500 per year. He recently purchased a condominium apartment for himself in the same complex where he formerly rented. I must say I find either his judgment or his credibility suspect. When he apparently had no income he was able to afford significant housing costs. Now he has incurred additional expenses in purchasing a property. He says he did so because his old apartment was not suitable for his father, who requires a washroom of his own. Although the husband’s parents may have had some plans to relocate to Canada, they have not done so. In contrast, the wife and children have been living in subsidized housing in an Ontario Housing complex.
[65] The wife also faced challenges in finding employment. She investigated the steps required to become a chartered accountant, certified general accountant or certified management accountant in Canada. She learned that while her Bachelor of Commerce degree from Egypt would be recognized here, she would have to undertake a rigorous and expensive course of study in order to sit the necessary exams. She testified, and I believe her, that with the responsibilities of the children and her lack of funds she could afford neither the time nor expense of retraining.
[66] Instead, the wife became an accredited translator for both the Arabic and French languages. Although she obtained some work, it has been sporadic and insufficient to constitute a living. She has also taken courses at Humber College and at the Barbara Schlifer Clinic to upgrade her skills. At Humber she obtained a certificate in Administrative Services.
[67] Although it has taken the wife some time to find employment, she finally found a permanent full time position at an insurance company in June of 2012. She earns $42,500 per year as a bilingual customer services representative.
These proceedings
[68] From the endorsements record it appears the first event in this application occurred in early November of 2010. That was the first case conference before Jarvis J. At some point, the Office of the Children's Lawyer became involved in the case. With their assistance, the parties were able to resolve the issues of custody of and access to the children on a final basis. At the beginning of this trial, I made a consent final order incorporating the terms of their agreement. I also granted a divorce order.
[69] The essence of the arrangements concerning the children is that the mother has custody of both children and father has access to them. Access to Mariam is entirely in her discretion. She currently sees her father about once a month.
[70] As for Mark, the parties have a two-week access schedule for him. Father has access to him from Monday after school until Wednesday morning of the first week, and from Friday after school until Tuesday morning in the second week. Mark resides with his mother the rest of the time.
[71] The wife moved for spousal and child support before Sachs J in the summer of 2011. On July 12, 2011 Sachs J made an order in the following terms:
a) The orders of Brownstone J made in the OCJ, including the child support order were stayed pending trial;
b) Commencing August 1, 2011 father to pay temporary child support of $944 per month, and $168 per month on account of section 7 expenses. The child support was based on father’s income of $63,000 and on his paying 84% of the children’s section 7 expenses;
c) Commencing August 1, 2011 father to pay temporary spousal support of $850.00 per month.
[72] Although there are some arrears under the Sachs J order, resulting from the Family Responsibility Office taking some time to begin collecting the support, the father has made payment arrangements with the FRO concerning the arrears, and the payments are otherwise up to date.
[73] In their agreement about the children the parties also agreed that the order of Sachs J would continue even though Mark spends more than 40% of his time with the father. The parties agreed to continue that arrangement until the wife earns $40,000 per year or more. Then they can reconsider the child support arrangements in light of the custodial arrangement for Mark.
[74] This leads me now to a discussion of the legal issues in this case.
Discussion:
[75] Since the parties have resolved the issues of custody and access to the children this leaves the questions of equalization of net family property, child support and spousal support. I must also deal with the issue of retroactive child and spousal support and determine what the husband should have paid on account of these obligations, and what he actually paid.
Equalization of net family property
[76] In order to determine each party’s net family property, I must identify and value each party’s assets at the date of separation. I must subtract from those values the value of any debts or liabilities either owed at the date of separation. Next, I must subtract the net value of any assets either had at the date of marriage. Finally, I must subtract the value of any of the assets owned at the date of separation that came to the titled spouse by way of gift or inheritance from a third party. The number remaining at the end of this arithmetic exercise is the party’s net family property. The value of the parties’ respective net family properties is then equalized between them.
