ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Osman v. ElKadi, 2015 ONSC 1124
COURT FILE NO.: FS-12-75533-00
DATE: 20150306
BETWEEN:
Gamal Osman
In Person
Applicant
- and -
Manal ElKadi
Hamza Talpur,
for the Respondent
Respondent
HEARD: January 14-16, 19 and 20, 2015
REASONS FOR JUDGMENT
LeMay J.
[1] The Applicant, Gamal Osman and the Respondent, Manal ElKadi were married on November 14, 1991. They separated on June 29, 2008, and there were four children at the time of separation.
[2] The issues at trial were as follows:
a) whether there should be a change in the access arrangements for Sarah, the youngest daughter of the marriage;
b) the calculation of retroactive and ongoing child support, given that the eldest daughter (Salma) is over 18 and not currently enrolled in a full-time educational program;
c) the calculation of spousal support, both in terms of the amount of ongoing spousal support as well as whether there should be any retroactive adjustment to the spousal support amounts previously paid;
d) whether Mr. Osman is entitled to occupation rent from Ms. ElKadi for the time period that she lived in the matrimonial home after the separation and prior to the partition and sale of the matrimonial home;
e) the calculation of an equalization payment on the net family property and the distribution of the remaining proceeds of the matrimonial home;
f) Mr. Osman’s contributions, if any, to section 7 expenses; and
g) the granting of a divorce.
[3] At trial, I was satisfied that the parties, having been separated for more than one year, are entitled to a divorce, which I hereby grant.
Background Facts
a) Prior to the Separation
[4] Mr. Osman and Ms. ElKadi were married in Egypt on November 14, 1991. This was an arranged marriage, and the parties had not known each other for more than a few months prior to the marriage.
[5] At this time, Ms. ElKadi was working as a metallurgical engineer, and had been working for a few months. She stopped working at the time of the marriage, and she and Mr. Osman moved to Qatar. She has not worked since that time except for a short period after her separation when she worked at Dollarama.
[6] The family ultimately had four children: Salma Osman, born April 8, 1993, Yassmin Osman, born May 14, 1996, Laila Osman, born May 20, 2000 and Sarah Osman, born May 19, 2006. There is no issue respecting the custody of these children. Mr. Osman and Ms. ElKadi share custody of Sarah, and the remaining children who are under 18 have been in the sole custody of Ms. ElKadi.
[7] In June of 2000, approximately a month after Laila was born, the family moved to Canada from Egypt.
[8] In approximately 2001, Ms. ElKadi returned to Egypt with the children while Mr. Osman continued to live and work in Canada. He sent some money to Ms. ElKadi during this time period. He testified that he sent approximately $19,000.00 over a four year period. However, Ms. ElKadi’s testified that she received only approximately $8,000.00 in this time period. Resolving this dispute is not relevant to the issues I have to decide in this case, and I decline to do so.
[9] In the first few months, Ms. ElKadi lived in an apartment owned by Mr. Osman. However, she moved out of that apartment and into another apartment that was allegedly owned by her at the time. The question of who currently owns the second apartment is a live issue in this trial, and I will return to it in my discussion of Net Family Property below.
[10] In approximately 2005, Ms. ElKadi returned to Canada with the three children. In May of 2006, Sarah was born.
[11] The family resided in the matrimonial home until the separation, and I now turn to that time period.
b) The Separation and Events to the Sale of the Matrimonial Home
[12] Mr. Osman and Ms. ElKadi separated on or about June 29, 2008. Mr. Osman moved out of the matrimonial home, began renting an apartment, and was paying all of the expenses associated with the apartment. He was also paying all of the expenses, including the mortgage, associated with the matrimonial home.
[13] Mr. Osman has alleged that he was paying child support during this time period, and that this child support was in the form of contributions to the mortgage on the matrimonial home as well as other expenses relating to the house. Ms. ElKadi takes the position that no child support whatsoever was paid during this time period. I will address that issue below.
[14] Between 2000 and 2010, Mr. Osman was an employee of Winners, a retail company. He held a position in the financial department. In approximately February of 2010, Mr. Osman lost his job with Winners. He was given a package as a result of his job loss. I was not advised as to the details of this package.
[15] Sometime after Mr. Osman lost his job, he moved back into the matrimonial home where he lived in a basement apartment, separate and apart from the rest of the family. He continued to live in the basement apartment until the fall of 2010. At trial, there was an issue between the parties about how long (and for what time periods) Mr. Osman was living in the apartment.
[16] Mr. Osman testified that he inhabited the basement apartment for a period of one year between August of 2010 and August of 2011. However, Ms. ElKadi testified that Mr. Osman lived in the basement from February of 2010 to October of 2011. In a previous filing with the Courts, Mr. Osman’s counsel advised that he had lived in the house until October of 2011 (see Exhibit 29, paragraph 47). I find that this was the date that Mr. Osman moved out of the basement apartment.
[17] However, I find that Mr. Osman did not move into the basement apartment in February of 2010, as stated by Ms. ElKadi. I reach this conclusion for two reasons. First, Mr. Osman had his own apartment at this time, and he had a lease for an entire year. Second, renovations had to be done on the basement in order to make it a basement apartment separate from the rest of the house. As a result, I conclude that Mr. Osman lived in the basement apartment in the matrimonial home between August of 2010 and October of 2011.
[18] When he moved out in 2011, Mr. Osman had obtained a new job in the finance area at Loblaws. His income between 2008 and 2013 is outlined in his Notices of Assessment, which were filed as exhibits in this trial. I will discuss those more fully below.
[19] Between 2008 and 2011, neither party had taken any steps to end the marriage or otherwise resolve the outstanding financial issues. Mr. Osman argues that this was because Ms. ElKadi was content to live in the matrimonial home free of rent. Ms. ElKadi states that she was afraid because she did not have the financial resources and could not afford the services of a lawyer.
[20] Mr. Talpur, Ms. ElKadi’s lawyer, also argued that it was implicit that the abuse that was experienced by Ms. ElKadi and what was experienced by her daughters also made her fearful. Given my conclusions on abuse in the section relating to access to Sarah, below, I do not accept Mr. Talpur’s assertions in this regard. Given that Ms. ElKadi testified, it is striking that Mr. Talpur is making this argument by inference rather than by reference to direct evidence of Ms. ElKadi’s motivation.
[21] I find that the parties did not make any changes in the financing of their relationship between 2008 and 2011 because it was mutually beneficial. Mr. Osman had the matrimonial home where he could live rent free in a basement apartment for part of the time, and Ms. ElKadi was able to keep the children in the same school and environment that they had become accustomed to. I note on this point that I also find that the evidence does not support Mr. Osman’s assertion that Ms. ElKadi intended to live in the matrimonial home free of rent. Indeed, given the money that she had for expenses, it would have been very tough for her to manage to feed and clothe four young (and growing) girls. As Donohue J. noted in her endorsement on November 2, 2012, the “financial desperation” of the parties was recognized.
