CITATION: Bedaweed v. Bedaweed, 2016 ONSC 2134
COURT FILE NO.: FS-12-75592-00
DATE: 2016 03 29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hikmat Zia BEDAWEED
No one appearing for the Applicant
Applicant
- and -
Fatin BEDAWEED
Jide Oladejo
Counsel for the Respondent
Respondent
HEARD: February 16, 2016
REASONS FOR JUDGMENT
WOOLLCOMBE J
Introduction
[1] Hikmat Bedaweed and Fatin Bedaweed were married on April 29, 2011. There are no children of the marriage. Mr. Bedaweed had his Application for Divorce issued on July 28, 2012. It was served on Ms. Bedaweed on June 7, 2013. She says that this is the date of separation.
[2] The matter came before me as an uncontested trial with two main issues. The first is equalization of the net family property including the proceeds from the sale of the matrimonial home, the contents of the home and the vehicles. The second is Ms. Bedaweed’s request for spousal support, which raises issues of entitlement, duration, and quantum. In addition, Ms. Bedaweed seeks a divorce. Finally. Ms. Bedaweed asks for costs.
The Relationship and Marriage
[3] Ms. Bedaweed was born on November 1, 1962 in Iraq. She practiced as a lawyer there. She was persecuted because of her Christian faith. On August 27, 2009, she came to Canada through the United Nations refugee program. She moved in with her mother and father in Toronto. She did not work, but took English as Second Language (ESL) training.
[4] Ms. Bedaweed met Mr. Bedaweed shortly after coming to Canada. She says that he was working as a translator. They became romantically involved and were married on April 2, 2011. Shortly after, they moved to their matrimonial home at 160 Cedargrove Road in Caledon.
[5] Ms. Bedaweed says that during their marriage, she did not work and had no income. She said that in Iraqi tradition, wives do not ask their husbands for money or about money.
[6] Ms. Bedaweed testified that during the marriage, Mr. Bedaweed had a translation office, a travel agency, a real estate office and a newspaper. She was asked if she knew what her husband’s income was and said that he used to tell her that he paid a lot of taxes. She thought he might have made $200,000.00 to $250,000.00 a year. She was never shown any documents to confirm this, and said that in her culture a wife would not look for things like Revenue Canada papers in her husband’s dealings.
[7] More specifically, Ms. Bedaweed did not know her husband’s income from his translation business, but said that there was wealth coming in from Iraqis who came into Canada. She also did not know the income from his travel agency business, but said that she worked with him and that he was well known in the Iraqi community. She did now know much about his real estate business, but said that many times she went with him to show homes. She thought that his newspaper business income was from advertising and said that many people paid him to advertise. She said that her husband did not tell her what he made, but that she saw people pay him.
[8] Ms. Bedaweed also testified that before they were married, Mr. Bedaweed had a driving school. He closed it, but used a car to teach Iraqis to drive and charged customers $25.00 an hour. She said he was busy with this. In addition, Mr. Bedaweed told her that he had a salary from the government, but she had no idea what this was.
[9] Ms. Bedaweed explained that Mr. Bedaweed was contemplating other businesses. For instance, she said that he made an application for a Tim Hortons franchise, which she said was expensive and indicated that he had a high income. Included in the trial record is a letter of December 20, 2011 from Tim Hortons to Mr. Bedaweed acknowledging that he had submitted a completed Franchise Questionnaire and indicated that his ownership preference would include his spouse. There is no further documentation or evidence before me relating to any steps taken in this venture.
[10] Ms. Bedaweed testified that while she assisted her husband with his work, she was never paid anything.
[11] Ms. Bedaweed testified about the vehicles that they had during their marriage. She said that they had a Toyota Corolla that was sold during the marriage. In addition, there was a Mercedes and a Camry that he took at separation. She said that these vehicles were purchased and owned by them and that she drove them.
[12] Ms. Bedaweed had no documentation confirming the values of the vehicles. She said that the Mercedes was a 2008 model and was bought during the marriage. The Camry was a 2007 model. In her affidavit, Ms. Bedaweed says that the value of the vehicles at separation was $22,000.00 for the Camry and $30,000.00 for the Mercedes. She says that this would mean that she is entitled to $26,000, which represents half the value of the vehicles. In her Financial Statement, she says that her half of the share of the vehicles is $17,500, suggesting that they were valued at $35,000 at the date of separation.
