COURT FILE NO.: FS-09-350889
DATE: 20140714
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Carmen Shoukralla, Applicant
AND:
Michael Shoukralla, Respondent
AND:
Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung, Respondents
BEFORE: Justice Croll
COUNSEL: G. William McKechnie Q.C., for the Applicant
Michael Shoukralla, self-represented
L. Israel, for the Children’s Lawyer
V. Opara, for the Respondents, Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung
HEARD: September 16, 17, 18, October 29, and November 28, 2013; March 12, April 8, and June 6, 2014
REASONS FOR JUDGMENT
[1] As is apparent from a review of this file, and from the companion summary judgment motion decision being released today, this case has had a long and difficult history.
[2] The Applicant Carmen Shoukralla (the Applicant) and the Respondent Michael Shoukralla (the Respondent) were married on March 19, 1994. They separated 15 years later, on June 26, 2009. They have three children: Michelle Michael Shoukralla, born July 18, 1994; Diadem Jolia Shoukralla, born July 1, 1997; and Samy Cezar Shoukralla, born March 18, 2000.
[3] The Applicant seeks the following relief:
i. sole custody of Michelle Michael Shoukralla, Diadem Jolia Shoukralla and Samy Cezar Shoukralla;
ii. child support in the amount of $685 per month based on an imputed income of $35,000 annually, retroactive to July 2009;
iii. an equalization payment in the amount of $269,706.37 less the advance payment of $99,474.84 received pursuant to court order;
iv. the sum of $30,394 as reimbursement for advances made on behalf of the Respondent; and
v. an order that the property at 2544 Eglinton Avenue West, Toronto, be sold and that the proceeds be available to satisfy the equalization payment and the arrears of child support, and to secure future child support.
[4] The Children’s Lawyer supports the Applicant’s request for sole custody.
[5] The Respondent seeks sole or, in the alternative, joint custody of the son Samy Cezar Shoukralla only. As well, the Respondent seeks spousal support and submits that as his net family property is zero, there should be no equalization payment.
Custody
[6] The three children live with the Applicant, and have lived with her since separation. Pursuant to a consent order dated October 14, 2009, the Office of the Children’s Lawyer was appointed to represent Diadem and Samy. That consent order also provides for access to the Respondent on alternate weekends, and every Tuesday after school until Wednesday morning. The Respondent exercises this access with respect to Samy but has not had access visits with either daughter for some 2 ½ years before the start of this trial. It is not in dispute that both daughters have chosen not to see the Respondent.
[7] Pursuant to an order dated December 6, 2012, and on a without prejudice basis, the Applicant was granted interim sole custody of the three children. It was the Applicant’s evidence that she has not had a conversation with the Respondent since 2011, and that he has paid no child support since separation. The Respondent submits that he spends significant money on buying things for Samy—that he takes him places and buys him everything he wants, such as toys, a computer, Xbox and other computer games.
[8] The children are all doing well. Michelle, who is 19 years old, is studying biochemistry at York University. Diadem, age 16, is a good student, in grade 11 at Humberside Collegiate. Samy, who is 13 years old, had experienced some learning difficulties. After the learning difficulties were identified by his school’s Identification Placement and Review Committee as Attention Deficit Hyperactivity Disorder (ADHD), the Applicant moved Samy out of the French stream at the school he was then attending and into the English stream at a school that was closer to their home. The Applicant also arranged for a tutor for Samy. These steps have helped Samy and as of September 2013, he was doing quite well in grade 8 at Beverly Heights Public School. There were several meetings with school professionals to deal with Samy’s issues, and while the Applicant was unable to recall if the Respondent had attended any such meetings, the decision to change Samy’s schooling was made by the Applicant alone. Similarly, the Applicant stated that the Respondent was never at any medical appointments for the children, and that she had no knowledge of him being involved with their doctors.
[9] The Office of the Children’s Lawyer had arranged counseling for the parents and three children at the Hincks-Dellcrest Center, and the Applicant participated in these sessions. It appears that the Respondent’s participation in counseling was limited to dealing with Samy.
[10] The Respondent filed three letters with the court that were written by Samy. The gist of these letters is that Samy wants to spend equal time with both parents.
[11] Given the Respondent’s submission at trial that he takes no position on the custody of Diadem, coupled with his evidence about his relationship both his daughters, there is no issue regarding the custody of Diadem. The Applicant shall have sole custody of Daidem, with access to the Respondent as directed by Diadem.
