Court File and Parties

COURT FILE NO.: FS-18-005686 DATE: 20210518 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ABIR ALI KHADRA Applicant

– and –

MOUSSA MOUSTAPHA KHADRA Respondent

Counsel: Usman Sadiq, for the Applicant No one appearing for the Respondent

HEARD: May 13, 2021

Reasons for Decision

M. D. FAIETA J.

[1] The uncontested trial of this Application was heard today in respect of the Applicant’s claims for, amongst other things, sole decision-making responsibility, child support, a restraining order and a vesting order placing the matrimonial home into her sole ownership.

BACKGROUND

[2] The Applicant was a resident of Canada when she met the Respondent, a resident of Lebanon, during the summer of 2013. They were married on December 26, 2013 in Lebanon. The Respondent emigrated to Canada on January 1, 2015 after the Applicant had sponsored his immigration application many months earlier. Their only child, Celina Khadra, was born on November 24, 2015. On May 25, 2016 the parties purchased the matrimonial home located at 35 Celestine Drive, Etobicoke.

[3] During their marriage the Respondent was physically and verbally abusive toward the Applicant on numerous occasions. He would react violently when the Applicant disobeyed him. Further, the parties spent about 80% of the time prior to their separation apart as a result of the Respondent returning to Lebanon on several occasions for various reasons, whether to see his mother or because he missed his friends and his lifestyle in Lebanon. The Applicant had the support of her parents who were resided in Toronto during this period. Her mother cared for Celina from November 2015 to April 2017.

[4] In about October, 2017, the Respondent attended the house of the Applicant’s parents with a gun and threatened to shoot them for their involvement in his marriage.

[5] The parties separated on October 30, 2017 after the Respondent left the matrimonial home and moved to Montreal.

[6] The last time that the Respondent had contact with the Applicant and Celina occurred was a 40-minute visit in April 2018 at the Yorkdale Mall in Toronto.

[7] This Application was commenced in October, 2018.

[8] The Respondent filed an Answer in November, 2018.

[9] A case conference was held on February 22, 2019 at which Paisley J. made the following Endorsement:

… The Respondent father has not filed a case conference brief and was not in attendance at the conference. Counsel for the father attended and stated that the Respondent is ill and out of the country. An affidavit on behalf of the Respondent sworn February 20, 2019 was submitted at the case conference. A copy of a doctor's note dated February 1 2019 was attached: the Respondent has been advised by his doctor not to travel.

The Applicant mother's Application, Affidavit in Support of Claim for Custody or Access (Form 35.1) and case conference brief raise serious issues with respect to her life and safety. The mother states "The Respondent Father has a history of reacting violently when the Applicant mother has disobeyed him. He has been verbally and physically abusive throughout the course of the marriage, and has even threatened the Applicant mother's family with a firearm" (Affidavit in Support of Claim for Custody or Access paragraph 8).

The mother states in her case conference brief that "shortly before the separation the Respondent father kicked the Applicant mother out of the matrimonial home... The Respondent father later attended the Applicant mother's parent's home with a gun, and threatened to shoot them for their involvement in the parties' relationship". The mother returned to the home where the parties continued to reside until October 30, 2018. The mother states that the father has told her he will take the child of the marriage (age 3) to Lebanon and that the mother will never see the child again. The mother states that if she were to travel to Lebanon the father would have the right to prevent her from travelling.

The father filed an Answer dated November 21, 2018, a financial statement and Affidavit in Support of Claim for Custody or Access (Form 35.1) sworn November 21, 2018. The father does not respond to the mother's allegations of violence or abuse in his affidavit.

I am not satisfied that the father's medical condition is a sufficient explanation for his failure to prepare a case conference brief or his failure to participate in the conference by telephone.

The allegations of violence referred to by the mother are sufficient evidence to support a temporary restraining order. The father is ordered to have no contact or communication with the mother except through counsel, and keep at least 100 metres away from her except with in attendance in Court. The parties are directed to advise court security of future court attendances in order to avoid contact by the parties in the public areas of the Court.

The mother is granted temporary custody of the child. The child is not to be removed from Ontario without further court order. I am satisfied that there are reasonable and probable grounds to believe that the father who is prohibited by this order from removing the child from Ontario proposes to remove the child or have the child removed from Ontario. It is ordered that police services having jurisdiction enforce this order.

I have referred to the mother's case conference brief in this endorsement, it is ordered that the case conference brief is to be filed in the Continuing Record.

At the request of the Applicant costs of this case conference are fixed in the amount of $2,681.00 payable by the father, to be collected by the Family Responsibility Office as incidental to support.

