Court File and Parties

COURT FILE NO.: FC-15-1115 DATE: 2019/01/09 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Noor Hasan A. Abdulhadi Applicant – and – Ali Ahmad Respondent

Counsel: Odette Rwigamba, Counsel for the Applicant Tom Curran, Counsel for the Respondent

HEARD: May 29, 30, 31 and June 1 and 4, 2018

REASONS FOR JUDGMENT

Justice Engelking

[1] The Applicant, Ms. Abdulhadi, brought an Application in May of 2015 in which she seeks custody and access orders and spousal and child support pursuant to the Divorce Act, the Children’s Law Reform Act and Family Law Act, as well as an order equalizing the parties’ net family property pursuant to the Family Law Act. She also seeks the ability to travel outside of Canada with the parties’ child, Mehdi Ahmad, without the consent of his father. The Respondent, Mr. Ahmad, filed an Answer in June of 2015 in which he seeks custody of the child, no order for equalization based on the short duration of the marriage, and orders permitting him to maintain the child’s travel documents and prohibiting removal of the child from the jurisdiction of Ottawa without his prior consent. Neither party, however, has requested a divorce in their respective pleadings. My order with respect to custody and incidents thereof, parenting time, and child and spousal support are therefore granted pursuant to the CLRA and the FLA. During the course of the trial, I permitted Ms. Abdulhadi to file an amendment to her Application to include a claim for monies owed to her pursuant to a marriage contract, or maher, dated October 30, 2011. I also permitted Mr. Ahmed to file an Amended Answer in which he disputes the validity of any such contract.

[2] The issues of primary residence of the child, Mr. Ahmad’s parenting time and child support were resolved by the commencement of trial. The parties have agreed that Mehdi’s primary residence will be with Ms. Abdulhadi, Mr. Ahmad will have regular parenting time every second weekend, as well as some agreed upon holiday time and Mr. Ahmad will pay Federal Child Support Guidelines table support for Mehdi based on his annual income. The remaining issues are:

(1) Sole custody of Mehdi to Ms. Abdulhadi versus joint custody; (2) Ms. Abdulhadi’s ability to obtain travel documents for and travel outside of Canada with Mehdi without Mr. Ahmad’s consent; (3) Spousal support for Ms. Abdulhadi; and, (4) Equalization of the NFP, including the maher.

[3] For the reasons that follow, I find that the parties shall have joint custody of Mehdi, that neither parent will be permitted to travel outside of Canada with Mehdi without the consent of the other or a court order obtained in advance, that Mr. Ahmad will pay table child support to Ms. Abudlhadi of $633 per month commencing January 1, 2017 and spousal support to Ms. Abdulhadi of $1,295 per month commencing June 1, 2018 and that Mr. Ahmad will pay Ms. Abdulhadi an equalization payment of $8775.00, as well as $16,453.89 in payment of the deferred portion of the maher.

Background Facts

[4] Mr. Ahmad is a Canadian citizen of Iraqi descent who was born in the UAE. Ms. Abdulhadi is Iraqi. They met in person in Iraq on October 15, 2011, but they had been communicating via the internet since in or about November of 2010, when Mr. Ahmad’s mother put them in touch. They married in a religious ceremony in Bagdad, Iraq on October 20, 2011, had a marriage party on October 22, 2011 and an appearance before a court on October 30, 2011. The October 30, 2011 court attendance is important in relation to the issue of the maher, about which I will discuss more later. Both Ms. Abdulhadi’s Application and Mr. Ahmad’s Answer identify the date of marriage to be October 22, 2011.

[5] Mr. Ahmad immediately commenced the process to sponsor Ms. Abdulhadi to Canada, and she joined him in Ottawa in September of 2013. Ms. Abdulhadi’s highest level of education in Iraq was high school, which she did not finish. Shortly after arriving in Canada, Ms. Abdulhadi commenced taking English as a second language, which she continued to do until she had to stop for the birth of her son. Mehdi was born on August 1, 2014. Ms. Abdulhadi returned to English classes in December of 2015, once she was able to secure a daycare spot for Mehdi, and continues to take them to the present time.

[6] When Ms. Abdulhadi came to Canada, she and Mr. Ahmad took up residence in a home he had purchased in the Barrhaven neighbourhood of Ottawa. They resided together in this home, at 311 Langrell Crescent, to the date of separation. Mr. Ahmad is a Corporal in the Canadian Armed Forces working as a Resource Management Clerk. Throughout the marriage, Mr. Ahmad was employed by the Department of National Defence and Ms. Abdulhadi was a stay-at-home wife and mother (but for her ESL classes).

[7] The parties separated in the spring of 2015. According to Ms. Abdulhadi, their date of separation was March 2, 2015, when she returned to the family home after being at her sister’s for two weeks, and the couple commenced living separate and apart. According to Mr. Ahmad, it was May 7, 2015, when he came home from work to find his wife and son gone. In any event, on that later date, Ms. Abdulhadi went into a shelter with Mehdi, where she remained until she was able to obtain a unit from Ottawa Housing in the late fall of 2015 or early 2016.

[8] Mr. Ahmad sold 311 Langrell Crescent, without the knowledge or consent of Ms. Abdulhadi. He thereafter returned to live in the home of his parents, with whom he had been living prior to Ms. Abdulhadi’s arrival in Canada.

[9] After Ms. Abdulhadi left the matrimonial home, Mr. Ahmad did not see Mehdi for several weeks. He was served on June 2, 2015 with Ms. Abdulhadi’s Application, and he immediately sought to bring a motion for an order for the return of Mehdi to his custody. The matter was before Master Roger, as he then was, on June 4, 2015, and deemed to be urgent. A motion date of June 23, 2015 was scheduled. On that date, Justice Robertson made an interim, interim order declaring that there was no status quo established and granting some parenting time to Mr. Ahmad. The temporary motion was ultimately heard on August 17, 2015, and on December 24, 2015, Justice Corthorn released her decision, in which she determined the primary residence of the Mehdi to be with Ms. Abdulhadi, increased the parenting time of Mr. Ahmad, including weekends, ordered Mr. Ahmad to pay table child support of $525 per month effective May 7, 2015 and spousal support of $1100 per month effective June 23, 2015.

Issue #1 – Sole vs. Joint Custody of Mehdi

[10] Ms. Abdulhadi seeks an order of sole custody of Mehdi. Her evidence is that she could no longer stay in the family home with Mehdi as she feared for her and her son’s safety. Ms. Abdulhadi testified that Mr. Ahmad spent significant time in the bathroom, where he would be speaking loudly in Arabic and speak all kinds of threatening language, although not directed at her. Ms. Abdulhadi found Mr. Ahmad to be verbally and/or emotionally and financially abusive to her. She indicated that Mr. Ahmad would yell at her, berate her and demand apologies and respect from her, when she felt she had done nothing that required apology.

[11] Ms. Abdulhadi indicated that Mr. Ahmad was controlling in relation to when she could or could not visit her sister, who also lives in Ottawa with her husband and children. She described a particularly troubling event in February of 2015, when she asked to visit her sister after one of her nephew’s had to have surgery. According to Ms. Abdulhadi, Mr. Ahmad refused to permit her to visit her sister, until his mother intervened and required him to drive her to her sister’s home. Mr. Ahmad then did so at around 10:00 p.m. and dropped Ms. Abdulhadi and Mehdi for what she thought would be two days. It turned out to be for two weeks as neither Mr. Ahmad nor his family members would respond to her calls to return home. Ms. Abdulhadi’s brother-in-law ultimately paid for a taxi to send her and Mehdi back to 311 Langrell Crescent.