[77] At the date of separation the husband still owned the Suez Canal St. apartment in Cairo, he retained all the household contents in Egypt and Dubai, and the wife retained all the contents of the home the parties established in Toronto. There were two vehicles, a Mercedes in Dubai and a Pontiac purchased for cash in Toronto. The Mercedes remained in Dubai where the husband or his brother continued to use it. The Pontiac remained in Toronto in the wife’s possession.
[78] The wife had a coin and stamp collection which she had owned at the date of marriage (although it apparently remains in Dubai, or was stolen). She also had jewellery which she owned at the date of marriage, plus additional items purchased during the marriage. Absent any other evidence, I accept the wife’s position that the coin and stamp collection were valued at about $10,000 and her jewellery was worth about $6,000 on valuation day. I reject the husband’s evidence that he purchased “hundreds of thousands” of dollars worth of jewellery for the wife during the course of the marriage. Given his evidence as a whole, this statement is not credible.
[79] At the date of separation, the bulk of the parties’ remaining assets comprised bank accounts and GICs. Some were joint and some were held individually. The wife takes the position that the joint accounts should be treated on the basis of which of the parties actually had the use of the funds post-separation. The husband does not disagree with this approach. The difficulty with determining the value of the various accounts each party held individually is that the husband failed completely to provide any documentary evidence of what his personal accounts held at the date of separation. He bears the onus of proving these sums. The documents he produced are virtually useless in determining the true value of his assets at valuation day.
[80] The wife has produced many bank statements for the husband’s accounts showing significant funds in them shortly before the date of separation. The husband tried to explain away these account balances, alleging they represented money borrowed from his father, or transferred to other accounts. He produced no independent evidence to corroborate this.
[81] The husband also suggested that some or all of the funds in his various accounts were really his father’s money. The husband says that his father wanted him to invest his money in Dubai because he could get a higher rate of return on his money. The husband says that his father could not open a bank account in Dubai because accounts are restricted to people who reside there. The evidence does not bear this out. First, for example, the ARAB Bank was paying only 0.5% on investments, hardly a good rate of return. Also, the husband provided no evidence to support his contention that it was impossible for his father to open an account in Dubai.
[82] The husband also suggested it was impossible for him to obtain banking records from Dubai after his employment there ended. I find this very hard to believe. I draw an adverse inference from the husband’s complete failure to produce documentary evidence of his various bank account balances at valuation day, and accept the wife’s evidence of their value. I have entered these values in the net family property statement attached to these reasons as Schedule “A”.
[83] The other significant asset at separation was the apartment on Suez Canal Street in Cairo. The husband sold the property to his parents of or his mother shortly after the separation. Although there are documents supporting an actual sale transaction, the husband testified that no money actually changed hands, because as he saw it, the Suez Canal apartment either really belonged to his mother/parents, or he owed them a great deal of money and the transfer was in satisfaction of the debt.
[84] The wife takes the position the sale was at less than market value. While a non arms length sale of this nature raises some questions as to value, the wife has produced no admissible evidence to support her contention that the sale was at undervalue. I therefore accept the value of the Cairo apartment at $108,000 at valuation date.
[85] The husband takes the position that the Suez Canal St. apartment came to him by way of a gift, and is therefore excluded property under the Family Law Act. I agree. The property was not the parties’ matrimonial home since it is neither situate in Ontario, nor the property in which the parties ordinarily occupied by them at the date of separation.[^2] I am satisfied that the husband’s mother or his parents provided the husband with the funds to purchase the Suez Canal St. apartment.
[86] For the purposes of equalization of net family property it does not matter what the value of the apartment was at valuation day since the property is excluded from the calculation of the husband’s net family property as a gifted asset.
[87] Each party claims to have had assets at the date of marriage. In the wife’s case, she claims to have some savings, jewellery worth about $5,000 and a collection of stamps and coins, some dating back to 1900. She puts a value of about $10,000 on the stamp and coin collection. She has no documentary evidence to support her savings at the date of marriage. I believe her when she says she had the jewellery and coins and stamps. I am satisfied she has placed a reasonable and conservative value on them. I therefore fix the value of the wife’s date of marriage assets at $15,000.
