N.R.I.H. v. M.G.S.H., 2015 ONSC 3277

NEWMARKET COURT FILE NO.: FC-11-39621

DATE: 20150522

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

N.R.I.H. aka N.R.I.H.

Applicant

– and –

M.G.S.H.

Respondent

Judith M. Nicoll for the Applicant

Leon Wickham, for the Respondent

HEARD: May 21, 22, 23, 26, 30,

June 2, 3, 4, 5, 6,

November 17, 18, 19, 20, 21, 24,

25, 26, 2014

REASONS FOR DECISION

WILDMAN J.:

INTRODUCTION

[1] Dr. and Mr. M.G.S.H. separated on August 8, 2011, after eighteen years of marriage. This decision relates to each party’s claim for an equalization payment from the other and Mr. M.G.S.H. claim for spousal support.

[2] This trial extended over two trial sittings, beginning in May of 2014 and ending in November. Near the beginning of the first stage of the trial in May, the parties reached an agreement about the parenting arrangements for their two children. Their oldest child, N.H. (born […], 1993), is now 21 years old and going to university in Egypt. Their son, K.H. (born […], 2002), is 12 and in Grade 7. He continues to live with his mother in Markham.

[3] Sadly, Mr. M.G.S.H. is no longer in contact with N.H and he has seen very little of K.H since the separation three years ago. Although the parties agreed in May that K.H would begin having access with his father, Mr. M.G.S.H. has not resumed his relationship with his son, for reasons that will be discussed in more detail below.

[4] The parties have been unable to resolve their financial issues. Dr. N.R.I.H. says that Mr. M.G.S.H. owes her a substantial equalization payment because she believes he owns millions of dollars of assets in Egypt. Mr. M.G.S.H. denies this, and is claiming an equalization payment from Dr. N.R.I.H., as she owns all the assets in Canada, including the matrimonial home. Dr. N.R.I.H. says it would be unconscionable for her to have to pay Mr. M.G.S.H. an equalization payment, as he has not contributed to the accumulation of the assets. She also alleges that there has been domestic violence throughout the marriage, including a sexual assault against her on the evening before the separation, for which Mr. M.G.S.H. is currently facing criminal charges.

[5] This decision will also deal with Mr. M.G.S.H. claim for spousal support from Dr. N.R.I.H.. There are issues of entitlement and duration, as well as questions relating to the incomes that should be assigned to each party in order to determine the amount, if any, of spousal support that Mr. M.G.S.H. should receive.

OVERVIEW

[6] Dr. N.R.I.H. is a family physician. Mr. M.G.S.H. was a professional engineer in Egypt. However, since the parties immigrated to Canada in 1993, he has not requalified as an engineer. He has worked in various minimum wage jobs at convenience stores, a gas station and driving a taxi. Both parties agree that Dr. N.R.I.H. has been the primary breadwinner of the family, particularly since she opened her medical practice in 2001.

[7] From the very beginning, this does not appear to have been a very happy marriage. Both parties believe they did far more than the other throughout their time together, and neither feels that the other has been respectful or supportive of them as a spouse.

[8] Dr. N.R.I.H. describes herself as a single parent. She says Mr. M.G.S.H. contributed next to nothing to the marriage. According to her, she was responsible for all the domestic and childcare duties, as well as paying all the bills and being the sole financial supporter of the family.

[9] In order to provide for the family and build a better life for her children, Dr. N.R.I.H. studied hard to requalify as a doctor after the family immigrated to Canada in 1993. She says that, not only did Mr. M.G.S.H. refuse to assist her at all in this endeavour, he actively discouraged her studies and belittled her. She says he was physically, emotionally and verbally abusive to her throughout the marriage. She says the evening before they separated, he sexually assaulted her, causing her significant humiliation and mental distress to the point where she is no longer able to work full-time as a physician. As mentioned previously, Mr. M.G.S.H. is currently facing sexual assault charges for that incident, as well as a second charge relating to taping Dr. N.R.I.H. private conversations with her sister without her consent.

[10] Mr. M.G.S.H. perception of the marriage is completely different. He says that it is Dr. N.R.I.H. who is overbearing, and that she is relentless in her treatment of him and the children. He says that he was the primary caregiver for the children throughout the marriage, and performed most of the household tasks as well, so that Dr. N.R.I.H. could pursue her requalification as a physician here in Canada. In his words, he did it all: he was the father, the mother, the wife and the husband.

[11] Mr. M.G.S.H. was a mechanical engineer in Egypt. When he came to Canada, he planned to requalify and re-establish his professional career as an engineer. However, he says that Dr. N.R.I.H. insisted she could make more money as a doctor, so the couple decided to make her requalification their first priority. He set aside his own career ambitions, so that she could concentrate on becoming a doctor in Canada.

[12] Mr. M.G.S.H. says that once his wife had passed her exams, and was ready to start work, he wanted to return to school to become qualified as an engineer. He says his wife told him that it would not be worthwhile and would be unfair to the children to have both of them working.

[13] Mr. M.G.S.H. denies ever being abusive to his wife. His counsel portrays Mr. M.G.S.H. as a peaceful, meek man, who was frightened of Dr. N.R.I.H., and submitted to her demands rather than cause trouble.

[14] The main assets in Canada for this family are the matrimonial home; Dr. N.R.I.H. medical practice; and some savings, including RRSPs. All of these assets are in Dr. N.R.I.H. name. She says that these have been accumulated exclusively through her efforts and Mr. M.G.S.H. made no contribution at all. She is asking for an unequal division of the net family property on the basis that it would be unconscionable for Mr. M.G.S.H. to receive any portion of the family assets, given his lack of contribution to the marriage. She also says that she should not have to pay Mr. M.G.S.H. any spousal support, as it would be unthinkable to require her to now support the man who abused her for so many years. She points out that he abandoned the family, including their two children, and she has had to pick up the pieces, both emotionally and financially. She says he has never really tried to pursue lucrative employment and there is no reason that he cannot try to support himself.

Decision

[15] I am not satisfied on the evidence that Mr. M.G.S.H. has any assets in Egypt. In particular, he did not have over $5,000,000 in shares or money, as suggested by Dr. N.R.I.H., nor does he own land in Sinai.

[16] I am also not satisfied that either party has established that he or she should receive a deduction for personal loans claimed on the separation date.

[17] This means that Mr. M.G.S.H. is entitled to an equalization payment of $607,569.66.

[18] I am not satisfied that Dr. N.R.I.H. has met the onus of establishing that Mr. M.G.S.H. conduct was so shocking that it would be unconscionable for him to receive his equalization payment. While he may not have been the ideal husband, he did make contributions to the family, both financially and by performing some childcare responsibilities and household tasks. However, I am going to order that the payments be made in instalments, in order to minimize the impact on the children, and to allow Dr. N.R.I.H. to get back on her feet.

[19] I also find that Mr. M.G.S.H. is entitled to some spousal support but I have restructured the payments to provide for a higher amount over a shorter duration. Given the toxic relationship between these parties, and the weak compensatory component of Mr. M.G.S.H. claim, I have decided that the needs of this particular family will best be met by imposing a termination date. I will explain how I have structured the spousal support later in the decision.

THE FACTS

[20] This decision will review the history of the relationship during five different time periods:

1. 1992 to 1993 – The time in Egypt

2. 1993 to 1996 – The time in Hamilton

3. 1996 to 2003 – The time in Scarborough

4. 2003 to 2011 – The time in Markham

5. 2011 to present – The time after separation

1992 to 1993 - The time in Egypt

[21] Before they were married, both parties were living in Cairo, Egypt. Dr. N.R.I.H. was already a medical doctor with a Bachelor’s Degree in medicine. She was involved in a residency program in obstetrics and gynaecology and was hoping to obtain a Master’s Degree in that area of specialization.

[22] Dr. N.R.I.H. was assisting another doctor with his medical practice, when she came to the attention of Mr. M.G.S.H.. She was 29 years old at the time, and Mr. M.G.S.H. was 36. Mr. M.G.S.H. arranged for an introduction and, subsequently, arranged a marriage through Dr. N.R.I.H. family members. They dated for approximately five months prior to their marriage, during which time Dr. N.R.I.H. recalls Mr. M.G.S.H. lavish and loving treatment of her. They went to expensive restaurants and he gave her a beautiful diamond engagement ring. Mr. M.G.S.H. was a mechanical engineer and talked about the bright future they were going to have together as two working professionals. He was kind and generous, and Dr. N.R.I.H. was excited about the pending marriage. Prior to the marriage, as is the custom in Egypt, Dr. N.R.I.H. helped to furnish the apartment where the respondent was living with his mother, although she says Mr. M.G.S.H. did not tell her that the apartment actually belonged to his mother rather than him. Dr. N.R.I.H. says that she spent most of the money that she had inherited from her family to furnish this apartment.

[23] There were two wedding ceremonies, the first a religious ceremony on December 31, 1992, followed by a lavish reception on a boat on January 27, 1993. Dr. N.R.I.H. says she then moved into what she thought was her husband’s apartment. She says she was shocked to learn that it was really her new mother-in-law’s apartment, and that Mr. M.G.S.H. mother took the position that she was now entitled to all the furnishings that Dr. N.R.I.H. had purchased.

[24] Mr. M.G.S.H. agrees with the details of their courtship and wedding but says that Dr. N.R.I.H. knew he was not wealthy. In fact, he says that he almost did not go through with the wedding and marriage because he could not afford it. He met with Dr. N.R.I.H. aunt, who was the matriarch of the family and the person he dealt with in arranging the marriage. He says she convinced him to go ahead with the marriage by agreeing that Dr. N.R.I.H. or her family would pay some of the costs, including furnishings for his mother’s apartment.

[25] Mr. M.G.S.H. says that Dr. N.R.I.H., her sisters and her aunt, had all visited his mother’s apartment before the marriage, and knew full well that it was his mother’s, rather than his. He says they were aware that it was a rental apartment, and Dr. N.R.I.H. knew going into this marriage that he was not a rich man.

[26] I pause now to point out to the parties that, although differences in the evidence like these appear to be very important to them, I am not going to try to resolve them. What I am hoping to do throughout this decision is try to acknowledge each party’s perspective but I will only make findings of fact when it is necessary to determine the legal issues that I have been asked to decide.

[27] For example, it is not necessary to decide what Dr. N.R.I.H. knew about Mr. M.G.S.H. financial situation when they got married, as it was many years ago, and will have no effect on my rulings about equalization or spousal support. Regardless of how they got together, and what Dr. N.R.I.H. believed, they ended up married and living in Mr. M.G.S.H. mother’s apartment.

[28] According to Dr. N.R.I.H., things took a dramatic turn for the worse as soon as she was married to Mr. M.G.S.H.. She says that her new husband almost immediately became physically abusive and would push her, pull her hair and bruise her body. On one occasion, he followed her during the day without her knowledge and stormed into her aunt’s apartment, where Dr. N.R.I.H. had stopped to visit. She described him stomping around the apartment in a rage, trying to discover whether she was meeting up with someone behind his back.

[29] Mr. M.G.S.H. denies the abuse. He is adamant that he was never physically aggressive with his wife. He admits that he followed her into her family’s apartment but says that he was just trying to tell her to hurry up, as they needed to be somewhere.

[30] Three days after the wedding, Dr. N.R.I.H. answered a chance telephone call at Mr. M.G.S.H. mother’s apartment. It was from the Canadian Embassy in Cairo advising that Mr. M.G.S.H. had been accepted to immigrate to Canada.

[31] Dr. N.R.I.H. says she was stunned. She says that Mr. M.G.S.H. had not told her anything about planning to move to Canada before this. When she confronted him, she says his explanation was that he did not feel his application would be approved, as he had been turned down previously, so he saw no reason to mention it to her.

[32] Mr. M.G.S.H. says that he had most certainly told Dr. N.R.I.H. that it was his dream to immigrate to Canada. He says Dr. N.R.I.H. told him that her dream, or possible plan, was to move to Saudi Arabia, where she would be in high demand as a female Muslim doctor. He says he can recall exactly where they were sitting and what they were drinking when they had this discussion.

[33] This is another example of where it is not critical to my decision to resolve the differences between the perceptions of what happened. I agree that it would be odd for Dr. N.R.I.H. to have shared her “dream” with Mr. M.G.S.H. and not have him respond by mentioning his “dream” of coming to Canada. However, that would be in keeping with Mr. M.G.S.H. approach to any possible disagreement. He prefers to avoid differences rather than resolve them. It is quite plausible to me that he would hear about Dr. N.R.I.H. plans and keep quiet about his own, because his prior application to come to Canada had already been refused, and he had no idea if it would be approved this time. Alternatively, he could have mentioned his “dream” in passing, without impressing upon Dr. N.R.I.H. that this was a serious plan that was already in the works.

[34] I suspect what happened was the phone call came through and everyone was somewhat surprised, because even Mr. M.G.S.H. had no idea that a decision was imminent, or that he would be approved.

[35] The parties agree that Mr. M.G.S.H. had applied to immigrate to Canada before they were married. He had been to Canada in the past and felt moving to Canada would be a chance for a better future than in Egypt. He had been disappointed when his prior immigration application had been refused, and did not want to risk the chance that was finally being presented to him. His plan was to get established in Canada, and then sponsor his new bride to come and join him, so that their baby could hopefully be born in Canada.

[36] On April 22, 1993, Mr. M.G.S.H. left Dr. N.R.I.H. in Egypt with his mother, and he moved to Canada. By that time, Dr. N.R.I.H. was approximately 10 to 12 weeks pregnant. She says she was not part of Mr. M.G.S.H. decision to move and she describes feeling absolutely abandoned and helpless, with no idea what to do.

[37] Dr. N.R.I.H. says that Mr. M.G.S.H. had her resign from her job before he left Egypt. She says he told her this would make it easier for her to be approved to leave Egypt and join him in Canada. The fact that she had quit her job satisfies me that, at that point at least, there was a joint plan to relocate to Canada. The agreement was that Mr. M.G.S.H. would sponsor Dr. N.R.I.H. from Canada, which he did.

[38] Dr. N.R.I.H. described the agonizing choice she had to make after Mr. M.G.S.H. left about whether or not to try to join him in Canada. On the one hand, she was shocked at the change she had seen in her husband following their marriage. On the other hand, she was now pregnant and describes the shame she felt in Egypt, where she felt that a woman’s status was determined largely by her marriage. She had quit her job and had no means of support. Although Mr. M.G.S.H. says he left her $4,000, which he borrowed from a friend, I suspect that he gave this money to his mother to look after expenses for the apartment that she and Dr. N.R.I.H. were living in together when he left. This would be more in keeping with Mr. M.G.S.H. behaviour subsequently, as he clearly felt that it was his responsibility as the only son to look after his mother in Egypt. Apparently Mr. M.G.S.H. need to provide for his mother continued throughout the marriage, as he sent her money at various times, without Dr. N.R.I.H. knowledge or consent. I find that it is unlikely that Mr. M.G.S.H. would give his new wife money when he left, rather than giving it to his mother.

[39] I suspect that Mr. M.G.S.H. assumed that his mother would look after most of Dr. N.R.I.H. expenses, as they were living together. However, Mr. M.G.S.H. mother “kicked Dr. N.R.I.H. out” of her apartment shortly after he left. She was forced to move back to her family’s apartment, while she tried to pursue her education and complete her Master’s Degree. As Mr. M.G.S.H. was not sending her any money, her sole means of support was her two sisters and her aunt, who were living in the apartment with her. She was pregnant and newly married, and did not feel it was a viable choice for her to remain in Egypt and refuse to follow her husband.

[40] Dr. N.R.I.H. set to work to try to get approved to immigrate to Canada as well. She says she went to the Canadian Embassy in Cairo many times to try to complete her application. She talked about the shame she felt when the Embassy advised her that she could not travel as a married woman because Mr. M.G.S.H. had not revised his marital status when he left, so she was still considered to be unmarried. Although she begged them to consider her pregnancy and allow her to go, it was quite an ordeal to have them accept that she was married to Mr. M.G.S.H..

[41] I suspect Mr. M.G.S.H. did not change his status to “married” in Egypt before he left because he had waited for this approval for so long, he did not want to do anything to jeopardize it. However, shortly after he arrived in Canada, he did as he had promised, and applied to sponsor Dr. N.R.I.H. to join him as his wife. She was approved and, on September 9, 1993, Dr. N.R.I.H. arrived in Canada. She was totally unprepared for the reality of her new life.

1993 to 1996 - The Time in Hamilton

[42] Mr. M.G.S.H. was on Social Assistance and living in assisted housing in Hamilton, Ontario. He had obtained a small, two-bedroom apartment, with mattresses and a table. This was a drastic change from the standard of living that Dr. N.R.I.H. had been accustomed to in Egypt, and assumed she would have in Canada. Instead, she slept alone, on a mattress on the floor, in a separate room from her husband. She says this continued throughout the three years that they lived in this apartment, with their baby, N.H, joining her on the mattress on the floor after she was born.

[43] Mr. M.G.S.H. points out that they were immigrants and just starting out. He was doing his best. Before Dr. N.R.I.H. arrived, Mr. M.G.S.H. moved out of his uncle’s residence and found a two bedroom apartment for himself, his wife and the baby. He got a job in a convenience store in Mississauga, which required him to travel almost 2 hours by train and bus each day. He received very little pay but was prepared to do it to get even a little extra money for the family. He arranged Social Assistance for the family and he did his best to furnish the apartment before his wife arrived.

[44] Mr. M.G.S.H. admits that the furnishings were meagre but he had no money. Rather than dealing with the reality of life as a newcomer to Canada, he says his wife demeaned him from the start, and was ashamed of the life he was trying to establish for them in Canada. Unfortunately, Mr. M.G.S.H. has never felt a change in that attitude from his wife. He still feels she has no respect for him, or for the contributions he has tried to make to build a successful life for their family in Canada. She feels she has done it all and, to quote her application, “he always was and is a taker”.

[45] On […], 1993, shortly after Dr. N.R.I.H. arrived in Canada, N.H was born. However, what should have been a happy event, apparently added to the tension between Mr. and Dr. N.R.I.H..

[46] According to Dr. N.R.I.H., Mr. M.G.S.H. refused to participate at all in the care of N.H. He told her that, as a man, he was the head of the household and she, as a woman, was required to look after the home and the children. She says he was extremely controlling and abusive, and would leave her and disappear for days and sometimes weeks, without leaving any food or money for her. She was desperate, isolated, and panicked that she had no way to even get in touch with emergency assistance should the baby need it, as she had no phone. She describes begging Mr. M.G.S.H. to take her and their young daughter out, particularly as N.H got a little older and would stand at the door, pushing her face against it, wanting to go out on an outing. She says Mr. M.G.S.H. refused.

[47] Mr. M.G.S.H. denies that he was abusive but admits that, when he and Dr. N.R.I.H. had a disagreement, he would leave and go and stay with friends, rather than engage in the argument. He has a philosophy that he repeated several times during the trial: “If someone throws a stone at me, I kick it aside and keep walking. I do not throw the stone back.”

[48] Unfortunately, his withdrawal from any conflict in his marriage meant that problems were never resolved and things continued to deteriorate between the couple. Mr. M.G.S.H. pattern of leaving his family for extended periods of time, without explanation, continued throughout the marriage. He refuses to acknowledge how controlling, cruel and unproductive this was. He apparently had no regard or appreciation for the effect this had, both on Dr. N.R.I.H. and his children. Particularly in the early years, when Dr. N.R.I.H. had no supports or financial means, I can understand how she characterizes this treatment as abuse.

[49] At one point, Mr. M.G.S.H. took his wife to the bank to “sign some papers”. It appears that he had set up a bank account in their joint names, which Dr. N.R.I.H. subsequently learned was to facilitate the deposit of the Social Assistance cheques, as well as the “baby bonus”, which came in her name. Mr. M.G.S.H. controlled the account. Dr. N.R.I.H. recalls begging him to give her a few dollars to buy a doll or some other small present for N.H on her first birthday but Mr. M.G.S.H. refused. Her recollection of details like this is so clear and upsetting to her, even after all these years, that I have no doubt it happened.

[50] Ultimately, Dr. N.R.I.H. set up a separate account for the baby bonus money of approximately $100 per month, which she hoped to maintain as a savings account for N.H. However, she confirms that, when she had no other alternative, she used that money to buy food and diapers for the baby.

[51] Mr. M.G.S.H. says he was doing his best, and his wife refused to accept the reality of their financial situation. They were trying to get by on their limited funds from Social Assistance, supplemented by his wages from the variety store. They were both trying to go to school. Presumably, he felt they could not afford to purchase gifts for a one-year-old or save $100 each month. The baby bonus was intended to assist with expenses for the baby and he felt that it was reasonable to use it for that purpose, rather than try to save it for the future.

