COURT FILE NO.: FS-16-86685-00
DATE: 2019 12 11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ranya Abbas Al-Fatlawi
Sarah Razzouk and Mark Skikavich, for the Applicant
Applicant
- and -
Muataz Hassan Al-Bajawi
Self-Represented
Respondent
HEARD: May 22, 24, 28 and June 10, 2019
REASONS FOR JUDGMENT
Doi J.
Overview
[1] The parties married on February 9, 2004 in Iraq. They have two children of the marriage. To escape the conflict in Iraq, they immigrated to Canada in 2012. The Respondent father worked in the UAE to support the Applicant mother and the children before joining them in Canada in 2015. After their relationship broke down, the parties separated in 2016.
[2] There were five (5) main areas in dispute at trial: a) the date of separation; b) equalization and post separation adjustments; c) custody, parenting time and child support arrears; d) travel abroad with the children; and e) a claim by the Respondent for occupation rent.
[3] As explained below, I find that the date of separation is April 7, 2016, that post separation adjustments are appropriate to address the dissipation of a joint line of credit and certain investment returns, that current custody and parenting arrangements should continue, that the children should be allowed to travel abroad but not to Iraq and/or to any other country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and that occupation rent should not be ordered.
a. Date of Separation
[4] The Applicant claims a date of separation of March 20, 2016 when the parties purportedly began living separately. The Respondent claims that the date of separation is May 27, 2016 when the parties had a major argument that is said to have ended their marital relationship.
[5] In considering the date of separation, the court must find when the parties separated with no reasonable prospect or expectation of resuming cohabitation: Ramoutar v. Ramoutar, 2019 ONSC 2448 at paras 22-23. This is based on the true intention of the parties, and a consideration of objective factors based on all circumstances which may differ from stated intentions made by the parties. The central analysis is “whether a reasonable person knowing all of the circumstances would reasonably believe that the parties had a prospect or expectation of resuming cohabitation:” Ibid at para 23; Torosantucci v. Torosantucci (1991), 1991 CanLII 12851 (ON SC), 32 RFL (3d) 202 (ON UFC) at para 14.
[6] Parties may live separately while under the same roof. Conversely, they may cohabit while living in separate locations. In determining whether parties are living separately and apart, the following have been formulated as objective factors for consideration:
(1) There must be a physical separation. Often this is indicated by the spouses occupying separate bedrooms ... Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
(2) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
(3) The absence of sexual relations is not conclusive but is a factor to be considered;
(4) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern;
(5) Although the performance of household tasks is also a factor ... weight should be given to those matters which are peculiar to the husband and wife relationship outlined above;
(6) The court must have regard to the true intent of a spouse as opposed to a spouse's stated intent ... [a]n additional consideration ... in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns.
Neufeld v. Neufeld, 2019 ONSC 1277 at para 69, citing Oswell v. Oswell (1990), 1990 CanLII 6747 (ON SC), 74 OR (2d) 15 (HC), affirmed (1992), 1992 CanLII 7741 (ON CA), 12 OR (3d) 95 (CA).
[7] The parties have different accounts as to when and how they separated.
[8] In or around the summer of 2015, the parties had a serious argument that involved or related to the Applicant’s extended family. Beginning around October 2015, the Applicant consulted with a family lawyer for advice on separating from the Respondent and her legal recourse. By March 20, 2016, she claims that the parties had separated completely, lived in separate rooms under the same roof, were no longer a married couple in a marital relationship, and did not reconcile. On April 7, 2016, the Respondent left the matrimonial home and stayed in a hotel before leaving for Iraq on April 9, 2016. He did so after he viewed the Applicant’s computer and saw that she had consulted her lawyer. Before leaving, the Respondent purportedly told the Applicant that he was leaving Canada and selling his car. The Respondent did not share his itinerary with the Applicant, who understood that he was leaving permanently. Around this time, the Applicant opened her own bank account and began to reorganize her affairs to be independent of the Respondent, whom she removed as a covered dependent under her employee group benefits program.
[9] The Respondent claims that the parties shared the same bed and had a physical relationship until May 27, 2016. He states that they discussed their future together and decided at some point between January and March 2016 to have another child. To prepare for pregnancy, he claims that the Applicant took vitamins that her physician recommended. Around this time, the Respondent was diagnosed with sleep apnea that required him to use a noisy airway machine at night. For this reason, the Respondent claims that he moved to a separate room at home, and later to a hotel, to avoid disturbing the Applicant’s sleep and to learn how to use this equipment. He claims to have visited Iraq from April 9 to 24, 2016 in order to see his father, who had fallen ill.
[10] In late April 2016, the Respondent returned to Canada and asked the Applicant to pick him up at the airport. The Applicant initially refused, but later relented and drove him from the airport to the matrimonial home in order to maintain a civil relationship with him for the sake of their children whom they co-parented. The parties resumed living in separate rooms in the matrimonial home until May 22, 2016, when the Respondent left to reside elsewhere. The parties continued to share parenting responsibilities, including those involving their son who had various medical needs and underwent surgery in July 2016.
[11] On May 2, 2016, the Applicant unsuccessfully applied for a legal aid certificate. It was denied on May 16, 2016 because she did not meet the financial eligibility criteria.
[12] On May 3, 2016, the Respondent took a $222,229.29 loan from the parties’ joint line of credit (i.e., which was the maximum available credit on the account) and sent these funds to his brother in Iraq to keep for him, as detailed below. On May 22, 2016, the Respondent left the matrimonial home after finding other modest accommodations.
[13] On May 27, 2016, the parties had a heated argument after the Applicant discovered that the Respondent had taken the $222,229.29, which he refused to return. Later that day, and several times over the next few weeks, the parties quarreled bitterly and called police who involved the Children’s Aid Society “(“CAS”). During a site visit, CAS child protection staff are said to have advised the Applicant to change the locks to the matrimonial home, which she did by June 22, 2016. The parties continued to quarrel, and their escalating conflict led to volatile confrontations that caused police to criminally charge the Respondent with uttering threats. On July 1, 2016, the Respondent entered into a peace bond to not communicate with the Applicant or attend her residence or any place she is known to be.