[88] The parties also had some furniture and vehicles at the date of separation. In Dubai, the wife had a Mercedes automobile the husband had purchased for her as a gift. He took responsibility for paying the debt on the car. Although the wife tried to persuade me the vehicle was registered in the joint names of the parties, it seems to me only the debt was in both their names. The car was relatively new at the date of separation. Husband suggests it was worth about $24,000 at the date of separation. I accept this value.
[89] Although the Mercedes is registered in the wife’s name, it remains in Dubai, apparently in the possession of the husband’s brother. The husband continued to use the vehicle after the wife and children moved to Toronto. He, or his brother, have paid the loan on the car. The wife has attempted to transfer the car into the husband’s name, or to sell it. She can do neither easily since she has no ability to return to Dubai. I will therefore require the wife to transfer the car to the husband, and will include its value on his side of the net family property calculations since he has effectively had exclusive use of it since the separation. Similarly, even though the debt on the car is joint, I include the entire debt as the husband’s since it is he who has paid it.
[90] In Toronto, the parties purchased a 2006 Pontiac G6 when they arrived in Canada. That car is now in the wife’s name, and she has had the use of it. The parties agree its value at valuation day was $15,000.
[91] The contents of both the Suez Canal St. apartment and the Dubai apartment remained under the husband’s control. He claims to know nothing about what happened to the contents of the Suez Canal St. apartment. He says he left the apartment vacant for the whole time the parties lived in Dubai, and simply had the furniture and furnishings covered with dust cloths. As to the contents of the Dubai apartment, he says he donated everything to charity.
[92] What is clear is that the husband has had possession of all the household furnishings in Cairo and Dubai, and the wife retained all the brand new household contents the parties purchased when they came to Canada. On a somewhat arbitrary basis, I would value all the furniture equally and assign the Cairo and Dubai furnishings to the husband and the Toronto furnishings to the wife.
[93] The largest issue in calculating net family property is the husband’s claim that he owed significant sums of money to family members, particularly his father, and that he repaid them all prior to the date of separation thus reducing his bank balances effectively to zero. He takes the position he had savings and bank accounts totalling only $17,800, according to the net family property statement he filed at trial.
[94] I simply do not accept the husband’s evidence. As I have said, he completely failed to produce bank statements for his various accounts at the date of separation. The wife went to great lengths to reconstruct what was likely in the various accounts at the date of separation. She cross-examined the husband very effectively on his claims to have repaid debt and closed his accounts because they had zero balances at valuation day. He proffered no credible independent evidence to support his position on his bank accounts or money owed to family members. His evidence was confusing and contradictory. I accept the wife’s reconstruction of the husband’s financial circumstances at valuation day as the facts at that time, on the balance of probabilities.
[95] I have attached at Schedule “A” to these reasons a net family property statement setting out the net family property of each party, including my findings on the values of various bank accounts and investments. As a result, the husband owes the wife an equalization payment of $106,677.86.
Child support
[96] The current child support order is based on father paying table support for both children even though father has access to Mark more than 40% of the time. The parties’ agreement provides that once mother earns more than $40,000 per year, the parties may revisit the issue of child support for Mark.
[97] Mariam lives with her mother and sees her father only occasionally. There is no question father should pay table support for her.
[98] Mark resides with his father on a schedule of two days one week, and four days the following week. He lives with his father six days out of every fourteen, thus meeting the threshold of father having access to him more than 40% of the time. Since mother now earns more than $40,000 contemplated in the parties’ Minutes, I see no reason to depart from the general setoff rule for shared custody. The fact the Minutes say the mother has sole custody of the children does not detract from the fact that father has access to Mark more than 40% of the time. This engages s.9 of the Child Support Guidelines.