[52] During this time, Dr. N.R.I.H. began to work on a plan to become requalified as a physician, in order to assist the family financially. She says that she also begged her husband to try to become requalified as an engineer, but he was not very interested, preferring to continue to rely on Social Assistance.

[53] Mr. M.G.S.H. disagrees. I am satisfied that he investigated the requirements to become requalified as an engineer, as he has a letter from the University of Toronto, dated November 1, 1993, confirming that his Engineering degree from Cairo would be recognized “as equivalent to a four-year Bachelor’s degree in Mechanical Engineering from a reputable Canadian university”. However, he needed to do some upgrading, including to his English language skills, which is something he started to work on right away.

[54] From 1993 to 1996, the parties continued to live in the Hamilton apartment. Dr. N.R.I.H. was primarily studying for her medical exams and did not work outside the home, other than as a volunteer at McMaster for approximately six months. She says that she had to study, and look after N.H, and her husband gave her no help whatsoever.

[55] Dr. N.R.I.H. recalls the time right after N.H’s birth as a very difficult period. She says that she and N.H had to sleep in a separate room from Mr. M.G.S.H., on a mattress on the floor. Eventually social services got a crib for N.H. She recalls trying to breastfeed N.H but being in extreme pain because of mastitis. As Mr. M.G.S.H. felt they could not afford formula, she continued to try to breastfeed through the pain, but N.H was not getting sufficient nutrition. When they took N.H to the hospital, she was completely dehydrated, and the doctor said she would have to be fed by formula. Dr. N.R.I.H. says Mr. M.G.S.H. refused and she recalls being humiliated when she had to go to the Food Bank for formula, which was “very tough, painful, I had to beg for food for my baby, but I had no other choice”. Even all these years later, Dr. N.R.I.H. broke down crying in her testimony recalling this difficult period of her life. I accept her evidence that it was a very hard time for her.

[56] As one of the first steps in reestablishing her career in Canada, Dr. N.R.I.H. obtained a volunteer job at McMaster University, so she had to put N.H in daycare. Even when his mother came to visit for two months in February of 1994, she says that her husband and mother-in-law would not agree to look after N.H, and would go off on their own, leaving her and the baby at home. She says her husband would only give her enough money for one bus ride, which she needed to use to get to McMaster. In order to drop N.H off at the daycare, Dr. N.R.I.H. recalls walking approximately 35 to 40 minutes in the snow, every morning and evening. She poignantly recalls carrying N.H in a pouch, covered with a blanket to keep her warm, and telling her as they walked, “My princess, I promise you that I will make a good life for you, buy you the clothes and make a good home for you, just bear with me”.

[57] When she dropped N.H at the daycare, Dr. N.R.I.H. would use her bus ticket to try to get to the lab at McMaster on time to do her work. At the end of the day, she would return to pick her up. Once her volunteer job was done at McMaster, she says she stayed home with N.H and was responsible for all the childcare and domestic responsibilities, while also trying to study for her requalification exams as a doctor. At the time, she recalls that Mr. M.G.S.H. was a full-time student, who was gone all day.

[58] Mr. M.G.S.H. has a different recollection. He had gone back to school to try to move forward and help the family. He felt that he was working hard. He received a certificate in “Labour Market Language Training” from Mohawk College for a three-month full-time course completed on March 25, 1994, and a further certificate from Mohawk for a one-month course in English as a second language re-employment training on June 30, 1994.

[59] Mr. M.G.S.H. says that, during the time that he was at school and Dr. N.R.I.H. was volunteering at McMaster, he assisted by picking N.H up at daycare at the end of each day, after he was done school. After that he stayed home full-time for the summer, so that Dr. N.R.I.H. could study for her Medical Council Evaluation Exam. She took those exams in September of 1994, but, unfortunately, did not pass.

[60] A few months later, Mr. M.G.S.H. returned to school for a six-month course of study, graduating from Mohawk with a certificate in Computer Aided Drafting on May 26, 1995. On March 16, 1995, Dr. N.R.I.H. succeeded in passing Part 1 of her Medical Evaluation Exam, which was the first step in requalifying in Canada. However, she says that when she failed the exam the first time, her husband told her it would be useless to continue, as she would never pass. She had to borrow the money to write the exams the second time from her sister, because Mr. M.G.S.H. refused to spend any more on her examination fees.

[61] The unhappiness at home continued. Dr. N.R.I.H. testified that her husband would continue to go off for days, or even weeks at a time, particularly after an argument, and she and N.H would be left with no money or food. She described frequent physical aggression by him, including pushing, kicking and pulling her hair.

[62] During the summer of 1994, the couple had a major argument. Dr. N.R.I.H. says that her husband pushed her hard and she fell on the floor on her back. She says he came on top of her, put his hands around her neck and started to choke her. She recalls gasping for air and ultimately getting away to her bedroom. When she said she was going to call the police, Mr. M.G.S.H. said he was not afraid of the police and taunted her by dialing the number for her. He immediately hung up but the police apparently traced the call and came to the apartment.

[63] Dr. N.R.I.H. says she was frightened of her husband and tried to say nothing. However, a female officer met with her privately in the bedroom and questioned her about the bleeding and fingernail marks on her neck. Dr. N.R.I.H. broke down and told her what had happened. Mr. M.G.S.H. was arrested and removed from the home.

[64] Mr. M.G.S.H. remembers this event and admits that they were having an argument. However, he denies that he was physically abusive to his wife. He admits that he called 911 during the argument and hung up, but did not offer any reasonable explanation of why he made the call, other than to intimidate his wife. He did not address the evidence that the female officer observed scratches and bruising on Dr. N.R.I.H. neck. He agrees that he was charged and removed from the home after the police officer met with Dr. N.R.I.H. privately but says he was permitted to return home the next day and that Dr. N.R.I.H. apologized to him.

[65] I found Dr. N.R.I.H. description of this event to be far more convincing than Mr. M.G.S.H. rather vague denial. Dr. N.R.I.H. was visibly distressed and could not get through this portion of her testimony without crying. Despite the stress it caused her to talk about this incident, she returned to it at different points in her evidence, particularly when trying to counter Mr. Wickham’s suggestion that her husband was a peaceful, timid man. Her evidence about this assault was consistent throughout her testimony, detailed and definite.

[66] I am satisfied, on a balance of probabilities, that Mr. M.G.S.H. hurt Dr. N.R.I.H. in a physical argument in 1994, which resulted in the charge against him.

[67] Ultimately, Dr. N.R.I.H. asked that the charge be “dropped”, which the Crown did. This was confirmed by a letter from Mr. M.G.S.H. lawyer at the time.

[68] Considerable questioning was devoted to the details of how the charges came to be withdrawn. I suspect that Dr. N.R.I.H. was incorrect about her husband’s lawyer pushing her to drop the charges, and find it was much more likely that she spoke with a duty counsel or Crown Attorney. However, the identity of the person that she spoke to is not critical. I suspect that the intensity of the cross-examination regarding the details of this incident may have related, in some way, to the upcoming criminal process regarding Mr. M.G.S.H. current charges. There certainly appeared to be a dynamic at play in the questioning about the 20-year-old domestic assault charge that was out of proportion to its relevance to the issues in this family law trial.

[69] Dr. N.R.I.H. admitted that she asked that the charges be withdrawn. When asked why, she ruefully said, “Good question.”

[70] Dr. N.R.I.H. explained that she was an immigrant woman who was completely isolated, with a young child, in a foreign country. She had no money, food, family or other supports. She had no transportation and was unfamiliar with the culture and systems in Canada to access assistance. She was frightened and hoped that it was the best decision for her family to have the charges dropped, so that her husband would not be prosecuted. I find that to be a credible explanation, and do not find the fact that she asked that the charges be withdrawn is evidence that the incident of violence did not happen.

[71] Returning to the balance of the time in Hamilton, I will focus on the contributions made by Mr. M.G.S.H., as that is what is being called into question with the arguments of unconscionability and lack of grounds for compensatory support.

[72] I have already noted that Mr. M.G.S.H. had received confirmation that his engineering degree would be accepted in Canada and that he had completed courses at Mohawk in Labour Market Language Training (March 1994) and ESL Re-Employment Training (June 1994). The following year, he took a full-time six-month course in Computer Aided Drafting from Mohawk and received his certificate on May 26, 1995. This was a course that would, apparently, have related to him obtaining work as a mechanical engineer. This satisfies me that, at least up to that point, he was planning to try to pursue his career as a mechanical engineer in Canada.

[73] Dr. N.R.I.H. submission that her husband “refused to work, always finding excuses, and found it much easier to obtain Social Assistance” is an exaggeration. During the time in Hamilton, in addition to going to school at times, and providing some assistance with childcare and cooking, he was also working part-time to supplement the income the family was receiving from Social Assistance. I have noted the job he had at the convenience store in Mississauga on weekends in 1993, which required him to travel for several hours by train and bus for each shift. He was also working Sundays, and sometimes full weekends, at another convenience store closer to home in October of 1994. He did not stay at that job long but, almost immediately after he left, he found further employment at a convenience store in Markham, where he worked part-time from November of 1994 to 1996. Mr. M.G.S.H. admits that he was paid cash at all his jobs, and this income was not declared to Social Assistance or Revenue Canada.

[74] Although Dr. N.R.I.H. was clearly the primary caregiver for N.H during this time, Mr. M.G.S.H. did provide some assistance, particularly over the summer of 1994, while Dr. N.R.I.H. was studying for her first Medical Qualifying exam. I accept his evidence that he took a break in his full-time studies between June and September of 1994, to help more with the childcare and household duties. I accept Mr. M.G.S.H. evidence that he also assumed some of the responsibility for meal preparation, particularly for him and N.H.

[75] The parties agree that Mr. M.G.S.H. gave Dr. N.R.I.H. the money from the family finances for her first attempt at her Medical Exams in 1994, although they differ about whether she had to borrow money from her sisters for future exams. I also accept Mr. M.G.S.H. evidence that he helped Dr. N.R.I.H. by going to the library to copy things; by assisting her to fill out her application; by driving her to her tutor, as Dr. N.R.I.H. did not drive on the highways; and by getting notes from other students and copying them for her.

[76] However, it is clear that the relationship continued to be a difficult one. At one point in 1995, Mr. M.G.S.H. acknowledges that he “divorced” his wife. According to the H.’s religion, a man can unilaterally decide to divorce his wife. He can also unilaterally end the divorce by “taking her back”, which Mr. M.G.S.H. did after a few weeks of “disappearing” without explanation, leaving his wife alone with their baby, wondering what their future might be.

[77] Dr. N.R.I.H. described the effect this had on her. As a woman of faith, this divorce was very real to her. The idea that her husband could end their marriage unilaterally, and that he could also take her back if he wished to, was very significant and heightened her feelings of loneliness and vulnerability in this relationship.

[78] In summary, I find that the time in Hamilton was unhappy and Mr. M.G.S.H. could certainly have been a more supportive and engaged husband. His dismissive manner of dealing with his wife, particularly with his unexplained absences from the home, was cruel and controlling.

[79] However, Mr. M.G.S.H. was also contributing to the advancement of the family’s situation by attending school, working and doing some childcare, while Dr. N.R.I.H. studied. He did help her with the logistics of applying for, and ultimately passing, her Medical Qualifying exams. The family was pooling their resources from Social Assistance, Mr. M.G.S.H. limited income, and the “baby bonus”, in order to cover their living expenses and both parties’ schooling. When the family moved from the Hamilton apartment in 1996, their future prospects were better than when they had arrived, and Mr. M.G.S.H. contributed to putting the family in this better position.

The Time in Scarborough – 1996 to 2003

[80] As Mr. M.G.S.H. had been commuting from Hamilton to Markham for his part-time job at the convenience store, the family relocated to an apartment in Scarborough in September of 1996. By this time, Dr. N.R.I.H. had passed her first medical evaluation exam but, in order to work in Canada, she had to find a residency position. She sent numerous applications but was unsuccessful in finding a placement. She was exploring options in the United States, when she learned about a program in Ontario for international applicants. To be considered, she would have to place in the top 24 students writing the exam.

[81] At the same time as Dr. N.R.I.H. was studying for the U.S. Licensing Exams, she also prepared for the Ontario International program. She completed the required TOEFL (English test) and TSE (Test of Spoken English) in 1997, along with the first qualifying exam. In April 1998, she passed the Ontario medical examination and placed in the top 24, so she was accepted into the Ontario program for international physicians.

[82] Dr. N.R.I.H. was very proud of her accomplishments, as she should be. She had worked extremely hard and, on April 3, 1998, the family withdrew from “welfare” for the first time since immigrating to Canada.

[83] In 1998 and 1999, Dr. N.R.I.H. completed placements at Sunnybrook and Women’s College Hospitals. On May 18, 1999, she was successful in completing Part Two of the Ontario Medical Qualifying Exam and was offered a two-year residency at Mount Sinai Hospital. This was the final step for her to become qualified as a doctor in Canada.

[84] During 1998 and 1999, Mr. M.G.S.H. was also doing some schooling and working part-time. He provided some limited assistance to Dr. N.R.I.H. with her studies, at least by driving her to and from her tutor. Dr. N.R.I.H. acknowledges that he drove her to the tutor and this was also confirmed by his co-worker, Mr. W.B., who testified Mr. M.G.S.H. arranged for him to bring Dr. N.R.I.H. to the tutor on one occasion, when Mr. M.G.S.H. was not available. Mr. F.Y., also testified for Mr. M.G.S.H.. He confirmed that when both of their wives were studying for their medical exams, he and Mr. M.G.S.H. would sometimes help them by driving back and forth between the houses with notes and study materials.

[85] Mr. M.G.S.H. worked steadily over this period of time. Initially, from September of 1996 to July of 1997, he was working approximately three days a week with Mr. W.B., who was helping with the preparations for the opening of a grocery store in Etobicoke. When the job preparing the grocery store in Etobicoke ended in July 1997, Mr. M.G.S.H. worked for two months at a convenience store in Markham, but he left that job because the owner did not pay him.

[86] In about September of 1997, Mr. M.G.S.H. got a job with F.T. at a store in Aurora. He was there for about two months but was fired because he was often late due to childcare duties. However, Mr. Taher helped him get a job with his friend at another store, which would allow Mr. M.G.S.H. to work weekends, so that he would not have a conflict with his childcare duties during the week. From January of 1998 to September of 1999, Mr. M.G.S.H. held down two part-time jobs, one at a Mac’s store and another at a different convenience store. He describes often working double shifts on Friday, Saturday and Sunday, so that he sometimes had to sleep in his car.

[87] I am satisfied that while Dr. N.R.I.H. was completing her placements at Sunnybrook and Women’s College in 1998 and 1999, Mr. M.G.S.H. assumed significant childcare responsibilities for N.H. Mr. Taher’s testimony confirmed that these duties affected Mr. M.G.S.H. availability for work, as evidenced by his need to fire him due to lateness after two months at the Aurora store, as well as by him arranging a weekend job for Mr. M.G.S.H. elsewhere, which fit better with Dr. N.R.I.H. availability for childcare on the weekends. If Mr. M.G.S.H. had been a bad employee and fired for any other reason, it is unlikely that Mr. Taher would have arranged the weekend job for him with his friend.

[88] During this time, Mr. M.G.S.H. was also pursuing further education, with the possible goal of becoming an automobile mechanic. He completed an automotive service technician course and became certified on February 5, 1998. In April of 1998, he completed a course through the Automotive Retailers Ontario Training Centre, which qualified him in Advanced Scan Tool Diagnosis. However, Mr. M.G.S.H. said that he was not able to find work in the automotive technician field, so he continued with his work at the convenience store, while his wife completed her practical training at Sunnybrook and Women’s College Hospitals.

[89] As mentioned in paragraph 83, Dr. N.R.I.H. successfully completed her Ontario medical exams in May of 1999. There was now only one last step to complete her requalification as a doctor: she was required to complete a two-year residency. She obtained a position at Mount Sinai, and was to begin in August or September of 1999.

[90] Dr. N.R.I.H. says that, to this point, she was the primary caregiver for N.H, but had been able to juggle her education and childcare responsibilities. I have found that Mr. M.G.S.H. was assisting her during the weekdays by helping with N.H, but I accept that, in the evenings and on weekends, when she returned home, Dr. N.R.I.H. took over care for N.H, and Mr. M.G.S.H. either spent time on his own or with friends, or went to work at one of the two convenience stores.

[91] Dr. N.R.I.H. realized that the medical residency was going to be even more demanding, as she would be required to work long shifts, and spend time overnight at the hospital. At this stage, N.H would have been six years old and approximately in grade one. Dr. N.R.I.H. says she begged Mr. M.G.S.H. to give her more assistance to help her get through her residency.

[92] She says that Mr. M.G.S.H. refused to do any more than he had been doing. He continued to feel that he was doing more domestic chores, including childcare, than most men. He told her, if she needed more help, she should get her sister to come from Egypt to assist.

[93] Dr. N.R.I.H. sister, V.E., confirms that she agreed to come to Canada because Dr. N.R.I.H. phoned her crying and upset due to Mr. M.G.S.H. refusal to assume the childcare responsibilities for N.H, which was necessary for Dr. N.R.I.H. to be available as needed at the hospital. As V.E. knew her sister had spent so long, and worked so hard to become requalified, she agreed to come and help out with N.H.

[94] V.E. arrived in Canada in August of 1999, and moved in to assist the family while Dr. N.R.I.H. completed her residency program.

[95] Once V.E. was in Canada, Mr. M.G.S.H. seems to have felt that he had no further financial or domestic obligations to his wife and child. He had not seen his mother in Egypt for some time and he wanted to go for a visit. Although Dr. N.R.I.H. says she had no idea that Mr. M.G.S.H. was planning to go to Egypt, I accept that Mr. M.G.S.H. may have mentioned that he would like to see his mother. However, even Mr. M.G.S.H. acknowledges, Dr. N.R.I.H. never agreed he could leave. He says she was vacillating in her response, so he unilaterally decided to leave, regardless of what his wife might want.

[96] Incredibly, one day in September or October of 1999, while Dr. N.R.I.H. was at work, Mr. M.G.S.H. packed a suitcase and left to go to see his mother in Egypt. Initially, he says he intended to go for a one-month visit but, when he got over there, he found that his mother was not well.

[97] Mr. M.G.S.H. stayed in Egypt for 8 months. He acknowledges that during that time, he had very little contact with either Dr. N.R.I.H. or N.H, which he inadequately tries to justify by saying that it was difficult to make phone calls from Egypt at that time. Essentially, he abandoned his family, and left Dr. N.R.I.H. to fend for herself, with her sister’s assistance, while she tried to complete her residency.

[98] Dr. N.R.I.H. evidence about Mr. M.G.S.H. departure is that it came as a complete shock. She was at work and received a panicked phone call from her sister. V.E. said that Mr. M.G.S.H. had packed a suitcase and left, without saying anything. He left a letter, with instructions about a bill that he wanted paid.

[99] Mr. M.G.S.H. acknowledges that he did not even tell N.H he was leaving. He visited her at lunchtime the day of his departure, without mentioning he would not be home when she was done school. Then he vanished. Although Dr. N.R.I.H. suspected where he had gone, once she phoned his friends in Canada and could not find him, she did not have any idea if or when he might be back.

[100] This is compelling evidence. Mr. M.G.S.H. contribution to the marriage is relevant to both the unconscionability argument and his spousal support claim. In assessing his contributions, the court needs to evaluate Dr. N.R.I.H. and Mr. M.G.S.H. conflicting versions of the marriage.

[101] Dr. N.R.I.H. says that her husband was inconsistent, unreliable, minimally involved in childcare, and treated her dismissively. She says he would come and go as he pleased, and often left her for days, without any explanation or information about where he was going and when he would return.

[102] Mr. M.G.S.H. version of his role in the marriage is that he was the primary caregiver, and very supportive of his wife and her studies. He says he put his own career ambitions on hold to support the joint plan to get Dr. N.R.I.H. requalified as a doctor. He acknowledges he left occasionally overnight, when he and his wife would have arguments, but says it was always to avoid his wife’s temper. He says he would always return by the morning to get N.H to school.

[103] Mr. M.G.S.H. decision to leave Canada, without his wife’s consent, when she had just begun one of the most critical and demanding periods of the retraining process, causes me to question Mr. M.G.S.H. evidence about the level of support he provided as a husband and father. It is not in keeping with someone who says he was “doing it all”, as the primary caregiver and stay-at-home spouse. While I have found that he had been providing some assistance before V.E. arrived, it does appear that he was resentful and unwilling, and I accept Dr. N.R.I.H. assessment of his unreliability and lack of commitment to her and N.H.