[12] According to Ms. Abdulhadi, upon her return home on March 2, 2015, Mr. Ahmad refused to acknowledge or speak with her. He also did not interact with Mehdi. Ms. Abdulhadi considered the relationship to be over at that point. Mr. Ahmad confirmed that the parties were not on speaking terms upon Ms. Abdulhadi’s return to the home. Rather, they communicated exclusively by notes, primarily to do with daily tasks. They did not share a bedroom; Ms. Abdulhadi slept on the floor in Mehdi’s room. Mr. Ahmad’s testimony was that his belief was that the relationship was not terminated until Ms. Abdulhadi left the matrimonial home on May 7, 2015. However, Mr. Ahmad said he took all of the funds that Ms. Abdulhadi had previously had access to (essentially the Child Tax Benefit) out of the account in March because he “lost all hope in retrieving the marriage”. Based on the evidence of both parties, I find that as of March 2, 2015, they were living separate and apart.

[13] Ms. Abdulhadi also described Mr. Ahmad as financially controlling, in that he never provided her with any money, and she would have to ask him anytime she needed anything, either for herself or Mehdi, which items he would then purchase or shop with her to do so. Ms. Abdulhadi described receiving only $100 from Mr. Ahmad once, when she was about six months pregnant. Her evidence in this regard was somewhat inconsistent with her testimony that she discovered all of the Child Tax Benefit money removed from the account in March.

[14] With respect to Mehdi, Ms. Abdulhadi testified that she had always been Mehdi’s primary caregiver, and that Mr. Ahmad had very little to do with the child. Her view is that Mehdi is neglected when in the care of Mr. Ahmad, in that he returns from visits with his hair unkempt, his diaper full, and generally not well cared for.

[15] With respect to decision making, Ms. Abdulhadi’s view is that the parties cannot possibly make decisions together, as Mr. Ahmad is completely influenced and controlled by his own mother, Ms. Khulood Faraj. It was Ms. Abdulhadi’s evidence, in fact, that the heart of the problem with her relationship with Mr. Ahmad was the degree to which he was controlled by Ms. Faraj, and that they could never make decisions on their own as a couple.

[16] Although Mr. Ahmad sought an order of sole custody of Mehdi in his Answer, his position at trial was that the parties should have joint custody of the child. His evidence is that he was very involved in Mehdi’s care since he was born. Mr. Ahmad testified that took a nine month parental leave after Mehdi’s birth from August of 2014 to April of 2015, and he participated in all aspects of caring for the child, including bathing him, changing diapers and bottle feeding him. Mr. Ahmad stated that he was, nevertheless, not as involved with Mehdi’s care as he would have liked to be as Ms. Abdulhadi would take the child to a second story bedroom and stay with him there for hours.

[17] Mr. Ahmad testified that he has a very close and loving relationship with Mehdi, though it took some time for the child to become accustomed to him after not having seen him for approximately two months. Mr. Ahmad also testified that Mehdi is loved greatly by his paternal family, being his grandparents and two uncles.

[18] Mr. Ahmad described his relationship with Ms. Abdulhadi as “bewildering”. He indicated that she had a “gloomy sense of dissatisfaction”, and that she would be upset for seemingly no reason, or none that she would explain, in any event. Mr. Ahmad described that the couple fought a lot, the end result of which would be the silent treatment from Ms. Abdulhadi towards him. Mr. Ahmad indicated that they got into a huge argument in October of 2013 because Ms. Abdulhadi wanted him to provide her with $400 per week, which he stated he could not afford given the requirements of paying for and running the household. His evidence was that they eventually agreed that he would give her $100 every two weeks, which he said he did.

[19] While Mr. Ahmad was very happy with the birth of Mehdi, he indicated that it did not improve things between he and Ms. Abdulhadi; the tension remained the same. Mr. Ahmad indicated that the visit to Ms. Abdulhadi’s sister in February appeared to be the last straw. He stated that Ms. Abdulhadi had earlier become convinced that his mother had insulted her and her family in a communication on Viber. As a result, she “boycotted” visiting his family. Mr. Ahmad testified that his response to her request to visit her sister was to similarly “boycott” her family. Mr. Ahmad, nevertheless, did take Ms. Abdulhadi to her sister’s home after both her sister and his mother intervened. He stated that he did not try to talk to Ms. Adbulhadi while she was at her sister’s home because he had “had it” by then. He described the period when Ms. Abdulhadi returned to the home as the most uncomfortable of the marriage, as they were essentially not speaking to each other, and she spent most of her time in the upstairs bedroom with Mehdi. Mr. Ahmad indicated that although he had not given up on the relationship during this period, when he returned home from work on May 7, 2015, his wife and son were gone. He did not know where they were or when he would see Mehdi again.

[20] Mr. Ahmad disputed that he is controlled or overly influenced by his mother. His evidence was that his family is very close, and that they depend on each other, however, he and his two brothers are independent and able to make their own decisions. Mr. Ahmad testified that he often, but not always, seeks counsel from his parents and they make recommendations to him, but that he makes up his own mind after such consultation. He also indicated that although Ms. Abdulhadi testified to his mother being intrusive in their lives, it was, ironically, Ms. Abdulhadi, who involved Ms. Faraj in their disputes, for example in her concern about his sexual behaviour and in her desire to go to her sister’s home in February.

[21] Mr. Ahmad wants to have joint decision making authority over Mehdi. He indicated that as Mehdi’s parents, they should be able to make decisions together that are in Mehdi’s best interests. Mr. Ahmad testified that he and Ms. Abdulhadi are able to communicate by text message and that their communication is cordial and to the point. He indicated that he wants to have a say in Mehdi’s upbringing, but would not be overly intrusive in this regard; by way of example, he indicated that although he had no say in it, he did not take issue with Ms. Abdulhadi’s decision about Mehdi’s daycare. He also indicated that he is content to have only weekend parenting time with Mehdi, given his work and/or potential deployment schedule. Mr. Ahmad’s major concern about Ms. Abdulhadi having sole custody of Mehdi is twofold; one, he would be shut out of making decisions that are for the wellbeing of his son, such as in relation to his education or medical issues, and two, he would be concerned that Ms. Abdulhadi would use her sole custodial status to take Mehdi to Iraq and not return him (about which I will speak more later).

Analysis

[22] With respect to any request for an order for custody of children, the court is governed by section 24 of the Children’s Law Reform Act, which sets out the criteria upon which such a decision is based:

Merits of application for custody or access

24(1) The merits of an application under the Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).

Best Interests of child

(2) The court shall consider all of the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and, (i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing; (b) the child’s views and preferences, if they can reasonably be ascertained; (c) the length of time the child has lived in a stable home environment; (d) the ability and willingness of each person applying for custody of or access to the child for the child’s care and upbringing; (e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing; (f) the permanence and stability of the family unit with which it is proposed that the child will live; (g) the ability of each person applying for custody of or access to the child to act as a parent; and (h) any familial relationship between the child and each person who is a party to the application.

[23] It was clear from the evidence before me that Ms. Abdulhadi has been Mehdi’s primary caregiver for much of his life, and certainly since separation, including exclusively for a period of time as a result of her own unilateral actions, which, frankly, were not satisfactorily explained to the court. While Ms. Abdulhadi had her own impressions of Mr. Ahmad, there was no evidence provided to the court which would suggest that he presented any kind of risk to Mehdi. That she left the home without making any arrangements for Mr. Ahmad’s relationship with Mehdi to continue was not acceptable. On the evidence before me, I can see no basis to prevent Mr. Ahmad from having a role in decision making for Mehdi as a joint custodian of him. Ms.Abdulhadi and Mr. Ahmad will have to consult in an effort to make joint decisions for the child. However, in the event that they are unable to come to a mutual decision with respect to any aspect of Mehdi’s upbringing, final decision making authority shall rest with Ms. Abdulhadi.

