Introduction

[1] These are my reasons for judgment following a family law trial to determine issues of interest in the matrimonial home, equalization of property, and spousal support following the end of the parties’ 11-year relationship.

[2] The Applicant, Mr. Ahmed Elbahr (“Mr. Elbahr” or the “Husband”) and the Respondent, Ms. Al Shaymaa Abd El Hadi (“Ms. El Hadi” or the “Wife”) were both raised in Egypt. Their fathers, who are first cousins, arranged the parties’ marriage, which took place on May 10, 2003, when Mr. Elbahr was 27 years old and Ms. El Hadi was 23 years old. They began living together in Nasr City, Egypt, in July 2004.

[3] The parties had two children together, both girls, born in December 2005 and November 2008. For the sake of their privacy, the girls’ names and birthdates are omitted.

[4] The family emigrated to Canada in August 2010, settling in Mississauga. The parties separated on August 15, 2014. They divorced by order of Ricchetti R.S.J. on June 28, 2017.

Custody and child support issues resolved

[5] On April 26, 2018, the parties entered into an agreement and consent final order resolving all child custody and support matters (the “Final Order”). Ms. El Hadi has sole custody of the children, while Mr. Elbahr has regular access. Under term 2.9 of the Final Order, no retroactive child support or arrears were owing by Mr. Elbahr as of the date of agreement. Under term 2.3 of the Final Order, from May 1, 2018 onward, Mr. Elbahr pays Ms. El Hadi monthly table child support and his proportionate share of the children’s special and extraordinary expenses.

Separation on August 15, 2014

[6] The parties have lived separate and apart since Mr. Elbahr left the matrimonial home on August 15, 2014. On that date, Mr. Elbahr was charged with assaulting Ms. El Hadi. In July 2016, he was acquitted on the assault charge following trial.

[7] Ms. El Hadi and the children remained in the matrimonial home following separation. Initially, they had de facto exclusive possession as Mr. Elbahr was prohibited by terms of his interim release from returning to the home. Ms. El Hadi subsequently obtained an order for exclusive possession until September 30, 2016. She and the children moved out of the home on that date. On October 1, 2016, Mr. Elbahr moved back in.

[8] All in all, Ms. El Hadi and children were in the matrimonial home, and Mr. Elbahr was out of the home, from the date of separation until October 1, 2016. Both issues pertaining to the decision about the matrimonial home relate to this post-separation time frame (August 15, 2014 to October 1, 2016). For simplicity, I will refer to this 25.5-month period in these reasons as the “Separation Period”.

[9] Both Mr. Elbahr and Ms. El Hadi have university degrees from Egypt. Mr. Elbahr is a microbiologist and had been employed during the six years of their marriage prior to the parties’ emigration from Egypt to Canada. Ms. El Hadi holds a Bachelor’s degree in Accounting from Helwan University and had been working when she became engaged and then married to Mr. Elbahr. Ms. El Hadi did not work outside the home during the marriage, but she commenced paid employment in the year following separation.

[10] The three categories of issues remaining in dispute between the parties at trial related to the following: (1) Ms. El Hadi’s claim to a beneficial interest in the matrimonial home and Mr. Elbahr’s claim for occupation rent; (2) contested inclusions in equalization calculations, specifically the treatment of $80,731.79 advanced by Mr. Mohamed Taher Mohamed Mohamed Elbahr, Mr. Elbahr’s father (“Mr. Mohamed”), and values for jewelry and furniture claimed by Ms. El Hadi; and (3) Ms. El Hadi’s entitlement to spousal support on a go-forward and retroactive basis.

[11] I have further subdivided these three categories of issues as follows:

Post-separation matrimonial home questions:

a. Does Ms. El Hadi have an interest in the matrimonial home such that she should share in the increase in its value during the Separation Period?

b. Is Mr. Elbahr entitled to occupation rent from Ms. El Hadi for the Separation Period?

Disputed Net Family Property deductions and calculations:

a. Are the funds withdrawn by Mr. Elbahr from Mr. Mohamed’s account prior to separation a loan or a gift for equalization purposes?

b. Is Ms. El Hadi entitled to date of marriage deductions for jewelry left in Egypt?

c. Is Ms. El Hadi entitled to date of marriage deductions for furniture left in Egypt?

d. What percentage should be used for the notional disposition costs of the matrimonial home?

Spousal support:

a. On what basis is Ms. El Hadi entitled to spousal support?

b. Should the spousal support order be made retroactive?

c. If I find Mr. Elbahr owes support to Ms. El Hadi; should it be paid as a lump sum?

Issue 1: matrimonial home claims

A. Ms. El Hadi’s claim for beneficial interest by way of constructive trust

[12] Although the matrimonial home is in Mr. Elbahr’s name only, Ms. El Hadi seeks a 50% share in the increase of the home’s value during the two years following separation when she and the children lived there without Mr. Elbahr.

[13] Both parties agree that the equity in the home increased over that period by $87,981.18.

[14] This amount is arrived at using the agreed-upon values of: (a) the value of the home at the date of separation August 15, 2014 ($380,000), (b) the mortgage at that date ($291,078.91), and (c) the gross equity of the home ($88,921.09). On October 1, 2016, the parties agree its value had risen to $456,000, the mortgage owing was $279,097.73, and the gross equity was $176,902.27.

[15] Ms. El Hadi’s 50% claim is therefore in the amount of $43,990.59.

[16] Mr. El Hadi pleads her claim under both the doctrine of constructive trust and as an unequal division of property under s. 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

[17] Ms. El Hadi argues her entitlement on the following bases: (a) her maintenance of the home over the Separation Period increased its value; (b) Mr. Elbahr would be unjustly enriched if he were to benefit solely from the increase; and (c) given that Mr. Elbahr was not paying spousal or child support during the Separation Period, this outcome would be unconscionable.

[18] By way of remedy, Ms. El Hadi suggests that this credit should be applied simply by using the value of the matrimonial home on October 1, 2016, at the end of the Separation Period, in calculating the equalization payment.

[19] Mr. Elbahr submits that the appropriate valuation date of the matrimonial home for equalization purposes is the date of separation. He submits that using this date generates an equalization calculation which fairly includes Ms. El Hadi’s contributions to the home during the marriage. Mr. Elbahr submits that the evidence does not support a finding of unjust enrichment or unconscionability.

Legal Framework: Unjust Enrichment and Married Spouses

[20] The application of the doctrine of unjust enrichment to married spouses was considered by the Court of Appeal for Ontario in Martin v. Sansome, 2014 ONCA 14, at paras. 46-67.

[21] An express purpose of the equalization regime under the FLA is to address unjust enrichment that would otherwise arise from marriage breakdown. In the “vast majority of cases, any unjust enrichment that arises as the result of a marriage will be fully addressed through the operation” of these equalization provisions: Martin, at paras. 63-64; McNamee v. McNamee, 2011 ONCA 533, at para. 66.

[22] To make out a claim for unjust enrichment, the claimant bears the onus of establishing three elements: (1) an enrichment of the respondent, (2) a corresponding deprivation of the claimant, and (3) the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10, at paras. 30-31; Moore v. Sweet, 2018 SCC 52, at paras. 35, 37.

[23] Furthermore, the court has jurisdiction under s. 5(6) of the FLA to vary a married spouse's share of equalized net family properties on the basis of unconscionability.

[24] In the context of married couples, the Court of Appeal in Martin explained that where unjust enrichment as a result of the marriage has been found, the court should then consider whether a monetary award would suffice. If so, s. 5(6) of the FLA should be considered. Where a monetary award will suffice, appropriate variation of the claimant’s equalization entitlement will in most cases remedy any unjust enrichment for married claimants, without requiring recourse to constructive trust doctrines.

[25] The Court of Appeal for Ontario has emphasized that the equalization regime in the FLA is comprehensive and an order for unequal division of property should be reserved for cases where the evidence establishes that application of the statutory equalization scheme, in the context of all the evidence, leads to an unconscionable result: Serra v. Serra, 2009 ONCA 105, at para. 46.

Evidence Regarding the Matrimonial Home

[26] The following description of the matrimonial home is an agreed fact:

The matrimonial home, located in Mississauga, is connected to municipal water and sewage, and public hydro and natural gas. The property has 1291 square feet of livable floor area and is comprised of seven rooms (a living room, a dining room, a kitchen, a family room, and three bedrooms). There are two full bathrooms, one partial bathroom, and a partial basement. In the basement, there are laundry facilities and a furnace area. The home has a deck in the rear of the property and has a built-in single car garage with interior access, a paved driveway, and rear yard.

[27] The parties agreed that during the Separation Period, Mr. Elbahr paid all the carrying costs and a significant contribution to the utilities. The parties agreed that during the 25.5 months that Ms. El Hadi and children lived in the home after separation, Mr. Elbahr paid $50,743.90 (carrying costs) plus $5,500 (utilities), a total of $56,243.90.

[28] For the purpose of this analysis, I accept as fact that Ms. El Hadi paid for the utilities costs of the matrimonial home in the second year of the Separation Period, once she had returned to the workforce. I also accept her evidence that her out-of-pocket costs toward maintenance of the home during the Separation Period totaled $3,000.00.

Analysis:

[29] The onus is on Ms. El Hadi, as the claimant, to show evidence that Mr. Elbahr has been unjustly enriched to her detriment. If that evidentiary onus is met, the court will then consider her equalization entitlement and assess whether, in all the circumstances, the outcome is unconscionable such that a remedy for unequal division of property under s. 5(6) of the FLA is appropriate.

[30] This claim is properly analyzed as a claim for an unequal division of property under s. 5(6). To follow the analytical approach set out by the Court of Appeal in Martin, however, I must first assess whether Ms. El Hadi has made out a claim for unjust enrichment.