[14] On these facts, I find that the parties separated on April 7, 2016. In the period leading up to this date, the parties appear to have had different views of their marital relationship while living in separate rooms, albeit under the same roof owing to their modest financial means. But on April 7, 2016, I find that their marital relationship ended when the Respondent left the matrimonial home after discovering that the Applicant had consulted with a family lawyer for advice about ending the marriage. By advising the Applicant that he was leaving for Iraq and selling his car, I find that the Respondent left and repudiated the marital relationship. His departure prompted the Applicant to apply unsuccessfully for legal aid in her effort to pursue recourse in this family matter.
[15] Although the Respondent returned to the matrimonial home following his return from Iraq, I find that the parties did not reconcile. They continued to live separately in different rooms and outside of a martial or conjugal relationship while jointly co-parenting their children. The parties’ living arrangement under the same roof reflected their relatively modest financial means.
[16] Realizing that his marital relationship with the Applicant had come to an end, I find that the Respondent undertook the rather extreme measure on May 3, 2016 of drawing a $222,229.29 loan from the parties’ joint line of credit and wiring the funds to his brother in Iraq to hold for him. On May 22, 2016, the Respondent left the matrimonial home and began residing elsewhere. He claims a date of separation of May 27, 2016 when the parties argued after the Applicant discovered that the Respondent had taken the funds. However, I find that the Respondent acted wilfully to dissipate the $222,229.29 on May 3, 2016 after the parties’ relationship ended on April 7, 2016, as explained above.
[17] Based on the foregoing, I find that the parties ended their marital relationship and separated on April 7, 2016 without any reasonable prospect or expectation of resuming cohabitation: Ramoutar at paras 22-23; Torosantucci at para 14.
[18] Later in these reasons, I will revisit matter of the $222,229,29 loan in the course of addressing the matter of post-separation adjustments.
b. Equalization and Post-Separation Adjustments
i. Investment Property in Baghdad, Iraq
[19] During their marriage, the parties bought an investment property in Dora, a neighbourhood in southern Baghdad, Iraq. At the date of separation, the parties jointly owned this property under an arrangement by which the Applicant’s mother held title on their behalf.[^1] Although the investment had been documented, the investment papers seem to have disappeared suspiciously from the parties’ safe deposit box at their bank after the Applicant unilaterally removed the Respondent’s access to the safe deposit box in or around October 2015 without notice.
[20] According to the Respondent, the parties jointly invested approximately $75,000.00 CDN to purchase the Dora investment property by making two (2) transfers of $30,000.00 US each to the Applicant’s father in Iraq on September 8 and 9, 2010 (i.e., for a total of $60,000.00 US). Given how the investment records inexplicably were lost, the Respondent submits that the Applicant likely has the ownership documents for the property in her custody. Having regard to how the Applicant unilaterally took sole custody of the safe deposit box, I accept the Respondent’s submission and find that the Applicant has the records for the investment property in Dora.
[21] Neither party offered a valuation report for the property in Dora.
[22] The Applicant did not produce any records for the Dora property, but her most recent NFP statement dated March 6, 2019 lists the Respondent’s interest in the property as being $75,000.00 as of her proposed March 20, 2016 valuation date. The Respondent’s financial statement dated July 12, 2017 (i.e., which he had prepared with his then-counsel of record) describes the property’s value as $78,000.00 at the time of his proposed valuation date of May 27, 2016 (n.b., and later claimed an overall value of $120,000.00 for the property in 2017, although the Respondent led no evidence to validate this figure). More recently, the Respondent’s NFP statement of May 18, 2019 gave a revised claim for the property of $80,000.00 as of his proposed May 27, 2016 valuation date, but again without any supporting valuation evidence. In the circumstances, the Applicant submits that $78,000.00 is a fair and reasonable estimate of the property’s overall value as of the date of separation (i.e., based on the Respondent’s earlier position on the property’s value), which leaves each party with a half-interest of $39,000.00.
[23] Based on the foregoing, I am persuaded that it is fair and just to value the Dora property in the amount of $78,000.00 as of the April 7, 2016 date of separation as set out in the NFP at Schedule “A” to these reasons.
ii. Other Investments
[24] The Respondent produced bank records dated May 29, 2013 and June 13, 2013 to show that $41,007.59 and $65,764.27, respectively, were transferred from the parties’ joint bank account to the Applicant’s aunt, with whom she was close. The Respondent claims that the Applicant transferred the funds (i.e., for a total transfer of $106,771.86) without his prior knowledge to her aunt as an investment, and submits that the Applicant did not account for these funds in equalizing the marital assets.
[25] The Applicant denies that she made the transfers, and initially claimed that it had been the Respondent who made both on-line transfers to her aunt in Canada while he was working in the UAE at the time. Later, under cross-examination, the Applicant suggested that she may have moved the funds to her aunt on the Respondent’s verbal instructions, which he denied giving.
[26] According to the Applicant, the Respondent and her uncle (i.e., her aunt’s husband) both worked in the UAE and had arranged to transfer funds to her aunt who lived in Canada. Under their purported arrangements, which were verbal and undocumented, the Respondent agreed that a portion of the funds that he sent from the UAE to the Applicant in Canada would be directed to her aunt, which her uncle would reimburse. To show this, the Applicant produced a cheque dated August 24, 2013 that she claims is from her uncle to the Respondent for $90,000.00 UAE dirhams (i.e., about $32,000.00 CDN) that she claims is the only instrument that she could find among her records to support her account of how her uncle and the parties sent funds to her aunt. She also stated that the Respondent renovated her uncle’s apartment in the UAE, and was reimbursed for doing so. The Respondent confirmed that the uncle had reimbursed him for the renovations, and did not challenge the Applicant’s explanation regarding the funds transferred to her aunt, but maintained his position that the $106,771.86 amounted to an investment for the parties.
[27] The Respondent also filed bank records that show various withdrawals and deposits made on April 10 and 20, 2013 and May 15, 2013 involving the parties’ joint-account which apparently related to the May 29 and June 13, 2013 transfers mentioned above. When questioned on these transactions, which involved rather large cash withdrawals (i.e., between $30,000.00 and $33,000.00), the Applicant could not recall or explain them.
[28] I accept that the parties had a relationship with the Applicant’s aunt and uncle that seems to have involved periodic transfers of not insignificant amounts that were unrelated to investments. At the time of the transfers, the Respondent had a relatively high income and moved funds with some degree of frequency which he largely acknowledged in his evidence. Given his apparent habit of moving funds on multiple occasions, it is not entirely unsurprising that the Applicant could not remember the May 29, 2013 and June 13, 2013 transfers to her aunt, which occurred several years before the date of separation.
