COURT FILE NO.: FS-16-85704

DATE: 20210521

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SARA HAWAS

Ms. C.A. Haber, for the Applicant

Applicant

• and -

MOHAMED TAREK MAHMOUD HALIL IBRAHIM

Mr. J. Dhaliwal, for the Respondent

Respondent

HEARD: January 14-17, 2020, September 8-11, 14-18, 2020, and by Zoom videoconference November 30, 2020, and December 1-4, 2020

REASONS FOR JUDGMENT

Stribopoulos J.

Introduction

1The Applicant, Sara Hawas, and the Respondent, Mohamed Ibrahim, met in 2006 while attending university in Egypt. They were married in Cairo on January 23, 2009.

2After their marriage, Ms. Hawas eventually moved back to Canada; the parties disagree on when. In Canada, Ms. Hawas and the couple’s two oldest children lived with her parents in Mississauga. In March 2014, Mr. Ibrahim immigrated from Egypt to Canada to join Ms. Hawas and their children. The family initially lived with Ms. Hawas’s parents but soon moved into a home they purchased in Mississauga. The following year, their third child was born.

3The parties separated in early February 2016, when Mr. Ibrahim left the matrimonial home and travelled to Egypt. Within a week of separation, Ms. Hawas commenced this application. The following month, Mr. Ibrahim quit his Canadian job. Ms. Hawas claims that, at the time, Mr. Ibrahim intended to abandon the family and escape his support obligations. He denies that and provides an innocent explanation for travelling to Egypt after separation.

4Mr. Ibrahim eventually returned to Canada. On October 27, 2016, Ms. Hawas brought a motion for interim custody and support. In response to that motion, Mr. Ibrahim swore an affidavit that he now acknowledges misrepresented his financial circumstances. On the motion, Bielby J. ordered Mr. Ibrahim to pay interim child and spousal support based on an imputed income of $150,000. He also ordered Mr. Ibrahim to pay Ms. Hawas $50,000, which he did.

5Some of the claims initially advanced by Ms. Hawas are no longer at issue. Shortly before the trial commenced, on January 7, 2020, the parties settled the equalization of net family property. After crediting Mr. Ibrahim for the $50,000 he paid to comply with Bielby J.’s order, the parties agreed that Mr. Ibrahim would pay Ms. Hawas $377,000 in full settlement of her claim for the equalization of net family property. The endorsement from that day left it to the "trial judge to determine any payment terms re equalization." Mr. Ibrahim has not yet made the equalization payment. He maintains that he needs his share of the proceeds from the sale of the matrimonial home to do so. Additionally, while the trial was ongoing and with the parties’ consent, in September 2020, the court issued a Divorce Order and a Final Order concerning custody and access.

6At the end of the trial, Mr. Ibrahim conceded that Ms. Hawas is entitled to spousal support for an indefinite duration. The principal question that remains for the court's determination is whether to impute income to the parties in determining the issues of child and spousal support.

7Ms. Hawas maintains that she cannot work because of her demanding childcare responsibilities, especially for the parties’ oldest daughter, Jana, who has autism. Ms. Hawas opposes the sale of the matrimonial home because she says it is already outfitted to meet Jana's needs. Mr. Ibrahim acknowledges the autism diagnosis but contests the idea that a different home could not accommodate Jana or that Ms. Hawas cannot work because of Jana’s needs. In deciding the issue of spousal support, he submits that the court should impute income to Ms. Hawas.

8Since late 2016, Mr. Ibrahim has earned employment income from the CIBC in Toronto. He also regularly receives nominal but consistent amounts of monetary gifts from his aunt, which he acknowledges should be imputed as income for support purposes. Beyond that, he disputes that the court should impute any additional income to him. Between December 2013 and March 2019, Mr. Ibrahim received substantial sums of money from a Saudi Arabian company owned by his maternal grandfather (some of which came indirectly through his brother). The company operates a chain of 35 luxury goods stores throughout Saudi Arabia and is well known in the Middle East. Additionally, the same aunt who regularly sent him money gave him $18,600 in March 2019. The trial mainly focussed on whether the court should impute any portion of these funds as "income" for support purposes.

