COURT FILE NO.: FC-15-2819

DATE: 2019/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amina Aden

Applicant

– and –

Abdirashid Mohamud

Respondent

Stephanie Smith, Counsel for the Applicant

Self-represented

HEARD: May 10, 13, 14 and 15, 2019

REASONS FOR JUDGMENT

Justice Engelking

[1] Ms. Aden and Mr. Mohamud were married under Sharia Law on March 14, 2007. They separated on July 28, 2015 and were divorced, also by virtue of Sharia Law on September 8, 2015. The essential question for this trial is whether Ms. Aden and Mr. Mohamud entered into a valid marriage recognized by the law of Ontario.

[2] Ms. Aden has brought an application (originally in December of 2015 and amended in November of 2016) in which she seeks a declaration of the validity of her marriage, equalization of the net family properties in the event that it is valid, a finding that Mr. Mohamud has been unjustly enriched if it is not, and on-going and retroactive child and spousal support on an imputed income for Mr. Mohamud. Custody and access issues have been previously settled, with Ms. Aden having custody and primary residence of the parties’ child, Sara, and Mr. Mohamud having access to her every second weekend.

[3] Mr. Mohamud’s position is that he and Ms. Aden never entered into a legally recognized marriage and she is not entitled to an equalization of the parties’ net family property. His further position is that he has not been unjustly enriched as a result of their relationship. Indeed, it is his position that Ms. Aden was advantaged by the relationship. Mr. Mohamud is prepared to pay child support on his declared Canada Revenue Agency (“CRA”) income but is of the view that Ms. Aden in not entitled to spousal support. If she is entitled, his position is that any support payable by him should be on his declared income and minimal in both quantum and duration.

[4] The issues are, therefore, as follows:

1. Is the parties’ marriage of March 14, 2007 valid pursuant to the law of Ontario?

2. If so, what equalization payment, if any, is owing?

3. If not, has Mr. Mohamud been unjustly enriched as a result of the relationship?

4. If so, what monetary award is payable to Ms. Aden?

5. Should income additional to Mr. Mohamud’s CRA declared income be imputed to him for support purposes?

6. If so, at what amount should on-going and retroactive child support and section 7 expenses be set?

7. Is Ms. Aden entitled to spousal support?

8. If so, at what quantum and for what duration should it be payable by Mr. Mohamud?

[5] For the reasons that follow, I find that the parties’ marriage of March 14, 2007 is not a valid marriage according to the law of Ontario and they are, therefore, not “spouses” for the purposes of the Family Law Act (“FLA”). I find additionally, that Mr. Mohamud has been unjustly enriched as a result of his relationship with Ms. Aden, and that Ms. Aden is entitled to a payment of $26,785. Ms. Aden is entitled to spousal support on a compensatory and non-compensatory basis. Income shall be imputed to Mr. Mohamud from 2015 to present, and child and spousal support will be payable in accordance with those imputed incomes as set out below.

Issue #1 – Is the parties’ marriage of March 14, 2007 a valid marriage according to the law of Ontario?

Background Facts

[6] Ms. Aden is originally from Somalia. She was married to Mohamed Jama, also by Sharia Law, in 1986. Two daughters were born of her relationship with Mr. Jama, Saafia (now 29) and Suad (now 30). Ms. Aden and her two children came to Canada in October of 1989. Mr. Jama joined them in 1991. Ms. Aden and Mr. Jama separated in 1996 and were divorced by Sharia Law in 2001. While her daughters were young, Ms. Aden cared for them, attended English as a Second Language (“ESL”) school and worked on finishing high school. In 2002 she qualified to become a Personal Support Worker (“PSW”) and started working fulltime in that field for GM Health Care during the same year. Ms. Aden indicated that her income averaged around $28,000 as a PSW.

[7] Mr. Mohamud is also originally from Somalia, having been born and raised in Mogadishu. He married his then wife, Sofia, on December 18, 1988. The Mohamuds came to Canada in November of 1989. Four children were born of their marriage, Bashir, Abdulahi, Abduramen and Salah, all of whom are also now adults. Mr. and Mrs. Mohamud separated in June of 1998 and were divorced by Divorce Order of Justice Ratushny dated November 24, 2003. Mr. Mohamud has been working for OC Transpo since 1998, first as a bus driver until 2008 and from 2008 onwards as a dispatcher from 4:00 pm to 12:00 midnight. Mr. Mohamud’s annual income with OC Transpo has averaged between approximately $60,000 and $80,000.

[8] The parties met in late 2006 and decided to marry within 3 months. They married according to Sharia Law on March 14, 2007. Ms. Aden’s evidence was that she considered their marriage to be a legal one and that she had no knowledge that it had not been registered with the Province of Ontario until the parties were in litigation. According to Ms. Aden, the parties had a wedding ceremony which was attended by approximately 35 to 40 guests. Ms. Aden wore a traditional dress and Mr. Mohamud wore a regular western suit. The event took place at two different locations, one at a girlfriend’s home which the women attended and one at her home, which the men attended. She was present for part of the event where the men attended. The ceremony was presided over by a “Muslim Sheik (Clergyman)”, as he is described on the Certificate of Marriage[^1], Mohamed Hussein Hadi. The certificate provides that it is to certify that on March 14, 2007, the marriage of Abdirashid Mohamud with Amina Abdi Ali Aden “has been solemnize [sic] in accordance with the requirements of the Islamic Law (Shari’ah) as enshrined in Qur’an and the Sunnah of the Prophet, peace be on him, in the presence of the Marriage Officer and Witnesses signed below.” A dowry of $5,000 is noted and two witnesses are listed, Jama Abdi Rageh and Sh. Abdirahman. Neither the witnesses nor Mr. Hadi were called to testify by either of the parties.

[9] Mr. Mohamud’s evidence was that the marriage was not a legal one according to the law of Ontario, nor was it ever intended to be by the parties. He testified that only about 10 to 15 members of their families were present. No marriage licence was obtained, and the marriage was never registered with the Province of Ontario pursuant to the Vital Statistics Act. Rather, it was his evidence that the parties had made an agreement that the marriage would be according to Islamic tradition only. Mr. Mohamud testified that he agreed to pay Ms. Aden originally $1,000 per month for her care of the home, which later was increased to $1,200 per month and then $1,500 per month. There was no dispute from Ms. Aden that this was the case, or that Mr. Mohamud also paid for all the expenses of the household, such as rent, hydro, gas, internet, groceries and insurance, though she did indicate that she bought groceries and gas for her car from time to time and paid for part of her phone.

[10] The parties did take up residence together in the home of Ms. Aden after the marriage, along with Ms. Aden’s adult daughters, and presented themselves to the community as a married couple. On May 17, 2008, Sara Abdirashid Mohamud was born of the relationship. Both parties signed the Statement of Live Birth and the marital status of the mother was marked with an “x” in the box which indicated “married”. When Mr. Mohamud was asked about this, he indicated that he did consider himself married according to Sharia Law, and that it would be a sin before Allah to live with a woman and have a child if he was not married, something which he would never do.

