COURT FILE NO.: FS-13-78544-00

DATE: 20150703

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Sami Atta Abdel Rahman Abdel Bari

self-represented

Applicant

- and -

Asmaa Mustafa Nemr Nassr

self-represented

Respondent

HEARD: February 3, 4, 5 & 6, 2015

REASONS FOR JUDGMENT

Justice Tzimas

INTRODUCTION

[1] The Applicant, Mr. Sami Atta Abdel Rahman Abdel Bari, (Mr. Bari) commenced an application for a Simple Divorce on August 8, 2013. The Respondent, Ms. Asmaa Mustafa Nemr Nassr, (Ms. Nassr) advanced a “Claim by Respondent” on September 6, 2013, wherein she sought child support, spousal support, medical health insurance benefits for her and two of her children, and equalization of the matrimonial property.

[2] The trial of this proceeding occurred over four days. Both Mr. Bari and Ms. Nassr were self-represented. Both were provided with a “Memorandum for Trial” prepared by the Superior Court of Justice, which outlines some practical and procedural matters regarding the trial process. The purpose of the memo is to assist the parties with the way they represent themselves at trial and the way a trial is conducted.

[3] The issues for determination by this court are as follows:

a) Income Imputation for Both Parties;

b) Spousal Support;

c) Child Support and Section 7 Expenses;

d) Equalization; and

e) Costs.

BACKGROUND

[4] Although there was no Agreed Statement of Facts between the parties, the following facts were not materially in dispute.

[5] The parties had a long-term marriage of about 24 years. At the time of the trial, both were fifty years old. The marriage was arranged. They met some time in 1988 and were married on May 18, 1989, in Saudi Arabia.

[6] There were three children from the marriage: Areej Sami Abdel Bari, (“Areej”), born on June 26, 1990, Omar Sami Abdel Bari, (“Omar”), born July 23, 1993, and Waleed Sami Abdel Bari, born September 27, 1994. By the time of the separation, Areej was not residing with Ms. Nasr and she is not considered a dependent for the purpose of these proceedings.

[7] There was some dispute over the date of separation in the pleadings, but at trial the parties agreed that the date of separation was April 13, 2013. The parties obtained a divorce on October 9, 2014.

[8] Mr. Bari was always the primary income earner for the family. He said that he tried to support his family as much as he could. Although Ms. Nassr could review the various statements of account that came in the mail if she wished, Mr. Bari controlled and managed the household expenses, including most of the grocery and clothing-related expenses. Ms. Nassr was focused on raising the three children.

[9] In the early years of their marriage, the parties lived in Saudi Arabia. They came to Canada in 1997. Life in Canada was very difficult. Mr. Bari had various jobs with UPS, the Bank of Montreal, London Life, and Statistics Canada. Eventually Mr. Bari was hired by the Canada Revenue Agency, (“CRA”), initially on a part-time basis. By 2009 he obtained a full-time position as an auditor. In 2011 he became a team leader and auditor, and in 2013 he became a Team Leader in the Appeals department. In addition to his position at the CRA, Mr. Bari started working on a part-time basis for Brinks. In the past few years, Mr. Bari’s income grew steadily, reaching a total income level of approximately $84,000.00; his income from the CRA is approximately $63,000.00 and his income from Brinks is approximately $21,000.00. At the time of the trial, Mr. Bari remained employed by both the CRA and by Brinks.

[10] Ms. Nassr has a Bachelor of Science in Zoology / Biology from a university in Saudi Arabia. She also received some training as a lab technician at the Damman Maternity Hospital. In the early years of the marriage Ms. Nassr worked at a girls’ school and at a hospital, though the parties had different views on whether Ms. Nassr was paid for her services or whether she volunteered her time.

[11] When the family came to Canada, Ms. Nassr did not work. She took English as a Second Language (ESL) courses offered to new immigrants while the children were in day care or attended school. In an effort to obtain some employable skills, she also took some courses in English and computers in the period between 2011-2013. She submitted at least one employment application (as discussed more fully below), but up to the time of the trial she remained unemployed.

[12] The parties bought a matrimonial home on October 19, 1998, for approximately $122,000. It was a three-bedroom condominium apartment of approximately 1,300 square feet. They advanced a cash down payment of approximately $60-70,000 on October 19, 1998, and they took out a mortgage for the balance. They refinanced against the matrimonial home on two occasions: in August 2006 for approximately $75,000 and in June 2011 for approximately $136,000. The matrimonial home was sold on October 15, 2014, for $189,000. At the time there was an outstanding mortgage of $121,083.88 that had to be satisfied. The net proceeds from the sale of the matrimonial home, currently held in trust by the lawyer who acted on the real estate transaction, are $59,201.58.

[13] Regarding the children, the eldest child, Areej, was married at some point before the separation and moved to Saudi Arabia. The two sons, Omar and Waleed, live with Ms. Nassr. Omar is studying engineering at McMaster University. Waleed is studying Business at Mohawk College. Prior to his studies there, Waleed attended George Brown College for two years and took a program in construction work. He interrupted those studies because he did not like the hard work. Waleed suffers from anxiety and obsessive compulsive disorders. Although the evidence on the precise characterization of Waleed’s condition was disputed, with Ms. Nassr making references to Asperger’s Syndrome and Mr. Bari suggesting that this characterization was exaggerated, both parties agreed that Waleed requires medication daily to be able to go about his daily activities.

[14] Finally, there were a number of temporary and final court orders that were issued by this court prior to the trial. For the purposes of this judgment, the following orders are relevant.

[15] On April 22, 2014, Justice Bielby made an order for the sale of the matrimonial home, child support, and spousal support, in accordance with minutes of settlement between the parties. The parties agreed that the matrimonial home would be listed for sale by no later than May 15, 2014. The parties also agreed that Mr. Bari would pay Ms. Nassr spousal support in the amount of $1,385.00 monthly for as long as Ms. Nassr and the children continued to live in the matrimonial home. Once the home was sold, the spousal support would be increased to $2,085. That monthly sum was based on Mr. Bari’s 2012 income of $83,940 and the Spousal Advisory Support Guidelines. Mr. Bari also agreed that he would pay child support in the sum of $1,219.00 for Waleed and Omar commencing April 1, 2014 - also based on his 2012 income, as well as the Child Support Guidelines. Soon after the matrimonial home was sold, Mr. Bari stopped paying his child and spousal support obligations. He explained that he just could not make ends meet.

[16] On July 17, 2014, Mr. Bari brought a motion to sever the divorce from all other relief sought by Ms. Nassr. He reassured the court that child and spousal support was resolved between the parties and that a future trial would concern other outstanding issues. Justice Donohue granted the requested order, but added the condition that Mr. Bari maintain Ms. Nassr as the spousal beneficiary of his “work insurance policy” until further order or judgment of the court or settlement. At that time, Mr. Bari represented to the court that he could do this, and therefore would agree to that condition. As of the time of trial, he had not changed that designation.

[17] On October 15, 2014, on the eve of the closing of the sale of the matrimonial home, Mr. Bari brought an urgent motion seeking an order that Ms. Nassr’s signature on all the closing documents be dispensed with and that Ms. Nassr vacate the matrimonial home forthwith. Although Ms. Nassr had previously consented to a court order that the matrimonial home be sold, she sought to block the closing by withholding her signature. Justice O’Connor granted the order.

[18] In November 2014, after the sale of the matrimonial home and after he obtained the divorce from Ms. Nassr, Mr. Bari brought a motion to vary his support obligations and to have the net proceeds from the sale of the matrimonial home released entirely to him. Ms. Nassr brought a cross-motion for various forms of relief, including a request that the court find that Mr. Bari misled the court in his representations that he could continue to include Ms. Nassr under his employer’s benefits coverage even after the divorce. The court dismissed both motions as the requested relief was going to be the subject of the trial, which was scheduled for February 2015, and in any event the motions would require a trial to enable a full consideration of the issues in dispute. The court expressly noted that the funds from the sale of the matrimonial home had to remain in trust pending a final order of the court.

