Court File and Parties
Court File No.: FS-18-93345-00 Date: 2020-02-28 Superior Court of Justice - Ontario
Re: Noor Hesson, Applicant And: Yasser Shaker, Respondent
Before: Barnes J.
Counsel: Syed Kabir, for the Applicant Chiara Yousef, for the Respondent
Heard: September 26, 2019
Endorsement
OVERVIEW
[1] The Applicant, Noor Hesson, has moved for retroactive and ongoing child support, arrears for section 7 expenses, a finding that the parties’ Sharia Marriage Contract is enforceable, and an order for the Respondent, Yasser Shaker, to provide the requisite consent and recitation to affect a divorce under Sharia Law.
[2] Noor Hesson and Yasser Shaker married in March 2015 and have since separated. After hearing the submissions of the parties and for the reasons described below, I order Mr. Shaker to pay:
i. Child support arrears in the amount of $6,627.00 for the period of July 2018 to September 2019;
ii. Monthly child support in the amount of $1,129.00 commencing October 1, 2019 and on the first of each month thereafter;
iii. Arrears for section 7 expenses in the amount of $1,751.04 and
iv. 72% of all section 7 expenses commencing October 1, 2019, being the proportionate share of his income. Ms. Hesson shall pay 28% of all section 7 expenses commencing October 1, 2019.
[3] I also order that Mr. Shaker shall personally conduct the necessary recitation, provide his consent and sign all necessary papers and documents to affect a Sharia Law divorce between the parties. The Shari Law divorce shall not prevent either Mr. Shaker or Ms. Hesson from asserting any entitlement to the $30,000.00 dowry claim payable in accordance with the terms of the Sharia Marriage Contract.
BACKGROUND
[4] On March 28, 2015, Mr. Shaker and Ms. Hesson married in a ceremony under Sharia Law. This marriage took place in Toronto, Ontario. The parties also signed a Sharia Marriage Contract at the time of marriage that outlined the details of a dowry that was to be paid.
[5] There is one child of the marriage, Yousef Shaker, born September 6, 2017. The child currently resides with Ms. Hesson.
[6] The parties separated on June 19, 2018. They divorced in September 2019.
[7] On September 26, 2019, I heard Ms. Hesson’s motion requesting retroactive and ongoing child support, contribution to section 7 expenses for the child, enforceability of the Sharia Marriage Contract, and an order that Mr. Shaker provide the requisite consent and recitation to affect a divorce under Sharia Law.
ISSUES
[8] The following issues have been raised on this motion:
Should Mr. Shaker pay retroactive child support to Ms. Hesson?
What is the quantum of ongoing monthly child support Mr. Shaker should pay to Ms. Hesson?
Should Mr. Shaker pay section 7 expenses?
Is the Sharia Marriage Contract valid and enforceable under provincial law?
If the Sharia Marriage Contract is valid and enforceable, is Ms. Hesson entitled to include the debt from the dowry as part of her net family property for the purpose of equalization?
Should Mr. Shaker be ordered to take all necessary steps required to affect a divorce between the parties under Sharia Law?
CHILD SUPPORT
[9] As per an agreement between the parties commencing August 2018 and based on an annual income of $93,350.00 for 2017, Mr. Shaker paid child support for Y.S. of $859.00 per month to Ms. Hesson. Mr. Shaker did not pay any child support for the month of July 2018.
[10] Based on Mr. Shaker’s 2018 Notice of Assessment, his annual income in 2018 was $127,791.00. Mr. Shaker did not adjust his child support payments as required in consideration of his increased income. He did, however, continue paying child support until July 2019 in the amount of $859.00 per month. Mr. Shaker ceased paying any child support payments as of August 2019. Ms. Hesson therefore seeks $6,627.00 in child support arrears. This represents the period from July 2018 to September 2019, accounting for the months where no child support was paid, and the difference in the amount payable under the Guidelines and the actual amount paid by Mr. Shaker.
