CITATION: Zakhour v. Nayel, 2017 ONSC 7601
OTTAWA COURT FILE NO.: FC-16-1475
DATE: 2017/12/20
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 at OTTAWA: December 12, 2017
ENDORSEMENT
[1] The Applicant Ms. Zakhour brings a motion with sixteen grounds of relief. Unfortunately, a number of them were with respect to issues that had previously been dealt with on motion on March 2, 2017, or that were not capable of resolution on motion. Therefore, I confined the hearing to the following three matters not previously addressed in my endorsement of March 17, 2017: 1) the issue of occupation rent for the unit in 156 Barrette Street, Ottawa, now occupied by the Respondent Mr. Nayel, from January of 2016 to the present; 2) the production of an evaluation or appraisal of three properties owned by Mr. Nayel, a house at 156 Barrette Street, Ottawa, a house at 529 boulevard Hurtubise, Gatineau, and a 1991 BMW; and, 3) disclosure by Mr. Nayel of bank account records.
[2] Mr. Nayel brought a cross-motion in which he is seeking an order for Security for Costs in the sum of $30,000, as well as an order that Ms. Zakhour provide disclosure of her loan application for the lease of her Cadillac SUV and a complete copy of her medical file.
Occupation Rent
[3] As was indicated in my endorsement of March 17, 2017, prior to the parties marriage Ms. Zakhour lived in Quebec. 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, 2015, at which point they travelled to Canada. The parties stayed in an apartment unit (which was then under renovation) in a home owned by Mr. Nayel at 156 Barrette Street, Ottawa until the date of separation in January of 2016, with the specific date somewhat disputed. Ms. Zakhour admits, however, to being "expulsed" from the home on January 3, 2016. Mr. Nayel returned to Lebanon on January 21, 2016. Ms. Zakhour again took up residence with her family in Montreal.
[4] From the materials filed for this motion, it is unclear to me when Mr. Nayel returned to Canada from Lebanon. He does not speak to the issue in his affidavit sworn on November 26, 2017. However, in her affidavit sworn on November 29, 2017, Ms. Zakhour includes at Exhibit "A10" the paystubs provided to her as disclosure which purport to show Mr. Nayel (of 156 Barrette Street) to be employed in Ottawa as of April 21, 2016. In or about October of 2017, Mr. Nayel was charged with one count of assault relating to an alleged incident on December 30, 2015, and released on an undertaking to live at 156 Barrette Street, Ottawa. He thus appears to have been living at that address for some time.
[5] Ms. Zakhour claims that she is entitled to occupation rent on this unit from the date of "eviction" (January 3, 2016) to the present. She seeks $3345 per month, which she asserts is approximately the going rate for rent of similar units in similar houses in the same neighbourhood. Ms. Zakhour basis her claim on section 18(1) of the Family Law Act, which 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." In other words, she is basing her claim to occupation rent on the assertion that 156 Barrette Street was at the time of separation the parties' matrimonial home. However, in my endorsement of March 17, 2017, while I found that Ontario was the appropriate jurisdiction to deal with Ms. Zakhour's claims to immovable property in Ottawa and spousal support, I was unable to conclude on motion that 156 Barrette Street was the parties' matrimonial home. I indicated, in fact, that "this may be the main issue for trial."
[6] The property at 156 Barrette Street is solely owned by Mr. Nayel. If a court determines at trial that it was the matrimonial home at separation, Ms. Zakhour may have an interest in it, including an entitlement to occupation rent since the date of separation. I was provided with no evidence of any contribution she may have made to the carrying and maintenance of the property, which would certainly affect her claim. Those issues, however, can only be determined once the question of whether the home meets the definition of a matrimonial home is made. I, thus, decline to make any order in respect of occupation rent.
Property Appraisals
[7] Mr. Nayel owes two real properties, namely 156 Barrette Street, Ottawa, and 529 boulevard Hurtubise, Gatineau, and a 1991 BMW, for which Ms. Zakhour seeks professional appraisals to be completed at the expense of Mr. Nayel. Mr. Nayel states given there was no discernable increase in value of his properties over the seven months of the marriage, resulting in the likelihood that there will be no equalization owning by him to Ms. Zakhour, he should not be required to pay for professional appraisals of them. Mr. Nayel is prepared to provide a realtor's opinion for the value of the Barrette Street property.
[8] Mr. Nayel states that his property in Quebec was significantly damaged by the flood which occurred in the spring of 2017, and has produced a copy of a permit he received from the City of Gatineau to demolish the property. Mr. Nayel states that he may receive approximately $50,000 in compensation for the property, which he declares in his Financial Statement dated November 27, 2017, was valued at approximately $150,000 at the date of marriage. Mr. Nayel asserts that it is not worth the price of an appraisal and that requiring one of him would be disproportionate to its actual value.
[9] Finally, with respect to his car, Mr. Nayel similarly takes the position that it is not worth having professionally appraised as it is a 1991 vehicle. Ms. Zakhour asserts that the vehicle is worth approximately $20,000 while Mr. Nayel attributes a value of $3000 to it.
[10] Mr. Nayel shall, thus, be required to provide Ms. Zakhour with a realtor's opinion of the value of 156 Barrette Street and with an estimate of the value of 1991 BMW from a reputable car dealer.
Disclosure of Bank Account Records
[11] Ms. Zakhour requests an order requiring Mr. Nayel to disclose copies of all of his bank account statements, whether personal or joint with his sister, Nelly, or any other individual, and whether in Canada or Lebanon. Certainly, Mr. Nayel, like any other party to a matrimonial claim, is required to provide full disclosure of his financial situation to Ms. Zakhour from the date of marriage onwards. He is also required to provide documentary evidence of any claim he is making to pre-marriage assets. Additionally, although the date of separation (and therefore valuation date) appears to be January 3, 2016, Ms. Zakhour seeks an order for spousal support in her application, and she asserts that Mr. Nayel has far more income than he discloses. Mr. Nayel will, therefore, be ordered to produce any and all bank statements for any accounts in which he had an interest, be they in Canada or Lebanon, from May 24, 2015 to the present.