[11] In the Income Tax Returns which Mr. Mohamud filed for the years 2008 through 2014, his marital status was noted as “married” and “Aden, Amina” was noted as his spouse on his Tax Return Summaries for 2008 through 2011.[^2] When asked, Mr. Mohamud stated that he did this “to save money”. He also indicated that it would never occur to him to state on a legal document that he was in a common law relationship, as he was married according to his religion.

[12] On the issue of the nature of his relationship with Ms. Aden, Mr. Mohamud testified that she accepted him having a second wife. Ms. Aden did not agree to remembering any conversations they had about a second (or indeed third) wife for Mr. Mohamud during cross-examination. In particular, she did not remember saying: “You can marry any other woman, but not your ex-wife”. However, Ms. Aden did indicate that Mr. Mohamud advised her on a Friday that he wanted to reconcile with his former wife and that they needed to discuss it. His intention was to do the officiation of the marriage on the following Monday. On September 8, 2014, Mr. Mohamud married Sofia again, which marriage was registered in Ontario on October 10, 2014. On the following Thursday, Ms. Aden’s uncle, who had been a witness at her marriage ceremony with Mr. Mohamud, met with Ms. Aden, her aunt, Mr. Mohamud and his friend to discuss and “mediate” the situation. Ms. Aden’s testimony in respect of this meeting was that Mr. Mohamud acknowledged that he was legally married to her, that she was registered on his benefits at work and that she had nothing to worry about. Ms. Aden indicated in cross-examination that: “Yes, for the sake of [their] daughter, I agreed after mediation to one-night alternating.” The proposal to which she agreed, was that Mr. Mohamud would spend alternating nights at the home of each of Ms. Aden and Ms. Mohamud. Mr. Mohamud testified that he was alternating homes each night and that he had a blue lunch box from Ms. Aden’s home and a red one from Ms. Mohamud’s home. Neither Ms. Aden nor Mr. Mohamud produced Ms. Aden’s uncle or aunt or Mr. Mohamud’s friend to provide evidence as to what transpired at the mediation.

[13] On July 12, 2015, Ms. Mohamud gave birth to Fatima Mohamud. Mr. Mohamud took a paternity leave of nine months from OC Transpo after her birth.

[14] Mr. Mohamud nevertheless continued in the alternating night schedule and to pay the expenses for the home he shared with Ms. Aden. Ms. Aden testified that she found out in or about June of 2015 that Mr. Mohamud had removed her name from his benefits plan with OC Transpo and replaced it with that of Sofia Mohamud. She stated that Mr. Mohamud broke his agreement with her. This upset her greatly, as she considered herself to be Mr. Mohamud’s “first wife” and Ms. Mohamud to be his “second wife”.

[15] This evening about arrangement continued until July 28, 2015, on which date Mr. Mohamud alleges that Ms. Aden physically assaulted him. He thereafter ceased to attend her home, and, as is indicated above, he sought and obtained a divorce from her by Sharia Law on September 8, 2015.

Analysis

[16] Section 31 of the Marriage Act[^3], which is the saving provision to deal with circumstances of non or imperfect compliance with Section 4 of the Act[^4], provides:

31. If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

[17] In the case of Isse v. Said, 2012 ONSC 1829, the court thoroughly canvassed the issue of the validity of a marriage for the purposes of divorce and property considerations. At paragraph 16, Justice Broad analysed Section 31 of the Marriage Act to include the following four necessary elements:

1. The marriage must have been solemnized in good faith;

2. The marriage must have been intended to be in compliance with the Marriage Act;

3. Neither party was under a legal disqualification to contract marriage; and,

4. The parties must have lived together and cohabited as a married couple after solemnization.

[18] In this case, elements 1, 2 and 4 are undisputedly fulfilled. The parties solemnized their marriage in good faith, both were previously divorced and under no legal disqualification to contract marriage and they lived together as a married couple post March 14, 2007. The outstanding question is whether their marriage was intended to be in compliance with the Marriage Act.

[19] Ms. Aden argues that it was. She testified that she always assumed that the marriage certificate was registered, and that she only discovered in the litigation that it was not. She also relies on Mr. Mohamud having signed Sara’s birth certificate, which noted the mother of the child to be married, and on Mr. Mohamud having identified himself as “married” on his income tax returns over the life of the marriage. She argues that they celebrated the marriage with community members, travelled together, had a child together and held themselves out as husband and wife.

[20] Mr. Mohamud, on the other hand, testified that he and Ms. Aden had an understanding from the beginning that they were, in fact, purposefully not intending their marriage to be in compliance with Ontario law. Mr. Mohamud argued that both had the experience of being married and divorced previously (Ms. Aden pursuant only to Sharia). They knew exactly what was required to make the marriage comply with Canadian law, and they did not do it. He very much considered himself married, but pursuant only to Islamic Sharia Law. He identified himself as married on legal and other documents for this reason. He does not dispute that he was married; he does, however, dispute that it is according to Ontario law.

[21] In Isse, Broad J., referring to the case of Alspector v. Alspector 1957 93 (ON CA), [1957] O.R. 454, stated at paragraph 24 that Ontario Court of Appeal considered the question of whether the intention to comply must be by both parties or if it was enough that one of the parties had the required intention. He quoted Roach J.A. at paragraph 47 of Alspector to say:

I cannot conceive a case in which if both of the parties acted in good faith one of them could be held not to have intended the marriage ceremony to be in compliance with the law of the Province…moreover, if knowing of such non-compliance, he intended the ceremony to be a nullity, the law will not permit him in a subsequent action to plead his own fraud upon the bride in order to have the ceremony declared a nullity.

[22] In this case, Mr. Mohamud is not “intending to plead his own fraud on the bride.” It is his position that both he and Ms. Aden had the intention that the marriage ceremony would not be in compliance. While Ms. Aden disputed this at the time of the trial, suggesting that she always “assumed” her marriage to be legal, her agreement to live as the first (or even second) wife of Mr. Mohamud belies that suggestion. Had Ms. Aden truly believed that she was married according to the law of Ontario, her marriage would have ended in September of 2014 when Mr. Mohamud informed her that he wished to reconcile with his former wife. It did not. In fact, by mediated agreement, it continued on a night about schedule for almost another year (something which could not have happened pursuant to the law of Ontario), and only ended after Ms. Aden discovered that Mr. Mohamud changed the designation on his benefits plan.

[23] I consequently find that Mr. Mohamud and Ms. Aden’s marriage is deemed not to be a valid marriage pursuant to Section 31 of the Marriage Act, and therefore, the parties are not “spouses” for the purposes of the equalization of the net family property pursuant to the FLA. Having decided thus, it is unnecessary to deal with Issue #2 identified above.

Issue #3 – Was Mr. Mohamud Unjustly Enriched by the Relationship?