[22] Ultimately, this Application was commenced on or about June 27, 2012. On the record before me, it appears that Mr. Osman’s desire to access the equity in the matrimonial home was a significant motivating factor for the commencement of this litigation.
[23] There have been a number of interim orders made in this case. Two of the key ones were made by Donohue J. in November of 2012. In the first of those orders (on November 2, 2012), Donohue J. directed Mr. Osman to bring the mortgage and taxes on the matrimonial home up to date, so that the asset could be preserved pending a decision on the partition and sale (or other disposition) of the matrimonial home. In the second order (dated November 15, 2012), Donohue J. ordered the partition and sale of the matrimonial home, as well as the distribution of some of the proceeds from the sale of the home.
[24] Approximately $50,000.00 of the proceeds from the sale of the home remains in trust, pending the outcome of the Net Family Property calculations and support arrears calculations flowing from this decision.
[25] Commencing in November of 2012, Mr. Osman was directed to pay child support of $1,553.00 per month, as well as spousal support of $412.00 per month. These amounts were ordered on consent, and were without prejudice to the parties’ positions on retroactivity and quantum, which I will discuss below.
c) Events After the Sale of the Matrimonial Home
[26] Sometime after Mr. Osman moved out of the matrimonial home he, along with his new partner, purchased a property in Mississauga. This property has five bedrooms, as well as a pool and other amenities that were described in Mr. Osman’s cross-examination.
[27] In May of 2014, the parties resolved further issues between them through a series of orders that were marked as exhibits in this trial. Specifically, they resolved the following matters:
a) Ms. ElKadi was to have sole custody of Laila, and that Laila would be able to schedule such access with Mr. Osman as she desired.
b) The parties were to share custody of Sarah. The orders also determined that Sarah’s primary place of residence would be with Ms. ElKadi, and then set out the access of Mr. Osman to Sarah. As this is a live issue, I will have more to say about it below.
[28] There were also temporary orders respecting the disclosure, particularly the disclosure of financial information that each side was to provide to the other in this case. I will have more to say about the disclosure in addressing the financial issues below. However, I would note that the financial disclosure provided by both sides was, to put it mildly, incomplete.
d) Mr. Osman’s Financial Hardship
[29] Throughout the course of this trial, Mr. Osman insisted that he was suffering from very great financial hardship, or as he put it, “tremendous financial strain”. In support of this position, he points to the financial disclosure documents that he has filed in the record.
[30] I do not accept Mr. Osman’s position on his financial hardship for the following reasons:
a) A finding of undue hardship requires a specific calculation which was not provided by Mr. Osman
b) Mr. Osman’s income has risen in every calendar year since 2010, even without considering the fact that Mr. Osman withdrew amounts from his RRSP and DPSP as discussed below. The only reason that Mr. Osman’s income dropped between 2009 and 2010 is because he had lost his job with Winners, a situation that he was able to resolve by finding a job with a comparable salary at Loblaws.
c) Mr. Osman has purchased, with his new partner, an expensive and comfortable house in Mississauga that includes an outdoor pool in the backyard. Mr. Osman owns only a 1% interest in this house. However, he bought it as a joint tenant with his partner, and was originally listed as having a 50% interest.
d) In terms of his financial situation, I also note that Mr. Osman has claimed that his household’s total expenses are $10,198.15, but that his partner only contributes $1,800.00 to those expenses. Given his gross income of around $80,000.00 per year, these amounts do not add up. I have difficulty accepting these financial statements on their face.
e) In terms of his household financial situation, Mr. Osman also provided a proposed household budget. It shows a reduction in his child support payments, and no spousal support being paid, but still shows outflows of $8,863.15 per month. Given that Mr. Osman’s current partner only contributes about $1,800.00 to the monthly expenses, it suggests that Mr. Osman is making a significant contribution to the costs of the house ($3,100.00 per month), as well as the household expenses. This does not support Mr. Osman’s position that he is experiencing financial hardship. It also does not support Mr. Osman’s position that he makes very little contribution to the house as he only owns 1%.
f) As part of his argument, Mr. Osman has pointed to credit card payments of $800.00 per month. These are for expenses that were previously incurred by Mr. Osman. Although I note that Mr. Osman filed copies of various credit card statements to show his current indebtedness, there is no evidence that the expenses that resulted in this indebtedness relate to the maintenance of either Ms. ElKadi or his children. Even if they did, the paying of support takes priority.
g) Mr. Osman has been on vacations and intends to go on future vacations. Both in his explanations of why he wanted additional access to Sarah, and in his financial statements, there is clear indication of vacations, at least to Blue Mountain. This is another reason to doubt his claim of financial hardship.
[31] It is possible that Mr. Osman has financial difficulties. However, if they exist, they are of his own making, as he certainly has a great deal more income than either Ms. ElKadi or his children. The fact that he may be living beyond his means is no reason to deny either spousal or child support. In other words, Mr. Osman has failed to demonstrate financial hardship within the meaning of any of the tests set out in any of the relevant legislation. I recognize that the test for financial hardship may be different for different entitlements, but Mr. Osman does not meet any of them.
[32] I now turn to analyzing each of the relevant issues as set out above.
Issue #1 - Access to Sarah
[33] There is no dispute that the parties have joint custody of Sarah. The issue is Mr. Osman’s access to Sarah.
[34] In May of 2014, the parties agreed to an order respecting access to Sarah. This order is in the “final order” section of the agreement attached to the endorsement of Murray J. The provisions relating to access state as follows:
- On Sunday, May 25, 2014:
The Applicant father shall have unsupervised access to the child Sarah Osman from 10:00 a.m. to 7:00 pm.
- Commencing May 31, 2014, the Applicant father shall have the following access to the child Sarah Osman (born May 19, 2014) [sic]
Every Wednesday from after the school till 7:00 pm. Pick up shall be from the child’s school and drop off at the Respondent mother’s residence. If there is no school, the pick up and drop off shall be from the Respondent mother’s residence. In case of no school, the pickup time shall be 3:15 pm.
a) Alternate weekend from 10: a.m. on Saturday to 7:00 pm on Sunday. The pick up and drop off will be at the Respondent mother’s residence.
- Commencing August 1, 2014; The Applicant father shall have the following access to the child Sarah Osman:
a) Every Wednesday from after the school to 7:00 p.m. Drop off shall be at the Respondent’s residence. If no school, pick up will be at 3:15 pm from the Respondent’s residence.
b) Alternate weekends, from after the school on Friday to Sunday 7:00 pm, the drop off at the Respondent’s residence.
[35] Mr. Osman’s position is that this is not a final order and that, as part of my decision, I should direct that he should be given additional access to Sarah in the vacation periods. Specifically, Mr. Osman was seeking two (2) additional weeks of access in the summer, two (2) days in the winter break and three (3) days in the March break, for a total of approximately three (3) additional weeks a year with Sarah.