[10] On April 1, 2019, the Respondent commenced a proceeding in Lebanon to compel the return of the Applicant to their matrimonial home. The Applicant denies the allegations in the Respondent’s pleading and has not responded.

[11] On April 26, 2019, an order was granted that removed the Respondent’s solicitor from the record.

[12] On July 14, 2019, Justice Goodman made an Order for substituted service. She ordered that the Applicant could serve the Respondent with any document in this proceeding by mail to an address in Montreal and by email.

[13] On December 10, 2019, following the hearing of a motion, Stevenson, J. ordered the Respondent, amongst other things, to provide certain financial disclosure and pay the payment of child support, daycare fees, and the carrying costs of the matrimonial home. The Order requires the Respondent to:

1. Produce the disclosure required in Schedule “A” within 30 days;
2. Pay child support of $556.00 per month commencing November 1, 2017 based on an imputed income of $60,000.00 per year
3. Pay $1,462.00 which represents 47.2% of the Celina’s daycare fees from November 1, 2017 to May, 2018;
4. Pay the sum of $1,212.68 per month commencing May 1, 2018, which represents one-half of the mortgage payments, property taxes and insurance in respect of the matrimonial home;
5. Forthwith repay the sum of $18,000 which he withdrew from their RBC Homeline Joint Line of Credit;
6. Forthwith pay costs to the Applicant in the amount of $5,288.57.

[14] On October 24, 2020 a Divorce Order was granted by Czutrin J.

[15] On November 19, 2020, Boucher J. made the following Order:

1. Striking the Respondent’s Answer, Financial Statement and Affidavit in Support of Claim for Custody or Access;
2. Granting leave for the Applicant’s corollary claims to proceed by Uncontested Trial.
3. Requiring the Respondent to forthwith pay costs of $2,457.75.

ANALYSIS

[16] A judge’s function at an uncontested trial is not to rubberstamp whatever relief is sought by an Applicant. The law, including the rules of evidence, does not get thrown out the window. A trial judge is not required to accept the Applicant’s evidence at face value, but rather is required to probe the credibility and reliability of the Applicant’s evidence in order to ensure a just result: Manchanda v. Theti, 2021 ONCA 127 (C.A), paras. 11-14.

ISSUE #1: PARENTING ORDER

[17] The Applicant seeks the following parenting order:

1. The Applicant, Abir Ali Khadra, shall have sole custody of Celina Khadra, born November 24, 2015.
2. The need for the Respondent, Moussa Moustapha Khadra, to consent or to sign any applications to renew or obtain passports, birth certificates, health cards, travel documents (visa) and other government documents for the child, Celina Khadra, shall dispensed with.
3. The Applicant Mother, or her designate, shall be permitted to travel with Celina Khadra, outside of Ontario and Canada for vacation, family or leisure purposes, without the written consent of the Respondent Father.
4. The Respondent Father shall not remove Celina from the City of Toronto and Province of Ontario, without the written consent of the Applicant Mother, or further Order of the Court.

[18] In addition, the Applicant submits that the Respondent should have no ordered parenting time for the following reasons:

• The Respondent has lived in Lebanon since about 2017 except for a brief visit to Ontario in April 208;
• The Respondent has made no effort to maintain a relationship with Celina;
• The Respondent has abandoned Celina as he last saw or spoke to her in April 2018;
• Should the Respondent ever wish to have a relationship with Celina, then he can take the necessary steps to obtain an Order for parenting time.

[19] Section 16.1 of the recently amended Divorce Act governs parenting time and decision-making responsibility. Under s. 16 of the Divorce Act, only the best interests of the child inform the terms of a parenting order.

16(1) Best interests of child The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

16(2) Primary consideration When considering the factors referred to in subsection (3), the court shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.

16(3) Factors to be considered In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

16(4) Factors relating to family violence In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

16(5) Past conduct In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

16(6) Maximum parenting time In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[20] The Applicant’s Form 35.1 affidavit, sworn October 3, 2018, states that she has been Celina’s caregiver since birth (November 2015) and that her mother was a caregiver from birth to April 2017. The Applicant states that the Respondent was a caregiver from birth to March 2017 and then from September 2017 to October 2017.

[21] The Applicant began working full time as a chemist in November, 2018. She states that Celina will continue to attend daycare until she is enrolled in school on a full-time basis. Her plan is for Celina to have regular contact with her maternal family and for the Respondent to have supervised access if he should return to Canada wishes to see her.