[19] It is noted that Ms. Nassr was not given notice of the motion before Justice O’Connor, and therefore could not explain her reasons for seeking to block the sale of the matrimonial home. However, she filed an affidavit at some point prior to this trial that was dated January 21, 2015. At trial she referred to that affidavit and explained that among her principal objections was the fact that Mr. Bari unilaterally, and without any further court order, reneged on the terms of Justice Bielby’s order as they related to spousal support. She also raised the concern that Mr. Bari misled the court with respect to his ability to extend the benefits coverage to her after he obtained the divorce.

EVIDENCE OF THE PARTIES

[20] Apart from the facts that were not in dispute, both parties testified at trial in support of the relief that they claimed.

a) Mr. Bari’s Position and Evidence

[21] Mr. Bari submitted to the court that he was seeking final orders for spousal and child support, an equalization payment that would effectively see all of the proceeds from the sale of the matrimonial home paid out to him, and costs on a full recovery basis.

i. Child and Spousal Support and Section 7 Expenses

[22] Regarding child and spousal support, Mr. Bari said that he would be agreeable to an order that would have him pay child support for his two sons until May 2016 and spousal support until he turns sixty-five. He proposed that the quantum of support be determined only on the basis of his income from his employment with the CRA.

[23] With respect to child support, he submitted that he expected both his sons to complete their studies by May 2016, such that they would no longer be dependent on him for any support. He disputed the suggestion that Waleed had special needs that would require his ongoing support. He said that Ms. Nassr grossly exaggerated his condition and that if Waleed was in such bad shape he should be submitting an application for benefits from the Ontario Disability Support Program (ODSP). Mr. Bari admitted that he attended at various medical appointments with his son. He also admitted that Waleed encountered various difficulties with his studies and did not follow Mr. Bari’s advice on the type of programme he should study in college.

[24] Mr. Bari explained that, although he agreed to the child and spousal support terms contained in Justice Bielby’s Order, he quickly came to the realization that he could not pay those monthly sums and he therefore stopped making those payments. He gave evidence that he made the following payments.

[25] From April 13, 2013, until April 2014 he paid a total of $2,630.33 in monthly expenses, which were broken down as follows:

Mortgage on matrimonial home: $ 638.00

Maintenance fees for matrimonial home: $ 796.34

Property taxes on matrimonial home: $ 137.50

Property insurance for matrimonial home: $ 23.49

Cell phones for sons and Ms. Nassr: $ 85.00

Internet for sons and Ms. Nassr: $ 50.00

Bus transportation for sons: $ 350.00

Car insurance and gasoline for family use: $ 250.00

Groceries: $ 300.00

TOTAL: $2,630.33

[26] Mr. Bari said that he paid for Omar’s tuition to McMaster University of $8,772.04 for the year 2013-2014 and Waleed’s tuition at George Brown College of $3,501.00. He also paid for half of Waleed’s tuition at Mohawk College, amounting to $1,985.36, for the year 2014-2015. He said that he was not prepared to pay his sons’ tuition any further as he did not feel that he could afford it. He also testified that he felt slighted by Ms. Nassr’s and his sons’ refusal to provide him with the University and College receipts relating to the fees that he did pay so that he could claim a tax credit for tuition on his income tax returns.

[27] In accordance with Justice Bielby’s order of April 22, 2014, as of April 1, 2014, he paid monthly child support of $1,219.00 and spousal support of $1,385.00 until October 2014. He also paid the matrimonial home costs of approximately $1,600 per month until the sale of the home in October 2014.

[28] In November 2014, in accordance with Justice Bielby’s Order, Mr. Bari paid monthly child support of $1,291 and spousal support of $2,085. But soon after the sale of the matrimonial home, Mr. Bari said that he then ran into financial difficulties and unilaterally reduced his spousal support payment to $700. He continued to pay child support as anticipated by the court order of April 22, 2014. As of the date of the trial, Mr. Bari was up to date on his payments in accordance with the latter unilateral figures.

[29] Mr. Bari also testified that he is obliged to make monthly payments to his creditors that total $784, leaving him with virtually no funds to meet his own basic needs.

[30] Insofar as benefits and life insurance are concerned, Mr. Bari testified that Ms. Nassr and his sons continue to be covered under his benefits and that Ms. Nassr remains a beneficiary under his life insurance policy. He said that he was agreeable to maintaining the status quo for both the benefits and the life insurance policy, although he noted that his sons would cease to be covered once they ceased to be dependents.

ii. Quantum of Support

[31] Regarding the quantum of child and spousal support, he asked that the court base those monthly obligations only upon his annual salary of $63,085 from the CRA and not upon any reference to his part-time employment with Brinks, which would add approximately $20,000 to his total income. He also asked that the court impute an income of $25,000 to Ms. Nassr on that view that she was capable of acquiring at the very least a job at minimum wage.

[32] Mr. Bari’s rationale for distinguishing between his income from the CRA and his total income was based on his explanation that his employment at Brinks is part-time, that it has resulted in a repetitive strain injury to his right hand, arm, elbow and shoulder, and that he feared that if he continued working there he would end up with a long-term disability and would not be able to work. He said that he found life to be very difficult, that he had no social life to speak of, given his extended working hours, and that his own doctor counselled him to give up his employment.

[33] Mr. Bari sought to file a letter from his doctor and the results of an ultrasound to underscore the extent of his stress and the injury. Mr. Bari was cautioned that the evidence amounted to hearsay and raised concerns regarding the admissibility of that information, its reliability, and in any event the weight to be given to it. Most importantly, Mr. Bari admitted that he continued to hold down both jobs in spite of his doctor’s alleged recommendation to slow down, and he had no immediate plans to reduce his hours or to give up his employment at Brinks.

[34] Regarding Ms. Nassr’s employability, her entitlement to spousal support, and her role in their marriage, Mr. Bari took strong exception to the characterization of the marriage as a traditional one. He was of the firm view that, throughout the marriage, he never prevented Ms. Nassr from seeking employment; at all times, it was her choice not to work. He said that, in the early years, back in Saudi Arabia, she worked at a girls’ school and at a laboratory in a maternity hospital. When they came to Canada, Mr. Bari testified that Ms. Nassr attended ESL classes for new immigrants and took some courses in English and computers. Furthermore, she attended at an employment agency and prepared a curriculum vitae to enable her to find employment. He suggested that to this day Ms. Nassr was choosing not to work. Mr. Bari described one instance when Ms. Nassr received a call to go to a job interview but she did not return the call. Rather, she actively avoided any response. Having regard to her overall skills and abilities, Mr. Bari was also of the view that Ms. Nassr could find a job at minimum wage and, on that basis, in the determination of the appropriate spousal support, the court should impute an annual income of $25,000 to her.

[35] In sum, Mr. Bari submitted that he would be prepared to pay spousal support until he turns sixty-five, that for the purposes of the guidelines his income should be fixed at $63,085, and that Ms. Nassr should have an income of $25,000 imputed to her. On the basis of those figures, Mr. Bari submitted that Ms. Nassr would be entitled to receive a monthly spousal support payment of $658 – an amount reflective of the mid-range of the Spousal Support Advisory Guidelines.

[36] For child support based on an annual income of $63,085, he submitted that he would be prepared to pay the monthly sum of $973 until May 2016.

iii. Equalization

[37] Mr. Bari filed a Net Family Property statement. In that statement he concluded as follows:

Applicant Respondent

Debts and Liabilities on Valuation Date: $138,559.05 $5,000.00

Property Owned on Date of Marriage: $7,000.00 $0.00

Value of Excluded Property: $20,021.54 $0.00

TOTAL: $165,580.59 $5,000.00

Value of Property Owned on Valuation Date: $206,222.17 $120,375.41

Net Family Property $40,641.58 $115,375.41

In the result, Mr. Bari concluded that Ms. Nassr would have to pay him a sum of $37,366.92.

[38] The two significant figures in this analysis that Mr. Bari attributed to Ms. Nassr relate to Ms. Nassr’s “Value of Property Owned on Valuation Date.” More particularly, the figures relate to jewelry, which he valued at $100,000, and an investment with London Life in the approximate sum of $20,000. On his side of the NFP statement, a significant figure that Mr. Bari sought to exclude was an investment of approximately $20,000, which he said was a gift from his father.

