COURT FILE NO.: FS-20-16390 DATE: 20200708 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Hiba Yehia de Jauhari Applicant – and – Fedi Jauhari Jauhari Respondent
Fareen L. Jamal, for the Applicant Fedi Jauhari Jauhari not appearing
HEARD at Toronto: July 3, 2020
Reasons for judgment C. Horkins J.
Overview
[1] The Applicant, Hiba Yehia de Jauhari (“Applicant/wife”) proceeded with an undefended trial pursuant to the court order dated June 26, 2020. The Applicant’s evidence is not contested. Her evidence is set out in detail in her Affidavit for Uncontested Trial, dated June 28, 2020 (“trial affidavit”). I accept her evidence as fact.
[2] The Applicant and Respondent, Fedi Jauhari Jauhari (“Respondent/husband”) are Lebanese nationals. They were married on October 23, 1990 and separated on April 4, 2020. They have four children (all daughters) ages 28, 27, 19 and 16. The Applicant is 51 years old and the Respondent is 56 years old.
[3] The Applicant seeks orders concerning the two younger children: Nina Fadi Jauhari Yehia ("Nina") born on October 13, 2000; and Gabriela Fadi Jauhari Yehia ("Gaby") born on November 14, 2003. Reference in these Reasons to the “children” means Nina and Gaby.
[4] For the majority of the 30-year marriage, the parties lived in Venezuela. They have significant assets in Venezuela including land and four pharmacies and major investment accounts which generate significant interest income in Lebanon, with values in the millions of US dollars.
[5] In early 2012, at the outset of the economic crisis in Venezuela, and after the Respondent had been threatened for the second time and their home ransacked by thieves, the parties decided to move to Canada for the safety and welfare of their children.
[6] The Applicant has resided in Ontario with the children since 2012. The Respondent moved to Ontario permanently (previously he would visit for months at a time) in November 2018.
[7] The Applicant is a permanent resident of Canada. She sponsored the younger two daughters and the Respondent under the family class and their application remains pending. The older two children have permanent resident status. The family has never lived together in Lebanon.
[8] After separation, the Respondent left Canada and went to Lebanon.
[9] When the parties separated, the Province of Ontario was the common habitual residence for the parties and the children. The Province of Ontario remains the habitual residence for the Applicant and the children. The children live with the Applicant and attend school in Ontario.
[10] Based on the claims advanced in the Application and the undisputed evidence, the Superior Court of Ontario, has jurisdiction under the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) to make orders dealing with child support and spousal support, has jurisdiction under the Family Law Act R.S.O. 1990, c.F.3 as am, to make orders dealing with equalization of property and has jurisdiction under the Children’s Law Reform Act R.S.O. 1990, c. C.12, as am, to make orders concerning custody and access.
[11] The Applicant seeks final orders dealing with the following claims: custody and access of the children, child support and s. 7 expenses for the children, spousal support, equalization of property and miscellaneous matters.
Custody and Access - Orders
[12] The Applicant seeks custody of the children ages 16 and 19. While child support orders and orders for payment of s. 7 expenses can be made for children 18 years of age and older who are still dependant on a parent, custody orders are not made for “adult” children. The Applicant seeks a custody order for the 19-year-old because she is concerned that the Respondent might obtain a custody order in a court in Lebanon and seek to remove the children from Ontario. The children reside in Ontario and it is this court that has jurisdiction to make orders concerning the children. If a foreign court made a custody order concerning a 19-year-old child of the marriage, such order would not be recognized in this Court based on the uncontested facts.
[13] The Applicant, Hiba Yehia de Jauhari, shall have sole custody of the child Gabriela Fadi Jauhari Yehia born on November 14, 2003. The Applicant agrees that the Respondent may have access and receive reasonable information about the child on request. This is addressed in the orders that will be made.
[14] The Respondent, Fedi Jauhari Jauhari shall have access to the child Gabriela Fadi Jauhari Yehia as arranged directly between himself and the child and in accordance with the views and preferences of the child. The Respondent shall be entitled to receive reasonable information about the child on request. The Respondent shall not remove the child from the Province of Ontario without the express written consent of the Applicant.