[104] I cannot imagine what Dr. N.R.I.H. went through at this time. Not only was she dealing with the stress of her residency, she was trying to pick up the pieces with N.H. N.H suddenly had her father disappear from her life. If, as Mr. M.G.S.H. suggests, he had been an involved father up to that point, his departure would have had even more impact on his young daughter.

[105] N.H testified in this trial. Mr. M.G.S.H. abrupt departure obviously devastated her. She talked about coming home from school, and realizing he had left, when she went into his closet and saw only a blue bathrobe remaining. She says she blamed herself, and kept asking her mother if this was because of something she had done.

[106] It was particularly painful to hear N.H talk about her efforts to shelter K.H from similar feelings of abandonment, as Mr. M.G.S.H. has now done, essentially, the same thing to him by packing a suitcase and leaving, without a word, in 2011.

[107] Mr. M.G.S.H. actions in abandoning his family in this way in 1999 were inexcusable.

[108] However, without warning, he returned in June of 2000. Mr. M.G.S.H. simply reappeared. N.H saw him get off the elevator and Dr. N.R.I.H. let her run to him. Dr. N.R.I.H. says it broke her heart, and she took him back, as N.H was so excited to see her father again.

[109] The relationship resumed. Before Mr. M.G.S.H. returned, V.E.’s visitor’s permit had expired, so she had to leave. Dr. N.R.I.H. was desperate about what to do, so her family in Egypt again came to her aid. Her aunt came over from Egypt for several months to help out, so Dr. N.R.I.H. could complete her residency.

[110] Once Mr. M.G.S.H. came back in June, Dr. N.R.I.H. aunt was able to return to Egypt. I accept that Mr. M.G.S.H. must have resumed at least some share of the childcare and domestic responsibilities at that point, as Dr. N.R.I.H. did not complete her residency for another year, so she still would have needed help at home. Although, N.H’s recollection is that, up to Grade 3 or 4, she spent a great deal of time at home alone, I do not accept that she could accurately recall all of the specifics of her childcare arrangements when she was only seven or eight years old. Given Dr. N.R.I.H. protective personality and dedication to her children, I do not believe she would have allowed N.H to stay at home for extended periods of time alone at this age. As there is no evidence of outside childcare at this time, it stands to reason that Mr. M.G.S.H. must have taken over for Dr. N.R.I.H. sister and aunt, and assumed some of the responsibilities for childcare.

[111] Dr. N.R.I.H. completed her two-year residency at Mount Sinai on June 30, 2001 and began a three-month internship in obstetrics, which she completed in November of 2001.

[112] At this point, Dr. N.R.I.H. was finally a doctor, qualified to practice in Ontario. She opened her medical practice at the R[…] Clinic, working three days a week from 9 a.m. to 2:30 p.m. However, she was also now pregnant with K.H.

[113] Mr. M.G.S.H. returned to work at the convenience store with Mr. Taher. In July of 2002, he also began working at Mr. W.B.’s “Dollar Zone” store in Markham.

[114] K.H was born on […], 2002. Dr. N.R.I.H. was off work for several months in 2002 due to his birth and a visit that the family took together to Egypt.

[115] However, any hopes that this signaled a fresh start and happier times for this family appear to have been unfounded. While Dr. N.R.I.H. was pregnant with K.H, Mr. M.G.S.H. divorced her a second time. However, after K.H’s birth, he did take her back as his wife. He had her go with him to Mr. Taher’s home, where they appeared before Mr. Taher and his friend, as they required two witnesses to the resumption of their marriage. Once again, Dr. N.R.I.H. was humiliated and demoralized by her lack of control in the status of her marriage and the ability of her husband to divorce her and take her back at his whim.

November 2003 to August 2011 – The Time in Markham

[116] Following K.H.’s birth on August 31, 2002, Dr. N.R.I.H. recollection is that she was able to take a maternity leave for seven or eight months, although she wanted to be at home with the baby for at least a year. The family lived on money she had saved but, when the savings started to run out, her husband insisted that she needed to go back to work.

[117] Initially, she worked at her medical office three-and-a-half days a week. She had two secretaries and would leave K.H with one of them, while she saw patients. She says that she was exhausted and begged her husband to help out more but he would not commit to being available for childcare. She had to arrange her work hours so that she could drive N.H to school in the morning and pick her up at the end of the day. By the time K.H was seven or eight months old, she hired a babysitter, and would take K.H to the babysitter’s apartment in the morning, and pick him up at the end of the day. She says that she went through a few babysitters, with very little help from Mr. M.G.S.H., whom she says continued to reiterate that “looking after children was a woman’s job”. Ultimately, K.H was registered in S[…] Daycare, in a plaza across the street from their home.

[118] I am satisfied that Dr. N.R.I.H. did have to arrange babysitters and find daycare to look after K.H. This is supported by the daycare receipts for various service providers that she has filed. However, I am not satisfied that Mr. M.G.S.H. never helped with childcare. Mr. M.G.S.H. employer, Mr. Taher, verified that Mr. M.G.S.H. frequently brought K.H to work at the convenience store with him, when K.H was a baby or toddler. At one point, it was discovered that Mr. M.G.S.H. was leaving K.H in the car until the other employee left, so that they would not know that he was bringing K.H to work. Once Mr. M.G.S.H. was alone, he would bring K.H into the store while he was working. When Mr. Taher discovered this, he says he often brought K.H to his home, for his wife to look after. That allowed K.H to be with other children in a home, rather than have him left at the store. Mr. Taher also remembers Mr. M.G.S.H. coming into work carrying a pink diaper bag, which Mr. Taher indicated that he, himself, would not have been prepared to do because it was so “unmasculine”. This certainly counters the portrayal of Mr. M.G.S.H. as absolutely refusing to participate in any childcare and indicating that it was entirely his wife’s responsibility as it was “women’s work”.

[119] Mr. M.G.S.H. other employer, Mr. W.B., also confirmed that Mr. M.G.S.H. sometimes brought K.H to work. He also says that, after Dr. N.R.I.H. went back to work, Mr. M.G.S.H. would arrange his work hours around her schedule. He would work on Tuesdays and weekends, which were her days off, and he would come in on other days in the evenings, after she came home from work.

[120] I accept the evidence of Mr. Taher and Mr. W.B. that Mr. M.G.S.H. did assume some responsibility for the care of K.H, when Dr. N.R.I.H. or the babysitter was not available. I suspect that he may have been resentful and did not do this entirely willingly or cheerfully. Arranging childcare coverage continued to be Dr. N.R.I.H. primary responsibility, which she had to juggle with her medical practice. However, I am satisfied that Mr. M.G.S.H. made some contribution to childcare, and was working at the convenience stores during this time as well. It is unfair to suggest that he made no contribution whatsoever to the family during this time.

[121] Several months after K.H was born, the family moved to a home in Markham. Dr. N.R.I.H. says that the family had been living in a small two-bedroom apartment, where she slept in one room in a bed with N.H, and K.H slept beside them in a crib. She wanted to improve the living situation for the children.

[122] In November of 2003, Dr. N.R.I.H. purchased V[…] Drive in Markham for $560,000, which is the matrimonial home that the family was living in at the time of separation on August 8, 2011, and in which Dr. N.R.I.H. and K.H continue to live today. Interestingly, the home was purchased in her name alone, which casts some doubt on her characterization of her husband as controlling and giving her no say in the family finances.

[123] Dr. N.R.I.H. says that the home was purchased in her name because Mr. M.G.S.H. made it clear to her that he would not be making any contribution to the costs of acquiring or maintaining the home. She purchased it with approximately $80,000 as a down payment, which she had remaining in savings, and the balance was mortgaged. She was responsible for the cost of purchasing furniture, paying the mortgage and all other household bills. At least by this point, I find that Dr. N.R.I.H. appears to have assumed primary control of the family’s financial well-being and decisions. She was looking after all the money, she had an accountant who prepared both parties’ tax returns, and Mr. M.G.S.H. had very little interest or input into the family’s finances and how the bills got paid. It appears clear that Mr. and Dr. N.R.I.H. were emotionally distanced from each other by this time, and that detachment spilled over into their finances as well. Dr. N.R.I.H. was the main decision-maker in the family by this point, and Mr. M.G.S.H. seems to have withdrawn and left her to look after things on her own.

[124] Dr. N.R.I.H. relies on the fact that Mr. M.G.S.H. did not contribute to the down payment, the mortgage, or the expense of furnishing the home (at a cost of approximately $13,000) to support her position that Mr. M.G.S.H. should have no claim against the house. However, given the fact that Dr. N.R.I.H. was working as a medical doctor in her own practice, and Mr. M.G.S.H. was still working for minimum wage at a convenience store, if the family was going to move into a home, Dr. N.R.I.H. obviously would be have to be responsible for the bulk of the expenses.

[125] Dr. N.R.I.H. also complains about her husband’s lack of support while she was having health problems after K.H’s birth. At one point, she lost her hair and was diagnosed with a condition known as alopecia, for which she required injections in her scalp. She also discovered a lump discovered in her left breast, which was concerning and required her to have a consultation about potential surgery, along with follow-up from her family doctor. I accept her testimony that her husband was not then, and never has been, a source of much comfort or emotional support when she had health issues or personal struggles.

[126] However, I do not accept her testimony about Mr. M.G.S.H. treating the children with similar disregard. K.H was born with a birth defect and underwent surgery in September of 2004. While Dr. N.R.I.H. says that she and her sister were the only caregivers for K.H while he was going through this surgery, and her husband had “no interest whatsoever in helping out”, Mr. M.G.S.H. recollection of being at the hospital with K.H, and driving his son and wife back and forth, was so detailed and clear that I accept his evidence over Dr. N.R.I.H.. I suspect that this is another example of Dr. N.R.I.H. doing the bulk of the work, and feeling rather hard done by, but failing to recognize that Mr. M.G.S.H. was also involved, although to a much lesser extent than she wished he had been.

[127] I also accept Dr. N.R.I.H. testimony that, as the children began to get older, she was responsible for the bulk of the children’s activities, and arranging their schooling. However, this is, in part, a reflection of Dr. N.R.I.H. personality. She is much more of a “go-getter” than Mr. M.G.S.H., she is more organized, and she is more capable in both the educational and professional regime. I accept that she was the driving force behind N.H’s university applications, even to the point that Mr. M.G.S.H. says N.H would complain to him about her mother being obsessive and relentless.

[128] Although Mr. M.G.S.H. contribution to the household after the move to Markham may have been less than Dr. N.R.I.H., it was not non-existent. N.H recalls her mother doing most of the transportation when she needed a ride to school, for example, but there were also periods of time where Mr. M.G.S.H. would drive her. Mr. M.G.S.H. recalled quite clearly, when N.H was in Grade 12, she asked him to cover up the taxi meter in his car when he dropped her off at school, because she was embarrassed that her friends in high school might see it. N.H, too, remembered her father covering his taxi meter with his hat as they arrived at her school. However, N.H also confirmed that her father would complain so much about her “costing him $150 per week” in gas when he drove her to school, that she tried to avoid the unpleasantness by taking the bus or getting a ride with her mother or friends, whenever possible.

[129] Although Mr. M.G.S.H. says he did most of the domestic duties and meal preparation, I am not able to find on a balance of probabilities whether he or Dr. N.R.I.H. did more cooking, cleaning or meal preparation.

[130] N.H remembers her mother doing almost all of the cooking, housecleaning and laundry. She distinctly recalls, for example, that her mother would spend most of her Tuesday “day off” cleaning and running errands, and that Sunday was always the day that Dr. N.R.I.H. did the laundry for the whole family. Both she and Dr. N.R.I.H. admit that Mr. M.G.S.H. did do some laundry and meal preparation but they also note that he would only do his own laundry and, if he made food, he would not make enough for Dr. N.R.I.H. to eat when she got home from work.

[131] It is not necessary, for the purposes of this court case, for me to weigh each party’s respective contributions and try to decide who did more. It is sufficient that I am satisfied that Mr. M.G.S.H. was doing some of the household tasks and childcare following the move to the home in Markham. I find that he did.

[132] Throughout this time, Dr. N.R.I.H. continued to work at her medical practice and Mr. M.G.S.H. worked sporadically at the convenience stores or driving a cab. I accept that Dr. N.R.I.H. was very upset that her husband was not making a greater financial contribution and became increasingly frustrated with his failure to pursue further employment or education. The sense I have is that Mr. M.G.S.H. had essentially given up by this point. Dr. N.R.I.H. income was sufficient to support the family in a good standard of living and he did not have sufficient drive or resolve to change the status quo.

[133] I accept Mr. M.G.S.H. evidence that he may have used his earnings to make some minimal financial contribution to the family, such as buying groceries. However, I also accept Dr. N.R.I.H. evidence that, for years, right up to the separation, she was required to give him $2,000 a month in cash, and he told her it was none of her business what he did with that money or his wages. He admits he was always paid in cash, and I accept Dr. N.R.I.H. evidence that he was very secretive and did not share any details about his earnings with her.

[134] Mr. M.G.S.H. testified that he used his earnings to buy groceries for the family. He denies that Dr. N.R.I.H. gave him money. However, after separation, Dr. N.R.I.H. discovered receipts that indicated Mr. M.G.S.H. had sent his mother in Egypt significant sums of money between 2006 and 2009, without telling Dr. N.R.I.H.. Mr. M.G.S.H. confirmed that the receipts are accurate, and he sent approximately $2,000 to his mother in 2006; $4,990 in 2007; $2872 in 2008; and $4,000 in 2009. I find that it would have been impossible for Mr. M.G.S.H. to save these amounts, if he was not keeping the bulk of his own earnings plus receiving money from his wife, as both she and N.H testified was the case.

[135] The relationship at home continued to be an unhappy one. Dr. N.R.I.H. recalls almost daily arguments and, sadly, N.H remembers her parents arguing most days. Although Mr. M.G.S.H. tried to paint Dr. N.R.I.H. as the source of the conflict, N.H could not recall ever hearing her mother insult her father.

[136] Dr. N.R.I.H. says that Mr. M.G.S.H. frequently pushed or kicked her, or pulled her hair. She described one incident, in particular, in 2010, when she was on the stairs at their home. Her husband was angry and pulled her hard by the arm. She says she felt she was falling down the stairs and started to scream, at which point Mr. M.G.S.H. released her and she ran to her room. Later, N.H noticed the bruises on her arm but Dr. N.R.I.H. tried to explain them away by saying she had banged into something. N.H confirmed that she remembered this incident and the bruises. She says she confronted her mother, as the bruises clearly appeared to be fingermarks that wouldn’t have come from “bumping into” anything, but Dr. N.R.I.H. told her not to ask any more questions.

[137] Although Mr. M.G.S.H. vehemently denies that he was ever physically aggressive with his wife, I do not accept his denial. I cannot determine, on the evidence that was presented in this trial, how often there was physical contact during arguments. However, any domestic violence can have long lasting controlling effects. The victim may remain hyper-vigilant about provoking the perpetrator and may be intimidated long into the future by even a single act of aggression early in a relationship. I accept the very clear evidence of N.H that, at least on one occasion, she observed bruises on Dr. N.R.I.H. after an argument with Mr. M.G.S.H.. I accept V.E.’s evidence that she saw Mr. M.G.S.H. throw a coffee cup and chair at her sister, when Dr. N.R.I.H. asked Mr. M.G.S.H. where he was going. I also accept Dr. N.R.I.H. evidence that the charges that were laid against Mr. M.G.S.H. in Hamilton in 1994 arose after a police officer observed scratches on Dr. N.R.I.H. neck following an argument with Mr. M.G.S.H.. I am satisfied that Mr. M.G.S.H. had difficulty dealing with his wife productively, and he reacted to conflict either by losing his temper or unilaterally withdrawing from any discussion and leaving the home.

[138] By January of 2011, Mr. M.G.S.H. had decided that he wanted to leave the marriage. However, in keeping with his dismissive manner of dealing with his wife (and children), he did not discuss his plans with anyone. Instead, the family had dinner together one weekend to celebrate their anniversary and Dr. N.R.I.H. birthday. No one had any idea that Mr. M.G.S.H. had already been to a lawyer and signed an application for partition and sale of the matrimonial home.

[139] On Monday morning, Dr. N.R.I.H. said goodbye to her husband and children and went to work at her office. Without any warning, Mr. M.G.S.H. had Dr. N.R.I.H. served with the court application while she was at her work. She described her reaction:

I was shocked, I couldn’t believe it, he was just with us, I said goodbye in the morning. I panicked and called him. “What are you doing, are you trying to sell the house, where would I and the children go, to the street? Why didn’t you tell me about this?”

I didn’t get a clear answer. I waited until I went back home and, as usual, he didn’t give me a chance for communication. Either he gets aggressive or he leaves the home. So, when I came (home), my daughter said he went to work at the convenience store.

…The whole family, me and my daughter, we were in shock. I couldn’t believe he was doing that to the family. My daughter was in Grade 12, she was trying to focus on that. Her father wanted to throw us on the street, I felt like I was losing my mind. He was giving no chance. I decided to just go and speak with him. I went to the store. That’s when I was waiting outside in the car, there were customers going in, I didn’t want to make a fuss in front of people, just wanted to speak with him. I was waiting outside. That is the first time I saw Mr. Wickham. My husband was behind the counter, lots of paperwork, he keeps signing. I came in the store [and asked] “What is going on?” Then Mr. Wickham said, “Is this your wife?”

[140] Dr. N.R.I.H. said she was given no explanation about what was happening. Inexplicably, Mr. Wickham had issued the application without any attempt to contact her or negotiate a resolution. There was no concern about a flight risk or Dr. N.R.I.H. dissipating assets. Mr. M.G.S.H. was still living in the home with his family.

[141] It is very hard for me to understand why, in this day and age, a lawyer would agree to start a family law file with what appears to be such an unnecessary and aggressive first step. If there is some explanation, it would be helpful for Mr. M.G.S.H. and Mr. Wickham to address this in their submissions regarding costs, as I am required to consider the reasonableness of a party’s conduct in deciding costs. Part of that decision involves examining a party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle.[^1]

[142] Mr. M.G.S.H. would not tell his wife what was wrong. She says he would not give her any answer about whether he wanted a divorce, or was intending to leave the home. He just continued to stay there, with her and the children, and told her to speak to his lawyer.

[143] Understandably, the court application had a devastating effect on the family, particularly N.H, who was in her final year of high school and in the process of applying to universities. Dr. N.R.I.H. says she begged her husband, if he wanted to end the marriage, not to do it then, as it would “destroy” N.H. She says her husband agreed to withdraw the case.

[144] A few weeks later, on February 14, 2011, someone apparently filed a “Notice of Discontinuance” in the Partition and Sale proceedings. On February 25, 2011, at the first court appearance on the court application, (which had been inexplicably filed in Brampton, even though the couple lived in Markham), Mr. Wickham attended and had the matter “adjourned sine die”. Dr. N.R.I.H. was present and she says she was sure the clerk clearly indicated to her that the case had been “dismissed”. Dr. N.R.I.H. says Mr. M.G.S.H. gave her no indication he intended to start court proceedings again later.

[145] Mr. M.G.S.H. continued to live at home with his wife and children. The entire family went to Egypt with N.H from July 11 to 27, 2011, to settle her into university. Mr. M.G.S.H. and his wife returned to Canada and resumed their life as a family in Markham.

[146] A few weeks later, again without any warning, he left.

[147] Dr. N.R.I.H. sister, V.E., returned to Canada in August of 2011, as she had been granted permanent residency status. She and her son were going to move in with the H.s in Markham.

[148] Dr. N.R.I.H. says that the evening before her sister arrived, August 7, 2011, Mr. M.G.S.H. sexually assaulted her. The next day, she was in shock. She and her husband went to pick up V.E. and her son at the airport and, shortly after they arrived back at the house, she heard the garage door closing. She noticed that Mr. M.G.S.H. car was no longer in the garage, but assumed he had gone off to meet with some of his friends, as he often left the house without telling her where he was going. When he did not return home by midnight, she tried calling his cell phone, but could not get an answer. Around 1:00 in the morning, she decided to look in the closet and was shocked to find his clothes were all gone. She said to herself, “Okay, he’s done it again. He’s gone.” Once again, she had no idea where he had gone, and how long he planned to stay away.

[149] Mr. M.G.S.H. agrees that he left the home on August 8, 2011, and has never returned. He agrees that he did not give his wife any advance notice. He also agrees that he did not talk to either of his children about going, both before or after his departure. He vehemently denies the sexual assault, and has various points to make about inconsistencies in Dr. N.R.I.H. intended testimony about the timing of those events. He says he was unhappy in the marriage because he felt that Dr. N.R.I.H. nagged and demeaned him but he has offered no explanation as to why he left his marriage so abruptly on August 8, 2011.