[39] Beginning with the jewelry, Mr. Bari did not have any substantive evidence to support his valuation of $100,000. What he did have were some blurred photographs that depicted some gold loop earrings, a couple of bracelets, a pendent, and a chain. Mr. Bari said that the pictures were only a representative sample of Ms. Nassr’s jewelry collection. He estimated that Ms. Nassr had at least forty pieces of gold jewelry. He said that, when he and Ms. Nassr were engaged, he, his parents, and Ms. Nassr went to the market in Saudi Arabia to buy gold jewelry, as is customary for people to do when they get married. Mr. Bari did not have any evidence of this, such as a receipt for those purchases, but he estimated them to be valued at approximately $5,000. Just by viewing the pictures, Mr. Bari suggested that a pair of earrings alone amounted to an ounce of gold.

[40] Mr. Bari also said that, when they immigrated to Canada, in their declaration of their belongings that they brought to Canada, Ms. Nassr claimed that she left behind $30,000 worth of jewelry, but that in subsequent years when she visited Saudi Arabia, she gradually brought back all her jewelry and placed it in a safety deposit box. Mr. Bari said that he tried to obtain a copy of the declaration they filed from the Canadian Border Services Agency (CBSA) to substantiate his recollection of that Declaration Statement, but he was advised by the CBSA that the records no longer existed.

[41] Mr. Bari said that he bought some of the jewelry for Ms. Nassr, but that Ms. Nassr also bought herself her own jewelry from time to time. On cross-examination, Mr. Bari admitted that it was he who made the declaration regarding the jewelry. He based the figure of $30,000 on his own assessment of the jewelry’s value, without the benefit of past receipts or other valuation documentation.

[42] Mr. Bari explained that, since gold prices have appreciated 4.6 times since 1997, the collection that he estimated to have a value of $30,000 would have appreciated to approximately $120,000. He conceded that, since not all of the jewelry was pure gold, he discounted the value to $100,000.

[43] Mr Bari did not have any other evidence to support his claim. The only other submission he made was that Ms. Nassr came from a very wealthy family, that her father was a millionaire, and that, in a wealthy family, it could be expected that women would be gifted substantial jewelry.

[44] With respect to Ms. Nassr’s London Life investment of just under $20,000, Mr. Bari said that Ms. Nassr made that investment with monies she earned when she was working in Saudi Arabia. He disputed the suggestion that Ms. Nassr made the investment with funds that were either gifted or loaned to Ms. Nassr by her father.

[45] In contrast to Ms. Nassr’s London Life investment, Mr. Bari submitted that his own London Life investment of just of $20,000 ought to be an exclusion on his NFP because he bought it with money that was gifted by his father. Mr. Bari supported this contention with a letter from his father that purported to confirm the gift.

[46] On the subject of his pension, Mr. Bari gave evidence that his pension was valued at $37,669.36, and he agreed to share it equally with Ms. Nassr.

[47] Regarding Mr. Bari’s assessment of the value of his own property on the valuation date, Mr. Bari said he relied on the municipal assessment of $173,000 for the matrimonial home. He admitted that the matrimonial home sold in October 2014 for $189,000. Mr. Bari did not provide the court with any other evidence concerning the value of the matrimonial home.

[48] The balance of the items on Mr. Bari’s NFP statement relate to the mortgage on the matrimonial home and the costs of disposition, as well as token household items, a car, and three computers. Ms. Nassr did not dispute the household figures or the figure related to the car. She said that the court should use the date of the divorce as the valuation date for the matrimonial home because that date was in closer proximity to the date of the actual sale of the home and the sale price of the home would be the best evidence regarding its value.

[49] Ms. Nassr also challenged Mr. Bari with respect to the mortgage and the refinancing of the matrimonial home that resulted in a liability of $127,260.00. Mr. Bari explained that over the years they were constantly struggling to make ends meet. He said that they had to refinance their accumulating debts to cover the costs of raising the family. As a measure of the reasonableness of the refinancing, Mr. Bari testified that they lived in a neighborhood where, in accordance with Statistics Canada, an average family income was in the range of $89,000.00. Mr. Bari suggested that since he did not earn that sum and since Ms. Nassr was not working, to make ends meet, they had to go into further debt.

[50] Mr. Bari did not respond to the suggestions by Ms. Nassr that many of the expenses that he incurred were unknown to her, and that other expenses related to trips that they took back home to visit their daughter and other family. He was also silent on Ms. Nassr’s suggestion that they should not have travelled as extensively as they did if it was the case that they could not afford to do so.

b) Ms. Nassr’s Position and Evidence

[51] Ms. Nassr was agitated and often erratic during the course of the trial, often putting her own credibility in question. It was very evident that Ms. Nassr was at times in denial over her separation and the divorce, and at times simply scared and angry over her predicament and not knowing what comes next in her life. In response to a number of questions that were put to her by Mr. Bari she said that she simply could not remember anything. At one point, as Mr. Bari cross-examined Ms. Nassr on her financial statement, and in particular the value of her assets on the date of marriage and on the valuation date, Ms. Nassr’s frustration boiled over and she said that her memory was “according to our culture”. She then explained that her parents raised her on the view that when a woman gets married it is for life and that her husband would take care of her and her family forever. She could not recall the specific items or values because she never imagined she would have to think about that information. Nor did she ever imagine that her husband would leave her. That perspective permeated much of Ms. Nassr’s testimony.

[52] Ms. Nassr confirmed that she obtained a Bachelor of Science in Biology and Zoology. Her brother was a pediatrician and she went along with him and volunteered her services at the hospital’s laboratory. She said that she did not work there as a lab technician.

[53] In the early years of her marriage, she said that she volunteered at a girl’s school. She said that she could not work there because she did not have a teaching degree. Once her daughter was born she could not even keep up with that work. She therefore stayed home to care of her daughter.

[54] When the family moved to Canada, Ms. Nassr confirmed that she attended adult ESL classes. She said that she spent her time taking care of the three children. She took them to the playground, to medical appointments, and to school. Two of her three children presented with learning and other mental health difficulties. Her daughter encountered learning problems and eventually Ms. Nassr supervised her home schooling. When her daughter was in grade ten she started to behave very strangely. Eventually, according to Ms. Nassr, she was diagnosed with a bi-polar disorder. In 2008 she ran away from home. At some point later, she and Mr. Bari found out that their daughter got married in Saudi Arabia.

[55] With respect to the boys, Ms. Nassr said that Omar is in his fourth year of engineering at McMaster University. She said that he did not work while going to school. Nor did he apply for OSAP loans as he did not wish to accumulate a debt. She explained that, in addition to Mr. Bari’s support, her own father sent money to support Omar’s studies. Ms. Nassr produced copies of letters purporting to be from her father where he outlined the money he was advancing for his grandsons. Ms. Nassr agreed that child support could stop for Omar once he concluded his studies, but she submitted that the support should be based on Mr. Bari’s total income of $84,000. She also submitted that Mr. Bari should pay for their sons’ tuition and textbooks.

[56] For Waleed, Ms. Nassr confirmed that he had a serious anxiety disorder, as well as an obsessive compulsive disorder. She confirmed that Waleed studied construction at George Brown College for two years, but he did not enjoy the courses. When his brother went to McMaster, Waleed registered at Mohawk College, where he is now taking business courses. Ms. Nassr was unable to say whether or not Waleed was doing well in his studies. She noted that he tried to find work but was unsuccessful. She said that, given Waleed’s difficulties, he should have support indefinitely. On further reflection, she conceded that it was possible that the support could stop if Waleed obtained a job. However, Ms. Nassr doubted that this was realistic, given Waleed’s difficulties to date.

[57] Ms. Nassr also expressed concern that, if Waleed ceased to be a dependent, he would lose his medical coverage under his father’s benefits plan. This would be a critical loss because of Waleed’s long-term need for medication.

[58] On the subject of the quantum of the child support for Waleed, Ms. Nassr had no idea where to start. She said that it could be anywhere from $300 - $400 per month.

[59] Regarding the London Life investment, Ms. Nassr denied that it resulted from income she earned when she was in Saudi Arabia. She explained that she did not earn any income from her activities at the school and the hospital. She said that her father gave her a conditional gift. He told her that if she were to continue her studies, the monies he gave her would convert to a gift. If she failed to go to school, she would have to repay him the money. Ms. Nassr also suggested that eventually the loan was forgiven and converted into a gift. Ms. Nassr said that the investment amounted to a gift and should be excluded from her NFP statement.