Spousal Support
[15] In Reasons for Decision released on June 26, 2020 (2020 ONSC 3891), the Court ordered that the Respondent pay the Applicant temporary spousal support. The Applicant now seeks a final award for spousal support. The facts that supported the temporary order are set out again in the trial affidavit and they support the final spousal support order. The Applicant has a compensatory and non-compensatory basis for spousal support.
[16] The parties were married for 30 years. During the marriage, the Applicant was predominantly a housewife who worked with the Respondent to build his businesses and establish their wealth. She was solely responsible for raising their four children.
[17] The Applicant sacrificed her educational pursuits to follow the Respondent to a foreign country (Venezuela) where she did not know the language and had no connections, family or friends.
[18] The parties are Lebanese nationals who lived in Venezuela for most of their marriage. When they fled Venezuela, they left behind significant assets including land and four pharmacies. They have major investment accounts that generate significant interest income in Lebanon.
[19] When the family arrived in Canada, the Respondent purchased a franchise restaurant in downtown Toronto. This business was not doing well before the COVID 19 pandemic struck and the parties had to transfer investment income from their accounts in Lebanon to support the family.
[20] The Applicant has no control over the restaurant. It is owned and operated under a corporation registered in the Respondent’s name and he is the sole shareholder. As a result of the pandemic, the restaurant was closed and is no longer operational. There is no prospect of this business earning income given the debts that have been incurred.
[21] After an argument with the Respondent in early April 2020 the Applicant became afraid for her safety and that of the children.
[22] Since the separation, the Respondent has refused to transfer any investment income from their accounts in Lebanon to Canada and has refused to cooperate in directing the bank to transfer funds. The Applicant has no access to the investment income that the family used for living expenses before separation.
[23] The two youngest children are dependent and remain in the Applicant’s care. Aside from one small payment, the Respondent has not provided for their support.
[24] As a result of the Applicant’s desperate financial circumstances, she found part-time employment as a sales clerk with Dollarama. This was the only job she could find. However, her earnings are not enough to meet the daily needs.
[25] The Applicant needs support. She believes that the Respondent has directed the bank officials in Lebanon not to release any funds to her as punishment for having commenced this Application.
[26] The Respondent has told the Applicant that he will have a divorce issued in Venezuela for $600 and have the ownership of all joint assets transferred into his individual name so the Applicant cannot assert a property claim. The Respondent was born and raised in Venezuela. The Applicant fears that he will use his connections in Venezuela to make this happen quickly and without notice to her. The Applicant is also concerned that the Respondent will be able to transfer their assets in Lebanon and has bank transfers to show that he has done this in the past. Recently the Applicant issued a Divorce Application in Lebanon.
[27] The family has two sources of investment income. Since separation, the Applicant has had no access to this income even though much of it is in a joint account or investment vehicle. Further, the Respondent has taken steps to move monies from the joint accounts to accounts solely in his name.
[28] Before separation, the Respondent relied predominantly on interest from investment income to support the family. Investment accounts in Lebanon yield especially high interest rates (average of 6.5% to 10%) with annual returns of approximately $177,554 USD per year or $14,796 per month.
[29] On average the Respondent would direct the transfer of approximately $30,000 USD to $40,000 USD of interest income every three to four months into the parties' Canadian accounts, to either support the failing restaurant business or meet the ongoing expenses of the family. The Respondent also receives approximately $1,600 USD per month from the income of the four pharmacies he owns in Venezuela. As such the total income available to the Respondent when grossed up for taxes is $189,444 per annum. This is the income the Applicant asks the court to use to determine support.
[30] The income of $189,444 is based upon the Respondent's investment income (which is not grossed up for taxes on account of it being taxed in Lebanon) and a grossing up of the cash income from Venezuela. This is slightly higher than the temporary spousal support order because the trial affidavit provides more evidence about the investment income.