[31] The evidence does not support a finding that she contributed more to the value of the matrimonial home during the marriage than is typical of the spouse who cares for the home and the children while the other spouse works outside the home. I therefore find that Ms. El Hadi’s pre-separation contributions to the matrimonial home are adequately recognized by her statutory entitlement to an equal share in the increase of the value of the home to the date of separation.

[32] I turn now to Ms. El Hadi’s argument that Mr. Elbahr was enriched during the Separation Period, and that this enrichment was to her detriment and therefore unjust. Ms. El Hadi argues that during the 25.5-month period, she kept house and maintained the property, and it is therefore unfair that Mr. Elbahr should benefit entirely from the increase in its market value over the period.

[33] Ms. El Hadi acknowledges that Mr. Elbahr paid a total of $56,243.90 towards the costs of the matrimonial home during the Separation Period. She testified that her own contributions to the property during that time included paying some of the utilities, arranging for regular housecleaning, and for minor repairs and maintenance such as a clogged bathtub and leaking sink.

[34] In his testimony, Mr. Elbahr strongly disputed Ms. El Hadi’s assertion that she looked after the matrimonial home appropriately or increased its value during the Separation Period. In addition to his own testimony, he called as witnesses two friends who could describe the condition of the home right after Ms. El Hadi and the children moved out.

[35] On regaining possession of the home, Mr. Elbahr testified to noticing a foul smell. It took him two days to trace the source. The smell came from shrimp hidden inside air vents in six locations around the home. Ms. El Hadi did not dispute knowledge of the shrimp in the vents, nor the implication that she placed them there before vacating the home.

[36] Mr. Elbahr and his friends testified that the home was dirty, with old clothes, food containers, garbage and debris left behind. Photographs were made exhibits and confirmed Mr. Elbahr’s evidence of the state of the home.

[37] It is not necessary for me to review the evidence of the state of the home in detail. I am satisfied that when Ms. El Hadi moved out, the house was unclean and left many items, some fairly described as debris or garbage, in the home. Damage to the home included a tear in the wallpaper, damage to drywall in the garage, rips in the carpet, and dried water marks on the first-floor ceiling below a second-floor washroom.

[38] While it is reasonable to place responsibility on Ms. El Hadi for the uncleanliness of the home and the items left behind, I cannot reach such a conclusion on the damaged areas in the home which required repair. Although Mr. Elbahr’s friends testified to recalling the home being in better shape when they made social visits prior to separation, neither of them had seen the home right at the time of separation.

[39] As such, I have only the parties’ evidence on this point. Mr. Elbahr did not adduce evidence of the condition of the home on the date of separation, and the parties’ evidence is contradictory on this point, as Ms. El Hadi disagreed that the property damage items all manifested during the Separation Period.

[40] Mr. Elbahr is not advancing a claim relating to decrease in value against Ms. El Hadi. His evidence was adduced to dispute her contention that she increased the value of the home by the manner in which she looked after it during the Separation Period.

[41] In Serra, the Court of Appeal for Ontario held that the purpose of choosing the date of separation as the valuation date is in recognition of the parties’ equal contributions to the marriage. After the date of separation, this reasoning no longer applies: what happens to the value of an asset after separation is no longer related to the parties’ contributions to the marriage: Serra, at para. 77.

[42] The Court of Appeal noted that, in some cases, a market-driven post-separation change in the value of the matrimonial home could be a relevant factor in determining whether an equal division of property would contribute to an unconscionable result under s. 5(6) of the FLA: Serra, at para. 64.

[43] However, an order for an unequal division of net family property is exceptional and may only be made where both of the following are true: (i) the circumstances giving rise to the change in value relate (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)); and (ii) equalizing the net family property would be unconscionable, having regard to those circumstances, taken alone or in conjunction with other factors mentioned in s. 5(6): Serra, at para. 46.

[44] With respect to the post-separation increase in value in this case, the evidence indicates that the increase was solely market-driven. That is, I accept Mr. Elbahr’s testimony and documentary evidence that Ms. El Hadi performed a normal, if not somewhat less than normal, amount of maintenance and housekeeping of the matrimonial home during the Separation Period. I reject Ms. El Hadi’s argument that her care for the home over that period increased its value.

[45] I have found that in this case, the evidence does not support Ms. El Hadi’s argument that the market value increase of the home, during either the marriage or the subsequent Separation Period, was attributable to separately quantifiable care or investment on her part. I conclude that the evidence does not establish a basis for unequal division under clause (h) of s. 5(6) of the FLA.

[46] With respect to the unconscionability analysis, Serra requires further consideration of whether, on all the factors in s. 5(6), application of the statutory equalization regime would lead to an unconscionable result. An “exceptionally high” evidentiary threshold must be reached before a court will characterize one party’s deprivation to the benefit of the other as “unconscionable”: see Serra, at paras. 46-47.

[47] I have found that the increase in value of the matrimonial home during the marriage is appropriately shared evenly between the parties by operation of statute. With respect to the Separation Period, I have dismissed Ms. El Hadi’s argument that her actions demonstrably contributed to the increase in value of the home during that time.

[48] Ms. El Hadi further argues that it is unconscionable to permit Mr. Elbahr to have the full benefit of the Separation Period increase because he was not paying her spousal or child support at that time. That is, he would be unjustly enriched if he were able to keep the increase in value of the home and the economic benefit of not making appropriate provision for Ms. El Hadi and the children during the Separation Period.

[49] I have concluded below that it was reasonable during this time for Mr. Elbahr to keep paying the housing costs for Ms. El Hadi and children after he was required by bail conditions to stay away from the house following the date of separation. The amount he paid to keep them living in the matrimonial home exceeded any amount of combined spousal and child support which might otherwise have been found owing.

[50] I note also that the amount Mr. Elbahr paid for the matrimonial home costs during the separation period was paid at a time when he was also responsible for his own rental housing costs (approximating $54,901.82). This supports my overall conclusion that it was fair and just for Mr. Elbahr to pay the housing costs during the Separation period, and for him to benefit from the increase in value over that time.

[51] It was therefore more beneficial to Ms. El Hadi for Mr. Elbahr to pay for her housing costs than to have paid spousal and child support. I dismiss the argument for unconscionability as well.

[52] To succeed in establishing unconscionability, Ms. El Hadi has the evidentiary onus to establish unjust enrichment at the “exceptionally high” threshold referenced earlier. She has failed to do so.

[53] Nor is unconscionability established when I consider the overall equalization payment owing to Ms. El Hadi, as calculated later in these reasons. Her claim to share in the post-separation increase in value of the matrimonial home is therefore dismissed.

Mr. Elbahr’s Occupation Rent Claim

[54] The matrimonial home is in Mr. Elbahr’s name only. Mr. Elbahr therefore argues that Ms. El Hadi should pay him occupation rent for the Separation Period, as she and the children had exclusive possession of the property during that time.

[55] As referenced earlier, Ms. El Hadi and the children enjoyed exclusive possession on separation, due initially to Mr. Elbahr’s bail conditions while awaiting trial on the charge of assault on Ms. El Hadi. After Mr. Elbahr was acquitted following trial, Ms. El Hadi was awarded continuing exclusive possession until September 30, 2016, by court order following a contested motion.

[56] All in all, Mr. Elbahr was out of the matrimonial home from the date of separation until October 1, 2016.

[57] Mr. Elbahr asks that the court order Ms. El Hadi to pay him occupation rent of $36,000. Ms. El Hadi opposes his claim. For the purpose of this argument, however, Ms. El Hadi agrees that $36,000 is what it would have cost to rent a similar house on the market for herself and the children for the Separation Period.

[58] The decision of Pazaratz J. in Wawzonek v. Page, 2015 ONSC 4374, at paras. 228-31 lists factors developed in the case law as factors to consider when occupation rent is claimed:

a. The timing of the claim for occupation rent;

b. The duration of the occupancy;

c. The inability of the non-resident spouse to realize on her equity in the property;

d. Any reasonable credits to be set off against occupation rent;

e. Any other competing claims in the litigation;

f. The conduct of the non-occupying spouse, including the failure to pay support;

g. The conduct of the occupying spouse, including the failure to pay support;

h. Whether the non-occupying spouse moved for the sale of the home and, if not, why not;

i. Whether the occupying spouse paid the mortgage and other carrying charges of the home;

j. Whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid, or was able to pay, child support; and

k. Whether the occupying spouse has increased the value of the property.

[59] I have considered the factors set out above, and the cases cited by the parties regarding occupation rent.

[60] Most of the Wawzonek factors have been discussed in my analysis of Ms. El Hadi’s claim for unequal division above. Though grounded in different legal doctrines, each party’s matrimonial home claim, as characterized above, is an argument that they were left unfairly out-of-pocket after separation, such that adjustments in their favour should be made.

[61] In my view, one of the underpinning considerations in the occupation rent analysis is the reasonableness of each party’s actions regarding their housing costs when they separated into two homes post-separation, and the overall fairness to each party of those arrangements.

[62] In this case, I have concluded below that in paying the costs of the matrimonial home during the Separation Period, Mr. Elbahr acted reasonably. By doing so, he preserved his own interest in the home by keeping mortgage and other payments up-to-date and ensured continuation of appropriate housing for the children and Ms. El Hadi, their primary caregiver.

[63] Similarly, Ms. El Hadi acted reasonably in taking steps after separation to re-enter the workforce, while also providing care for the children. She thereby positioned herself to become more self-supporting after separation. Under term 2.9 of the Final Order relating to the children, the parties agreed that Mr. Elbahr has no arrears nor any retroactive child support owing for any period prior to April 26, 2018, the date of the agreement.

[64] Ms. El Hadi did not work at the date of separation and had no means of paying for housing for herself and their children on separation. There is no dispute she was the children’s primary caregiver and was responsible for all facets of their care.