Issue #2 - Travel outside of Canada with Mehdi without Mr. Ahmad’s consent

[24] Ms. Abdulhadi requests an order that she both be permitted to travel outside of Canada with Mehdi and that she be able “to apply and obtain the child’s government issued documents without the Respondent’s signature.” Ms. Abdulhadi requests these orders because, although she has been able to travel to Iraq to see her family on one occasion when her father was ill, she was unable to take Mehdi with her as Mr. Ahmad was not agreeing. Ms. Abdulhdi testified that but for her sister in Ottawa, all of her relatives are in Iraq, mainly in Bagdad. She stated that she would like very much for Mehdi to be able to travel to Iraq with her to meet his maternal family and for them to get to know him. Ms. Abdulhadi is of the view that Mr. Ahmad is being unreasonable by not consenting to Mehdi travelling to Iraq with her, and it is simply a continuation of his control over her.

[25] Mr. Ahmad indicated that he is very concerned that if Ms. Abdulhadi takes Mehdi to Iraq, she will not bring him back. He has this concern, he indicated, for two reasons. The first is that according to him, Ms. Abdulhadi on one occasion told him that she wanted to go permanently to Iraq, and that she would waive all of her rights, for example to any support or payment of money, if he would permit her to go with Mehdi. Mr. Ahmad’s mother, Ms. Faraj, also testified that Ms. Abdulhadi told her on two separate occasions that she wished to return to Iraq permanently. The second reason is that Iraq is not a signatory state to the Hague Convention on the Civil Aspects of International Child Abduction, and Mr. Ahmad would have no way of getting Mehdi returned if she, in fact, did so. Mr. Ahmad submits that Ms. Abdulhadi has established very few, if any, ties to Canada. During the marriage, she did not appear to be happy living in Canada; she did not make friends, and despite being in ESL for several years, has not made significant progress in learning English. Ms. Abdulhadi has not applied for work or school other than ESL. He stated that he holds a genuine fear that she has nothing keeping her here, and that it is unlikely that she will return if Mehdi is with her.

[26] Mr. Ahmad did not think he was being unreasonable in not consenting to Mehdi going to Iraq, moreover, because, notwithstanding that both he and his mother travelled there (he to marry in 2011, and his mother more than once), he considers it to be dangerous. Mr. Ahmad indicated that as an adult he could choose to take the risk of travelling to Iraq (as could his mother), but that he was not prepared for Mehdi to go and face any risks.

[27] Ms. Abdulhadi denies that she would not return to Canada if she was permitted to travel to Iraq with Mehdi. She also disputes that she has no ties to Canada. She indicates that she have lived in Ottawa for five years, that she has her own residence and car, that she has progressed to Level 4 in her ESL and that it is her intention to obtain Level 5, and then apply to finish high school with the ultimate goal of applying to nursing school once she has completed high school. She sees herself as very much immersed in Canadian society and indicates that she had no intention to move permanently to Bagdad. She seeks only to be able to visit with her family with Mehdi.

[28] Ms. Abdulhadi also disputed that Iraq is unsafe. She testified that Bagdad is essentially safe and she would not take Mehdi anywhere in Iraq that was not safe. Mr. Ahmad and Ms. Faraj both testified that Iraq is not safe, the latter having traveled with great caution to visit family outside of Bagdad. Their concern is that given the state of affairs and the level of security “anything can happen”, even in Bagdad. They are not prepared to have Mehdi travel to Bagdad under its current circumstances.

Analysis

[29] Regardless of whether Iraq, or Bagdad in particular, is secure or not, the fact remains that Iraq is not a Hague Convention state. Mr. Ahmad’s fear of being unable to retrieve Mehdi if he goes to and is kept in Iraq is not a theoretical one. The Hague Convention is premised on the principle that parents must agree on where their children live. Absent that agreement, there must be a mechanism in place for a parent who is seeking the return of a wrongfully removed child. For states which are signatories to the Convention, that mechanism exists. For those that are not, it does not, and the court cannot ignore this simple fact. While Ms. Abdulhadi sees Mr. Ahmad’s position as one that is intended to punish her, as an involved and concerned parent, he is entitled to be included in any decision that would see Mehdi travelling outside of Canada. I can see no basis to remove that right from him. I find that Mr. Ahmad’s consent to obtain travel documents for Mehdi and for Mehdi to travel outside of Canada will continue to be required.

Issue #3 – Spousal support

[30] Ms. Abdulhadi seeks an order for spousal support that is not reviewable until at least 2022. She does so on the basis that she came to Canada under the sponsorship of Mr. Ahmad and was and is entirely dependent upon him. Ms. Abdulhadi spoke neither English nor French upon her arrival in Canada, and it was understood between the parties that she would care for the home (and later the child) and attend ESL training, and Mr. Ahmad would support the family. Ms. Abdulhadi has not finished high school, is still learning English and has never worked in Canada. She states that she has no means of supporting herself, and that Mr. Ahmad was perfectly aware that would be the case when he sponsored her to come to Canada.

[31] Mr. Ahmad has been paying spousal support since it was ordered by Justice Corthorn to commence on June 23, 2015. He is of the view that given the short duration of the marriage, if spousal support is to continue being paid, it should be time limited. Although he did agree for Ms. Abdulhadi to originally attend ESL school (he took her to register and bought her a bus pass for this purpose), Mr. Ahmad stated that he believed that she was going to look for employment once she had obtained enough English to do so. Mr. Ahmad is of the view that Ms. Abdulhadi needs to make more significant efforts to become self-supporting than she has done to date. It is his position that a time limited order will encourage her to do so.

Analysis

[32] Section 30 of the Family Law Act 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.” Subsection 33(8) of the FLA sets out the purposes of an order for support of a spouse, namely to:

(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 1 (Family Property) and II (Matrimonial Home).

[33] As Justice Zisman has said in Niranchan v. Nadarajah, 2015 ONCJ 149 at paragraph 3, “…a finding of entitlement is necessary before quantum of spousal support can be determined and the basis of that entitlement may impact the quantum of spousal support”.

[34] Pursuant to the Supreme Court of Canada case of Bracklow v. Bracklow, [1991] 1 S.C.R. 420, there are three grounds for entitlement to spousal support: compensatory, non-compensatory and contractual.

[35] In this case, although the couple began to discuss the possibility of marriage by the spring of 2011, the marriage was in many aspects facilitated, if not arranged, by their respective families. Mr. Ahmad went to Iraq in October of 2011, having never previously met Ms. Abdulhadi in person, for the express purpose of marrying. He brought with him the application documentation from Canada Citizenship and Immigration, and together they gathered other documents required for that purpose while in Bagdad. Upon his return to Canada at the beginning of November 2011, Mr. Ahmad proceeded to submit the application. As part of that process, Mr Ahmad undertook to provide for Ms. Abdulhadi’s basic needs for three years from the date at which Ms. Abdulhadi obtained permanent resident status. As Zisman, J. found in Niranchan, case law is clear that “the existence of an immigration sponsorship agreement is a relevant consideration in determining entitlement to spousal support.” Ms. Abdulhadi, thus, has an entitlement to support on a contractual basis.

[36] Ms. Abdulhadi’s evidence is that she was required to go on social assistance when she left the matrimonial home, having no other way to support herself. Indeed, as part of his undertaking to Citizenship and Immigration, Mr. Ahmad has had to repay a debt of $1400 accrued from the social assistance paid to Ms. Abdulhadi. It was Ms. Abdulhadi’s evidence that it was understood at marriage that Mr. Ahmad would support the family financially. She states that she is currently unable to work due to a lack of facility with English. Even were she to work, the combination of her primary responsibility for Mehdi, her lack of fluency in English or French and her lack of any meaningful education or experience would interfere with her capacity to be self-sufficient.

