Court File and Parties

OTTAWA COURT FILE NO.: FC-16-1475 DATE: 2017/03/17 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maya Zakhour, Applicant AND Fady Nayel, Respondent

BEFORE: Madam Justice Engelking

COUNSEL: Self-represented Applicant Paul Jakubiak, Counsel for the Respondent

HEARD: March 2, 2017

Endorsement

[1] The Applicant brings this motion for an order for exclusive possession of the matrimonial home located at 156 Barrette Street, Ottawa, and for temporary spousal support in the amount of $2,500 per month commencing on November 1st, 2016.

[2] The Applicant filed a further, albeit not amended, Notice of Motion, on February 16, 2017, in which she seeks additional relief to that stated in paragraph one above which includes an order dismissing the Respondent’s claims, exclusive possession of the contents of the home, compensatory and non-compensatory spousal support retroactive to the date of separation, a restraining order, equalization of the net family property, complete financial disclosure from the Respondent, pre and post judgment interest, “pain and suffering” and freezing of assets.

[3] The Respondent filed a Notice of Cross-Motion in which he seeks an order dismissing the Applicant’s application with respect to equalization, exclusive possession of the home and/or contents, freezing of assets and any other property claim for want of jurisdiction. In the alternative, the Respondent seeks an order staying the Applicant’s application pending completion of the parties’ divorce/annulment application in Lebanon. He also seeks an order dismissing the Applicant’s motion for spousal support and a restraining order. Finally, he also seeks certain disclosure in the event that jurisdiction to deal with any or all claims is found.

[4] On February 9, 2017, the parties were before Master Fortier who ordered that the Applicant’s original motion and the Respondent’s cross-motion dealing with the issue of jurisdiction be heard on March 2, 2017. It is with those issues that I thus deal.

[5] The Applicant filed her Application, which she had signed on June 28, 2016, with the Court on October 25, 2016. In it, under the Family Law Act, R.S.O. 1990, c. F. 3 as amended, she made claims for the following: spousal support (and indexing thereof), a restraining/non-harassment order, equalization of the net family properties, exclusive possession of the matrimonial home and its’ contents, freezing assets and sale of family property.

[6] The uncontroverted evidence is that prior to the parties’ marriage, and indeed for all of her life, the Applicant lived with her brother and father in Montreal (Pierrefonds), Quebec.

[7] The Applicant alleges that the Respondent has always lived in Ottawa, Ontario. The Respondent’s evidence is that he has lived in Lebanon since 2005.

[8] The parties began to reside together on May 15, 2015, and they married on May 24, 2015. Both of these events occurred in Lebanon. They remained in Lebanon until on or about December 13, 2016, at which point they travelled to Canada.

[9] The Applicant’s evidence is that they came to Ottawa and took up residence in a property owned by the Respondent at 156 Barrette Street with the intention of starting their family and living there permanently.

[10] The Respondent’s evidence is that he and the Applicant came to Ottawa to visit family, primarily his ten year old son from a previous relationship, for the holiday period and that it was always their intention to return to Lebanon after the holidays. The Respondent states that they slept at 156 Barrette Street out of convenience, but that the unit in which they slept was under renovation, with no working kitchen or proper facilities, and there was no intention for it to be a “family residence”.

[11] In fact, the evidence of the Respondent, provided mainly through his sister, Nelly Nayel, is that 156 Barrette Street is a property that contains four rental units, three bachelor units which are rented out, and a slightly larger unit which was habitually occupied by his mother until she had a stroke in 2015 and went to live with Nelly. That unit is under renovation, and, according to Ms. Nayel, the intention of the Respondent is that their mother will return when it is complete if she is able. If she is not able, it is the Respondent’s intention to sell the property.

[12] The parties separated on January 3, 2017, and the Applicant went back to live in Montreal, where she has been ever since. The Respondent returned to Lebanon on January 21, 2016, and has not been back since. He commenced annulment proceedings in Lebanon prior to these proceedings being commenced, and the Applicant responded to them.