[99] The Supreme Court of Canada in Contino [^3] held that in cases of shared custody, the court should begin first with a setoff between the two table amounts owed by each parent, and then consider the factors set out in section 9, including whether there are any increased costs as a result of the shared arrangement that would alter the setoff. I have no evidence here from either parent concerning any increased costs as a result of the shared arrangement for Mark. Having also considered the financial circumstances of both parties and the children I conclude that a setoff is appropriate as far as Mark is concerned.
[100] The Child Support Guidelines do not specifically deal with the situation where the parents have two children, and one parent has custody of both children, with one child residing primarily with the custodial parent, but the other child living in a situation where the non-custodial parent has access to that child more than 40% of the time.
[101] Father’s counsel presented me with a DivorceMATE calculation purportedly showing how child support should be calculated in these circumstances. The calculation does not, however, set out the legal basis on which the calculation is made. It appears to have applied a setoff amount for two children. This approach is incorrect, since a setoff would only apply to Mark.
[102] Given the clear wording of the Child Support Guidelines, it seems to me I should award table support for Mariam, on the basis that she is one child in the custody of her mother, and apply a setoff of table support for one child for Mark, who spends more than 40% of the time with his father.
[103] On this analysis, based on father’s current income of $74,500 he should pay $677 for Mariam, which is table support for one child. As far as Mark is concerned, there should be a setoff between the parties of table support for one child. Father would pay $677 for Mark. Based on mother’s current income of $42,500 she should pay table support of $384 for Mark. The net difference is $293, which is the amount father should pay for Mark.
[104] Mother started to earn more than $40,000 in June of 2012. Therefore, commencing July 1, 2012 father will pay $677 per month in table support for Mariam, and $293 per month for Mark (the setoff amount) for a total of $970 per month for both children.
[105] Since I have no evidence of any section 7 expenses for either child, there will be no order in that regard.
Spousal support
[106] Sachs J made a temporary order for spousal support in July, 2011 in the amount of $850 per month. At the time the order was made, the husband was earning $63,000 and the wife was not employed, but was retraining. Husband now earns $74,500 and wife earns $42,500. The issue is whether spousal support should continue now that the wife is employed. The wife was quite candid in her comments that she really did not know if she would still be entitled to spousal support. She left the issue to the court’s discretion.
[107] Father’s counsel presented me with calculations under the Spousal Support Advisory Guidelines (SSAGs) based on a shared custody arrangement for both children. They show a range of spousal support between $0 and $316 per month. Father’s counsel also prepared SSAGs calculations based on father paying full table support for two children. On this analysis, the range of spousal support is between $0 and $216 per month. On both scenarios the duration of spousal support is “indefinite”, but for a minimum of 7 years and maximum of 14 years from the date of separation.
[108] Here, the parties have been separated for just over four years. It seems to me that the husband has not yet fulfilled his spousal support obligations. An order of $200 per month is appropriate in all the circumstances. This order will commence with effect July 1, 2012, and is subject to review in January 2015. Husband is to have credit for all spousal support payments he has made since July 1, 2012. Any overpayment will be applied against arrears I find owing pursuant to the wife’s retroactive support claims.
Retroactive support claims
[109] The wife claims retroactive support for both herself and the children. she commenced her first proceeding in the OCJ at the time of separation. Husband has clearly had notice of her support claims since then.
[110] The wife takes the position that the husband should have paid child support pursuant to the order of Brownstone J until Sachs J made an order in this proceeding with effect August 1, 2011. I disagree with this approach for a number of reasons.
[111] First, the proceeding in the OCJ was dismissed as abandoned on December 9, 2009. I fail to see how a temporary order in that proceeding can survive the dismissal of the action on which it was dependent. At best, therefore, the original order can continue only to the end of 2009.
[112] Second, it is clear although the husband was earning at the level the court fixed when the original order was made in the OCJ, he did not continue to earn that income until the Sachs J order. It would be manifestly wrong to base his support obligations on an assumption that was clearly incorrect.