[150] I pause to note that the sexual assault charge is currently before the criminal courts. I did not hear detailed evidence about what happened that evening, so I am not in a position to comment on whether anything happened that would be considered a sexual assault. Mr. M.G.S.H. is, of course, innocent until proven guilty and I have no idea whether Mr. M.G.S.H. will be convicted of the criminal charge. Dr. N.R.I.H. was very upset whenever questioning veered towards the events of that evening and both counsel elected not to probe too deeply about the specifics of what had occurred.

[151] However, Dr. N.R.I.H. demeanour, and Mr. M.G.S.H. response, were so compelling that, on a balance of probabilities, it is difficult to avoid the conclusion that something significant transpired between this couple on the evening of August 7, 2011.

[152] Dr. N.R.I.H. was asked why she did not go to the police following the alleged sexual assault. Her head went down and she took quite a while to answer, “Because it’s a shame.”

[153] She did not look up, breathed deeply several times, and appeared to be trying to hold back tears. She then continued softly:

It’s a stigma. … The community … I’m a doctor, my patients … What if anyone know (sic) something like that? How can I face my patients, look at their eyes? My daughter, the community leer about something like that. Someone come to her and talk about her mom, how she can (sic) face that? I kept it inside, until I had no other choice. When I found out it’s never going to end, there’s definitely more to come from him, games and manipulation and disgusting stuff … He wants to destroy me, doesn’t want to leave me alone. I want to raise my children, be able to function, to go on (with) my life, still have a son to raise …

[154] By this point, Dr. N.R.I.H. head was completely down, her eyes were closed and she was crying. It took her several seconds before she could recover sufficiently to continue her questioning.

[155] Throughout most of the trial, Mr. M.G.S.H. appeared uninterested and withdrawn. He often stared blankly into space or looked down at the desk; at times it appeared that he might have fallen asleep.

[156] However, whenever Dr. N.R.I.H. was testifying about the evening of August 7, 2011, he was completely transformed. He sat up straight and tall and stared intently at her. What was most unsettling was, for some reason, he could not stop smiling at her. It was an odd reaction for someone seeing another person in such distress. It was an even odder reaction for someone who was, according to him, hearing a fabricated story that led to criminal charges against him.

[157] Later in the trial, Dr. N.R.I.H. was cross-examined by Mr. Wickham about the evening when the sexual assault allegedly occurred. At that point, we had been switched to another courtroom, and the witness box was situated directly in front of where Mr. M.G.S.H. was seated. As she entered the witness box, her body drooped and her head went down. In a barely audible voice, without making eye contact, she asked the court officer if there was an alternative to her talking about the events of that night with her husband staring directly at her.

[158] To his credit, Mr. M.G.S.H. readily agreed to sit in the body of the courtroom, on the side opposite to the witness stand. However, he continued to stare and smile at Dr. N.R.I.H. while she was giving her answers, often shaking his head, with a wide grin on his face.

[159] The final moments of Dr. N.R.I.H. cross-examination were very emotional. Mr. Wickham was questioning her about her work status. As will be discussed under the section below about her income, there is an issue about how much Dr. N.R.I.H. is able to work right now. She says, between the family law trial and the upcoming criminal trial, she is under so much stress that she is barely keeping her office going. She is on medication and she says that both her psychiatrist and counsellor have advised her she should not be working.

[160] When Mr. Wickham was trying to get her to define her work status, she broke down completely. She explained about her problems concentrating and how difficult it has been for her to keep going. Her testimony ended with the following sobbing testimony:

We have criminal court on January 30. This is very, very hard. I have to expose my personal life again, and this is very, very hard situation and I’m not ready. I am trying to work, I can’t go to work. But I will. I am coming on January 30 to defend myself, I am coming. About the sexual assault on June 7, 2011, I am coming.

(She then saw Mr. M.G.S.H. smirking at her and realized she had made a mistake).

No, on August 7, yes, see, look at him, it’s my memory. This is what I am saying, how can I go to work? I am on medication, I am going to make mistakes.

[161] By this point, Dr. N.R.I.H. was completely slumped down on the stand. Her head was down, and she could not stop crying.

[162] Mr. M.G.S.H. continued to grin.

August 8, 2011 Forward – The Period Since Separation

[163] Mr. M.G.S.H. has not returned to the home since he left on August 8, 2011.

[164] Dr. N.R.I.H. admits she had mixed emotions. On the one hand, she was relieved that Mr. M.G.S.H. was gone and did not want him to come back. She says she did not want to go through another period of uncertainty, since this was the second time he had left that year, but she was worried about the effect it would have on K.H. She said she remembered what N.H had gone through when Mr. M.G.S.H. abruptly left for several months in 1999, and the teacher had called to ask why N.H had changed “from a happy child to a sadder child”.

[165] She says she wanted to talk to him about “leaving in peace” and keeping the children out of it. She was prepared to tell him that “if it is all about money, take it” but hoped they could find a way to separate without causing unnecessary pain for the children. She was “overwhelmed, confused and tired” but wanted him to help her to prepare K.H. She hoped that Mr. M.G.S.H. would talk to him and explain that his parents had to “go their separate ways.” Dr. N.R.I.H. said she “didn’t have the guts” to tell K.H that his parents might “have to divorce”.

[166] True to form, Mr. M.G.S.H. refused to even speak to her. He completely avoided his wife. He would not take her calls and told his employer to tell her that he did not know where he was. He did not tell her anything about his plans and he left her to try to figure out what to say to K.H.

[167] One day, K.H was asking to see his father. Dr. N.R.I.H. felt he “pushed her too hard”, so she drove to Mr. M.G.S.H. store with K.H, and they saw that Mr. M.G.S.H. was getting ready to leave work. When K.H. saw his father, he started to cry and asked his mother to wait and “take my dad home.”

[168] When Mr. M.G.S.H. came out of the store, K.H asked him to come home. Dr. N.R.I.H. says she pointed out that K.H was crying, and asked Mr. M.G.S.H. to come back to the house with them for a few minutes to talk to K.H and then leave. Mr. M.G.S.H. refused and got in his car.

[169] Unfortunately, what happened next was terrible and must have been very traumatic for K.H. Dr. N.R.I.H. says K.H begged her to “go after daddy”, so she followed him. Mr. M.G.S.H. tried to “escape” and, apparently, a high speed car chase ensued. Finally, K.H said, “No mommy, we’re going to crash”, and they stopped and went home. Dr. N.R.I.H. says that K.H was very upset, saying his father was a “liar”, who “abandoned him” and “didn’t want to come home”.

[170] Mr. M.G.S.H. was very upset by this event as well. His reaction was to quit his job, so that his wife would not be able to find him.

[171] The mortgage on the house was up for renewal in October of 2011. The bank was offering an attractive rate but Mr. M.G.S.H. signature was required. Dr. N.R.I.H. tried to track him down through his former employer and friend, Mr. Taher, but he would not tell her how to contact Mr. M.G.S.H.. The bank also tried to reach Mr. M.G.S.H. but he would not return their calls either. Ultimately, Dr. N.R.I.H. had to extend the mortgage as an “open mortgage” at a much higher rate.

[172] In November 2011, Dr. N.R.I.H. got another surprise courier package at her office, advising her that a new court date had been set in Brampton for the partition and sale proceedings. She was shocked, as she had understood the case was dismissed. She got a lawyer, Mr. Krackower, who attended court on November 17, 2011, along with Mr. Wickham. The presiding judge confirmed that the application was dismissed, without prejudice to Mr. M.G.S.H. remounting his application. There was a cryptic comment in the endorsement about the court being “disturbed by the conflicting evidence and accounts related by counsel as to the circumstances giving rise to the Notice of Discontinuance filed February 14, 2011” but the judge said that those circumstances could be considered in terms of costs of any remounted application.

[173] After the November 17, 2011 court date, Dr. N.R.I.H. says she started to receive unsigned threatening letters at her office. The letters were in Arabic and had a religious tone, quoting parts of the holy book, and saying “bad stuff” about her, including that she was a bad woman who needed to be killed by stoning.

[174] Dr. N.R.I.H. says she believed that she was in danger. She felt that she might go out to her parking lot and be shot. After she had received three letters, she came home from work one evening and saw the garage door was open on the side where Mr. M.G.S.H. had usually parked his car. She remembered that he had the remote and panicked, thinking he had come and, perhaps, taken K.H. She was so upset that she decided to call the police and ask for protection.

[175] The police came to her house and spoke to her about a safety plan, which included advising her to change the locks.

[176] Shortly thereafter, Mr. Krackower called. Mr. Wickham had sent him a copy of a CD that contained tape recordings of Dr. N.R.I.H. personal telephone calls, including calls to her lawyer.

[177] Dr. N.R.I.H. tried to describe how chilling it was to get this CD. She said it was “way, way more than overwhelming” to realize that she had been living with someone who had been secretly taping her for “months, maybe years”. She described becoming absolutely panicked, wondering if there might be secret cameras around her home. She says she felt paralyzed and, once again, contacted the police for protection.

[178] The police came and spoke to her again about safety issues. Dr. N.R.I.H. checked the house for cameras and went so far as to change the entire garage door, not just the code. She changed the locks to the house again.

[179] The police also asked her to make a statement about the recordings and, in the course of that interview, they asked her about any incidents of abuse. She told them about the physical assault on the stairs in September of 2010. However, she says she could not bring herself to speak of the sexual assault the night before Mr. M.G.S.H. left.

[180] Mr. M.G.S.H. was charged with intercepting private communications and assault. Dr. N.R.I.H. says he was found guilty on the first charge and sentenced to a year’s probation from April 2012 to April 2013. She says that, as far as she knew, “nothing happened” about the assault charge. She says that she was told that “they” believed her but did not have the evidence to prove the charge.

[181] After Mr. M.G.S.H. was placed on probation, Dr. N.R.I.H. says she started to calm down and felt safer. However, when she and Mr. M.G.S.H. attended for questioning in the family law proceedings in October of 2013, Mr. Wickham suddenly produced yet another tape and played a few short excerpts of her talking to her sister in Egypt and to a family friend.

[182] Dr. N.R.I.H. said she went home and could not sleep. She says everything resurfaced and she began to worry that there was still something on her phones, or cameras secretly recording her in her home. She says she “ran” to the police station and told them she felt completely unsafe and was worried that something was going to happen to her or K.H.

[183] The detective she spoke to told her that the first step of their investigation would be to try to get a copy of the tape, which was still with Mr. Wickham. Ultimately, it was produced to Ms. Nicoll, translated, and provided to the police.

[184] Once the police reviewed the tape, they contacted Dr. N.R.I.H. to come in for an interview. They told her that they felt there was more to the case, and they were concerned that there had been domestic violence that they had not been told about.

[185] At this point, Dr. N.R.I.H. says she became concerned that maybe there was “more to come”. She was worried that Mr. M.G.S.H. might have taped what happened on the night of August 7, 2011 and would “show something on the net”. She said she was at the point where she could not function, and had no idea what to expect of him. She was now frightened that, as a physician, her patients might see explicit pictures of her on the Internet.

[186] So, she broke down and told the police about what had happened on the evening of August 7, 2011.

[187] Mr. M.G.S.H. was charged with sexual assault and a further charge of intercepting private communications. Those charges are still before the court.

[188] Since then, Dr. N.R.I.H. has been seeing a counsellor through victim services to help her prepare to give evidence in the criminal trial. She has also been seeing a psychiatrist for almost two years and is on several medications, including antidepressants and sleeping pills to try to help her with her emotional struggles.

[189] Dr. N.R.I.H. says she is having trouble functioning at work. She cannot concentrate and she is not getting much sleep. A letter was filed from her psychiatrist, Dr. H-Dief, dated January 21, 2013, in which he diagnosed her with Major Depression, with very severe and frequent symptoms. The letter outlines a history consistent with what Dr. N.R.I.H. testified to in this trial: years of living with an unsupportive and unambitious husband, who was physically, emotionally and financially abusive, and who required her to be both the primary breadwinner and primary caregiver, with very little assistance from him.

[190] Unfortunately, Dr. H-Dief did not give evidence in this trial. When Dr. N.R.I.H. testified in the first round of this trial, it was her evidence that she was closing her office, effective May 16, 2014, so that she could take one year of sick leave, on advice of her psychiatrist.

[191] However, when the trial resumed in November 2014, Dr. N.R.I.H. admitted that she had kept her office open in the previous six months and was continuing to work. She said that she was only going in part-time, as much as she was able, and that she was doing this against the advice of her psychiatrist and counsellor. Dr. N.R.I.H. says she is barely meeting her expenses, but trying to keep her office open, as her goal is to return to work as a physician in the future. Right now, she says she and K.H are living primarily off her savings.

[192] Mr. M.G.S.H. life since separation has also been miserable. He presents as dejected and defeated. He left the variety store job for a while, so that Dr. N.R.I.H. could not find him. He tried driving a taxi, and even leased a new car to do so, but has not been able to make a go of that. He is facing criminal charges and has a criminal record, which he says makes it difficult for him to find work.

[193] Mr. M.G.S.H. is living in the basement of his friends, A.K. and S.M.. He sleeps on a couch and goes out during the day so that Mrs. S.M. can use the basement to do laundry. He cannot afford to pay them rent and Mr. A.K. testified that he owes them almost $20,000 for unpaid rent and money he has borrowed, both for his own expenses and to send to his mother in Egypt.

[194] The parties attended a case conference in March 2012, and reached an agreement for Mr. M.G.S.H. to start seeing K.H. However, he only exercised this access for a few months. He claims that K.H did not arrive for some visits, so Mr. M.G.S.H. simply withdrew. Dr. N.R.I.H. version is different. She says that she desperately wants K.H to see his father, because he misses him so much, and K.H was hurt that his father stopped all contact with him.

[195] At the beginning of the trial in June 2014, there was an attempt to renew Mr. M.G.S.H. relationship with his son. Counsel and the parties reached another agreement, so that Mr. M.G.S.H. could resume visits with K.H.

[196] However, when there were problems, Mr. M.G.S.H. chose to terminate contact with K.H again, rather than attempt to resolve them.

[197] Mr. M.G.S.H. says he was upset, as K.H seemed distracted during their telephone calls. He says that K.H asked him to drop the court case and even provided him with Mr. Wickham’s phone number, insisting that he should call him right away and tell him to stop the trial.

[198] Mr. M.G.S.H. blames Dr. N.R.I.H. and her sister for turning K.H against him. He seems to have no appreciation for how difficult this must be for K.H, living with a mother who is in the middle of very stressful litigation. Instead of trying to reassure K.H and assist him through this stressful period of his life, Mr. M.G.S.H. has reacted in his usual way. Rather than deal with a difficult situation, he unilaterally terminated all contact with his son.

[199] Dr. N.R.I.H. says that K.H is very upset that his father has once again withdrawn from his life, and she finds it heartbreaking to deal with K.H’s hurt and anger. I accept her evidence that both she and K.H are disappointed that Mr. M.G.S.H. re-established contact with K.H, and then abruptly withdrew from him again when things did not go as well as Mr. M.G.S.H. would have liked.

[200] There is a social worker assigned to the H. family through York Region Children’s Aid Society. The social worker met with K.H on June 17, 2014, which was shortly after the agreement regarding access was reached. K.H told the social worker that he was afraid of having unsupervised visits with his father as he had not seen him for over two years. K.H said that on their last visit, his father had hurt him by grabbing his arm and twisting it. K.H asked the social worker if his aunt could be present during the visit with his father.

[201] The social worker met with Mr. M.G.S.H. to discuss the concerns and arrange some access. However, Mr. M.G.S.H. refused to exercise access under any form of “supervision”. Subsequently, the social worker sent a letter saying that Mr. M.G.S.H. would not return her calls. He says she hasn’t made any calls that he did not return. The letter from the social worker also indicates that she met with K.H in mid-September and was told that his father had made no attempt to call him or see him in the previous two months.

[202] Sadly, this means that K.H again has absolutely no relationship with his father. Mr. M.G.S.H., through his counsel at trial, reiterated that he would not agree to any form of access that included a provision for anyone else to be present to support K.H during the visit.

[203] N.H is still in university in Egypt. For the first year after the separation, she and her father continued to have contact, primarily via email and telephone or Skype. When N.H returned to Canada after her first year of university, she and her father met and had a disagreement. Mr. M.G.S.H. says that N.H tried to pressure him to “drop the case” and he responded by saying that it was something between him and her mother. Once she returned to Egypt, Mr. M.G.S.H. says N.H became difficult, both with him and with his mother, with whom she was living.

[204] N.H agrees that, initially, she and her father were on reasonable terms after the separation but she became suspicious that her father was trying to get her to send emails to help his case against her mother, as he was phoning her and dictating what he wanted her to write in her responses. She seems particularly resentful that she confided in her father that she had been sexually assaulted and he responded by saying, “You are a big girl.” She feels he is not supportive of her university studies, saying that he told her a university education would be wasted on her, as she will get married. Mr. M.G.S.H. denies this.

[205] Mr. M.G.S.H. and N.H are no longer on speaking terms and have no contact whatsoever. Mr. M.G.S.H. says this is particularly difficult as he felt he and N.H were very good friends previously. However, as with K.H, rather than engaging in any discussion to try to resolve their problems, he has elected not to withdraw from any relationship with N.H at this time.

[206] So, Dr. N.R.I.H. continues to live in the matrimonial home with K.H. N.H continues her university studies in Egypt. Mr. M.G.S.H. continues to live in his friends’ basement, and has no relationship with his children.

[207] The parties are now divorced. Mr. M.G.S.H. was not cooperative with Dr. N.R.I.H. attempts to obtain an Islamic divorce. He would not meet with the Imam, even though he was reassured that Dr. N.R.I.H. would not be present, so he would not be breaching the “no contact” bail conditions if he participated. Fortunately, the Imam has now worked with Dr. N.R.I.H. to have the divorce granted, as it was very important to her to have her divorce recognized by her faith.

[208] It is time to resolve the remaining legal issues arising from this separation, so that everyone can regroup and, hopefully, move on to a happier phase of their lives.

THE ISSUES

[209] I need to decide whether it would be unconscionable to divide the net family property equally between the two parties. As part of this, I need to determine the value of some of the assets and debts in dispute.

[210] I also need to decide if Mr. M.G.S.H. is entitled to spousal support and, if so, how much and for how long. As part of this determination, I have to decide what income should be imputed to each party for the purposes of determining spousal support.

The Property Issues

[211] The Family Law Act[^2] provides that, when married couples separate in Ontario, each of them is to calculate their “net family property”. The spouse whose net family property is the lesser of the two is entitled to one-half of the difference between them[^3] (an “equalization payment”). The one-half share may be varied under certain circumstances[^4], which will be discussed below.

[212] The first step is for each party to calculate his or her “net family property” on the day of separation (the “valuation date”). To their credit, during the course of the trial, counsel and the parties were able to agree to the value of many items to be used in the equalization calculation. They have filed a comparative Net Family Property (NFP) statement, which is attached as “Schedule A”.

[213] After the comparative NFP was filed, Mr. Wickham spoke to Dr. N.R.I.H. accountant and agreed that $87,800 was the correct value for the tax on Dr. N.R.I.H. shareholder loan.

[214] The items that are still in dispute are:

1. The value of the matrimonial home at separation (and the resulting notional disposition costs).

2. Dr. N.R.I.H. claim that Mr. M.G.S.H. has an Investment Portfolio in Egypt worth $5,850,000.

3. Each party’s claims for loans on the date of separation.

The Value of the House

[215] Dr. N.R.I.H. says the value of the home at separation was $810,000. Mr. M.G.S.H. says it was $870,000.

[216] The assessed value from the Town of Markham for property tax purposes was $674,000 as of May 29, 2012. The prior year’s value was $642,750. I am putting no weight on this figure as both parties have filed appraisals confirming that the property was worth over $800,000 on the separation date.

[217] On consent, both parties entered their real estate appraisals without calling the appraiser as a witness.[^5] Each party was questioned about certain aspects of his or her appraiser’s report, and the parties wish me to determine, on the basis of those answers, what value should be assigned to the home.

[218] Dr. N.R.I.H. value comes from an appraisal done by Ron Poliwoda. He appears to be a certified real estate appraiser as he holds an AACI (Accredited Appraiser Canadian Institute) designation. He appraised the home as of the valuation date[^6] but his appraisal was completed on March 12, 2013. He assumed that the condition in 2011 was similar to the time of inspection in 2013.

[219] Mr. Poliwoda compared the home (V[…] Drive or “V[…] Drive”) to four other comparable sales and came up with a value for V[…] Drive ranging from $810,000 to $825,000. Once adjustments were made for differences between V[…] Drive and the comparables, he settled on a figure of $810,000 as the value on August 8, 2011.

