COURT FILE NO.: FS-19-00000073

DATE: 20210514

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zeinab Hasan Abdulla, Applicant

AND:

Mahmoud Al-Kayem, Nour Al-Kayem, Dima Al-Kayem, Rand Al-Kayem, Respondents

BEFORE: Chozik J.

COUNSEL: Golan Yaron, Counsel for the Applicants

No one appearing for the Respondents

HEARD: March 11, 2021 by videoconference

ENDORSEMENT

[1] This Application proceeded before me as an uncontested trial pursuant to an endorsement of Gibson J. dated December 18, 2020. The Respondents were served with the Application, Notices of Motion, and all related materials. No Answer or response has been filed. None of the Respondents attended the hearing before me. Although initially framed as a motion for summary judgment under rr. 1(8.4) and 10(5) of the Family Law Rules, O. Reg. 114/99, the matter proceeded as an uncontested trial under r. 16.

[2] The trial before me proceeded by way of affidavit evidence from the Applicant as well as an affidavit from a law clerk in the Applicant’s lawyer’s office. The evidence is not contested or challenged in any way. The Applicant was also present and ready to give evidence on this trial by video conference. Given the extensive evidence before me and Mr. Yaron’s comprehensive submissions, I did not require the Applicant’s viva voce evidence to decide the issues in this case.

[3] The main issue in this case is the Applicant’s entitlement to spousal support after 35 years of marriage and the quantum of that support. The secondary issue is security for support.

[4] A threshold determination is whether the talaq (Arabic for “divorce”) done in March 2017 pursuant to Sharia Law in Dubai is a bar to the jurisdiction of this court. If the parties are already divorced, then the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) does not apply and there is no jurisdiction for this court to consider the Application or to order payment of spousal support.

Background and Findings of Fact:

[5] On the unchallenged sworn evidence before me I make the following factual findings:

[6] The parties were married in Syria in 1982. The Applicant, Ms. Zeinab Hasan Abdulla (“the Applicant”), trained as a dentist in Syria but did not work since getting married. The Respondent, Mr. Mahmoud Al-Kayem (“the Respondent”), trained as a civil engineer. While in Syria, the parties had three daughters. They are now adults. In 1989, the Respondent relocated to Dubai in the United Arab Emirate for a job placement. The family followed in 1992. Their fourth child, a son, was born to the parties while living in Dubai. The Respondent was the sole provider for the family at all times. I accept the Applicant’s evidence that he has other wives, as permitted by Islamic law, and that this is not his only family.

[7] In 2005, the Applicant and the four children immigrated to Canada. The Respondent remained in Dubai: his work was there, and he did not receive permission from the Canadian immigration authorities to remain in Canada.

[8] From the time that the family moved to Canada in 2005 until 2014, the Respondent provided monthly support to the Applicant and the children that was sufficient to maintain her and the children. This ranged from $2,000 to $5,000 per month. The Applicant was a homemaker, raising four children and focusing on her family.

[9] In 2015, the parties’ daughters finished their university studies and moved to Dubai. They remain there today. Two of the daughters live with their father, the Respondent. They are also regularly in contact with the Applicant. They are aware of these proceedings. The Applicant regularly traveled to Dubai. (Indeed, she was in Dubai staying with one of her daughters when she appeared before me for this trial by video.)

[10] In 2016 and 2017, the parties’ son attended Ryerson University in Toronto. The Applicant was no longer receiving support from the Respondent at that time. She rented an apartment for her son in Toronto in order for him to attend post-secondary school. She depleted her savings to support him during his studies.

[11] The Respondent came to Canada only twice. The last time was in 2010. At that time, the parties purchased the matrimonial home in Oakville. Title to that home was held jointly by the parties and all three daughters. The parties also purchased three vacant parcels of land in Orangeville, Ontario. The Applicant and the Respondent jointly took title to one of the vacant lots. Two adjacent lots were put in the names of two of the parties’ daughters for estate planning purposes.

[12] In April 2017, the Applicant was notified by way of a letter that a talaq was done in March 2017. The notification means that she is divorced according to Islamic views. The letter advised that “talaq” was “forever”.

[13] On the unchallenged evidence of the Applicant, I accept that serving her with the Islamic divorce may be acceptable in some Muslim countries. I also accept on the unchallenged evidence before me that the Applicant had no notice of the divorce proceedings in Dubai or elsewhere, was not advised about the process, and had no opportunity to participate in any way in those proceedings. She was not given any right to support, which may be available to her under Islamic law.