[29] The Respondent did not adduce evidence to show that the transferred funds had been directed to an investment that was offered or provided by the Applicant’s aunt. I appreciate that the Respondent had difficulty accessing financial records after the parties separated. But on the evidence, I find that he did not prove his claim for an accounting of these funds at this time.
[30] I am also unpersuaded that it would be appropriate to account for this transfer of funds by awarding an unequal division of net family property under ss.5(6)(h) of the Family Law Act, as this authority is strictly limited only to those cases featuring unconscionable unfairness that would shock the conscience of the court: Ward v. Ward, 2012 ONCA 462 at para 28. Given the limited nature of the evidence before the court on this point, which includes a possible explanation that the subject funds may have been transferred to the Applicant’s aunt for non-investment purposes, I find that a s. 5(6) order for unequal distribution is not warranted in this case.
iii. Other Property Issues
[31] Around the April 7, 2016 date of separation, the parties jointly held $88,489.40 of RRSPs (i.e., reflecting the sum of the $17,103.05, $28,640.96 and $42,745.39 balances of their three (3) separate RBC mutual fund accounts, respectively), which the Applicant took and deposited to her personal bank account on April 26, 2016 before diverting $82,000.00 of the funds towards an undisclosed personal investment on April 29, 2016. Claiming that the Applicant’s withdrawal of the parties’ jointly held RRSP’s triggered adverse tax consequences, the Respondent sought an adjustment in his favour to reflect this. But as he led no evidence of the tax consequences arising from the withdrawal, I am unable to make the necessary findings to address his adjustment claim.
[32] The Respondent claims that $15,000.00 in cash and $27,500.00 in gold (i.e., consisting of gold jewellery and gold bars) went missing from the parties’ safe deposit box at their bank, along with records related to the Dora investment property, sometime after the Applicant removed his access to the safe deposit box without notice. The Respondent provided no withdrawal receipts or any other evidence to support his claim regarding the missing cash or gold bars, but he testified that he regularly purchased gold jewellery and bars for the Applicant during their marriage, which were to be gifted later to their children. His evidence included photos of several pieces of gold jewellery that he claims had been stored initially in a home safe deposit box before the Applicant moved them to the safe deposit box at their bank, although the photos do not appear to reveal the amount of gold that he claims she took. The Applicant denies that any such cash or gold existed, and states that she had only costume jewellery worth $750.00. However, during her cross-examination, she conceded that the parties had spent some time at the customs kiosk at the airport declaring the quantity of jewellery they had brought when they immigrated to Canada.
[33] I find that the Respondent has not sufficiently proven that the parties had kept the alleged quantity of cash or gold bars in their safe deposit box. However, I accept that the Applicant took a quantity of gold jewellery from the safe deposit box without accounting for it. From the evidence on this point, I am persuaded that it would be fair and just to value this jewellery at $2,500.00 as of the date of separation, leaving the Respondent with a one-half share of $1,250.00.
[34] The parties led no evidence of the value of their cars but seem to agree that the Applicant’s car was worth somewhat more than the Respondent’s car. In the circumstances, I am persuaded that it would be fair and just to value the Applicant’s car at $12,000.00 and the Respondent’s car at $7,000.00 as of the date of valuation.
[35] I accept that the Applicant kept essentially all of the household items when the Respondent lost access to the matrimonial home after she changed the locks. I find that a fair and just value for these items is $20,000.00, with each party entitled to a one-half share of $10,000.00
[36] I am further persuaded to adopt the balance of the figures in the Applicant’s NFP Statement dated May 20, 2019, which were not seriously disputed by the Respondent.
[37] The foregoing is reflected in the NFP Statement at Schedule “A” to these reasons.
iv. Post-Separation Adjustments
1. Line of Credit
[38] As mentioned earlier, the Respondent took $222,229.29 from the parties’ joint line of credit on May 3, 2016 and sent the funds to his brother in Iraq.
[39] The Respondent claims that he withdrew the $222,229.29 from the parties’ line of credit to repay a loan of about $250,000.00 that he had borrowed from his family in Iraq to buy the matrimonial home. After the parties’ relationship worsened in 2016, he claims that his father asked for the loan to be repaid. Before he took the $222,229.29, the Respondent claims that he verbally informed the Applicant of his intention to repay the loan with the funds. The Applicant denies that the Respondent mentioned any of this to her.
[40] The Respondent adduced no records and gave no evidence, other than his oral testimony, to prove the loan that his family purportedly gave.
[41] The $222,229.29 that the Respondent sent to his brother in Iraq represented almost the maximum amount of available credit on the parties’ joint line of credit at the time.
[42] On June 21, 2016, the Respondent exchanged text messages with the Applicant in which he refused to return the funds and claimed that the money was his to keep. The Respondent denies that he sent the text messages. Having viewed these messages which the Applicant kept on her phone, I find that the messages attributed to the Respondent clearly came from his phone number. I reject the Respondent’s initial claim that his young children sent the text message from his phone, which apparently was not password protected. I find it unlikely that either child would have sent messages of this nature and tone to their mother, as the Respondent initially suggested in his evidence but later abandoned in his submissions. I also am unpersuaded by the Respondent’s uncorroborated suggestion that the Applicant fabricated the messages by texting herself using his phone. From the evidence, I find that the Respondent personally exchanged the text messages with the Applicant in which he clearly acknowledged taking the funds for himself.
[43] In the circumstances, I find that the $222,229.29 did not go to repay a debt owed to the Respondent’s family. I do not believe the Respondent’s account and find that he took the money for himself by sending it to his brother in Iraq (i.e., who acknowledged receipt of the funds) with deliberate planning and forethought in order to move the funds beyond the Applicant’s reach after their martial relationship ended. By refusing to return the funds, the Respondent showed a blatant disregard for the marital nature of this asset that he took and dissipated.
[44] After the Respondent took the $222,229.29 from the parties’ joint line of credit, interest and insurance for the loan were paid from June to October 2016 from the parties’ joint bank account. Thereafter, between January and December 2017, the Respondent made sporadic interest payments from his personal account to service the loan. When asked why he stopped paying interest on the loan, the Respondent claimed that he had exhausted his available funds, despite having the $222,229.29 in Iraq. The Respondent also made several withdrawals from the joint line of credit that further increased the parties’ debt load.