Jurisdiction

[13] Both of the Applicant’s claims with which I am dealing, exclusive possession of the matrimonial home and temporary (and retroactive) spousal support, are made under the Family Law Act. In order to deal with them, I must first determine whether I have jurisdiction to do so under that Act. This must happen in stages. First, I must determine whether the court in Ottawa has jurisdiction simpliciter. If so, then, based on the respondent’s request that the applicant’s application be stayed pending completion of the parties divorce/annulment in Lebanon, I must make a finding with respect to the forum non conveniens. Finally, if jurisdiction in Ottawa is established, I must decide the motion.

[14] Section 15 of the Family Law Act, supra, provides as follows:

15. The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario. (Emphasis added).

[15] The Applicant submits that Ontario is the place where both spouses had their last common habitual residence, and the Respondent contends that the spouses’ last common habitual residence was in Lebanon, where they married and had spent the previous seven months.

[16] In the case of Pershadsingh v. Pershadsingh, 1987 ONSC 4361, this was squarely dealt with by Walsh J. of the High Court of Justice of Ontario, as it was then known. At page 3, Walsh J. stated:

The key words of s.15 are “last common habitual residence”. I interpret these words to mean the place where the spouses most recently lived together as a husband and wife and participated together in everyday family life.

[17] Further on the same page, Justice Walsh accepted the description of “habitual residence from Dicey and Morris, The Conflict of Laws, 10th ed., and he from that treatise as follows:

It is evident that “habitual residence” must be distinguishable from mere “residence”. The adjective “habitual” indicates a quality of residence rather than its length. Although it has been said that habitual residence means “a regular physical presence which must endure for some time,” it is submitted that the duration of residence, past or prospective, is only one of a number of relevant factors; there is no requirement that residence must have lasted for any particular minimum period.

It has been said that an element of intention to reside is required, though not determinative…The better view seems to be that evidence of intention may be important in particular cases, e.g. in establishing habituation when the actual period or periods of residence have been short, but is not essential.

[18] The evidence of the Applicant is that her visit to a fertility clinic in Montreal on December 17, 2016, corroborates her submission that it was the intention of the parties to start a family and live at 156 Barrette Street in Ottawa, Ontario. She asserts, moreover, that the act of placing her favorite toiletries and bringing her dog from Montreal to the house, are also supportive of her position. The Applicant admits that the house was under renovation, and not fully functional, but asserts that she and the Respondent ate some meals there, which she prepared. She also asserts that she assisted with some of the renovations, and that, therefore, evinces her intention to use the property as her and the Respondent’s habitual residence.

[19] The Respondent states that he and the Applicant were simply using the house to sleep in while they were in Ottawa. He states that they did not reside there, let alone “habitually reside” there for the simple reason that it was uninhabitable. His and his sister, Nelly’s, evidence is that he and the Applicant ate most of their meals at Nelly’s house or Nelly’s restaurant because the kitchen at 156 Barrette Street was not functional. His additional photographic evidence is that the property was and remains in the throes of renovation, such that no one can presently live there. The Respondent also asserted that the residence was his mother’s home for 30 years, and although she is currently staying with his sister, it is still her mailing address. The Respondent states that it was always his intention that his mother return to the residence if she is well enough when the renovations are finished.

[20] Whether 156 Barrette Street was inhabitable or not, the fact of the matter is that the parties were present in Ottawa, Ontario, and seemingly “most recently lived together as a husband and wife and participated together in everyday family life” here, including staying together at that address, taking meals together with family and generally living their life as a couple in this jurisdiction. While the respondent’s position is that he and the applicant were only present to visit family and that it was their intention to return to Lebanon, he produced no evidence which would support that position. I do not base my finding on intention, but on evidence. The respondent has consistently filed Income Tax Returns in Canada, in which he has provided 156 Barrette Street, Ottawa, Ontario as his address, and in which he has indicated he owns no foreign property. The respondent provided no evidence of return tickets to Lebanon, and no information with respect to the parties’ life in Lebanon, in terms of residence to which they would return, employment in which he was engaged, etcetera. Indeed, the respondent provided no direct evidence himself, only evidence through his sister, Nelly, and uncle, Chaker. Neither were able to speak to the parties’ life and plans in Lebanon. Having none, I must conclude that their life and plans were in Ottawa, Ontario.