9These reasons proceed in three main parts. Part I details the relevant aspects of the parties’ history together, including their competing accounts of their lifestyle and pertinent details concerning their children. Part II addresses the imputation of income, including whether to impute any income to Ms. Hawas. It also explains the court's findings concerning the money Mr. Ibrahim received from his brother, his grandfather's company, and his aunt, and whether, given the governing principles, any portion of those funds should be treated as "income" for support purposes. Finally, in Part III, the court addresses the quantum of child and spousal support and other ancillary issues that it must resolve in deciding this application.

I. History of the Parties

10Ms. Hawas was born in Egypt but immigrated to Canada as a teenager in 2002, along with her parents. Mr. Ibrahim was born and raised in Egypt. They met in 2006 when they were both in their early twenties and attending the German University in Cairo.

11The parties disagree on how Mr. Ibrahim supported himself during the early years of their relationship. Ms. Hawas testified that he did so with money he received from his grandfather’s company. In contrast, Mr. Ibrahim testified that while at university his father, who is a doctor, supported him.

12After graduation, Mr. Ibrahim obtained his designation as a Certified Management Accountant. In late 2007, he secured a position with PricewaterhouseCoopers (PwC) in Cairo, where he earned approximately $1,000 CAD per month. After completing her Bachelor of Arts degree, Ms. Hawas continued on at the German University in Cairo to obtain her Master of Arts (MA) degree, which she completed a couple months after the parties were married.

13The parties married on January 23, 2009. They agree that they had a lavish wedding, with 500 to 600 guests in attendance, at the Four Seasons hotel in Cairo. They disagree about who paid for it. Ms. Hawas testified that Mr. Ibrahim paid for the wedding with money from his family, and that he told her it cost between $100,000 and $150,000 CAD. In contrast, Mr. Ibrahim testified that Ms. Hawas’s father paid for half their wedding. He testified that her father was a partner at KPMG and that he is a millionaire. Ms. Hawas denied all of this. She insisted that her father did not contribute to the cost of the wedding. She described him as a retired accountant and characterized her parents as having a middle-class lifestyle.

14After their wedding, the parties went on a two-week honeymoon to Bali and then Singapore. Ms. Hawas testified that they stayed in a private villa at a Four Seasons hotel in Bali and a five-star hotel in Singapore. She testified that Mr. Ibrahim told her the honeymoon cost between $50,000 to $70,000 CAD and that his grandfather’s company paid for it. In contrast, Mr. Ibrahim testified their honeymoon cost $6,000 USD. He produced an itinerary for the trip from a travel agency, which shows that airfare and accommodation cost $1,905 USD per person.

15After their wedding, the parties lived in a townhouse in Cairo that Mr. Ibrahim purchased and renovated in 2008. Ms. Hawas testified that Mr. Ibrahim told her he did so with funds from his grandfather's company. In contrast, Mr. Ibrahim testified that he bought and renovated the townhouse using funds from an inheritance he received from his mother's estate (she passed away in 2000). Mr. Ibrahim produced a translation of an Egyptian court document from 2001, confirming his entitlement to a share in his mother's estate. Mr. Ibrahim testified that he inherited £2 million Egyptian pounds (EGP) from his mother, which he received when he turned 21 in 2007. He testified that he used £1.6 million EGP from that money to purchase and renovate the townhouse and spent the rest on the parties’ wedding and honeymoon.

16The parties disagree about the standard of living they enjoyed in Egypt. According to Ms. Hawas, in Cairo, Mr. Ibrahim drove a BMW, and she had a Hyundai Elantra and a driver. They also had a cook and a maid. Ms. Hawas testified that they could only afford all that because of the money Mr. Ibrahim received from his grandfather's company. She maintained that Mr. Ibrahim's employment income was far too modest to support their lifestyle.