[45] After not receiving any loan service payments between January and March 2018, the bank recalled the loan, cancelled the Applicant’s credit card, and threatened to enforce the loan by foreclosing on the matrimonial home where she lived with the children. To avoid a power of sale, and to partially mitigate her credit history that was damaged by the non-serviced loan, the Applicant paid loan interest in March and July 2018.
[46] The Applicant submits that the Respondent was unjustly enriched by the $222,229.29 that he took from their joint line of credit. An unjust enrichment claim has three (3) elements: (i) an enrichment; (ii) a corresponding deprivation; and (iii) no juristic reason for the enrichment: Derakhshan v. Narula, 2019 ONCA 742 at para 8; Pettkus v. Becker, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834 at 848. As explained below, I agree with this submission.
[47] I accept that the Respondent was enriched by taking $222,229.29 from the parties’ joint line of credit (i.e., which reflected the maximum loan available on the credit facility) exclusively for himself.
[48] The Applicant clearly suffered a deprivation by incurring a corresponding and onerous debt obligation on the $222,229.29 loan (i.e., as a named account holder on the parties’ joint line of credit), that she never wanted or benefitted from. The Respondent’s limited and infrequent payments to service the loan added to the Applicant’s deprivation by essentially forcing her to make involuntary limited interest payments to avoid a foreclosure on the home where she lived with the children. In the circumstances, I seriously question whether the Respondent intends to repay the loan ever, as his actions to date seem to reflect a real disinclination to do so. Should that be the case, I expect that the Applicant’s deprivation would, in all likelihood, become a long-term if not permanent matter that may well leave her saddled unfairly with a significant debt obligation that she did not invite and cannot afford to pay.
[49] I find no juristic reason to support the Respondent’s enrichment. I do not accept the Respondent’s claim that he took out this loan to repay a debt to his family in Iraq that the parties jointly incurred. I add that his failure to service the loan appropriately removes any argument that he is lawfully entitled to the funds. I find that the Respondent wilfully dissipated marital assets by taking the $222,229.29 loan and by only infrequently servicing the loan without apparent regard for the negative financial impact this would have on the Applicant, who asked him repeatedly to return the funds but to no avail. I readily find on the evidence that the Respondent’s conduct had no juristic reason. It was high-handed and irresponsible.
[50] From the foregoing, I find that the Applicant has made out an unjust enrichment claim arising from $222,229.29 loan that the Respondent drew on the parties’ joint line of credit.
[51] A remedy for unjust enrichment is restitutionary and may require the unjustly enriched party to repay or reverse the unjustified enrichment by way of a monetary remedy: Kerr v. Baranow, 2011 SCC 10 at para 48. To this end, I find that the Applicant is entitled to a remedial monetary award.
[52] On the facts of this case, I find that it would be fair and just to award a monetary remedy to permit this loan to be fully repaid and retired, in order to relieve the Applicant of the significant debt burden that the Respondent created when he drew the loan. Without this remedy, I find it unlikely that the Respondent will ever repay the loan. To date, the Respondent has shown a studied indifference for the serious financial harm that he caused the Applicant, who unknowingly became liable for this major debt obligation after he drew the loan from their joint line of credit without notice. In the circumstances, I find that it would be just and equitable to award a post-separation adjustment to capture the amounts of $222,229,29 (i.e., representing the principal amount of the loan), and $2,055.31 (i.e., one-half of the $4,110.61 initial loan service payments drawn from the parties’ joint bank account between May 2016 to October 2016), and $10,307.88 (i.e., representing the sum of $3,275.00 plus $3,580.26 plus $3,452.62 for the Applicant’s loan service payments made between March 2018 and October 2018), along with $16,599.99 reflecting the Respondent’s withdrawals against the line of credit, and $25,716.05 for unpaid loan service payments as indicated in the available records for the loan that were adduced at trial, to permit the loan to be fully repaid and retired.[^2]
[53] As the parties currently have proceeds from the sale of the matrimonial home that are being held in trust, I find that it would be fair and just for the debt obligation on the parties’ joint line of credit to be repaid to the lender and retired in its entirety by way of a payment from the Respondent’s share of these funds held in trust. To be clear, I find that the Respondent should remain liable to the lender for any outstanding interest or other service payments that remain on the joint line of credit so that this debt may be fully repaid and retired. In addition, I also find it appropriate for the Respondent to reimburse the Applicant for the amounts that she incurred to service this debt obligation, namely the amount of $12,363.19 (i.e., $2,055.31 plus $10,307.88, as explained above)
[54] The foregoing is set out in the Post-Separation Adjustments at Schedule “B” to these reasons.
[55] In her closing submissions, the Applicant sought to repair her damaged credit history by seeking a declaration that she was not at fault for any non-payment of this debt obligation on the parties’ joint line of credit, and by further seeking collateral relief against certain third-party credit rating agencies. However, the Applicant did not plead this relief or deliver requisite notice to her proposed third parties. Accordingly, I decline to grant this relief.
2. Returns from Investment in the Gym in Abu Dhabi, UAE
[56] By contract dated July 1, 2012, the Respondent invested $200,000.00 UAE Dirhams in a gym that was operated by his business partner in Abu Dhabi, UAE. The Respondent made this investment with the Applicant’s knowledge and consent. The funds used to make the investment came from the parties’ jointly held bank account in the UAE.
[57] According to the Respondent, the gym closed in 2013 and his business partner returned his investment funds. The Respondent claims that he forwarded these returns to the Applicant in Canada. In turn, he claims that the Applicant invested the funds with her aunt (i.e., in two tranches of $41,007.59 and $65,764.27, respectively), as discussed earlier.
[58] After the UAE gym closed in 2013, the Applicant claims that the Respondent’s business partner kept a portion of the investment funds that were owing, and periodically distributed these funds to the Respondent. She also claims that certain payments were sent to the Respondent in the UAE when he worked there, while others were sent to him in Canada after he joined the Applicant and children. According to the Applicant, the Respondent shared the investment returns with her, and they used a portion to purchase the matrimonial home.
[59] The Applicant also claims that the Respondent arranged for his business partner to release a further tranche of investment returns to him of $45,000.00 US (i.e., equal to $57,000.00 CDN) in April 2016. The Applicant’s claim is supported by text messages that the parties exchanged on April 26, 2016, shortly after they separated, in which the Respondent confirms the Applicant’s account regarding the further tranche of returns.