[12] Section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA), provides that custody shall be determined on the basis of the best interests of the child. Subsection 24(2) sets out a number of factors that are relevant when considering a child’s best interests.
[13] In particular, s. 24(2)(c) directs the court to consider, among other things, the length of time the child has lived in a stable home environment. The Applicant has had de facto sole custody of Samy since separation in 2009, and legal custody since December 6, 2012. It is the Applicant who takes daily care of Samy and who took the necessary steps to ensure that Samy’s ADHD was addressed and that Samy progressed from being at risk academically to being successful academically.
[14] Subsection 24(2)(d) of the CLRA directs the court to consider the ability and willingness of each person applying for custody of the child to provide the child with guidance and education. In a multicultural city such as Toronto, this guidance must foster tolerance and a respect for others, and discourage narrow-mindedness, chauvinism, and labeling based on gender and religion. It can be inferred from the personal comments the Respondent directed towards counsel for the Office of the Children’s Lawyer, based on her religion, that his ability to provide guidance to Samy will be negatively influenced by his own biases.
[15] It is also not in dispute that the Applicant and the Respondent do not speak to one another. Indeed, it is the Applicant’s evidence that they have not had a conversation since 2011, that the Respondent was abusive towards her, and that she is afraid of him. Given the Respondent’s evidence, his demeanor and his disrespect for court orders (which will be addressed later in these reasons), I accept the Applicant’s evidence that she could not cooperatively parent with the Respondent. In order to make an order of joint custody, “[t]here must be some evidence before the court that, despite their differences, the parents are able to communicate effectively with one another” (Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620, at para. 11).
[16] Further, the Respondent has not provided a plan for Samy’s care and upbringing. Rather, his submissions seem to be grounded in a demand that he be entitled to the same amount of time with Samy as the Applicant has, and not in the best interests of Samy. In contrast, the Applicant has a proven track record of caring for Samy and addressing his needs. (See s. 24(2)(e) of the CLRA).
[17] Notably, the letters from Samy that the Respondent filed as exhibits at trial trigger questions about his ability to recognize what is in Samy’s best interests. In the letter dated May 22, 2012, Samy asks that his father be “granted joint custody”, and that the motion be “granted, final and sealed”. In the letter dated November 28, 2012, Samy refers to his father having “equal custody” over him; in the letter dated September 14, 2013, he asks for “shared custody” between his parents. While the Respondent denies that he orchestrated these letters, and claims that Samy wrote them spontaneously, I do not accept this evidence. It is apparent that the terms used are not terms with which a 12 or 13-year-old boy would be familiar. These letters illustrate the Respondent’s decision to involve the parties’ son in this litigation, despite the advice of the Children’s Lawyer. In fact, the Respondent’s position was clear: he does not accept the involvement of the Children’s Lawyer; he believes that counsel’s questions to Samy were unfair; and that in any event, he believes that Samy’s answers to counsel were untrue. In my view, by entangling Samy in the custodial dispute, the Respondent has shown that he prefers his own interests to that of his son.
[18] I do not doubt that the Respondent loves his son Samy. However, that is not the test for an award of custody. The Respondent has taken no steps to increase access since the court order of October 2009. In my view, the Respondent’s current impetus for seeking custody is driven by his own self-interest, his desire to hurt the Applicant, and not what is in Samy’s best interests. While the Respondent denies that he favours his son over his two daughters, he has made no efforts to connect with his daughters in over two years. He submits that his income is nil, and as such, has not paid child support since separation. The Respondent has not put forth any compelling reasons in support of his request for sole or joint custody, especially given the history of the parties’ parenting arrangements, the Applicant’s apprehension about dealing with the Respondent and the parties’ inability to communicate with one another. I am satisfied that it is in Samy’s best interests for sole custody to be granted to the Applicant, with access to the Respondent to continue on Tuesday evenings and alternate weekends. The Applicant and the Respondent shall share holiday access of Samy.
Equalization
[19] On the date of separation in June 2009, the parties owned real estate and two older automobiles, and had some bank accounts.
[20] The real estate consisted of the matrimonial home at 22 Rowntree Avenue in Toronto and two other parcels: 2544 Eglinton Avenue West, Toronto, and 211 Fourteenth Street, Simcoe.