[36] In support of this request, Mr. Osman asserts that the report prepared by the Office of the Children’s lawyer supports his request for additional access. This report was prepared by Jacqueline Iafrate and outlined in an Affidavit that was entered into evidence in this trial on consent. The report states:
- With regards to access, the OCL would like to have a structured increase in Sarah’s visits with Mr. Osman as follows:
a) After school on Wednesday from 3:15 to 8:00 p.m. Mr. Osman to pick Sara up from school during the school year or from her home during any holiday period. Mr. Osman shall drop off Sarah at Ms. Elkadi’s home.
a) Alternate weekend overnight visits beginning from Saturday at 10:00 a.m. until Sunday at 7:00 p.m. Pickup and drop off from Ms. Elkadi’s home.
b) After a two month period of the one night overnight, there would be an increase to the alternate weekends to include the Friday overnight as well as the Saturday. Mr. Osman to pick Sarah up from school during the school year or from her home during any holiday period. Mr. Osman shall drop off Sarah at Ms. Elkadi’s home. If the following Monday after the overnight weekend is a school holiday or statutory holiday, the overnight visit should be extended to Monday until 7:00 p.m.
c) Any further access to be as agreed between the parties.
[37] In her cross examination, Ms. ElKadi was asked whether she would agree to provide Mr. Osman with further access to Sarah for vacations. She confirmed that she was not prepared to provide any further access because of her concern that Mr. Osman would be abusive towards Sarah.
[38] As some time was spent on allegations of spousal and child abuse at the trial, I will deal briefly with them. Ms. ElKadi alleged abuse on the part of Mr. Osman towards her prior to her return to Egypt in 2001, and alleged that this was the reason that she had returned to Egypt. Ms. ElKadi also alleged that Mr. Osman had agreed to see a psychiatrist, and that this was the reason for her return to Canada. Finally, Ms. ElKadi alleged that Mr. Osman was abusive towards Salma after 2005, because she would disagree with him. Mr. Osman denied these allegations.
[39] The Office of the Children’s lawyer investigated these allegations, and they were outlined in their report which was filed as an exhibit. This report concludes that the third party records did not support Ms. ElKadi’s position of ongoing domestic violence.
[40] The only information I have, other than this report, is the testimony of the parties. The testimony of Mr. Osman, unsurprisingly, does not agree with the testimony provided by Ms. ElKadi. On the evidentiary record before the Court, I am not in a position to make a determination as to whether there was any abuse or not.
[41] This brings me to the question of how Sarah views these visits with her father. The testimony from each party supports their own position, no other witnesses were called, and the evidence filed with the Court (particularly the OCL report) does not assist in resolving this issue.
[42] Mr. Osman testified that Sarah was happy when she visited him, and that she would state that she wanted to spend more time with him. Ms. ElKadi testified that Sarah was almost always upset before she went to stay with Mr. Osman, and did not want to go and see him. She also testified that the most recent time that Sarah had a negative reaction to going to see her father was the second last visit before the Court proceeding.
[43] Given the comments in the report from the OCL, it is possible that both versions of events are accurate. In particular, I note that the OCL stated that Sarah’s views as to whether she wanted to spend time with her father changed over a number of visits. Sarah also stated that she felt she had to pick between “mom’s team and dad’s team” and that her mother would be “upset if she does not pick her team.” In other words, Sarah is likely reacting to the wishes of the parent that she is with.
[44] This is the factual basis on which Mr. Osman’s request for additional access arises. Ms. ElKadi opposes this request on the basis of issue estoppel.
[45] In addressing this issue, the first question that I have to answer is whether issue estoppel, as described in MInott v. O’Shanter applies to cases of access orders under family law. For the reasons that follow I find that it does not apply to these cases. I would note at the outset of my analysis that this is trite law, and I have set my analysis out in detail only because counsel for Ms. ElKadi spent considerable time on this issue.
[46] The starting point for my analysis is section 17(1)(b) and 17(5) of the Divorce Act, which state:
- (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,
a) A support order or any provision thereof on application by either or both former spouses; or
b) A custody order or any provision thereof on application by either or both former spouses or by any other person.
(5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.
[47] A similar provision, although with different wording, can be found in section 29 of the Children’s Law Reform Act, which states:
A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.
[48] It is clear from these sections that the doctrine of issue estoppel, as it exists in the general law, does not apply to cases of access and custody in the family law setting, and I reject Ms. ElKadi’s assertions in this regard.
[49] The order of Murray J. was entered on consent. Therefore, Mr. Osman must demonstrate a change in circumstances to have the order varied. I reject Mr. Osman’s submission that there is a change in circumstances for the following reasons:
a) The report from the Office of the Children’s Lawyer did not specifically suggest any additional access beyond what was ordered on consent in this case. It specifically said that additional access was to be agreed to by the parties. This is contrary to the interpretation urged on me by Mr. Osman.
b) The access in this case was established (and increased) within the last year.
c) Mr. Osman has not provided the Court with any evidence of any changed circumstances.
[50] In the result, Mr. Osman’s access for Sarah remains as described in the order of Murray J. This is without prejudice to any subsequent application by either party in the event of a changed circumstance.
Issue #2 - Child Support
[51] In calculating the amount of child support, there are three issues that have to be determined, in order to define Mr. Osman’s income for the relevant periods. First, the disposition of the Winners Registered Retirement Savings Plan (“RRSP”) and Deferred Profit Sharing Plan (“DPSP”). Second, the question of the extent of the obligation to pay child support for Salma Osman. Finally, there is the issue of retroactivity.
A) The Winners RRSP
[52] With respect to the Winner’s RRSP, Mr. Osman acknowledged on the witness stand that this was an asset that he had as of the separation date, and that it should be counted in his net family property, but should not be counted as income after the separation date. Ms. ElKadi’s counsel made much of the fact that Mr. Osman had engaged in bad faith in not including these assets in his financial statements after 2012.
[53] I do not see sufficient evidence for such a conclusion, especially given that the documents were available to the Court and that Mr. Osman acknowledged the existence of these assets in his evidence. I note, again, however that the financial disclosure in this case was thin on both sides.
[54] Ms. ElKadi accepted that this asset should be part of Mr. Osman’s Net Family Property, but argued that the RRSP and DPSP should also be counted as part of Mr. Osman’s income in the years in which he accessed the funds. The basis for this position was that this was income on his tax return, and it should be counted for the purposes of determining both the child and spousal support obligations.
[55] In support of this obligation, Ms. ElKadi referred me to the decision of Mask v. Mask ((2008) 2008 3968 (ON SC), 55 R.F.L. (6th) 98. In that case, Power J. determined that a portion of the RRSP income that the Respondent mother had withdrawn from her RRSP in 2005 and 2006 should be counted for the purposes of her income in those years.
[56] In making this decision, Power J. stated:
The result is that the Guidelines have a significant impact on the scope of the Court’s discretion in fashioning what it considers a fair result. In Bates v. Bates (2000), 2000 14734 (ON CA), 5 R.F.L, (5th) 259 (Ont. C.A), the Court of Appeal held that judicial interpretation of the Guidelines cannot depend on what the Court regards as appropriate policy, or what is fair, because parliament chose to severely circumscribe judicial discretion in determining child support based upon goals of consistency, certainty and overall increase in child support awards generally.