[60] Based on the foregoing, I find that the parties should share a further $57,000.00 in returns from the UAE gym investment that the Respondent received in April 2016, for which each party has a one-half interest. This is reflected in the Post-Separation Adjustment at Schedule “A”.
3. Mortgage and Carrying Cost Payments
[61] For about five months after their separation, the parties jointly paid their mortgage on the matrimonial home from their joint bank account, which essentially became depleted of funds by January 2018. Thereafter, the parties separately made certain payments towards the mortgage with funds from their own respective bank accounts, which left the mortgage in some arrears.
[62] After September 1, 2017, the Respondent did not pay any carrying costs on the matrimonial home. Consequently, the Applicant paid for these costs by herself, including the mortgage and property taxes, along with other upkeep expenses. She assumed a significant financial burden that the Respondent properly should have contributed to. The Applicant also made payments to service the $222,229.29 loan that he took, as discussed earlier, to avoid the lender enforcing the debt by foreclosing on the matrimonial home.
[63] Following separation, the parties agree that certain mortgage payments on the matrimonial home were made from their joint bank account, with the last mortgage payment apparently having been made on October 18, 2016.[^3] Thereafter, it appears from the available financial documents adduced at trial that the Applicant paid a total of $15,097.81 in combined mortgage and municipal tax payments,[^4] and that the Respondent made $6,351.44 in mortgage payments that the Applicant concedes. Accordingly, I find that the Applicant is entitled to receive an offset payment of $4,373.19 (i.e., to reflect her half-share of these costs) from the Respondent as a post separation adjustment for the additional carrying costs on the home that she paid over her half-share after October 18, 2016. This is reflected in the Post-Separation Adjustments at Schedule “A”.
c. Custody, Access and Support Arrears
[64] The Respondent seeks to revert to the terms of a temporary consent order (i.e., dealing with custody, parenting, child support and other terms) made by Trimble J. on August 17, 2017, and fold these terms into a final order. But Trimble J.’s temporary order was superseded by a final custody and parenting order made by Fowler Byrne J. on September 26, 2018 with the parties’ consent at a case conference held that day, and further by a temporary child support order made by McSweeney J. on August 3, 2018 following a contested hearing. Moreover, I find no basis to depart from the custody and parenting terms of Fowler Byrne J.’s final order as the Respondent has not established a material change in circumstances that affected or likely would affect the best interests of the children. Similarly, I find no reason to arrive at a different child support amount from that which McSweeney J. applied.
[65] The Respondent entered into a peace bond on July 1, 2016 which prevented him from being in close proximity to the Applicant. As such, he claims that the peace bond compromised his ability to exercise parenting time with the children. However, the peace bond only limited the Respondent from being in proximity to the Applicant and did not prevent him from making appropriate arrangements to spend time with the children. The peace bond did not preclude him from exercising “regular, generous and liberal access” under the terms of Fowler Byrne J.’s final order of September 26, 2018, which was made on consent after the Respondent entered into the peace bond. As well, Fowler Byrne J.’s final order expressly provided that the Respondent’s access was to occur “without [the] presence of the Applicant or her family.” Accordingly, I find that any failure by the Respondent to exercise his right to parenting time reflected his own choice to do so and did not arise from any legal restrictions or requirements.
[66] The Respondent claims that the Applicant breached the parenting terms contained in Fowler Byrne J.’s final order of September 26, 2018 because she failed to properly or fully provide him with information required to make major education and medical decisions. However, the Respondent testified that the parties have co-parented their children, including their son that had serious medical issues. As the Respondent has offered no particulars of any missing educational or other medical information for the children that he needed to make major parenting decisions, I find that he was sufficiently informed to make appropriate parenting decisions on such matters. Accordingly, I am unprepared to find that the Applicant breached any parenting obligations under the final order that relate to sharing information about the children.
[67] Based on the foregoing, I am unable to find a situation giving rise to a material change that would warrant the court revisiting the custody and parenting terms under the final order of Fowler Byrne J. dated September 26, 2018. I add that the Respondent advised in his submissions to the court that he would be unable to manage having sole custody of the children, and expressed a preference for joint custody which the final order provides for.
[68] On August 3, 2018, McSweeney J. ordered the Respondent to pay the table amount of child support based on his annual income of $45,000.00. At trial, the Respondent sought to reduce the amount of his monthly child support payments. However, in his Form 13.1 Financial Statement dated May 18, 2019, the Respondent reported having an annual income of $49,920.00 (i.e., based on a total monthly income of $4,160.00).[^5] The Respondent also advised the Applicant verbally on different occasions that he had a higher annual income, although I also accept that his work income has been irregular and has fluctuated. In the circumstances, I find that a change in his monthly child support is not warranted at this time. I add that the Applicant did not seriously pursue the issue of child support at trial. Accordingly, I am persuaded that it is fair and just for the Respondent to continue paying table child support based on an annual income of $45,000.00.
[69] The Applicant submits that the Respondent’s child support and s.7 payments are in arrears, with an outstanding balance of more than $14,412.21 plus interest. The Respondent admits that his child support payments may be in arrears, but disputes the amount of the arrears because he claims that he made further support payments to the Director of the Family Responsibility Office (“FRO”) in excess of the payments that FRO has credited him with, which the Applicant applied in arriving at her accounting of the claimed arrears.
[70] From the evidence, I accept that the Respondent initially agreed to pay $544.00 in monthly child support for both children after separation but made only infrequent payments that went into arrears. Thereafter, pursuant to Trimble J.’s consent order of August 17, 2017, the Respondent was to pay $335.00 in monthly child support from August 2017 onwards, which later changed to became $674.00 per month from January 2018 onwards by order of McSweeney J. dated August 3, 2018. I add that the Respondent later arranged with FRO for a voluntary payment schedule by which he made monthly payments in excess of the ordered amount to pay his arrears.
[71] Based on the foregoing, I find that the Respondent’s child support payments are $10,007.00 in arrears.[^6] From the evidence, I also find that the children’s combined s.7 expenses from the date of separation to February 22, 2019 reasonably amount to at least $6,723.37. As such, I find that the Respondent is responsible to pay $3,738.19 of towards the s.7 expenses which reflects his 55.6% share (i.e., per the Applicant/Respondent “36:45” or 4:5 income ratio in McSweeney J.’s August 3, 2018 order). At trial, the Respondent did not seriously challenge his obligation to pay his share of s.7 expenses but claims that he did not do so earlier because the Applicant did not provide receipts to validate these expenses prior to trial.