[65] There is no suggestion by Mr. Elbahr that the house was too big, and that Ms. El Hadi should have rented it out, nor that anyone other than Ms. El Hadi and their two dependent children were living in the house.

[66] In my analysis of spousal support later in these reasons, I conclude that because Mr. Elbahr continued to pay the housing costs at the level he did during the Separation Period, Ms. El Hadi’s spousal support entitlement does not commence until he stopped doing so, on October 1, 2016.

[67] I have recognized the appropriateness of Mr. Elbahr’s actions in paying the housing costs of Ms. El Hadi over the Separation period, a total of $56,743.93. As a result of my decision on Ms. El Hadi’s claim earlier in these reasons, Mr. Elbahr will benefit solely from the market-driven increase in the value of the matrimonial home property after separation. It would not, in all of the circumstances, be fair and just to allow Mr. Elbahr’s claim for occupation rent. To do so would effectively require Ms. El Hadi to “refund” amounts to him under the category “occupation rent” for which Mr. Elbahr has already been given credit in my spousal support analysis in these reasons.

[68] I note also that the parties’ consent order stipulated that Mr. Elbahr did not owe any arrears of child support for the period October 1, 2016 to May 1, 2018. The order states that May 1, 2018 is the date on which his child support payments will begin.

[69] Each parent is obligated to earn what they are capable of earning and to pay table support to the custodial parent accordingly. In agreeing that Mr. Elbahr owed no arrears of child support up to May 1, 2018, it is reasonable to infer that the parties agreed that any non-payment of child support during the 19-month period was reasonably offset by the significant amount of housing costs paid by Mr. Elbahr during the Separation Period.

[70] For the foregoing reasons, Mr. Elbahr’s claim for occupation rent is dismissed.

issue 2: DISPUTED NET FAMILY PROPERTY INCLUSIONS/EXCLUSIONS

[71] By the time of their final submissions, the parties had reached agreement on most of the values relevant to their equalization calculations.

[72] The property items remaining in dispute were:

a. Funds that Mr. Elbahr received from Mr. Mohamed: whether these can be deducted as a loan in the amount of $80,731.79;

b. Jewelry no longer in Ms. El Hadi’s possession: whether Ms. El Hadi can claim $25,000 for jewelry no longer in her possession;

c. Furniture left in Egypt when the parties came to Canada: whether Ms. El Hadi can claim the value of this furniture; and

d. Disposition costs of the Matrimonial Home: whether 4.5% or 3.5% is the appropriate rate for the notional disposition cost.

a. Funds received by Mr. Elbahr from Mr. Mohamed

[73] Mr. Elbahr seeks to deduct the sum of $80,731.79 as a debt for the purposes of equalization. There is no dispute that this is the total withdrawn by Mr. Elbahr from the bank account of his father, Mr. Mohamed, between the parties’ move to Canada in 2010 and the date of separation August 15, 2014.

[74] Mr. Elbahr's position is that this amount is a debt for the purpose of equalization as the funds were advanced to him on the understanding that he would repay Mr. Mohamed. As a loan which he is obligated to repay, he seeks to deduct the full amount.

[75] In the alternative Mr. Elbahr seeks to deduct $22,257.22, which is the portion of the funds that he used to purchase the matrimonial home, and part of the $80,731.79 in dispute. He argues that these funds are impressed with a resulting trust in favour of Mr. Mohamed and should therefore be deducted from his net family property for the purposes of equalization.

[76] Ms. El Hadi argues that the evidence does not support the characterization of the funds as a loan. She takes the position that the funds were offered as a gift and that repayment was only demanded after the parties separated.

Evidence Regarding Funds Received by Mr. Elbahr from Mr. Mohamed

[77] Shortly before the parties emigrated to Canada, Mr. Mohamed gave Mr. Elbahr a bank card that enabled him to withdraw funds from his account in Egypt.

[78] Mr. Elbahr used Mr. Mohamed’s funds for household expenses. The money had all been spent on household expenses except the amount he used to purchase the matrimonial home.

[79] Mr. Elbahr testified that he used $22,257.22 of the funds from Mr. Mohamed’s account for the down payment and purchasing costs of the matrimonial home.

[80] Apart from the down payment and purchasing costs of the matrimonial home, Mr. Elbahr did not make mortgage or carrying cost payments with Mr. Mohamed’s money. Those costs were paid from his employment income.

[81] Mr. Elbahr testified that while Mr. Mohamed had gifted him money in the past, any time he borrowed money they signed a loan agreement. Mr. Elbahr and Mr. Mohamed did not make or sign agreements for gifts of money. In chief, he gave the example of a cash gift of USD $10,000, which Mr. Mohamed gave him when the parties moved to Canada. There was no loan document because this was a gift.

[82] Mr. Elbahr introduced documentation relating to four loans received from Mr. Mohamed – three in 2009 and the disputed loan in 2010.

[83] The three 2009 loans given by Mr. Mohamed to his son were similar in amounts: (a) 1,500 Egyptian Pounds or “LE” (roughly $150 CDN), loaned on February 23, 2009; (b) 1,000 LE (roughly $100 CDN), loaned on May 20, 2009; and (c) 1,000 LE, loaned on June 22, 2009.

[84] All three 2009 loan agreements bear the heading “Receipt” and are in the form of “I, Ahmed Mohamed Taher Mohamed Mohamed Elbahr received the amount of 1,500 [or 1,000] Egyptian pounds dated [date] as a loan without interest, from my father Mohamed Taher Mohamed Mohamed Elbahr, besides I will pay it at the beginning of next month. This is to certify whereof”, followed by Mr. Elbahr’s signature.

[85] Each of the documents describing these three small loans had an acknowledgement of repayment handwritten at the bottom of the same sheet. The wording was the reverse of the first section, i.e. “I, Mohamed Taher Mohamed Mohamed Elbahr, received an amount of 1,500 (or 1,000) LE on [date] from my son Ahmed Mohamed Taher Mohamed Mohamed Elbahr in return for the above-mentioned loan. This is to certify whereof”, followed by Mr. Mohamed’s signature.

[86] The receipts indicated that Mr. Elbahr repaid all three loans at or before the beginning of “the next month”. The first loan was paid in full within nine days after it was given (on March 4, 2020), the second within 11 days (on May 31, 2009), and the third within 14 days (on July 7, 2009).

The Bank Card Loan Agreement:

[87] The 2010 loan document, translated into English, was entitled “Loan Settlement Agreement”. It identifies Mr. Mohamed as “First Party” and Mr. Elbahr as “Second Party”. The terms in full state:

Second party will withdraw the amounts by using the additional card on the account of the first party no. (*4221) at Credit Agricole Bank, Egypt during the second party residency in Canada, besides second party shall pay this loan without interests [sic] according to the withdrawn amounts by the additional card of second party after five years from the latest date with maximum ten years. Knowing that the second party will settle this loan either as a total payment or by installments. Moreover, the bank statement of the said account shall be the reference depending on which the withdrawn payments will be determined.

[88] In closing submissions, the parties agreed that a more accurate translation of the repayment timing, in English, would read “five years from the date the party will reside in Canada, with a maximum of ten years in Canada”.

[89] Mr. Elbahr testified that he and Mr. Mohamed signed it on June 17, 2010, just prior to the parties’ emigration to Canada on June 21, 2010.

[90] On December 10, 2014, Mr. Mohamed made a demand for repayment from his son. He attended before a lawyer in Egypt who witnessed his signature on a memo which stated, “You are kindly requested, as previously agreed upon, to pay a lump sum of 481,000.00 Egyptian Pounds … you have spent in GTA, Ontario, Canada, through the Master Card you had secondary to my Credit Agricole-Egypt Bank account # ***4221 during period from 08/01/2010 to 08/15/2014.” The memo attached bank account printouts showing all withdrawals made by Mr. Elbahr from August 1, 2010 to the parties’ separation date of August 15, 2014.

[91] Mr. Elbahr testified in cross-examination that his wife was not aware of the loan nature of the money given to him from Mr. Mohamed, and Mr. Elbahr did not tell her.

[92] Mr. Mohamed testified that he made the demand for repayment of the loan because he was a retiree and needed his money back. He testified that he was concerned that because of the “hardship” of his son’s current situation – as a result of the separation and the criminal proceedings against his son – his loan was at risk of not being paid back.

[93] On cross-examination, Mr. Mohamed testified that he called the loan because Ms. El Hadi had “jailed her husband.” Mr. Mohamed was evasive when questioned on the source of his ongoing income despite being retired. Mr. Mohamed testified that Mr. Elbahr is Mr. Mohamed’s only child and, in accordance with Islamic law, can inherit 7/8 of Mr. Mohamed’s estate. He also admitted that Mr. Elbahr has made no repayment to date on loans incurred during the marriage, and that after the separation Mr. Elbahr continued to use Mr. Mohamed’s card and was still borrowing it at the time of this trial.

[94] Later, in re-examination, Mr. Mohamed testified to his willingness to wait until Mr. Elbahr is able to afford to repay the loan: “It’s okay. He promised me to pay back. Until we get over it, we’ll see.” Indeed, Mr. Elbahr confirmed in his testimony that he told Mr. Mohamed to wait until his legal proceedings conclude before the loan is repaid. In cross-examination, Mr. Elbahr admitted that whenever he receives a loan from Mr. Mohamed, it is “totally up to him. He decides when to collect the money from me or whether he is going to gift it to me or not.” This indicates a general understanding between Mr. Mohamed and Mr. Elbahr that Mr. Mohamed will support his son despite Mr. Elbahr’s diminished ability to repay the loan after separation and litigation.

[95] Although Mr. Elbahr testified that he would get a second mortgage on his property in order to repay his loan to Mr. Mohamed, Mr. Elbahr admitted on cross-examination that Mr. Mohamed had never asked him to secure the loan by way of a second mortgage at any time.