Background Facts

[24] As I have indicated above, Mr. Mohamud and Ms. Aden married on March 14, 2007. At the time of the marriage, both were employed fulltime, Mr. Mohamud with OC Transpo as a driver and Ms. Aden as a PSW with GM Heath Care. Ms. Aden’s two daughters, who around 17 and 18 at the time, lived with her, and Mr. Mohamud was paying child support to Ms. Mohamud for his four boys. Ms. Aden’s apartment had been subsidized, but after the marriage it changed to market rent. Mr. Mohamud assumed responsibility for the payment of all of the expenses of the family. He also provided Ms. Aden with $1,000 per month until sometime in 2009, when it increased to $1,200 per month and then to $1,500 per month in 2012. Ms. Aden did not dispute that he paid her those amounts, but her position in cross-examination was that it was those funds, or some of them, that were put towards household expenses. This was inconsistent with her testimony in chief, where she stated that Mr. Mohamud paid for everything, including rent and all household expenses. Mr. Mohamud did pay the rent. A review of his bank statements also reveals that he regularly paid insurance through Manulife, Enbridge Gas, Hydro Ottawa, “Teksavvy”, which I assume is an internet provider, and Telus Mobility. Mr. Mohamud also paid Ms. Aden the $5,000 dowry identified in the Marriage Certificate.

[25] Ms. Aden continued to work until she was approximately four months pregnant with Sara, who was born on May 17, 2008. Ms. Aden remained at home and cared for Sara fulltime thereafter. She indicated that Mr. Mohamud did not ask her to do so, but also did not object that she did. Mr. Mohamud testified that he took an eight-month paternity leave when Sara was born and that he spent time with and cared for her. Ms. Aden’s evidence was that while Mr. Mohamud did take a paternity leave, he spent it either driving taxi or working for his travel business (about which I will speak more later), and she still cared fulltime for Sara.

[26] Mr. Mohamud’s testimony was that he believed (and hoped) that Ms. Aden would return to work as a PSW once Sara started Kindergarten, but she did not do so. Ms. Aden’s only response when questioned about this was that she would have returned to work if Mr. Mohamud would have been willing to pay for daycare for Sara. Mr. Mohamud provided no testimony that he was unwilling to pay for daycare, nor was he questioned on this.

[27] Ms. Aden provided no evidence of any intention or effort to seek either part or fulltime employment as a PSW once Sara went to school. She did, however, start to work part-time at Sara’s school in 2015 with the Ottawa-Carleton District School Board (“OCDSB”). She readied the classroom, took the children outside and supervised them over lunch. She worked approximately four hours a day, five days a week for $15.00 to $16.00 per hour. Sometimes she could work a few extra hours, including over March break or in summer camps. In January of 2019, Ms. Aden returned to school, attending Algonquin College in an Early Childhood Education (“ECE”) program, which she expects to complete by April of 2020. Ms. Aden testified that her return to school was delayed as a result of a criminal charge of assault having been laid against her as a result of a complaint filed by Mr. Mohamud in January or February of 2016 in relation to the July 28, 2015. She indicated that a criminal record check was required as part of her enrollment. Ms. Aden was acquitted of that charge by order of Justice P.K. Doody dated May 10, 2018. It is her hope that with a diploma in ECE, she will be able to secure fulltime employment with the OCDSB, for whom she has worked part-time since 2015.

[28] Ms. Aden’s evidence with respect to the parties’ roles during the relationship was that she was responsible for the care of the home, including cooking and cleaning, and for the care of Sara. Mr. Mohamud’s role was to be the breadwinner for the family. Ms. Aden testified that Mr. Mohamud worked all the time, including working extensive overtime hours for OC Transpo. Ms. Aden indicated that Mr. Mohamud would work 80 to 100 hours over a two-week period after he became a dispatcher with a 4:00 pm to midnight shift. Mr. Mohamud would also frequently travel, accompanying people to do the Hajj or Umra, Muslim pilgrimages.

[29] Mr. Mohamud did not dispute working overtime, but his evidence was that he would do so to bank three extra weeks of vacation each year, which could be used, along with four he was entitled to, to accompany people to do the Hajj or Umbra. He indicated, however, that he participated in the care of Sara when he was home and that he would sometimes cook. Ms. Aden’s only recollection of Mr. Mohamud cooking was infrequently making French Toast.

[30] Ms. Aden’s evidence was that the parties were very comfortable, and that Mr. Mohamud was making good money, both at OC Transpo and though his travel business. Her position is that her taking on the primary caregiving role of Sara and maintaining the family home permitted Mr. Mohamud to work long hours and travel, and to unfairly amass savings in the form of his OC Transpo pension over the life of the marriage. It is her position that Mr. Mohamud was unjustly enriched, and that one half of the pension should belong to her through a constructive trust.

[31] Mr. Mohamud’s evidence was that Ms. Aden benefitted from the relationship, in that he took on the entire responsibility of financially supporting the family, including Ms. Aden’s adult daughters to a certain extent. Mr. Mohamud’s further position is that Ms. Aden simply chose not to return to work (which fact was not controverted by her), even after Sara commenced school, a choice he did not really understand. From his perspective, Ms. Aden did not do anything to allow him to amass his pension. Ms. Aden did not move to follow him somewhere or lose a job or seniority for his sake. Mr. Mohamud had worked for OC Transpo since 1998 and he simply continued to do so. His position is that he would have continued to accrue his pension at the same rate that he did between March of 2007 and July of 2015, whether he was coupled with Ms. Aden or not, or whether she stayed home with Sara or not.

Analysis

[32] The Supreme Court of Canada has found in Kerr v. Baranow, 2011 SCC 10, 2011 CarswellBC 240, that: “The law of unjust enrichment has been the primary vehicle to address claims of inequitable distribution of assets on the breakdown of a domestic relationship.”[^5] At paragraph 3 of Kerr, Justice Cromwell indicated: “In order to successfully prove a claim for unjust enrichment, the claimant must show that the defendant has been enriched, the claimant suffered a corresponding detriment, and there is no “juristic reason” for the enrichment.”

(a) Enrichment

[33] With respect to enrichment, at paragraph 38, Cromwell, J. stated:

For the first requirement - enrichment – the plaintiff must show that he or she gave something to the defendant which the defendant received and retained. The benefit need not be retained permanently, but there must be a benefit which has enriched the defendant and which can be restored to the plaintiff in specie or by money. Moreover, the benefit must be tangible. It may be positive or negative, the latter in the sense that the benefit conferred on the defendant spares him or her an expense he or she would have had to undertake (Peel, at pp. 788 and 790; Garland, at paras. 31 and 37).

[34] Ms. Aden relies on the cases of Bigelow v. Bigelow, 1995 O.J. No. 2395 and Cloutier v. Fancis, 2011 ONSC to support her position. In Bigelow, the wife was successful in her constructive trust claim of 50% of her husband’s pension based on unjust enrichment because of the housekeeping and child care services she provided during a period of pre-marriage cohabitation. The court found that the wife’s contribution would have assisted the husband in four ways: 1) by permitting the husband to work outside the home so that he could support the family financially and acquire the household and other goods which make up his net property at the time of marriage; 2) by permitting the husband to accept service postings required in his employment (the family had moved four times over the course of the relationship to advance his education and/or career); 3) by permitting the husband to further his studies which undoubtedly would have some benefit to his career advancement; and 4) by the husband not having to bear the difficult and time consuming role of a single parent (he had two or sometimes three children of a previous relationship living with him, in addition to the child the parties had together).[^6] The court found that Ms. Bigelow suffered a corresponding detriment by “providing housekeeping and child care services to the respondent without compensation”.[^7]

[35] In Cloutier, the court found that the husband in an 18-year common law relationship was unjustly enriched and the wife was correspondingly deprived by the wife providing substantial childcare and household services and giving up her employment and the accumulation of a pension to move several times for the husband’s employment.