[60] Ms. Nassr denied any prospect of being employable. She said that Mr. Bari would not allow her to pursue additional studies. She produced an extraordinary list of places where she said she applied for work, though she did not receive a single call for an interview. Ms. Nassr believed that it would be very difficult to obtain a job because she lacked any work experience in Canada. When asked about how she spends her day, she said that she cooked, she read, she did the laundry, she looked after all of her sons’ needs, and she organized herself for the trial. She said she enjoyed watching medical shows such as “Dr. Oz”. She also said that she enjoyed going through dictionaries and thesauruses.

[61] Ms. Nassr was unable to give the court any real sense of her expenses. Her financial statement indicated a gross income of $2,030. She thought she paid $150.00 monthly for car insurance. Following the sale of the matrimonial home, Ms. Nassr said that she and her sons moved to Hamilton so that the boys could be closer to their respective schools. They rented an apartment at a monthly cost of $1,300.

[62] With respect to spousal support, in light of the above evidence, Ms. Nassr took the position that she should not have any income imputed to her and that Mr. Bari’s income should be set at $84,000, resulting in a midrange monthly support payment of $2,085.

[63] On the subject of the jewelry, Ms. Nassr said that she never had anywhere near the quantity and the value of jewelry suggested by Mr. Bari. She could not remember what she had before the marriage and what she received after the marriage. She said that she received some gifts from her own parents before she got married. She also said that she received other jewelry, but, over the years, as the family faced various debts and financial difficulties, she sold the jewelry. With respect to the photos produced by Mr. Bari, she only recognized three pieces that she said were gifts from her parents before she got married. In particular, she questioned the earrings and said that she did not have pierced ears and she did not wear earrings. The earrings in the pictures were for pierced ears. When Mr. Bari asked Ms. Nassr why it was that she never informed him that she sold her jewelry, Ms. Nassr responded that in their culture the jewelry was for the wife and that she was not obliged to tell him what she did with her jewelry. In any event, she said that by 2011 she had sold all of her jewelry. Ms. Nassr gave a detailed breakdown of what she had, when she sold each item, to whom she sold it, and for how much.

[64] On the subject of the refinancing and the family expenses during the course of the marriage, Ms. Nassr said that she had no knowledge of the extent of their debts. She said that the first time she came to grips with the extent of the refinancing was following the separation and the results of the disclosure. She said that she could not believe, and could not understand why, on the second refinancing they needed a loan that was almost equivalent to the value of the original purchase price for the home. She understood that they needed $30,000 to purchase a new vehicle, but she never imagined that they needed upwards of $70,000, which is what Mr. Bari obtained through the refinancing.

[65] Ms. Nassr also said that although she had joint credit cards with Mr. Bari she only used them to pay for medical treatments for Waleed. She agreed that statements came home but she did not review them because she relied on Mr. Bari to manage all of their expenses. Ms. Nassr went as far as to question Mr. Bari’s expenses, though she did not have any evidence to suggest that any of Mr. Bari’s expenses were nefarious.

[66] In light of the above concerns, Ms. Nassr seemed at one point to imply that there ought to be an unequal distribution of the net family property in her favor, thought she did not use that vocabulary. However, she also suggested a compromise to the effect that the net proceeds of the matrimonial home be divided equally between her and Mr. Bari. She did not disagree that the pension should be divided equally.

[67] Finally, Ms. Nassr submitted that when she and Mr. Bari got married they signed a Mahr. She said that, in accordance with Islamic law and the terms of their particular Mahr, Mr. Bari has to pay a deferred dowry equivalent to approximately $10,000. Ms. Nassr went into some detail about the conditions under Islamic law that would result in the payment of the Mahr. She suggested that adultery would be a reason for the Mahr to be paid. She also explained that such an analysis required the court’s consideration of the religious laws of Islam to determine whether or not Mr. Bari breached those religious laws. Ms. Nassr went on to suggest that Mr Bari breached Islamic law and therefore had to pay the Mahr. Ms. Nassr offered no other evidence or expert evidence to explain how the Mahr is to be recognized by the court. Nor did she produce a copy of the Mahr.

[68] On this subject, I note that Mr. Bari did not contest the validity of the Mahr. He included in the trial record an official translation of their Mahr and a document purporting to explain the meaning of a Mahr and how it is treated under Islamic law. These documents were also attached to his application for the divorce. When Mr. Bari cross-examined Ms. Nassr on this subject, he effectively took the position that Ms. Nassr could not claim both the Mahr and spousal support; that it would amount to double-dipping. He asked Ms. Nassr if she preferred to give up her entitlement to spousal support in favour of the compensation anticipated by the Mahr. Ms. Nassr said that she wanted both.

ANALYSIS

a) The income of the Parties

[69] I begin with the determination of the parties’ respective incomes, as it is the point of departure for the determination of the quantum of spousal and child support.

[70] Beginning with Mr. Bari, I appreciate that he has been a hard-working individual and I take him at his word when he says that he worked hard all his life and did the best he could to support his family. That said, he continues to work very hard and the result of that hard work is an income of approximately $84,000. He says that his doctor has told him to slow down and to avoid prolonged sitting and prolonged computer work, but, to date, Mr. Bari has not followed that advice; he continues to hold his full-time employment with the CRA and his part-time employment with Brinks, and he proposes to do so into the foreseeable future.

[71] I also find that Mr. Bari magnified the extent of his repetitive strain injury. In any event, that injury is connected to Mr. Bari’s employment at Brinks. There was no evidence from Mr. Bari that he had no other option but to work at Brinks. Surely, if Mr. Bari has the capacity to have a second job, he could look at other options with other employers. Similarly, he could seek out opportunities for promotions with the CRA or even within the Federal government more broadly. I accept that to pursue certain promotions, Mr. Bari might have to upgrade his qualifications and reduce his employment for that purpose. However, there was no evidence that Mr. Bari had such intentions.

[72] I don’t see how I could discount Mr. Bari’s income merely on the representation that he will, eventually, be obliged to change his lifestyle and quit his job at Brinks, failing which he will suffer a long-term disability. I find that Mr. Bari could manage the effects of the repetitive strain by locating alternative employment, either by way of a promotion at the CRA or by identifying a modified ergonomic arrangement. I found Mr. Bari to be bright and very capable. His explanation to the court concerning his future was weak and I have little doubt that even he knew that his explanation was lame. Given these findings, Mr. Bari’s income is $84,000 and, accordingly, his support obligations are to be determined on that basis.

[73] Turning to Ms. Nassr, the imputation of some income presents the court with a complicated situation. Her anger and fear over her predicament became especially pronounced when she was confronted with her failed attempts to find employment. I find that her representations on this subject were largely incredible and at times defied all measures of any reality. Ms. Nassr was so incensed over the idea that she would have to support herself that she failed to appreciate that, as she tried to defend herself through her representations, she compromised her credibility.

[74] To some limited extent, Ms. Nassr could be forgiven for being unfamiliar with the court process and for being scared and in denial over what her future holds. But even such forgiveness has its limits. Turning herself inside-out and giving ludicrous and sometimes manipulative explanations did not and will not help Ms. Nassr into the future. It became very clear to this court that Ms. Nassr does not want to work and that she was desperately trying to find a way to have somebody support her needs. The extent of her desperation was most evident when she suggested that, as an alternative, one of her sons could support her if he succeeded in obtaining a good job.

[75] On the subject of spousal support, the dispute is not over entitlement but over quantum. I note the parties’ agreement that such support should be limited in time to when Mr. Bari turns sixty-five. Although Mr. Bari did not refer specifically to the relevant sections of the Divorce Act, his submissions for an imputed income to Ms. Nassr were grounded on the requirements of sections 15.2(4) of the Divorce Act and 19(1)(a) of the Child Support Guidelines. The quantum of support for Ms. Nassr and the income to be imputed to her specifically engage Ms. Nassr’s needs, her ability to contribute to her self-sufficiency, and Mr. Bari’s means.

[76] I accept Mr. Bari’s submission that some income should be imputed to Ms. Nassr. I also accept his submission that Ms. Nassr is choosing to remain unemployed. Finally, I recognize that Mr. Bari is not with unlimited means. There has to be some recognition that his income is limited to $84,000. It is not a situation where he has other financial sources.