[96] Ms. El Hadi introduced a letter of opinion from a lawyer in Egypt, Mr. Mohamed Hussein Mahmoud. Mr. Mahmoud also testified. Mr. Mafmoud testified that he practiced civil law, trade law, and family law. He testified to the requirements of enforceable lending agreements in Egypt and his opinion of the unenforceability, illegality and fraudulent nature of the loan agreement between Mr. Elbahr and Mr. Mohamed.

[97] Because Mr. Mahmoud was not qualified as an expert and his letter of opinion was not made an exhibit, I have therefore not considered his evidence in reaching my decision on this issue.

Legal Framework and Analysis

[98] Mr. Elbahr relies on Connors v. Gaffney, 2014 ONSC 689 at paras. 31 for the proposition that “to constitute a loan, there must be an express or implied agreement whereby one person advances money to another, who agrees to repay it on such terms as to time and rate of interest, or without interest, as the parties may agree.” There is no requirement in law that the contract be witnessed and there is no requirement that a specific sum be outlined: see Bradley v. R., [1996] 1 C.T.C. 2237D, at para. 12.

[99] Mr. Elbahr also relies on McNamee, in which the Court of Appeal for Ontario held that the essential ingredients of a gift are (1) an intention to make a gift on the part of the donor without consideration or expectation of remuneration, (2) an acceptance of the gift by the donee, and (3) a sufficient act of delivery of the property to complete the transaction: at para. 24.

[100] Additional cases filed by Mr. Elbahr are Cade v. Rotstein, 2002 CanLII 2811 (Ont. S.C.) [Rotstein ONSC]; Chiasson v. Chiasson, 2006 NSSC 139; Church v. Church, 2010 ONSC 3290; and Proznik and Smith v. Proznik, 2011 BCPC 300.

[101] Ms. El Hadi relies on Zheng v. Xu, 2019 ONSC 865, which at para. 109 applies Poole v. Poole, 16 R.F.L. (5th) 397, 2001 CanLII 28196 (Ont. S.C.).

[102] It is common knowledge that the intention of the transferor at the time of transfer is a central consideration in the analysis of whether monies advanced are a loan or a gift.

[103] I have reviewed all case law cited by the parties.

[104] In addition, I have considered the decision of the Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17. In Pecore, the Court weighed the evidence to determine the parent’s actual intent at the time of transfer. The Court affirmed the analytical approach to include: (1) begin with the applicable presumption, and then (2) weigh all the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention: at para. 44.

[105] To determine whether the facts support a finding that funds advanced were intended to be a loan or a gift, the factors used by Fitzpatrick J. in Barber v. Magee, 2015 ONSC 8054, at para. 68 must be considered (followed in Chao v. Chao, 2016 ONSC 7911, at para. 78 [Chao ONSC]):

a. whether there were any contemporaneous documents evidencing a loan;

b. whether the manner for repayment is specified;

c. whether there is security held for the loan;

d. whether there are advances to one child and not others or advances on equal amounts to various children;

e. where there has been any demand for payment before the separation of the parties;

f. whether there has been any partial repayment; and,

g. whether there was an expectation or likelihood of repayment.

[106] In Chao v. Chao, 2017 ONCA 701 [Chao OCA], the Court of Appeal for Ontario unanimously upheld the motion judge’s conclusion that funds advanced by the parents to their son, the husband in the separation, were provided by way of a gift. At para. 56, the court upheld the following propositions:

(a) The legal test as to characterization of monies advanced is the intent of the transferor at the time of transfer.

(b) Evidence of intention which relates to actions subsequent to advance of funds must be relevant to the intent of the transferor at the time of transfer.

(c) The court “must assess the reliability of such evidence and determine what weight it should be given, guarding against evidence that is self-serving or tends to reflect a change in intention”.

[107] Even if funds are determined to be a loan and not a gift, a trial judge may find that a discount should be applied to the value of the debt where there is a reduced likelihood of repayment in the context of the particular facts.

[108] In Rotstein ONSC, the husband claimed a debt of $192,000 received from his parents. The trial judge discounted the debts to five percent of their face value in the equalization calculation. This discount was upheld by the Court of Appeal for Ontario: 2004 CanLII 24269 (Ont. C.A.) [Rotstein OCA], at paras. 7-8:

[7] In our view, there was evidence to support that finding. The debts were old, and no demand had been made save on one, and that had been motivated by the separation of the parties. The moneys had been advanced to help the parties out with the purchase of homes with limited expectation of repayment, and the appellant’s father testified that he would not have looked for the money nor would he take any action against his son to collect the debts.

[8] In our view, the trial judge properly followed the approach in Poole v. Poole (2001) 2001 CanLII 28196 (ON SC), O.J. No. 2154 (S.C.) and Salamon v. Salamon (1997), O.J. No 852 (Gen Div.) in discounting the value of this alleged debt.

[109] In Poole, Heeney J. found on the evidence that $84,000 had been advanced by the husband’s parents prior to separation, and promissory notes were signed by the couple acknowledging the debt. The parents indicated to the wife that they would not seek repayment if she and the children stayed in the matrimonial home after separation: at para. 13.

[110] The parents later changed their minds and sent a lawyer’s letter demanding payment in full. They took this step only after the wife reported the husband’s abuse, for which he was convicted and went to prison. The trial judge found that the parents would not have demanded payment on their notes and commenced litigation to recover on them if the couple had not separated: Poole, at para. 14.

[111] As a starting point of the analysis for this case, Mr. Elbahr and Mr. Mohamed testified to the circumstances in which Mr. Mohamed gave Mr. Elbahr a secondary card to permit him to make withdrawals form Mr. Mohamed’s bank account while in Canada. Both testified that Mr. Mohamed’s intent was to assist his son to establish the family in Canada, during a period when he would initially not be employable as a pharmacist due to requirements to requalify in Canada.

[112] Both testified that their agreement was that the son would repay the money he used once he was settled in Canada. Exhibit 1 was the loan document between Mr. Mohamed and Mr. Elbahr, dated June 17, 2010, by which Mr. Elbahr agreed to repay the money within five to ten years after moving to Canada. The parties testified that they signed it shortly before the parties moved to Canada.

[113] I accept Ms. El Hadi’s evidence that Mr. Elbahr did not show her the 2010 loan document until litigation commenced, nor did he tell her during the marriage that he was expected to pay Mr. Mohamed back all the money he was using. However, I find that she was aware that Mr. Elbahr was using money from his father to pay household expenses.

[114] I accept that it may have appeared to her that the money was a gift from her in-laws to help the family meet expenses. She testified that in her own mind this was similar to her own family giving her pocket money during this time and helping with the cost of the children’s clothing.

[115] Mr. Mahmoud, the Egyptian lawyer called by Ms. El Hadi, gave evidence that the loan agreement between Mr. Mohamed and Mr. Elbahr would not be viewed as an enforceable loan contract in Egypt – largely because it was not witnessed and did not specify an amount of the loan. As stated earlier, Mr. Mahmoud was not qualified as an expert entitled to give opinion evidence. Accepting for the purpose of this analysis, however, that the loan would not be enforceable in Egyptian courts, that would not be determinative of the issue of the transferor’s intention.

[116] The threshold issue is the transferor’s intention at the time of transfer. On the evidence, I accept that Mr. Mohamed’s intention in giving his son the bank card shortly before he moved to Canada was to ensure he would have enough money available to support his family while they were getting established in a new country. Mr. Elbahr would take what he needed from the account, and would repay him, without interest, in the future.

[117] Notwithstanding the general nature of the repayment timeline “between five and 10 years after coming to Canada” or the now-reduced ability to repay the loan by Mr. Elbahr, the repayment timeline confirms Mr. Mohamed and Mr. Elbahr’s understanding that money taken was being borrowed. As such, the giving of the bank debit card to his son was a loan, not a “blank cheque” from Mr. Mohamed.

Use of Mr. Mohamed’s Funds During Marriage:

[118] Both Ms. El Hadi and Mr. Elbahr testified to discussions between Mr. Elbahr and Mr. Mohamed during the marriage in Egypt. I accept that Mr. Mohamed, as he also testified, was concerned about how much money his son was using from his account and talked to him about it on several occasions.

[119] The generosity of Mr. Mohamed to the parties during the marriage was also illustrated by Mr. Elbahr’s testimony that $10,000 USD in cash was given to him by Mr. Mohamed before he travelled to Canada. At trial, he testified that the cash was a gift. He testified that there was no written agreement about this amount because it was a gift. He explained that he and Mr. Mohamed documented only their loans, not gifts.

[120] On cross-examination, Mr. Elbahr he was asked to explain why, in earlier questioning, he had deposed that he “borrowed” the $10,000 USD cash from Mr. Mohamed. His explanation was that he called it a gift because although it was given originally as a loan, after coming to Canada, he spoke to his Mr. Mohamed who agreed to forgive the debt. That is why he called it a gift at trial.

[121] This evidence supports a characterization of the loan and gift arrangements between Mr. Mohamed and Mr. Elbahr as fluid. It also contradicts Mr. Elbahr’s position at trial that he documented all loans from Mr. Mohamed. The fact that Mr. Mohamed forgave the $10,000 USD loan once he came to Canada, suggests there is a reasonable basis on which Mr. Elbahr might expect that Mr. Mohamed would not pursue repayment of the bank card withdrawals, and that other debts might in future also be forgiven.

Transferor’s Intention: Change in intention

[122] The evidence also supports a finding that Mr. Mohamed’s intention with respect to the monies changed after separation in order to help his son reduce the amount of equalization payment owing to Ms. El Hadi. I conclude this based on the following evidence:

[123] The timing of the demand: Mr. Mohamed’s demand for repayment was only made after separation, and after Mr. Elbahr had filed his application.

[124] The demand of the funds advanced was made before the repayment commencement date stipulated in the 2010 loan agreement.