[36] At paragraph 42 of Kerr, Justice Cromwell noted that domestic services “constitute an enrichment because such services are of great value to the family and the other spouse”. While Ms. Aden did not give up a job or the accumulation of a pension in order to move for Mr. Mohamud’s career, she did do so to assume primary responsibility for the care of the home and of Sara, which permitted Mr. Mohamud to work as much overtime at OC Transpo as he wished, and to travel up to seven weeks of the year to accompany people to the Hajj and Umbra. Had he sole responsibility for Sara, Mr. Mohamud may not have been able to do either. He did, therefore, receive a benefit from Ms. Aden’s fulltime assumption of those responsibilities.

(b) Corresponding detriment

[37] The second branch of the Kerr v. Baranow test is that the plaintiff suffered a corresponding deprivation to the enrichment of the defendant. Cromwell, J. stated it thus at paragraph 39:

Turning to the second element – a corresponding deprivation – the plaintiff’s loss is material only if the defendant has gained a benefit or been enriched (Peel, at pp.789-90). That is why the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered (Pettkus, at p. 852; Tathwell, at p.455).

[38] Ms. Aden was also correspondingly deprived, in that she has not benefitted from the accumulation of Mr. Mohamud’s wealth that accrued over the life of the relationship.

(c) Lack of juristic reason

[39] At paragraph 41 of Kerr, Justice Cromwell noted that: “Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract or a disposition of law. In this case, no juristic reason for the enrichment has been identified.

[40] I consequently find that an unjust enrichment of Mr. Mohamud and a corresponding detriment to Ms. Aden exists, with no juristic reason for the unjust enrichment.

Remedy

[41] As Justice Cromwell found in Kerr at paragraph 46: “Remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment.” The remedy which Ms. Aden seeks is the assignment to her of 50 percent of the imputed value for Family Law purposes of Mr. Mohamud’s OMERS Primary Pension Plan, amounting to $76,534.60. In other words, she seeks to establish a constructive trust in Mr. Mohamud’s pension.

[42] At paragraph 50 of Kerr, Justice Cromwell indicated:

Imposed without reference to intention to create a trust, the constructive trust is a broad and flexible equitable tool used to determine beneficial entitlement to property (Pettkus, at pp. 843-44 and 847-48). Where the plaintiff can demonstrate a link or causal connection between his or her contributions and the acquisition, preservation, maintenance or improvement of the disputed property, a share of the property proportionate to the unjust enrichment can be impressed with a constructive trust in his or her favor (Pettkus, a pp. 852-53; Sorochan, at p.50).

[43] Ms. Aden submits that the parties were engaged in a joint family venture over the eight years of their relationship. In order to make a finding of joint family venture, there must be evidence of mutual effort, economic integration, actual intent and priority of family.[^8] In this case, I have little doubt that the parties engaged in mutual family effort. They worked collaboratively towards common goals, pooled their efforts towards the common good and made the decision to have a child together during the course of their eight-year relationship.[^9] Most significantly, they also pooled their resources “where one spouse takes on all, or a greater proportion, of the domestic labour, freeing the other spouse from those responsibilities, and enabling him or her to pursue activities in the paid workforce”.[^10] The parties appear not to have had a joint banking account or joint savings. Indeed, Mr. Mohamud testified that they had an agreement to remain economically independent, but to “help each other with the house”. There, nevertheless was a degree of economic interdependence and integration between them in how they arranged their affairs.[^11] They accepted that their relationship was “equivalent to marriage”.[^12] Indeed, Mr. Mohamud considered and held himself out to be married, albeit not legally. They acted like husband and wife within the community and society at large, and, finally, they appeared to have some understanding between them of a shared future.

[44] Justice Cromwell indicated in Kerr at paragraph 80: “Where the unjust enrichment is best characterized an unjust retention of a disproportionate share of assets accumulated during the course of what McLachlen J. referred to in Peter (at p. 100) as a “joint family venture” to which both partners have contributed, the monetary remedy should reflect that fact.” Cromwell J. found further at paragraph 81 that in the situation of a joint family venture: “The wealth created during the period of cohabitation will be treated as the fruit of their domestic and financial relationship, though not necessarily by the parties in equal measure.”

[45] Although I have found that Mr. Mohamud was unjustly enriched by the relationship, and Ms. Aden was correspondingly deprived, unlike in Bigelow, Ms. Aden’s provision of housekeeping and child care services was not entirely “without compensation”. Mr. Mohamud testified that in addition to covering all of the expenses of the family, he paid Ms. Aden originally $1,000 per month which was increased over the course of the relationship to $1,200 per month and then $1,500 per month. In cross-examination, Ms. Aden would only say that she didn’t remember any such agreements or that any funds given to her were directed to the expenses of the home (which was contradictory to her evidence-in-chief where Ms. Aden testified that Mr. Mohamud paid for all living expenses). While no bank account statements were filed with the court prior to 2014, those afterwards clearly show fairly regular direct transfers to Ms. Aden from Mr. Mohamud[^13]. Between May and December of 2014, for example, Mr. Mohamud transferred $11,250 to Ms. Aden from his TD account ending in 462. Between January and July of 2015, he transferred a total of $12,150. These monies, were, of course, non-taxable in the hands of Ms. Aden.

[46] If I accept that Ms. Aden received at least $1,000 per month from Mr. Mohamud from the date of marriage onwards, that amounts to $12,000 per year, non-taxable to her. If I accept additionally that some portion of those funds, even as much as one half, went to household expenses of some description, it would result in Ms. Aden being in receipt of $6,000 per year, non-taxable to her. Times eight years, this would amount to $48,000, non-taxable, over the life of the relationship. Allowing for an average tax rate of 3.72% per year, the gross up on $48,000 would be $1,785.60, for a total of $49,785.60.

[47] I find that Ms. Aden is thus entitled to a monetary remedy of $26,785, being the difference between one half of Family Law Value of Mr. Mohamud’s pension and what I have conservatively calculate to be the monetary benefit she received annually from Mr. Mohamud.

Issue #5 – What is Mr. Mohamud’s income for support purposes?

Background Facts

[48] As I have indicated, Mr. Mohamud works fulltime for OC Transpo, as he has done since 1998. His annual income has fluctuated over the years based on him having taken paternity leaves in 2008 for Sara and in 2015/16 for Fatima. Additionally, in parts of 2017 and 2018, Mr. Mohamud was off of work on a sick leave for approximately six months. Mr. Mohamud has a doctor’s note indicating that he was to be off from December 20, 2017 to May 13, 2018. Mr. Mohamud was, however, in receipt of generous sick leave benefits over this period of time. According to his testimony, Mr. Mohamud also used up the deferred leave he had generated for approximately two months thereafter.

[49] Mr. Mohamud’s CRA Line 150 incomes since separation has been as follows:

• 2014 – $77,740;

• 2015 – $66,621;

• 2016 – $58,667;

• 2017 – $61,961; and,

• 2018 – $79,514.

[50] Ms. Aden also seeks to add some income to Mr. Mohamud’s gross employment income for certain unpaid absences. It is her contention that Mr. Mohamud has at times been underemployed as a result such absences.