As aforesaid, in the circumstances of this case, I have some sympathy with the mother’s fairness argument.
[57] Power J. went on to quote from a number of decisions relating to the calculation of income for child support, noting that RRSPs are not always included in income. He also quoted section 17(1) of the Federal Child Support Guidelines, which states as follows:
- PATTERN OF INCOME – (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
[58] Power J. found, based on the facts of the case before him, that some portion of the RRSP amounts should be counted towards Ms. ElKadi mother’s income. However, a key part of that finding was based on the fact that a final agreement was in place, and that the issue before Power J. was an application for a recalculation in accordance with the agreement of the parties.
[59] I am faced with a different set of facts than Power J and the case I am dealing with is distinguishable. In this case, I am dealing with both the question of income for particular years and the question of Net Family Property. Given that this asset is going to be calculated as part of the net family property and equalized, it would be inequitable to include it as income for the purposes of child and spousal support, and I decline to do so.
B) Support for Salma
[60] With respect to Salma, Mr. Osman argues that his daughter is not in a full time educational program, and as a result child support should not be paid on her account from and after when she turned 18, which was April 8, 2011. Instead, he states that he can take care of any obligations with Salma directly.
[61] As a child over 18, Salma is not automatically a child of the marriage. Instead, in determining whether she is a child of the marriage, consideration must be given to Salma’s circumstances. The evidentiary record is not completely clear on Salma’s circumstances.
[62] Ms. ElKadi testified that Salma had seen a psychiatrist in 2008 and 2009 as a result of psychological issues flowing from interactions with Mr. Osman. In addition, Ms. ElKadi testified that Salma had seen a social worker for 2½ years at some point. Ms. ElKadi further testified that the involvement of the OCL in 2013 to 2014 caused a flare up in Salma’s psychological condition. However, no medical information was provided to support any of these statements.
[63] In addition, I would note that the OCL did not interview Salma in 2013, as she was over the age of eighteen. Further, there was a statement received by the OCL from Yassmin that Yassmin had contacted Peel Police over an argument that had taken place between Salma and Ms. ElKadi.
[64] Mr. Osman denies any knowledge that Salma has any psychological issues. Mr. Osman also testified in chief that Salma had a part-time job. However, in cross-examination, Mr. Osman was forced to acknowledge that he had picked Salma up at the hospital on at least one occasion, and that her Notices of Assessment, which were filed in evidence, showed that she had not earned any money at all during any of the relevant periods.
[65] In other words, there is likely some issue impeding Salma’s progress to independence. The extent of that issue is not clear to me on the facts that I have. It is also noteworthy that Salma was able to attend a full time program in 2011 to 2012 at Humber College and, subject to my findings on retroactivity, she would be entitled to child support until April of 2012 at a minimum. Since that time, she has been living at home, and has been taking online courses in the area of web design. It is the time periods after April of 2012 that are in issue.
[66] She has applied for a program at Humber College in the area of web development and computer programming, which fits with the online courses that she has been taking. She made the application last September, and is currently waiting for a decision as to whether she will be accepted into the program. This evidence was not challenged by Mr. Osman. His position was that he would address any support issues with Salma directly, and that any money he gave her should be at his discretion (my words).
[67] One of the key cases in this area is the Nova Scotia Court of Appeal’s decision in MacLennan v. MacLennan (2003 NSCA 9). In that decision, Cromwell J.A. (as he then was) noted that it is the responsibility of the party claiming support to demonstrate that support should be ordered. In addition, however, Cromwell J.A. noted that judges are entitled to draw reasonable inferences, and take into account notorious facts such as the cost of post-secondary education and the scarcity of good part-time work for students in particular.
[68] Ms. ElKadi’s counsel also cites the decision in TTB v. PHD ([2014] N.B.J. No. 208, T.J. Morrison J.). For the purposes of the case I have to deal with, two important points flow out of this decision. First, parents have an obligation to assist children who are pursuing post-secondary education that will equip them for employment. Second, an overall assessment of whether child support should be paid to a child who has reached the age of majority is determined by looking at what is reasonable and appropriate in the circumstances.
[69] Both of these cases (and the other ones that Ms. ElKadi’s counsel has cited) outline some of the general principles that need to be applied. However, the question is whether, in this case, Salma meets the definition of a child of the marriage under section 2 of the Divorce Act. To meet that definition, it must be demonstrated that Salma is “unable, by reason of illness, disability, or other cause, to withdraw from their charge or to obtain the necessaries of life.”
[70] Determining this issue requires a consideration of Salma’s entire circumstances. I note the following to be of particular relevance in this case:
a) Salma has been pursuing a career in web design and online work for the past couple of years. This seems to be a reasonable career goal, based on the limited facts that I have.
b) Related to that career goal, Salma has applied for a more formalized and structured full-time education program and is waiting for confirmation as to whether she will be accepted into the program. It is not unreasonable for a person to put a job search on hold pending news about whether they can pursue their desired education program.
c) Salma has only earned approximately $60.00 in the past three years, a fact that supports my conclusion above that there has likely been some impediment to her transitioning to independence. It does not appear, on the evidence that I have, that Salma can contribute at this point to her own care.
d) Salma has been living at home with Ms. ElKadi for this entire time.
[71] In the circumstances, I find that Salma has been unable to withdraw from parental control at any point up to the present. Therefore, she is entitled to child support for the entire time period that child support is awarded. However, this is not an unlimited entitlement, and I must address the issue of the pending decision on her enrolment in the Humber College program. Going forward, it is appropriate to issue an Order for child support with conditions.
[72] If Salma is accepted to the Humber College program, then support shall continue for the entire time that she is attending this program on a full-time basis, and will cease either immediately after she withdraws from the program or two months after she completes it, giving her time to find employment. If Salma is not accepted into this program, then she will cease being entitled to support three months from the date of the rejection letter. If support ends pursuant to this paragraph, nothing in this paragraph prevents Salma or Ms. ElKadi from applying to the Court for additional support if she is unable to withdraw from parental control.
C) Retroactive Child Support
[73] Then, there is the question of retroactivity. There are two sub-issues that arise here. First, the question of how long child support should be retroactive for. Second, whether the payments that Mr. Osman was making for the mortgage on the matrimonial home should be deducted from either child or spousal support.
[74] It is clear that child support is due and payable starting on June 28, 2012, when this application was made. However, Ms. ElKadi is seeking retroactive child support back to the date of separation or, in the alternative, three years prior to the application.
[75] The starting point for any analysis of retroactive child support amounts is the Supreme Court’s decision in D.B.S. v. S.R.G.(2006 SCC 2, [2006] S.C.J. No. 3). At paragraph 4 of the decision, Bastarache J. stated:
- At the same time, however, the similarities between the four appeals are unmistakable. Each case involves a recipient parent who failed to apply to a court for an increase in child support payments in a timely manner. Most unfortunate, each case involves children who lived prolonged periods without the support they were due. Whatever the outcome of these individual cases, the ultimate goal must be to ensure that children benefit from the support they are owed at the time when they are owed it. Any incentives for payor parents to be deficient in meeting their obligations should be eliminated.