[13] Ms. Bedaweed also testified about the contents of the matrimonial home. She described the furnishings in detail and explained that they had purchased bedroom sets, sofas, televisions, tables, chairs and everything for a complete kitchen. She estimated the value for these items to be $25,000.00 in her Financial Statement. She had no receipts for anything and said that Mr. Bedaweed made the purchases. She has no contents from the home except for her clothes.
[14] Since separation, Ms. Bedaweed testified that she has been on welfare and has been taking ESL classes. She hopes to train as a paralegal. She thought that she would need two more years of ESL and then two years training to become a paralegal.
[15] In his Application, Mr. Bedaweed said that the date of separation was April 22, 2012. On the basis of the evidence of Ms. Bedaweed, I accept that they did not separate until June, 2013. I note that there is evidence before me that in the period after Mr. Bedaweed says that they separated, they took a vacation together to Cuba in June 2012. There is also evidence that Mr. Bedaweed opened a bank account for Ms. Bedaweed in January 2013, suggesting that they were not separated at this time. The evidence before me is that they lived together through the period when Mr. Bedaweed says that they had separated. I proceed on the basis of a June 7, 2013 date of separation.
Procedural History
[16] A case conference was scheduled in this matter for June 4, 2014. Mr. Bedaweed did not attend.
[17] Ms. Bedaweed brought a motion for various orders including for spousal support. It was adjourned twice and proceeded before Justice Tzimas on June 11, 2015. The applicant did not attend.
[18] Justice Tzimas ordered interim spousal support of $833.00 a month, commencing June 1, 2013. This high level of spousal support was based on a two-year marriage, with no children, and with the applicant having an income of $250,000.00 and the respondent having no income.
[19] Justice Tzimas also ordered that the matter should proceed to an uncontested trial. The applicant was to be served with a copy of her endorsement.
[20] The applicant has done nothing since June 2015. He has filed no materials and has failed to pay spousal support. He did not attend at the trial.
Equalization of Net Family Property
[21] There are two issues before me in relation to equalization of net family property. The first relates to the value of the matrimonial home. The second relates to personal property including the contents of the matrimonial home and the vehicles.
Value of the Matrimonial Home
[22] The matrimonial home was purchased three weeks before the marriage. It was sold on August 28, 2014 for a price of $516,000.00.
[23] On August 23, 2013, in the post-separation period, the applicant caused a second mortgage to be registered on the matrimonial home. This was done without the consent of the respondent. All of the funds from this second mortgage ($85,000.00) were received by Mr. Bedaweed.
[24] Mr. Bedaweed defaulted on the mortgage and the matrimonial home was sold under a power of sale. Ms. Bedaweed’s position is that the home was sold for less than fair market value and less than what comparable properties in the area sold for at that time. She says that the average selling price for similar properties was around $550,000.00 and that if the applicant had not defaulted on the mortgage, the property would have been sold for this amount.
[25] Ms. Bedaweed has provided listings for other properties said to be similar and which sold for between $540,000 and 560,000.00. She asks me to conclude that this was the proper value of the home.
[26] Other than the real estate listings for what are said to be comparable properties, there is no evidence before me that the Bedaweed matrimonial home was sold for less than its value because it was sold under a power of sale. I am not prepared, on the evidence before me, to make that finding and to then attribute the loss in value to Mr. Bedaweed’s failure to make the mortgage payments. Instead, I rely on the value of the home as $516,000.00 as set out in the Statement of Adjustments, entered as Exhibit 3 on the trial.
[27] From the sale price, counsel suggests that there should be a deduction of the mortgage amount of $350,134.42 and of the agency fees. I am told that each agent received a commission of 2.5 per cent plus HST. Counsel says that the total agency fee was therefore $29,154.00. This leaves $136,711.58 to be shared between them. Ms. Bedaweed’s share of the matrimonial home proceeds is thus $68,355.79. Mr. Bedaweed owes this to her.
Contents of the Matrimonial Home
[28] Ms. Bedaweed seeks equalization of the contents of the home. She says that Mr. Bedaweed took the contents of the home, which she says were worth approximately $20,000.00. She provided detailed evidence about the many items of furniture in the home including sofas, tables, chairs, beds, and televisions and kitchen contents. She testified that all of these items were purchased new by the two of them, although she had no receipts. Given her uncontested evidence about these items, I am prepared to accept her valuation and to find that Mr. Bedaweed owes her $10,000.00 on account of the contents of the home which he took.