[125] The demand only seeks repayment of money used by Mr. Elbahr during marriage. As of the date of trial, Mr. Mohamed had made no demand for the funds used by Mr. Elbahr, there had been no repayment by Mr. Elbahr, and there was no evidence that at any time, during or subsequent to separation, Mr. Mohamed took any steps to check on further withdrawals of his funds by Mr. Elbahr.

[126] Mr. Mohamed claimed he would be destitute if funds were not returned, but he did not stop Mr. Elbahr from using the bank card after this claim. The demand was not related to any demonstrated impecuniosity or other financial need in 2014. Mr. Mohamed’s testimony is inconsistent with his actions after separation, continuing to allow Mr. Elbahr to use his bank card and to “take take take” up to and at the time of the trial in March 2019.

[127] Mr. Mohamed conceded that he made the demand in December 2014 because of the changed circumstances: “she jailed her husband”.

[128] Mr. Mohamed’s intention to recover only monies for which Ms. El Hadi would be half responsible, as marital debts – but not to recover funds borrowed by Mr. Elbahr alone – was evident from the fact that Mr. Elbahr continued to possess and use the bank card after separation, including up to the date of trial, without any demand being made of Mr. Elbahr to repay the loan.

CONSTRUCTIVE TRUST ARGUMENT

[129] Mr. Elbahr argues that the funds he received from his father should be excluded from the net family property calculations.

[130] Mr. Elbahr testified that the money withdrawn was used to pay household costs during the marriage and was spent by the time of separation. The only exception was the funds withdrawn to use to qualify for a mortgage and then for the down payment and closing costs on the purchase of the matrimonial home.

[131] In 2011, Mr. Elbahr testified that he withdrew approximately $17,000 via multiple visits to bank machines. He put this money in his own account and did not disclose to the bank that these were not his own funds. He was thereby able to qualify for a mortgage despite being new to Canada and having employment interrupted by the requirement to requalify as a pharmacist before he could work in his field.

[132] Without the use of his father’s funds, Mr. Elbahr admitted he would not likely have qualified for a mortgage or been able to buy a house. The down payment and closing costs, a total of $22,257.22, were all paid with funds withdrawn from Mr. Mohamed’s account.

[133] With respect to Mr. Elbahr’s argument that the funds used for the down payment and purchase of the house were impressed with a trust in favour of Mr. Mohamed, the evidence does not fit into this exception.

[134] Mr. Elbahr cites Barber v. Magee and Chao ONSC in support of his argument for a trust in favour of his father. Neither of these cases give support to this proposition.

[135] In Chao, Broad J. describes at para. 76 the principle that emerges from Fitzpatrick J.’s decision in Barber: “the presumption is that the adult child is holding the property in trust for the parent; in other words, the parent holds an interest in subject asset whether it is real property, money loaned or some other item.” The money and corresponding property in a resulting trust would be characterized as a debt for the purpose of equalization because money was owed to a third party, here Mr. Mohamed.

[136] However, in Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70, McLachlin J. (as she then was) stated in dissent that a constructive trust is not a proprietary right, but rather a proprietary remedy for unjust enrichment. It is not a substantive principle on its own. For this reason, Mr. Elbahr is not entitled to claim a constructive trust on behalf of his father, Mr. Mohamed. Since Mr. Mohamed continues to permit his son to access his accounts, despite alleging that he needs the money, neither experienced a detriment from this loan justifying a constructive trust remedy.

[137] With respect to his alternate argument that Mr. Mohamed’s funds used by Mr. Elbahr to make down payment support a finding of resulting trust, Mr. Elbahr cites Barber. In Barber, however, although the funds in question were used to make a down payment, the court found that the transferor parent did not pursue any security interest in the loan, had not made any demands for repayment during the marriage of the parties until their separation, and had no meaningful expectation of repayment. The court found that as a result, the presumption of resulting trust had been rebutted: at paras. 68-69.

[138] In accordance with Heeney J.’s holding in Poole, the “live question” is as to whether Mr. Mohamed will actually enforce the judgement against Mr. Elbahr. Enforcement in this context does not mean simply “going through the motions of receiving payment … and then promptly giving the money back to him.” In Heeney J.’s words at para. 38, “That would be a sham, and would amount to not enforcing the debt at all.”

[139] Indeed, Barber also stands for the proposition that a gift used to pay down the mortgage loses its character as excluded property: see Zheng v. Xu, 2019 ONSC 865, at para. 97.

[140] In this case, Mr. Mohamed is notably not alleging a constructive trust interest, and he is not a party. Mr. Elbahr has no standing to allege trust as a shield to Ms. El Hadi’s equalization claim when Mr. Mohamed is not alleging that. Additionally, if it were found that Mr. Elbahr shares the trust interest with Mr. Mohamed in the funds used for the matrimonial home, then Mr. Elbahr cannot shield his interest from Mr. El Hadi in her equalization claim.

[141] On the evidence, there is nothing to suggest in any of the dealings between Mr. Elbahr and Mr. Mohamed that there was a fiduciary duty as to the funds used to pay for the home. No documentation from Mr. Elbahr has been filed to indicate trust, nor in Mr. Mohamed’s testimony. There is no documentation or specific agreement or conversation that suggests there was consideration for the part of the funds used for down payment.

[142] Furthermore, Mr. Elbahr took Mr. Mohamed’s money in amounts of $500, put them in his own account and co-mingling the funds with his own, and used the bank balance to qualify for mortgage rate and pay the deposit. Mr. Elbahr did this within a year of arriving in Canada, and he acknowledged that he did so because otherwise he would not have qualified for the mortgage and been able to buy a house within a year of arrival. Mr. Elbahr did not tell the bank it was his father’s money, and merely passed it off as his own. There is no distinction between the funds at issue and funds that Mr. Elbahr withdrew and used for normal household expenses.

[143] Having found that the funds overall had little expectation of repayment, this finding applies to the funds removed and spent, as well as the funds removed and put into purchase of the matrimonial home. There is no evidence of discussions or arrangements to protect Mr. Mohamed’s interest or to even tell the bank about it. It was not a discreet borrowing, it was an allocation of the funds taken in the same manner as all funds – when and as needed.

[144] If Mr. Mohamed, acting on his own behalf, could not succeed on an argument for constructive trust, his son, Mr. Elbahr, cannot be entitled to a deduction for equalization purposes where no constructive trust exists.

Conclusion

[145] Mr. Elbahr admitted in cross-examination that as of the date of trial, he had made no repayments to Mr. Mohamed. He also admitted that he did not even know how to go about depositing money into Mr. Mohamed’s Egyptian account.

[146] If I find on the evidence that the money advanced by Mr. Mohamed was provided to his son as a loan, the Court of Appeal in Rotstein indicates that a further analytical step may be required. Where the loan is between family members sharing a similar interest in particular, “if the evidence indicates that it is unlikely that the promisor will ever be called upon to pay the debt, the value of the debt should be discounted to reflect that reality”: at para. 8, citing Poole, at para. 35.

[147] A change of intention regarding repayment terms for Mr. Elbahr was acknowledged by Mr. Mohamed in his testimony on cross-examination:

Q. So you mentioned your loan was payable after five year [sic].

A. I wrote this … for … a normal situation, but it was an exceptional situation and hard situation after that.

Q. What kind of hard situation you are facing?

A. She, she jailed her husband.

Q. The loan was due after five years, so, so why you demanded after four year?

A. It’s 2014 and it’s four and a half [years] I ask for it. The reason is because there is a separation and divorce. I have to ask for my right.

[148] The demand made by Mr. Mohamed is only for the withdrawals made by Mr. Elbahr to the date of his separation from his wife. As noted by Rotstein ONSC, at para. 60, by arguing that the money is a debt, Mr. Elbahr is effectively taking a position against his own economic interests – by not disputing the debt – for the purpose of reducing the equalization owing to his wife. By so doing he is effectively compelling her to share in the repayment of the loan to Mr. Mohamed that was incurred during the marriage. I find he would not do so if it appeared that he would have to pay his own share as well.

[149] In Rotstein ONSC, Wood J. cited Poole to point out that counsel for the husband “was virtually arguing the parents’ case for them” and it is “[i]nconceivable that the [h]usband would instruct him to do so if the [h]usband believed that he would actually, genuinely have to pay the sum” and act “directly against his own economic interests.” The trial judge inferred “from this behaviour that [the husband] did so to ensure that the [w]ife had to pay her half to his parents, knowing that the judgment against himself would never be enforced.”

[150] The evidence above is consistent with Mr. Mohamed and Mr. Elbahr having a common intention to reduce the equalization payment owing to Ms. El Hadi now that the marriage is over. I find that there is here a changed intention; the demand issued by Mr. Mohamed in December 2014 was not because he thought his son could repay him at that time, nor because he was in significant financial need at that time – but rather, in order to support his son’s position that all funds withdrawn with the bank card should be treated as a deduction for equalization purposes.

[151] I find that the discount approach, set out in Rotstein ONSC, should apply here. This analysis applies even where a repayment demand is made, as the interests of the parents and their adult child (the husband or wife in the family law litigation) is effectively identical: Rotstein ONSC, at para. 59.

[152] The rationale for this approach in the family law context was explained by Heeney J. in Poole, at paras. 36 and 38 (quoted in Rotstein ONSC, at para. 59):

There is a compelling reason for taking this good hard look at the reality of the situation. A debt constitutes a credit in the equalization calculation, and reduces the net family property of the spouse claiming the debt. This has a direct impact on the equalization payment due, by either reducing the amount that party has to pay to the other (if he has the higher net family property) or increasing the amount that he will receive (if his net family property is lower). Fairness dictates that he should not receive a credit for a debt, with the financial benefits that flow from that credit, if he will never be called upon to pay the debt.