[76] In other words, the entitlement to support belongs to the children, and the obligation to pay support always exists. In light of that guiding principle, the Court set out four factors to consider in assessing whether retroactive support should be paid. Those factors, and their application to this case, are as follows:
a) Reasonable Excuse for Why Support Was Not Sought Earlier. In this case, three reasons are advanced for why support was not sought earlier. First, Ms. ElKadi alleged abuse. As outlined above, I do not accept that conclusion on the record before me. However, Ms. ElKadi also alleged that she did not have either the financial or emotional wherewithal to seek support prior to June of 2012. Although the evidence supporting this factor is thin, what evidence I do have tends to favour Ms. ElKadi’s position.
b) The Conduct of the Payor Parent. In his evidence, Mr. Osman made a number of references to his desire to make the decisions about money. For example, with Salma, he did not want the Court to order support for her, as that was a matter between him and his daughter. Further, he took the position that he was entitled to count the entire amount of the mortgage as child and/or spousal support, although those payments contributed to his financial well-being by adding to the value of the house. However, this has to be balanced against the fact that Mr. Osman was prepared to pay all of the utilities, mortgage and property tax expenses associated with the house. Although not strong, this factor militates against the granting of a retroactive order for child support.
c) The circumstances of the children. As noted in the endorsement of Donahue J., the financial circumstances of both parents were dire. In particular, however, the children have been supported by Ms. ElKadi on the tax credits that she has been receiving from the government. This factor very strongly supports an award of retroactive child support.
d) The hardship occasioned by a retroactive award. Hardship can arise at two points in the analysis. First, in assessing whether a retroactive award should be made. Second, in assessing the amount to be paid once it is ordered. Based on the evidence I have before me, I do not find that financial hardship applies in this case in either circumstance for the reasons set out above.
[77] In the circumstances, then, I am persuaded that an order for retroactive child support should issue, and it should be for three years prior to the application date of June 28, 2012. The calculation of the amounts is based on the determinations of income made in this decision, and is set out in Appendix A to this judgment. I would note that the parties can address any calculation errors in my numbers in writing within twenty one days of the date of the release of these reasons. These submissions should NOT address any determinations of income or of set offs. Those issues are resolved.
[78] Finally, Mr. Osman seems to have made the argument that he should not be required to pay more in child (or spousal) support because additional payments would be an undue financial hardship on him. I have fully addressed this issue above. However, I would also note that, in deciding to reduce child support owing (as opposed to the test for ordering retroactive support), that subsection 10(2) of the Federal Child Support Guidelines is applicable to this case.
[79] Undue hardship is a high threshold involving an exceptional, excessive and disproportionate payment, usually for the reasons listed above. The facts in this case do not support Mr. Osman’s position that his child support obligations should be varied as a result of undue hardship. Indeed, as I noted above, any hardship that exists in this case is of Mr. Osman’s own doing.
[80] This brings me to Mr. Osman’s request that the amounts he paid on account of the matrimonial home be considered as spousal and/or child support. Given that no child support is payable prior to June 28, 2009, the amounts that Mr. Osman paid towards the matrimonial home prior to June 28, 2009 do not entitle him to any consideration for these payments.
[81] However, as noted in Ms. ElKadi’s closing argument, “it is trite law, but it must be stated, that Mr. Osman is only entitled to recoup his share of the amount paid towards the upkeep of the matrimonial home.” Ms. ElKadi accepts this amount to be half of the payments made by Mr. Osman. I agree with this assertion in this case.
[82] The amounts that Mr. Osman paid to maintain the matrimonial home served two purposes. First, the payment of the mortgage and property taxes assisted in providing shelter for his children and for Ms. ElKadi. Second, the payments preserved and enhanced the value of the matrimonial home, an asset that Mr. Osman owned half of. The payments benefitted him as much as Ms. ElKadi and the children. If Mr. Osman was allowed to claim the entire amount of these payments as support, then he would be entitled to his share of the enhancement in the matrimonial home both as a credit for support and as an increase in value in an asset he owns. I am not prepared to permit that type of double dipping. However, he is entitled to some credit for these payments.
[83] The amounts that Mr. Osman is entitled to set off are set out in Appendix A as well.
Issue #3 - Spousal Support
[84] Mr. Osman alleges that he should no longer be paying any spousal support to Ms. ElKadi. He also alleges that he should not be paying any arrears, and that Ms. ElKadi was not entitled to spousal support at any point in these proceedings. The basis for his argument on this point are:
a) Ms. ElKadi is intentionally underemployed;
b) he is under tremendous financial strain; and
c) he is doing his best to provide for his children.
[85] Ms. ElKadi on the other hand, seeks spousal support at the maximum of the SSAG guidelines retroactive to the date of separation. This request is made on the basis that Ms. ElKadi was primarily responsible for being the homemaker and caregiver to her daughters.
[86] These submissions raise two questions. First, whether Ms. ElKadi should be entitled to support at all on a go-forward basis. Second, whether, and to what extent, retroactivity should be ordered.
a) Support Going Forward
[87] I will start with the question of whether Mr. Osman should be required to pay spousal support to Ms. ElKadi on a go forward basis. Ms. ElKadi has been primarily responsible for raising four children for the past six and a half years.
[88] At the time of separation, the eldest of the four children (Salma) was fifteen and the youngest, Sarah, was just two years old. It is difficult to fathom how Ms. ElKadi would have obtained employment over the past six years while still caring for all of these children. This is especially true when you consider the fact that Ms. ElKadi had been out of the workforce for twenty years.
[89] Mr. Osman points to the fact that Ms. ElKadi was able to earn approximately $4,000.00 at Dollarama in 2010 or 2011 as evidence that she could find a job, and is intentionally underemployed. Ms. ElKadi, on the other hand, testified that she had found this job through a friend, and that it was difficult to manage the job and her responsibilities to care for her children.
[90] Ms. ElKadi further testified that she had tried to find additional employment through friends but she had not been able to find anything. She also spoke about the fact that it was difficult to upgrade her education and qualifications.
[91] In the circumstances, I find that Ms. ElKadi has made appropriate efforts to find alternate sources of income to this point, and there is no basis to deny her spousal support on this account.
[92] In terms of Mr. Osman’s claim that he is suffering from financial hardship, my conclusions on that issue are as set out above. I would give no force to this argument.
[93] In terms of Mr. Osman’s claim that he is doing the best that he can for his children and shouldn’t have to pay additional spousal support, I would note that the quantum of child support is a factor that I can (and will) take into account in determining the amount of spousal support.
[94] Part of Mr. Osman’s case in terms of the quantum of both spousal and child support turns on the question of whether the payments for the mortgage that he was making between 2008 and 2012 can be characterized as either “child support” or “spousal support”. For the reasons outlined in the section on child support, I credited Mr. Osman with a deduction of half of the value of the payments he made towards the matrimonial home. This amount was completely absorbed by the retroactive child support payments owing. As a result, this argument is of no assistance in advancing Mr. Osman’s position on spousal support.