[31] The Respondent has relied upon investment income to support the needs of the children and the Applicant for several years (since 2014 at the very least) and likely he will not return to regular employment. He was not able to work in Canada.
[32] I am satisfied that this uncontested trial affidavit supports imputation of a yearly income of $189,444 to the Respondent. This is the income that shall be used to calculate child and spousal support.
[33] I have considered the factors in s. 15.2(4) of the Divorce Act and the objectives of a spousal support order as set out in s. 15.2(6). The Applicant has shown that she has a compensatory and non-compensatory need for spousal support. This was a long-term marriage and the Applicant has limited work skills that would allow her to find a job to support herself. Spousal support must recognize the Applicant’s economic disadvantage that results from the breakdown of their marriage. The disadvantage in this case is obvious. The Applicant has no ability to replace the stream of income the family relied upon. She has a clear need for spousal support.
Quantum of Spousal Support
[34] The Applicant has provided Spousal Support Advisory Guideline calculations (“SSAG”) for support. The calculation assumes that she will earn $14,924 a year (part time earnings from her job at Dollarama).
[35] The SSAG is a non-binding tool to decide the quantum of support. The calculations “suggest a range of both amount and duration of support that reflects the current law” (Fisher v. Fisher, 2008 ONCA 11 at para.98). There is no reason to depart from the SSAG calculations in this case.
[36] The Applicant’s SSAG calculations show that spousal support is indefinite and on a monthly basis the range payable (low, mid, high) is $3171, $3669, $4144. Monthly child support for two children is $2550.
[37] The SSAG also provides a lump sum amount for spousal and child support. The Applicant is seeking a lump sum award for spousal support, child support and the s. 7 expenses because she is certain that the Respondent will not comply with an order for periodic monthly payments.
[38] The court has the discretion to order a lump sum award. In this case the following facts support the Applicant’s request for a lump sum award for spousal and child support and the s. 7 expenses.
[39] The Respondent told the Applicant that he is proceeding with Court proceedings for a Divorce in Lebanon and Venezuela. He has made it clear that he will not comply with this Court’s orders. He refuses to provide court ordered disclosure. This spring the Respondent consented to a mutual release of $10,000 to each party from their joint account in Lebanon. Despite his consent, that was part of a court order, the money was not released to the Applicant. She believes that the Respondent directed the bank manager not to release the $10,000 to her.
[40] After consenting to the release of the $10,000, the Respondent told the Applicant he will only consent to a release of funds from their Canadian account. This is not possible because the only money in the Canadian account is money the Respondent and his restaurant received as a loan the from the government because of the COVID-19 pandemic.
[41] The Respondent fled Canada and has no permanent status in Canada. The Respondent is currently in Lebanon and there is no evidence that a support order can be enforced by the Family Responsibility Office in that country. Since separation the Respondent has not paid any child support or made any contributions to the children’s extraordinary expenses aside from a single payment of $500 to Gaby and $1,000 to Nina (the $1500 is reflected as credit in arriving at the total lump sum amount).
[42] As a result of the Respondent’s conduct, the Applicant has had no financial support since separation.
[43] Assuming the Respondent has not already transferred the money, there is enough money in foreign investments to pay a lump sum award. It will provide the parties with a clean break and give the Applicant financial security that she would not have, if left to chase the Respondent for support.
[44] The Applicant seeks a lump sum for spousal support at the high end of the range. Given their long-term marriage and the degree of the Applicant’s dependency on the support, the high end is justified. Based on the SSAG calculations the lump sum is $1,091,699. The Respondent shall pay the Applicant lump sum spousal support in the amount of $1,091,699.
Child Support and S.7 Expenses
[45] Monthly child support is dealt with under the Federal Child Support Guidelines SOR/97-175, as am. Monthly child support for two children is $2,550 as noted in the SSAG calculations.
[46] The Applicant wants support for each child until that child has finished a four-year undergraduate degree. The children are dependant on the parties while attending university. Nina has two years left to finish her degree. As a result, child support for the next two years is based on two children and after that monthly child support of $1583 is payable until Gaby completes her four-year degree.