[153] At para. 38 of Poole, Heeney J. identified the key evidentiary issue as “what is the probability that [the parental transferor] will actually demand and receive payment from [their adult child], such that he will actually remain out-of-pocket in the amount paid?”

[154] The analytical approach in both Poole and Rotstein is applicable to the present case, as the facts underpinning the analysis in all three cases are very similar. In particular: (a) the loans were evidenced by promissory notes, which the adult son-husbands testified in both cases that they expected to repay when they could; (b) money was advanced to the parties by the parent(s) to help them out; (c) by the time of trial, the adult son had made no payments on the loan since separation; (d) the parents’ only demand for repayment was motivated by the parties’ separation; (e) the son-husband did not disclose the loan as a debt to his bank, supporting an inference that he did not view it as a debt subject to repayment; (f) in each case, the transferor parent (father of husband) was called by the husband to testify as to the validity and enforceability of the loan; (g) the transferor parent’s own evidence indicated that he would not seek funds from the adult child until he could pay it back.

[155] In the present case, there are additional factors relevant to the analysis: (a) the transferor-parent continued to lend money to his son for the years between separation and trial, despite the transferor-parent’s allegations at trial of financial need and increasing inability of son to repay him due to separation and litigation; and (b) the history of the transferor-parent’s previous forgiveness of a significant loan made to his son in the amount of $10,000 USD.

[156] Here, although there was a loan agreement signed, it was not witnessed and nor was it referred to during the marriage. The evidence supports the conclusion that the transferor did not intend to pursue repayment, and would perhaps have forgiven the loan entirely, if the parties had not separated.

[157] As in Poole and Rotstein ONSC, the evidence here supports the conclusion that the transferor’s initial intention was to help Mr. Elbahr and his family at a time of need.

[158] I find that at the time of separation, Mr. Mohamed’s intention changed to a position in favour of his child and adverse to his former daughter-in-law. While content to help the family and grandchildren initially, the effect of Mr. Elbahr’s position is to reduce the amount of equalization available to assist Ms. El Hadi with her care and ability to provide for their children as she has sole custody and is the primary resident parent. Financial deprivation of the Mr. Mohamed’s grandchildren is squarely inconsistent with his initial intention: to let Mr. Elbahr use Mr. Mohamed’s money as needed for the family, and to consider repayment later, if at all.

[159] I find that at the core of Mr. Mohamed’s testimony and cross-examination at trial is a changed intention. His intention had changed from supporting the family to helping to reduce his son’s obligation to his ex-wife, the mother of his children. On the evidence before me, to permit the deduction proposed would be to require Ms. El Hadi to pay a full half of the debt to her former father-in-law where the evidence as a whole supports a finding that the son would not, in fact, be similarly required to repay his half of the debt.

[160] I also note the presence of a similar factor in this case as in Poole, where the court concluded that the financial impact of the separation and litigation makes it further improbable that the adult child of the transferor will be able to afford to pay his parents back.

[161] Applying the reasoning approved by the Court of Appeal for Ontario in Rotstein to the factors above, I conclude that in this case, there is a low probability that Mr. Mohamed will demand and receive payment from Mr. Elbahr such that he will actually be out-of-pocket as a result.

[162] Having found a low probability that Mr. Elbahr will actually be compelled to repay the $80,731.79 to Mr. Mohamed, it is not appropriate to permit the deduction of the full amount. To do so would disproportionately impact Ms. El Hadi, as only she would in reality be repaying the debt. As noted in Poole, a further likelihood is that, having recovered from his former daughter-in-law, Ms. El Hadi, the transferor’s adult child, Mr. Elbahr, would have his part of the debt forgiven.

[163] I must now consider what discount of the debt is appropriate.

[164] In Poole, the trial judge discounted the debt to 10% of its face value. In Rotstein ONSC, the trial judge applied the same analysis, but justified a greater discount, down to 5% of face value, on the basis that the parents in Poole had actually sued their adult child for recovery of the debt.

[165] In this case, Mr. Mohamed has not commenced action on the debt, has forgiven past debt, and testified to his willingness to wait until Mr. Elbahr is able to afford to repay the loan after litigation: “It’s okay. He promised me to pay back. Until we get over it, we’ll see.”

[166] Indeed, Mr. Elbahr confirmed in his testimony that he told Mr. Mohamed to wait until his legal proceedings conclude before the loan is repaid. On cross-examination, Mr. Elbahr added that whenever he takes a loan from Mr. Mohamed, it is “totally up to him. He decides when to collect the money from me or whether he is going to gift it to me or not.” Although Mr. Elbahr testified that he offered to get a second mortgage on his property in order to pay back his loan to Mr. Mohamed, Mr. Elbahr admitted on cross-examination that Mr. Mohamed had never asked him to secure the loan.

[167] I therefore find the Rotstein analysis more applicable, and conclude that a discount of the debt to 5% of its face value is appropriate in this case.

[168] I therefore discount the debt claimed by Mr. Elbahr to 5% of $80,731.79, which is $4,036.59. The amount of $4,036.59 shall be considered as a date of separation debt owed by Mr. Elbahr to Mr. Mohamed in the equalization calculation.

b. Jewelry claim by Ms. El Hadi

[169] Ms. El Hadi claims that Mr. Elbahr’s family kept gold jewelry belonging to her when the parties moved to Canada. She seeks to be credited in the equalization calculation with the sum of $25,000 as the value of the jewelry. Mr. Elbahr denies that his family has retained any jewelry of Ms. El Hadi’s and argues that no credit or deduction should therefore be given to her for this item.

[170] Evidence regarding the jewelry that Ms. El Hadi brought into the marriage indicated that it was jewelry that her father had gifted to her. Ms. El Hadi gave a vague description of the jewelry which she claims remains in the possession of Mr. Mohamed in Egypt. She described the jewelry in general terms as including rings in a set, gold bracelets, and gold necklaces. She did not provide a valuation or other identification of the items. She claimed that Mr. Elbahr and his parents did not want her to bring jewelry to Canada, and that they kept her jewelry in their possession in Egypt.

[171] Mr. Elbahr testified that he gave his wife two rings when they became engaged. She brought these rings with her when they moved to Canada. The approximate value of the rings was $16,000 LE. Neither he nor his wife bought any jewelry during their marriage.

[172] Ms. El Hadi did not dispute her husband’s testimony about the engagement rings. She agreed that she brought them to Canada and testified that she sold them after she separated from Mr. Elbahr.

[173] Mr. Mohamed testified that he did not possess any of Ms. El Hadi’s jewelry.

[174] Although it was not mentioned in her 2017 financial statement, Ms. El Hadi argued at trial that the jewelry she left behind had a value of $20,000.00 at the time of marriage, $25,000.00 as at separation, and $27,000.00 at trial.

[175] The onus is on Ms. El Hadi to establish the existence and value of the jewelry prior to marriage, to claim it as a date of marriage deduction, and its retention by Mr. Elbahr such that its value should be attributed to Mr. Elbahr for equalization purposes.

[176] Ms. El Hadi’s description of the jewelry lacked specificity and there was no appraisal or other documentation substantiating the alleged value of the jewelry.

[177] The evidence is insufficient to establish the value of the jewelry described by Ms. El Hadi, or the fact that it was retained by Mr. Elbahr’s family as alleged.

[178] Ms. El Hadi’s claim for inclusion of jewelry as a date of marriage deduction for equalization purposes is accordingly denied.

c. Furniture claim Ms. El Hadi

[179] Ms. El Hadi seeks a date of marriage deduction for the value of certain furniture, which she claims was hers and left in her in-laws’ apartment in Egypt when the parties moved to Canada in 2010. I deny this claim for the reasons that follow.

[180] My evidentiary findings regarding this issue are as follows:

a. The testimony of both parties confirms that they moved into an apartment owned by Mr. Elbahr’s parents in July 2004, a year after they were married.

b. Ms. El Hadi testified that when she and Mr. Elbahr moved into the apartment, both of their families were generous to them. As she put it, “everyone do [sic] something”. Mr. Elbahr’s parents did not charge the couple rent, requiring them only to pay the utilities. Ms. El Hadi’s own parents gave the couple several items including furniture for the apartment. While the parties did not agree on all items given to them, both acknowledged that the furniture included a dining room furniture set, bedroom furniture sets, and possibly also two carpets. Ms. El Hadi claims the value of these items.

c. When they moved to Canada, the parties left this furniture in the apartment in Egypt. Mr. Elbahr’s parents were living in that apartment at time of trial. They confirmed that the dining room furniture set and bedroom furniture were still there.

d. Ms. El Hadi testified that the furniture left behind in Egypt had appreciated in value since they were gifted to her. She estimated they are worth $10,000 CDN. by the time of trial. However, she failed to file an appraisal or any other documentation to substantiate this value. She offered no evidence that would assist the court to objectively value that furniture.

[181] Ms. El Hadi seeks a date of marriage deduction for the present value of these items. Pursuant to the definition provisions found at s. 4 of the FLA, date of marriage deductions is for “…the value of property, other than the matrimonial home, that the spouse owned on the date of marriage…calculated as at the date of marriage” [emphasis added]. In other words, it applies to the date of marriage value of property owned by each party.

[182] Here, by Ms. El Hadi’s own testimony, the furniture for which she claims a date of marriage value was gifted by her parents to both parties. It cannot be an individual deduction as it was a gift to the couple.

[183] Further, it cannot qualify as a date of marriage deduction because, even if it had been expressly given to Ms. El Hadi only, the gift was made after the parties were married.

d. Disposition costs of matrimonial home

[184] The parties agreed that a notional disposition cost of the matrimonial home should be included in their net family property statement. I agree: see Sengmueller v. Sengmueller, 1994 CanLII 8711 (Ont. C.A.).