[14] The Applicant has not received any support from the Respondent since March 2017. In June 2020, the matrimonial home was sold pursuant to an order of this court. An order dated July 3, 2020 provided that $900,000 from the sale proceeds of the matrimonial home be released to the Applicant to allow her to purchase a new property. That order was made without prejudice to the determination of who is entitled to that money. The Applicant was ordered not to encumber the new property she purchased. The order to that effect was registered on title to that property. The balance of the funds from the sale of the matrimonial home – approximately $464,334 – were paid into court.

[15] The Applicant seeks spousal support payable as a lump sum and a variety of reliefs that would allow her to claim this lump sum from the proceeds of the sale of properties owned by the parties and their daughters in Canada. She seeks security for the payment of the spousal support and asks that the Respondent’s interest in the matrimonial home and in the vacant land in Orangeville be vested in her as security for the Respondent’s obligations. The Applicant also seeks a declaration of a resulting trust with respect to the vacant land held by the parties’ daughters, who are named as parties to this proceeding.

[16] As a threshold issue, the Applicant seeks a declaration that the talaq divorce is not recognized by this court under the Divorce Act.

Threshold Issue: Is there jurisdiction to hear and determine corollary relief under the Divorce Act?

[17] An Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid foreign divorce: Okmyansky v. Okmyansky, 2007 ONCA 427, at para. 25.

[18] Section 22 of the Divorce Act provides for the recognition of foreign divorce decrees. In certain circumstances, courts in Canada have refused to recognize foreign divorces, including talaq divorces under Sharia Law in particular.

[19] In Novikova v. Lyzo, 2019 ONCA 821, the Court of Appeal for Ontario upheld the motion judge’s refusal to recognize a foreign divorce because the wife was not given proper notice of the proceeding in the Russian Federation. In Kadri v. Kadri, 2015 ONSC 321, the court held that even if the foreign divorce is valid, a judgment may not be recognized or given effect on the grounds of fraud, lack of natural justice, or public policy: at para. 83. With respect to talaq divorces in particular, the court in Kadri observed that numerous immigration decisions of the federal court have expressed concerns about talaq divorces where the procedure consist only of a unilateral announcement of divorce by one party, usually the male: at para. 85.

[20] A “bare” talaq divorce was described in Amin v. Canada (Minister of Citizenship and Immigration), 2008 FC 168, [2008] 4 FCR 531, at para. 20, as a private recitation of a verbal formula in front of witnesses. The verbal recitation may be pronounced in a mosque. It may be reinforced by written documents containing such information, whether accurate or not. The pronouncement of the divorce before witnesses is what brings about the divorce.

[21] The court further observed in Amin that the ritual performance of the bare talaq lacks any necessary element of publicity or the invocation of the assistance or involvement of any organ of the state in any capacity, even if merely to register or recognize what has been done. While the essential procedure differs, the court concluded in Amin that to recognize a bare talaq divorce would be manifestly contrary to Canadian public policy.

[22] I do not know, and there is no evidence before me as to, the procedure invoked that led to the talaq in this case. I am satisfied that it is not for the Applicant to prove that the talaq is not valid. Rather, the onus of proving a legally valid foreign divorce is on the party seeking to rely on that divorce: Wilson v. Kovalev, 2016 ONSC 163, at para. 10. Foreign law and the validity of a foreign court order are questions of fact to be established by the proponents. In this case, the onus is on the Respondent to show that the foreign divorce is valid. The Respondent has filed nothing in this proceeding.

[23] On the evidence that I do have before me, I am not satisfied that there was a proceeding that led to a valid divorce. Even if I accepted that there is a talaq of some sort, I find that the Applicant was not given any notice of the proceeding, if there was one, and that she was denied any opportunity to participate in that proceeding.

[24] Therefore, I decline to recognize the talaq divorce in this case as a valid foreign divorce under s. 22 of the Divorce Act. I am satisfied that this court has jurisdiction to hear and determine the corollary relief sought by the Applicant under the Divorce Act.

Entitlement to and Quantum of Spousal Support:

[25] Section 15.2 of the Divorce Act permits this court to order a spouse to secure or pay a lump sum or periodic sums for the support of the other spouse. Pursuant to s. 15.2(4), the factors that the court must consider in making a spousal support order include the condition, means, needs, and other circumstances of each spouse, including:

a. The length of time the spouses cohabited;

b. The functions performed by each spouse during cohabitation; and

c. Any order, agreement or arrangement relating to support of either spouse.