[77] Ms. Nassr is not without abilities. She is a bright lady with significant potential. The fact that she had to home-school her daughter and to manage the specific challenges with two of her three children speaks volumes of that potential. Based on my assessment of all the evidence before me, with some concerted and genuine effort on Ms. Nassr’s part, she should be able to find a job to contribute to her support and her self-sufficiency.

[78] I recognize that Ms. Bari lacks work experience in Canada and that her past work experience in Saudi Arabia is exceptionally limited and would be of limited value to a Canadian employer. I also recognize that she has some limitations with her full comprehension of English. That would put certain positions where the English language was essential out of reach. But there are any number of jobs where conversational English, which Ms. Nassr has, would be sufficient. For example, there was no evidence before this court that Ms. Nassr could not work in retail or hospitality. In light of these limitations, I recognize that it may take some time for Ms. Nassr to enter the job market, even if it is a minimum wage position.

[79] Having regard for Ms. Nassr’s needs and abilities and Mr. Bari’s means, the most appropriate way to approach the imputation of Ms. Nassr’s income is for it to be done on a staggered basis.

[80] Accordingly, between the date of this order and October 31, 2015, I will not impute any income to Ms. Nassr. In this period Ms. Nassr will be expected to undertake a genuine effort to find employment. Ms. Nassr may not like the situation she finds herself in, and she may not have imagined that at 50 years of age she would have to find a job, but it is time for her to accept that reality and change her attitude. She may actually discover that getting out into the workforce may prove to be rewarding and give her a renewed purpose. At this point she is not helping herself by feeling sorry and being angry.

[81] From November 1, 2015, to May 31, 2016, I impute an income of $12,000, representing approximately a part-time position at a minimum wage. This is meant to recognize that, for employees such as Ms. Nassr who lack experience and have been out of the workforce for an extended period of time, employers may be reluctant to hire somebody on a full-time basis, but they may be willing to offer them a chance on a part-time basis. It stands to reason that her integration into the job market may be gradual and may proceed in steps. I also note that, at this time of the year, the holiday season often results in many part-time job opportunities, thus increasing Ms. Nassr’s prospects of finding some part-time work, at the very least. This first imputed income is designed to underscore the reality that Ms. Nassr must work to become self-sufficient. She does not have the luxury to ignore this imperative. If she does, she will do so at her own cost and peril. As an added incentive, should Ms. Nassr obtain employment that results in compensation that is greater than $12,000, the support shall not be adjusted downwards to reflect that difference. Ms. Nassr may have the small benefit of that difference. Similarly, she will bear the burden if the position she finds pays her less than $12,000.

[82] Beginning July 1, 2016, Ms. Nassr’s income will be imputed at $24,000, representing a full-time position at minimum wage. I would expect that by this time Ms. Nassr should have obtained a full-time position. As with the treatment of the part-time imputation of $12,000, Ms. Nassr may have the benefit of a salary higher than $24,000, but also the burden of a salary that is lower than $24,000 for as long as support is payable.

b) Quantum of Spousal Support

[83] Given Mr. Bari’s agreement that he should be paying some spousal support and my identification of the parties’ respective incomes, the only remaining task is to identify the quantum of that support, and the periods for which my order is to apply.

[84] For starters, Justice Bielby’s order of April 22, 2014, regarding spousal support remains in force until the date of this order. Mr. Bari shall pay the difference between the monthly sum contemplated by that order and the unilaterally reduced monthly sums paid in previous months. I note that Mr. Bari had no legal basis to take the unilateral step to reduce his support obligation without a variation of that order.

[85] I observe that Mr. Bari’s conduct on this issue was especially serious and put into question his own bona fides. Mr. Bari agreed to the child and spousal support terms contained in the April 22, 2014 order as one of the terms for the sale of the matrimonial home and for his motion to sever the divorce from the corollary relief. On the latter point, Mr. Bari reassured the court that child and spousal support was resolved and would not be an issue for trial. Once he obtained the orders for the sale of the matrimonial home and the divorce, Mr. Bari did an about-face on the issue of spousal support on the explanation that Mr. Bari ran into financial difficulties. But Mr. Bari did not offer any evidence that he was surprised by unanticipated or emergency expenses that resulted in unforeseen financial needs that had as their only solution the unilateral reduce of his support obligations.

[86] Against that background, I find Mr. Bari’s alleged difficulties suspicious, if not outright disingenuous. Given my finding that Mr. Bari was otherwise very meticulous, methodical, deliberate, and strategic in all his moves in relation to this separation it strikes me as very odd that he realized his financial limitations only after he accomplished his other goals: the sale of the matrimonial home and the divorce. I also note that Mr. Bari’s reduction of spousal support to $700 is remarkably close to his proposal before this court, based on his submission that his income from Brinks be ignored and that he pay spousal support of $695 only on the basis of his CRA income. I cannot believe that this is a mere coincidence in positions. If anything, it underscored Mr. Bari’s attempt to engineer a proposal in his favour and without regard for his prior commitments to the court. Finally, there can be no doubt that Ms. Nassr would not have consented to the terms contained in Justice Bielby’s order had Mr. Bari represented to the court that he could only pay $700 in spousal support.

[87] In the circumstances, Justice Bielby’s order remains in effect until the date of this order. Mr. Bari is bound by the terms of that order and shall pay monthly spousal support of $2,085 up until July 1, 2015, in accordance with that order. Given his evidence that he was paying $700 monthly instead of $2,085, Mr. Bari shall pay retroactively the difference in one lump sum payment of $12,465, ($2,085 - $700 = $1,385; $1,385 x 9 months = $12,465). This outstanding sum shall be deducted from Mr. Bari’s share of the net proceeds of the sale of the matrimonial home, and counsel holding those funds in trust is directed to release that sum to Ms. Nassr.

[88] Effective August 1 and until October 1, 2015, Mr. Bari will continue to pay the monthly sum of $2,085 for spousal support. This figure is based on an income for Mr. Bari of $84,000 and it represents the mid-range entitlement according to the Spousal Support Advisory Guidelines.

[89] From November 2015 until May 2016, spousal support will be reduced to a monthly sum of $1,557.00. This represents the mid-range entitlement according to the Spousal Support Advisory Guidelines and it is based on a salary of $84,000 for Mr. Bari and an imputed salary of $12,000 for Ms. Nassr.

[90] From June 1, 2016, onwards, spousal support is set at a monthly sum of $1,200.00, representing the mid-range entitlement according to the Spousal Support Advisory Guidelines and based on a salary of $84,000 for Mr. Bari and an imputed salary of $24,000 for Ms. Nassr.

[91] In my selection of the midrange for each of these periods, I have taken into account Mr. Bari’s evidence concerning his ability to pay, but also Ms. Nassr’s loss of her entitlement to Mr. Nassr’s benefits and Mr. Bari’s obligations pursuant to the Mahr.

[92] More particularly, with respect to the benefits, Mr. Bari testified that he did not advise his employer of his divorce and therefore Ms. Nassr has not been removed from his benefits profile at work. In his view, Ms. Nassr should be able to submit her claims without any difficulty. On the other hand, Ms. Nassr produced evidence that, under the “Public Service Health Care Plan”, once a divorce was finalized the spouse became automatically ineligible. In light of that provision, which Mr. Bari may not have appreciated but did not dispute, I don’t see how Ms. Nassr could continue to advance her claims after the divorce. The suggestion that Mr. Bari would just not say anything to his employer is not satisfactory and would amount to deception.

[93] To be clear, because the subject of Mr. Bari’s benefits and life insurance became the source of much confusion during the course of the trial, it is important to clarify their nature as well as the nature of Ms. Nassr’s entitlement, so as to appreciate what it is that Ms. Nassr is losing and what is beyond Mr. Bari’s control.

[94] Included in Mr. Bari’s benefits under his employment with the federal government is a Life Insurance Policy, “The Supplementary Death Benefit”, which covers Mr. Bari for approximately $125,000, and an extended medical and dental benefits policy. The beneficiary of the life insurance policy is not affected by any change in the marital status unless the owner of the policy chooses to change the beneficiary. In this case, Ms. Nassr is the named beneficiary of Mr. Bari’s life insurance policy. It is appropriate that Ms. Nassr remain the irrevocable beneficiary of that policy.