[37] In her Financial Statement sworn April 30, 2018, Ms. Abdulhadi’s monthly income consists solely of the $1100 she receives in spousal support and $648.16 that she receives from the Child Tax Benefit for Mehdi. Her total monthly income is $1748.16 and her total yearly income is $20,977.92. Ms. Abdulhadi appears to live very modestly, her largest expenses being related to her vehicle. Her monthly expenses come to $1870.75 and her yearly expenses are $21,369, or slightly in excess of her yearly income. It is clear that without the spousal support she is currently receiving, Ms. Abdulhadi’s financial situation would be dire. Based on her current circumstances, I find that Ms. Abdulhadi has an entitlement to spousal support on a non-compensatory basis as well.

[38] Finally, although Ms. Abdulhadi did not leave or forego a specific career in Iraq to come to Canada, and has no compensatory claim based on that, she did give birth to Mehdi in August of 2014, and acted in the role of a primary parent, both before and after separation. It was her evidence that the parties agreed that she would stay home with Mehdi, which she did fulltime from his birth to approximately December of 2015 when she returned to her ESL program. Although Mr. Ahmad did take a parental leave for part of that time, he returned to work in April of 2015. Hence, although the marriage was short, Ms. Abdulhadi also has an entitlement to spousal support on a compensatory basis.

[39] Having found entitlement to spousal support, I must now deal with the issues of quantum and duration. Ms. Abdulhadi testified that she is currently at Level 4 in her ESL program and that it is her intention to finish Level 5, which she anticipates will take another year and a half. Her plan is to then complete high school, which she believes will take another two years, and to hopefully attend school in a nursing program. She is at least five years away from any ability to be self-sufficient.

[40] According to his Notice of Assessment from the Canada Revenue Agency, Mr. Ahmad’s 2017 Line 150 income was $67,896. Absent spousal support Ms. Abdulhadi has no income but the Child Tax Benefit. In 2015, her Line 150 income was $5,574; in 2016, it was $2,736; and in 2017, it was $0.00. Her entitlement to an equalization payment, moreover, is not so great as to permit her to support herself without spousal support.

[41] The court was presented with a DivorceMate calculation on this income on a with child support formula which demonstrates that mid-range spousal support on that income is $1,295. This is the order Ms. Abdulhadi seeks commencing June 1, 2018 and not reviewable, but for a material change in circumstances, before 2022. Based on Ms. Abdulhadi’s entitlement to support, her need and Mr. Ahmad’s ability to pay, I am prepared to make that order.

Issue #4 - Equalization of the NFP

[42] Ms. Abdulhadi is seeking an equal division of the Net Family Property. According to her calculations in her NFP statement, the equalization payment owed to her by Mr. Ahmad is $24,123.48. In addition to this sum, it is her contention that Mr. Ahmad owes her $26,500 as final payment on the maher.

[43] Mr. Ahmad’s position is that there should be no or an unequal division of the net family property based on the length of the parties’ cohabitation and the fact that he made all of the contributions to the acquisition and maintenance of the property, and Ms. Abdulhadi made none. Mr. Ahmad also takes the position that there is no deferred payment on the maher owed, as there is no valid domestic contract between the parties in relation thereto.

[44] In their respective NFP statements, the parties agreed on valuation date values of the following:

• The household items and goods owned by Mr. Ahmad was $850;
• Mr. Ahmad’s CIBC account was $1,431.60;
• Mr. Ahmad RBC account (which he holds jointly with Ms. Faraj) was $1716.90; and,
• Mr. Ahmad’s Mandatory CAF Pension was $14,761.68;

[45] The parties disagree slightly on the value of Mr. Ahmad’s credit card debt. He states that it was $1930.92 and she states that it was $1,391.56. Mr Ahmad’s CIBC VISA card statement for May7 to June 6, 2015 shows a balance owing of $1960.92, but his “previous balance”, that is previous to May 7, 2015, was $1391.36. Given that I have determined that March 2, 2015 is the parties’ date of separation, it follows that the earlier balance is the best evidence of the balance closest to the valuation date. Therefore, the value of Mr Ahmad’s credit card debt on the valuation date will be $1391.36.

[46] The parties also have differing view with respect to the value of the RBC account Mr. Ahmad had at the date of marriage. He has given it a value of $32,561.42 at the date of marriage. Ms. Abdulhadi does not dispute that amount, but she contends that Mr. Ahmad is only entitled to deduct one half of it as a date of marriage deduction because the account is jointly held by Mr. Ahmad and Ms. Faraj. Both of Mr. Ahmad and Ms. Faraj testified that although that account is in both of their names, it is solely used by Mr. Ahmad. Both indicated that Mr. Ahmad has had the account since he was in high school, and that it was originally opened as a joint account with his mother because he was too young to open his own. Mr. Ahmad has simply kept the account to this day. Ms. Faraj testified that she opened accounts with all three of her sons when they were still in school, but that the accounts belong to them. She stated that while she may pay a phone or other type of bill for one of them from their respective accounts if asked to do so, she does not otherwise have any dealings with them. Ms. Faraj indicated that she has never taken money out of the account she holds jointly with Mr. Ahmad, nor used any for her own purposes. I am satisfied from the evidence that money in the RBC joint account belongs to Mr. Ahmad, and he will be permitted a date of marriage deduction of $32,561.42. On the date of separation, the value of $1716.60 shall be attributed to Mr. Ahmad.

[47] There are three additional major issues in the calculations of the net family property upon which the parties do not agree. They are the treatment of the matrimonial home, a loan claimed by Mr. Ahmad from his father, and the maher.

Value and Inclusion of the Matrimonial Home

[48] Mr. Ahmad did not include the matrimonial home in his NFP statement. What he did include under “Part 4(f): Money Owed to You” was $35,000.00, which, if I understand it correctly, represents the proceeds of the sale of the matrimonial home.

[49] On June 25, 2011, Mr. Ahmad entered into an Agreement of Purchase and Sale for 311 Langrell Crescent, in which he agreed to buy the property for $375,637.85. The transaction took place on December 14, 2011, and the Transfer was registered on that date under transaction number OC1316187. On that same date, a mortgage in the amount of $300,640.00 was also registered. Notwithstanding that Mr. Ahmad had married in October of 2011, the Land Transfer Tax Statement accompanying the deed included the following statement under paragraph #6: “5. No purchaser(s) is/are a “spouse” as defined in section 29 of the Family Law Act.” Mr. Ahmad’s explanation for this was that his real estate counsel did not ask him if he was married and must have assumed that he was not.

[50] On April 8, 2015, while the parties were still residing together, albeit living separate and apart (and even though Mr. Ahmad took the position that they were not yet separated), Mr. Ahmad entered into an Agreement of Purchase and Sale with one Ayed Hamza Abidi, to whom he referred as ‘Hamza”, to sell 311 Langrell Crescent to him for $310,000.00. The closing date for the transaction was listed as April 29, 2015. On the Purchase and Sale Agreement the spousal consent is blank.

[51] The reporting letter from Mr. Ahmad’s real estate lawyer dated June 23, 2015, indicates that the “transaction was completed on April 29, 2015.” Ms. Abulhadi and Mehdi were, of course, still residing in 311 Langrell Crescent as of that date, as was Mr. Ahmad. The Transfer was registered as transaction number OC1680663 on May 13, 2015. On the Transfer Mr. Ahmad declares: “I am not a spouse.” The mortgage on the property was paid on May 13, 2015, being $271,249.41 plus 15 days interest of $15.59 per day.