[95] This brings me to the general considerations for fixing of spousal support. Section 15.2 (4) and (6) of the Divorce Act sets out the factors that the Court should consider when making an award of spousal support:
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[96] The case law has also set out some of the factors that should be considered in determining whether, in what amount, and for how long, spousal support should be ordered. Spousal support can be awarded considering either the needs of the parties, or on a compensatory basis.
[97] Specifically, as noted in Gray v. Gray (2014 ONCA 659), the purpose of an award of compensatory support is to share the economic advantages and disadvantages that accrued because of the marriage and its subsequent breakdown. See also Moge v. Moge ((1992) 1992 25 (SCC), 99 D.L.R. (4th) 456.)
[98] In this case, the parties had a more traditional marriage, where Ms. ElKadi worked in the home so that Mr. Osman was free to pursue his career outside the home. He has been successful in this pursuit, and is earning a salary approximating $80,000.00. Ms. ElKadi had, and has, significant ongoing responsibilities in the home that make it difficult for her to maintain employment at present. Finally, this is a marriage of some considerable length, being approximately seventeen years from the date of marriage to the date of separation. As a result, spousal support should be payable to Ms. ElKadi on a go forward basis.
[99] It is clear from the materials that were filed before me (see Exhibit 41) that the parties were discussing a separation agreement in May of 2012. As a result, Mr. Osman should have been on notice from May 1, 2012 that he was likely going to be subject to a claim of spousal support in this case. This is an appropriate date for the spousal support to start on a go forward basis. I will return to the quantum to be ordered at the end of this section.
b) Retroactive Spousal Support
[100] My conclusions in the previous section raise the question of whether spousal support should be ordered retroactively and, if so, for how long.
[101] In the section on child support, I set out an analysis of the various factors to be considered in assessing whether retroactive child support should be granted. The questions to be answered in determining whether spousal support should be retroactive are somewhat different. An explanation of some of these differences is set out in Kerr v. Baranow (2011 SCC 10, [2011] S.C.J. No 10 at paras 208 to 210).
[102] Specifically, in the case that I am considering, a critical consideration in awarding retroactive child support was that it was a right of the child. In the case of spousal support it is a right of the spouse, In considering whether to award retroactivity, two considerations are key. The first is the certainty of the payor's obligation. Certainly, prior to May of 2012, Mr. Osman was not expecting an order of spousal support to be made against him. The second factor is ensuring that proper incentives are placed on the party seeking the spousal support to proceed promptly with a claim. In this case, as I noted above, the evidence justifying Ms. ElKadi’s failure to proceed promptly with her claim was thin. As a result, the evidence that I have on the failure to proceed promptly with a claim does not overcome the requirement that proper incentives are placed on the party seeking the spousal support.
[103] As I noted above, the arrangements that the parties had in place prior to May of 2012 were to their mutual benefit on the evidence before the Court. This has to be weighed against Ms. ElKadi’s assertion that she was financially and emotionally unable to proceed with a claim for support. On balance, the facts in this case weigh more against granting retroactive spousal support.
[104] Given this analysis, it is not appropriate to award retroactive spousal support in this case.
c) Other Issues
[105] Then, there is the question of how long spousal support should be payable going forward, and in what amounts. The Spousal Support Advisory Guideline calculations filed by Mr. Osman are of limited assistance to me, as he generally imputed income (in some cases substantial income) to Ms. ElKadi. As described in this decision, there is no basis for Mr. Osman’s assertion that the Court should impute income to Ms. ElKadi.
[106] The calculations filed by Ms. ElKadi suggest that the range for spousal support should be between $68.00 per month and $411.00 per month, with a midpoint of approximately $235.00 per month. In this case, an order of $350.00 per month, which is near the maximum amount, should be granted commencing in May of 2012.
[107] I make this order for the following reasons:
a) Ms. ElKadi has been out of the workforce for 20 years
b) Ms. ElKadi has caregiver obligations for all of her children, including Sarah, who is only eight years old at this point.
c) Ms. ElKadi’s qualifications in Egypt do not automatically transfer to Canada.
d) Ms. ElKadi is entitled to support on a compensatory basis given the division of labour between the parties during the course of their marriage.
e) There is a significant child support order in this case.
[108] The Spousal support in this case should continue until Sarah reaches the age of fourteen, which will give Ms. ElKadi an opportunity to look at refreshing her qualifications and consider alternate work in the workplace. At that time, Mr. Osman can apply to the Court for consideration as to whether the amounts payable for spousal support should change.
[109] In any subsequent application to vary the amount of spousal support, Mr. Osman should note that the child support amounts may have decreased. This may be a factor in the Court considering an increase in the spousal support award in any future Order.
Issue #4 - Occupation Rent
[110] Mr. Osman has claimed occupation rent for allowing Ms. ElKadi to occupy the matrimonial home. I am dismissing this claim for the following reasons:
a) Mr. Osman himself lived in the matrimonial home for a period in excess of a year during the period in which he is claiming occupation rent.
b) As noted above, the arrangements of the parties with respect to the matrimonial home were mutually beneficial. It was open to Mr. Osman to bring his application to resolve these matters long before June of 2012. He should not be entitled to claim occupation rent when he did not move promptly to resolve the underlying issues.
c) Mr. Osman has been given a credit for the payments that he made on account of the matrimonial home in calculating the arrears that he owes for child support. A further credit for occupation rent would be compensating him twice for the same payments.
Issue #5 - Net Family Property
[111] There were a number of issues relating to Net Family Property that the parties raised in argument, and I will address them here.
a) The Egypt Property
[112] First, there was the Egypt property that Ms. ElKadi allegedly owns. I have concerns about the evidence from both parties on this issue. First, Mr. Osman’s evidence was based on documents that were translated. Ms. ElKadi’s counsel argues that these documents were not reliable and should not be used to make findings of fact. He also argues that these documents should not be given weight by the court because they were obtained by violating Ms. ElKadi’s privacy.
[113] I understand Ms. ElKadi’s concern about privacy. However, I have two problems with this argument. First, any privacy breach is not Mr. Osman’s responsibility as he was not in control of the records that were released. I would also note that these were Egyptian records, and that they were released in Egypt. Any breach of privacy is a matter of Egyptian law.
[114] Second, and more importantly, these documents were to be provided by Ms. ElKadi pursuant to an order of Murray J. which states:
In addition the Respondent shall produce all bank statements from Respondent’s bank account with the Development & Housing Bank in Egypt from January 1, 2008 to date.
[115] Under this order, Ms. ElKadi was supposed to provide the documents that Mr. Osman provided to the court. Ms. ElKadi’s explanation for not providing these documents was that she could not obtain them because they were too difficult to obtain.