17In contrast, Mr. Ibrahim denied the couple had the lavish lifestyle described by Ms. Hawas. He testified that they did not have a cook or maid in Egypt, noting that they had only just started their life together. Mr. Ibrahim testified they had limited resources at the time because they spent a great deal of money purchasing and renovating the townhouse and paying for their wedding and honeymoon. He testified that they supported themselves on his salary and interest he earned from a GIC that he purchased with some of the money he inherited from his mother. Mr. Ibrahim denied receiving any money from his grandfather’s company when the parties lived in Egypt.

18Ms. Hawas testified that in the years following their wedding, even after their first two children were born, she was travelling back and forth between Canada and Egypt regularly and that Mr. Ibrahim paid for these trips. In contrast, Mr. Ibrahim testified that Ms. Hawas only returned to Canada for the birth of their two oldest children to obtain Canadian citizenship for them and that he joined her on these trips. Beyond that, he testified Ms. Hawas returned permanently in 2012 only after Jana began to show signs of autism because they concluded there were better treatment opportunities for her in Canada.

19As this summary demonstrates, there is a great deal concerning their life together about which the parties disagree. Thankfully, there does not appear to be any disagreement about their children and their circumstances. The parties have three children: Jana (born 2010), Zeina (born 2011), and Nour (born 2015). Since their births, Ms. Hawas has been their primary caregiver. In Canada, she has been assisted by her mother, especially since the parties separated. Mr. Ibrahim enjoys parenting time, including overnight visits, but he does not always exercise them. To be sure, parenting three children can be challenging under the best of circumstances.

20Ms. Hawas’s parenting obligations are especially challenging because of Jana's autism. Ms. Hawas testified that Jana is non-verbal. To the extent that she does communicate, she does so by using an iPad. Jana experiences sleep difficulties, for which Ms. Hawas has sought out treatment for her. That often means that she cannot wake up in the morning, making it difficult to get her to school on time. Jana attends a class for children with an autism spectrum disorder. There are four other students in the class, with one teacher and two teaching assistants. She has an Individual Education Plan with the Peel Board of Education. Jana's classroom is outfitted with special equipment to address her unique needs.

21Unfortunately, when she becomes frustrated or upset, Jana engages in self-injurious behaviour. For example, she pulls her hair out, hits herself on the head, throws herself on the ground, and bangs her head on hard surfaces. When upset, she can also act out violently towards others, including Ms. Hawas. This can happen at school, which has necessitated the development of a safety plan. Beyond Jana engaging in acts of self-harm or acting out violently towards others, the safety plan also addresses her tendency to run away from the classroom and sometimes even the school grounds.

22The parties’ two younger children attend a different school than Jana. As a result, Ms. Hawas’s morning routine requires her to drop off the children at two different schools, which can be challenging given Jana's difficulty getting up in the morning because of her sleep issues. If everything goes according to plan, the children are at school six hours per day. Ms. Hawas testified that she uses that time to attend to various tasks essential to running the household.

23Ms. Hawas had ambitions of pursuing an academic career. Her goal was to become a professor of economics. After Zeina’s birth, Ms. Hawas attended York University to obtain an MA in that field. Although her mother assisted her with caring for the parties’ two oldest children, her childcare responsibilities meant that it took her three semesters, rather than the two it usually takes, to complete the program. She graduated with an MA from York in the summer of 2013.

24After Mr. Ibrahim joined the family in Canada in 2014, Ms. Hawas was accepted into a Ph.D. program at the University of Guelph and commenced her doctoral studies in September 2014. She became pregnant after that. Unfortunately, there were complications with the pregnancy. That, along with her childcare responsibilities for the parties’ two eldest children and a lack of assistance with the children from Mr. Ibrahim, she testified, necessitated her withdrawal from the Ph.D. program in November 2014.