Matrimonial home at 22 Rowntree Avenue, Toronto
[21] The matrimonial home was sold on October 11, 2011, for a sale price of $500,000. After deductions for legal fees, the outstanding mortgage, outstanding taxes, real estate commission and executions against the Respondent, the sum of $107,180.79 was held in trust. By order of Kiteley J. dated December 6, 2011, the Applicant received the balance held in trust as an advance on the equalization payment from the Respondent. (While the order of Kiteley J. states that $99,474.84 was held in trust, the Applicant’s closing submissions have revised this amount to $107,180.79).
[22] There were issues with the home before it was sold that necessitated court intervention. The evidence shows that these issues stemmed entirely from the intransigence of the Respondent.
[23] Pursuant to the consent order of October 14, 2009, the Respondent was permitted to stay in the matrimonial home, and he was to be responsible for all taxes, utilities and the mortgage. Pursuant to an order of Grace J. dated November 25, 2010, the parties were directed to address the terms of the listing and sale of the matrimonial home. Pursuant to an order of Czutrin J. dated January 11, 2011, the matrimonial home was to be sold. The Respondent delayed listing the home for some five months. As a result, it was necessary for the Applicant to bring yet another motion, whereby Sachs J. granted an order dated June 23, 2011, that dispensed with the Respondent’s consent and signature for the execution of all documents necessary to facilitate the listing and sale of the home.
[24] The Respondent lived in the matrimonial home from June 26, 2009 until March 4, 2011. During the time that, he allowed the home to deteriorate. There were, for example, three large raccoon entries on the roof and the roof leaked, which damaged the floors and ceiling. The Applicant spent $7,705.95 of her own funds to make the necessary repairs so that the home would be saleable.
[25] As well, during the period from June 2009 to March 2011, the Respondent did not pay any of the realty taxes as required. These taxes totaled $7,940.16.
[26] The Respondent’s five-month delay in listing the home, from February to June 2011, resulted in an additional $1,640.89 of realty taxes. The Applicant’s evidence establishes that the Respondent owes the Applicant $10,139.06 on account of realty taxes, calculated as follows:
Realty taxes from June 26, 2009 $2,386.89
(house occupied by Respondent)
Realty taxes 2010 $4,760.05
Realty taxes January & February 2011 $793.22
Subtotal (realty taxes) $7,940.16
Additional taxes due to delay in listing $1,640.89
Taxes from June 23, 2011 listing to $558.01
October 4, 2011 closing $1,116.03 (50%
of $1116.03) ---------------
Total $10,139.06.
[27] In addition, while occupying the home, the Respondent did not pay all the mortgage payments as required. In particular, he did not pay the December 2010 mortgage payment of $861.97 or the January 2011 mortgage payment of $861.97. During the five-month period when the Respondent delayed the listing of the home, an additional $4,322.25 in mortgage payments was incurred.
[28] The Applicant submits that this results in the Respondent owing the Applicant $7,668.95 on account of mortgage payments, calculated as follows:
December 2010 $ 861.97
January 2011 $ 861.97
Mortgage from January to June $4,322.25
(5 months during which the
Respondent withheld the listing
Agreement)
From June 30 to the date of
closing, the Applicant paid
mortgage payments totaling
$3,245.53 (50% of $3,245.53) $1,622.76
Outstanding mortgage payments $7,668.95
2544 Eglinton Avenue West, Toronto
[29] Pursuant to the order of Czutrin J. dated January 11, 2011, the Respondent was prohibited from selling, encumbering or registering any mortgages on any properties without further court order.
[30] Despite this order, in February 2013, the Respondent listed the Eglinton Avenue West property for sale for $850,000. In March 2013, he reduced the price to $799,000. He apparently received a conditional offer to purchase this property for between $750,000 and $800,000 from a James O’Malley. When this prospective purchaser did a Phase 1 Environmental Site Assessment, it was discovered that there is the potential for asbestos containing materials to be present in the building. As a result, the transaction did not proceed.
[31] However, on the second day of trial, the Respondent revealed during cross-examination that he had transferred the Eglinton Avenue West property to three purchasers on August 30, 2013, for $350,000. This was the first time that the Applicant or her counsel became aware that the Respondent no longer owned this property. The transfer occurred one week after the trial management conference on August 23, which the Respondent did not attend, and some two weeks before this trial commenced. While the Respondent stated that he was unable to attend the trial management conference because he was in hospital, he did not advise the court, the Applicant or her counsel of his situation. No medical evidence has been provided to explain his non-attendance at the trial management conference.
[32] It was the Respondent’s evidence that it was necessary to sell the property quickly because the City of Toronto was threatening to sell the property by auction due to outstanding taxes. The Respondent provided no documentation to support what he says was the City’s position.