[21] I, thus, find that the applicant and respondent’s last common habitual residence was in Ontario. The question then becomes, in the words of Perkins, J. in the case of Jenkins v. Jenkins, 2000 ONSC 22523, 2000 CarswellOnt 1583, at paragraph 19: “whether this court should decline to exercise jurisdiction either under the general power to stay a case found in s. 106 of the Courts of Justice Act” due to proceedings having been commenced in Lebanon, as requested by the respondent.

[22] At paragraph 21 of Jenkins, supra, Justice Perkins, by reference to the case of [Nicholas v. Nicholas (January 12, 1995), Doc.93-ND-207113 (Ont. Gen.Div), affirmed (1996), 24 F.L.R. (4th) 358 (Ont. C.A.)], listed some of the factors to be considered when determining the more or most appropriate forum in a family law case as “family ties that will provide witnesses, the location of assets and any juridical advantage or disadvantage.”

[23] At paragraph 22, Perkins, J. referred to the case of [Howard v. Howard (1997), 38 O.T.C. 20 (Ont. Gen. Div.)] as providing “a list of possible connecting factors to consider (para. 10): the governing law, the location of the parties when the case started, the location of the majority of likely witnesses, the location from which the bulk of the evidence will come, the location of the core of the case and the geographical factors suggesting a natural forum.”

[24] In this case, while the applicant lists in her financial statement substantial chattels she states she owes in Lebanon, the property in dispute appears to be the Barrette Street property in Ottawa. In reviewing the factors in favour of the wife’s case in Jenkins, Justice Perkins stated that: “Ontario law (s.15 of the Family Law Act) says that Ontario’s matrimonial property law should be applied, as the couples last common habitual residence was Ontario. It would be difficult for an English court to do so and I might well be that English law would say that Ontario law does not apply”. I find this to be equally true of the law of Lebanon – it might well say that Ontario does not apply, even to property held in Ontario. There is no other immovable property identified in Lebanon, so, like in Jenkins at paragraph 28, “there should not be any issue about whether some other law must apply to immovable assets”.

[25] With respect to the issue of spousal support, again as in Jenkins, there may be no reason to favour Ontario or Lebanon, such that it comes “down to who has the economic power”, which favours the applicant in this case. It is clear that the respondent has the ability to travel to Ontario to attend to these issues, as he has indicated in his materials that he has habitually done so several times a year. The applicant would be “hard pressed to defend [in Lebanon] or present evidence there if a trial is required” (para. 24, Jenkins, supra).

[26] I find that the most convenient forum to deal with the applicant’s claims relating to the immovable property in Ottawa and spousal support is Ontario.

The Motion

Exclusive possession

[27] With respect to the applicant’s request for an order of exclusive possession of 156 Barrette Street, Section 18(1) of the Family Law Act provides: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

[28] I am unable to conclude on motion that 156 Barrette Street, Ottawa, Ontario is, or was at the time of separation, the parties’ matrimonial home. Indeed, that may be the main issue for trial.

[29] The evidence before me did not reveal that the residence was ordinarily occupied by them or that they were participating in everyday family life there. Rather, the evidence seems to reveal that they were temporarily “camping out” at 156 Barrette Street as a matter of convenience. As was stated by Justice Steinberg in [Taylor v. Taylor, 1978 CarswellOnt 305] at paragraph 54: “The term “family residence” connotes something more than the simple occupation of a dwelling. It must be the residence around which a couple’s normal family life revolves.”