[52] Ms. Abdulhadi testified that she had no knowledge of the sale of 311 Langrell Crescent, nor did she ever consent to it being sold. Mr. Ahmad acknowledged that he did not inform her or seek her consent. His evidence was that he did not tell his real estate lawyer that he a spouse because “she was not talking to me.” Mr. Ahmad stated that he and Ms. Abdulhadi had a discussion earlier in the spring wherein he advised her that house would have to be sold as he could no longer afford it. Ms. Abdulhadi testified that the only conversation she remembered them ever having about the notion of selling the house was in late 2014 when a family trip to Iraq was being discussed. According to Ms. Abdulhadi, Mr. Ahmad stated that he did not have enough money to buy tickets to Iraq, and the house would have to be sold. Ms. Abdulhadi responded that they should only go once they had saved enough money for tickets. She did not want to sell the house.

[53] Pursuant to section 21 of the Family Law Act, no spouse can dispose of an interest in the matrimonial home unless the other spouse joins in the transaction or provides consent to it. I find that Mr. Ahmad sold the home in contravention of section 21 of the FLA.

[54] Additionally, Mr. Ahmad sold the home for $310,000.00, or $65,637.85 less than the purchase price in 2011. Mr. Ahmad’s evidence in this regard was that he looked at the value of other homes in the neighbourhood of a similar quality on the builder’s website and came to the conclusion that $310,000.00 was what he could get for the home. He did not provide any appraisal or estimate of the value of the home from a realtor. Mr. Ahmad, moreover sold the home for that price to a “good friend” of his brother, Anwar. Hamza drafted the Agreement of Purchase and Sale, and Anwar witnessed it. Six months later, Hamza sold the home for $372,000, or $62,000 more than he paid for it.

[55] Ms. Abdulhadi takes the position that the sale of the home to Hamza was not at arm’s length and that it was designed to reduce Mr. Ahmad’s profit, thereby reducing the value of his property on his NFP. I agree. Mr. Ahmad not only sold the home in contravention of section 21 of the Family Law Act, he did so hurriedly and without regard to what it was actually worth. Mr. Ahmad’s indicated that he had to sell the home as he was overwhelmed with the cost of keeping it up. However, at the time of the sale, Mr. Ahmad’s only debt was a credit card balance of $1930.92. Although Mr. Ahmad indicated that he borrowed money from his family members for the down payment, he was under no timetable to repay them. He did not consult a real estate agent or obtain an appraisal of the home. Indeed, Mr. Ahmad stated that Hamza chose the price. Mr. Ahmad did not provide any convincing evidence that financial pressure was the motivation for selling the house, or that it would have reduced in value by $65,000 since he bought it. In cross-examination, Mr. Ahmad admitted that he may have been selling the house as the “next level” of financial pressure he was placing on Ms. Abdulhadi (after removing her access to any funds), to do I am not sure what. If his motivation to sell it actually was his own financial pressure, one would think that Mr. Ahmad would have been more meticulous about its proper value. Notwithstanding that Mr. Ahmad choose to sell it for less, for the purposes of the NFP statement, I find that the value of the matrimonial home at the date of separation was $372,000.00. The value of the mortgage was $271,249.41.

Loan from Mr. Ahmad’s Father

[56] On his NFP statement, Mr. Ahmad has included under “Table 2: Value of Debts and Liabilities on Valuation Date” a loan of $12,080.49, which he says he owes his father. This amount is also included as a debt in Mr. Ahmad’s Financial Statement sworn on May 1, 2018.

[57] Mr. Ahmad testified that his family members gave him approximately $34,000 to put towards the purchase of the house. This accounts, in fact, for the $32,561.42 balance in his RBC joint account with Ms. Faraj at the date of marriage. As part of the purchase of 311 Langrell Crescent, which was a new build, Mr. Ahmad was required to provide three cheques to Minto as a deposit as follows;

• One dated June 25, 2011 for $18,790.00;
• One dated August 3, 2011 for $18,790.00; and,
• One dated September 21, 2011,

[58] Mr. Ahmad testified that he would have received money from his family in or about May of 2011, which was to ensure there was money in his account to cover the deposit cheques. Mr. Ahmad stated that he had saved about $10,000, and that his family members, being his parents and his two brothers, would have given him about $5000 each. When he sold 311 Langell Crescent, Mr. Ahmad says that he gave about $35,000 back to them, stating “I tried to distribute it evenly.” This is the $35,000 included to in Mr. Ahmad’s NFP under “Part 4(f): Money Owed to You” as “money distributed to family members.”

[59] Mr. Ahmad did not explain to the court exactly what the debt of $12,080.49 owing to his father represents. It may be the remainder of the approximately $34,000.00 Mr. Ahmad says family members gave to him, given that $5000.00 each only amounts to $20,000. It may be some portion of $50,000 Mr. Ahmad said his father gave to him prior to marriage. The only proof of any loan provided to the court was a promissory note from Mr. Ahmad to Mr. Mohammad F. Ahmad which purported to be dated and signed on May 16, 2011, but which Mr. Ahmad admitted to having drafted in 2014. Mr. Ahmad recognized that he could not rely on this document to support that he owed his father $50,000, which was what was declared in his Financial Statement sworn on July 13, 2015. For this reason, Mr. Ahmad claimed only a debt of $12,080.49 in his Financial Statement sworn on May 1, 2018. Beyond Mr. Ahmad stating that his father, and other family members had given him money, however, the court had no proof of a loan. Mr. Ahmad indicated that he pays his father what he can, when he can, and there is no fixed timetable to pay him back. Mr. Ahmad admitted in cross-examination, moreover, that he may not actually be expected to pay, or pay, all of the money back.

[60] It is not unusual for family members to assist a child or sibling in the purchase of a home. While there may be some internal understanding within the family as to whether the money provided is a gift or a loan, absent some reliable documentation confirming a loan, it is usually considered a gift. In this case, I don’t doubt that Mr. Ahmad’s family assisted him, but I have received no such reliable documentation upon which I can conclude that the money given by any of them was a loan. Mr. Ahmad will, therefore, not be able to claim $12,080.49 as a date of valuation debt on his NFP statement.

The Maher

[61] As I have indicated above, the parties attended a religious marriage ceremony in Bagdad, Iraq on October 22, 2011. On October 30, 2011, they attended before a court in Bagdad to conclude a legal marriage.

[62] Ms. Abdulhadi testified that she received a copy of an Arabic document on that date directly from the court which was not signed by anybody, but which was translated and relied upon for Mr. Ahmad’s application to sponsor her to come to Canada. That document, along with its English translation, was admitted into evidence as Exhibit #1 to the Trial. In the English translation, the document is entitled “Marriage Certificate”. It contains a “No. 7, Record No. 2315” identifier and states the following:

I, Mr. RAZAQ JABBAR ALWAN Judge of the Civil Status Court in Alkarkh, have recorded the following: Both Mr. ALI MOHAMMAD AHMAD and Miss NOOR HASAN ABDULHADI whose health and safety was approved by their medical reports submitted by them, attended before me, and after assuring their ID cards and showing their acceptance, the marriage certificate was concluded on an advanced dowery of (Ten million dinars)not received and a postponed dowry of (Fifteen million dinars), to be paid by the husband upon demand and affluence, the contract was concluded and registered on 30/11/2011.

[63] The translation then indicates that the document was signed by a “Bushra abduhameed and “Judge Razaq Jabbar Alwan”. It goes on to set out the particulars of the parties, including Mr. Ahmad’s Canadian passport number and Ms. Abdulhadi’s Iraqi ID number. It indicates that the document contains the “Seal of the Supreme Council of Judicature/Presidency of Federal Appeal Court/Alkark/Civil Status Court in Al-Karkh. Further, under the title of “Overleaf”, the translation states:

We ratify the credence of the issue of marriage contract No.:2315 record: 7 on 30/11/2011 from this court and we ratify the credence of the signature of the specialized officer Mr. Ibraheem.