[220] Mr. M.G.S.H. value comes from an appraisal done by Paul Raymer, who also holds an AACI and a P. App. (Professional Appraiser) Designation. His appraisal was completed on June 11, 2012.[^7]

[221] Mr. Raymer also compared V[…] Drive to four comparables. The adjusted comparable values ranged from $850,000 (for a much larger five bedroom home with a better location, extra bathrooms and a superior basement and extra garage) to $891,000 (for a superior and larger four bedroom home with inferior bathrooms and unfinished basement, which sold in September of 2011 for $90,000 over the list price).

[222] Both parties take issue with the other’s appraisal. Mr. Poliwoda noted that the basement was unfinished, while Mr. Raymer said it was 10% finished. Only one of Mr. Raymer’s comparables had an unfinished basement, which suggests he was comparing V[…] Drive to superior homes that were not actually comparable. Dr. N.R.I.H. notes that there were a lot of repairs needed at the time of separation, including to the plumbing, windows, the roof and the furnace. She feels that her appraiser’s assessment of the condition of the home at the time of separation as “average” is more accurate than Mr. Raymer’s assessment of the condition of the home as “good”. Although she notes that Mr. Raymer states that the square footage of the home is only 3071 square feet, while Dr. N.R.I.H. believes it to be 3500 to 3800 square feet, it is difficult to understand how this helps her. Presumably, if anything, a higher square footage would have increased, rather than decreased Mr. Raymer’s appraisal.

[223] As noted, neither appraiser was called to give evidence. I have never seen the house, nor am I an expert in real estate appraisals. There are some minor critiques that can be made of both appraisals, but neither contains major flaws, nor anything glaringly obvious that would make one appraisal superior to the other. With very little to go on, other than each party’s “layperson” critique of the other’s appraisal, I am not in a position to choose one over the other.

[224] Absent any evidence to the contrary, I assume both Mr. Poliwoda and Mr. Raymer have sufficient expertise that their appraisals have been done properly and to the best of their ability. Attempting to establish the value of a property is an inexact science involving an element of opinion and personal judgment. The process relies heavily on the choice of comparable property sales to inform opinions of value. Mr. Poliwoda noted that only limited sales data was available for comparable homes in the area of V[…] Drive and Mr. Raymer noted that he “was not aware of any comparable MLS listings as of the effective date”. This means that both appraisers had to make adjustments to the value of the comparable property sales that they were able to find, in order to try to ascertain how the sale price of the comparables might guide an assessment of the price that would be offered for V[…] Drive, if it were to be listed for sale. Neither appraisal is clearly wrong. The two appraisers just have different opinions about the price for which the property might sell.

[225] On the evidence before me, I am not prepared to prefer one appraisal over the other. Instead, I am prepared to accept that an average of the two values reached by the two independent, qualified appraisers is a reasonable estimate to use for the value of the property at separation.

[226] I find that the value of V[…] Drive for equalization purposes is $840,000. The parties agreed that the notional cost of disposition would be 5%, plus HST and $1500 in legal fees. This results in a notional disposition cost of $48,960.

Dr. N.R.I.H. Claim that Mr. M.G.S.H. has a Multimillion Dollar Investment Portfolio in Egypt

[227] Dr. N.R.I.H. asks that I find that Mr. M.G.S.H. has a $5,850,000 “investment portfolio”, which should be included in his net family property statement for equalization purposes. She believes this comes from two sources: shares that he bought and sold in Egypt during the marriage and land that he owns in Sinai.

The Shares

[228] As mentioned previously, Mr. M.G.S.H. abruptly left the marriage for several months in the fall of 1999 and returned to Egypt. Dr. N.R.I.H. had no idea what he was doing there, why he stayed away so long, and how he was supporting himself. He offered no explanation when he returned. Understandably, her trust level of Mr. M.G.S.H. is not very high.

[229] At some point after Mr. M.G.S.H. returned to Canada, Dr. N.R.I.H. learned that he was the registered owner of extensive assets in Egypt. Dr. N.R.I.H. says she discovered this when someone from a lawyer’s office in Egypt called their home to say they needed to fax Mr. M.G.S.H. documents for signature. Mr. M.G.S.H. says she is mistaken, as their fax machine did not work. He says she learned about the shares when she opened a letter from the lawyer addressed to him.

[230] Although the parties seem to feel it was significant, it is not important for me to resolve the manner of discovery. What is important is that both parties agree that Dr. N.R.I.H. learned that Mr. M.G.S.H. was the registered holder of significant shares in an Egyptian company. When she confronted him with the fact that he was a “millionaire”, he told her that it was none of her business.

[231] Dr. N.R.I.H. has since learned the details of Mr. M.G.S.H. shares. In 2011, when the family returned to Egypt to settle N.H into university, Dr. N.R.I.H. consulted a lawyer, who did a corporate search for her.

[232] The search disclosed that, during the time that Mr. M.G.S.H. was in Egypt in 2000, he became the registered owner of 269,010 shares in a company called AMCO Travel for Shipping and Tourism (“AMCO”). The shares were transferred into his name on March 23, 2000 by various sellers, most with the surname “Y.”. The total value of the shares registered in his name came to 14,901,000 Egyptian Pounds (EGP). At a conversion rate of one Canadian dollar to six EGP, this amounts to a value of $2,483,500 Canadian dollars.

[233] Mr. M.G.S.H. is also shown to be a board member of AMCO.

[234] The search also disclosed that Mr. M.G.S.H. sold 218,364 shares in AMCO and 92,996 in a related company, International Fast Ferries Co,[^8] in three separate transactions in 2001 and 2002. The total value of the 311,360 shares sold was 15,568,000 EGP or $2,594,666.67 Canadian dollars.

[235] Dr. N.R.I.H. has added these two values together to suggest that Mr. M.G.S.H. has $5,078.166.67 that should form part of the equalization calculation. It is unclear to me why she has included both the value of the shares formerly owned and the amount they were sold for, as this clearly seems to be “double-counting”, but that is what she has included on her net family property statement as the value of Mr. M.G.S.H. Egyptian stock portfolio.

[236] In any event, Mr. M.G.S.H. explains that he has never truly owned these shares. He says that while he was in Egypt, his wealthy friend, A.E. (“A.E.”), asked Mr. M.G.S.H. to do a favour for him. A.E.grew up with Mr. M.G.S.H. and is “like a brother” to him. Mr. M.G.S.H. says that A.K.’s father, who had passed away by that time, was one of the wealthiest businessmen in Egypt. A.E. and his brother, Nasser, had inherited a lot of money and corporate holdings when A.E.’s father passed away.

[237] Mr. M.G.S.H. says that A.K. helped him out from time to time, particularly by looking after Mr. M.G.S.H. mother in Egypt during Mr. M.G.S.H. absence. He also says A.K. lent him money to give to Dr. N.R.I.H., when Mr. M.G.S.H. left her to immigrate to Canada. Finally, he says that A.K. lent him money in 2011, after he and Dr. N.R.I.H. separated.

[238] Mr. M.G.S.H. evidence is that in March or April of 2000, while Mr. M.G.S.H. was still in Egypt, A.K. invited him to a party on his brother, Nasser’s boat. At the party, A.K. told Mr. M.G.S.H. that Nasser was in trouble and was leaving Egypt for the United States. Nasser and A.K. were involved in various businesses with other family members, and there were disagreements in the family about what should happen. They needed to transfer some shares out of Nasser’s name until they could find a buyer, at which point they would sell them to the buyer. A.K. asked Mr. M.G.S.H. if he would help them by putting the shares into his name until they could find someone to buy them. A.K. did not tell him what the value of the shares would be, nor was Mr. M.G.S.H. to receive anything in exchange.

[239] Mr. M.G.S.H. says he trusted his friend and felt indebted to him for all he had done, particularly in continuing to keep an eye on his mother while Mr. M.G.S.H. was in Canada. He felt he could not refuse to return the favour, so he agreed.

[240] Mr. M.G.S.H. says he heard nothing further about this until he was getting ready to return to Canada in June of 2000. The day before he was to leave, A.K. called him and asked if he was leaving Egypt. When Mr. M.G.S.H. confirmed that he was, A.K. reminded him that he had agreed to do him the favour about the shares. He said he would send a driver the next day to pick him up and bring him to Nasser’s office, so that the paperwork could be completed. Mr. M.G.S.H. agreed.

[241] The next day, Mr. M.G.S.H. went to Nasser’s office and signed five or six papers with his name on them. He also signed three authorizations to give other people authority to sign whatever was necessary to complete the share transfers when a buyer was found. He says he did not read any of the papers he signed, nor did he ask for a detailed explanation. Four hours later, he went to the airport and flew home to Canada.

[242] A year or two later, Mr. M.G.S.H. says Dr. N.R.I.H. opened an envelope that arrived for him from Egypt. In it was a letter asking him to sign to confirm that he had transferred the shares out of his name. He signed it and returned it to Egypt, but did not explain to Dr. N.R.I.H. what it was about. This is when he says she first learned about him being involved with Nasser’s companies and shares.

[243] Subsequently, Mr. M.G.S.H. has learned that Nasser has been imprisoned in the United States for “child slavery”. Ms. Nicoll also suggests that Nasser is wanted for arrest in Egypt on charges of money laundering, fraud and forgery. Mr. M.G.S.H. says he knows nothing about any of that.

[244] Bizarre as all of this sounds, I accept Mr. M.G.S.H. explanation. It makes far more sense than Dr. N.R.I.H. suggestion that he is a secret millionaire.

[245] Mr. M.G.S.H. points out that he has been sleeping in a friend’s basement since separation. His teeth are causing him significant pain but he cannot afford dental work. He was driving a barely functioning car for years, working in a convenience store. He has been held up at his jobs twice, at least one time at knife point. He has moved from town to town with his taxi, trying to get enough fares to make a go of it. In an emotional outburst, he exclaimed,

If I am a millionaire, why should I return back, work as a taxi driver, security guard, (at a) gas station, for a $5 tip? In a convenience store. What for, I am not normal and crazy and I don’t know … I have millions and I sell cigarettes, collect the garbage, what for, what for?!!”

[246] I agree with him. It is implausible to me that anyone would live the life Mr. M.G.S.H. has been living, if he had millions of dollars stashed away somewhere.

[247] Dr. N.R.I.H. theory does not explain how Mr. M.G.S.H. would ever have been able to acquire these shares in the first place. When he left for Egypt in 2000, he had been working part-time in minimum wage jobs for years. She was not yet a fully qualified Canadian doctor. There is no possible way he could have accumulated the money to buy millions of dollars in shares. The shares must have been “given” to him rather than purchased. I find it unlikely that someone would simply give Mr. M.G.S.H. millions of dollars in shares to keep for himself. The information about Nasser in paragraph 243 certainly doesn’t support any expectation of this level of altruism.

[248] The only plausible explanation is the one Mr. M.G.S.H. has given. The shares were put in his name temporarily as part of the dishonest financial dealings that Nasser was involved in, and then transferred out of his name at a later date.

[249] It is understandable that Dr. N.R.I.H. would be suspicious when she saw the document about the shares. Her husband’s evasiveness and failure to tell her about what had happened with A.K. and his brother would further fuel those suspicions. However, she has allowed her lack of trust for her husband to cloud her logic. It is inconceivable that Mr. M.G.S.H. is a secret millionaire and her insistence that this be included in the equalization calculation is not reasonable.

[250] On a balance of probabilities, I find that Mr. M.G.S.H. has no stock portfolio or investments that should be included in the net family property calculations for equalization purposes.

The “Land” in Sinai

[251] Equally implausible is Dr. N.R.I.H. suggestion that Mr. M.G.S.H. owns land of significant value in Sinai. She bases this on the discovery of two receipts, from 1983 and 1995, which show that Mr. M.G.S.H. purchased some land. These receipts were kept in Mr. M.G.S.H. mother’s condominium in Egypt but have somehow found their way into Dr. N.R.I.H. hands for use in these proceedings. The suspicion is that either Dr. N.R.I.H. took them from his mother’s home, when they were visiting in 2011 to drop N.H off at university, or N.H took them when she was staying with his mother in her first year of university.

[252] The receipts do relate to purchases of vacant land in Sinai. Mr. M.G.S.H. explained that, when he about 19 years old and still a student, he found out that there was land being sold in the Sinai peninsula in a city called El Arish, which is very close to the Israeli-Palestinian border. The price was one EGP for one metre, so Mr. M.G.S.H. purchased 300 metres of land for 300 EGP (about $30 Canadian). He also told his uncle and his friend, A.K., about the deal. They purchased some land as well, and he remembers A.K. saying the cost was about the same as “a pack of cigarettes”. All three of them felt it was a small price to pay for the potential of owning a small piece of land on the Mediterranean Sea.

[253] Ten years later, he says they kept asking the developer about their investment. They were told that there was a problem with the Bedouin, who are local “desert people”. Supposedly, the Bedouin controlled the land, and were making trouble. In 1995, the developer asked for a further deposit of 500 EGP, or about $50 Canadian at the time, which Mr. M.G.S.H. provided.

[254] Over the years that followed, Mr. M.G.S.H. says he kept asking, “Where is the land?” He says he kept getting excuses about the Bedouin and “a problem in the courts against the government.”

[255] Ultimately, he says that Sinai erupted into war and “we lost the money, we lost the land.” He says he continues to ask about it whenever he goes back to Egypt, particularly because his uncle blames him for making a worthless investment. However, they obtained legal advice and decided that it would not be worth chasing the money or the land with a lawsuit.

[256] In his words, there is nothing but a receipt. He has said if Dr. N.R.I.H. “wants the land, she can have it right away, because there is no land!”

[257] Ms. Nicoll produced a document in Arabic, which was supposedly from a real estate firm suggesting that the property was a beachside villa worth a million pounds. It is a full page letter, which was not translated into English. It was not entered into evidence, other than as a lettered exhibit for identification purposes, to explain the questions that had been put to Mr. M.G.S.H..

[258] Mr. M.G.S.H. had various reasons, expressed in quite vehement terms, as to why he felt the letter was clearly “a fake”. As I have no idea what the full contents of the letter are, what the qualifications of the author might be, whether it relates to the property Mr. M.G.S.H. supposedly bought, and whether or not it is even genuine, I put no weight on it. It is certainly no basis for concluding that Mr. M.G.S.H. owns an expensive beachside villa or land of any value in Sinai.

[259] This is another example of Dr. N.R.I.H. making a “mountain out of a molehill”, and persisting with an untenable claim on very weak evidence. All that the receipts show is that Mr. M.G.S.H. invested the equivalent of less than $200 Canadian, between 20 and 30 years ago, in a proposed real estate development that is located in an area that may now be affected by war.

[260] On the evidence before me, I am not satisfied that any value should be included in the net family property statement for Mr. M.G.S.H. investment in this land.

Dr. N.R.I.H. Debts

[261] There are four date of separation debts claimed by Dr. N.R.I.H. that Mr. M.G.S.H. does not accept.

The Debt to V.E.

[262] The first is a loan to her sister, V.E., for $15,000. There is no paperwork to document this loan but Dr. N.R.I.H. says that her sister helped her out from time to time. She says she borrowed money for her medical exams and preparation courses, when Mr. M.G.S.H. would not give her the money. Dr. N.R.I.H. says she received the money in “hundreds, $900, $1200, $1400 … over time, sometimes $600”. She got $800 or $900 for her exam fee in March of 1995 and $2000 for her IMG preparation course. She is going by recollection about the total. She has also added $3,000 in interest because she has not paid anything in 18 years.

[263] V.E. and her son, Ramy, now live with Dr. N.R.I.H.. V.E. is paid $750 per month to pick up K.H, who is now twelve years old, after school four days a week. She also gets dinner ready during the week and helps with some laundry and cleaning. V.E. does not pay any set room or board for her and Ramy to live in Dr. N.R.I.H. house, although she does buy food and bus tickets for herself and Ramy, and sometimes contributes to the utility or internet bills, if they are particularly high.

[264] Dr. N.R.I.H. says she feels she now has to repay V.E. $15,000 because Ramy is about to go to university, and V.E. needs the money to pay for tuition and residence.

[265] V.E. was not asked about this “loan”. I have no evidence from her to confirm the amount outstanding or whether she expects to be repaid.

[266] On the evidence before me, I accept that Dr. N.R.I.H. feels a moral obligation to help her sister out as she is able to, just as her sister has helped her in times of need. However, the obligation is not a legal one. Dr. N.R.I.H. evidence about how much she has borrowed from her sister over the years is so vague, that I would have no way to ascertain with any confidence what might be the total. I also have no way of determining what, if any, payments or consideration V.E. may have received back from Dr. N.R.I.H. over the years that should reduce the amount remaining to be repaid. It seems that the $750 payment plus free housing may be more than Dr. N.R.I.H. needs to pay for help with K.H, given his age, but she and her sister help each other out, as sisters should.

[267] It is a very dangerous precedent to allow separating spouses to suddenly claim their equalization payment should be reduced by virtue of “debts” to family members, without any documentation to support the amount or terms of repayment. If family members advance money with an expectation of repayment they should, at a minimum, have something signed to confirm the debt. Otherwise, it is up to the recipient to decide, according to her personal conscience, whether or not to reimburse her benefactor, or perhaps reciprocate in some other manner. It is not a legal debt that should be taken into account on the equalization payment.

The Debt to Lilian

[268] Dr. N.R.I.H. has a younger sister, Lilian, who lives in Egypt. She says that, at separation, she owed Lilian $5,593.46.

[269] This debt arose from 1993, when Dr. N.R.I.H. says that Mr. M.G.S.H. left her without any money when he immigrated to Canada. She says his mother “kicked her out” a few weeks later, and she had no choice but to return to live with her sisters. She had quit her job on Mr. M.G.S.H. advice, and her younger sister paid for all her accommodation and expenses. As Dr. N.R.I.H. was pregnant, she needed to go for tests and an ultrasound, for which Lilian also paid. Dr. N.R.I.H. was also studying for her Master’s degree, and she says that Lilian paid for her exam fee and the books. Finally, she says that Lilian helped her to purchase her plane ticket, when Dr. N.R.I.H. moved to Canada.

[270] Once again, there is nothing in writing. Even Dr. N.R.I.H. admitted she might have the wrong figure. The “loan” has existed for over 20 years and there has been no repayment.

[271] Applying the same logic as I have to the debt claimed for V.E., I am not prepared to include any deduction from Dr. N.R.I.H. net family property statement for financial assistance given by Lilian to her sister years ago. It is a moral obligation, not a legal one, and I am not satisfied on the evidence what, if any, amount will be repaid.

Lawyer’s Fees

[272] When Dr. N.R.I.H. travelled to Egypt with her family in July of 2011, she consulted with a lawyer about obtaining information about Mr. M.G.S.H. shares in AMCO. She says the lawyer told her he could get a private investigator to look into the matter and, ultimately, she obtained the corporate documents that were referred to in paragraphs 232 to 234.

[273] Dr. N.R.I.H. says that she told the lawyer to do whatever it took and she would pay. She returned to Canada and the separation occurred shortly thereafter, on August 8, 2011.

[274] Dr. N.R.I.H. says that she arranged for her youngest sister to pay the lawyer, and considered it a loan. She believes the total is now $20,000.

[275] If Dr. N.R.I.H. had her sister pay the lawyer, the payments must have been made after Dr. N.R.I.H. returned to Canada. There is nothing to establish that there was a liability to the lawyer on the separation date of August 8, 2011 and, if so, for how much.

[276] I note that the corporate documents contain a receipt at page seven, showing that “S.M.” paid 25 EGP on November 16, 2011 to obtain the official copy of the commercial register for International Ferries Co. that was entered into evidence.

[277] That suggests to me that the legal work was not done until several months post-separation.

[278] As I have no documentary proof of a debt for $10,000 (or any other amount) for the Egyptian lawyer on the valuation date, I am not prepared to allow a deduction for this item.

Scotiabank MasterCard Debt

[279] Dr. N.R.I.H. claims a deduction for $4809 for a portion of her MasterCard bill at the date of separation. The portion she is claiming relates to the plane tickets for her and the children to go to Egypt in July 2011 and a $180 charge for H[…] School.

[280] For some inexplicable reason, Dr. N.R.I.H. did not produce her MasterCard statement for the month of separation, despite undertaking to do so. Instead, she produced a statement from May 2011, which was three months earlier. On that statement, it shows that she incurred charges for the flights and the school. It also shows that she paid off her balance of $1949 for her April 2011 bill in full.

[281] The onus of proving a deduction is on the person claiming it. I have no way of knowing if this balance was still outstanding on the separation date. I suspect some, if not all of it, would have been paid off from Dr. N.R.I.H. bank accounts, thus reducing the amounts to be included for those accounts in the net family property statements as of the date of separation. To allow a deduction for the bill on the date of separation, as well, would be “double-counting” the deduction.

[282] I am not prepared to allow anything for this debt, as there is no proof that it was outstanding on the valuation date.