[22] I am satisfied on the evidence that the children’s physical, emotional and psychological safety, security and well-being is served by granting the parenting order sought by the Applicant with one exception. The Applicant has been Celina’s primary caregiver throughout her life. The Applicant’s parents have also played a significant role in her care. The Respondent had little involvement in Celina’s upbringing while the parties lived together and has subsequently abandoned her. The absence of any provision for parenting time continues and formalizes this abandonment that Celina has suffered. As a result, a provision for parenting time should be included. However, given the Respondent’s conduct (including his violent behaviour), it is my view that his parenting time needs to be structured. First, it should occur at a time and location deemed suitable by the Applicant. Second, it needs to be supervised by an independent agency at the Respondent’s expense.

[23] Further, it is my view that the restraining order should continue subject to the Respondent being permitted to contact: (1) the Applicant in writing for the sole purpose of making arrangements to exercise supervised parenting time on the terms described in this Order; (2) Celina during supervised parenting time on the terms described in this Order.

[24] I make the following Order:

(1) The Applicant shall have sole decision-making authority over all decisions in respect of Celina; (2) The Respondent shall have parenting time with Celina on a supervised basis using the services of an independent agency, such as Brayden Supervision Services Inc., and at times and locations solely determined by the Applicant unless the parties otherwise agree or further order of this court. The costs of such supervision shall be borne solely by the Respondent. (3) The need for the Respondent to consent or to sign any applications to renew or obtain passports, birth certificates, health cards, travel documents (visa) and other government documents for Celina is dispensed with. (4) The Applicant, or her designate, shall be permitted to travel with Celina, outside of Ontario and Canada for vacation, family or leisure purposes, without notice to, or the written consent of, the Respondent Father. (5) The Respondent shall not remove Celina from the Greater Toronto Area without the prior written consent of the Applicant or further order of this court;

ISSUE #2: REGISTERED EDUCATION SAVINGS PLAN

[25] The parties opened a Registered Education Savings Plan (“RESP”) for Celina several years ago. The RESP is administered by the Bank of Montreal and has a balance of about $4,400.00. The Applicant asks that the Respondent’s name be removed from the RESP as she believes that the Respondent will be uncooperative when the time comes, many years from now, to withdraw funds from the RESP for Celina’s education. Her belief is based on the fact that the Respondent has been out of Celina’s life for many years, and his refusal to continue to participate in this proceeding, pay child support or costs as ordered.

[26] Where two parents are the joint trustees of a RESP, this court has the inherent jurisdiction to remove one of those trustees where disagreements between the parents have prevented, and are likely to continue preventing, the accomplishment of the objectives of the RESP: McConnell v. McConnell, 2015 ONSC 2243, paras. 137-139.

[27] I order that the Respondent be removed as trustee of the RESP for two reasons. First, relying the principles outlined in McConnell, even though the parties have not had a disagreement specifically related to the RESP, given the Respondent’s behaviour in relation to the Applicant and Celina, I have no confidence that he will be cooperative when the time eventually comes for the removal of funds from the RESP. Second, given that I have ordered that the Applicant shall have sole decision-making responsibility in respect of Celina, I find that it is appropriate for the Applicant under s. 16.1(4)(d) of the Divorce Act, to have sole decision-making responsibility over this aspect of Celina’s education as well. Accordingly, I order that the Respondent be removed as a trustee of the RESP.

ISSUE #3: CHILD SUPPORT

[28] The Applicant seeks the following Order in respect of child support:

1. The Respondent Father, Moussa Moustapha Khadra, shall pay to the Applicant, Abir Ali Khadra, child support for the benefit of Celina Khadra, born November 24, 2015, in the amount of $556.00 per month which is based on income being imputed to the Respondent in the amount of $60,000.00 per annum, pursuant to the Child Support Guidelines, with such Order being retroactive to November 1, 2017.
2. The Respondent Father, Moussa Moustapha Khadra, shall pay to the Applicant Abir Ali Khadra, his proportionate share of the child’s section 7 expenses, based on his imputed annual income of $60,000.00 and retroactive to November 1, 2017.
3. Unless the Support Order and Support Deduction Order is withdrawn from the Office of the Director of the Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director who shall pay them to the party to whom they are owed.

What is the Income of the Parties?

[29] The income of a parent for the purposes of calculating child support under the Divorce Act is outlined in sections 15-19 of the Federal Child Support Guidelines, SOR/97-175 (“CSG”).

[30] The default approach in the calculation of income for support purposes is to use the income figure found on Line 150 of the payor’s income tax return: See s. 16 of the Guidelines. There is no evidence of the Respondent’s recent income tax returns. In addition, the Respondent’s Financial Statement sworn November 11, 2018 was struck pursuant to Boucher J.’s Order. Further, the Applicant does not have any evidence of the Respondent’s recent Line 150 income.