[47] The total amount of guideline child support is $123,288 and is arrived at as follows:
(a) April 2020 to December 2020 for both Nina and Gaby 9 months x $2,550 = $22,950 (b) January 2021 to December 2021 for both Nina and Gaby 12 months x $2,550 = $30,600 (c) January 2021 to May 2022 for both Nina and Gaby 5 months x $2,550 = $12,750 (d) June 2022 to December 2022 for Gaby alone 7 months x $1,583 = $11,081 (e) January 2023 to May 2025 for Gaby alone 29 months x $1,583 = $45,907
[48] Section 7 of the Guidelines deals with “Special or Extraordinary Expenses” (“s. 7 expenses”) that may be ordered in addition to the monthly support amount. Such expenses are shared in proportion to the respective income of the parties.
[49] The Applicant is seeking an order that the university tuition and ancillary university expenses (i.e. laboratory and book fees) be paid for the duration of a four-year undergraduate degree. Nina and Gaby are intelligent young woman who are ambitious, motivated to do well and establish careers as engineers.
[50] Nina is in her second year of engineering at the University of Toronto and is enrolled in a four-year program. The average cost of her yearly tuition and ancillary expenses is approximately $16,000 per year. Nina lives at home with her mother to save on residence fees. The Applicant wants the Respondent to pay his share for the last two years of Nina’s degree.
[51] In September 2020, Gaby will be in her last year of high school. She attends a private high school. The tuition for her the last year has been paid in full. She plans to enroll in engineering at the University of Toronto.
[52] The Applicant is seeking the Respondent’s contribution to the children’s post-secondary educations based on yearly cost of $16,000.
[53] The Applicant has calculated the average expenses for Nina and Gaby allowing for two years of university for Nina and four for Gaby. Based on $16,000/year the cost for Nina is $32,000 and the cost for Gaby is $64,000 for a total expense of $96,000. The Respondent’s proportionate share is 70% which is $67,000.
[54] In summary, the Applicant is seeking $123,288 in full satisfaction of monthly child support, less a credit of $1500 that the Respondent gave the children, for a total lump sum of $121,788. As well the Applicant seeks a lump sum of $67,000 for the Respondent’s share of the s. 7 expenses.
[55] The Respondent shall pay the Applicant a lump sum of $188,788 in full satisfaction of all child support and s.7 expenses.
Equalization of Property
[56] The division of family property in Ontario is dealt with in Part 1 of the Family Law Act. Family “property” is any “interest, present of future, vested or contingent in real or personal property”.
[57] As required, the Applicant has prepared a detailed net family property statement (“NFP”) based on the most up to date information that she was able to obtain. The NFP shows that the Respondent owes the Applicant an equalization payment of $1,783,026.46.
[58] Some of the family property such as bank accounts and investments in Lebanon, is jointly owned. The NFP reflects the joint ownership.
[59] The $1,783,026.46 equalization payment assumes that each party has access and control over his/her joint share of jointly owned property. However, the facts show that the Applicant does not have access to the joint property. Her half share of the joint property that she cannot access is valued at $1,417,517. The Respondent has prevented her ability to access the joint property. The Applicant seeks her half share of the joint property for a total equalization payment of $3,200,543.46.
[60] The Respondent owes the Applicant a total equalization payment of $3,200,543.46.
Miscellaneous
[61] There are four miscellaneous issues.
[62] First, after separation, the Applicant used her limited resources to pay the $6797.02 balance owing on the Respondent’s AMEX credit card. She seeks reimbursement of this amount from the Respondent. The Applicant is entitled to be reimbursed. The Respondent owes the Applicant $6797.02. This is reduced by the following credit.