Mr. M.G.S.H. Debt to A.E.

[283] Mr. M.G.S.H. claims that, when he decided to separate in February or March of 2011, he did not have money for legal fees, so he borrowed $5,500 from his friend, A.E..

[284] I am going to treat this debt the same way that I treated the debts Dr. N.R.I.H. claimed she owed to her sisters. There is nothing in writing. I have nothing other than Mr. M.G.S.H. word to establish that he even received this money. If he did, I do not know if Mr. M.G.S.H. is required to repay the money, or if it was a gift. It is entirely possible that this was a gratuitous payment, in exchange for the considerable favour that Mr. M.G.S.H. did for Nasser with the shares. If Mr. M.G.S.H. chooses to repay this, that is his business. It is, at best, a moral obligation, not a legal one.

[285] Given the lack of documentary proof, there will be no deduction on Mr. M.G.S.H. net family property for a loan from Mr. A.E.

The Equalization Payment

[286] The Net Family Property statement with the revised amounts as outlined above is attached as “Schedule B”. The calculation results in Dr. N.R.I.H. owing Mr. M.G.S.H. a payment of $607,569.66 to equalize their net family property as of the date of separation.

The Claim for an Unequal Division due to Unconscionability

[287] Despite the general presumption that parties will equalize their net family property on separation, Dr. N.R.I.H. says that Mr. M.G.S.H. should not receive an equalization payment due to his conduct in the marriage and her position that he contributed nothing to the acquisition of the assets.

[288] The authority to vary a spouse’s equalization payment is found in s. 5(6) of the Family Law Act:

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

[289] Section 5(6)(f) does not support a variation of the equalization payment in this case. Although Dr. N.R.I.H. is solely responsible for almost all of the debts of the family at separation, these have already been taken into account in reducing her net family property before the equalization payment was calculated.

[290] Therefore, her argument is based on section 5(6)(h). In order to obtain an order that Mr. M.G.S.H. receive less than the equalization payment as calculated above, Dr. N.R.I.H. would have to establish that it would be unconscionable for him to receive that payment, having regard to some circumstance(s) relating to the acquisition, … preservation, maintenance or improvement of property.

[291] There is nothing in paragraph 5(6) that gives the court some general authority to punish a spouse for objectionable conduct by varying his or her equalization payment. The conduct would have to relate to the accumulation of the net family property in some way. The evidence adduced in this trial falls short of establishing that Mr. M.G.S.H. sexually assaulted Dr. N.R.I.H. the night before he left. However, even if that finding had been made, the court cannot impose a financial punishment on him by varying his share of the net family property, as that conduct was not related in any way to the property that the parties had on the date of separation.

[292] In Serra v. Serra, 2009 ONCA 105, [2009] O.J. No 432, the Ontario Court of Appeal reinforced the exceptional nature of an award for unequal division:

…the threshold of “unconscionability” under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family property in the circumstances must “shock the conscience of the court”: see Merklinger v. Merklinger (1992), 1992 7539 (ON SC), 11 O.R. (3d) 233 (Ont. Gen. Div.), aff’d (1996), 1996 642 (ON CA), 30 O.R. (3d) 575 (C.A.); Roseneck v. Gowling (2002), 2002 45128 (ON CA), 62 O.R. (3d) 789 (C.A.); McDonald v. McDonald (1988), 1988 8635 (ON SC), 11 R.F.L. (3d) 321 (Ont. S.C.) …[^9]

[293] I do not find that the circumstances relating to the acquisition of the net family property in this case are sufficiently compelling to invoke s. 5(6). It does not “shock the conscience of the court” for Mr. M.G.S.H. to receive his “normal” equalization payment.

[294] I will accept, for the purpose of argument, that the parties’ contributions to the acquisition of the assets were not equal. I accept that Dr. N.R.I.H. was more driven to improve the family’s standard of living than Mr. M.G.S.H., and that building up a practice and obtaining a nice home were a greater priority for her than for him.

[295] However, s. 5(1) does not require equal contributions. The Family Law Act recognizes that, particularly in longer marriages such as this, it is virtually impossible to go back through the marriage and try to place a value on the contribution of each spouse, “financial or otherwise”[^10] to the assets that exist at date of separation. It would be a difficult, acrimonious and unproductive exercise to require separating couples to go through such an analysis. Instead, the legislation provides that participation in the marriage, in and of itself, establishes a presumption of equal contribution,[^11] so that the equalization of the net family property is a simple mathematical calculation and the parties can move on with the rest of their lives.

[296] Mr. M.G.S.H. contribution was not non-existent. He has worked or gone to school, albeit generally part-time, throughout the marriage. He has persevered at jobs that had an element of danger, and might have seemed demeaning for someone with his professional qualifications, in order to provide some minimal supplement to the family’s resources. I accept his evidence that he has used his earnings to make some contribution to groceries, for example, as well as his own gas and personal expenses. He has commuted long distances for work, and slept in his car to do double shifts on weekends.

[297] He has also allowed Dr. N.R.I.H. to build up her practice by covering at least some of the childcare responsibilities. He has lost two jobs due to these responsibilities, and has been pitied by his employer for bringing his child (and pink diaper bag) to work. He has driven N.H to school, and provided at-home childcare, including feeding the children and assisting with homework, during periods where the children were not in daycare or after-school programs or activities. He has regularly attended Mosque on Fridays with K.H and, sometimes, N.H. He has taken N.H to Tae Kwon Do.

[298] He has also done some work at the house, such as cooking, laundry, and cutting the lawn.

[299] I accept that he may not have done all of this cheerfully, and often pressured Dr. N.R.I.H. to take on more of these responsibilities, without being sufficiently sensitive to the demands of her medical practice. However, the fact remains that he did assist, and Dr. N.R.I.H. suggestion that he did nothing at all throughout the marriage is not supported by the evidence.

[300] This is an 18-year marriage. On the date of separation, Dr. N.R.I.H. owned a four-bedroom home worth over $800,000, with more than $400,000 in equity. She had savings and bank accounts worth more than $750,000. She was driving a 2012 Mercedes Benz.

[301] Mr. M.G.S.H. had nothing. He was driving a 1995 Pontiac Grand Am that the parties agree was worth $100. He had just over $100 in savings. He continues to have no housing and continues to sleep in a friend’s basement, unable to even afford to pay rent. He cannot even afford much needed dental work.

[302] It does not shock the conscience of the court for the net family property to be equalized.

Payment Terms

[303] I recognize that the payment of the equalization payment will present some difficulties for Dr. N.R.I.H., as she is, essentially, the sole supporter of both children. Payment of the full equalization payment would be particularly problematic while Dr. N.R.I.H. is paying for N.H’s expensive university education in Egypt.

[304] To avoid hardship, the court has the power to order some or all of the equalization payment be paid in instalments for a period of up to 10 years.[^12] I will consider this section in my final order, once I have determined the amount of spousal support that Mr. M.G.S.H. will receive. To his credit, Mr. M.G.S.H. has acknowledged that it is a priority for N.H to complete her schooling, so I will attempt to fashion an award that will appropriately balance Mr. M.G.S.H. right to an equalization payment against the hardship posed to Dr. N.R.I.H. and the children that will result from this payment.

Spousal Support - Overview

[305] Mr. M.G.S.H. claims spousal support from Dr. N.R.I.H.. I will summarize the law regarding various aspects of spousal support and then discuss its application to the case before me.

[306] There are three steps to determining spousal support: entitlement; quantum or amount; and duration. Once entitlement is established, the Spousal Support Advisory Guidelines[^13] (the “SSAG”), provide a range of spousal support amounts, which is a useful starting point for a discussion of quantum and duration. In order to use the SSAG, a finding must be made as to the appropriate incomes to impute to both the payor and recipient spouses.

[307] Dr. N.R.I.H. suggests that she has been so affected by the stress of the matrimonial and criminal proceedings, as well as the reality of life as a single parent, that her ability to generate an income has been severely compromised. She also suggests that income should be imputed to Mr. M.G.S.H., as he is under-employed. I will discuss the appropriate incomes to use for both Mr. and Dr. N.R.I.H., both currently and moving forward.

[308] I will also consider the benefits of “restructuring” spousal support, by ordering a higher amount of support for a shorter period of time, in order to best meet the needs of this particular family.

The Law

[309] Mr. M.G.S.H. is claiming spousal support pursuant to s. 15.2 of the Divorce Act[^14]. Section 15.2 and 15.3 of the Divorce Act states the following:

Spousal Support Orders

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(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.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(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. 1997, c. 1, s. 2.

Priority

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

[310] The Supreme Court of Canada has provided direction about how to interpret and apply s. 15.2. In Bracklow v. Bracklow, 1999 715 (SCC), [1999] S.C.J. No. 14, [1999] 1 S.C.R. 420 (S.C.C.), the court clarified that there are three conceptual bases for entitlement to spousal support: compensatory, non-compensatory and contractual.

[311] In this case, there is no contractual basis for awarding spousal support. Mr. M.G.S.H. claim is based on compensatory and non-compensatory grounds.

[312] To explain the concepts as simply as possible, the compensatory grounds arise from his claim that he set aside his career aspirations in order to support Dr. N.R.I.H. pursuit of her medical license in Canada, and her subsequent medical practice. He says that his domestic and childcare responsibilities have impacted his ability to become self-supporting, and have assisted Dr. N.R.I.H. to establish her medical practice.

[313] The non-compensatory claim relates to the difference in their incomes at, and following, separation. Non-compensatory support is designed to protect the spouse earning the lower income from the loss of access to the total family income for support after separation. This is done by redistributing some of the income from the higher income earner through an award of spousal support. It is based on Mr. M.G.S.H. need for support and Dr. N.R.I.H. ability to pay, as Dr. N.R.I.H. has left the marriage with access to her professional income to support herself (and the children), whereas Mr. M.G.S.H. is now trying to survive on his meagre earnings from the convenience store.

[314] Moge v. Moge, 1992 25 (SCC), [1992] S.C.J. No. 107, [1992] 3 S.C.R. 813 (S.C.C.), reinforced that a court must examine all four objectives set out in the Divorce Act to achieve an equitable result that properly shares the economic hardship resulting from the breakdown of the marriage. No single objective is paramount. Moge also provided that the longer a relationship endures, the greater the presumptive claim to equal standards of living upon its dissolution. This concept is embodied in the computer calculations generated under the SSAG, which consider the length of the relationship in calculating both quantum and duration of support.

[315] In Leskun v. Leskun, 2006 SCC 25, [2006] S.C.J. No. 25, at para. 20, the Supreme Court reinforced that the Divorce Act is clear that spousal misconduct is not to be considered in determining spousal support. Misconduct, including domestic violence, is “off the table” and should not creep back into the court’s deliberation as a relevant “condition” or “other circumstance”, which the court is to consider in making a spousal support order.

[316] However, the emotional or physical effects of misconduct, such as domestic violence, may be relevant to a determination of spousal support, if they affect the ability of either spouse to earn an income.[^15] Dr. N.R.I.H. alleges that she has suffered severe depression as a result of Mr. M.G.S.H. actions during the marriage, as well as at, and following, their separation. She says her depression and difficulty concentrating has affected her practice and her income has dropped dramatically. Section 15.2(5) does not preclude considering the consequences of the alleged misconduct, when the court is determining the proper amount, duration, and form of any award of spousal support.

[317] The court has considerable discretion in fashioning a spousal support award that is reasonable, and meets the needs of each particular family. For example, a court may “trade off” quantum and duration, by reducing one and increasing the other, to achieve a just result. The authors of the SSAG refer to this as “restructuring”.

[318] Ms. Nicoll has referred me to the case of Firth v. Allerton, [2013] ONSC 2960, [2013] O.J. No. 2332, which raised similar issues to the case at bar. Justice Broad reviewed several cases relevant to the issues of quantum and duration and noted:

1. Given the focus is on the effect of the marriage on impairing or improving each party’s economic prospects, a deliberate individual choice by one party not to pursue or develop career opportunities, without the express or implied agreement or acquiescence, of the other party, or even against the wishes of the other party, may not support a compensatory claim for support.[^16]

2. The court should not decide on one basis of support to the exclusion of the other but should “apply relevant factors and strike the balance that best achieves justice in the particular case”.[^17] The jurisprudence does indicate that the characterization of the type of support as either compensatory or non-compensatory may have an impact on the duration of the support order. Time limits can be imposed, even in a longish marriage, where support is non-compensatory in nature[^18], whereas … a compensatory support order, especially after a long marriage, starts from a premise of ‘indefinite’ support.[^19]

Entitlement

[319] Mr. M.G.S.H. is entitled to spousal support on both compensatory and non-compensatory grounds.

Compensatory Support

[320] The compensatory claim is based on the financial and domestic contributions Mr. M.G.S.H. made during the marriage, which assisted Dr. N.R.I.H. to requalify as a medical doctor and establish her practice.

Financial Contributions

[321] Mr. M.G.S.H. contributed financially to the advancement of the family, particularly in the early years.

[322] While the family was living in Hamilton in the early years of the marriage, the sole sources of income were Social Assistance, the “baby bonus”, and Mr. M.G.S.H. cash wages from his jobs at the convenience or grocery stores. Originally, he commuted a great distance on public transit to the store in Mississauga. From the fall of 1994, until the time that the family moved to Scarborough, he was driving one or both days on weekends to work at the convenience stores in Markham. At some point, shortly before the move in 1996, he started working three days a week at the grocery store in Etobicoke, and continued doing that for over a year.

[323] Dr. N.R.I.H. admits that, from the time she arrived in Canada in 1993 until April 3, 1998, when she completed her Ontario Medical exams, she was not earning an income, as she was preparing for her exams and looking after N.H. For almost the first five years of their 18-year marriage, while this couple was struggling to establish a life in Canada, the sole source of income other than government funding was Mr. M.G.S.H.. Dr. N.R.I.H. was not required to work outside the home, while she was studying and caring for N.H. Despite his own attempts to obtain upgrading and further education, Mr. M.G.S.H. maintained a variety of jobs to get some additional income for the family.

[324] Once Dr. N.R.I.H. qualified as a medical doctor, she became the primary breadwinner for the family. However, Mr. M.G.S.H. did continue to try to maintain at least part-time employment to cover some of his own expenses and make a contribution to groceries. While his earnings were not great, and his contribution to the family was compromised by him secretly sending money to his mother in Egypt, I find that the fact that he maintained employment had at least a minimal financial benefit to the family. I also find that his ability to work and earn more income was somewhat compromised by his childcare responsibilities, as will be discussed below.

Assistance with the Requalification Process

[325] I also accept Mr. M.G.S.H. evidence, which is supported by Mr. W.B. and Mr. F.Y., that he helped Dr. N.R.I.H. apply and prepare for her examinations. He sponsored her to come to Canada, and he obtained housing and Social Assistance for the family, so there would be somewhere for her to live when she arrived. He helped her to determine what would be required to qualify to be a medical doctor in Canada. Dr. N.R.I.H. admits Mr. M.G.S.H. picked up, and may have completed, the application for her first qualifying exam. He helped pay for at least that exam, although I accept her evidence that she had to borrow money from her sister to cover some of the future exams, because Mr. M.G.S.H. was resistant to spending more money on them after her first failed attempt. Mr. M.G.S.H. also helped with driving her to her tutor, as she did not drive on the highway, and with picking up and photocopying notes from Mr. F.Y.’s wife.

Childcare Assistance

[326] Other than a one month ESL course in June of 1994, Mr. M.G.S.H. took a break from his own studies at Mohawk College between March and late 1994. I accept Dr. N.R.I.H. evidence that, when his mother came over to visit for two months or so between February and May of 1994, Mr. M.G.S.H. priority was his mother, and neither of them was very much assistance to Dr. N.R.I.H.. However, from June to late 1994, Mr. M.G.S.H. seems to have been out of school, while Dr. N.R.I.H. was studying hard for her first set of exams in November 1994. I find that Mr. M.G.S.H. assumed some of the childcare responsibilities for N.H during this time, to maximize the chance that Dr. N.R.I.H. would be successful in passing her exams.

[327] Once Dr. N.R.I.H. failed her first qualifying exam in November of 1994, I accept that Mr. M.G.S.H. may have become less supportive and returned to his own studies. This is supported by the receipt of his drafting certificate in May of 1995, following completion of a six-month course. I accept Dr. N.R.I.H. sister, V.E.’s, evidence that Dr. N.R.I.H. contacted her quite upset about Mr. M.G.S.H. having reduced his support of her, financially and otherwise, which necessitated V.E. lending her money to repeat the examinations in March of 1995. This reduces Mr. M.G.S.H. compensatory claim as, not only was he being of less assistance to Dr. N.R.I.H., he was pursuing his own studies at this time, so cannot claim that his career aspirations were being set aside in order to support his wife’s studies.

[328] Mr. M.G.S.H. compensatory claim is also significantly reduced because of his unreliability and his desertion of his wife and child at a critical time in her requalification process. The fact that he left for Egypt, without her agreement, just as she was starting her residency program, is shocking. I am going to consider his absence and significant lack of support of her career at that time, when I assess the amount of support he should receive.

[329] However, other than when he disappeared to Egypt, I find that Mr. M.G.S.H. assumed some of the childcare responsibilities. Both Mr. F.Y. and Mr. Taher testified that Mr. M.G.S.H. had to end his employment with them because he was unavailable due to the need to pick up or drop off the children. Although Ms. Nicoll suggests their testimony seemed “rehearsed”, I disagree. Both gentlemen struck me as credible witnesses, who were trying to answer the questions put to them fairly and accurately. They were not prone to exaggeration. Details, such as Mr. Taher’s memory of the pink diaper bag that Mr. M.G.S.H. carried, convince me that Mr. M.G.S.H. childcare responsibilities did spill over into his workplace.

[330] Also, both N.H and Dr. N.R.I.H. remember Mr. M.G.S.H. doing some of the pickup or drop-off at school, so I am satisfied that his contribution was not non-existent.

[331] However, I do not accept Mr. M.G.S.H. assertion that he “did it all”. He certainly was not the full-time or only caregiver.

[332] As the lower income earner, Mr. M.G.S.H. claimed the childcare deduction on his income tax receipts. From 2005 to 2010, there was a total of $26,976.75 claimed, which confirms that the family was using a significant amount of outside help to cover childcare. I also accept Dr. N.R.I.H. testimony that, when she was home on Tuesdays, evenings and weekends, she was the primary caregiver for the children.

[333] I find that responsibility for childcare was shared between Dr. N.R.I.H., Mr. M.G.S.H., and outside service providers. It is not essential for me to apportion exactly how much Mr. M.G.S.H. did. Suffice to say, I am satisfied that his contribution was more than occasional and that it affected his availability for employment.

[334] I accept that Mr. M.G.S.H. helped K.H, in particular, with his homework from time to time, and took him to Mosque on Fridays. I accept N.H’s evidence that she remembers her father taking her to Tae Kwon Do, although she thought it was for a very brief “free trial” period. However, I also accept N.H’s evidence that her mother was by far the primary parent. With the exception of Tae Kwon Do, N.H confirmed that Dr. N.R.I.H. was the only parent who arranged for, or was involved in, education and extracurricular activities, and Mr. M.G.S.H. took very little interest in things like parent-teacher interviews or her university applications.

[335] Other than his childcare responsibilities mentioned earlier, Mr. M.G.S.H. contributions to parenting and activities with his children were so minimal that it is not a significant factor in his claim for spousal support. Mr. M.G.S.H. was acting as a father to his children when he helped with homework or took them to activities, as he should do. It did not affect his availability for employment, or his career or educational aspirations.

Other Domestic Responsibilities

[336] I accept Mr. M.G.S.H. submission that he prepared some meals, did some laundry and cleaning, and did some other work around the house, such as maintenance and mowing the lawn. However, I find that Dr. N.R.I.H. did more than he did and I note that, when he cooked, he generally made only enough food for him and the children. While he did his own laundry occasionally, N.H confirmed that her mother did almost all the cleaning and laundry for the family. Dr. N.R.I.H. was responsible for attending to the family finances and paying all the bills, as well as organizing the household. She was the one who did most of the cleaning, to the point where both her husband and daughter felt that she was a “neat freak”.

[337] Both N.H and V.E. support Dr. N.R.I.H. evidence that, particularly when Dr. N.R.I.H. was home, Mr. M.G.S.H. was usually disengaged from the family, either by disappearing to his room, or by leaving the home, without telling anyone where he was going or when he might be back. Mr. M.G.S.H. contribution to the household activities are so minimal that they do not go beyond what would be expected of any adult living in a home, and are not a significant component in his claim for compensatory support.

Conclusion

[338] It is important to ensure that any spousal support decision does not have an unintended “gender bias”. Gender is, of course, irrelevant in determining spousal support. What are important are the roles assumed in the marriage.