[116] The problem with this argument is found in the information that Ms. ElKadi did provide to us. Specifically, she provided the Court with a copy of the Concession agreement with her brother (both in English and in Arabic), as well as a letter from a lawyer at the High Appeals and State Council advising that Ms. ElKadi’s privacy had been breached by the fact that Mr. Osman obtained her banking information. Finally, she provided an Affidavit from her brother about the Concession agreement.
[117] Ms. ElKadi’s efforts would have been better spent finding the actual financial documents that she was directed to find by Murray J., or providing the Court with a different explanation as to why she was unable to find these documents. The fact that she was able to obtain legal opinions from an Egyptian lawyer suggests that there was no impediment to her obtaining other documents from Egyptian institutions.
[118] As a result, I find that Ms. ElKadi more likely than not continues to have an interest in the Egypt property for the following reasons:
a) she did have an interest in the property at one point;
b) the documents provided by Mr. Osman suggest that she has this interest; and
c) she has not provided the information as outlined in the decision of Murray J, although she has provided other information obtained since that decision to support her position.
[119] However, that does not end the matter. Section 4(2)1. of the Family Law Act provides the following exclusion of property from the calculation of Net Family Property:
Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
[120] It is clear from the evidence that I heard that Ms. ElKadi received the Egypt property as a gift from her father during the course of the marriage and that it was never the matrimonial home. Given the statutory exclusion, it is clear that this property should not be included in the calculation of Net Family Property.
b) The Minivan
[121] Second, there was Ms. ElKadi’s concern about the valuation of Mr. Osman’s Ford Minivan. Specifically, Ms. ElKadi disputes the value of $4000.00 that Mr. Osman attaches to the minivan on the basis that he shows a corresponding debt of $11,000.00 in relation to the minivan.
[122] However, Mr. Osman notes in his submissions that Ms. ElKadi did not provide any information to establish what the value of the minivan should be. In addition, Mr. Osman was not cross-examined on the actual value of the minivan. In light of these omissions, I see no reason to reject Mr. Osman’s statement about the value of the minivan. It will be valued at $4,000.00 in calculating Net Family Property.
c) The Final Distribution
[123] Both Mr. Osman and Ms. ElKadi provided a number of different financial statements. These statements contained different information on each occasion, and the parties have largely left it to me to determine what the actual assets and liabilities were on the valuation date.
[124] I would note, as I did earlier, that the disclosure of both parties in terms of their finances is less than complete. Further, in advancing their calculations of Net Family Property both parties have attempted to put the best light on their own position, and have obscured the details of their finances.
[125] I note that Ms. ElKadi, in terms of the Ford Minivan, accused Mr. Osman of acting in bad faith. I do not intend to characterize either party’s actions as bad faith, but I do note that they are both acting in the same way, as I have described in the previous paragraph.
[126] I start with Mr. Osman’s statements, which are at Exhibits 3 and 33.
[127] A basic problem with the credibility of these statements is ascertained when one considers that Mr. Osman has valued his RBC Credit Card debt (Exhibit 4) at $1,683.38 on valuation date. However, when the statement is reviewed, approximately $203.35 of that debt relates to a card that appears to have been held in Ms. ElKadi’s name and it is not unreasonable to assume (although I do not know) that it is her debt. Then we go on to consider the fact that Mr. Osman has only provided the first page of his PC Financial Line of Credit, so it is difficult to know what exactly was spent in June of 2008.
[128] In resolving these issues, I intend to give Ms. ElKadi credit for the debt of $203.35 that shows on Mr. Osman’s statement, as this was simply not explained to me in evidence. Indeed, a different (and lesser) number is shown for this debt on Mr. Osman’s Financial Statement in Exhibit 33. A corresponding deduction will be made from the debts owing by Mr. Osman. I will accept the amount on the PC Financial statement as owing as of the separation date.
[129] I also note that, in Exhibit 3, Mr. Osman does not make mention of the RRSP and DPSP statements in Exhibit 10. As discussed above, those are assets and are subject to the NFP calculation. I have included them in my calculation. I note that, in Exhibit 33, Mr. Osman claims a contingent debt of $4,457.66 in relation to these assets. The existence of this debt was accepted by Ms. ElKadi’s counsel, and I accept it as well.
[130] Based on these adjustments, I have calculated the NFP for Mr. Osman.
[131] Then, there are Ms. ElKadi’s statements. In her original property statement (Exhibit 65), she states that she has $2,000.00 in furniture and $700.00 in bank accounts. I accept these numbers. I do not accept her counsel’s assertion in argument that she did not own any property at all at the time of separation, and that the numbers in her original NFP statement should be ignored. I note that a subsequent financial statement was provided in which she claimed nearly $70,000.00 in debt owing to her father and her brother.
[132] The existence of this debt was addressed through an Affidavit from her brother dated October 22, 2014. Given that I have accepted that Ms. ElKadi likely still has an interest in the Egypt property, these debts appear to be reasonable to me, although the proof of them is both thin and arrives late in the day. I would note, however, that alleging both the transfer of the property and the continued existence of the debts seem to me to be somewhat unlikely.
[133] Other than those issues, the only other family property was the marital home. It is owned equally and should be shared equally subject to the legal charges required to bring the mortgage into currency and sell it in 2012. Mr. Osman has not substantiated the renovations and the other expenses are addressed in the adjustments around support. However, he is entitled to recoup half of the other costs, being the amounts paid to Gowlings to address the property arrears. The total amount is $3,004.94, and a deduction of half of this amount is reflected on Schedule A, being the statement of arrears.
[134] A Net Family property calculation is set out in Appendix B of these reasons.
Issue #6- Section 7 Expenses
[135] In the factum provided to me at the opening of Trial, Ms. ElKadi asserted that she would be claiming section 7 expenses. I heard some evidence about those expenses during the course of trial. However, counsel for Ms. ElKadi did not provide any argument on the amount of section 7 expenses that were payable, and an Order for section 7 expenses did not form part of his proposed order.
[136] Based on the evidence that I heard, I find that there are some section 7 expenses that are appropriate and should be shared in proportion to the income of Mr. Osman and Ms. ElKadi. Based on my review of the materials, these expenses were all paid by Ms. ElKadi, but Mr. Osman should pay 85% of the following expenses:
d) The animation portfolio workshop for Yassmin, which was held in May of 2013. This workshop directly relates to Yassmin’s preferred course of study in animation, and it was clear from the evidence that this is an appropriate course of education. I understand that Yassmin is enrolled in the Art Fundamentals program this year, and is trying to build her portfolio to obtain admission to the animation program. The animation portfolio workshop was $5,067.37 in total.
e) The fees for Yassmin’s Sheridan College program for Art Fundamentals for the 2014-2015 year, in the sum of $4,607.46. Again, this is an expense that relates to Yassmin’s education.
f) The fees for the Fan Expo for June of 2014, which relates to Yassmin’s chosen course of education in animation. These fees were $78.00.
g) The fees for the Brightspark trip to Quebec City that Laila went on in 2014 through her school in the sum of $815.00.
h) The fees for the Arabic school. I have evidence of two years of courses for a total of $2,000.00.
i) Two sessions of swimming lessons for Sarah for 2013 and 2014, in the sum of $139.50. I note an additional reason for allowing this expense is that all of the other daughters were sent to swimming lessons when they were Sarah’s age.