[113] The husband suggests that I should retroactively vary Brownstone J’s order, or replace it with a final retroactive order in this proceeding that would have the same effect. He says that in 2009 his total income as shown on line 150 of his income tax return was only $12,082, and I should therefore base his support obligations on this figure. I disagree with the husband’s position as well.
[114] The husband took no steps to vary the Brownstone J order, even after he had lost his job in Dubai. Instead, he simply did not pay. I am told he prepared a motion to change, but did not pursue it. It seems to me he bore the burden of doing so. He should not now be able to accomplish the same thing after such a lengthy delay. Accordingly, I would leave the Brownstone J order in place until December 2009, particularly since there was no spousal support component to the order, and the wife clearly had a right to spousal support at that time and the husband had the ability to pay it.
[115] What is clear, however, is that in 2010 the husband’s income was significantly lower. His line 150 income for that year was $8,742. He says again that his support obligation should be based on this figure, and should therefore be zero. I agree. Therefore, for calendar year 2010 the husband was not obliged to pay either spousal or child support.
[116] The husband first became employed in January of 2011. As I have said, he initially began working at a wage of about $35,000, which rose to $63,000 the following month. In 2011 the husband’s tax return shows total income of $59,843. Since this is not far off the figure Sachs J used in her order commencing August 1, 2011. I would fix father’s support obligation for all of 2011 at the same figures as Sachs J ordered. Therefore, from January 1, 2011 until and including July 31, 2011 father will pay $944 per month in child support and $850 per month in spousal support. Since I have no evidence of what, if any, section 7 expenses were incurred during this period, I make no order in relation to section 7 expenses.
[117] In summary therefore, husband’s support obligations, including retroactive support, are to pay the following:
a) For the period December 1, 2008 until December 31, 2009 child support of $3,368 per month as ordered by Brownstone J;
b) For the period January 1, 2010 to and including December 31, 2010 no child or spousal support is payable;
c) For the period January 1, 2011 to and including July 31, 2011 table support of $944 for two children, and $850 per month spousal support;
d) For the period August 1, 2011 to June 30, 2012 support as set out in the order of Sachs J, namely table support for two children of $944 per month, $168 per month for section 7 expenses and $850 per month spousal support;
e) Commencing July 1, 2012 support for two children of $970 per month ($677 for Mariam and $293 for Mark) and spousal support of $200 per month. These figures are based on the husband’s income of $74,500 and the wife’s income of $42,500. Spousal support to be reviewed in January 2017.
[118] The husband is to be given credit for payments he has made on account of child and spousal support for the period up to August 1, 2011 when the order of Sachs J began. He is also to be given credit for any overpayment of spousal support since July 1, 2012.
[119] The wife had calculated that she received $17,134.66 for the period up to August 1, 2011. At trial, she was presented with two cancelled cheques made out to her for an additional $2,000. She acknowledges that this amount should be counted toward arrears as well. She simply forgot about these cheques.
[120] The husband also produced another cheque, payable to the wife. While he did not produce the front and back of this cheque, his bank account does show the cheque being cashed. I find it more likely than not the wife received this money as well.
[121] Last, the husband claims credit for cash he says he had his uncle give to the wife. The uncle confirmed giving the money to the wife. Although she suggests the uncle gave her the funds because he felt badly she had slipped and fallen on his front steps, this makes little sense to me, particularly because there was apparently an insurance claim for the wife’s injuries. Again, I find it more likely than not the money was paid on account of support. The cash payments totalled $3,000. Accordingly the husband is to be credited with the sum of $23,134.66 on account of his support obligations to and including July 31, 2011.