[339] The situation in the H. home was far different from a “traditional” marriage, in which one spouse is the primary breadwinner and the other spouse relieves him or her from most of the household and childcare responsibilities, so that he or she can focus on his or her career without worrying about organizing the family or home.

[340] Dr. N.R.I.H. did not have this type of support from Mr. M.G.S.H.. She was not only the primary breadwinner, but also the person with primary responsibility for the household and the children. When Mr. M.G.S.H. pitched in, he was “helping her” rather than taking charge of these duties so that she did not have to worry about them. I also find that, when he did assist, he did so begrudgingly. N.H, for example, recalls him complaining so much about how much it cost him for gas when he drove her to school, that she tried to get home in some other way, to avoid the unpleasantness. This is consistent with Dr. N.R.I.H. evidence that, throughout the marriage, when Mr. M.G.S.H. assisted at home or with the children, he would complain that he was doing “woman’s work”, which she should be looking after.

[341] Mr. M.G.S.H. compensatory support claim is not particularly strong. It is grounded primarily in the early years of the marriage. However, his desertion of the family when Dr. N.R.I.H. began her residency weakens his claim, as his absence and lack of support at this critical time made completion of her residency more difficult for her. Once Dr. N.R.I.H. requalified as a doctor, the role that Mr. M.G.S.H. assumed during the marriage does not establish a significant claim to compensatory support. I find that he could have pursued retraining or full-time work, and Dr. N.R.I.H. encouraged him to do so. Mr. M.G.S.H. household and childcare responsibilities did not significantly affect his career aspirations, and his unreliability and unwillingness to assume the primary responsibility for childcare meant that Dr. N.R.I.H. continued to have to juggle these responsibilities with her career as a medical doctor.

Non-compensatory Support

[342] The concept of non-compensatory support relates to addressing the third and fourth objectives of s. 15.2 of the Divorce Act: relieving the economic hardship arising from the breakdown of the marriage and promoting the economic self-sufficiency of each spouse within a reasonable period of time.

[343] Both the caselaw and the SSAG incorporate the concept of economic merger over time. The basic premise is that, the longer a couple is together, the more likely it is that their financial needs will be merged together and supported by the total income coming into the household. Therefore, where there is a large disparity in the incomes of the parties at separation, there should be a readjustment on separation, through a spousal support award, to more fairly apportion the economic consequences of the marriage breakdown. The SSAG uses a guideline of 1.5% to 2% of the income differential for each year of marriage to determine the appropriate spousal support range for marriages in which there are no children. When there are children involved, there are adjustments made to give priority to the needs of the children, so that the income differential that is shared relates only to the income that is available to each spouse for their own personal needs, after child support and special expenses for the children have been covered.

[344] Therefore, the starting point for any discussion about non-compensatory support is to determine the actual or imputed income that should be used for each party. This will reveal the income differential, and the court can then decide how much spousal support one spouse should pay to the other to reduce that difference.

Dr. N.R.I.H. Income

[345] The evidence regarding Dr. N.R.I.H. income was complicated. Dr. N.R.I.H. billings are all processed through her professional corporation, N[…] Corporation. Some of the income remains within the corporation, while part of it is paid out to her as T4 income. She has been withdrawing other money, as needed, to meet expenses, which has created a shareholder loan account that needs to be repaid. The shareholder loan can be repaid by Dr. N.R.I.H. withdrawing some of her retained earnings, as either dividends or salary. The manner in which the retained earnings are withdrawn will trigger different tax treatment, as dividends are not taxed at the same rate as income.

[346] Dr. N.R.I.H. does not fully understand how all of this works, so her evidence was not particularly helpful.

[347] Her accountant, Mr. Tim Cheng, was not called as a witness. In an effort to try to reduce trial time, both counsel were communicating with Mr. Cheng by telephone over breaks during the trial. Ultimately, Ms. Nicoll, Mr. Wickham and Mr. Cheng were able to agree on many of the numbers, which were then entered onto the net family property statement. The issues of retained earnings, shareholder loan, and tax liability were accounted for in determining a number for the value of Dr. N.R.I.H. business for the equalization calculation.

[348] The discussions with Mr. Cheng also narrowed the differences about Dr. N.R.I.H. historical income. The amounts on her T4s were easily determined. There are three remaining differences, which are highlighted in the charts below.

[349] The first difference relates to the proper number for Dr. N.R.I.H. 2012 income. The second is whether $14,000 should be added back to the 2011 income for money that Dr. N.R.I.H. says she paid to Mr. M.G.S.H., but which he denies receiving. Finally, the parties disagree about whether the deduction for “income tax” shown on Dr. N.R.I.H. corporate financial statements should be deducted from the gross income shown on the financial statements, in determining the income available to her each year from the corporation.

[350] Dr. N.R.I.H. says her income should be calculated as follows:

Source

2011

2012

2013

Total

Average

T4 and Investment income

113,674

104,004

112,242

329,920

109,973

Corporate Income (from Corp FN St)

154,544

144,044

109,162

407,750

135,917

“Income Taxes” (from Corp FN St)

24,302

22,728

16,809

63,839

21,280

Net Income

130,242

121,316

92,353

343,911

114,637

Total

243,916

225,320

196,357

665,593

221,864

[351] Mr. M.G.S.H. says her income should be calculated as follows:

Source

2011

2012

2013

Total

Average

T4 and Investment Income

113,674

107,037

112,242.08

332,953.08

110,984.36

Corporate Income (from Corp FN St)

154,544

144,044

109,162

407,750

135,917

“Income Taxes” (from Corp FN St)

No deduction

No deduction

No deduction

Income allegedly Paid to respondent

14,000

Nil

Nil

14,000

14,000

Total

282,218

251,081

221,404.08

745,703.08

251,567.69

Question #1 – The 2012 T4 income

[352] Regarding the discrepancy for 2012 “T4” income, Line 150 of Dr. N.R.I.H. 2010 Notice of Assessment shows a figure of $107,037, so I suspect this may be where Mr. M.G.S.H., or his counsel, got this number. It is not the correct number for 2012.

[353] Although Dr. N.R.I.H. 2012 Income Tax Return and Notice of Assessment were not entered as exhibits, the correct number for her 2012 T4 income appears to be $104,004, as set out in the comparative summary prepared by her accountant, attached to her 2013 Income Tax Return.

Question #2 – The $14,000 adjustment in 2011

[354] I am satisfied that it is an appropriate adjustment to add $14,000 back to Dr. N.R.I.H. income for the money allegedly paid to Mr. M.G.S.H. in 2011. The source of this request is Dr. N.R.I.H. evidence that she was paying her husband $2,000 per month through her corporation, which she had her accountant terminate on August 8, 2011, when her husband left. Both parties agree that Mr. M.G.S.H. was not doing anything in the first seven months of 2011 to earn this $14,000, so it appears to have been an accounting exercise to obtain the tax benefit of some sort of income splitting. Mr. M.G.S.H. did not appear to receive any T4 for this payment, as his 2011 Notice of Assessment shows only $9,016 of gross income. However, I am satisfied by Dr. N.R.I.H. evidence that this money was paid to Mr. M.G.S.H., which would otherwise have stayed in her corporation and been available to her. I agree that it is money that should be added back to the available corporate income, so that it is included in Dr. N.R.I.H. 2011 income in the chart above. I have not complicated matters by trying to calculate the corporate tax that would be payable because, as will be seen below, including this amount will have no real impact on my ultimate decision about spousal support.

Question #3 – The Income Tax shown on the Corporate Financial Statements

[355] With respect to the amounts deducted on the financial statements for income tax, it is not entirely clear on the evidence to what this relates. However, it seems to be the Income Tax owing or sent in to Revenue Canada, either for the corporation or for employees other than Dr. N.R.I.H.. Either way, it is tax paid within the corporation, and is therefore not money available for Dr. N.R.I.H. to withdraw for her personal use. It should not be included in her income for support purposes.

[356] Adding the $14,000 back into Dr. N.R.I.H. income increases the total to $679,593, or a three-year average from 2011 to 2013 of $226,531.

Income in 2014

[357] Dr. N.R.I.H. evidence is that her 2014 billings were down substantially. She says she loves her work and cares about her patients but she is having a great deal of trouble concentrating and sleeping. She is very worried about making mistakes, particularly regarding prescribing medications to her patients. Her energy is depleted, which is not uncommon with depression. She says she is trying to maintain her practice by reducing the number of patients, so she can try to provide better individual care. She has tried to keep going because she knows she has two children to provide for, but she is finding it impossible to work like she did before. She dejectedly testified that she feels like a race horse that has tried to stay in the race but she is now so tired that she “just can’t run any more”. I accept her evidence that she is currently unable to generate the same level of income she has in the past.

[358] Dr. N.R.I.H. evidence is supported by a letter from her psychiatrist, Dr. H-Dief, dated January 21, 2013. He indicated that, at that time, she suffered from severe Major Depression, with “severe and very frequent” symptoms. She has been on medication since then, which has been periodically adjusted or increased to try to help her function and sleep better. According to Dr. N.R.I.H., both her psychiatrist and victim-witness counsellor have advised her that she should not be working at all at this time.

[359] The letter from Dr. H-Dief is dated, and it would have been helpful to hear from him directly at trial. A drop of income from in excess of $200,000 per year to “barely paying the bills” does generate some skepticism. Some up-to-date medical evidence would have been helpful, particularly because, when the trial resumed in November 2014, Dr. N.R.I.H. admitted that she had not closed her practice in May of 2014, as she had said she would.

[360] However, despite the lack of supporting evidence, I accept Dr. N.R.I.H. evidence that she is really struggling emotionally and it has affected her practice. Dr. N.R.I.H. cried through much of the trial, often weeping quietly for what seemed to be hours on end. She broke down frequently during her testimony and got confused about details from time to time, explaining that this was a side-effect of her medication and the stress she was under. She was extremely distressed about the upcoming criminal proceedings, and has been receiving counselling to assist her to face the prospect of testifying about such a personal matter.

[361] On a balance of probabilities, I find it unlikely that Dr. N.R.I.H. will earn nothing at all but I am satisfied that she will be doing well if she is able to generate even half of her prior income, until the family law and criminal proceedings are concluded, and she has time to heal.

[362] However, I am impressed with her determination, drive, and dedication to her children and practice. She has worked hard to establish her career, and she is justifiably proud of her accomplishments. When she speaks of being a doctor, she comes alive. Her compassion pervaded her testimony, as she continually talked about her patients and commitment to them. There was a poignant moment in the trial when Ms. S.M., who was a former patient, left the stand after testifying on Mr. M.G.S.H. behalf. In an apparently spontaneous act of forgiveness and reassurance, Dr. N.R.I.H. got up from her seat and went and hugged Ms. S.M. before she left the courtroom. On another occasion, Dr. N.R.I.H. tried to rush to Mr. Wickham’s aid, when he seemed to be having some sort of medical issue, even though he was in the middle of cross-examining her.

[363] Dr. N.R.I.H. impressed the court as a caring, responsible physician. She is committed to her career, her patients, and her children. She has a tremendous work ethic and has demonstrated that she can, and will, overcome adversity. She has the support of her sister, who is now living with her. I have no doubt that she will do everything in her power to rebuild a successful medical practice, once the stress of all these court proceedings is behind her.

[364] For 2014, I am satisfied that Dr. N.R.I.H. would not have been able to earn more than half of her previous three-year average income, which equates to $113,265.50. I suspect her income may be even lower than that in 2014, but I am hopeful that she will be able to increase her billings slightly over the next few years. I am satisfied that Dr. N.R.I.H. will continue to be restricted to part-time work for 2015, while the stress of the criminal case is ongoing, and that her reduced billings will extend into the following year, as she begins to reestablish her mental health and her practice. Recognizing that this is an inexact exercise, I am going to fix her income at an average of $125,000 per year for 2014 to 2016, which I find should be a realistic estimate of Dr. N.R.I.H. maximum ability to earn an income as a physician during this particularly stressful period of her life. However, I also find that, by 2017, she should be able to build her practice back up to the point where she can generate an income of $200,000 per year. As a single parent, and a doctor in her mid to late fifties rebuilding her practice, I agree with her that it is unrealistic to expect that she will be able to reach peak billings such as she had in 2011, or even the equivalent of her three-year average from 2011 to 2013 of $226,531. Again, recognizing that I am being asked to predict the future, with only limited information from the past, I am satisfied that rounding down the three-year average to $200,000 per year is a realistic estimate for Dr. N.R.I.H. average income after 2016.

[365] For these reasons, I am satisfied that $125,000 and $200,000 are reasonable income targets to use for Dr. N.R.I.H. to determine her spousal support obligations.

Mr. M.G.S.H. Income

[366] Mr. M.G.S.H. income is almost impossible to determine. His income tax returns are no help. Historically, they have been prepared by Dr. N.R.I.H. accountant, and show only the T4 income that he hypothetically earned from the corporation. As mentioned earlier, that appears to be an accounting innovation to support some income splitting for tax purposes. This income is obviously not available to Mr. M.G.S.H. for his support moving forward.

[367] None of the other income that Mr. M.G.S.H. earns has ever been claimed for income tax purposes. He has no records, nor do any of his employers. The “guesstimates” are all based on rather vague references to “weekend and evening work”, with undetermined and varying hours, all paid in cash.

[368] There is also the issue of why Mr. M.G.S.H. has not been working more, or trying to obtain a better paying job. He has credentials as a professional civil engineer, which the University of Toronto confirmed in 1993 would “correspond to the standard of competency necessary for a four-year Bachelor’s degree in Mechanical Engineering from a reputable Canadian university.” He has qualified in Canada as an automotive service technician with Advanced Training in Scan Tool Diagnosis.

[369] As mentioned previously, the family spent approximately $27,000 on private childcare from 2005 to 2010. Dr. N.R.I.H. looked after the childcare responsibilities at least three days a week (weekends and her Tuesday day off). Dr. N.R.I.H. says she has begged Mr. M.G.S.H. to go back to school or find more work. In her words, “there is honour in work”, yet Mr. M.G.S.H. showed no interest in pursuing full-time employment. I do not accept Mr. M.G.S.H. submission that it is his wife, or his responsibilities to his children, that prevented him from finding more lucrative employment or pursuing requalification as a professional engineer in Canada.

[370] However, the reality is that Mr. M.G.S.H. is now entering his sixties. Although he testified at trial that he now intends to pursue his engineering requalification, his age and lack of experience and contacts in Canada will pose significant barriers to him in establishing a new career or profession.

[371] On behalf of Mr. M.G.S.H., Mr. Wickham suggested that we impute $31,200 per year of income to Mr. M.G.S.H.. This represents an expectation that, once Mr. M.G.S.H. has a place to live, he will be able to pursue full-time, minimum-wage work. Mr. Wickham’s calculations were: 60 hours per week x $10 per hour x 52 weeks per year = $31,200 per year.

[372] On behalf of Dr. N.R.I.H., Ms. Nicoll accepted that figure as a reasonable number to impute to Mr. M.G.S.H. but points out that Mr. M.G.S.H. has always worked in jobs where he is paid in cash. That means that a substantial portion, if not all of his future income, is likely to be tax-free, so it should be grossed up for unpaid taxes.

[373] As the intent of the Child Support and Spousal Support Guidelines is to treat all payors and recipients equally, I agree that Mr. M.G.S.H. income must be grossed-up, to be comparable to what someone else would have to make before tax, to net $31,200 after tax.

[374] The minimum wage has gone up since counsel’s agreement to use the number $31,200. However, 60 hours a week is a lot to work, as is 52 weeks of the year. Given that this is all an inexact science, I am prepared to accept that the number agreed to by both counsel is a reasonable one to use for Mr. M.G.S.H. income for the purposes of determining an appropriate range of spousal support.

[375] I find that an income of $31,200 per year is a reasonable estimate to expect Mr. M.G.S.H. to generate to contribute to his own support. Given his history of not paying tax on his earnings, this figure should be grossed-up for tax.

The Spousal Support Advisory Guidelines Calculations (SSAG)

[376] Professors Carol Rogerson and Rollie Thompson undertook a project several years ago, with the support of the Department of Justice Canada, to try to bring more certainty and predictability to the determination of spousal support under the Divorce Act. The result, The Spousal Support Advisory Guidelines, was first released in January 2005 as a draft proposal, which was finalized in July 2008. As mentioned previously, the SSAG are used to generate an appropriate range of spousal support based on certain variables: the incomes of the spouses, whether there are dependent children, the length of the relationship, and the age of the recipient at separation.

[377] The SSAG have received widespread judicial approval. They are a now a standard component of any judicial analysis of spousal support.

[378] In the case before me, each party has run several scenarios under the SSAG.[^20] The court has prepared additional calculations based on the income findings above, and the various scenarios are set out below. All reflect an 18-year marriage and recognize that Mr. M.G.S.H. was 54 years old at separation. All reflect that Dr. N.R.I.H. income is taxable and Mr. M.G.S.H. has $31,200 of non-taxable (NT) income. The children are referred to as N (N.H) and K (K.H). The differences in the arrangements and expenses for the children will be discussed in more detail below but all reflect that Dr. N.R.I.H. has been, and will continue to pay all of the children’s special expenses. All of the SSAG calculations produce a range for “indefinite (unspecified) duration, subject to variation and possibly review”.

Dr. N.R.I.H. income

Mr. M.G.S.H. income (NT)

Number of Children

Annual s.7 expenses (Not shared)

Child Support payable by Mr. M.G.S.H.

Spousal Support

Split of Net Disposable Income (NDI) %

$125,000

$31,200

N (summer) K (full-time)

$9,000 childcare (K) $3,000 extracurricular (K) $35,000 (N)

$392

Low 0 Medium 0 High 0

62.6/37.4 62.6/37.4 62.6/37.4

$125,000

$31,200

K (full-time)

$ 3,000 (K)

$322

Low $1,435 Medium $1,674 High $1,913

64.2/35.8 62.6/37.4 61.0/39.0

$200,000

$31,200

K (full-time)

$3000 extracurricular (K)

$322

Low $ 2783 Medium $ 3247 High $3711

66.3/33.7 64.1/35.9 61.9/38.1

$200,000

$31,200

K (in post-secondary)

$20,000 (K)

$322

Low $2,003 Medium $2,337 High $2,671

66.2/33.8 64.3/35.7 62.4/37.6

[379] Both parties agree that it is a priority that N.H completes her current university degree in Egypt. Mr. M.G.S.H. agrees that he committed to this education path for N.H and went with the family to get her registered and settled in 2011, just before the separation. He agrees that the cost for tuition, living expenses, and transportation home is $35,000 per year, and it is understood that Dr. N.R.I.H. will continue to bear this entire expense on her own. As can be seen from the first scenario, if Dr. N.R.I.H. income is $125,000 per year, she cannot afford to pay any spousal support, if she is also to pay for all of N.H’s university and continue to support K.H.

[380] N.H wrote her exams right after she testified in this trial. Unfortunately, she failed at least one course. However, I cannot justify making N.H’s university a priority for any longer than the duration of the original program that Mr. M.G.S.H. agreed to during the marriage, which was to run for five years. As she started in 2011, she should be scheduled to complete her degree in the 2015/16 school year. Should she need to extend her studies beyond that, N.H (or her mother) will have to find a way to fund the additional study, which will not eliminate Mr. M.G.S.H. right to spousal support.

[381] In order to get N.H through to the end of the 2015/16 school year, I am prepared to say that Mr. M.G.S.H. spousal support entitlement should be $490 per month. At Mr. M.G.S.H. 20.05% marginal tax rate, this would leave him with an after-tax benefit of $392 per month. Dr. N.R.I.H. $490 spousal support payment will be satisfied by the elimination of the $392 child support payment that Mr. M.G.S.H. would otherwise pay on the $31,200 tax-free income that has been imputed to him. In other words, his spousal support payment will be offset by his child support obligation, so that no money will actually change hands. I am also going to confirm the status quo, which is that Dr. N.R.I.H. will continue to be responsible for all the “section 7” extra costs, including N.H’s university.

[382] I recognize that this imposes a spousal support obligation on Dr. N.R.I.H., when the SSAG suggest that nothing should be payable, but I am satisfied that this is a reasonable result for this family. I note that Mr. M.G.S.H. does not have an income source from which to collect child support, and collection seems to depend on his willingness to make payments voluntarily. “Eliminating” the child support payments from Mr. M.G.S.H. is unlikely to have any real impact on Dr. N.R.I.H. cash flow but it has the advantage of some tax relief, as well as recognizing that Mr. M.G.S.H. is receiving a benefit for the 2015/16 period, which is above the high range of the SSAG. I will take this into account in the discussion below about duration.