[95] The same cannot be said about the medical and dental policy, as this policy contains an automatic disqualification of a spouse’s entitlement following a divorce.

[96] Dispute over the life insurance and the medical and dental benefits was created by Mr. Bari in July 2014, when in a motion he sought to sever the divorce from the corollary relief in the application. Justice Donohue granted the order on the condition that “Mr. Bari is to maintain Ms. Nassr as the spousal beneficiary of his work insurance policy until further order / judgment of the court or settlement.” In an earlier part of her endorsement, Justice Donohue referred to the same policy as a “work life insurance policy”. The meaning of “work insurance policy” was not entirely clear.

[97] In his effort to succeed on his motion, in addition to his reassurances regarding the settlement of the child and spousal support issues, Mr. Bari reassured the court that he had also taken care of his family’s benefits’ coverage. There was no evidence that Mr. Bari alerted the court to the automatic disqualification of entitlement to medical and dental benefits for Ms. Nassr following the issuance of a divorce. On a subsequent motion to vary his support obligations, in his affidavit sworn on November 6, 2014, (which post-dated his application for divorce), Mr. Bari represented to the court that he kept Ms. Nassr on his extended health and dental insurance coverage in accordance with Justice Donohue’s order of July 18, 2014. Except that Justice Donohue’s order spoke of a “work life insurance policy” and not of any “extended health and dental insurance coverage”.

[98] Whether the conflation of the two policies was deliberate by Mr. Bari or whether it was inadvertent goes to Mr. Bari’s bona fides in his overall approach to his application and the orders he is seeking. On a balance of probabilities, I find that Mr. Bari knew exactly what he was doing and methodically, step-by-step chipped away at the various issues between him and Ms. Nassr so as to preserve the maximum benefit to himself. Insofar as my award for spousal support is concerned, Mr. Bari’s conduct has a certain bearing. But what is most important is that, going forward, Ms. Nassr does not and will not have the benefit of extended medical and dental benefits. Although she did not advance any evidence of her actual annual claims for such benefits, my selection of a mid-range monthly payment for spousal support takes into account the loss of that benefit.

[99] The other element I have taken into account in setting spousal support at the mid-range relates to the Mahr. Both Mr. Bari and Ms. Nassr agreed that they entered into a Mahr when they got married. They also agreed that the reference to a deferred dowry payment of $30,000 in Saudi Arabian currency represents a sum of approximately $10,000 in Canadian dollars. Mr. Bari agreed that the Mahr was valid. Beyond Ms. Nassr’s acknowledgment of that agreement, her submissions were confusing. As she attempted to explain the Mahr, she invited the court to find that Mr. Bari broke the religious laws and principles of Islamic law and, more particularly, Sharia law. Ms. Nassr offered her understanding of those religious laws, and, seemed to argue that the compensation of $10,000 recorded on the face of the Mahr was contingent on an express finding that Mr. Bari breached Islamic law. She urged this court to make such a finding. I cautioned Ms. Nassr that her references to Islamic law and her suggestion that I make findings on the basis of Islamic law was not something I could determine.

[100] Mr. Bari responded by noting that claims under both the Mahr and the Divorce Act amounted to double-dipping. He went as far as to suggest that he might be prepared to pay the Mahr and withdraw from all other obligations if Ms. Nassr agreed with that proposal. In effect, that would mean that she would give up on her spousal support and possibly her equalization entitlements and have her compensation limited to the $10,000 anticipated by the Mahr. Ms. Nassr did not agree with that approach and, to be clear, neither did Mr. Bari. He only proposed it in response to Ms. Nassr’s claim. Finally, neither party offered the court any law in support of their respective positions on this point.

[101] In my review of the law, I note that the Supreme Court of Canada in Bruker v. Marcovitz, 2007 SCC 54, concluded that a religious contractual agreement could be enforced if it satisfied the necessary requirements. Those requirements would include a finding that the contract was in writing, that it was signed by the parties, and that it was witnessed (see also, Khamis v. Noormohamed, 2011 ONCA 127, [2011] O.J. No. 667). The court also has the discretion to set such an agreement aside if it has concerns over its validity.

[102] Applying the principles to this case, both parties acknowledge that they entered into a Mahr and they confirm the sum of the deferred dowry to be in the range of $10,000. That agreement by the parties allows me to find that the Mahr is a valid contract. But I must then determine the relationship between the Mahr and the relief claimed under the Divorce Act. That document is silent on its relationship with any legislative regime. For example, there is nothing on the face of the Mahr, as translated for the court that says that it represents the full agreement or that it overrides any other requirements for spousal support. The parties did not lead any expert evidence on how their particular Mahr ought to be interpreted and whether, in fact, there were conditions that attached to the Mahr that this court ought to consider.

[103] Mr. Bari submits that the Mahr ought to be ignored in favour of the requirements of the Divorce Act. Ms. Nassr asks that she receive the Mahr of $10,000 as well as spousal support under the Divorce Act. A third, at least theoretical option would be a ruling that Ms. Nassr receive only the payment of $10,000 under the Mahr and nothing else. To Mr. Bari’s credit he has not advanced such a draconian proposal.

[104] Mr. Bari’s proposal that the Mahr be ignored in favour of spousal support amounts to the request that a valid agreement be set aside in favour of the Divorce Act. There is nothing before me to invalidate the Mahr. On the other hand, Ms. Nassr’s proposal seeks to maximize her support with the risk of an overly-generous support order. What is needed is an approach that reaches an appropriate balance.

[105] I can achieve that balance by taking the Mahr into consideration when I exercise my discretion to fix the range of spousal support. Such an approach would be in keeping with the means, needs and circumstances of the spouses’ analysis. Practically, it yields two options. I could order a lump sum payment of $10,000, on account of the Mahr and then reduce significantly the monthly sum for spousal support to be paid to Ms. Nassr. Or, in lieu of a lump sum payment, I could fix spousal support at the midrange of the Guidelines. That in effect would reflect a measured blending on the obligations under the two regimes.

[106] As between those two options, I prefer the second option as I conclude that such an approach reconciles best my finding of a valid Mahr with the means and needs analysis for spousal support. Ms. Nassr needs spousal support much greater than the $10,000. However, Mr. Bari would be faced with an undue burden if he had to come up with a lump sum payment of $10,000 in addition to a monthly support payment and the other relief that is being ordered. The fixing of spousal support at the midrange accomplishes the appropriate balance.

c) Child Support and Section 7 Expenses

[107] On the subject of child support, there are two discrete issues that require my determination. One relates to the quantum of child support and the other relates to whether support for Waleed should extend beyond May 2016. Beginning with quantum, the point of departure, as with my analysis of spousal support, rests with Mr. Bari’s income being set at $84,000. If the sons were under eighteen, under the Child Support Guidelines, they would be entitled to monthly support of approximately $1,219.00. However, both sons are over eighteen and are pursuing post-secondary studies.

[108] When it comes to determining child support in such circumstances, there is no arbitrary cut-off point for support. There must be some congruency between the financial circumstances of the parents (i.e., ability to pay) and the costs associated with the child’s education plans: see for example, Jarzebinski v. Jarzebinski, [2004] O.J. No. 4595, [2004] O.T.C. 979 (Sup. Ct). What would be reasonable in the circumstances engages questions related to the children’s ages, their academic achievements, their ability to benefit from further education, the possibility of securing employment following one’s studies, and the capacity of the parents to support the costs of a post-secondary education. It is also appropriate to consider whether a child is a full-time or a part-time student, whether the child is eligible for student or other financial loans, whether the child can contribute partially to his own support through part-time employment, whether the child is living at home while going to school, and whether there continues to be a relationship between the child and the payor parent: see for example Lewi v. Lewi 2006 CanLII 15446 (ON CA), [2006] O.J. No. 1847, 209 O.A.C. 344 (Ont. C.A.) and Phillips v. Phillips, [2002] O.J. No. 717, 112 A.C.W.S. (3d) 107 (Ont. Sup. Ct.).

[109] In this case, beginning with Omar, nobody disagrees that he should continue to receive child support until May 2016. Ms. Nassr adds to that what in effect amounts to s. 7 expenses, being tuition and textbooks. With that in mind, I find that Omar should be supported until the conclusion of his studies, expected in May 2016. He should also have the benefit of some contribution towards his tuition from Mr. Bari.