[33] The three purchasers to whom the Respondent sold the Eglinton Avenue West property, Luzviminda Jardenil Bautista, Gina Tumulak Aung and Margelyn Delfin Dumolong, are all tenants of the building. It is alleged that Ms. Bautista is or was the Respondent’s girlfriend; other evidence suggests a close personal relationship between the Respondent and Ms. Aung. The Applicant sought to serve a notice of motion to question Ms. Bautista; however, she was unable to do so. In an affidavit of service dated November 22, 2011, the process server Christian Paesch indicates that when he attended at Ms. Bautista’s apartment at 2544 Eglinton Avenue West, the adult male who answered the door advised that Ms. Bautista did not live there. According to Mr. Paesch, Ms. Bautista refused to make arrangements to accept service and the adult male advised her by telephone not to accept the package. Pursuant to the request to admit dated January 22, 2013, Mr. Shoukralla is deemed to admit that he frustrated service of a notice of motion to question Ms. Bautista.
[34] According to the Respondent, he ended up with nothing on the sale of the Eglinton Avenue West property, after payment of outstanding taxes, utilities and funds owed to Ms. Bautista on account of earlier loans. At trial, the Respondent provided no documentation of any loans to him from Ms. Bautista.
[35] In this regard, the Respondent submits that Ms. Bautista had loaned him $290,000, which increased to $300,000 or $330,000 with interest. Ms. Bautista is employed as a caregiver, yet according to the Respondent, she was able to loan him this significant amount because she received contributions from her friends and relatives. However, notwithstanding this apparent pooling of funds, the Respondent insisted that Ms. Bautista’s participation was as a lender, not an investor.
[36] Interestingly, the Respondent’s financial statement dated April 4, 2011, which is the most current financial statement he has filed, shows a personal loan from a private lender, with $290,000 owing on valuation date and $150,000 owing on April 4, 2011. The Respondent had counsel at the time he completed the April 2011 financial statement, yet his evidence at trial was that the information about the balance remaining was a typographical error.
[37] Throughout his evidence, the Respondent insisted that the $350,000 he received for the Eglinton Avenue property was a fair price, given the environmental issues.
[38] As stated, the relief originally sought by the Applicant includes an order that 2544 Eglinton Avenue West be sold and the proceeds be available to satisfy the equalization payment and the arrears of child support, and to secure future child support. Given the disclosure at trial that the Eglinton Avenue West property had already been sold, the Applicant brought a motion during the trial for a certificate of pending litigation to be registered on title. The order was granted on September 18, 2013.
[39] In addition, in light of the eleventh hour revelation that the Eglinton Avenue West property had been sold, the Applicant sought to adjourn the trial in order to bring a motion to add Ms. Dumolong, Ms. Bautista, and Ms. Aung as parties, and a summary judgment motion to set aside the sale to them. The adjournment was granted. At trial, the Applicant’s counsel also served the Respondent with a notice of motion for a contempt motion.
[40] Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung were added as parties pursuant to an order made on October 29, 2013.
[41] Also on October 29, 2013, the Applicant was granted leave to amend the Application to include the following relief:
8(b) An Order to set aside a transfer dated August 30, 2013, made between Michael Shoukralla and Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung and registered at the Land Registry Office at Toronto on August 30, 2013, as instrument number AT3395222 for the sale lands and premises known municipally as 2544 Eglinton Avenue West, Toronto.
8(c) An injunction restraining Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung from selling or otherwise dealing with the said lands.
The conveyance referred to in paragraph 8(b) was made with intent to defeat or defraud the Applicant of her just and lawful claims herein.
Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung had, at the time of the conveyance, notice and knowledge of the intent to defeat or defraud the Applicant and acted in bad faith.
[42] On October 29, 2013, I made a finding that Mr. Shoukralla was in contempt of the court order made by Czutrin J. on January 11, 2011. He was sentenced to 90 days imprisonment for that contempt on November 28, 2013. The reasons for that order and sentence are set out in the reasons provided on those days, and excerpts from those reasons are included in the companion summary judgment motion decision released today.
[43] The Applicant brought a motion for summary judgment with respect to the relief sought against the Respondents Dumolong, Bautista and Aung, in particular, to have the transfer between the Respondent and Margelyn Delfin Dumolong, Luzviminda Jardenil Bautista and Gina Tumulak Aung set aside. Pursuant to reasons set out in the companion summary judgment motion decision, summary judgment was granted and the transfer was set aside.