[31] Accordingly, it falls to the court under section 19 of the Guidelines to impute such amount of income to the Respondent as it considers appropriate in the circumstances.

[32] The following legal principles govern:

• The purpose of these provisions is to arrive at an income figure that fairly and fully reflects the payor’s income: Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at paras 161-162.
• “Section 19 of the Guidelines is not an invitation to the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court's discretion must be grounded in the evidence.” Drygala v. Pauli, 2002 41868 (ON CA), [2002] O.J. No. 3731, para. 44
• The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322, para. 28; Jonas v. Pacitto, 2020 ONCA 727, para. 46.
• While the ability to impute income in the face of a failure to fully disclose is "not an invitation to the court to arbitrarily select an amount as imputed income" …, parties must also accept adverse inferences that result from their failure to disclose … : Pustai v Pustai, 2018 ONCA 785, para. 38.

[33] The Applicant notes that at the time that their mortgage for the matrimonial home was arranged she was earning about $20,000 year as a teaching assistant at York University. As a result, the mortgage was approved based on the Respondent’s financial profile. Today, the Applicant works as a chemist. Her most recent Line 150 income was $79,102.00.

[34] The Applicant found four lease agreements between the Respondent and third parties in the matrimonial home that were used by the Respondent to obtain mortgage financing in the amount of $470,000:

(1) He receives income from four properties in Lebanon: (a) One property was rented by the Respondent for $4,800 USD per year; (b) A second property was rented by the Respondent for $6,000 USD per year; (c) A third property was rented by the Respondent for $4,800.00 USD per year; (d) A fourth property was rented by the Respondent for $12,000 USD per year. (2) Based on today’s exchange rate of $1 CDN to 0.82 USD, I find that the above income of $27,600 USD is equivalent to $33,658.54 CDN. (3) The Applicant states that the Respondent owns a fifth property, an olive grove, in Lebanon which is used to sell olive oil. She does not know how much the Respondent earns from that business. (4) During their marriage the Respondent held over 1 million Lebanese pounds (approximately $863,236 CDN) in a bank account with Blom Bank in Lebanon. The Applicant states that the prevailing interest rate in Lebanon is 2 % per year which would result in about interest income of about $16,000 CDN per year.

[35] At trial, the Applicant asked that income of $49,430 per year be imputed to the Respondent.

[36] Given the fact that the Respondent has chosen not to participate in this proceeding for about three years, it is very difficult given the limited evidence to arrive at an income for the Respondent that “fairly and fully” reflects his income. Nevertheless, doing the best that can be done on the evidence, I find that is appropriate to impute an income of $49,658.54 CDN to the Respondent.

Table Child Support

[37] Given his imputed income, I order that the Respondent shall pay $458.00 per month in child support to the Applicant from November 1, 2017.

Section 7 Expenses

[38] The Applicant states that she is currently incurring daycare expenses of $163 per week during the school year and $220 per week during non-school weeks. The Applicant seeks contribution from the Respondent for future section 7 expenses including daycare expenses, swimming lesson expenses and tutoring expenses. The only expenses being incurred at the moment are daycare expenses. No receipts or documents were provided to support any of the above claims. At trial, the Applicant claimed that $500 per month for “Childcare; Extra-curricular (swimming, dance, etc.; Tuition (Kumon, etc.; Post secondary; Health” until Celina is 23 years old without any particulars of such expenses.

[39] The DivorceMate calculation provided by the Applicant claims annual costs of $9,156 for child care expenses, $2,400 for “extraordinary educational expenses” and $2,400 for “extraordinary extracurricular expenses”.

[40] Section 7 of the Guidelines states:

Special or extraordinary expenses

(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;

(b) that portion of the medical and dental insurance premiums attributable to the child;

(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) expenses for post-secondary education; and

(f) extraordinary expenses for extracurricular activities.

Definition of “extraordinary expenses”

(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax relating to the expense.

Universal child care benefit

(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.

[41] In Titova v. Titov, 2012 ONCA 864, para. 23, the Ontario Court of Appeal stated:

In awarding s. 7 special and extraordinary expenses, the trial judge calculates each party's income for child support purposes, determines whether the claimed expenses fall within one of the enumerated categories of s. 7 of the Guidelines, determines whether the claimed expenses are necessary "in relation to the child's best interests" and are reasonable "in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation." If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are "extraordinary". Finally, the court considers what amount, if any, the child should reasonably contribute to the payment of these expenses and then applies any tax deductions or credits.

[42] Based on their respective incomes, the Respondent’s bears 37.1% of Celina’s allowable section 7 expenses.

[43] The Applicant states that Celina does not participate in any activities for which future section 7 expenses are claimed other than daycare expenses.