[26] An order for spousal support is intended to achieve the following aims: recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; apportion between the spouses any financial consequences arising from the care of any child of the marriage; relieve economic hardship of the spouses arising from the breakdown of the marriage; and, in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time: Divorce Act, s. 15.2(6).

[27] In this case, I have no hesitation in finding that the Applicant is entitled to spousal support. Her entitlement is both needs based and compensatory. This was long-term, traditional marriage of 35 years. I accept the Applicant’s unchallenged evidence that, until she received the notification of the talaq divorce in April 2017, she considered herself to be married to the Respondent even though the Respondent did not reside in Canada.

[28] The Applicant is now 62 years old. For 35 years, she dedicated herself to raising and taking care of her family. She has no other means of support. The Applicant was financially disadvantaged as a result of entering into this marriage. She sacrificed her career and employment for the advancement of the Respondent in his career and family stature. The Applicant has been looking after and raising the parties’ four children. She is currently unemployed, unemployable, and requires ongoing support to meet her needs. Her entitlement to spousal support is indefinite.

[29] The quantum of spousal support presents a challenge: there is no evidence as to the Respondent’s income. He has not participated in these proceeding. There is no means by which his income can be ascertained by the Applicant. Her unchallenged evidence is that he is financially very well off in Dubai. I accept her evidence in this regard. Her evidence in this regard makes sense in part because he has chosen not to participate in these proceedings. I infer from his disinterest in this proceeding that the money and property interests he has at stake are of little concern to him.

[30] The unchallenged evidence of the Applicant is that, prior to 2017, the Respondent provided monthly support to the Applicant in an amount between $2,000 and $5,000 per month. In the absence of any evidence to the contrary, I infer that he has the means to pay this amount. I therefore impute income to him in an amount that is sufficient to continue to pay the highest of these amounts. He can afford to pay this amount. I have no reason to think otherwise.

[31] The Applicant’s need for support, even based on $5,000 a month, will exceed the amount available to her from the Respondent’s share of the net proceeds of the matrimonial home.

[32] The matrimonial home was sold pursuant to an order of this court in June 2020. Title to the home was held by the parties and their three daughters. For the reasons below, I find that there was a resulting trust: the daughters’ held the interest in the property in trust for their parents. As indicated above, a portion of the net proceeds of the sale – $900,000 – were released pursuant to a court order to the Applicant so that she could purchase another home. The net proceeds of the sale were $1,364,334.

[33] The Applicant’s share of the net proceeds from the sale of that property totals approximately $678,000; the rest is the Respondent’s share. The Applicant asks that the Respondent’s share be paid to her as a lump sum spousal support.

[34] The jurisdiction to order a lump sum spousal support payment arises under s. 15.2(1) of the Divorce Act and s. 34(1)(b) of the Family Law Act. It arises where there is a very real risk that periodic payments would not be made, as well as a number of other circumstances: Davis v. Crawford, 2011 ONCA 294, at paras. 29, 66-67; Hathway v. Hathway, 2017 ONSC 3490, at para. 22; Mumtaz v. Suhail, 2019 ONSC 6234, at paras. 34-36. I am satisfied that this risk arises here: if ordered to by this court, there is little likelihood that the Respondent would pay periodic spousal support to the Applicant.

[35] At a rate of $60,000 per year, $678,000 will be enough to cover spousal support for just over 11 years. Thus, spousal support will run out before the Applicant turns 75 years of age, even though her entitlement is indefinite.

[36] I am satisfied that the Respondent’s share from the proceeds of the sale of the matrimonial home be paid to the Applicant as a lump sum spousal support.

[37] As she has already been paid out $900,000 and the balance was paid into court, that balance held in court shall be released to the Applicant.

Resulting Trust and Vesting Order:

[38] A resulting trust arises when a person purchases property and puts its in the name of another but that second person holds the legal title in trust for the benefit of the person who paid to acquire the property. In other words, title to property is held in one party’s name, but that party is under obligation – either because she or he is a fiduciary or gave no value or consideration for the property – to return it to the original title owner: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20. A resulting trust may arise from a gratuitous transfer of property: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 12, 17-18.