[51] In addition to his employment income, Ms. Aden alleges that Mr. Mohamud has for years made money as a person who arranges and accompanies people to travel to Mecca for the Hajj and Umra two to three times per year. She submits that Mr. Mohamud receives a commission of $300 to $500 per person, and that he takes anywhere from 120 to 150 people per year. Additionally, Mr. Mohamud participates in these excursions for free. His airline fares, hotel accommodations and meals are all covered by one or the other of the travel agencies with whom he works, being PanEx Travel and Tours or Nasser Travel. Either additionally or in the alternative, Ms. Aden submits that the value of Mr. Mohamud’s trips should form part of his income.

[52] Mr. Mohamud’s OC Transpo income averaged approximately $80,000 between 2008 and 2013. His evidence was that he took paternity leave for part of 2015, and that he was off on a sick leave for part of 2017 and 2018. Mr. Mohamud continues to work overtime sufficient to accumulate two or three extra weeks of vacations per year, which in addition to his regular four or five weeks of vacation, he uses to accompany travellers to the Hajj and Umra.

[53] Mr. Mohamud testified that he is not now, nor has he ever been paid a commission for taking people to the Hajj or Umra. Rather he “volunteers” to do these trips, having gone to his first Hajj in 2001, and as a Muslim, he feels privileged to do so. Mr. Mohamud indicated that it is the duty of every Muslim to do the Hajj once in their lifetime, if they are financially and physically able to do so. The Umra, while smaller and not as compulsory at the Hajj, should also be attended if one can afford it. Mr. Mohamud indicated that he feels very blessed to be able to lead Canadian Muslims and travel to Mecca two or three times per year. Mr. Mohamud testified that he works with PanEx and Nasser Travel. Because he is well known in the community and has led many trips, people seek him out to do the Hajj or Umra. Mr. Mohamud testified that he did not receive any commission for this “work”, rather his compensation for leading the trips is to have his travel, accommodations and meals covered by whichever travel company he is working with for the particular trip.

[54] Mr. Mohamud testified that until 2017, he received all the money directly from travellers, which he would deposit into his own bank accounts. He would book all the travel with Nasser or PanEx on his credit cards in order to make points on his cards and would in turn subsequently pay off the credit cards from his accounts. Mr. Mohamud recognized that this was a careless way to do the transactions, as it consistently showed him having far more money than he actually had. His evidence was that the money did, in fact, come into his accounts, but then it very shortly went right back out, usually to pay off the credit cards on which he had booked the travel. A review of the activity on Mr. Mohamud’s credit cards and bank accounts, particularly his TD account ending in #462 did tend to support his evidence. Significant funds did come into Mr. Mohamud’s bank account, but equally significant sums were booked to travel on his credit cards, which were in turn paid off from his bank accounts. Mr. Mohamud testified that he changed this practice in or about March of 2017 and this too is reflected in a review of his accounts/credit cards.

[55] With respect to any unpaid absences from work, Mr. Mohamud testified that they related to either his paternity leave, sick leave or the deferral of income at a time where he thought he might try to defer 20% of his income for four years and take the fifth off. This did not work out, and at some point, he discontinued it and took the two months worth of time he had accumulated following his sick leave in 2018.

[56] Ms. Aden testified that prior to about 2008, Mr. Mohamud did do the Hajj and Umra work voluntarily, but that she insisted that “the man” (being the owner of PanEx) pay him a commission for recruiting the travellers and doing the educations sessions in advance of travel. Ms. Aden also testified that in or about 2011, Mr. Mohamud started working for himself rather than PanEx, and then arranged travel with either PanEx or Nasser Travel. She stated that he would be paid $300 to $500 per person recruited, and that he made an additional $70,000 to $80,000 per year which was not reported to CRA. Mr. Mohamud testified that he would sometimes receive $350 to $500 in advance of travel, but this was used to arrange VISA’s to Saudi Arabia and/or travel vaccinations.

[57] Ms. Aden called two witnesses in an effort to establish that Mr. Mohamud was running a business of this nature. Ms. Marian Jama testified that she used Mr. Mohamud’s services to do the Hajj in 2015. She stated she gave Mr. Mohamud $1,000 USD cash on that occasion. Then in 2016, Ms. Jama took her two sons to the Umra, and testified that it cost her $3,800 USD per person, which she paid directly to Mr. Mohamud in cash. However, in cross-examination, Ms. Jama confirmed that for the 2016 trip her signature was on a contract with Nasser Travel dated April 4, 2016, which revealed that $3,800 USD per person was required in installments by certain dates. In other words, the $3,800 USD per person that she gave to Mr. Mohamud in cash was exactly what she had contacted the excursion to cost with Nasser Travel. While it was less clear what the $1,000 USD was paid to Mr. Mohamud for in 2015, Ms. Jama did confirm that she was required to pay a Dr. Hamid for vaccinations through Mr. Mohamud. Ms. Jama was unable to provide any further particulars.

[58] Ms. Aden also produced her daughter, Ms. Saafia Jama, who indicated that she did some work for Mr. Mohamud from time to time. While Saafia did do some paperwork and copying for him, she indicated that she neither received payments nor provided receipts. Saafia indicated that Mr. Mohamud kept a lot of cash at home, but she could provide no further elucidation.

Analysis

[59] Section 19 of the Federal Child Support Guidelines provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where it appears income has been diverted or a spouse has failed to provide income information when under a legal obligation to do so.

[60] In Smith v. Smith (2012), [2012 CarswellOnt 3113] Justice Chappel outlined the relevant factors for determining whether to impute income as follows:

(a) The onus is on the party seeking to impute income to establish an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed;

(b) It is not necessary to establish bad faith or an attempt to thwart support obligations before imputing income. A payor is intentionally underemployed if they earn less than they are capable of earning having regard for all of the circumstances. In determining whether to impute income on this basis, the court must consider what is reasonable in the circumstances. The factors that the court should consider include the age, education, skills and health of the party, the party’s past earning history and the amount of income the party could reasonably earn if they had worked to capacity;

(c) There is a duty on the part of the payor to actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their dependents;

(d) The court will not excuse a party from their support obligations or reduce these obligations where the party has persisted in un-remunerative employment, or where they have pursued unrealistic or unproductive career aspirations. A self -induced reduction of income is not a basis upon which to avoid or reduce support payments;

(e) If a party chooses to pursue self-employment, the court will examine whether this choice was a reasonable one in all of the circumstances and may impute an income if it determines that the decision was not appropriate having regard for the parties support obligations;

(f) Where a party fails to provide full financial disclosure relating to their income, the court is entitled to draw an adverse inference and to impute income to them; and,

(g) The amount of income that the court imputes to a party is a matter of discretion. The only limitation on the discretion of the court in this regard is that there must be some basis in the evidence for the amount that the court has chosen to impute. (See Meissner v. Meissner, 2013 ONSC 5621, paragraph 37).