[44] Given that these expenses, other than daycare, have not been incurred, I decline to make any specific order with respect to them as I have no evidence as to their necessity or reasonableness: Bishop v. Wang, 2018 BCSC 781, para. 149. Further, the Applicant must also show that the educational and extracurricular expenses are “extraordinary”.

[45] The award for section 7 expenses sought by the Applicant for “education expenses” and “extracurricular expenses” are speculative as there is no evidentiary basis to assess whether such expenses, if incurred, would be “necessary”, “reasonable” and “extraordinary”. Such claims should be advanced at the time that these expenses are being incurred.

[46] In respect of the daycare expenses being claimed, the Applicant has failed to provide any documentary evidence to support the amounts claimed or the amount that she is currently paying for daycare. There is no evidence about the extent daycare will be required for Celina, if at all, should she return to school, in person, in September, 2021 and, if so, what those arrangements might be and what those costs would be.

[47] The Applicant’s claim for section 7 expenses is adjourned.

Lump Sum Award of Child Support

[48] The Applicant seeks an order for the payment of a lump sum amount for child support.

[49] Section 11 of the Federal Child Support Guidelines states that a court may require, in a child support order, that the amount payable under the order be paid in a lump sum.

[50] A lump sum payment can be made where the payor has a history of failing to make support payments or resides in a country that does not have reciprocal enforcement of judgment legislation through which the child support payments can be enforced: Tu v. Tu (2000), 2000 22591 (ON SC), 7 R.F.L. (5th) 178 (Ont. Sup. Ct.). In this case, the Respondent has never paid child support. Further Lebanon is not a reciprocating jurisdiction under the Interjurisdictional Support Orders Act, 2002, S.O. 2002, c. 13.

[51] In Warren v. Gilbert, [2006] O.J. No 1988, var’d in part, [2006] O.J. No. 5086 (C.A), the trial judge ordered lump sum child support for a child, age 8, in respect of both table child support and section 7 expenses. The trial judge stated:

106 One option for the court would be to estimate a lump sum that would represent a capitalization of the future periodic support payments that Mr. Gilbert likely would pay under the Guidelines plus section 7 expenses, based on his imputed average income. From that lump sum, Ms. Warren could receive the monthly child support payment. Once Mr. Mr. Gilbert is no longer responsible for these payments, any balance remaining in court would be paid out to him. That lump sum would be paid into court to the credit of Ms. Warren in trust for Samantha from the sale proceeds of the farm.

107 It is likely that Mr. Gilbert will, in the future, continue to be self-employed. Given his age and his skill level, that is, a licensed mechanic, as well as his experience as a business owner/operator and his ability to do labour-intensive farming despite his neck problems, over the next 17 years that the child will likely be entitled to support, I am imputing an average yearly income to Mr. Gilbert of $40,000 per year. I also take into account the expected equity that each party will receive on the sale of the property, given the range of values as presented by the real estate appraiser's evidence and the fact that there would likely be some investment income being earned.

108 Based on Mr. Gilbert's imputed average income averaged out over the 17 years of expected child support, the Guideline amount is $345 per month. Therefore, to age 25, from February 21, 2006 to 2022, the total for a period of 17 years is (17 × 12 × $345) = $70,380.

109 Adding an amount for likely proportionately shared s.7 expenses, including postsecondary school expenses in the future, I fix that capitalized amount at amount at $40,400 ($200 per month for the 204 months). Present-valuing these amounts at the discount rate of 2.5% would come to a total sum of $90,644.40.

110 I, therefore, order that out of Mr. Mr. Gilbert's share of the sale proceeds of the farm the sum of $90.644 be paid into court to the credit of Ms. Warren, in trust for the support of Samantha. I also order that this order be secured against the title to the farm property.

[52] In Warren, the Ontario Court of Appeal set aside the order for the payment of lump sum child support for the following reasons:

5 As to child support, we conclude that the trial judge erred in two ways. First, he erred in ordering a lump sum payment without evidence that would allow him to make a proper calculation of the amount owing in accordance with the Child Support Guidelines. In this respect, he erred in basing the amount of child support on the assumption that the child would remain entitled to such support until age twenty-five. He also erred by including expenses to be proportionately shared under s. 7 of the Guidelines, such as post-secondary expenses. Both of these calculations were made without evidence about the likelihood that the child would continue in school after age eighteen and without allowing for contingencies. [Emphasis added]

[53] The Applicant has not provided any evidence about the likelihood that Celina, age 5, will continue in school after age eighteen and has not provided any evidence of the appropriate contingencies to be made for that risk in calculating a lump sum payment. In any event, in some instances it may be too speculative to make any assumption that a child will pursue post-secondary education even when the child is 14 years old: Tu v. Tu, [2000] O.J. No. 1336.