[63] Second, when the Applicant did not receive the $10,000 that the parties agreed to release from the Lebanon account, she had to withdraw the remaining funds in the joint US and Canadian bank accounts. She withdrew a total of $4023.09: $760.04US (equivalent of $988.05CDN), $4,509.39 from a BMO account (it now has a negative balance of $139.17); and $2,548.75 from a second BMO account (it now has a balance of $.35). Since these accounts are joint, the Applicant fairly acknowledges that the Respondent should be given a $4,023.09 credit. I have applied this credit against the Amex credit card payment to reduce what the Respondent owes to $2773.93. The Respondent shall pay the Applicant $2773.93.
[64] Third, the Applicant seeks $2660 pursuant to a Maher agreement. The Applicant’s uncontested evidence is that the Maher was a gift of gold jewellery that was stolen in Venezuela. It has a Canadian value of $2660. It is the Applicant’s evidence that the Respondent was required to replace the gift and did not. The Respondent shall pay the Applicant $2660.
[65] Finally, as requested, the divorce shall be severed from the corollary issues and may be set down for judgment after April 4, 2021.
Summary of Amounts Owed and Payment Mechanism
[66] In summary, the Respondent shall pay the Applicant the following amounts:
$1,091,699 - lump sum spousal support $121,788 - lump sum child support $67,000 - lump sum section 7 expenses $1,783,026.46 - equalization payment $1,417,571 – half share of jointly held assets $2,660 - Maher outstanding gift $2773.93 – reimbursement of Amex credit card payment
TOTAL: $4,486,518.39 CDN
[67] To satisfy the sum of $4,486,518.39 CDN that the Respondent owes the Applicant, she requests that the Respondent's share of the following assets be transferred into the sole and individual name of the Applicant:
- Byblos Bank, S. A. L. Kabr Chmoun, Lebanon (relation no. 4456) US account numbers: (i) 4454362856001 (joint account of the parties, which had a balance of over $44,000USD: current balance is unknown) (ii) LD1412600057 (reinvested as LD1912700133, $205,000 USD at October 24, 2019 maturity date: current balance is unknown) (iii) LD1536300148 (joint account of the parties, approx. $428,000 USD) (iv) LD1629200025 (joint account of the parties, approx. $1,174,000 USD) (v) LD1927700156 (was a joint account that Respondent reinvested in his sole name) (vi) 4454362001015 (joint investments with a total value of $1,180,000 USD, that the Respondent reinvested in his sole name in accounts LD1927700156 and 4454362001015: current balance is unknown)
[68] The Applicant’s request to have the amounts in these accounts transferred to her sole name is justified given the uncontested facts. This transfer is the Applicant’s only hope of securing payment of what the Respondent owes her. This relief is granted.
[69] The Respondent shall, without delay and no later than July 15, 2020, provide the Byblos Bank with a copy of this Court’s order, a written request to transfer his assets to the Applicant as ordered. The Respondent shall sign all documents that are required to complete the transfer no later than July 22, 2020.
[70] The Respondent shall provide the Applicant with a copy of his written request to the Byblos Bank, any signed documents required to complete the transfer and a copy of all communications that he has with the Byblos Bank concerning the accounts and the court ordered transfer to the Applicant.
[71] If the current balance of the above accounts exceeds the total of $4,486,518.39 CDN that the Respondent owes to the Applicant, the remaining balance shall be paid to the Respondent or left in an account in his name. If the current balance of the accounts listed above is less than $4,486,518.39 CDN that the Respondent owes the Applicant, the Respondent shall pay the balance owing in 30 days.
Costs
[72] The Applicant seeks full recovery costs of $13,291.63 due to the Respondent’s bad faith conduct, as set out in her trial affidavit. I have already found that the Respondent is acting in bad faith and have ordered full recovery costs of the prior motions that have been heard. The Respondent’s failure to comply with the Court orders, and, in particular his refusal to comply with the consent order for the release of money from the bank in Lebanon, is bad faith. The full recovery amount is fair given the extensive amount of work that the Applicant’s counsel had to do to prepare for this uncontested trial.
Conclusion
[73] I make the following final orders:
- The Applicant, Hiba Yehia de Jauhari, shall have sole custody of the child Gabriela Fadi Jauhari Yehia born on November 14, 2003.