25In contrast, Mr. Ibrahim denied that he failed to assist Ms. Hawas with childcare and that that played any role in her withdrawing from the Ph.D. program. He testified that Ms. Hawas struggled with her doctoral coursework and decided to withdraw because of that. Mr. Ibrahim testified that she was pregnant by that point with their third child, and she decided to focus her attention on their children rather than her studies. He maintained that throughout their time together, he was always supportive of Ms. Hawas’s educational goals.

26In January 2014, Mr. Ibrahim quit his job at PwC. Before immigrating to Canada in March 2014, he took a vacation to Saudi Arabia. Mr. Ibrahim testified that after leaving PwC, he supported himself and paid for the trip with money from a GIC he redeemed, the one he had purchased with funds from the inheritance he received from his mother’s estate.

27After he arrived in Canada, the parties moved quickly to buy a home. They took possession in June 2014. Additionally, they purchased two cars, including financing a used Mercedes for Mr. Ibrahim to drive. Mr. Ibrahim testified that the money put towards the home purchase, along with the family’s living expenses during that period, came from funds he received from his grandfather’s company in December 2013. According to him, that was the first time he ever received any funds from his grandfather’s company and the money was meant as a gift to assist him with the major life transition of immigrating to a new country.

28In the months following his arrival in Canada, Mr. Ibrahim testified that he was looking for employment but had difficulty finding a position because he lacked Canadian experience. Ultimately, he took an unsalaried commission-based position as a financial consultant with Investors Group. He testified that he saw the position as a steppingstone – a way of acquiring Canadian experience so that he could secure a better position later. He had just a handful of clients, all of whom were the parties’ family members. Mr. Ibrahim earned only a nominal income from that position ($7,650 in 2014, $12,655 in 2015, and $6,809 in 2016). There is no dispute that between 2014 and 2016, the family's primary means of support were the funds Mr. Ibrahim received from his grandfather's company.

29By late 2015, the parties were having disagreements concerning their finances. They offer differing accounts about the origin of this conflict. According to Ms. Hawas, the cause was Mr. Ibrahim becoming defensive when she asked him about their finances. In contrast, Mr. Ibrahim testified that the source of the conflict was his realization that Ms. Hawas had begun transferring funds from their joint bank account to her account. Whatever the cause, the turning point came on February 4, 2016. The police attended the residence that day after Ms. Hawas called them. The police did not lay any charges. However, Mr. Ibrahim left the family’s home that same day. He travelled to Egypt on February 6, 2016 and resigned from his position at Investors Group the following month. After that, he travelled back and forth between Egypt and Canada a few times before returning more permanently later in the year and securing a position in late October 2016 with the CIBC in Toronto, where he still works.

II. Imputation of Income

30The imputation of income was the principal issue at trial and the focus of most of the evidence. Each party takes the position that the court should impute income to the other party.

31Mr. Ibrahim submits that in fixing his spousal support obligation, the court should impute income to Ms. Hawas because she is deliberately unemployed. In contrast, Ms. Hawas maintains that she cannot work because of her childcare responsibilities, and therefore the court should not impute income to her.

32Ms. Hawas submits that the money Mr. Ibrahim has received from his grandfather's company, his brother, and his aunt should all form part of his income in determining both his spousal and child support obligations. In contrast, Mr. Ibrahim maintains that all of the funds received from his grandfather's company were gifts and should not form part of his income when determining his support obligations. Mr. Ibrahim maintains that some of the funds he received from his brother were gifts from his grandfather and are also not income. Additionally, other funds received from his brother were to repay money he invested with his brother and should also not qualify as income. Finally, although he acknowledges a monthly gift of $500 he has been receiving from his aunt, since August 2017, should be treated as income due to its regularity, he maintains that a one-time gift from that aunt of $18,600 in March 2019 should not form part of his income.

33This part addresses the parties' respective claims concerning the imputation of income.

(a) The Law

34In deciding the quantum of support, there is a presumption that a party’s “income” consists only of what is reported as “Total Income” on their tax return: Federal Child Support Guidelines, SOR/97-175, s. 16 (Federal Guidelines); see Bak v. Dobell, 2007 ONCA 304, 86 O.R. (3d) 196, at para. 30, dealing with the “virtually identical” Ontario Child Support Guidelines, O. Reg. 391/97 (Ontario Guidelines) and being “instructive” concerning the Federal Guidelines, as confirmed in Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, at paras. 47-48. However, the presumption can be displaced, and the court may impute additional income to a party.