211 Fourteenth Street, Simcoe
[44] Pursuant to an order of Aston J. dated August 25, 2011, it was agreed on consent that in lieu of a formal appraisal of the Simcoe Property, if sold for more than $160,000, as stated in the letter of opinion obtained, the Applicant would be entitled to ½ of the excess. This property is still owned by the Respondent and accordingly, it has been valued at $160,000 for equalization purposes.
Other assets
[45] In his financial statement dated April 4, 2011, the Respondent does not include any assets at RBC Direct Investing Inc. However, according to a statement from RBC, the Respondent had $190,800 invested on December 31, 2007. There is a subsequent RBC statement that indicates that as of December 31, 2008, the Respondent’s account had a balance of $202,368.78. At trial, it was the Respondent’s evidence that he lost this entire amount between December 31, 2008 and the date of separation, and that nothing was left in the account. That said, the Respondent has provided no evidence to substantiate this loss.
[46] Rule 22(4) of the Family Law Rules, O.Reg. 114/99, provides that, if a party on whom a Request to Admit is served does not serve a response within 20 days, the party is considered to have admitted that the fact contained in the request to admit is true or the document is genuine. The Respondent has been given numerous opportunities to respond and to file his own material, including his own revised and current financial and net family property statements, in order to present his own calculations. The Respondent, however, has filed no documentation since January 11, 2011, when his former counsel was removed on her own motion and he has represented himself. The Respondent has provided no evidence to challenge the accuracy and reliability of the Applicant’s financial statement or her net family property statement. I am satisfied that it is appropriate to apply rule 22(4) in this case by virtue of the Respondent’s failure to respond to the Request to Admit, not just within the statutorily mandated 20 days, but at any time. Consequently, the Respondent is deemed to admit, among other things, the accuracy of the Applicant’s net family property statement, dated January 22, 2013. (See Roscoe v. Roscoe, [2003] O.J. No. 2840 (Sup. C.J.) at paras. 50 and 54).
[47] The Applicant’s financial statement and net family property statement dated January 22, 2013, show her net family property to be $81,214.47. The net family property statement shows the Respondent’s net family property to be $620,627.21. These figures result in an equalization payment owing of $269,706.37.
[48] However, the January 22, 2013 statements do not reflect the undisclosed RBC Direct Investing Inc. asset of $202,368.78. When this amount is added to the Respondent’s side of the ledger, the equalization payment increases to $370,890.76. ($269,706.37 + ½ of $202,368.78).
[49] The Applicant is owed an equalization payment from the Respondent in the amount of $370,890.76.
Child Support
[50] Pursuant to the order of Backhouse J. dated August 23, 2013, the Respondent was deemed to admit that his income was $35,000 by not responding to the Request to Admit with which he was served on January 23, 2013. Backhouse J. ordered child support in the amount of $685 per month for the three children, commencing immediately. As indicated, no child support has been paid since separation.
[51] In this case, the Applicant seeks support since June 26, 2009, the date of separation, in her originating Application. The Respondent has paid no support and has simply ignored his obligations and a court order.
[52] I have considered D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, in which the Supreme Court affirmed the availability of retroactive support. At p. 288, the court noted that generally, such an award should be retroactive to the date when effective notice was given to the other parent. In this case, the parties separated on June 26, 2009 and notice was effectively given through Ms. Shoukralla’s application dated July 21, 2009, less than one month later. Accordingly, support shall issue from July 1, 2009.
[53] Child support is calculated as follows:
Retroactive from date of submissions in
April 2014, to the date of separation:
57 months @ $685 for 3 children
based on payor’s imputed income of
$35,000 annually $39,045
Prospective support: 3 children until
Michelle attains the age of 22 (2017)
36 months @ $685 for 3 children $24,660
2 children from 2017 until Diadem attains
the age of 22 (2020)
36 months @ $508 for 2 children $18,288
1 child from 2020 until Samy attains
the age of 22 (2022)
24 months @ $303 for 1 child $7,272
Total child support paid prospectively $50,220
Discount $50,220 by 2.5% (1255.50)
$48,964.50
Total retroactive and prospective child support $88,009.50
[54] As indicated, the above calculations allow for a discount rate of 2.5%. This discount takes into account the prepayment of child support.
