ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-13-78544-00
DATE: 20150721
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: July 17, 2015
SUPPLEMENTARY REASONS FOR JUDGMENT
Justice Tzimas
[1] This is a supplementary endorsement to my judgment of July 3, 2015. A few days following the release of the court’s decision, Mr. Bari wrote to the court to report certain payments that he made to Ms. Nassr on account of spousal support in the months between the date the trial concluded and the release of the court’s decision. Mr. Bari also advised the court that he was mistaken in his understanding of the figures relating to the sharing of his pension and wished to have that corrected.
[2] Ms. Nassr responded with her own question and concerns. Her concerns were more in the nature of an attempt to reopen some issues and to raise suspicions about whether counsel who is holding the net proceeds from the sale of the matrimonial home could be trusted to release the funds, as he was ordered by this court.
[3] In response to such correspondence, the parties were invited to participate in a hearing before the court to clarify their questions. The court heard the concerns from both parties. Each issue is addressed below:
a) Retroactive Support Payments
[4] Mr. Bari reported that in the period between December 2014 and July 2015, he paid spousal support of $700.00, leaving a balance of $11,080 owing for eight months, ($1,385 x 8 months). On February 17, 2015 he made an arrears payment of $4,140, leaving arrears owing as of July 1, 2015 of $6,940. Ms. Nassr produced a copy of a statement from the Family Responsibility Office (FRO), which recorded the said payment of arrears. She agreed with the adjustment. Paragraph 87 of the judgment of July 3, 2015 is therefore amended to revise the outstanding sum owing on account of the arrears of spousal support to the sum of $6,940, instead of the original estimate of $12,465.
b) Pension
[5] Mr. Bari advised that although at trial his evidence concerning the value of his pension was at approximately $37,762, which he agreed to share equally with Ms. Nassr, when he took a closer look at the relevant documents, he realized that the sum of $37,762 represented the “maximum transferable amount” for Ms. Nassr. In other words, Ms. Nassr’s share of the pension ought to be $37,376 and not $18,881, as he had previously submitted and as the court ordered.
[6] Furthermore, Mr. Bari noted that the pension income had to come out of the pension plan rather than from the net proceeds from the sale of the matrimonial home. Relying on the Pension Benefits Division Act, Mr. Bari submitted that Ms. Nassr would not be able to access the pension until she reached the age of retirement. He explained that either he or Ms. Nassr could apply for a division of pension benefits by submitting an Application for Division of a Public Service Superannuation Act Pension together with supporting documentation.
[7] The implication of this correction is that rather than an immediate lump sum payment of $18,881 to be paid out of Mr. Bari’s share of the net proceeds of the matrimonial home to Ms. Nassr, either he or Ms. Nassr would apply for the division of Mr. Bari’s pension. Upon that division, Ms. Nassr would have her share of $37,762 transferred and locked into an RRSP, which she would access upon her retirement.
[8] Initially, Ms. Nassr opposed the corrections. She suggested that she preferred an immediate lump sum payment on account of the pension even if that meant that she would be receiving only $37,762. She was also concerned that she would have to pay for the division of the pension.
[9] Mr. Bari was clear that he could not afford to pay a full lump sum payment of $37,762. He also suggested that a division of the pension would guarantee Ms. Nassr a future income stream that would therefore support her into the future. That said, when he realized Ms. Nassr’s resistance to the correction he advised the court that he would be willing to leave the order as is, if that was what Ms. Nassr preferred. To his knowledge he did not believe that there would be any cost associated with the application for the division of the pension.
[10] It became obvious to the court that once Ms. Nassr appreciated the nature of the correction, by Mr. Bari, she agreed to it.
[11] In light of this correction, paragraph 130 of the judgment is revised to confirm that Ms. Nassr shall be entitled to the “maximum transferable amount” of $37,762. Mr. Bari shall apply for the division of his pension such that Ms. Nassr secures her share of Mr. Bari’s pension.
c) Ms. Nassr’s Concerns
[12] Ms. Nassr had reservations about having to have any dealings with counsel at Farooq & Chaudhry, even though that would be limited to receiving retroactive support and the equalization payment. She was reassured that the directions contained in the final disposition were intended to facilitate the release of the said funds so that there is no confusion on anyone’s part.
REVISED FINAL DISPOSITION
[13] As both parties are self-represented to assist them with the drafting of the final order, the terms of the final order outlined in the judgment of July 3, 2015 is to be revised and replaced by the following terms:
Original paragraph 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.
Replace paragraph 5 with the following:
- Mr. Bari shall pay to Ms. Nassr the sum of $6,940 on account of retroactive spousal support for the period between December 2014 and 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. As between Mr. Bari and Ms. Nassr, they will collaborate to advise the Family Responsibility Office of this retroactive payment so that the records reflect the appropriate reconciliation of the debt.
Original paragraph 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.
Replace paragraph 13 with the following:
- Mr. Bari shall apply for a division of his pension with his employer, the Federal government, in accordance with the requirements of the Application for Division of a Public Service Superannuation Act Pension. As of September 30, 2013, “the maximum transferable amount” was estimated at $37,762.
Original paragraph 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.
Replace paragraph 14 with the following:
- Following the payments of $28,320.79 and $6,940 to Ms. Nassr as required in paragraphs 5 and 12 of this order, Mohammad Chaudhry of Farooq & Chaudhry, shall release the balance of the net proceeds from the sale of the matrimonial home to Mr. Bari.
Justice Tzimas
Released: July 21, 2015
COURT FILE NO.: FS-13-78544-00
DATE: 20150721
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Sami Atta Abdel Rahman Abdel Bari
Applicant
- and –
Asmaa Mustafa Nemr Nassr
Respondent
SUPPLEMENTARY
REASONS FOR JUDGMENT
Justice Tzimas
Released: July 21, 2015