[72] Should FRO later determine that the Respondent’s child support arrears are less than $10,007.00 due to any unaccounted payments that he made to FRO before February 2019, then FRO may provide the Respondent with an appropriate credit for any such amount against any future support payments that he is required to make.
[73] It follows that the Respondent owes $13,745.19 for aggregate unpaid child support and s.7 expenses (i.e., $10,007.00 plus $3,738.19), as reflected in the Post-Separation Adjustments at Schedule “B” to these reasons.
d. Travel Abroad to a Non-Hague Convention Country
[74] The Respondent would like to travel with his children to Iraq so that they may spend time with his extended family and experience Iraqi culture and heritage.
[75] The Applicant is opposed to the Respondent travelling to Iraq with the children because she fears that he would keep them in Iraq with his family and not return them to Canada. Given that Iraq is not a signatory country to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”), the Applicant also fears that she would lack meaningful legal recourse if her children were not returned from Iraq. She is particularly concerned that the Respondent will abscond with the children to Iraq or another Middle Eastern country that is not a signatory to the Hague Convention because he moved $222,229.29 to his brother in Iraq to keep for him. Given the substantial nature of these funds that the Respondent dissipated from their martial assets, the Applicant believes that the Respondent is at high risk of fleeing Canada with their children. Her concern is aggravated by the Respondent’s lack of other family ties in Canada, his good business connections and job prospects in the Middle East, and his alleged motivation to avoid paying his child support obligations by relocating from Canada.
[76] The Respondent states that he would return the children to Canada after vacationing in Iraq, and he claims that any concerns that he will not do so are simply unfounded. He feels that he and the children are now settled in Canada, where they have invested considerable time and effort to settle themselves. He plans to invest money in a construction business in Canada and to become accredited as a professional engineer. He feels that he and his children have a good lifestyle and promising future in Canada. He believes that the Applicant’s refusal to give her consent for the children to visit Iraq is wholly due to her resentment and anger towards him, as well as her wish to control his parenting time, which are not properly grounded in any legitimate concern related to the children’s best interests.
[77] The Applicant wishes to vacation with the children in the United States. But because she refuses to consent for the children to travel to Iraq, the Respondent refuses to consent for the children to travel to the United States or other Hague Convention signatory countries. Pursuant to the terms of Fowler Byrne J.’s final order of September 26, 2018, the parties are at liberty to travel with the children within Canada, subject to some notice requirements for trips longer than 72 hours.
[78] Where parents who are separated have conflicting views of what is in the best interests of their children, including issues related to their travel plans, the court may be called upon to determine whether a specific travel choice is in the children’s best interests. This type of best interests analysis has been framed as a “cost-benefit” determination: Kelada v Labib, 2016 ONSC 7737 at paras 28-30; Hamid v. Mahmood, 2012 ONCJ 474 at para 32.
[79] From the record before the court, I find that it would not be in the best interests of the children to travel to Iraq at this time.
[80] I accept the Respondent’s submission that there would be positive benefits for the children to visit their relatives in Iraq and experience Iraqi culture. Undoubtedly, such an experience would contribute to their familial and cultural self-awareness and be valuable. However, this benefit must be weighed against the risk of harm to the children based on the totality of the evidence: Kelada at para 32.
[81] From the evidence before the court, I find that the benefits to the children of visiting their relatives in Iraq do not outweigh the serious risk of abduction and harm that they would face if the Respondent was allowed to travel to Iraq with them. As mentioned above, the Respondent sent $222,229.29 to his brother in Iraq to keep for him. This is a very significant amount of money that I find to be consistent with a deliberate and planned effort by the Respondent to relocate to Iraq or the Middle East.
[82] In general, I recognize the risk in allowing children to travel to countries that are not signatories to the Hague Convention because of the lack of legal recourse if the children are not returned: Kelada at para 25. In this case, this concern is magnified by the significant funds that the Respondent transferred to Iraq, his deep personal roots in Iraq and other Middle Eastern countries that are not Hague Convention signatories, and his relatively limited ties to Canada at this time. In my view, all of these factors point to a risk of the children not being returned, and warrants not having them to travel to Iraq (i.e., which continues to have a volatile security situation due to its ongoing conflict) or other Middle Eastern countries that are not signatories to the Hague Convention. Although the Respondent suggested that the Applicant could travel to Iraq or the Middle East with him and the children to mitigate the risk, the Applicant is not prepared to accompany him given their strained relationship, which is understandable. In any event, I am not persuaded that the Applicant would necessarily have better or meaningful legal recourse if the children were taken in Iraq or another country in the Middle East, even if she were to physically accompany them on any such travel.
[83] I also am mindful that Iraq remains in conflict, which led the Government of Canada to issue a warning against traveling to Iraq due to the associated risks and dangers.
[84] Based on the foregoing, I find that it would not be in the best interests of the children to travel to Iraq at this time.
[85] From the evidence, I do not have a concern with either party travelling with the children to visit a country that is a signatory to the Hague Convention. I accept that travel abroad would benefit the children by expanding their horizons with interesting and informative experiences, and without any of the risks of harm associated with travel to Iraq or other non-Hague signatory countries.
e. Occupation Rent
[86] At the outset of this trial, the Respondent sought leave to amend his answer to include a claim for occupation rent. As the Applicant did not claim any prejudice arising from the proposed amendment, apart from the Respondent’s delay in raising the claim, I granted leave to amend the answer to include a claim for occupation rent. However, as explained below, I find that this is not an exceptional case that merits an award of occupation rent.
[87] In Alsaid-Ahmad v. Jibrini, 2019 ONSC 4012 at para 51, the following considerations were adopted from Malik v. Malik, 2015 ONSC 2218 at paras 154-155 in deciding an occupation rent claim:
[154] An award of occupation rent is an equitable remedy that will only be awarded in exceptional cases; see Foffano v. Foffano, [1996] O.J. No. 3284, and Rezel v. Rezel, 2007 CanLII 12716 (ON SC), [2007] O.J. No. 1460, McColl v. McColl, 1995 CanLII 7343 (ON SC), 13 R.F.L. (4th) 449 and Higgins v. Higgins, 2001 CanLII 28223 (ON SC), [2001] O.J. No. 3011.