[110] However, having regard to all the circumstances, I also find that Omar should contribute towards those expenses as well. I cannot accept Ms. Nassr’s testimony that her son does not believe in applying for OSAP and does not want to be taking on a debt to pursue his studies. While it is true that a child may not necessarily be obligated to obtain a loan, where parents are of a modest means, as in this case, it is incumbent on the child to undertake reasonable efforts to contribute to his studies, either with a part-time job during the school year or with a summer job. There was no evidence before this court that Omar was working, be that a part-time job during the year or over the summer. I appreciate that pursuing full-time studies in engineering can be very demanding, leaving little time for employment. But I also find that there is only so much that Mr Bari can do to stretch his earnings. Added to this is Ms. Nassr’s evidence that her own father has been paying for some of the boys’ education.

[111] Given these findings, Mr. Bari shall contribute 50% towards Omar’s tuition. Ms. Nassr shall contribute 30% towards tuition, and Omar must contribute the balance, as well as the cost for textbooks.

[112] In connection with Mr. Bari’s past contributions to Omar’s tuition, Omar and/or Ms. Nassr are to produce forthwith whatever documentation the University issues so that Mr. Bari may claim whatever credit he might be entitled to receive. I find it unacceptable that Ms. Nassr would hold back that receipt when it was Mr. Bari who paid for the tuition. This behaviour was not one of Ms. Nassr’s finer moments. As for future contributions, whoever is the payor should be claiming the credit.

[113] Waleed’s situation is different, given his anxiety and his obsessive compulsive disorders. I accept Ms. Nassr’s evidence that these mental health issues are challenging for Waleed and that he has been unable to find employment. I also recognize that he discontinued his studies in construction work at George Brown after two years, and that he began business studies at Mohawk College, but that he has not been performing well. The evidence before me was insufficient to come to the conclusion that Waleed is not capable of completing his college studies. The evidence concerning his efforts to find employment were equally deficient. Both Mr. Bari and Ms. Nassr seemed to agree that Waleed’s conditions were manageable with medication. That would suggest that Waleed should be able to work towards achieving some level of economic independence and self-sufficiency.

[114] Given the limited but compelling evidence regarding Waleed, it is appropriate that he continue to be supported as a child of the marriage within the meaning of s. 2(1) of the Divorce Act. Until May 2016, he is to receive child support along with Omar. After May 2016, Mr. Bari shall continue to pay child support for Waleed in the reduced monthly sum of $450.00 until Waleed reaches the age of 25 years in September 2019. At that age it shall be appropriate to review the issue of Waleed’s continued support to determine whether Waleed continues to be a “child of the marriage”. In the meantime, Waleed is strongly encouraged to seek employment and if necessary obtain some employment counselling to identify the types of jobs and vocations for which he might be best suited.

[115] In addition, Mr. Bari and Ms. Nassr shall also contribute 75% and 25% respectively towards Waleed’s tuition and textbooks for the academic years 2014-2015. Going forward Waleed shall have to maintain an average of at least 55% for his parents to continue to support his tuition and textbook expenses. If he does, then Mr. Bari and Ms. Nassr shall continue to contribute to these expenses in accordance with the approach set out herein. If he does not retain that minimum average, then neither parent will be obliged to pay for tuition or textbooks.

d) Equalization

[116] In my review of the parties’ respective financial statements and their net family property calculations, I conclude that Mr. Bari owes Ms. Nassr $28,320.79.

[117] My findings on the operative figures breakdown as follows:

Mr. Bari

Ms. Nassr

1. Total valuation date assets

$222,222.17

$702.00

2. Total valuation date debts

$138,559.05

$5,000

3. Net value on date of marriage

$7,000

$0

4. Excluded property under 4(2)

$20,021.54

$19,673.41

5. Total 2 + Total 3 + Total 4

$165,580.05

$24,673

6. Total 1 - Total 5

$56,641.58

- $23,971 = 0

Equalization payment

Applicant pays respondent:

$28,320.79

0

[118] In coming to this conclusion, there are four items that were included in Mr. Bari’s Net Family Property analysis with which I disagree.

[119] The first figure relates to the value of the matrimonial home on the valuation date. Neither party provided the court with a valuation of the matrimonial home on the date of separation. There was no real estate valuation or even price comparables to the matrimonial home for the court to consider. Mr. Bari sought to rely solely on the municipal assessment of the matrimonial home. Ms. Nassr argued that the valuation date should be the date of the divorce and not the date of separation. That latter date was very close to the date that the matrimonial home was sold. Ms. Nassr did not offer the court any evidence on the home’s value. Rather, she simply argued that the net proceeds of the home be divided in half.

[120] The municipal assessment of the condominium was set at $173,000. The property sold for $189,000. I am not satisfied that the municipal assessment is a sufficient measure of the valuation of the matrimonial home. It can be one variable to consider but it is rarely the case that these figures mirror the market value of a property. I would have liked to have seen, if not a full valuation report, at least some comparable sales at the time of the valuation date to make an appropriate finding. Given the proximity of the sale to the date of separation, on a balance of probabilities, I accept the sale price of the property as an appropriate measure of the value of the matrimonial home on the valuation date, and I fix the value of Mr. Bari’s assets as of the date of valuation at $222,222.17.

[121] The second and most extraordinary figure in Mr. Bari’s NFP analysis relates to Mr. Bari’s valuation of Ms. Nassr’s jewelry at $100,000. To begin with, with the greatest respect to Mr. Bari, he gave the court precious little evidence on whether the jewelry even existed on the date of separation. But even if the jewelry existed, his analysis on how he came to the value was totally unsupported by any expert evidence whatsoever. To suggest that he could estimate an ounce of gold for two earrings just by looking at a poor photograph was preposterous. Mr. Bari brings no special expertise of his own to this subject to allow the court to give any weight to his evidence. It is doubtful that he has any knowledge of the value of jewelry, particularly since, even going back to his engagement to Ms. Nassr, he was not the one who purchased the jewelry for Ms. Nassr. He drove Ms. Nassr and his parents to a market and his parents made the purchase. In addition, the pictures that Mr. Bari provided to the court were unhelpful. Although the color of the jewelry was gold, there was nothing there to gauge such questions as the karat value of the gold, the weight, and whether certain bracelets were hollow or solid. Most significantly, there was nothing in the photos that connected the jewelry to Ms. Nassr. For example, the analysis might have been different if the court were presented with at least some recent pictures of Ms. Nassr wearing some of that jewelry.

[122] While I recognize that gold jewelry is gifted to brides in many cultures, and that Ms. Nassr likely received such gifts, that fact on its own cannot support Mr. Bari’s contention that Ms. Nassr’s gifts, which he estimated to have a value of between $5,000-10,000 appreciated to $100,000+ by the time of the parties’ separation. Mr. Bari advanced no admissible evidence to support that contention. The reference to the Declaration with Immigration, which gave the jewelry a purported value of $30,000, was equally unhelpful. I appreciate Mr. Bari’s unsuccessful efforts to obtain a copy of that Declaration from the CBSA. But the real weakness in this evidence lay with the fact that it was not Ms. Nassr who prepared that Declaration. Mr. Bari admitted that he was the one who prepared that list. Then too, the valuation was not based on any expert valuation or on receipts. Rather, it was based on Mr. Bari’s own estimate.

[123] In contrast to Mr. Bari’s evidence, I accept Ms. Nassr’s evidence that, in light of the family’s limited financial means, she came to the point that she had to sell her jewelry to meet some of her own needs. She gave that evidence methodically with full descriptions and estimated values and dates of when she sold each piece. She explained that by 2011 she did not have any more jewelry.

[124] Ms. Nassr’s reference to financial needs was credible and very much in keeping with Mr. Bari’s overall contention that as a family they struggled to make ends meet and needed to refinance their debts on two separate occasions. Indeed, if Ms. Nassr were sitting on jewelry of such substantial value, one has to wonder why she and Mr. Bari would not seek to capitalize on that value to avoid the costly refinancing.

[125] As an aside, I note that, although Mr. Bari said on repeated occasions that he was not controlling and that Ms. Nassr was free to pursue employment opportunities if she wished, the court saw another side of Mr. Bari when he quite forcefully challenged Ms. Nassr on why she did not inform him about the sale of her jewelry.