[137] With respect to the Arabic school, Ms. ElKadi’s uncontroverted testimony was that Mr. Osman was aware that the children were enrolled in this program. With respect to the remainder of the expenses, I would note that they all relate to educational goals of the children and/or were the type of expenses that would have been paid for the children during the course of the marriage.
[138] Accordingly, I direct that Mr. Osman pay Ms. ElKadi the sum of $10,801.23, which is 85% of the expenses outlined above.
[139] I note that there are other receipts for other incidental expenses. I do not have enough detail to make any awards in relation to these expenses and I decline to do so.
[140] In terms of section 7 expenses going forward, Ms. ElKadi is to advise Mr. Osman of any expenses that she intends to incur, and Mr. Osman will be required to contribute 85% to those expenses. If Mr. Osman objects to those expenses, he is to provide his justification to Ms. ElKadi in writing and, if the dispute cannot be resolved, the parties may return to Court to resolve it in accordance with the Rules.
Judgment
[141] The following judgment will issue:
a) The parties will be granted a divorce, 31 days from today’s date.
b) Mr. Osman is to pay ongoing child support in the sum of $1,753.00 per month, commencing March 1, 2015.
c) Mr. Osman is to pay ongoing spousal support in the sum of $350.00 per month, commencing March 1, 2015.
d) The monies held in trust by Michael J. Fisher, Barrister and Solicitor, in the sum of $50,617.74 are forthwith to be released to Ms. ElKadi in partial satisfaction of the arrears owing in this case.
e) Mr. Osman is to pay an additional amount of $10,573.37 on account of arrears owing for child and spousal support, with such number to be adjusted if necessary in accordance with these reasons. Specifically, the 2014 and 2015 child support amounts are based on 2013 income. Once the 2014 income is known, an adjustment to the amounts for child support may be necessary.
f) Mr. Osman is to pay $803.46 on account of an adjustment to Net Family Property, as set out in Appendix B.
g) Mr. Osman is to pay $10,801.23 on account of current section 7 expenses.
h) The Family Responsibility Office is directed to make any and all recalculations of arrears as necessary.
i) If any party has any issues with the calculations outlined in Appendix “A” and “B” then they can make submissions to me in writing within 21 days of the date of this decision. Such submissions are not to exceed three double spaced pages. I will determine, after reviewing these submissions, whether anything further is required to address the issues raised in said submissions. If no submissions are received within 21 days, my calculations become final.
[142] I will entertain brief written submissions on costs, not to exceed five double spaced pages, exclusive of bills of costs or case law. Ms. ElKadi’s counsel shall have fourteen (14) days from today’s date to provide his cost submissions, and Mr. Osman will have an additional fourteen (14) days to respond.
[143] There shall be no reply submissions without leave of the Court.
LeMay J
Released: March 6, 2015
APPENDIX “A”
Calculations of Support Arrears
Within each number, I have indicated the exhibit it is taken from.
A. Child Support
2009 Income $67,682.41 (Ex. 35)
Owing - June 29 – 30 $ 104.53
- July 1 – Dec. 31 9,408.00
Total $ 9,512.53
Less setoff ½ of paid house expenses (Ex. 29)
June 29 – 30 60.00
July 1 – 31 740.00
Aug. 31 – Dec 31 4,500.00
Total $ 5,300.00
Total Arrears 2009 $4,212.35
2010 Income $68,772.00 (Ex. 35)
Owing $1,592.00/month
12 months $ 19,104.00
Less ½ expenses paid to house (Ex. 29)
First 7 months 5,180.00
Last 5 months 4,500.00
Total arrears 2010 $ 9,680.00
2011 Income $66,671.00 (Ex. 35)
Owing $1,546.00/month
12 months $ 18,552.00
Less ½ expenses paid to house (Ex. 29)
10,800.00
Total arrears 2011 $ 7,752.00
2012 Income $72,991.85 (Ex. 35)
Owing $1,678.00/month
12 months $ 20,136.00
Less support payments (Ex. 40) 1,170.00
Less mortgage to April 2012 (Ex. 29) 3,600.00
Less payments per Donohue J.’s
Order to Oct. 13, 2012 (Ex. 18) 3,950.00
Less payments
(Nov. & Dec. 2012) (Ex. 40) 1,380.00
Total deductions 8,930.65
Total arrears 2012 $ 11,205.35
2013 Income $76,526.94 (Ex. 29)
Owing $1,753.00/month
12 months $ 21,036.00
Less payments (Ex. 40) 18,636.00
Total arrears 2013 $ 2,400.00
2014 Income (based on 2013 income but Ex. 13
suggests slightly less – subject to adjustment) $76,526.94 (Ex. 29)
Owing $1,753.00/month
12 months $ 21,036.00
Less payments 18,636.00
Total arrears 2014 $ 2,400.00
2015 Income (based on the same income as 2013 and subject to adjustment)
Owing 2 months arrears $ 400.00
Total arrears 2015 $ 400.00
Total Child Support Arrears $ 37,793.35
B. Spousal Support
2012 Owing $350.00 x 7 months $ 2,450.00
Paid 0.00
Per Ex. 40 – all payments credited
against child support arrears 0.00
Total arrears 2012 $ 2,450.00
2013 Owing $350.00 x 12 months $ 4,200.00
Paid $412.00 x 12 4,944.00
Total arrears 2013 $ (744.00)
2014 Owing $350.00 x 12 months $ 4,200.00
Paid $412.00 x 12 4,944.00
Total arrears 2014 $ (744.00)
2015 Owing $350.00 x 2 months $ 700.00
Paid $412.00 x 2 814.00
Total arrears 2014 $ (114.00)
Total spousal support arrears $ 798.00
Total Arrears $ 38,591.35
Less Mr. Osman’s share of house (26,513.52)
Less ½ of Gowlings fee (Ex. 18) (1,502.46)
Total arrears to be paid $ 10,573.37
APPENDIX “B”
Net Family Property
Applicant
Assets
RBC $ 780.55
Winners RRSP 9,224.19
Winners DPSP 8,606.43
PC Financial 377.46
2004 Ford Freestar 4,000.00
Total $22,980.63
Liabilities
Car loan $11,500.00
Contingent Liability 4,457.66
RBC Visa 1,537.52
Line of credit PC Financial 3,886.52
Total $21,381.70
NFP $1,606.93
Respondent
Assets
Furniture $ 2,000.00
Bank Accounts 700.00
Total $ 2,700.00
Liabilities
Credit card $ 203.75
Father’s loan 67,500.00
Brother’s loan 3,000.00
Total $70,703.00
NFP $ 0.00
CITATION: Osman v. ElKadi, 2015 ONSC 1124
COURT FILE NO.: FS-12-75533-00
DATE: 20150306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Gamal Osman
Applicant
- and -
Manal ElKadi
Respondent
REASONS FOR JUDGMENT
LeMay J
Released: March 6, 2015