Conclusion:
[122] For these reasons, a final order will issue in the following terms:
a) Husband will pay wife an equalization payment of $106,677.86. Wife will forthwith transfer her interest in the Mercedes to the husband or as he otherwise directs;
b) Commencing July 1, 2012 husband will pay child support of $970 per month ($677 for Mariam and $293 for Mark), based on husband’s income of $74,500 and wife’s income of $42,500;
c) Commencing July 1, 2012 husband will pay spousal support of $200 per month, to be reviewed in January 2015;
d) Husband to pay retroactive support, calculated as follows:
• December 1, 2008 until December 31, 2009 child support of $3,368 per month;
• January 1, 2010 to and including December 31, 2010 no child or spousal support is payable;
• January 1, 2011 to and including July 31, 2011 table support of $944 for two children, and $850 per month spousal support;
e) The order of Sachs J remains in place for the period August 1, 2011 to June 30, 2012;
f) Husband is to have credit for all payments made on account of retroactive support. The husband’s credits are fixed at $23,134.66 for the period to and including July 31, 2011. Husband is also to receive credit for any overpayment he has made on account of spousal support since July 1, 2012.
g) Support deduction order to issue.
[123] If the parties cannot agree on the issue of costs, they may make brief written submissions to me. The wife’s are to be delivered within three weeks of the release of these reasons, with the husband’s to follow within three weeks of being served with the wife’s submissions. The parties are to provide particulars of any offers that might bear on the issue of costs, together with details of any lawyer’s years of experience and actually billing rate.
MESBUR J.
Released: 20121221
COURT FILE NO.: FS-10-358298
DATE: 20121221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MANAR GAMIL GAYED SHOUKRI
Applicant
- and -
HANI WADIE GOURGUI MISHRIKI
Respondent
REASONS FOR JUDGMENT
Mesbur J.
Released: December 21, 2012
SHOUKRI v MISHRIKI
SCHEDULE “A” TO REASONS FOR JUDGMENT
NET FAMILY PROPERTY STATEMENT
| ITEM | HUSBAND | WIFE |
|---|---|---|
| 1. Assets | ||
| Apartment Suez Canal St., Cairo, Egypt | $108,000.00 | |
| Household contents in Cairo and Dubai | $10,000.00 | |
| Household contents in Toronto | $10,000.00 | |
| Mercedes | $24,000.00 | |
| Pontiac | $15,000.00 | |
| Coin and Stamp collection | $10,000.00 | |
| jewellery | $6,000.00 | |
| Bank of Nova Scotia joint account (***-24) | $5,572.89 | |
| Bank of Nova Scotia joint account (***-27) | $17,840.00 | $235.70 |
| Bank of Nova Scotia joint with sister (***-043) | $685.83 | |
| Citibank Dubai | $27,148.09 | |
| TD Bank Dubai | $1,046.06 | |
| US joint investment account (Bank of Nova Scotia *** 228) | $50,922.70 | |
| US investment (Bank of Nova Scotia sole) | $9,277.91 | |
| GIC (husband retained) | $22,807.00 | |
| ARAB Bank, Dubai (*** -600) | $41,768.00 | |
| Citibank Dubai (** 25-76) | $31,887.00 | |
| HSBC Dubai (** 7396) | $85,765.00 | |
| TOTAL 1. | $402,267.61 | $75,688.57 |
| 2. Debts and Liabilities | ||
| Mercedes loan | $19,950.00 | |
| Bank of Nova Scotia visa | $273.33 | |
| TOTAL 2. | $20,223.33 | $0.00 |
| 3. Property Owned at Marriage | ||
| jewellery | $5,000.00 | |
| coins/stamp collection | $10,000.00 | |
| TOTAL 3. | $0.00 | $15,000.00 |
| 4. Excluded Property | ||
| Apartment in Cairo | $108,000.00 | |
| TOTAL 4. | $108,000.00 | $0.00 |
| 5. Net Family Property (Total 1 minus Totals 2, 3 and 4) | $274,044.28 | $60,688.57 |
| 6. Equalization Payment | ||
| Husband pays to Wife | $106,677.86 |
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[^1]: Exhibit 27 at trial [^2]: See sections 18(1) and 28(1) of the Family Law Act [^3]: Contino v. Leonelli-Contino 2005 SCC 63, 2005 S.C.C. 63