[54] Accordingly, I adjourn this trial for the purpose of allowing the Applicant to submit such evidence.

ISSUE #4: EQUALIZATION PAYMENT

[55] Although the Application includes a claim for equalization of net family property, the Applicant did not advance that claim. She was unable to prepare a Net Family Property Statement as the Respondent has failed to provide the required disclosure in accordance with Rule 13 and she is unable to provide the required particulars of the Respondent’s property. The Applicant’s claim for an equalization payment is adjourned.

ISSUE #5: VESTING ORDER

[56] The Applicant seeks an order vesting the ownership of the matrimonial home solely in her name:

The Respondent Moussa Moustapha Khadra shall be removed from the title of the matrimonial home, municipally known as 35 Celestine Drive, Etobicoke (Legal Description: LT 153, PL 5085; S/T EB173942 Etobicoke, City of Toronto), and title of 35 Celestine Drive, Etobicoke (Legal Description: LT 153, PL 5085 ; S/T EB173942 Etobicoke, City of Toronto) shall be vested in the name of the Applicant, Abir Ali Khadra, on account of the Respondent’s past, present and future child support obligation.

[57] In Lynch v Segal, 2006 42240 (ON CA), [2006] O.J. No. 5014, the Ontario Court of Appeal described the legal principles related to the issuance of vesting orders as follows:

27 In Ontario, the court's broad general power to grant a vesting order is found in section 100 of the Courts of Justice Act. In the specific context of family law claims, sections 9(1)(d)(i) and 34(1)(c) of the Family Law Act confer an equally broad power to grant a vesting order on an application for equalization of net family property or support, respectively. Vesting orders are discretionary and have their origins in the court's equitable jurisdiction …

31 The rationale for the vesting power, therefore, is to permit the court to direct the parties to deal with property in accordance with the judgment of the court. The jurisdiction is quite elastic. Nothing in the language of either section 100 of the Courts of Justice Act or section 34(1)(c) of the Family Law Act operates to constrain the flexible discretionary nature of the power.

32 I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order — in the family law context, at least — is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair(2001), 2001 28208 (ON SC), 18 R.F.L. (5th) 91 (Ont. S.C.J.), affirmed (2003), 2003 57393 (ON CA), 42 R.F.L. (5th) 46 (Ont. C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.

33 In addition, the court should be satisfied that there is some reasonable relationship between the value of the asset to be transferred and the amount of the targeted spouse's liability and, of course, that the interests of any competing execution creditors or encumbrancers with exigible claims against the specific property in question are not an impediment to the granting of a vesting order. However, I would not go so far as to say — as argued by the appellants — that the onus to satisfy the court on these matters is at all times on the person seeking the order. I shall return to these issues later in these reasons.

[58] A vesting order should not be granted where the value of the property “significantly exceeds” the amount of the lump sum support order. The appropriate remedy in such circumstances is to order that the property stand as security for the support order within the meaning of section 41(10)(e) of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c 31: Trebilcock v. Trebilcock, 2012 ONCA 452, para. 8. In Trebilcock, the Ontario Court of Appeal ordered that in the event the lump sum amount of child support was not paid within 30 days, then the Director of the Family Responsibility Office could have the property seized and sold to satisfy any outstanding amount owed under the support order.

[59] The Applicant seeks a vesting order in order to enforce this court’s orders.

Respondent’s Arrears

[60] The Applicant claims that the vesting order is required to satisfy the following debts of the Respondent:

1. Outstanding Costs Orders: $10,427.32 (a) Order of Paisley J. dated April 25, 2019: $2,681.00; (b) Order of Stevenson J. dated December 10, 2019: $5,288.57 (c) Order of Boucher J. dated November 19, 2020: $2,457.75

2. Carrying Costs of the Matrimonial Home: $43,656.48 The Applicant has failed to comply with the Order of Stevenson J., made on December 10, 2019, that required the Respondent to pay $1,212.68 per month commencing May 1, 2018, which represents his share of the carrying costs of the matrimonial home. Over the three years until May 1, 2021, this obligation totals $43,656.48.

3. Maher: $23,811.29 The Applicant states that the parties entered into a Maher at the time of their marriage. The Respondent agreed to pay 30 million Lebanese Lira in the event of their divorce or his death. The parties were divorced on October 24, 2020. The Applicant’s evidence is that 30 million Lebanese lira had a value of $23,811.29 CDN on the date of divorce.