[39] In this case, I am satisfied on the uncontested evidence that the parties’ daughters were put on title to the matrimonial home gratuitously. They did not contribute to the purchase of the property or to its maintenance. Similarly, the daughters hold title to the vacant parcels of land in Orangeville in trust for the parties. The daughters did not contribute to the purchase of any of the properties or any ongoing maintenance or preservation. I therefore find that there is a resulting trust with respect to the daughters’ interests in these properties.

[40] The Applicant asks that the Respondent’s interest in the three vacant parcels of land vest in her. A vesting order is available under s. 100 under the Courts of Justice Act or under s. 34(1)(c) of the Family Law Act. Both provisions allow the court’s discretion. A vesting order may be used to remove a party from title in order to satisfy a spousal support debt: Lynch v. Segal et al. (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (C.A.), at paras. 32-33; Broman v. Dark, 2013 ONSC 4316, at para. 18; Patton v. Patton (2008), 2008 CanLII 731 (ON SC), 54 R.F.L. (6th) 446 (Ont. S.C.), at paras. 15-16.

[41] In this case, in addition to ongoing support, the Applicant is owed retroactive spousal support from at least March 2017,[^1] as well as s. 7 expenses for the time she supported her son through university. These amounts have not been quantified for me but, at a rate of $5,000 per month from January 1, 2017 until May 1, 2021, the retroactive spousal support alone is substantial: at least $250,000.

[42] There may also be a significant shortfall in the spousal support available to the Applicant from the proceeds of the sale of the matrimonial home. As indicated above, the Respondent’s share of the net proceeds from the sale of the matrimonial home are only sufficient to provide support for the Applicant until she is 73 years old. There may very well be a significant shortfall.

[43] The Applicant also carried the costs of the matrimonial home from 2017 until it was sold. The Respondent got the benefit of the increase in the value of the property from the date of separation until equalization. Thus, there is a further unquantified amount owing to the Applicant.

[44] The current value of the vacant parcels of land is not in evidence before me. The Land Registry excerpts in evidence show that the daughter’s parcels were purchased on September 18, 2008 for $40,000 each. The Land Registry excerpts also show that the lot held by the parties jointly was purchased by them on September 18, 2008 for $135,000.

[45] To secure the retroactive s. 7 expenses, child support, and spousal support owing, as well as any shortfalls in the spousal support in the future, a vesting order is appropriate. On the evidence before me I cannot ascertain with the usual precision exactly what is owing or the exact value of the property interest that will vest with the Applicant. However, on the unchallenged evidence, I am able to infer that the amounts owed to the Applicant and the value of the Respondent’s property interests are roughly even.

[46] The Respondents have shown no interest in these proceedings or these properties and they have made no objection to the relief being sought. In all the circumstances, I am of the view that an order vesting title of the Orangeville properties in the Applicant is equitable.

Conclusion:

[47] Order to issue as per draft signed by me.

Costs:

[48] The Applicant, as the successful party, is presumptively entitled to costs of these proceedings. The bill of costs submitted by the Applicant reflects that her actual costs of this litigation total $27,978.08 including legal fees, HST, and disbursements. The Applicant submits that she is entitled to costs on a full indemnity basis because by failing to respond to her Application or otherwise engage in these proceedings, the Respondents have acted unreasonably. Their unreasonable conduct has unnecessarily complicated the proceeding, forcing the Applicant to take multiple steps in these proceedings, thus driving up the costs of the litigation.

[49] Ordinarily, I would not give effect to this argument. It is difficult to accept that not attending a hearing justifies top costs, given that attending with failing arguments does not. However, in the unique circumstances of this case, I agree that full indemnity costs are warranted.

[50] The Applicant has had to take extra steps and bring multiple motions and attend multiple case conferences in order to address what are, really, very straight forward issues: sale of a matrimonial home, spousal support after 35 years of marriage, and security for that support. Ordinarily, she would be entitled to financial disclosure that would make these issues straightforward. By not engaging in the proceeding, the Respondents have deprived the Applicant of procedural rights that would saved her effort, time, and money. They have acted unreasonably with the result that the Applicant’s costs of the litigation costs increased.

[51] The quantum of the costs incurred by the Applicant are reasonable, proportionate, and commensurate with the significance of the issues at stake. The Respondents are ordered to pay to the Applicant costs of $27,978.08 on a full indemnity basis forthwith.

(“Original signed by”)

Chozik J.

Date: May 14, 2021

[^1]: Although I have used March 2017, this is a conservative estimate given that unchallenged evidence that the Applicant stopped receiving support from the Respondent in 2014.