[61] The onus is thus on Ms. Aden to establish an evidentiary basis upon which the court can impute income to Mr. Mohamud. She has, in my view, failed to do so as it relates to Mr. Mohamud receiving a commission for each person he recruits, trains or accompanies to Mecca. The evidence was contradictory and uncertain in this regard. It was also uncertain in relation to Mr. Mohamud’s unpaid absences. However, Ms. Aden was successful in establishing that Mr. Mohamud received substantial financial benefits from his “volunteer work”, that being the cost of the travel, accommodations and meals on each and every trip he made. That he was compensated in this manner for doing the excursions was admitted by Mr. Mohamud. That he worked overtime to bank two or three extra weeks of vacation (for which he could have otherwise been paid) was also admitted by him. I find, therefore, that the value of the trips that Mr. Mohamud made each year since separation should be included in his income for support purposes.

[62] While no details were provided for 2014, in 2015, Mr. Mohamud travelled for the Hajj, which was advertised by PanEx as being valued at $9,000. He also travelled to the Ramadan Umra, which he indicated he has done every year since 2008. It was advertised by Nasser Travel to be valued at $3,800. The total in 2015 was $12,800.

[63] In 2016, Mr. Mohamud travelled to the Ramadan Umra, valued at $3,800 with Nasser Travel, the Hajj, valued at $10,800 with PanEx and the December Umra valued at $2,600 with Nasser Travel. The total in 2016 was $17,200.

[64] In 2017, Mr. Mohamud travelled to the Ramadan Umra, valued at $3,800 by Nasser Travel, to the Hajj, valued at $11,300 by PanEx.and to the December Umra valued at $2,800 by Nasser Travel. Although there was a March Break Umra in 2017, Mr. Mohamud testified that he did not go to it. The total for 2017 was $17,900.

[65] In 2018, the Ramadan Umra was valued at $3,600 by Nasser Travel, the Hajj package was valued at $11,900 by Nasser Travel and the December Umra was valued at $2,800 by Nasser Travel. Mr. Mohamud stated that he “didn’t think” that he went on a trip while he was off work on sick leave, but none of these occurred during that period. The total for 2018, therefore, was $18,300.

[66] In 2019, Nasser Travel offered a Hajj package in August for $11,750 and a December Umra package for $3,090. The Ramadan Umra in May and June, which Mr. Mohamud was leaving for almost immediately upon the completion of the trial, was valued at $3,400 by Nasser Travel. I had no evidence that Mr. Mohamud would not be attending the other two. Therefore, the total for 2019 is $18,240.

[67] This “compensation” was non-taxable to Mr. Mohamud. Ms. Aden has not requested that it be grossed up for tax. She neither presented evidence of nor questioned Mr. Mohamud with respect to his marginal tax rate. I, therefore, find that the additional income imputed to Mr. Mohamud will not be grossed up for tax.

[68] The end result is that Mr. Mohamud’s income for support purposes is imputed to be as follows for the years 2014 to 2018:

• 2014 – $81,540 ($77,740 + $3,800);

• 2015 – $79,421 ($66,621 + $12,800);

• 2016 – $75,867 ($58,667 + $17,200);

• 2017 – $79,861 ($61,961 + $17,900); and,

• 2018 – $97,814 ($79,514 + $18,300).

[69] Mr. Mohamud’s income for 2019 will include his Line 150 income for Revenue Canada as well as an additional $18,240.

Issue #6 – What child support and section 7 expenses, both retroactive and ongoing, is payable by Mr. Mohamud?

[70] As I have indicated, the parties separated on July 28, 2015. In her Amended Application dated November 22, 2016, Ms. Aden sought support for both herself and Sara pursuant to the FLA, in addition to the Divorce Act. As I have found that the parties were not married pursuant to the law of Ontario, her claims for support are in accordance with the FLA. In her application, Ms. Aden seeks both retroactive and on-going support for Sara, as well as a contribution from Mr. Mohamud to Sara’s section 7 or extraordinary expenses. She also seeks an order that Sara be maintained on Mr. Mohamud’s benefits with his employer.

[71] Clearly, Sara is entitled to be in receipt of child support in accordance with the Federal Child Support Guidelines. Therefore, commencing August 1, 2015, Mr. Mohamud shall be required to pay table support for Sara of $734.89 per month on an annual income of $81,540; July 1, 2016, he shall pay table support of $720.03 per month on an annual income of $79,421; commencing July 1, 2017, he shall pay table support of $689.63 per month on an annual income of $75,867 up to and including November of 2017; commencing December of 2017, he shall pay table support of $707.46 per month on an annual income of $75,867; commencing July 1, 2018, he shall pay table support of $743.75 per month on his annual income of $79,861, and commencing July 1, 2019, Mr. Mohamud shall pay table support of $893.67 on his annual income of $97,814. Mr. Mohamud’s child support for Sara shall be adjusted as of July 1, 2020, considering his 2019 CRA Line 150 income plus $18,240 of imputed income.

[72] Support payable by Mr. Mohamud for Sara from August 1, 2015 to June 30, 2016 is $8,083.79.

[73] Support payable by Mr. Mohamud for Sara from July 1, 2016 to June 30, 2017 is $8,640.36.

[74] Support payable by Mr. Mohamud for Sara from July 1, 2017 to June 30, 2018 is $8,400.37.

[75] Support payable by Mr. Mohamud for Sara from July 1, 2018 to June 30, 2018 is $8,925.

[76] The total child support payable from August 1, 2015 to June 30, 2019 is $34,049.52. Mr. Mohamud has been paying child support of $609 per month effective December 1, 2016 pursuant to the temporary order of Justice Sheard dated November 7, 2016. From that date to June 30, 2019, Mr. Mohamud has paid $18,890 ($609 x 31 months). Mr. Mohamud, therefore, owes Ms. Aden a total of $15,159.52 in child support for the period of August 1, 2015 to June 30, 2019.

[77] On a retroactive basis, Ms. Aden is also seeking contribution from Mr. Mohamud for Sara’s tutoring with Kumon, as well as her costs and tuition at a private Islamic School and her religious school fees on Saturdays. Ms. Aden provided receipts for the following:

• 2015 – Kumon School math program $540;

• 2016 – Kumon School math program $1,320; Ecole IBN Batouta $1,300;

• 2017 – Kumon School math program $600; Kumon School reading program $720; Ecole IBN Batouta $2,100; Tarbiyah Learning $2,270; Religion School $300; and,

• 2018 – Kumon School reading program $480; Tarbiyah Learning $5,121.

[78] Ms. Aden is seeking a 60% contribution for these expenses from Mr. Mohamud. Her evidence was that Mr. Mohamud paid for Kumon for Sara while the parties were still together and that he should continue to pay for it post separation. Additionally, Ms. Aden testified that she and Mr. Mohamud attended together to register Sara for Islamic school prior to separation. Her view was as Mr. Mohamud’s older children had had the benefit of Islamic school, so too should Sara; she was as deserving of this as Mr. Mohamud’s sons. However, Mr. Mohamud’s evidence was that his sons were able to attend the Ottawa Islamic School when they were young because he was a bus driver with the Ottawa Islamic Centre before he became employed by OC Transpo. Their tuition was as a result either much reduced or free. Mr. Mohamud’s position was that it did not make sense to have Sara in a private school if the parties could not afford to do so, and that the public-school system is perfectly good. He testified, additionally, that as his wife, Sofia, is a trained teacher, and could help Sara with whatever tutoring she requires.