[155] The relevant factors as to an award are set out in Higgins v. Higgins. These factors include:
(a) The conduct of the non-occupying spouse including the failure to pay support;
(b) The conduct of the occupying spouse including the failure to pay support;
(c) Delay in making the claim;
(d) The extent to which the non-occupying spouse was prevented from having access to his or her equity in the home;
(e) Whether or not the non-occupying spouse moved for the sale of the home and, if not, why not;
(f) Whether the occupying spouse paid the mortgage and other carrying charges of the Matrimonial Home;
(g) Whether the children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; and
(h) Whether the occupying spouse increased the selling value of the property.
[88] In this case, the Respondent’s failure to pay child support weighs against an award of occupation rent. He paid irregular child support and did not pay any of the children’s s.7 expenses despite McSweeney J.’s order of August 3, 2018 directing the parties to share them. His child support payments are now in arrears and have remained so since the date of separation.
[89] Similarly, the Respondent’s mortgage arrears militate against an award of occupation rent. For several months after separation, the parties jointly made mortgage payments on the matrimonial home from their joint bank account. They later paid the mortgage by making separate payments from their own respective bank accounts. Then, the Respondent stopped making any mortgage payments and left the Applicant solely responsible for all mortgage and other carrying costs on the matrimonial home.
[90] The Respondent’s occupation rent claim was an afterthought, which he did not raise until shortly before the start of trial. His lengthy delay in raising this claim is a significant factor that weighs against granting the relief sought. The Applicant remained with the children in the matrimonial home until it was sold and brought her case to court understanding that occupation rent was not at issue. Once the occupation rent claim was raised, the Applicant was entitled to offset any repair, maintenance or improvement costs to the home: Rezel at para 26; Higgins at para 39. But given the ensuing passage of time that compromised her ability to quantify these costs accurately (i.e., to which she had not turned her attention believing that occupation rent was not at issue), I find that the Respondent’s delay in raising his occupation rent claim compromised the Applicant’s ability to respond fully to this issue.
[91] I am also persuaded that occupation rent should not be awarded due to the Respondent’s conduct in taking $222,226.26 from the parties’ joint line of credit and sending these funds to Iraq for his own personal use, as set out above. When the Respondent willfully stopped paying to service the loan on the $222,229.29 (i.e., that he kept for himself and refused to return), the Applicant found herself forced to pay interest on the loan to avoid enforcement proceedings that otherwise would have caused the matrimonial home to go into foreclosure. The Respondent’s conduct was high-handed and caused the Applicant financial hardship.
[92] Accordingly, I find that it would be unjust to allow the claim for occupation rent.
Costs
[93] The Applicant was more but not entirely successful at trial and is presumptively entitled to costs: Beaver v. Hill, 2018 ONCA 840 at para 10; Rule 24(1) of the Family Law Rules.
[94] Section 131 of the Courts of Justice Act confers broad discretion on the court to award costs, while Rule 24(12) sets out considerations for setting costs amounts. It is well-established that in setting costs, “proportionality and reasonableness are the touchstone considerations to be applied:” Beaver at paras 12 and 19.
[95] The Applicant was represented at trial by two (2) counsel, being Ms. Razzouk (a 2013 call who charged $375/hour) and Mr. Skikavich (a 2017 call who charged $275/hour). I find their rates to be reasonable. Her bill of costs seeks global costs for trial of $98,239.37 on a full indemnity scale, featuring: a) pre-trial counsel time of 10.5 hours, amounting to $4,449.37; b) trial preparation time by counsel of 148 hours, amounting to $62,715.00; c) trial attendance time by counsel of 44 hours, amounting to $18,645.00; and d) claimed disbursements of $12,430. Her bill of costs does not provide a detailed breakdown but only these aggregated costs figures.
[96] The Respondent, who is self-represented, incurred global costs of $25,000.00, inclusive of his limited retainer counsel fees and other disbursements.
[97] Prior to trial, the parties exchanged offers to settle dated May 5, 2019. Having reviewed them, I am not persuaded that the Applicant’s offer met the conditions of Rule 18(14)(5) to trigger adverse cost consequences and I find that the Respondent’s offer would not have left the Applicant better off than the final result.
[98] The issues raised at trial were important but not unduly complex. That being said, I recognize the parties likely were challenged in their efforts to support their disputed claims with financial records or documentation.
[99] The Applicant succeeded on the matters of the $222,229.29 loan, the $57,000.00 returns from the gym investment, the custody and child support arrears, traveling abroad with the children, and occupation rent. The parties largely had divided success on the remaining issues in dispute, albeit with the Applicant being somewhat more successful on the equalization matter given my finding regarding the Respondent’s investment claim related to the Applicant’s aunt.
[100] Taking the foregoing into consideration, I find that it would be fair and just to fix the Applicant’s costs on a substantial indemnity scale in the fixed amount of $45,000.00, inclusive of taxes and disbursements, to reflect her success on the post-separation adjustments as well as the issues related to the children. This award reflects the fact that about half of the trial was spent on these issues (i.e., particularly with the $222,229.29 loan), and it also reflects a proportional amount of trial preparation time and disbursements. The Respondent’s high-handed position in respect of the $222,229.29 loan and $57,000.00 gym investment returns was wholly unreasonable and had a serious negative impact on the Applicant’s credit score and finances. As such, I find that awarding these costs on a substantial indemnity scale is fair and just for the Respondent to pay. Although the Applicant unsuccessfully argued several matters in dispute by advancing positions that at times were not entirely reasonable, I do not find that she engaged in the kind of misconduct that the Respondent demonstrated (i.e., particularly in respect of the post-separation adjustments) which I find warrants the court’s clear disapproval.