The Vehicles
[29] As set out above, Mr. Bedaweed took the family’s two vehicles upon separation. Ms. Bedaweed has provided evidence as to the values of the Mercedes and Camry. I am invited by counsel to use the lower figure of $17,500.00 for Ms. Bedaweed’s share of the two vehicles, and I do so. She is entitled to this amount from him.
Total Equalization
[30] It is my conclusion that the total amount of equalization payment owing from Mr. Bedaweed to Ms. Bedaweed is $95,855.79. This is the sum of her share of the sale of proceeds of the matrimonial home, her share of the contents of the home and her share of the value of the vehicles.
Spousal Support
[31] Ms. Bedaweed seeks spousal support and asks that I order ongoing spousal support of $833.00 a month until June 7, 2020. This would mean that she would have had spousal support on an imputed income for Mr. Bedaweed of $250,000.00 for a total of seven years, following a marriage of two years and six weeks.
[32] Ms. Bedaweed provided evidence about her entitlement and needs. She said that during their marriage, she worked with her husband in his businesses and was never paid. Her husband made what she thought was a considerable sum of money and she was completely dependent on him. She says that since separation, she has lived on social assistance and that she needs to improve her English and have further training to work in Canada.
[33] When asked what she has done since separation, Ms. Bedaweed testified that she has continued with ESL and that she believes that she needs two further years of study. She testified that she then plans to take a two year paralegal training course. For this reason, she seeks four more years of spousal support, beyond the almost three years that she has had flowing from Justice Tzimas’s order.
[34] The Divorce Act sets out the following factors and objectives related to spousal support:
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…
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.
[35] There can be no doubt that Ms. Bedaweed had some entitlement to spousal support. She came to Canada at the age of 46 as a refugee from Iraq. She lived with her parents and began ESL training. Within twenty months of her arrival, she was married to Mr. Bedaweed and assumed a very traditional role in her marriage to him. She did not work, other than with him, and was not remunerated at all for the assistance she provided. She does not appear to have continued with her English studies, and it appears that he played the role of interpreter, to the extent that she required one. Mr. Bedaweed was the sole earner and appears to have been content with this arrangement. A situation of dependency developed.
[36] The separation left Ms. Bedaweed both without any employment and with a limited ability to work, given that she needed to improve her English. Justice Tzimas recognized Ms. Bedaweed’s entitlement to spousal support when she made an interim order for spousal support in June 2015, retroactive to June 7, 2013.
[37] The only spousal support calculation before the court is the one prepared before the motion heard by Justice Tzimas in June 2015. It suggests that for this two-year marriage, with Mr. Bedaweed having an imputed income of $250,000.00 and Ms. Bedaweed having an income of $0, a support order of between $635.00 and $833.00 should be made for a period of one to two years from the date of separation. Justice Tzimas awarded spousal support at the high end of this range, setting it at $833.00 per month commencing at the time of separation.
[38] The Spousal Support Advisory Guidelines (“Guidelines”) were intended to bring about some order and predictability to the calculation of spousal support, having regard to the discretion granted under the applicable legislation. The “without child formula” relies heavily on the length of the marriage to determine both the appropriate duration and amount of support. Duration of support is usually between half a year and one year of support for each year of marriage, subject to other rules and statutory provisions.
[39] It is clear that the Guidelines are not binding. For instance, they recognize that there may be exceptional circumstances, such as illness or disability, that warrant departing from the usual duration. Ms. Bedaweed’s counsel submits that her circumstances are exceptional because she needs to take further language training and paralegal training in order to become self-sufficient. For this reason, counsel asks that the spousal support order last for a total of seven years, rather than the one to two years that would be expected under the Guidelines.
[40] I do not accept that spousal support should be of such a lengthy duration in this case. Ms. Bedaweed has now lived in Canada for more than six years. She has been separated for almost three years and has had an order for a high level of spousal support since June 2013. I am told that Mr. Bedaweed has not paid anything in furtherance of Justice Tzimas’s order. While this is unfortunate, it does not justify me making a further support order if such an order is not appropriate.