[79] Be that as it may, Sara has received tutoring and been in a private Islamic school, and Ms. Aden has born the cost of it.

Analysis

[80] Section 7(1) of the Federal Child Support Guidelines provides that the court may provide for an amount to cover all or a portion of any expenses provided for therein “taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern.”

[81] Although the parties did jointly register Sara for a private Islamic school, she did not in fact commence school there. Rather she started Kindergarten at Carson Grove Public School with the OCDSB, where she continued until Grade 3, at which time Ms. Aden placed her in an Islamic French school, IBN Batouta. This was in 2016. Ms. Aden indicated that she did not discuss this with Mr. Mohamud as they were not on good terms, and that she simply made the decision to place Sara in that school. She later moved Sara to a different Islamic school, Tarbiyah Learning Academy, as it was closer to home. Again, notwithstanding a requirement in to do so in paragraph 5 of Justice Sheard’s November 7, 2016 order, Ms. Aden appears to neither have discussed this with Mr. Mohamud nor sought his agreement. Ms. Aden testified that she arranged with the principal at Tarbiyah to pay one half of the cost of the tuition with the understanding (albeit not with him) that Mr. Mohamud would pay the other half of the cost of the school. She indicated that she agreed she would pay the school Mr. Mohamud’s half when she received it from him. It was Ms. Aden’s testimony that money is owed to Tarbiyah as per this understanding.

[82] One of the expenses listed in Section 7(1) of the Guidelines is “(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs.” I received no specific evidence as to Sara’s need to be in a private school; rather Ms. Aden’s evidence was simply that Sara’s siblings attended private Islamic school and so should she. However, I accept Mr. Mohamud’s evidence that the circumstances under which his boys were able to attend the Ottawa Islamic School were completely different. He was, at the time, working for the centre and it was his employment there which made the school accessible for his children.

[83] Taking into account the necessity of the expense in relation to Sara’s best interests and the reasonableness of Ms. Aden’s decision to incur the expense of placing Sara in private school well after separation, without either consulting with Mr. Mohamud or obtaining his agreement, I find that Mr. Mohamud should be required only to pay the debt owing of one half of the tuition paid to Tarbiyah as per Ms. Aden’s arrangement with the school. Mr. Mohamud will be required, therefore, to pay Ms. Aden $1,135 for Sara’s attendance at Tarbiyah in 2017 and $2,560.50 for her attendance at Tarbiyah in 2018. He shall not be required to contribute to Sara’s attendance at Ecole IBN Batouta in 2016 and 2017.

[84] Mr. Mohamud will also be required to contribute 50% towards Sara’s participation in Kumon from 2015 through 2018, as well as her Islamic school on Saturdays.

[85] Commencing in July 1, 2019, any Section 7 or extraordinary expense for which Ms. Aden seeks a contribution by Mr. Mohamud will have to be agreed upon between the parties.

[86] Mr. Mohamud is in receipt of benefits through his employer. He has agreed that he will maintain Sara on his benefits so long as she is entitled by his employed to be named.

Issue #7 – Is Ms. Aden Entitled to Spousal Support?

[87] As I have indicated above, although Ms. Aden was trained and working as a PSW at the time of marriage, she ceased to do so sometime during her pregnancy with Sara. After Sara’s birth, Ms. Aden was a stay-at-home mother and wife. She took care of the home, did the cooking and cleaning, and cared for Sara fulltime. Once Sara commenced school, Ms. Aden continued to stay at home. It was her responsibility to get Sara to and from school, and to continue to care for the home. Ms. Aden’s evidence was that Mr. Mohamud worked all of the time, especially early in the relationship when he worked extensive overtime hours with OC Transpo. Ms. Aden indicated that even when Mr. Mohamud was on paternity leave for Sara, he worked as a taxi driver and also spent a great deal of time either preparing to travel or travelling for the Hajj and/or Umra. Ms. Aden, of course, cared for Sara and the home during Mr. Mohamud’s extended absences, either to work overtime or to travel.

[88] Mr. Mohamud did not really contest Ms. Aden’s evidence in this regard. He indicated that he last worked extensive overtime hours in 2014, stating that his priorities changed at that time. He continued only to work enough overtime thereafter to support his ability to travel to the Hajj and Umra. Mr. Mohamud’s evidence, in fact, essentially corroborated that of Ms. Aden as to the parties’ arrangements within the relationship. His only issue was that Ms. Aden had not returned to work as a PSW after having Sara or after Sara started school. He testified that he expected Ms. Aden to make some effort to contribute to the expenses of the family while they were still together, or to become self-sustaining once they were apart.

[89] Ms. Aden’s income has been very limited since separation. An overview of her Notices of Assessment reveals that her annual income for the years 2015 through 2018 was $10,573, $15,156, $20,547 and $11,174 respectively.

[90] Ms. Aden testified that she has commenced school to become an Early Childhood Educator in January of 2019, and that it is her hope that she will be able to get fulltime employment with the OCDSB, with whom she has been working part-time since Sara started school. She is scheduled to complete her program in April of 2020.

[91] Mr. Mohamud disputes that Ms. Aden is entitled to spousal support. It is his position that she ought to have returned to work sometime after Sara was born or, in the very least, after Sara started school.

Analysis

[92] Section 30 of the FLA 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:

(1) Recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(2) Share the economic burden of child support equitably;

(3) Make fair provision to assist the spouse to become able to contribute to his or her own support; and,

(4) Relieve financial hardship, if this has not been done by orders under Parts 1 (Family Property) and II (Matrimonial Home).

[93] As Justice Zisman has said in Niranchan v. Nadarajah[^14] 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”.

[94] Pursuant to the Supreme Court of Canada case of Bracklow v. Bracklow,[^15] there are three bases for entitlement to spousal support: compensatory, non-compensatory and contractual.

[95] Based on the essentially uncontroverted evidence of the parties, I have no difficultly finding that Ms. Aden is entitled to spousal support on both a compensatory and non-compensatory basis. While Mr. Mohamud suggested that Ms. Aden ought to have returned to work at some point during the relationship, her contributions to it clearly permitted Mr. Mohamud to work as much as he wished and to travel as often as he did. Ms. Aden suffered an economic disadvantage as a result of the breakdown of the marriage, and it will be sometime before she can meaningfully “contribute to her own support”.

Issue #8 – What is the quantum and duration of spousal support payable?

[96] Ms. Aden provided DivorceMate calculations to the court which reveal that the range of the duration of spousal support payable to her is from 4.25 to 11 years. Ms. Aden has requested a range of eight years of spousal support, which falls within the middle of the range and equals the length of the marriage. She proposes an end date of July 31, 2023.

[97] I find that duration to be reasonable, based on the length of the marriage and on the fact that Ms. Aden has only recently returned to school and will require some time post-graduation to become fully self-supporting.

[98] Mr. Mohamud did provide some money to Ms. Aden between August and December of 2015; she thought about $3,000, and he thought more. Given this is the case, I am disinclined to order retroactive spousal support. However, Ms. Aden originally commenced her application in December of 2015, so spousal support payable will commence as of January 1, 2016.