[11] For the purpose of this motion, Ms. Hesson relies on Mr. Shaker’s line 150 income for 2018. Ms. Hesson also submits that Mr. Shaker has additional income from the University of Manitoba and rental income which he has failed to disclose. Mr. Shaker denies receiving any rental income. He submits that the rental property is owned by his parents and that he is only on title for the rental property to enable his parents to qualify for a mortgage. Any cheques made out to him are to pay the mortgage.
[12] Mr. Shaker’s full-time employment with Trillium Health ended on July 25, 2019. He is currently employed by the University of Manitoba as a casual employee. He estimates his annual salary from that employment to be $12,310.00. When his severance package from Trillium Health is included, he estimates his 2019 income to be $76,733.00.
[13] In ordinary circumstances, child support is based on income as declared in the payor’s tax return (“line 150 income”). The applicable Child Support Guideline is then used to determine the amount of monthly child support. The parties were married, and therefore s. 16 of the Federal Child Support Guidelines (SOR/97-175) applies.
[14] Mr. Shaker’s estimated income from the University of Manitoba is only an estimate. Thus, I am unable to determine for certain what his income for 2019 will be. However, it is not disputed that his annual income for 2018 was $127,791.00. Where income for a given year is uncertain, child support shall be adjusted in accordance with the line 150 annual income of the previous year. Therefore, Mr. Shaker’s 2018 income of $127,791.00 will therefore be used to calculate the Guidelines child support payable in 2019 and onwards.
[15] Pursuant to the Guidelines, child support payable for one child based on a payor’s income of $127,791.00 is $1,129.00 per month. This constitutes an increase of $270.00 per month from the previous arrangement between the parties whereby Mr. Shaker paid Ms. Hesson $859.00 per month in child support. Mr. Shaker shall therefore pay child support arrears in the amount of $6,627.00 for the period of July 2018 to September 2019. This amount takes into account the months where no child support was paid, and the difference in the amount payable under the Guidelines and the actual amount paid by Mr. Shaker. Mr. Shaker shall also receive full credit for any amounts he has already paid towards these arrears.
[16] Ms. Hesson seeks the monthly child support adjustments to take effect on October 1, 2019. Therefore, based on an annual income of $127,791.00 in 2018, Mr. Shaker shall pay monthly child support in the amount of $1,129.00 per month commencing on October 1, 2019.
SECTION 7 EXPENSES
[17] Section 7 of the Guidelines permits the court to order a spouse to provide for all or any portion of special or extraordinary expenses related to the child. This includes, inter alia, child care expenses.
[18] Ms. Hesson requests that Mr. Shaker pay arrears of the section 7 expenses incurred for the child Y.S. She calculates total child care costs between April and September 2019 to be $2,432.00.
[19] Section 7 expenses are calculated in accordance with the annual income of both parties. The expense will be shared by the spouses in proportion to their respective incomes: Guidelines, s. 7(2). Ms. Hesson’s income in 2018 was $50,040.00. Mr. Shaker’s income in the corresponding year was $127,791.00. Therefore, the proportionate share of section 7 expenses for Ms. Hesson is 28% and for Mr. Shaker 72%.
[20] Mr. Shaker shall therefore pay Ms. Hesson his proportionate share of the section 7 expenses incurred by Ms. Hesson for Y.S.’s child care in the amount of $1751.04. Commencing on October 1, 2019, Mr. Shaker shall pay 72% of all section 7 expenses for Y.S., and Ms. Hesson shall pay 28% of all section 7 expenses for Y.S., proportionate to their respective incomes.
[21] I note that Mr. Shaker complains that he was never consulted on child care costs for Y.S. Though his complaint may be reasonable, the provision of child care is an indispensable necessity and thus he is not absolved of the responsibility to pay his proportionate share. I note, however, that it is open to Mr. Shaker to advance alternate child care arrangements for Ms. Hesson’s consideration should he choose to do so.
SHARIA MARRIAGE CONTRACT
[22] On March 28, 2015, the parties married under Sharia Law. As part of the religious ceremony, the parties signed a Sharia Marriage Contract (“contract”). Under this contract, Mr. Shaker agreed to the following terms:
To pay $30,000.00 as an advanced dowry; and
To pay a deferred dowry of $30,000.00 upon affordability.