[41] I accept that the end of the marriage put Ms. Bedaweed in a challenging position. But, the fact that she needs to improve her English and take steps to obtain employment is only partially as a result of her marriage to Mr. Bedaweed. She is in a situation very similar to that which she was in before the marriage in 2011. Indeed, in her Answer in June 2013 she recognized that she needed to improve her English and upgrade her qualifications in order to be able to find suitable employment in Canada. There has been little by way of explanation as to why, almost three years later, she has not taken the steps that she needed to take to improve her English and enter the work force.
[42] I do not accept Ms. Bedaweed’s position that she should have four more years of spousal support and am not prepared to so order. In my view, spousal support ought to be terminated as of May 1, 2016, following what will have been a period of almost three years of spousal support. While this is slightly longer than the one to two years that the Guidelines suggest, I view this as appropriate given the fact that she needed longer than usual to improve her English in order to enter the Canadian work force.
[43] While on an interim basis, Justice Tzimas imputed to Mr. Bedaweed an income of $250,000.00, I need not determine Mr. Bedaweed’s income, given that I am going to order that spousal support be terminated as of May 1, 2016.
[44] That said, had I come to the view that a longer spousal support order should be made, I would not have been able to impute to Mr. Bedaweed an income of $250,000.00 on the evidence before me. The evidence does not establish that his income is even close to this, having regard to the following:
• While Mr. Bedaweed appears to have had a number of businesses, there is nothing before me to suggest that they were as lucrative, even cumulatively, as Ms. Bedaweed suggests.
• On his Franchise Questionnaire for Tim Hortons in 2011, Mr. Bedaweed indicated that he had a salary of $30,000.00 to 38,000.00 as a translator. If his income was as high as Ms. Bedaweed says, one might have expected him to say so when expressing an interest in obtaining a Tim Hortons franchise.
• The lifestyle of the Bedaweeds, as described to me, was not consistent with someone with an income of $250,000.00.
Divorce
[45] Ms. Bedaweed seeks a divorce. An order shall go that Hikmat Zia Bedaweed and Fatin Bedaweed be divorced and that the divorce takes effect 31 days after the date of the signed order.
Costs
[46] Ms. Bedaweed seeks costs of $26,251.71 inclusive of HST. As I understand the Bill of Costs provided to me, costs are sought on a full indemnity basis.
[47] Rule 24 of the Family Law Rules begins with the presumption that a successful party is entitled to the costs of a case. Rule 24(7) provides that if a party does not appear, the court shall order costs against the party unless the court orders otherwise in the interests of justice. The factors to consider in determining the amount of costs, as set out in Rule 24(7) include:
(a) the importance, complexity or difficulty of the issues;
(b) the reasonableness or unreasonableness of each party’s behaviour in the case;
(c) the lawyer’s rates;
(d) the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
(e) expenses properly paid or payable; and
(f) any other relevant matter.
[48] I do not see this as a case in which costs should be paid on a full recovery basis. I have no evidence of an offer to settle. I also do not make any finding of bad faith on the part of the applicant. Costs should, therefore, be on a partial recovery basis.
[49] I note that the respondent has not been entirely successful. In relation to equalization, while she has been awarded her share of the proceeds of the sale of the matrimonial home, I did not accept her position respecting the value of the home. Further, in terms of her request for continuing spousal support until 2020, I did not accept the respondent’s position and concluded that spousal support should be terminated effective May 1, 2016.
[50] In my view, Ms. Bedaweed should be awarded costs that are significantly reduced from those sought. I award her costs of $12,000.00, inclusive of HST.
Order
[51] I order the following:
The applicant Hikmat Zia Bedaweed is to pay the respondent $95,855.79 as equalization for half the net family property.
Spousal support shall be terminated effective May 1, 2016.
Costs of $12,000.00 to be paid by the applicant to the respondent.
Hikmat Zia Bedaweed and Fatin Bedaweed shall be divorced. The divorce takes effect 31 days after the date of the signed order.
The applicant’s approval as to form and content of this order is dispensed with.
This order bears post judgment interest at the rate of 2 per cent per annum effective from the date of the order. Where there is default in payment, the payment shall bear interest only from the date of the default.
WOOLLCOMBE J.
Released: March 29, 2016
CITATION: Bedaweed v. Bedaweed, 2016 ONSC 2134
COURT FILE NO.: FS-12-75592-00
DATE: 2016 03 29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Hikmat Zia BEDAWEED
Applicant
- and -
Fatin BEDAWEED
Respondent
REASONS FOR JUDGMENT
WOOLLCOMBE J
Released: March 29, 2016