[185] The parties disagree as to what percentage is appropriate to reflect this notional disposition cost. Mr. Elbahr proposes 4.5% and Ms. El Hadi proposes 3.5%. Neither party led evidence in support of their proposed figure. I consider each to be within the range of reasonable. The difference between them is 1%. I am unable to choose one over the other on the evidence. It is fair in these circumstances to use a figure halfway between the parties’ proposals. The notional disposition cost is therefore 4.0%.

[186] The calculation of 4.0% disposition cost for property value of $380,000 is $15,200. HST at 13% on that amount is $1,976. The sum of these two amounts is $17,176.

[187] Total deduction to be included under this category for equalization purposes is therefore $17,176.

Final Equalization Calculation

[188] Mr. Elbahr filed a comparison NFP statement following final argument. Counsel agreed that this document included the figures agreed to by the parties as well as their positions on the disputed issues which I have decided in these reasons. The final equalization payment is therefore calculated by using the agreed figures, plus the following on the disputed issues: the date of separation value of the matrimonial home and corresponding mortgage debt on that date; reduction of Mr. Elbahr’s proposed debt deduction to 5% of the demand amount; removal of Ms. El Hadi’s proposed values for jewelry and furniture; and adjustment of notional disposition to $17,176.

[189] Having made those adjustments, the resulting equalization payment is $29,626.45. This amount is owed by Mr. Elbahr to Ms. El Hadi.

issue 3: spousal support

Entitlement, Quantum and Duration:

[190] Ms. El Hadi asserts a compensatory and non-compensatory spousal support entitlement. She pleads that she suffered significant economic disadvantage as a result of the traditional role as stay-at-home mother and homemaker that she performed during the marriage. She was therefore out of the paid workforce for 11 years, to the detriment of her career. She asks that a support order be made retroactive to separation and paid as a lump sum.

[191] Mr. Elbahr does not dispute Ms. El Hadi’s entitlement to spousal support. However, he argues that no spousal support is currently or retroactively payable or owing per the Spousal Support Advisory Guidelines, given the parties’ respective incomes and the priority given to the table child support he is paying monthly. In any event, Mr. Elbahr states that he does not have the means to pay a lump sum.

Mr. Elbahr’s Income for Support Purposes

[192] Mr. Elbahr gave testimony about his employment income. He testified that at separation he was working at Apotex Inc. In July 2016 he obtained a position as QC Microbiologist at Therapure Biopharma Inc. His testimony was supported by notices of assessment, pay stubs, and confirmation of employment letters.

[193] I find on the evidence that Mr. Elbahr’s annual income for support purposes is as follows:

(a) In 2014: $56,879;

(b) In 2015: $55,531;

(d) In 2017: $70,862;

(e) In each of 2018 and 2019: $58,424 base salary plus overtime and shift premiums (amounts not known at time of trial).

Ms. El Hadi’s Income for Support Purposes

[194] Ms. El Hadi testified that her first employment after separation started February 3, 2015. In 2018 she started a new position at a starting salary of $45,000 per year.

[195] The parties filed agreed facts regarding Ms. El Hadi’s annual income based on her personal income tax data reported to the Canada Revenue Agency:

(a) In 2014: $6,377.00

(b) In 2015: $22,445.00 (as reported on her 2015 T4 from Just Energy)

(d) In 2017: $17,641.00

(e) In 2018: $37,330.00

Legal Framework

[196] Relevant purposes of an award of spousal support include recognition of a spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse, promotion of self-sufficiency, and relief from economic hardship.

[197] In Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813, at para. 33, the Supreme Court of Canada confirmed that for married spouses, consideration must be given to all the purposes of a support order set out in s. 15.2(6) of the Divorce Act, clarifying that an order providing for the support of a spouse should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d) insofar as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[198] In Moge and Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, the Supreme Court of Canada held that a compensatory order for spousal support may be awarded where a spouse's education, career development, or earning potential have been impeded as a result of the marriage.

[199] Compensatory support is premised on marriage being a joint endeavour, and it seeks to alleviate economic disadvantage by taking into account all the circumstances of the parties, including the advantages conferred on either spouse during the marriage. It is concerned with an equitable sharing of the benefits of the marriage: Poirier v. Poirier, 2010 ONSC 920, at para. 47.

[200] The legal considerations for the entitlement to compensatory support were described by Chappel J. in Thompson v. Thompson, 2013 ONSC 550, at para. 55:

The compensatory basis for spousal support entitlement recognizes that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. The objective of a compensatory award is to provide some degree of compensation for the sacrifices and contributions which a spouse made during the marriage, for economic losses which they experienced and may continue to experience as a result of the marriage, as well as the benefits which the other spouse has received as a result of the sacrifices and contributions. A compensatory award recognizes that such sacrifices, contributions and benefits conferred often lead to an interdependency between the spouses and merger of their economic lives.

[201] Ms. El Hadi also seeks non-compensatory support. Entitlement on this basis is found where the evidence establishes a significant decline in standard of living from the marital standard. Non-compensatory support reflects the economic interdependency that develops as a result of a shared life: Department of Justice Canada, Spousal Support Advisory Guidelines: The Revised User’s Guide (April 2016), at p. 6.

Findings and Analysis

[202] Ms. El Hadi testified that she obtained a Bachelor’s degree in Accounting from Helwan University in Egypt, graduating in 2001. She worked for one year after graduation, and then stopped working at Mr. Elbahr’s request once she became engaged to him.

[203] The parties married in 2003. Ms. El Hadi remained out of the workforce throughout the marriage and was unemployed at the date of separation. Over this 11-year period, she remained at home in order to provide care for the children, maintain the home, and look after the household responsibilities including, cooking, cleaning, and doing laundry for the family.

[204] Ms. El Hadi also testified to actively supporting Mr. Elbahr while he studied for and passed his Canadian requalification exams, and to finding and applying for positions on his behalf once he qualified for work in Canada. The evidence shows that Mr. Elbahr obtained increasingly remunerative positions over the course of the parties’ marriage, while Ms. El Hadi herself was out of the workforce.

[205] Per the Spousal Support Advisory (SSAG) Revised User Guidelines, I must consider where Ms. El Hadi would have been, in terms of income and self-sufficiency, if she had continued in the labour market during her years out of the paid workforce.

[206] Both parties testified that Ms. El Hadi wanted to go back to work during the marriage but did not do so. The evidence of both parties supports a finding that this was an area of friction between the parties, as Mr. Elbahr preferred Ms. El Hadi to stay out of the workforce and look after the children and the home.

[207] Considering the evidence that Ms. El Hadi obtained her Bachelor’s degree in accounting and started employment in Cairo prior to her engagement to Mr. Elbahr, and given her motivation to commence studies toward a further business degree in Canada prior to separation, it is reasonable to predict that she would have entered and remained in full-time employment if she had not become engaged to and married Mr. Elbahr.

[208] The evidence supports a finding that Ms. El Hadi is not as well placed, in either training or work experience, to obtain, maintain and support herself with paid employment as she would have been if she had stayed in the workforce after graduation instead of focusing on raising her family.

[209] I further find that by putting her own career on hold, Ms. El Hadi contributed to Mr. Elbahr’s career development and to the economic and social success of the family. The parties’ decision to have Ms. El Hadi remain at home when the children were young enabled Mr. Elbahr to enjoy an uninterrupted career and to focus his time and energy on his work.

[210] Ms. El Hadi testified that she left her job upon her religious marriage to Mr. Elbahr. Both parties’ testimonies confirmed that Mr. Elbahr discouraged Ms. El Hadi’s attempts to find paid employment, even on a part-time basis, during the marriage.

[211] Ms. El Hadi testified that shortly before separation, she had arranged to obtain private tutoring to help her prepare to write a graduate school admission test. She did not tell Mr. Elbahr as she believed he would not permit her to attend the tutoring. On the day of the first lesson, Mr. Elbahr followed her, confronted her, and then disappeared with the parties’ two children.

[212] This was on August 15, 2014, the date on which the parties separated. Ms. El Hadi called the police when Mr. Elbahr and children had still not returned to the home after several hours. When the police arrived, Ms. El Hadi reported that Mr. Elbahr had assaulted her. He was removed from the home and prevented from returning by the terms of his conditional release.

[213] With respect to his attitude about Ms. El Hadi working outside the home, Mr. Elbahr admitted that his wife spoke to him on many occasions about her desire to work outside the home. However, he felt that her plans were either impractical or too expensive. For example, he did not support Ms. El Hadi’s proposal to “join the team at Tim Horton’s”, as the pay was low and conflicted with his own work schedule. And when she spoke to him about upgrading her accounting credentials with MBA studies, he testified that he told her the family could not afford the tuition.

[214] The evidence of both husband and wife supports a finding that Ms. El Hadi did not, and in practical terms could not, work outside the home during the marriage. She was therefore out of the workforce due to her relationship with Mr. Elbahr from 2003 until six months after separation.

[215] I conclude that Ms. El Hadi’s career development and earning potential have been impeded as a result of her marriage.

[216] In this regard, the following analysis of Chappel J. in Thompson v. Thompson, 2013 ONSC 5500, at para. 58, applies to Ms. El Hadi’s circumstances:

A compensatory claim for spousal support may be established even where the recipient spouse is employed and reasonably self-supporting at the time of the parties’ separation. This situation can arise where, despite that spouse’s ability to meet their own needs, their financial advancement has been impaired as a result of subordinating their career to that of the other spouse or from adopting a less lucrative career path in order to accommodate the needs of the family.

[217] On my findings and conclusions above, Ms. El Hadi has a strong compensatory claim for spousal support. While she is entitled to support on compensatory as well as needs bases, I must emphasize that the primary ground on which I base the spousal support entitlement is compensatory.

Quantum of support:

[218] I conclude that the evidence supports Ms. El Hadi’s entitlement to a spousal support award at or near the high end of the range.