[23] Ms. Hesson submits that this contract is binding and enforceable. Mr. Shaker argues the contract is not enforceable.
[24] A marriage contract which meets all the requirements for a civil contract under provincial legislation is legally enforceable even if the contract has a religious aspect: Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607, at para. 123; Bakhshi v. Hosseinzadeh, 2017 ONCA 838, at paras. 21-22.
[25] In Bakhshi, the parties were married in Iran in May 1995. They entered a Maher which required the husband to pay his wife 230 gold coins upon her request. The Court of Appeal for Ontario did not interfere with the trial judge’s finding that the Maher was a civil domestic contract enforceable under provincial legislation. Therefore, the husband owed the wife a debt which could be included in the equalization calculation: Bakhshi, at paras. 2, 20-22, 34, 41-44.
[26] Mr. Shaker submits that Bakhshi is distinguishable from this case on the following grounds:
The contract is not enforceable either in Canada or Iran;
It is unclear whether the amount should be classified as a “Maher” or a “dowry”;
It was the intention of the parties to exclude Canadian courts from dealing with the document. In case of conflict, the intent was always to resolve disputes under Sharia Law;
Neither party obtained independent legal advice; and
The agreement is poorly drafted and does not identify who should pay the $30,000.00 and who should receive the $30,000.00, or whether the total amount to be paid is $60,000.00. There is also no requirement for Mr. Shaker to initiate the divorce.
[27] I conclude that the principles in Bakhshi apply to the issues in this case. The contract signed by the parties in Ontario meets the formal statutory preconditions for a domestic contract as set out in the Family Law Act, R.S.O. 1990, c. F.3. The contract was in writing, signed by the parties, and witnessed: Family Law Act, s. 55(1).
[28] I also find that the terms are reasonable and that there was no oppression or unfairness surrounding the negotiation of the contract: Gallacher v. Friesen, 2014 ONCA 399, at para. 27. Further, in the context of this religious marriage, the absence of independent legal advice is not a bar to the enforceability of the contract: Akkawai v. Habli, 2017 ONSC 6124, at para. 230.
[29] I also find that it was the intention of the parties to be bound by the terms of the contract. The contract contemplates an initial payment of $30,000.00. Pursuant to the contract, Mr. Shaker paid Ms. Hesson $30,000.00. This constitutes a clear intent that payments were to be made by Mr. Shaker to Ms. Hesson. The contract also contemplates an additional payment of $30,000.00 when the payee can afford to make the payment. Though not specifically mentioned in the contract, it is clear and obvious that the parties intended Mr. Shaker to make the next payment of $30,000.00 when he could afford to do so.
[30] I therefore find that the Sharia Marriage Contract is valid and enforceable.
EQUALIZATION
[31] A payment obligation under a religious contract is enforceable as a debt owed by the payor to the payee and will therefore be included in the payee’s net family property for the purpose of equalization: Family Law Act, s. 4; Bakhshi, at paras. 41-43.
[32] Following a finding that the Sharia Marriage Contract is valid and enforceable, I also find that the $30,000.00 owed under the contract is a debt Mr. Shaker owes to Ms. Hesson. Ms. Hesson is entitled to include this in her net family property statement for the purpose of the equalization calculation. However, should Ms. Hesson initiate the divorce, this finding is without prejudice to Mr. Shaker’s right under the contract to request a refund of the $30,000.00 he has already paid to Ms. Hesson.
SHARIA LAW DIVORCE
[33] Ms. Hesson seeks an order requiring Mr. Shaker to consent to a divorce, recite the divorce and sign all necessary papers and documents to affect the divorce under Sharia Law. Expert evidence was provided by Imam Sayyid Muhammad Rizvi on this issue. The qualifications of the expert are not in dispute and his evidence is accepted.
[34] Imam Rizvi explained that under Sharia Law, there are two types of religious divorce defined by who initiates the divorce. Divorce initiated by the husband is called Talaq and divorce initiated by the wife is call Khula. The decision to initiate the divorce has different consequences for husband and wife. According to Imam Rizvi, irrespective of who initiates the divorce, divorce under religious law requires recitation and consent of the husband. Thus, there is a distinction between the initiation and provision of consent for a divorce.
