COURT FILE NO.: FS-19-95294 DATE: 2020-07-13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Applicant Dalia Emma Moha Abdelwahed – and – Respondent Hassan Bekhit Radwan Ahmed
Shilpa Mehta, for the Applicant Unrepresented
HEARD: July 13, 2020
REASONS FOR JUDGEMENT Mandhane J.
INTRODUCTION
[1] These are the reasons for judgment on the uncontested trial of today’s date.
[2] The Applicant was present for the proceedings and was represented by counsel. The Respondent was not present and is unrepresented.
POSITION OF THE PARTIES
[3] The Applicant filed an application on June 18, 2019 for:
- A divorce;
- Custody and access;
- Child support and contribution towards s.7 expenses;
- Beneficiary designation and health coverage;
- Sale of the matrimonial home;
- Equalization of net family property;
- A non-depletion order;
- Financial disclosure; and
- Costs.
[4] The Applicant relied on the Divorce Act, Family Law Act, Children’s Law Reform Act, Courts of Justice Act, as well as the common law.
[5] The Respondent failed to serve and file an answer. The Respondent relocated to Egypt shortly after the couple separated, in and around June 2019.
PROCEEDINGS TO DATE
[6] On September 18, 2019, the court ordered that the matter proceed by way of uncontested trial and that the Respondent no longer be required to be given further notice of any steps in the case.
[7] On November 13, 2019, the Court ordered that the uncontested trial be heard in court to enable the presiding judge to ask questions of the Applicant.
[8] On January 16, 2020, the Court imputed income to the Respondent and made orders related to child support, s. 7 expenses and security for the claim of equalization of net family property. The Court also ordered that the divorce claim be severed from the corollary relief and that the Applicant proceed to apply for a divorce on an uncontested basis. The court ordered costs in favour of the Applicant fixed at $6,921.00.
[9] The court accepts counsel’s submission that costs awarded on January 16, 2020 have not been recovered from the Applicant to date.
[10] The outstanding issues before this Court relate to the Applicant’s claims for:
- Sole custody of the child, Farida Radwan Ahmed (hereinafter “Farida”) and parenting time for the Respondent based on the “best interests of the child”;
- A claim for equalization of net family property in the amount of $283,881.39, which includes a claim for post-separation adjustments in the amount of $28,790.87 in relation to:
- mortgage and home insurance payments made by the Applicant on behalf of the Respondent prior to the vesting of the property in her name; and
- a payment made by the Applicant to have a lien on the matrimonial home lifted prior to the vesting of the property in her name.
- An order that the Respondent’s vehicle, 2012 Toyota Siena valued at approximately $9,000 be vested in the name of the Applicant, as partial payment of costs awarded;
- Costs; and
- Pre-judgement and post-judgement interests pursuant to the Courts of Justice Act.
FACTS
[11] The Applicant relies on her Affidavit for Uncontested Trial dated October 18, 2019, as well as her viva voce evidence and exhibits entered at trial.
[12] The court found the Applicant to be credible and reliable and accepts her evidence in full.
ANALYSIS
Custody and access
[13] The court accepts the Applicant’s evidence that the Respondent has had no contact with Farida since in or around June 2019 and that, during the marriage, the Respondent was not responsible for making day-to-day decisions regarding Farida. The court also accepts the Applicant’s evidence that Farida does not fear the Respondent.
[14] The court accepts the Applicant’s evidence that, since the date of separation, Farida has lived with her on a full-time basis, that she is solely responsible for Farida’s day-to-day care, that she is solely responsible for making all decisions related to the child, and that she enjoys a close relationship with both her daughters.
[15] On this basis, the Applicant is entitled to sole custody of the only remaining minor child, Farida.
[16] The court also accepts that the Respondent has remained in Egypt since approximately June 2019 and has not had meaningful contact with the children of the marriage.
[17] Based on the Applicant’s evidence that Farida is mature enough to establish her own relationship with the Respondent based on her best interests, the court agrees that Respondent’s parenting time shall be determined between Farida and the Respondent directly.
Property
[18] The court accepts the Applicant’s evidence, which included detailed receipts and documents, that she incurred expenses on behalf of the Respondent immediately proceeding the parties’ separation in the amount of $9,617.83, and that she withdrew this amount from the Respondent’s HSBC account 850-796342-150/151 pursuant to a valid Power of Attorney and consistent with the couple’s established and agreed upon practice.
[19] The court also accepts the Applicant’s evidence in support of her claim for additional post-separation amounts of $28,790.87, which represents amounts the Applicant incurred on behalf of the Respondent to maintain the home prior to it vesting in her name, as well an amount required to address liens on the property prior to it vesting in the Applicant.
[20] The court also accepts the Applicant’s detailed evidence regarding net family property at the date of separation. Based on this evidence, the Applicant is entitled to a total of $283,078.20 in equalization and post-separation amounts.
[21] The evidence before this court establishes that the Respondent’s equity in the home at the date of separation was $241,881.39. The January 16 order vested title in the matrimonial home solely to the Applicant to partially satisfy the Applicant’s equalization entitlement. The Respondent therefore still owes the Applicant $41,196.82 to equalize the property.
[22] The court agrees that the Respondent’s vehicle, a 2012 Toyota Sienna valued at approximately $9,000 shall vest in the name of the Applicant, as partial payment of the costs awarded on January 16, 2020 and on today’s date.
Divorce
[22] The Applicant established through evidence before this court that she has met all the requirements for an uncontested divorce pursuant to the Divorce Act. Counsel undertook to pay the appropriate fee forthwith.
CONCLUSION
[23] Order to go as drafted by counsel and as amended and signed by this Court.
[24] Based on the Bill of Costs submitted and submissions from counsel and bearing in mind the complexity of the proceedings due to the Respondent’s residence in Egypt and the fact that the Respondent’s creditors made claims against the Applicant, the Applicant is entitled to $20,000 in costs in relation to this proceeding.
Mandhane J.