What the Applicant has referred to as the Maher, is an one-page court order dated December 26, 2013 which translated into English from Arabic states:

Republic of Lebanon, Prime Ministry, Jaafarit Religious Courts Tyre Jaafarit Religious Court Judge: Sheikh Mohamad Mohsen EL FAKIH Clerk: Hussein MAZEH Applicant (M.): Moussa Moustapha KHADRA Applicant (F.): Abir Ali KHADRA Request: Marriage Confirmation In conformity with the request, the decision taken by the two applicants, contraction of marriage performer’s documents and medical report, in conformity with articles 17, 91 and 242 of religious court law, We Have taken the decision to confirm on December 26, 2013, the marriage of the said two applicant for a dower: the prepaid part is: a copy of the holy Koran – the postponed part is thirty million Lebanese Liras to be paid in case divorce or death, religious judgment passed on December 26, 2013.

A copy of the Maher, signed by the parties, was not provided. In light of the above court order, I am satisfied that the Maher is legally enforceable. However, I unable to determine whether the terms of the Maher would result in the payment of thirty million Lebanese Liras being excluded from Net Family Property. A payment under a Maher must be included in Net Family Property unless specifically excluded by its terms. In such circumstances, a payment obligation under a Maher is considered an asset of the recipient spouse and a liability of the payor spouse: Bakhshi v Hosseinzaeh, 2017 ONCA 838, paras. 29-30, 32-34.

On the evidence before this court, there is no basis to deal with the Maher payment obligation as excluded from Net Family Property.

4. Post-Separation Adjustment: Repayment of RBC Line of Credit: $18,000 The Applicant states that the Respondent withdrew $18,000.00 from their joint line of credit after the date of separation. On December 10, 2019, Stevenson J. ordered that the Respondent forthwith repay that amount. The Respondent has failed to pay any amount to the Applicant.

5. Arrears of Table Child Support Arrears to Date: $23,908.00 The Applicant has failed to comply with the Order of Stevenson J., made on December 10, 2019, that required the Respondent to pay child support in the amount of $556 per month from November 1, 2017. As a result, as of today, the Respondent owes $23,908.00 in table child support to the Applicant.

6. Arrears of Section 7 Expense Arrears to Date: $1,462.00 The Applicant states that the only section 7 expenses that she has incurred to date are daycare expenses.

The Applicant has failed to comply with the Order of Stevenson J., made on December 10, 2019, that required the Respondent to pay the amount of $1,462.00 in respect of Celina’s daycare fees from November 1, 2017 to May, 2018.

The Applicant states that she has incurred daycare expenses of $8,108.81 from January 2018 to December 2020.

[61] Using the above figures, the Respondent’s total debt to the Applicant is $121,265.09 (even if the Maher payment obligation was included).

Respondent’s Estimated Future Liability

[62] The Applicant claims that the vesting order is required to satisfy the Respondent’s future liabilities.

Future Table Child Support

[63] The Applicant’s current child support obligation, as ordered above, is $458 per month.

[64] The Applicant estimates that Celina will attend university while living at home and that she will no longer be a child of the marriage after that graduating from university at the age of 23. There is no explanation for the view that Celina will attend university (for instance, did both parents attend university?) and that she will graduate no earlier than at age 23.

[65] Given that Celina was born in November, 2015, and assuming that she enters a four-year degree program, I estimate that Celina would likely graduate from a four-year undergraduate program in May, 2037 when she is about 22 ½ years old. There are 191 months between June 1, 2021 and May 1, 2037.

[66] The total amount of child support to be paid by the Respondent over 191 months is $87,478.00. The Applicant did not provide the net present value of this amount.

Future Section 7 Expenses

[67] As noted earlier, the Applicant estimates that she will incur $500 per month in section 7 expenses for Celina until she is 23 years old. She calculates the total amount of section 7 expenses claimed over the next 18 years is $108,000.00. She submits that the Respondent’s proportionate share (38.6%) is $41,580.00. The Applicant did not provide the net present value of this amount.

[68] For reasons described earlier, any award for future section expenses is premature and would be entirely speculative given the evidence

Equity in the Matrimonial Home

[69] The Applicant states that the estimated fair market value of the matrimonial home is $1,150,000 based on an opinion provided by a real estate agent, Richard Himelfarb. There is no evidence that Mr. Himelfard is a licensed real estate appraiser. He provided his opinion in a short email to the Applicant. In turn, that email was appended to the Applicant’s affidavit. This evidence is inadmissible for three reasons: (1) It is hearsay evidence. If the Applicant wanted to rely on Mr. Himelfarb’s evidence, she should have sought an affidavit from him. It is unknown if he realizes that his email is being put before this court. (2) The Applicant did not comply with Rule 20.2; (3) In any event, it does not appear that Mr. Himelfarb is a licensed real estate appraiser.