Security for Costs
[12] Mr. Nayel is seeking an order for security of costs in the sum of $30,000, on the basis both that Ms. Zakhour is unlikely to be successful on her claims for equalization and for spousal support and that she has no assets within the jurisdiction against which he could leverage any costs order made against her. Mr. Nayel relies on Rule 24(13) of the Family Law Rules in stating that "there is good reason to believe that the case is a waste of time or a nuisance."
[13] Ms. Zakhour states that an order requiring her to post security of $30,000, which she does not have, would effectively end her ability to pursue her case and would result in a complete denial of her access to justice. I agree. In her materials, Ms. Zakhour has asserted that Mr. Nayel, in fact, owns far more that he has declared in his financial statements. This includes various high end vehicles, expensive jewellery, property and numerous bank accounts in Lebanon worth millions of dollars. The discrepancy between what Ms. Zakhour says Mr. Nayel owns and what Mr. Nayel declares that he owns is an immense abyss. The discrepancy between what Mr. Nayel declares he owns and the lifestyle Ms. Zakhour asserts that he leads is equally immense. If Ms. Zakhour is able to demonstrate at trial that Mr. Nayel's financial situation is as she claims, she may be entitled to some kind of equalization payment, or some level of spousal support.
[14] I am not prepared to hamper Ms. Zakhour's ability to access a fair hearing in this regard, and will not, therefore, grant Mr. Nayel's request for an order for security for costs
Disclosure of The Loan Application
[15] Mr. Nayel states that Ms. Zakhour has not complied with an order of disclosure of Madam Justice Ryan Bell dated August 11, 2017, in that she has not proved a copy of the loan application she made in relation to the lease of her Cadillac SUV. Ms. Zakhour states that she did not have to file a loan application at the time of the lease and as such this item does not exist. She has provided a copy of the lease and confirmation of the cancellation of the lease in March of 2017. If such a document exists, Ms. Zakhour is already required to produce it, and I decline to make any further order with respect to same.
Disclosure of Ms. Zakhour's Medical Records
[16] Mr. Nayel also seeks an order requiring Ms. Zakhour to disclose "her complete medical file from her family doctor, OBGYN, Dr. Pilon, and any and all treating psychologist or psychiatrists from the date of marriage to current date." Mr. Nayel seeks this disclosure because Ms. Zakhour alleges that she is unable to work for health related reasons. The only confirmation of this is a hand-written note from Dr. Normand Pilon dated November 15, 2017 which reads:
"MME MAYA ZAKHOUR EST EN INCAPACOTE TOTALE DEPUIS LE 6 JANV 2016 pour UNE PERIODE INDETERMINE."
[17] Ms. Zakhour has claimed to suffer from depression resultant from an alleged assault of her by Mr. Nayel which she asserts ended her pregnancy. She has, however, provided no medical confirmation of this or of any diagnosis of depression, of treatment or of prognosis. Yet she seeks spousal support from Mr. Nayel, largely as a result of her inability to work. In order to make, or more importantly support this claim, Ms. Zakhour will have to provide the necessary disclosure to Mr. Nayel. Ms. Zakhour will have to provide to Mr. Nayel an up to date proper medical report from her treating physicians with respect to diagnosis, treatment and prognosis. In the alternative, Ms. Zakhour will have to provide Mr. Nayel with copies of her medical records from May 24, 2015 to the present.
Order
[18] There shall be an order as follows:
The applicant's motion for an order of occupation rent from 156 Barrette Street, Ottawa is dismissed;
The respondent shall provide the applicant with a realtor's opinion of the value of 156 Barrette Street, Ottawa within 30 days of this order;
The respondent shall provide the applicant with an evaluation of the value of his 1991 BMW from a reputable car dealer within 30 days of this order;
The respondent shall provide the applicant with copies of his bank statements for any and all bank accounts in which he has an interest, in Canada or Lebanon, from May 24, 2015 to the present within 30 days of this order;
The respondent's cross-motion for an order that the applicant post security for costs is dismissed;
The applicant shall provide the respondent with an up to date medical report from her treating physician/psychiatrist with respect to her diagnosis, treatment plan and prognosis, including a projection of when she may be able to return to work, within 30 days of this order;
In the event that no such report is forthcoming, the applicant shall provide the respondent with copies of her complete medical files from her family doctor, OBGYN, Dr. Pilon, and any and all treating psychologist or psychiatrists from the date of marriage to current date.
[19] As the parties' success was mixed, there is no order as to costs for this motion. What is required in this matter is a trial to determine both the issue of whether 156 Barrette Street was in fact the parties' matrimonial home at the time of separation, and to determine the issue of spousal support on a final basis. The matter should proceed to settlement conference, and there shall be no further motions brought by either party without leave of the court.
Madam Justice Tracy Engelking
Date: December 20, 2017
CITATION: Zakhour v. Nayel, 2017 ONSC 7601
OTTAWA COURT FILE NO.: FC-16-1475
DATE: 2017/12/20
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Maya Zakhour, Applicant
AND
Fady Nayel, Respondent
BEFORE: Madam Justice Tracy Engelking
COUNSEL: Self-represented Applicant
Counsel, for the Defendant/Applicant
Paul Jakubiak, Counsel for the Respondent
ENDORSEMENT
ENGELKING, J.
Released: December 20, 2017