Amounts owing from Respondent to Applicant
[55] The equalization payment ($370,890.76) plus the child support ($88,009.50) totals $458,900.26. To this must also be added the amounts (referred to in paras. 24 to 28) to which the Applicant is entitled to reimbursement. These amounts are as follows:
Unpaid realty taxes on 22 Rowntree for which the $10,139.06
Respondent was responsible as per the order of
Allen J. dated October 14, 2009
Outstanding mortgage payments on 22 Rowntree $7,668.95
for which the Respondent was responsible as per
the order of Allen J. dated October 14, 2009
Repairs to house paid by the Applicant $7,705.95, $3,852.98
Respondent’s 50% share
One half of the execution against the Respondent in $7,657.83
the amount of $15,315.66 paid out the proceeds of
sale of 22 Rowntree ----------------
Total reimbursements $29,318.82
[56] There are as well, various costs orders which the Respondent has not paid. Outstanding costs amount to $6,750.00, based on the following court orders:
Czutrin J. Jan 11/11 $2,500
Kiteley J. Dec 6/11 $2,500
Backhouse J. Aug 23/13 $1,000
Court of Appeal Nov 15/13 $ 750
Total outstanding costs $6,750
[57] In sum, when the equalization payment ($370,890.76), the total child support ($88,009.50), the reimbursement owing from the Respondent to the Applicant ($29,318.82) and the costs outstanding ($6,750) are added together, the Applicant’s claim totals $494,969.08.
[58] From this claim, the Respondent must be credited with ½ of the balance on closing of the sale of 22 Rowntree, $107,180.79, which was paid to the credit of the Applicant pursuant to the order of Kiteley J. dated December 6, 2011. This amounts to credit of $53,590.40 to the Respondent.
[59] The total claim of the Applicant is $441,378.68. ($494,969.08-$53,590.40).
[60] The Respondent has repeatedly stated that he is bankrupt. He has filed no material to support his financial position in any respect. Pursuant to my companion decision in the summary judgment motion, the transfer of 2544 Eglinton Avenue West to the Respondents Dumolong, Bautista and Aung was set aside. The Respondent testified that $350,000 was a fair market price for this property, given the environmental issues. Based on the Respondent’s own evidence, this is the only asset available to satisfy the claims of the Applicant.
[61] The Applicant’s claim of $441,378.68 shall be satisfied in full by the transfer to her of the property at 2544 Eglinton Avenue West. Accordingly, I make an order pursuant to s. 9(1) (d)(i) of the Family Law Act, R.S.O. 1990, c. F.3, the property at 2544 Eglinton Avenue West in Toronto be vested in the name of the Applicant Carmen Shoukralla.
Spousal Support
[62] The Respondent seeks spousal support. Pursuant to the order of Backhouse J. dated August 23, 2014, he is deemed to earn $35,000 a year. The Applicant earns about $20,000 a year. The Respondent is not entitled to spousal support.
Conclusion
[63] The Applicant shall have sole custody of Diadem Jolia Shoukralla, born July 1, 1997, with access to the Respondent as directed by Diadem.
[64] The Applicant shall have sole custody of Samy Cezar Shoukralla, born March 18, 2000, with access to the Respondent to continue on Tuesday evenings and alternate weekends. The Applicant and the Respondent shall share holiday access of Samy.
[65] The Applicant’s total claim amounts to $441,378.68 (consisting of $494,969.08, which includes the equalization payment ($370,890.76), the retroactive and prospective child support ($88,009.50), the reimbursement owing from the Respondent to the Applicant ($29,318.82) and the costs outstanding ($6,750), less ½ of the balance of the sale of 22 Rowntree ($53,590.40)).
[66] Pursuant to the reasons in the companion summary judgment motion decision released today, the transfer from the Applicant to the Respondents Dumolong, Bautista and Aung of the property at 2544 Eglinton Avenue West is set aside. That property shall be transferred to the Applicant. As stated above, pursuant to s. 9(1)(d)(i) of the Family Law Act it is ordered that the property at 2544 Eglinton Avenue West in Toronto be vested in the name of the Applicant Carmen Shoukralla. The Applicant may sign all documents required to give effect to this vesting order on behalf of both herself and the Respondents Shoukralla, Dumolong, Bautista and Aung, without their consent.
Costs
[67] If the parties are unable to agree on the issue of costs, I will receive brief written submissions, plus any Offers to Settle and Bills of Costs, from the Applicant within two weeks of the release of this decision; from the Respondent Michael Shoukralla within a further two weeks; and with a five day right of reply to the Applicant. Submissions shall not exceed five pages in length.
Croll J.
Date: July 14, 2014