[70] There is a mortgage balance of $461,647.71 as of May 1, 2021. There is also a line of credit with a balance of $17,430.00. This represents what remains owed on the line of credit as a result of the Respondent withdrawing $18,000 following their separation. The Applicant claims 5% plus HST on account of notional disposition costs. In my view, there is no reason to deduct notional disposition costs as the Applicant is not purchasing this property on consent, but rather obtaining a vesting order to transfer the matrimonial home in order to enforce the payment of the Respondent’s child support and related obligations. Accordingly, if Mr. Himelfarb’s evidence was accepted, the net equity in the matrimonial home is $670,923.00.

[71] The Respondent’s share of the net equity in the matrimonial home is $335,461.50. Deducting $121,265.09 for the Respondent’s arrears (assuming that the Maher payment obligation should be included) and assuming the sum of $84,478.00 for the Respondent’s estimated future liabilities, leaves the Respondent with $129,718.41 in equity in the matrimonial home.

Conclusions

[72] Even if Mr. Himelfarb’s evidence is accepted, the value of the matrimonial home would significantly exceed the arrears and the amount of the potential lump sum order. Accordingly, it is not just to make the requested vesting order based on the evidence adduced. The Applicant’s request for a vesting order is adjourned to permit her an opportunity to adduce other evidence in support of the issuance of a vesting order.

ORDER

[73] I make the following final Orders pursuant to the Divorce Act that:

(1) The Applicant, Abir Ali Khadra, shall have sole decision-making authority over all decisions in respect of the child of the marriage, Celina Khadra, born November 24, 2015; (2) The Respondent, Moussa Moustapha Khadra, shall have parenting time with Celina Khadra, born November 24, 2015, on a supervised basis using the services of an independent agency, and at the times and locations solely determined by the Applicant, Abir Ali Khadra, unless the parties otherwise agree or further order of this court. The costs of such supervision by an independent agency shall be borne solely by the Respondent; (3) The Applicant, Abir Ali Khadra, is authorized to apply for, and renew, any government documentation, such as a passport, birth certificate, health card, travel document, for Celina Khadra, born November 24, 2015, without the consent or signature of the Respondent, Moussa Moustapha Khadra; (4) The Applicant, Abir Ali Khadra, or her designate, shall be permitted to travel with Celina Khadra, born November 24, 2015, outside of Ontario and Canada for vacation, family or leisure purposes, without notice to, or the written consent of, the Respondent Father; (5) The Respondent, Moussa Moustapha Khadra, shall not remove Celina Khadra, born November 24, 2015, from the Greater Toronto Area without the prior written consent of the Applicant, Abir Ali Khadra, or further order of this court; (6) The Respondent shall pay table child support in the amount of $458.00 per month for Celina Khadra, born November 24, 2015, based on the Respondent’s imputed income of $49,658.54 commencing June 1, 2021; (7) The Respondent, Moussa Moustapha Khadra, shall have his name removed from the jointly held Registered Education Savings Plan, account *8352, held by the Bank of Montreal for the benefit of Celina Khadra, born November 24, 2015.

[74] I make the following final Order pursuant to the Family Law Act and the Children’s Law Reform Act, namely, that the Respondent, Moussa Moustapha Khadra, born November 13, 1980, shall not: (a) contact or communicate directly or indirectly with the Applicant, Abir Ali Khadra,, born May 9, 1981, and Celina Khadra, born November 24, 2015, except through or in the presence of counsel, or except to contact the Applicant by email for the sole purpose of arranging supervised parenting time with Celina Khadra in accordance with the terms of this Order;(b) Come within 100 metres of the Applicant, Abir Ali Khadra, born May 9, 1981 or Celina Khadra, born November 24, 2015, at any time or for any purpose other than for the purpose of having supervised parenting time with Celina Khadra in accordance with the terms of this Order.

[75] The Applicant claims costs of $4,000 in respect of this trial. I am satisfied that such amount is reasonable and proportionate. Pursuant to the Courts of Justice Act, I order that the Respondent shall, within 30 days, pay $4,000.00 to the Applicant for costs of this trial.

[76] The trial of the Applicant’s claim for an equalization of net family property, section 7 expenses and a vesting order is adjourned.

Mr. Justice M. D. Faieta

Released: May 18, 2021

COURT FILE NO.: FS-18-005686

DATE: 20210518

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ABIR ALI KHADRA Applicant

– and –

MOUSSA MOUSTAPHA KHADRA Respondent

REASONS FOR DECISION

Mr. Justice M. D. Faieta

Released: May 18, 2021