Outcome
[101] Based on the foregoing, I make the following final orders:
a. The date of separation is April 7, 2016;
b. The Applicant owes the Respondent $38,213.13 (i.e., which reflects a $97,194.70 equalization payment that she owes less a post-separation adjustment of $58,981.57 that is owed to her);
c. The solicitor holding in trust the proceeds from the sale of the parties’ matrimonial home (the “Solicitor”) is directed to pay the Respondent the amount of $38,213.13 from the Applicant’s share of those proceeds (the “Proceeds”), after which the balance of her share of the Proceeds may be released to her;
d. The Solicitor is directed to pay the Applicant the amount of $45,000.00 (i.e., representing her costs of this trial) from the Respondent’s share of the Proceeds;
e. The Solicitor is further directed to pay Royal Bank of Canada (the “Bank”) the amount of $264,545.33 to repay the parties’ joint line of credit (i.e., which reflects the $222,229.29 principal loan amount, plus $16,599.99 in further loan withdrawals on the line of credit, and $25,716.05 in unpaid loan service costs) from the Respondent’s share of the Proceeds;
f. The Solicitor is further directed to pay the Bank any additional outstanding loan service costs on the parties’ joint line of credit to fully repay and retire this debt obligation, which shall be paid from the Respondent’s share of the Proceeds;
g. The Solicitor is further directed to make the foregoing payments in paragraphs (c), (d), (e) and (f) in that order, only after which any remaining funds from the Respondent’s share of the Proceeds are to be released to him;
h. The Respondent shall pay table support for the two (2) children of the marriage, namely Jenna Muataz Al-Bajawi (born September 14, 2006) and Ali Muataz Al-Bajawi (born June 6, 2010), based on an annual income of $45,000.00;
i. The Director of the Family Responsibility Office shall credit the Respondent for any prior support overpayments that he has made, if any, including any that appear after or as a result of the post-separation adjustments arising from this decision, which may involve a credit against future support payments that the Respondent is required to make, as may be appropriate;
j. The custody and parenting time arrangements pursuant to the Final Order of Fowler Byrne J. dated September 26, 2018 shall continue;
k. Either party may travel abroad with the children of the marriage, namely Jenna Muataz Al-Bajawi (born September 14, 2006) and Ali Muataz Al-Bajawi (born June 6, 2010), on reasonable prior notice to the other party without requiring the other party’s consent, but any such travel abroad shall not be to Iraq or to any other country that is not a signatory country to the Hague Convention on the Civil Aspects of International Child Abduction;
l. The Respondent’s claim for occupation rent is dismissed;
m. The Applicant may take out a Final Order for this judgment and the Respondent’s approval as to its form and content is dispensed with; and
n. Once the Final Order is issued, the Applicant shall deliver a copy to the Respondent forthwith.
Doi J.
Released: December 11, 2019
Schedule “A” - Net Family Property
| Value of Assets owned on Valuation Date | Applicant | Respondent |
|---|---|---|
| Matrimonial Home | $382,500.00 | $382,500.00 |
| Rental Property in Iraq | $78,000.00 | |
| Household goods | $20,000.00 | |
| Cars (Civic, Mazda) | $12,000.00 | $7,000.00 |
| Jewellery | $2,500.00 | |
| Bank Accounts Joint Chequing RBC Mutual Funds RESPs (for children) |
$10,807.79 $88,489.40 $31,545.97 |
$10,807.79 $31,545.97 |
| Life Insurance (face value) | $400.00 | |
| (Line 1) Totals | $626,243.16 | $431,853.76 |
| Value of Debts and Liabilities on Valuation Date | ||
| Mortgage | ($43,204.10) | ($43,204.10) |
| Brokerage Fee for Sale of Matrimonial Home Other Fees for Sale of Matrimonial Home |
($7,627.88) ($2,121.89) |
($7,627.88) ($2,121.89) |
| (Line 2) Totals | ($52,953.87) | ($52,953.87) |
| (Line 3) Net Family Property (Line 1) – (Line 2) | $573,289.29 | $378,899.89 |
| (Line 4) Equalization Applicant Owes One-Half Difference of Line 3 Figures to Respondent |
$97,194.70 |
Schedule “B” - Post-Separation Adjustments
| Respondent Owes Applicant: | Amount |
|---|---|
| (1) One-half Loan Service Payment | $2,055.31 |
| (2) Loan Service Payments by Applicant | $10,307.88 |
| (3) One-half of UAE Gym Investment Returns | $28,500.00 |
| (4) Applicant’s Mortgage and Property Tax Payment | $4,373.19 |
| (5) Child Support Arrears | $13,745.19 |
| Subtotal (Line 5) | $58,981.57 |
| Respondent Owes Lending Institution on Joint Line of Credit | |
| (6) Principal Amount of Line of Credit | $222,229.29 |
| (7) Respondent’s Withdrawals on Line of Credit | $16,599.99 |
| (8) Unpaid loan service | $25,716.05 |
| Subtotal (Line 6) | $264,545.33 |
| (Line 7) Total Post-Separation Adjustments Owed by Respondent to Lending Institution | $323,526.90 |
| FINAL RECONCILIATION | |
| Applicant Pays Respondent (Line 4) less (Line 5) | $38,213.13 |
[^1]: The Applicant’s mother, Alya Al-Shaibani, testified that the parties did not provide her with money to purchase property in Iraq, and claimed that the Respondent did not purchase a property in her name. However, she claimed to be unaware of any funds that the Respondent may have provided to her late husband, and the Applicant did not seriously challenge the Respondent’s claim that the investment property in Dora was held in her mother’s name, which I accept was the case.
[^2]: Per: Line of Credit Detailed Analysis at Exhibit F.
[^3]: The last mortgage payment from the parties’ joint account appears to have been made on October 18, 2016 in the amount of $793.93 (Tab 32 to Exhibit 1).
[^4]: The Applicant prepared financial summaries (at Exhibits E and F) suggesting that she had paid a total of $11,908.95 in mortgage payments and $18,679.22 (i.e., reflected an apparent blended total of $12,452.81 and $6,226.41) in municipal property taxes. However, the Applicant’s banking statements (i.e., filed at Tabs 34 and 35 of Exhibit 1) show that she made only $5,557.51 in mortgage payments (i.e., by way of seven (7) monthly mortgage payments of $793.93 each that were made on January 11, 2017, April 24, 2017, December 14, 2017, March 6, 2018, March 27, 2018, July 11, 2018 and July 20, 2018), and only $9,540.30 in property tax payments (i.e., $2,133.51 on November 15, 2016, $1,000.00 on February 19, 2018, $1,000.00 on March 7, 2018, $3,837.25 on April 5, 2018, $684.00 on May 3, 2018, $161.54 on June 26, 2018, and $724.00 on July 18, 2018), for a combined aggregate total of $15,097.81 in mortgage and tax payments (i.e., $5,557.51 and $9,540.30).
[^5]: Respondent’s Trial Record, Tab 4, p. 10 (Financial Statement Summary Page).
[^6]: At trial, the Applicant amended her amount owing figure to $10,007.00 (i.e., from $10,677.00 on p. 4 of Exhibit G) to recognize and account for $670.00 in child support payments that the Respondent had made (i.e., $335.00 in August 2017, and $335.00 in September 2017, respectively).