[99] With respect to quantum, the parties are to redo DivorceMate calculations on a “with child support formula” in the mid-range based on the incomes I have found for Mr. Mohamud in paragraph 68 above and Ms. Aden’s Line 150 incomes for the same years. Mr. Mohamud’s union dues should be deducted in the calculations. If there is any disagreement with respect to the calculations, a further appearance can be arranged before me through trial coordination.

[100] Mr. Mohamud has been paying spousal support of $1,100 per month effective March 1, 2017 pursuant to a temporary order by me dated March 9, 2017. Adjustments will need to be made accordingly to account for the amounts Mr. Mohamud has paid to date.

Insurance to Secure Support

[101] Ms. Aden has asked for an order designating her as the irrevocable beneficiary of his life insurance policy with the City of Ottawa for no less than $110,000 to secure his support obligations. No evidence was led with respect to the existence of such a policy, however, given that Mr. Mohamud is an employee of the City of Ottawa as an OC Transpo dispatcher, it is logical that he has the benefit of a life insurance policy. The life insurance estimates required to secure support in Ms. Aden’s DivorceMate calculations were in the $300,000 range, however, they were based on much higher imputed incomes to Mr. Mohamud. Section 34(1) of the FLA provides that the court may make an order: “(i) 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”. I find it reasonable to require Mr. Mohamud to irrevocably designate Ms. Aden as the beneficiary of his life insurance policy with the City of Ottawa for $100,000, to be decreased once Mr. Mohamud’s spousal support obligation has terminated.

Order

[102] As per my above findings, my final order shall be:

1. Commencing July 1, 2019, and on the first day of each month thereafter, the Respondent shall pay child support to the Applicant for the child, Sara Abdirashid Mohamud, born May 17, 2008, in the amount of $893.67 per month based on an imputed income of $97,814 and in accordance with the Federal Child Support Guidelines;

2. Such child support shall be adjusted on July 1, 2020 based on the Respondent’s 2019 Line 150 CRA income plus an additional $18,240 in imputed income;

3. Within 30 days, the Respondent shall pay to the Applicant $15,159.52, being the amount of retroactive and prospective child support payable between August 1, 2015 and June 30, 2019;

4. Commencing July 1, 2019, the parties shall contribute to Sara’s special and extraordinary expenses in proportion to their incomes. The Applicant shall seek the Respondent’s consent in advance, and such consent shall not be unreasonably withheld. Special and extraordinary expenses include, but are not limited to, childcare expenses, expenses for the child’s education (including tutoring and the Tarbiyah Learning Academy) and extracurricular activities and medical and dental expenses not covered by either party’s extended health insurance;

5. Within 30 days, the Respondent shall pay to the Applicant $5,915.50 in retroactive section 7 or extraordinary expenses between August 1, 2015 and June 30, 2019;

6. Commencing June 1, 2019, the parties shall exchange their income Tax Returns and Notices of Assessment as received by the Canada Revenue Agency no later than June 1^st of each year;

7. The Respondent shall designate and maintain the child as a beneficiary under any dental, medical and extended health benefits plan available to him through his current or future employment, for so long as the child is eligible for coverage. He shall within 30 days, or within 30 days of becoming eligible for coverage under any future benefits plan, provide the Applicant with a copy of the designation, proof that the designation has been filed with the appropriate benefits provider and documentation from the benefits provide outlining the details of the coverage available to the child;

8. The Respondent shall execute any documentation required to authorize the Applicant to make claims on behalf of the child directly to his benefits provider. If the benefits provider does not allow the Applicant to deal directly with the provider, the Respondent shall forthwith endorse and forward to the Applicant any reimbursement cheques which he receives on account of expenses that the Applicant has incurred for the child;

9. The parties shall complete the following calculations forthwith to determine the amounts of spousal support payable by the Respondent to the Applicant from January of 2016 to December of 2018:

a. Commencing January 1, 2016, the Respondent shall pay spousal support to the Applicant in the mid-range on a “with child support formula” on an imputed income of $79,421 for the Respondent and $10,573 for the Applicant. The amount owing for 2016 shall be determined based on the mid-point between the after-tax benefit of support the Applicant would have received and the after-tax cost the Respondent would have been able to deduct;

b. Commencing January 1, 2017, the Respondent shall pay spousal support to the Applicant in the mid-range on a “with child support formula” on an imputed income of $75,867 for the Respondent and $15,156 for the Applicant. The amount owing for 2017 shall be determined based on the mid-point between the after-tax benefit of support the Applicant would have received and the after-tax cost the Respondent would have been able to deduct;

c. Commencing January 1, 2018, the Respondent shall pay spousal support to the Applicant in the mid-range on a “with child support formula” on an imputed income of $79,861 for the Respondent and $20,547 for the Applicant. The amount owing for 2018 shall be determined based on the mid-point between the after-tax benefit of support the Applicant would have received and the after-tax cost the Respondent would have been able to deduct;

10. Commencing January 1, 2019, the Respondent shall pay spousal support to the Applicant in the mid-range on a “with child support formula” on an imputed income of $97,814 for the Respondent and $11,174.53 for the Applicant. Such payments will be deductible to the Respondent and taxable to the Applicant;

11. The Respondent shall designate the Applicant as the irrevocable beneficiary of his life insurance policy with the City of Ottawa in the amount of no less than $100,000 as security for both child and spousal support for so long as support is payable. The amount of insurance required may be reduced upon the termination of spousal support. The Respondent shall execute the required designations and provide the Applicant with proof that the designations have been submitted to the insurance provider within 30 days;

12. Spousal support shall terminate on July 31, 2023; and,

13. Within 30 days, the Respondent shall pay to the Applicant $26,785, being the value of a constructive trust interest in favour of the Applicant in the Respondent’s OMERS Primary Pension Plan.

[103] Once the calculations referred to in paragraph [102] 9. (a), (b) and (c) are completed, a draft order can be submitted to me through the Trial Coordinator for signature.

Costs

[104] Failing agreement as to the liability for costs of this trial by December 1, 2019, the parties will make written submissions of no more than three pages, along with copies of their bills of costs and offers to settle, to me at intervals of 10 days from that date and I will make an order.

Justice Engelking

Released: November 14, 2019

COURT FILE NO.: FC-15-2819

DATE: 2019/11/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Amina Aden

Applicant

– and –

Abdirashid Mohamud

Respondent

REASONS FOR JUDGMENT

Justice Engelking

Released: November 14, 2019

[^1]: Certificate of Marriage issued 16th March 2007, Trial Exhibit #2 [^2]: Trial Exhibit #40. Ms. Aden similarly filed her income tax returns as “married”. [^3]: R.S.O. 1990, c.M.3 [^4]: Section 4 provides that “no marriage can be solemnized except under the authority of a license issued in accordance with this Act or the publication of bans.” [^5]: Kerr, supra, paragraph 30 [^6]: Bigelow, supra, at paragraph 15. [^7]: Bigelow, supra, at paragraph 16. [^8]: Kerr, supra, para. 89 [^9]: As per Kerr, supra, para. 90 [^10]: Kerr, supra, para. 91 [^11]: As per Kerr, para. 92 [^12]: Kerr, supra, para. 95 [^13]: Trial Exhibit #46 [^14]: 2015 ONCJ 149 [^15]: [1991] 1 S.C.R. 420