Temporary Spousal Support

[30] The Applicant’s motion for an order of exclusive possession of the home is dismissed.

[31] With respect to the Applicant’s request for temporary spousal support, I am governed by Sections 30 and 33(8) and (9) of the Family Law Act, R.S.O. 1990, c. F. 3 as amended. Section 30 provides that “every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so”.

[32] Section 33(8) provides that an order for spousal support should;

(a) Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse; (b) Share the economic burden of child support equitably; (c) Make fair provision to assist the spouse to become able to contribute to his or her own support; and (d) Relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[33] Section 33(9) provides a list of the factors to be considered in determining the amount and duration of support for a dependant, and includes the following where the dependant is a spouse:

(i) The length of time the dependant and Respondent cohabited, (ii) The effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation, (iii) Whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents, (iv) Whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents, (v) Any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support; (vi) [repealed], and (vii) The effect on the spouse’s earnings and career development of the responsibility of caring for a child.

[34] In the case of Maelbrancke v. Proctor, 2016 ONSC 1788, Harper J. reviewed the law with respect to temporary spousal support. At paragraph 11, Harper J. referred to the case of [Samis v. Samis, ONCJ 273], which in turn referred to that of [Lowalski v. Grant, 2007 MBQB 235], 219 Man.R. (2d) 260, 43 R.L.F. (6th) 344, [2007] M. J. no. 386, 2007 CarswellMan 422 (Man.Q.B.), to set out the following principles in temporary spousal support:

(1) Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial. (2) The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge. (3) Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage. (4) Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

[35] I am directed by the law that interim support should only be ordered where a prima facie case for entitlement has been made out. I am not convinced that this is such a case. The Applicant’s evidence is that she is medically trained. Her Notice of Assessment for 2013 indicated that she had an income of $40,835. Her Notice of Assessment for 2014 indicated that she had an income of $40,098. In 2015, she chose to join the Respondent in Lebanon, and married him on May 25, 2015. According to her own evidence, she remained in Lebanon with him and lived very comfortably there. She provided no information as to whether she intended to seek work, either in Lebanon or in Canada after December of 2015. Regardless, the Applicant is clearly capable of being self-sufficient, as she was immediately before the marriage, which was exceedingly short, lasting less than eight months.

[36] The Applicant alleges that the Respondent “ruined her, emotionally and financially”, though she provided no details as to the latter. She also provided no information as to effect on her earning capacity of any responsibilities she assumed during the marriage. Indeed, she described no particular responsibilities she assumed, and the parties did not have any children such that her earning capacity was affected by her responsibility of caring for a child.

[37] The Applicant states that she is receiving financial assistance from Quebec. She asserts that she is suffering from depression, for which she holds the Respondent responsible, and states that she cannot work as a result. However, she provided no medical documentation to support this assertion. The Applicant, additionally, drives a luxury vehicle, a Cadillac SUV, and claims over $500,000 in property on her Net Family Property Statement.

[38] Even were I to find that the Applicant is entitled to temporary spousal support, the financial information which I have for the Respondent would dictate that the amount of support payable pursuant to the Spousal Support Advisory Guidelines is $0. The Respondent’s 2013, 2014 and 2015 Notices of Assessment (which he filed in Canada) indicate that he had an annual income of $18,884, $22,716 and $18,041 respectively. While the Applicant alleges that the Respondent is “a very rich man”, worth millions of dollars, I had no evidence before me upon which I could come to that conclusion.

Conclusion

[39] The applicant’s motion for an order of exclusive possession of the matrimonial home and temporary spousal support is dismissed.

[40] The respondent’s motion for an order dismissing the applicant’s application regarding her claims relating to property, and for a stay of the applicant’s application pending completion of the Lebanon proceedings is also dismissed.

[41] The applicant may proceed to the next steps with respect to the claims made in her application.

[42] As the parties’ success was mixed, there is no order as to costs.

Madam Justice Tracy Engelking Date: March 17, 2017