[35] Imam Rizvi further explained that should Mr. Shaker initiate the divorce, he will be required to pay the second $30,000.00 under the contract. If Ms. Hesson initiates the divorce, Mr. Shaker is entitled to ask Ms. Hesson to refund him the first $30,000.00 that he has already paid.
[36] Despite counsel for Mr. Shaker’s submissions, there is no admissible evidence to refute Ms. Hesson’s claim that without a divorce under Sharia Law, she is regarded as a married woman under Iranian law: see also Etemad v. Hasanzadeh, 2014 ONSC 6737, at paras. 15-16.
[37] Ms. Hesson seeks an order requiring Mr. Shaker to consent to a divorce, recite the divorce and sign all necessary papers and documents to affect the divorce under Sharia Law. The real issue is who initiates the divorce. I am reluctant to order Mr. Shaker to initiate the divorce because that is not the relief sought by Ms. Hesson. In addition, initiating the divorce may prejudice Mr. Shaker’s right under the contract to request repayment of the first $30,000.00 as provided by the terms of the contract.
[38] On May 22, 2019, Price J. ordered that Mr. Shaker consent to a divorce under Sharia Law. However, I will accede to Ms. Hesson’s request and again order Mr. Shaker to consent to a divorce and to provide recitation of the divorce. As soon as a divorce is initiated, Mr. Shaker shall personally provide the required recitation and consent forthwith. He shall also sign all papers and documents required to affect the divorce under Sharia Law. This order is made without prejudice to either party to amend their pleadings to seek relief on the issue of who should initiate the religious divorce.
CONCLUSION
[39] After hearing the submissions of the parties and for the reasons described above, I hereby order:
That the Respondent Yasser Shaker shall pay arrears of child support for the child, Yousef Shaker, born September 6, 2017, to the Applicant Noor Hesson in the amount of $6,627.00 representing the period from July 2018 to September 2019;
That commencing on October 1, 2019, and on the first day of each month thereafter, the Respondent Yasser Shaker shall pay child support for the child, Yousef Shaker, born September 6, 2017, to the Applicant Noor Hesson in the amount of $1,129.00 per month based on his annual income of $127,791.00;
That the Respondent Yasser Shaker shall pay arrears of section 7 expenses in the amount of $1,751.04 to the Applicant Noor Hesson;
That commencing on October 1, 2019, the Respondent Yasser Shaker shall pay 72% of all section 7 expenses, and the Applicant Noor Hesson shall pay 28% of all section 7 expenses, in proportion to their respective incomes;
That the Respondent Yasser Shaker shall pay all arrears previously described forthwith from his share of any proceeds from the sale of the matrimonial home. If the matrimonial home has not been sold and the parties cannot agree on a payment arrangement within seven days of the date of this decision, then the Respondent Yasser Shaker shall pay all arrears within 45 days from the date of this decision. The Respondent Yasser Shaker shall also receive full credit for any amounts he has already paid towards these arrears;
That as soon as a divorce is initiated, the Respondent Yasser Shaker shall attend before an Imam to provide consent for a divorce, recite the divorce, and sign all necessary papers and documents to affect a divorce between the parties pursuant to Sharia Law. The Respondent Yasser Shaker shall forthwith inform the Applicant Noor Hesson in writing after all necessary steps have been taken; and
That a divorce under Sharia Law shall not disentitle either the Respondent Yasser Shaker or the Applicant Noor Hesson from asserting any entitlement to the $30,000.00 dowry claim payable in accordance with the terms of the Sharia Marriage Contract.
COSTS
[40] Should the parties be unable to agree on costs, costs submissions of no more than three pages shall be submitted within 20 days of the release of this decision.
Barnes J.
Date: February 28, 2020
COURT FILE NO.: FS-18-93345 DATE: 2020-02-28
SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
NOOR HESSON Applicant
- AND -
YASSER SHAKER Respondent
COUNSEL: Syed Kabir, for the Applicant Chiara Yousef, for the Respondent
ENDORSEMENT
Barnes J.
Date: February 28, 2020