[383] In May of 2016, N.H’s five years of university will be done, and Dr. N.R.I.H. should begin to pay more spousal support. I have found that her income for the balance of 2016 should remain imputed at $125,000, but that it should be up to $200,000 for each year thereafter.

[384] In 2016, Dr. N.R.I.H. income should be $125,000, and K.H will be in high school. His special expenses should be limited to his $3,000 tutor and other extracurricular costs, as childcare will no longer be needed. According to the SSAG scenario above, the range of appropriate spousal support is $1,435 (low) - $1,674 (medium) - $1,913 (high), with Mr. M.G.S.H. paying child support of $322 per month.

[385] Recognizing that Mr. M.G.S.H. will have given N.H’s needs priority until she is through school, I find that he should receive spousal support towards the high range for the balance of the 2016 year. There will be an order that Dr. N.R.I.H. pay Mr. M.G.S.H. spousal support of $1,822 per month from May 1, 2016 to December 1, 2016. In making this payment, Dr. N.R.I.H. may deduct the $322 child support payment she would otherwise receive from Mr. M.G.S.H., so that she is to pay a net payment of $1,500 per month. I am also going to order that Mr. M.G.S.H. will not be required to contribute to the children’s special expenses.

[386] Beginning in 2017, I have imputed an income to Dr. N.R.I.H. of $200,000. By then, K.H will be in high school, and I suspect that he will continue to have approximately the same amount of s. 7 expenses, for tutoring and extracurricular activities ($3,000). This generates a range under the SSAG of $2,783 - $3,247 - $3,711, with Mr. M.G.S.H. paying child support of $322 per month.

[387] I am satisfied that the best way to structure a spousal support order for the H. family is to increase quantum at times when the children’s educational expenses are low and decrease duration. The family dynamics are so adversarial, that it is having a terrible impact on everyone, including the children. If there is a way to properly compensate Mr. M.G.S.H. for his spousal support entitlement, while giving everyone hope for a clean break in the future, that is a goal that seems attractive for everyone involved, including Mr. M.G.S.H.. It has the benefit of meeting the objectives of the Divorce Act by sharing the economic consequences of the dissolution of the marriage, and helping Mr. M.G.S.H. to achieve self-sufficiency, while giving Dr. N.R.I.H. an incentive to overcome her mental health struggles and get back to full-time work as soon as possible, because there will be some “light at the end of the tunnel”.

[388] As was discussed earlier, the compensatory claim is not very strong. Were it not for the large equalization payment that Dr. N.R.I.H. must now pay, this might have been a case to consider a lump sum spousal support award to achieve a clean break immediately. However, Dr. N.R.I.H. has been depleting her savings to cover expenses for her, K.H and N.H’s university since separation. It is unrealistic to expect that she can pay lump sum spousal support, as well as the equalization payment.

[389] I agree with the reasoning in Firth v. Allerton and Fisher v. Fisher. A termination date may be appropriate, even in longer term marriages, where there is not a significant compensatory component to the spousal support claim. I am going to restructure Mr. M.G.S.H. spousal support by awarding a higher amount for a shorter duration, and impose a termination date when K.H finishes high school, which I anticipate will be in 2020.

[390] I am going to award spousal support toward the upper end of the range in the amount of $3,722 per month, commencing January 1, 2017 to August 1, 2020. I am also going to order that Dr. N.R.I.H. may offset her spousal support payment by $322 per month, which is the child support that Mr. M.G.S.H. would owe to her, for a net payment of $3,400 per month. I am also going to order that Dr. N.R.I.H. be responsible for all of K.H’s special expenses, without contribution from Mr. M.G.S.H..

[391] K.H will be due to start university in 2020. Given his mother’s emphasis on education, and her commitment to her children, I am assuming that she will likely assume the cost of K.H’s university as well. Unfortunately, she is unlikely to be able to afford to send him to school abroad, as she did with N.H, but I am using an estimate of $20,000 per year for the cost of attending university in Canada. I am trying to avoid these parties needing to return to court for a review of support when K.H starts university, but if any of my assumptions in the paragraph turn out to be incorrect, that will constitute a material change, entitling either party to review my spousal support award at that time.

[392] When K.H. begins university in September of 2020, his father will be 64 years old and his mother will be 57. The parties will have been separated for nine years, and Mr. M.G.S.H. will have received spousal support in, or above, the high end of the appropriate range for six years and eight months. He will have been relieved of any obligation to contribute to the support of his children, or their special expenses or education, for almost all of the time since separation. He will have received an equalization payment of $607,569.66. I understand that, as his mother’s only child, he may also have received an inheritance from her estate by then.

[393] In the particular circumstances of this family, I find that it would be reasonable to terminate Mr. M.G.S.H. spousal support when K.H enters university, on the understanding that his obligation to pay child support or contribute to K.H’s university costs or other special expenses will also be terminated at the same time. As the SSAG generate a recommendation for an indefinite (unspecified) duration, subject to variation and possibly review, this is admittedly a result that is below the norm for an 18-year marriage, with a recipient who will be 64. However, the lack of a strong compensatory claim satisfies me that this is the right result. Through a combination of investments and earnings, Mr. M.G.S.H. should have been able to achieve economic self-sufficiency by that time, and it is best that Mr. and Dr. N.R.I.H. sever any further financial ties, once the children are both graduated from high school. They both deserve a period of peace and need to head into the final chapter of their lives free from the stress and emotional trauma that is connected with their unhappy relationship.

Retroactivity

[394] Mr. M.G.S.H. claim for spousal support was included in his Answer, which was served on February 28, 2012. However, he did nothing prior to the beginning of the trial to pursue any spousal support order. It was not mentioned in any of the consents arising from the case and settlement conferences, and there was no motion brought, although Justice Nelson endorsed on December 18, 2012, that “either party might wish to consider whether or not motions are necessary …”

[395] Had Mr. M.G.S.H. pursued spousal support prior to the trial, it might have been awarded, to address the grim financial circumstances he was living in at the time. However, had the claim been asserted earlier, Dr. N.R.I.H. might well have made different financial decisions, including reconsidering whether N.H could afford to remain in university in Egypt. Having acquiesced in the status quo of Dr. N.R.I.H. continuing to expend large sums of money to maintain the home for K.H and international study for N.H, it is not reasonable for Mr. M.G.S.H. to now expect to be awarded spousal support for 2012 to the present. Given the other amounts that Dr. N.R.I.H. will be required to pay under this order, it is not realistic to expect that she will be able to also pay an additional amount for spousal support “arrears”.

[396] I am prepared to balance Mr. M.G.S.H. admitted need for spousal support prior to the trial with the practical problem of payment by ordering his “relief” from child support while N.H is in university should begin January 1, 2014. I am unaware of whether or not Mr. M.G.S.H. is in arrears of child support at this time but, if not, any overpayment he has made should be calculated and repaid by Dr. N.R.I.H. prior to the end of 2015.

Restraining Order

[397] Dr. N.R.I.H. has asked that Mr. M.G.S.H. be restrained from contacting her or coming within 500 metres of her work, home or place of worship, except when exercising access to K.H.

[398] I can understand why Dr. N.R.I.H. is uncomfortable having Mr. M.G.S.H. anywhere near her, particularly while the criminal process is ongoing. However, once those proceedings are completed, it will be several years post-separation. Mr. M.G.S.H. will have been involved with the criminal process and, depending on the outcome of the sexual assault trial, he may have terms imposed upon him that will provide some protection to Dr. N.R.I.H.. I am satisfied it is unreasonable to expect that Mr. M.G.S.H. would risk further involvement with the criminal justice system by threatening or harming Dr. N.R.I.H.. For the sake of their children, I hope that these parties will be able to be in each other’s presence, at some point, without being hampered by restrictions in a Family Court order. Of course, if there are any events that cause further cause for concern, Dr. N.R.I.H. may apply for a restraining order at that time, and I encourage her to do so if anything happens that causes her to feel frightened for her safety at any time.

[399] However, I am not satisfied that there are reasonable grounds for her to fear for her safety at this time, and I am not going to impose a restraining order to prohibit further contact once the criminal court proceedings are completed.

Orders

[400] The order is to go as follows:

(1) The Applicant is to pay the Respondent an equalization payment totalling $607,569.66, as follows:

(a) $307,569.66 within 90 days of the release of my costs decision.

(b) $100,000 per year for three years, payable in two equal instalments of $50,000 each on July 1 and January 1, commencing July 1, 2016[^21], and ending on January 1, 2019.

(2) The Applicant is to pay the Respondent spousal support calculated as follows:

(a) From January 1, 2014 to April 30, 2016, $490 per month.

This spousal support payment will be satisfied by offsetting the child support of $392 per month that the respondent would otherwise pay on the $31,200 tax-free income that has been imputed to him. This offset will mean that no money will actually be paid by either the applicant or the respondent to the other for spousal or child support between January 1, 2014 to April 30, 2016, unless the respondent has overpaid his child support, in which case any overpayment shall be repaid to him by the applicant by December 31, 2015.

(b) From May 1, 2016 to December 31, 2016, $1,822 per month.

This spousal support payment will be offset by the applicant deducting the $322 child support payment she would otherwise receive from the respondent, so that she is to pay a net payment of $1,500 per month.

(c) From January 1, 2017 to August 31, 2020, $3,722 per month.

This spousal support payment will be offset by the applicant deducting the $322 child support payment she would otherwise receive from the respondent, so that she is to pay a net payment of $3,400 per month.

(d) The applicant’s obligation to pay the respondent spousal support will terminate with the August 1, 2020 payment.

(3) The Applicant will continue to be responsible for all the “section 7” extra costs, including N.H’s university, K.H’s future university and any extracurricular or childcare costs for K.H, without any contribution from the respondent. If the amounts I have estimated in paragraph 378 prove to be incorrect, that will be considered a material change, entitling either party to apply for a change of support.

(4) This order bears interest at the rate of 2% per year on any payment or payments in respect of which there is a default from the date of default. If Mr. M.G.S.H. wishes to claim post-judgment interest on the instalment payments, he shall advise Dr. N.R.I.H. of the amount owing by May 31, 2018, and she is to add it to the final payment on July 1, 2018.

Costs

[401] Mr. M.G.S.H. appears to have been the successful party, as he obtained an order for an equalization payment and spousal support.

[402] Dr. N.R.I.H. should provide a Rule 18 offer regarding costs within two weeks of this decision. Mr. M.G.S.H. will have one week to respond with either his acceptance or his own offer. Dr. N.R.I.H. will have one week to respond. If there is no agreement, she may request that I determine costs.

[403] If the parties are unable to agree about costs, Mr. M.G.S.H. may serve and file written submissions within one week of being advised that Dr. N.R.I.H. is requesting a judicial ruling. Dr. N.R.I.H. will have two weeks following receipt of Mr. M.G.S.H. submissions to serve and file her submissions. Both submissions may be faxed to my judicial assistant directly, at the address she will provide. Submissions should be limited to five single-spaced letter sized pages, plus any applicable offers and caselaw, as well as a detailed Bill of Costs.

[404] If costs submissions have not been received by August 4, 2015, each party is to bear his or her own costs. It would be appreciated if counsel could advise my secretary if the issue of costs is settled.

[405] For the assistance of counsel, my usual approach to costs is set out below. It would be appreciated if counsel could tailor their submissions to address these issues:

1. Rule 24(1) - The successful party is presumed entitled to reasonable costs.

2. Rule 24(6) – If success is divided, the court may apportion costs as appropriate.

3. Rule 18(14) - If either party has done as well or better than a Rule 18 offer, he or she is entitled to partial recovery costs up to the date of the offer and full recovery costs thereafter.

4. Rule 18(16) – The court may take into account any written offers, even if Rule (14) does not apply.

Rule 24(4) – A successful party may be deprived of, or have to pay costs, if he or she has behaved unreasonably. Rule 24(5) and 24(11) set out some of the factors to consider in assessing reasonableness and costs.

WILDMAN J.

Released: May 22, 2015

“Schedule B”

ONTARIO

Court File Number

Superior Court of Justice Family Court Branch

FC-11-39621

(Name of Court)

at

50 Eagle Street West, Newmarket, Ontario L3Y 6B1

Form 13B: Net Family Property Statement

(Court office address)

Applicant(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

N.R.I.H. V[…] Drive Markham, Ontario Tel: [ phone number 1 ]

Judith M. Nicoll McInnis & Nicoll 330 Bay Street Suite 507 Toronto, Ontario M5H 2S8 Tel: 416-362-1354 Fax: 416-362-1465 jnicoll@mcinnisandnicoll.com

Respondent(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).

M.G.S.H. P[…] Aurora, Ontario Tel: [ phone number 2 ]

Leon Wickham 209-341 Main Street North Brampton, Ontario L6X 1N5 Tel: 905-450-3700 Fax: 1-866-489-4514

The valuation date for the following material is (date)

August 8, 2011

The date of marriage is (date)

January 27, 1993

(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership (State percentage interest)

Address of Property

APPLICANT

RESPONDENT

Matrimonial Home 100%

V[…] Drive, Markham, Ontario […]

$840,000.00

15. Totals: Value of Land

$840,000.00

$0.00

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

APPLICANT

RESPONDENT

Household goods

Purchase of furniture by Applicant for home of parties in Egypt (23,200 Egyptian Pounds)

$1,000.00

& furniture

Cars, boats,

1986 Fiat (10,000 Egyptian Pounds)

$100.00

vehicles

1995 Pontiac Grand Am

Jewellery, art,

Jewellery (5000 Egyptian Pounds)

electronics, tools,

sports & hobby,

equipment

Other special

items

16. Totals: Value of General Household Items and Vehicles

$1,000.00

$100.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

Category (Savings, Checking, GIC, RRSP, Pensions, etc.)

Institution

Account Number

APPLICANT

RESPONDENT

Chequing

Bank of Nova Scotia

X1

$32,706.78

RRSP

Bank of Nova Scotia

$167,087.00

TFSA

Bank of Nova Scotia

$15,180.30

Money Master

Bank of Nova Scotia

$100,866.81

Power Saving

Bank of Nova Scotia

$99,862.00

GIC’s

Bank of Nova Scotia

$327,914.00

Saving

HSBC

Nil

Former Business A/C (Now used for Personal matters)

Bank of Nova Scotia

X2

$37,839.14

Saving

National Egyptian Bank (Roxy Branch), locked investment certificate BOTH ACCOUNTS INCLUDED IN ONE AMOUNT

X3

$1,322.00

Saving

National Egyptian Bank

Nil

Joint Account with Sister

Egypt Post (Although Applicant’s name is on the account, none of the money belongs to the Applicant. It all belongs to the sister)

Nil

Chequing Account

X4

$50.00

Chequing Account

X5

$77.00

17. Totals: Value of Accounts And Savings

$782,778.03

$127.00

PART 4(d): LIFE AND DISABILITY INSURANCE

Company, Type & Policy No.

Owner

Beneficiary

Face Amount ($)

APPLICANT

RESPONDENT

18. Totals: Cash Surrender Value Of Insurance Policies

$0.00

$0.00

PART 4(e): BUSINESS INTERESTS

Name of Firm or Company

Interests

APPLICANT

RESPONDENT

N[…] Corporation

100% Common Share

$153,104.30

Corporate Investment

$140,417.00

Due From Shareholder

$190,900.00

19. Totals: Value Of Business Interests

$484,421.30

$0.00

PART 4(f): MONEY OWED TO YOU

Details

APPLICANT

RESPONDENT

20. Totals: Money Owed To You

$0.00

$0.00

PART 4(g): OTHER PROPERTY

Category

Details

APPLICANT

RESPONDENT

21. Totals: Value Of Other Property

$0.00

$0.00

22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])

$2,108,199.33

$227.00

Table 2: Value Of Debts and Liabilities on Valuation Date

PART 5: DEBTS AND OTHER LIABILITIES

Category

Details

APPLICANT

RESPONDENT

Matrimonial Home

Mortgage – Royal Bank

$370,000.00

Owed to N[…] Corporation

$190,900.00

Car Lease

2012 Mercedes Benz c 350

$5,770.00

Tax on N.R.I.H.

$87,800.00

Tax on Corporation 32% for withdrawal of corporate assets

$96,800.00

Tax on RRSPs

At 46%

$76,860.02

Notional Commission & Costs on house sale

5% Commission + HST; and $1,500 Legal Fees

$48,960.00

CIBC Visa

$1,800.00

MBNA Visa

$8,790.00

CIBC Line of Credit

$5,862.00

23. Totals: Debts And Other Liabilities, (TOTAL 2)

$877,090.02

$16,452.00

Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)

PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE

Category and Details

APPLICANT

RESPONDENT

Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation).

General household items and vehicles

$13,212.00

Bank accounts and savings

$2,758.00

Life and disability insurance

Business interests

Money owed to you

Other property

3(a) TOTAL OF PROPERTY ITEMS

$15,970.00

$0.00

Debts and other liabilities (Specify)

3(b) TOTAL OF DEBTS ITEMS

$0.00

$0.00

24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3)

$15,970.00

$0.00

Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT”

Item

APPLICANT

RESPONDENT

Gift or inheritance from third person

Income from property expressly excluded by donor/testator

Damages and settlements for personal injuries, etc.

Life insurance proceeds

Traced property

Excluded property by spousal agreement

Other Excluded Property

26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)

$0.00

$0.00

TOTAL 2: Debts and Other Liabilities (item 23)

$877,090.02

$16,452.00

TOTAL 3: Value of Property Owned on the Date of Marriage (item 24)

$15,970.00

$0.00

TOTAL 4: Value of Excluded Property (item 26)

$0.00

$0.00

TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)

$893,060.02

$16,452.00

APPLICANT

RESPONDENT

TOTAL 1: Value of Property Owned on Valuation Date (item 22)

$2,108,199.33

$227.00

TOTAL 5: (from above)

$893,060.02

$16,452.00

TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)

$1,215,139.31

$0.00

EQUALIZATION PAYMENTS

Applicant Pays Respondent

Respondent Pays Applicant

$607,569.66

$0.00

Signature

Date of signature

[^1]: Family Law Rules, O. Reg. 114/99, as am., Rule 24(5)(a).

[^2]: Family Law Act, R.S.O. 1990, c. F.3, s. 5(1).

[^3]: Ibid, s. 5(1).

[^4]: Ibid, s. 5(6).

[^5]: As the trial progressed, both counsel were in the unfortunate position of discovering that the estimates of time they had given for the evidence were being vastly exceeded. Both Ms. Nicoll and Mr. Wickham revised their witness lists to try to bring this trial to a close. Part of that revision included the agreement to file the appraisals without calling the appraisers.

[^6]: August 8, 2011.

[^7]: Mr. Raymer indicates on one page of his appraisal that he inspected the home on June 5, 2011, and another says June 5, 2012. As the appraisal was signed June 11, 2012, I am assuming that the inspection was done in 2012.

[^8]: Dr. N.R.I.H.’s evidence was that she had hired a “private investigator” in Egypt to look into the share holdings. According to her, AMCO and International Fast Ferries are “one company”. I suspect that this explains the discrepancy in the number of shares bought and the number of shares sold, as there may have been some sort of share splitting as part of the corporate reorganization. Dr. N.R.I.H. acknowledges that she has no documentary evidence to suggest that Mr. M.G.S.H. continues to own shares in Egypt, or anywhere else.

[^9]: Serra, at para. 47.

[^10]: S. 5(7) of the FLA.

[^11]: FLA, supra, note 1, s. 5(7).

[^12]: FLA, supra, note 1, s. 9(1)(c).

[^13]: Spousal Support Advisory Guidelines, July 2008, Federal Department of Justice, Carol Rogerson and Rollie Thompson (“SSAGs”).

[^14]: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).

[^15]: Leskun supra at para. 21.

[^16]: Firth v. Allerton, [2013] ONSC 2960, [2013] O.J. No. 2332, at para. 47, and Lamothe v. Lamothe, [2006] O.J. No. 5045 (SCJ).

[^17]: Ibid, Firth at para.42, quoting Chutter v. Chutter, 2008 BCCA 507, [2008] B.C.J. No. 2398 (BCCA) at para. 49.

[^18]: Rollie Thompson, Fifteen Spousal Support Errors, and Fifteen “Corrections”, [unpublished, archived at Schulich School of Law, Dalhousie University] pp. 6-7, referring to Fisher v. Fisher, 2008 ONCA 11, [2008] O.J. No. 38 (CA).

[^19]: Cassidy v. McNeil, 2010 ONCA 218, [2010] O.J. No. 1158.

[^20]: Actually, in an impressive gesture of civility, Ms. Nicoll prepared all of the DivorceMate calculations, as Mr. Wickham did not have the appropriate software available. Her professionalism and assistance was appreciated by both Mr. Wickham and the court.

[^21]: This is when N.H. should have completed university, so Dr. N.R.I.H. will no longer have the large expense of N.H.’s university tuition.