[126] Having regard to the testimony of both parties, I am satisfied on a balance of probabilities that by 2011 Ms. Nassr had disposed of her jewelry.

[127] The other two items that impact on my determination of the equalization payment owing to Ms. Nassr relate to Ms. Nassr’s London Life investment of $19,673.41, which Mr. Bari identified as a savings account, and Mr. Bari’s investment of $20,021.54, which he characterized as a gift from his father. Both Ms. Nassr and Mr. Bari produced documentation from their respective fathers concerning monies that each father purportedly gifted to his child and that was then used by each of them to purchase the respective investments. The documents from both of the fathers, who are elderly and reside in Saudi Arabia, raised concerns regarding their admissibility. Mr. Bari said he told his father what to say in his affidavit. Ms. Nassr said that her lawyer (when she had one) told her to have her father write a letter. The court had no way of evaluating the hearsay evidence from either father. In addition, the evidence by both Mr. Bari and Ms. Nassr regarding these transactions was also confusing and respectively self-serving.

[128] In the circumstances I cannot accept Mr. Bari’s contention that, while his father’s communications ought to be admitted as evidence in support of his contention that the investment was a third party gift to be excluded from the NFP, the evidence from Ms. Nassr’s father ought to be treated as inadmissible. What seems to have happened was that, given Mr. Bari’s employment with London Life, in an effort to build his sales portfolio, both he and Ms. Nassr made certain investments. Given the similarity in the weaknesses of both sets of documents for the two fathers, as well as the overall confusion over this subject, the fairest way to resolve this conundrum is to treat the evidence concerning these investments in a similar manner. I could treat both of these investments as savings accounts, or I could treat them both as assets to be excluded. On a balance of probabilities I am satisfied that the respective two investments were gifts to each of the parties from third parties and ought to be treated as exclusions in the NFP analysis.

[129] I also note that Ms. Nassr questioned the refinancing of the matrimonial home by Mr. Bari, and on two occasions she implied that some of the expenses that resulted in the need for refinancing were suspicious. She did not articulate her concern in legal terms, but she seemed to be suggesting an unequal distribution of the net family property. In the absence of any evidence to support that allegation, there is no basis to consider such a submission. Mr. Bari provided the court with his expenses and satisfied the court that the needs of the family were such that the refinancing was necessary. Whether the family ought to have lived more frugally, limited their travels, and perhaps even moved to a less expensive neighbourhood so as to live within their means are not issues that would lead to a finding that Ms. Nassr should now receive an unequal share of the net proceeds of the matrimonial home.

[130] Finally, on the subject of Mr. Bari’s pension, which is valued at $37,762, given his agreement that he share that equally with Ms. Nassr, he is to make a payment to her in the sum of $18,881. Such payment is to be advanced within thirty days from the date of this order.

e) Costs

[131] Given the divided success in this trial, each party shall bear his or her own costs, such as they were in this application.

FINAL DISPOSITION

[132] A final order is to issue as follows:

1. Mr. Bari’s income is set at $84,000 for the purposes of determining spousal and child support.

2. Ms. Nassr’s income is imputed as follows for the purpose of determining spousal support:

a. From August 1, 2015 until October 1, 2015 no income shall be imputed to Ms. Nassr.

b. From November 1, 2015, to May 31, 2016, Ms. Nassr shall be imputed an income of $12,000.00.

c. From June 1, 2016, onwards Ms. Nasser shall be imputed an income of $24,000.00.

d. For the periods November 1, 2015, to May 31, 2016, and from June 1, 2016, onwards, Ms. Nassr’s imputed income shall not be adjusted either upwards or downwards in accordance with her actual income. Spousal support will be based on the imputed income.

3. Mr. Bari shall pay spousal support in accordance with his income set at $84,000 and Ms. Nassr’s imputed income as noted above as follows:

a. From August 1, 2015 until October 1, 2015, Ms. Nassr shall receive a monthly support payment of $2,085, payable on the first day of every month.

b. From November 1, 2015, until May 31, 2016, Ms. Nassr shall receive a monthly support payment of $1,557, payable on the first day of every month.

c. From June 1, 2016, until 2020 when Mr. Bari reaches the age of 65, Ms. Nassr shall receive a monthly support payment of $1,200 payable on the first day of every month.

4. Mr. Bari and Ms. Nassr shall exchange copies of their Income Tax Returns and Notices of Assessment annually, 30 days after they receive their Notice of Assessment and, in any event, no later than June 30 of each year.

5. For the period between November 2014 and July 1, 2015, spousal support shall be in accordance with the order of April 22, 2014. Mr. Bari shall pay retroactive support for a total of $12,465. This represents the difference between Mr. Bari’s monthly payment of $700 and $2,085, as contemplated by the order of April 22, 2014, for the period November 2014 to July 1, 2015. This retroactive sum shall be deducted from Mr. Bari’s share of the net proceeds of the sale of the matrimonial home. Mohammad Chaudhry of Farooq & Chaudhry, who has been holding the net proceeds in trust, is directed to make the said payment to Ms. Nassr.

6. Child support for the two children of the marriage, Omar Sami Abdel Bari, born July 23, 1993, and Waleed Sami Abel Bari, born September 27, 1994, is payable until May 16, 2016, and is set at $1,219 per month and payable on the first day of each month.

7. Child support for Waleed Sami Abdel Bari shall continue to be paid from June 1, 2016 until September 2019 when Waleed turns 25 and is set at $450 per month, payable on the first day of each month.

8. After Waleed turns 25, Mr. Bari may seek to have his support obligations for Waleed reviewed. For such a review, Mr. Bari shall produce his most recent income tax return and notice of assessment. Ms. Nassr shall produce medical documentation outlining Waleed’s condition, his limitations, if any, his ability to work and if so to what extent, and his prognosis. Ms. Nassr shall also produce copies of Waleed’s Income Tax Returns, documentation relating to any ODSP application or payments, if Waleed is receiving such, and any other documentation relevant to establish that Waleed continues to require child support.

9. Mr. Bari shall contribute 50% towards Omar’s University tuition. Ms. Nassr shall contribute 30% towards Omar’s tuition, and Omar shall contribute 20% towards his tuition. Omar shall also pay for his textbooks.

10. Mr. Bari shall contribute 75% towards Waleed’s tuition and Ms. Nassr shall contribute 25% for the academic year 2014-2015. Thereafter, neither parent shall be obliged to continue with tuition payments if Waleed fails to attain an average of 55% in his studies. If he maintains this minimum average, both parties shall continue to contribute to these expenses in the proportion outlined herein.

11. Omar and/or Ms. Nassr shall produce forthwith any documentation the University issues so that Mr. Bari may claim tuition credits to which he is entitled.

12. Mr. Bari shall pay to Ms. Nassr an equalization sum of $28,320.79. Such payment is to be made out of the net proceeds of the sale of the matrimonial home. Mohammad Chaudhry of Farooq & Chaudhry, who has been holding the net proceeds in trust for the parties, is directed to make the said payment to Ms. Nassr.

13. Mr. Bari shall pay Ms. Nassr 50% of his pension, that sum being $18,881.00. Such payment is to be made forthwith and is to be deducted from Mr. Bari’s share of the net proceeds of the matrimonial home. Mohammed N. Chaudhry of Farooq & Chaudhry, who has been holding the net proceeds in trust, is directed to make the said payment to Ms. Nassr.

14. Any shortfall between the sum of money that Mr. Bari is ordered to pay to Ms. Nassr and Mr. Bari’s share of the net proceeds from the sale of the matrimonial home shall be paid to Ms. Nassr by Mr. Bari within 40 days from the date of this order.

15. Mr. Bari shall maintain Ms. Nassr as the irrevocable beneficiary of the life insurance policy under his employment benefits for so long as he is obliged to pay spousal support.

16. Should Mr. Bari leave his federal government employer and cease to have the benefit of life insurance, he shall obtain his own life insurance and designate Ms. Nassr as the irrevocable beneficiary for as long as he is obliged to pay spousal support.

17. Each party shall assume their respective costs for the application.

___________________________

Justice Tzimas

Released: July 3, 2015