[219] In reaching this conclusion I have considered the following factors which are relevant to the duration and amount of support:

the length of parties’ relationship, totalling 11 years;
the parties’ age at separation, with Mr. Elbahr being 38 years old and Ms. El Hadi being 34 years old;
the children’s residing exclusively with Ms. El Hadi since separation; and
the parties’ incomes, which are referenced above.

[220] In determining the appropriate amount of spousal support, I must also consider that Mr. Elbahr is paying child support to Ms. El Hadi.

[221] I must consider the appropriate duration for spousal support in the circumstances of the parties in this case.

[222] I have found that Ms. El Hadi has a significant compensatory entitlement to spousal support. She has experienced demonstrable economic disadvantage as a result of the roles assumed by the parties during their relationship.

[223] I find further support for my conclusion in the evidence of Ms. El Hadi’s income and of the parties’ lifestyles since separation. At time of trial, Mr. Elbahr was living in the matrimonial home. By contrast, Ms. El Hadi and the children were living in a basement apartment.

[224] In reaching a conclusion on the spousal support issues in this case, I have also considered the result of the parties’ relative positions in their property settlement issues. In this case the result, while not unjust nor unconscionable, is more favourable to Mr. Elbahr, who retains ownership of the matrimonial home as well as the post-separation increase in value.

[225] By contrast, Ms. El Hadi does not own her home. As a result of the end of the marriage and the roles assumed during the marriage, Ms. El Hadi is significantly less likely to be able to afford to buy a home on her own without incurring significant debt, if she can afford property at all.

Spousal Support Retroactivity

[226] Ms. El Hadi seeks spousal support retroactive to the date of separation. It is common ground that the parties separated in August 15, 2014, but Ms. El Hadi did not formally request spousal support until she filed her Answer in October 2015, more than a year later. Her explanation for the delay in asserting her claim was that she had hoped the parties could work it out without asserting a claim.

Legal Framework:

[227] The general framework for retroactive spousal support is set out in the Supreme Court of Canada’s decision in Kerr v. Baranow, 2011 SCC 10, which held that the framework for retroactive child support outlined in D.B.S. v. S.R.G., 2006 SCC 37, also applies to retroactive spousal support, although there are some important modifications.

[228] Unlike child support, there is no presumptive entitlement to spousal support and a spouse is generally not under any legal obligation to look out for the other separated spouse's legal interests: see Kerr, at para. 208.

[229] In deciding whether to make an award of spousal support which pre-dates the commencement of the claim in the party’s application, the court must consider the D.B.S. factors – namely, (i) the needs of the recipient, (ii) the conduct of the payor, (iii) the reason for the delay in seeking support, and (iv) any hardship the retroactive award may occasion on the payor spouse.

Analysis:

[230] Mr. Elbahr continued to pay all the costs of the matrimonial home where Ms. El Hadi and the children were residing during the Separation Period. During this time, he was not paying child or spousal support.

[231] When considering the parties claims regarding the use and value of the matrimonial home during the Separation Period, I have earlier concluded that it was just and fair in the circumstances that Mr. Elbahr paid the carrying costs during the Separation Period.

[232] The parties agreed that those costs amounted to $50,743.90 (carrying costs) plus $5,500 (utilities), a total of $56,243.90. Averaged over the 25.5 months of the Separation Period, this represents $2,205.60 per month paid by Mr. Elbahr toward the housing costs of Ms. El Hadi and children.

[233] In assessing Ms. El Hadi’s claim for retroactive spousal support, I have considered the D.B.S. principles described earlier. In doing so, I find that the financial conduct of Mr. Elbahr, in paying the housing costs of Ms. El Hadi and children during the proposed retroactivity period, was reasonable.

[234] The other significant factor in the D.B.S. analysis in this case is the needs of Ms. El Hadi. The evidence supports a finding that her needs at this time were reasonably addressed by Mr. Elbahr paying all the carrying costs on the matrimonial home where she and the children were living.

[235] Put another way, if Mr. Elbahr had not been paying the costs of the home during the Separation period, I consider what spousal and child support would otherwise have been payable under the SSAG Guidelines during the same period.

[236] Both parties agree in their submissions that if I were to order spousal and child support for the 2014 portion of the Separation Period, Mr. Elbahr would owe approximately $900 for child support and up to $548 (the high end of the range) for spousal support, a total of $1,400 per month. This is significantly less than the $2,205.60 he was already paying for housing costs.

[237] In 2015, the year after separation, Mr. Elbahr continued to pay for the carrying costs of the matrimonial home. In February 2015, Ms. El Hadi found employment and her annual income for that year increased to $22,445. With this change in Ms. El Hadi’s income, Mr. Elbahr’s child support obligation eliminated any monthly spousal payment.

[238] Ms. El Hadi argues that her reported 2014 income of $6,377 should be used for all annual support calculations thereafter. I do not agree. It is appropriate to use the parties’ actual income figures for each year. Ms. El Hadi’s income since that time confirms that she has been able to earn more than $20,000 annually since 2015, and since 2018 has been earning $45,000 per annum.

[239] In conclusion on retroactive spousal support, from separation until October 2015, the evidence supports a finding that Ms. El Hadi’s needs were being met, in an amount greater than the combination of spousal and child support required by Mr. Elbahr’s income. Ms. El Hadi’s claim for retroactive spousal support is therefore denied.

Commencement date for spousal support:

[240] In October 2015, Ms. El Hadi claimed spousal support when she filed her Answer. At that time, Ms. El Hadi had been employed for approximately eight months. At that time, as discussed earlier, Mr. Elbahr continued to pay the costs of the matrimonial home.

[241] I find based on the evidence reviewed above that Ms. El Hadi was not in need of spousal support until she and the children were required to move out of the matrimonial home.

[242] Ms. El Hadi is therefore is entitled to spousal support as of October 1, 2016.

Quantum of support:

[243] Ms. El Hadi’s employment income narrowed the gap between the parties’ incomes. As a result, SSAG calculations using the Divorcemate “with child support” formula generate a recommended range of 0 – 0 – 0 dollars due to the child support being paid by Mr. Elbahr.

[244] Once again, Divorcemate calculations from 2016 through 2019, based on the SSAG Guidelines, confirm a range of 0 to 0 dollars per month spousal support due to the child support already being paid by Mr. Elbahr.

[245] The parties have since settled their child support claims by consent order. Their agreement confirms that Mr. Elbahr owed no child support arrears as of the date he commenced formal payments of table and proportionate-to-income s. 7 expenses. Therefore, it is not possible to disentangle spousal and child for that period ending October 1, 2016.

[246] I have concluded that despite Ms. El Hadi’s entitlement to spousal support commencing October 1, 2016, there has been no monthly support payable to her since that time due to the priority given to child support.

[247] In these circumstances there is no “lump sum” spousal support option to consider as requested by Ms. El Hadi, as there is no support currently payable to her. It is therefore also not necessary to address the issue of duration of spousal support at this time.

ORDERS:

[248] For the reasons set out above, I make the following orders.

Spousal Support

[249] Ms. El Hadi is entitled to spousal support commencing October 1, 2016. There is no spousal support payable at this time for the reasons given.

[250] Ms. El Hadi’s claim for retroactive spousal support is dismissed.

[251] Mr. Elbahr and Ms. El Hadi shall exchange annual confirmation of income information, including complete copies of their income tax returns with all supporting receipts and schedules.

Property and Equalization

[252] The equalization payment by Mr. Elbahr to Ms. El Hadi is $29,626.45.

[253] From that amount shall be deducted the sum of $7,300 owed by Ms. El Hadi to Mr. Elbahr pursuant to my endorsement of September 30, 2016 and the endorsement of Justice Fairburn dated March 13, 2017.

[254] The net equalization payment to be paid by Mr. Elbahr to Ms. El Hadi is $22,326.45.

[255] This amount is subject to post-judgment interest in accordance with the Courts of Justice Act.

Other claims:

[256] Ms. El Hadi’s claim for constructive trust is dismissed.

[257] Mr. Elbahr’s claim for occupation rent is dismissed.

COSTS

[258] Both parties were partially successful. Overall, Ms. El Hadi was more successful on the net family property issues, and Mr. Elbahr was more successful on the matrimonial home and spousal support issues.

[259] The trial evidence established that both parties are under financial constraints. They are therefore strongly encouraged to agree on costs. By doing so they will accelerate certainty as to what is payable to whom and when. They will also eliminate the additional time and legal costs associated with preparation of cost submissions.

[260] If they are unable to reach agreement on costs, both parties are to file written submissions to my attention by email to the Brampton SCJ Trial office by September 21, 2020. The parties’ submissions are not to exceed four pages, double spaced, and should additionally include file cost outlines and relevant offers to settle. Responding submissions from either party are limited to two pages and due by September 28, 2020.

[261] The parties may on consent extend the timelines I have specified for filing cost submissions. The parties shall advise the SCJ Brampton Trial office by email of any such agreement.

”Orignial signed by”__

McSweeney J.

Released: August 31, 2020

COURT FILE NO.: FS-15-84512

DATE: 2020 08 31

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

AHMED ELBAHR

Applicant

and -

AL SHAYMAA ABD EL HADI

Respondent

REASONS FOR JUDGMENT

McSweeney J.

Released: August 31, 2020

Elbahr v. El Hadi, 2020 ONSC 5176

Case Summary

Introduction

Issue 1: matrimonial home claims

A. Ms. El Hadi’s claim for beneficial interest by way of constructive trust

issue 2: DISPUTED NET FAMILY PROPERTY INCLUSIONS/EXCLUSIONS

a. Funds received by Mr. Elbahr from Mr. Mohamed

CONSTRUCTIVE TRUST ARGUMENT

Conclusion

b. Jewelry claim by Ms. El Hadi

c. Furniture claim Ms. El Hadi

d. Disposition costs of matrimonial home

issue 3: spousal support

ORDERS:

COSTS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 5

Legislation 2