[64] This document was in the parties’ possession and/or disclosed to Mr. Ahmad early in the proceedings. Mr. Ahmad took the position that it did not constitute a domestic contract pursuant to s. 55 of the Family Law Act, in that it was not signed by the parties. Mr. Ahmad’s position was that the Judge simply “recorded” the proceedings of the October 30, 2011, but that did not render it a valid contract under the law of Ontario.

[65] Upon learning of the position of Mr. Ahmad, which I understand happened at a settlement conference that took place in mid-May, only a few weeks before the commencement of the trial, Ms. Abdulhadi took steps to attempt to obtain a signed copy of the document. According to her testimony, immediately after the settlement conference, Ms. Abdulhadi contacted the Court Registry in Bagdad, and requested it be sent to her via “DHL”. Ms. Abdulhadi indicated she received the document on Saturday, May 26, 2018, and immediately sought for it to be translated. She was, therefore, only able to produce it to Mr. Ahmad at the commencement of trial.

[66] Two more copies of the Arabic document were entered as Exhibits in the trial. A second unsigned copy of the document with an English translation was admitted into Evidence as Exhibit # 5. In the English translation of this document, it is entitled “Marriage Contract”. It identifies the document at “Record No.: 7, No.: 9315, and states the following:

I, Judge of Personal Status Court in Karkh, Mr. Razzaq Jabbar Olwan, registered the following:

There appeared Mr. Ali Mohammad Fadel Ahmed and Miss. Noor Hasan Abdulhadi, who submitted two medical reports proving that they are healthy and free from diseases. I verified their identities and they have exchanged mutual offer and acceptance. Therefore, this marriage contract is made between them on an immediate paid/unpaid [with “unpaid” stuck through] dowry of (ten million Iraqi dinars) and a deferred dowry of (fifteen million Iraqi dinars), payable by the husband upon request and ability. The contract was accordingly made and registered on 30/10/2011.

[67] The translation then indicates that the document was stamped and signed by Judge Razzaq Jabbar Olwan. It also goes on to set out the particulars of the parties, including Mr. Ahmad’s Canadian passport number and Ms. Abdulhadi’s Iraqi ID number.

[68] Finally, a signed copy of the Arabic document with an English translation was provided by Ms. Abdulhadi, The English translation of this document contains the same identifying information of “Record No. 7, No.: 9315”, and the translation is identical to that in Exhibit #5, except that it contains the following above the title of “Marriage Contract”: “[Authentication of Supreme Judicial Council No. 830544 dated May 17, 2018]”, and prior to providing the particulars of the parties, it states: “Witness –[Illegible signature}” and “Witness – [Illegible signature]” and then “Judge Razzaq Jabbar Olwan [stamp and signature dated 30/11/2011]”. Immediately above the portion identifying the parties, this English translation says: “[Signature and stamp of one Hamzah Eyad Shehab dated May 17, 2018].” In the section entitled Personal Status Identity Data, the English translation states in the headings: “Husband [Illegible signature]” and “Wife [Illegible signature]”.

[69] Mr. Ahmad objected to the admissibility of this document based on its delayed disclosure, and Ms. Abdulhadi’s failure to comply with section 35 of the Ontario Evidence Act as it pertains to business records. Given the relevance of the document, notwithstanding its late production, I admitted it and permitted Ms. Abdulhadi to file an Amended Application to include her claim for the maher, and Mr. Ahmad to file an Amended Answer to dispute her claim for the maher. I also offered Mr. Ahmad an adjournment of the trial and costs thrown away in the event that he wished to contact the Court Registry in Bagdad for his own copy or to obtain his own translation of the document. Mr. Ahmad declined the offer.

[70] Ms. Abdulhadi’s evidence with respect to the October 30, 2011 court hearing in Bagdad was:

• She and Mr. Ahmad stood before the Judge;
• There were two witnesses, who were relatives;
• Her father was standing beside her;
• The Judge asked her name and she handed him her Iraqi ID;
• The Judge asked Mr. Ahmad his name and he handed the Judge his Canadian passport;
• The Judge asked them both if they agreed to marry and they said “yes”;
• The Judge asked if they agreed on the maher, the first installment and the delayed installment, and they said “yes”;
• The Judge asked how much and they said “10 million in advance and 15 million delayed”;
• The Judge asked the witnesses and her father if they witnessed the marriage contract and they said “yes”;
• Mr. Ahmad, she, the two witnesses and the Judge signed the marriage contract and he sealed it. According to Ms. Abdulhadi, this is the copy that stays with the Judge and gets registered.

[71] Mr. Ahmad’s position is that the “Marriage Contract” cannot be relied upon to be authentic, given both the existence of unsigned and signed versions, and given the differing translation of seemingly the same document. His evidence with respect to the Maher was as follows:

• Prior to him going to Iraq, there was a discussion of the maher by “Viber” with Ms. Abdulhadi’s mother. She asked for certain amount and Mr. Ahmad did not agree;
• There may have been further discussion of the maher at the religious ceremony on October 20, 2011, but he did not recall entering into any agreement;
• There was a possibility that the cleric performing the ceremony wrote up a contract and wrote “a number down”. If so, he did not see it, nor instruct anybody to agree to it on his behalf;
• At the October 30, 2011 court appearance, he recalled only being asked if was married and he said “no”. He did not recall being asked anything else;
• He did not recall signing any document on that date.

[72] Notwithstanding this evidence, Mr. Ahmad and his mother both testified that Mr. Ahmad paid the immediate dowry, by providing approximately $2000 cash in U.S. dollars and by paying for everything associated with the wedding, including the hall, Ms. Abdulhadi’s dress and by buying her some gold. Although Ms. Abdulhadi’s evidence was that Mr. Ahmad had never paid the immediate dowry, she provided no other suggestion as to whom may have paid for the wedding. Additionally, both Exhibit #’s 4 and 5 have the term “unpaid” stuck out, and if Ms. Abdulhadi seeks to rely on the signed “Marriage Contract”, she must do so in its entirety.

[73] Mr. Ahmad’s evidence with respect to the maher was inconsistent. Although he testified that he did not recall signing anything on October 30, 2011, when asked in cross-examination, he indicated that the signature on the document looked like his. Additionally, Mr. Ahmad stated at one point in his testimony: “I was told this was going to be “ink on paper” and I was not bound by the terms.” He also admitted in cross-examination that he may have not read the document thoroughly and that he may have signed it without knowing its full terms and conditions.

[74] Notwithstanding the differing versions of the translations between Exhibit #1 and Exhibit #’s 4 and 5, both parties have had the Arabic version (without signatures) from the outset. Mr. Ahmad indicated that he is fluent in Arabic, both written and verbal, as is Ms. Abdulhadi. Additionally, although Exhibit #1 was titled a “Marriage Certificate”, in the body of the document it is ratified as “marriage contract No.:2315 record: 7.” Based on the evidence before me, I find on a balance of probabilities that Mr. Ahmad and Ms. Abdulhadi entered into a marriage contract on October 30, 2011 which provided for an immediate dowry of ten million Iraqi dinars and a deferred dowry of fifteen million Iraqi dinars. Because it is in writing, witnessed and signed by the parties, I additionally find that it is a valid marriage contract pursuant to s. 55 of the Family Law Act. I also find on a balance of probabilities that Mr. Ahmad paid the immediate dowry.