- The Respondent, Fedi Jauhari Jauhari shall have access to the child Gabriela Fadi Jauhari Yehia as arranged directly between himself and the child and in accordance with the views and preferences of the child. The Respondent shall be entitled to receive reasonable information about the child on request.
- The Respondent shall not remove the child from the Province of Ontario without the express written consent of the Applicant.
- The habitual residence of the child is the City of Toronto, Province of Ontario.
- A yearly income of $189,444 is imputed to the Respondent.
- The Respondent shall pay the Applicant spousal support in a lump amount of $1,091,699. This is in full satisfaction of all spousal support.
- The Respondent shall pay the Applicant a lump sum amount of $121,788 in full satisfaction of monthly guideline child support for Gabriela Fadi Jauhari Yehia born on November 14, 2003 and Nina Fadi Jauhari Yehia born on October 13, 2000;
- The Respondent shall pay the Applicant a lump sum amount of $67,000 in full satisfaction of all s. 7 expenses for Gabriela Fadi Jauhari Yehia born on November 14, 2003 and Nina Fadi Jauhari Yehia born on October 13, 2000;
- The Respondent shall pay to the Applicant an equalization payment in the amount of $1,783,026.46 and the Applicant's one-half share of the joint assets, in the amount of $1,417,517.00, for a total of $3,200,543.46.
- The Respondent shall pay the Applicant $2,773.93 as reimbursement for the Amex Credit Card payment that the Applicant made on his behalf.
- The Respondent shall pay the Applicant $2,660 owed under the Maher.
- The amounts that the Respondent owes the Applicant as set out in paras.6-11 above, shall be paid to the Applicant by transferring the Respondent's share of the following assets into the sole and individual name of the Applicant: At the Byblos Bank, S. A. L. Kabr Chmoun, Lebanon (relation no. 4456) US account numbers: (i) 4454362856001 (joint account of the parties, which had a balance of over $44,000USD: current balance is unknown) (ii) LD1412600057 (reinvested as LD1912700133, $205,000 USD at October 24, 2019 maturity date: current balance is unknown) (iii) LD1536300148 (joint account of the parties, approx. $428,000 USD) (iv) LD1629200025 (joint account of the parties, approx. $1,174,000 USD) (v) LD1927700156 (was a joint account that Respondent reinvested in his sole name) (vi) 4454362001015 (joint investments with a total value of $1,180,000 USD, that the Respondent reinvested in his sole name in accounts LD1927700156 and 4454362001015: current balance is unknown).
- The Respondent shall, without delay and no later than July 15, 2020, provide the Byblos Bank with a copy of this Court’s order, a written request to transfer his assets to the Applicant as ordered. The Respondent shall sign all documents that are required to complete the transfer no later than July 22, 2020.
- The Respondent shall provide the Applicant with a copy of his written request to the Byblos Bank, any signed documents required to complete the transfer and a copy of all communications that he has with the Byblos Bank concerning the accounts and the court ordered transfer to the Applicant.
- If the current balance of the above accounts exceeds the total of $4,486,518.39 CDN that the Respondent owes to the Applicant, the remaining balance shall be paid to the Respondent or left in an account in his name. If the current balance of the accounts listed above is less than $4,486,518.39 CDN that the Respondent owes the Applicant, the Respondent shall pay the balance owing in 30 days.
- The Respondent shall pay the Applicant costs of this undefended trial fixed at $13,291.63 inclusive of all fees, disbursements and HST.
- The divorce shall be severed from the corollary issues and may be set down for judgment in April 2021.
- The Respondent shall be provided with a copy of these Reasons for Judgment and the issued order by email at fadisocial@hotmail.com.
- The order shall be issued immediately upon request.
C. Horkins J.
Released: July 8, 2020
COURT FILE NO.: FS-20-16390 DATE: 20200708 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:
Hiba Yehia de Jauhari Applicant – and – Fedi Jauhari Jauhari Respondent
REASONS FOR JUDGMENT C. Horkins J.
Released: July 8, 2020