[75] Ms.Abdulhadi testified that she asked for the payment of the maher shortly after commencing the proceedings, including at the first court date. Ms. Abdulhadi also referred to a letter from her counsel to Mr. Ahmad’s counsel dated August 13, 2015, [10] which enclosed a copy of Ms. Abdulhadi’s Form 13A: Certificate of Financial Disclosure. Item #2 on the list of disclosure provided is: “Marriage Contract [which confirms that the Respondent is pay [sic] equivalent to a sum of $150,000.00].” Although Ms. Abdulhadi did not explain the discrepancy between stating the maher was worth $150,000.00 and the $26,500.00 (or 25 million Iraqi dinars) she is now seeking, it is her position that the request for payment was made as early as at least August of 2015. In his testimony, Mr. Ahmad acknowledged that Ms. Abdulhadi had at some point post-separation asked for the payment of the maher. I find that Ms. Abdulhadi did request payment of the maher after separation.

[76] Because I have found that the immediate dowry of 10 million Iraqi dinars was paid by Mr. Ahmad, the balance owing is the deferred dowry of 15 million dinars. Ms. Abdulhadi only provided the court with a $26,500.00 Canadian dollar equivalency of 25 million dinars, and no evidence with respect to the value of 15 million dinars at the time of the request. I have done a currency calculation of the exchange of 15 million dinars to Canadian dollars as of August 13, 2015 on two currency calculator sites. The first calculated an exchange to $16,769.79 and the second calculated an exchange of $16,138.00. The average of the two is $16,453.89. I find that Mr. Ahmad shall, thus, owe Ms. Abdulhadi $16,453.89 in deferred dowry from the maher.

[77] Current case law, including the Ontario Court of Appeal case of Bakhshi v. Hosseinzadeh, 2017 ONCA 838, has found that there is no basis to exclude the maher from the calculations in the NFP. In that case, the Court included the amount due under the marriage contract as an asset for the wife and a liability of the husband. [11]

[78] Accordingly, based on the values agreed to by the parties and my finding of fact, I calculate the net family property as follows:

Assets on Valuation Date

	Wife	Husband
311 Langell Crescent		$372,000.00
Household Items and Goods		$850.00
CIBC Account		$1,431.60
RBC Account (joint account with mother)		$1,716.90
CAF Pension		$14,761.68
Maher (account receivable)	$16,453.89
TOTAL	$16,453.89	$390,760.18

Debts and Liabilities on Valuation Date

	Wife	Husband
Mortgage - 311 Langell Crescent		$271,249.41
CIBC Visa		$1,391.36
Maher		$16,453.89
TOTAL	$0.00	$289,094.66

Assets on Marriage Date

	Wife	Husband
RBC Account		$32,561.42
TOTAL	$0.00	$32,561.42

Debts and Liabilities on Marriage Date

	Wife	Husband
TOTAL	$0.00	$0.00

Net Value of Property on Valuation Date (Assets – Debts and Liabilities)

	Wife	Husband
	$16,453.89	$101,665.52

Net Value of Property on Marriage Date (Assets – Debts and Liabilities)

	Wife	Husband
	$0.00	$32,561.42

Net Family Property (NFP) (Net Value of Property on Valuation Date – Net Value of Property on Marriage Date)

	Wife	Husband
	$16,453.89	$69,104.10

Difference Between NFP

	$52,650.21

Equalization Payment

	$26,325.10

[79] Mr. Ahmad seeks an unequal division of the NFP pursuant to subsection 5(6)(e) of the Family Law Act, which provides:

5(6) VARIATION OF SHARE – The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(e) The fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

[80] “Cohabit” is defined in section 1 of the Act to mean “to live together in a conjugal relationship, whether within or outside marriage.” In Pope v. Pope, the Ontario Court of Appeal has found that the eligibility factor of being married is not “determinative of the meaning to be given to “cohabitation” in s.5(6)(e).” In that case, the court saw “no reason not to import the statutory definition (s.1(1)) of “cohabit into s.5(6)(e).”

[81] I find that Mr. Ahmad and Ms. Abdulhadi cohabited, within the meaning adopted by the Ontario Court of Appeal, from September 9, 2013 until March 2, 2015, or slightly less than 18 months. They, therefore, fall easily within the ambit of section 5(6)(e) of the Act.

[82] Mr. Ahmad relies on two cases in support of his contention that an equal division of the NFP in this case would be unconscionable, Gomez v. McHale, 2016 ONCA 318 and Millward v. Millward. In the former, the Ontario Court of Appeal upheld an unequal division that resulted in the wife receiving an equalization payment of $60,000.00 (rather than $268,000.00) where the parties cohabited for three years and five months. That case, however, is more about the propriety of trial judge’s method of arriving at an amount (mathematical formula versus reasonable discretion) than it is about the determination of unconscionably. In it, there is, nevertheless reference to the factors the trial judge took into consideration. At paragraph 14, the trial judge is quoted as saying:

I am not persuaded that the mathematical formula proposed by the applicant/wife is appropriate in the circumstances of this case. The home is the most significant asset and it was brought into the marriage by the husband. The husband made significant improvements to the home, including during the period of cohabitation and the marriage. The wife made no contributions to the maintenance or improvements to the home. She did contribute to the purchase of groceries and she attended to the needs of her daughter. [15]

[83] In his decision in Millward, Justice Fedak of the Ontario Superior Court of Justice reviewed a number of cases of short marriages, predominantly from British Columbia, and came to the conclusion that it would be “unconscionable and unfair to allow for any equalization payment” based on a number of factors, including, inter alia, that the marriage only lasted eleven and a half months, the house was owned by the husband prior to marriage, the wife’s debts were significantly reduced after the marriage, the upkeep and maintenance of the home was done exclusively by the husband during the marriage, and the court ordered spousal and child support to be paid by the husband for one year.

[84] Gomez and Millward are both distinct from the case at bar; here, the matrimonial home was purchased, albeit by Mr. Ahmad, during the marriage as opposed to having been brought into the marriage. Nevertheless, Justice Fedak’s review of Mclean v. McLean, Abrahmian v. Abrahamian, [1992] B.C.J. No. 1512 (S.C.) and Sidhu v. Sidhu, [1994] B. C.J. No 1924 (S.C) in Millward reveals that the length of cohabitation is a very significant factor in the unconscionability analysis.

[85] With respect to the issue of unconscionability, the Ontario Court of Appeal has said in the case of Serra v. Serra, 2009 ONCA 105, at paragraph 47:

[47] In this regard, the threshold of “unconscionability” under s. 5 (6) is exceptionally high. The jurisprudence is clear that circumstances which are “unfair”, “harsh” or “unjust” alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must “shock the conscience of the court”.

[86] Blair, J.A., went on at paragraphs 52 and 53 to provide the rationale for the above:

[52] The rationale behind the statutory direction in s. 5 of the Family Law Act that net family property is to be shared equally – with the rare exception provided in s. 5(6) – is set out in s. 5(7) of the Act:

5(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). (Emphasis added)

[53] This rationale is affirmed in the Preamble of the Act, which states:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within the marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children. (Emphasis added)

[87] At paragraph 57, Blair, J. A. noted: “Judicial discretion with respect to equalization payments is therefore severely restricted, by statutory design, but it is not eliminated altogether since there is discretion to order an unequal payment where “the court is of the opinion that equalizing the net family properties would be unconscionable”.

[88] Would it be unconscionable to order an equal division in the case at bar? The Cambridge Dictionary defines unconscionable as “morally unacceptable”; the Oxford Dictionary defines it as “not right or reasonable”; and the Merriam-Webster Dictionary defines it at “shockingly unfair or unjust”.

[89] Mr. Ahmad went to Iraq to marry Ms. Abdulhadi in October of 2011. He knew of her educational background and her unilingual capacity. He expected or must have expected to provide for her upon her immigration to Canada. He bought a house, which closed after the marriage, in anticipation of her coming. He brought her precisely to share in what he had, and to start a family. Everything Mr. Ahmad did was, in fact, in keeping with the stated objectives of the Preamble of the Family Law Act, - to create a family unit and partnership with Ms. Abdulhadi.

[90] Having said that, it was Mr. Ahmad who exclusively contributed to the acquisition and maintenance of the matrimonial home, the parties’ only significant asset. Ms. Abdulhadi did contribute to her and Mehdi’s needs through her access to the Child Tax Benefit, that is until Mr. Ahmad unilaterally terminated that access. She also did household chores and duties to the point of her departure, completely unaware that Mr. Ahmad had in the interim sold the house out from under her. Ms. Abdulhadi also contributed to the family through her primary care of Medhi during the marriage.

[91] Given the above, including that I have ordered at least four more years of spousal support, and that Mr. Ahmad and Ms. Abdulhadi only cohabitated for 18 months, I find that Mr. Ahmad has met the “exceptionally high” threshold that an equal distribution of the net family properties would be unconscionable. Having so found, the Court of Appeal dictates in Serra that I determine an amount that is “fair, just and equitable”. Ms. Abdulhadi’s contribution must be acknowledged. I have found that her entitlement to an equalization payment is $26,325.10. The parties cohabited for 18 months or approximately one third of the time period referred to in s. 5(6)(e) of the FLA. Ms. Abdulhadi shall, therefore, received an equalization payment of $8775.00.

Life Insurance

[92] There is one remaining issue in that Ms. Abdulhadi requested in her draft order that Mr. Ahmad be required to obtain and maintain a life insurance policy to secure child and spousal support and that she be designated at the irrevocable beneficiary of such policy. Ms. Abdulhadi seeks an order that such policy be in the sum of $242,936.00. Section 34(1)(l) of the Family Law Act authorizes the court to make an order “requiring that a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably.” As Shelston J. has pointed out in Kirvan v. Kirvan, 2016 ONSC 7712 at paragraph 235:

[235] In Katz v. Katz, the Court of Appeal canvassed the issue of life insurance securing support obligations and provided the following principles:

(a) The Divorce Act does not have a provision like s. 34(1)(k) of the Family Law Act, which permits a court to order a spouse to obtain insurance to secure payment of support following the payor’s death; (b) Despite not having the specific provisions, the Court is given broad discretion to impose terms, conditions, and restrictions in connection with an order for child or spousal support, including the power to order a spouse to obtain insurance to secure the payment, to be binding on the payor’s estate; and (c) The factors to be considered in determining the quantum of the life insurance, once the issue of insurability and cost of the insurance is resolved, are as follows: the amount of life insurance cannot exceed the amount of support payable over the duration of the support order; the amount of insurance to be maintained should decline over time as the amount of spousal support payable will diminish over the duration of the award; the obligation to maintain insurance should end when the support obligation ends; and the court should first order that the support obligation is binding on the payor’s estate.

[93] No evidence was led as to whether Mr. Ahmad currently has life insurance coverage, nor what such does or would cost. Nevertheless, Mr. Ahmad is a 35 year old male, employed full time and in seemingly good health. I have no evidence to suggest that “insurability” or the cost of insurance would be an issue. I am of the view, in keeping with Kirvan and Katz, that this court has “broad discretion” to order a spouse to obtain insurance to secure support, to be binding on the payor’s estate. The factors I consider are:

(a) Under the Family Law Act, I have jurisdiction to order the respondent to obtain and maintain life insurance to secure his payment of a support obligation; (b) Under the Family Law Act, I have jurisdiction to order the support obligation to be binding on the respondent’s estate; (c) I have ordered the Respondent to pay child support in the amount of $633 per month; and, (d) I have ordered the respondent to pay to the applicant spousal support in the amount of $1,295.00 per month, not reviewable before 2022.

[94] Mr. Ahmad will therefore be required to obtain and maintain a life insurance policy in the amount of $150,000.00 with Ms. Abdulhadi designated as the irrevocable beneficiary until his support obligation is satisfied.

Order

[95] For all of the reasons given above, there shall be a final order as follows:

1. The Respondent shall pay to the Applicant an equalization payment of $8,775.00;
2. The Respondent shall pay to the Applicant $16,453.89;
3. The Applicant and the Respondent shall have joint custody of the child of the marriage, Mehdi Ahmad, born on August 1, 2014;
4. The Applicant and the Respondent shall consult on any major decisions regarding the child prior to the decision being made. Consultation shall be comprised of the parent wanting to take a decision communicating in writing with the other parent, who shall have seven days to respond in writing. The parent seeking to make the decision shall take into consideration the views of the other parent. If the parent being consulted fails to respond to the request within seven days, no further request for input is required. The parents shall then make the decision jointly;
5. In the event that the Applicant and the Respondent are not able to agree on a major decision affecting the children, after appropriate consultation, and taking into consideration the input of the Respondent, the Applicant shall have sole final decision making authority;
6. The Applicant shall have primary residence of Mehdi;
7. The Respondent shall have parenting time with Mehdi every second weekend from Friday after daycare or school to Sunday evening at 6:00 p.m.;
8. The parties shall not speak ill of the other to or in the presence of the child;
9. The Respondent shall ensure that his family members do not speak ill of the Applicant to or in the presence of the child;
10. All other parenting time, including holiday parenting shall be arranged by the parties;
11. The Applicant shall not obtain travel documents for Mehdi without the prior written consent of the Respondent, or a court order obtained on notice;
12. Neither party shall be permitted to travel outside of Canada with Mehdi without the prior written consent of the other, or a court order obtained on notice;
13. Commencing January 1, 2017, and every month thereafter, the Respondent shall pay child support to the Applicant for the support Mehdi Ahmad, born on August 1, 2014, of $633.00 per month, being the Federal Child Support Guidelines table amount for one child on an annual income of $67,896.00;
14. The necessary adjustments shall be done by FRO, and the Respondent shall receive credit for payments made pursuant to the order of Justice Corthorn dated December 24, 2015;
15. The parties shall exchange their Notices of Assessments annually by June 30 and child support shall be adjusted accordingly as of July 1 of every year;
16. Commencing January 1, 2017, the parties shall share agreed-upon special and extraordinary expenses for the child in proportion to their respective incomes in accordance with section 7 of the Federal Child Support Guidelines;
17. The Respondent shall designate Mehdi as the beneficiary of his extended health coverage available through his employer so long as Mehdi is entitled to support and the benefit is available through the Respondent’s employer;
18. Commencing June 1, 2018, and every month thereafter, the Respondent shall pay spousal support to the Applicant of $1295 per month;
19. Spousal support may be varied at any time upon a material change in circumstances but shall not be reviewed, absent a material change, before June of 2022;
20. The Respondent shall be required to maintain a life insurance policy in the amount of $150,000.00 designating the Applicant as the irrevocable beneficiary, and such policy is to be maintained until such time as the requirement to pay spousal and/or child support is terminated; and,
21. In the event that the policy is not in place, lapsed or no longer in force and effect as per this order at the time of the death of the Respondent, any and all support outstanding pursuant to this order shall constitute the first charge in favour of the Applicant against the estate of the Respondent.
22. Unless the support order is withdrawn from the Family Responsibility Office, is shall be enforced by the Director and amounts owning under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order is issued.
23. This order bears interest at the rate of percent per annum.

Costs

[96] If the parties cannot agree on liability for the costs of the trial, written submissions not exceeding three pages together with a bill of costs and offers to settle can be made to me. Ms. Abdulhadi’s costs submission are to be provided by February 4, 2019. Mr. Ahmad shall then have 10 days to provide his response, followed by 5 days for Ms. Abdulhadi’s reply, if any, after which I will make an order.

Madam Justice Tracy Engelking

Released: January 9, 2019