35Section 19(1) of the Federal Guidelines empowers the court to impute "income to a spouse as it considers appropriate in the circumstances" (emphasis added). The provision furnishes the court with the discretion to impute income to both support payors and recipients in determining child and spousal support: see Diamond v. Berman, 2020 ONSC 1566, at para. 33; Favero v. Favero, 2013 ONSC 4216, at para. 94; Rilli v. Rilli, 2006 34451 (Ont. S.C.), at paras. 14-16. The section provides:

Imputing income

19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

[Emphasis added.]

36The circumstances listed in s. 19(1) are not, however, exhaustive: Bak, at para. 34. The Court of Appeal has recognized that they “are simply examples of situations in which the imputation of income” to a spouse “may be appropriate” and that there “are also other circumstances in which the court may conclude that income can, and should, be imputed”: Korman, at para. 48; see also Bak, at paras. 34-35; Riel v. Holland (2003), 2003 3433 (ON CA), 67 O.R. (3d) 417 (C.A.), at para. 36.

37The gifts a person receives are not subject to taxation. Consequently, they do not fall within a party's presumptive income under the Federal Guidelines: Bak, at para. 31. Nevertheless, after considering the circumstances listed for imputing income, the objectives of the Ontario Guidelines (which are the same as those in the Federal Guidelines), and the case law, the Court of Appeal instructed that whether funds received are treated as gifts or income requires a fact-specific determination. It “depends on the circumstances of the family at issue” and an exercise of the trial judge’s “residual discretion…based on his or her factual findings”: Bak, at para. 73.

38Ultimately, the court must determine “whether the circumstances surrounding the particular gift are so unusual that they constitute an ‘appropriate circumstance’ in which to impute income”: Bak, at para. 74. In Bak, at para. 75, the Court of Appeal identified several factors for courts to consider when making that determination:

In considering whether it is appropriate to include the receipt of unusual gifts in income, a court will consider a number of factors. Those factors will include the regularity of the gifts; the duration of their receipt; whether the gifts were part of the family's income during cohabitation that entrenched a particular lifestyle; the circumstances of the gifts that earmark them as exceptional; whether the gifts do more than provide a basic standard of living; the income generated by the gifts in proportion to the payor's entire income; whether they are paid to support an adult child through a crisis or period of disability; whether the gifts are likely to continue; and the true purpose and nature of the gifts.

Accordingly, if there is a settled pattern of substantial and significant gifts received by a spouse to assist with maintaining the family’s lifestyle, the court may decide “it is appropriate in the circumstances” to include such gifts as “income” for support purposes: Korman, at paras. 64-67. With the governing principles summarized, these reasons turn to the specific claims advanced in this case concerning the imputation of income.

(b) Ms. Hawas’s Income for Support Purposes

39Ms. Hawas’s income in 2019, 2018, 2017, and 2016 was made up exclusively of the interim spousal support she received from Mr. Ibrahim; she did not earn any employment income over those four years. Ms. Hawas testified that she could not work because of her childcare responsibilities, especially as they relate to Jana. She testified that she could receive a phone call from Jana’s school requiring her to drop everything and attend the school. Ms. Hawas testified about a specific incident that required her to do exactly that which took place in the fall of 2018. Given this, Ms. Hawas testified that she could not commit to any job.

40The law is clear that a party “is intentionally unemployed when he or she chooses not to work when capable of earning an income”: Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 28. Applying that definition to Ms. Hawas’s circumstances, I am satisfied that she is intentionally unemployed. To be sure, I do not doubt that Ms. Hawas sincerely believes that Jana’s needs make it impossible for her to work. However, I am not satisfied that, from an objective standpoint, that is the case. The reality is that many parents who have children with special needs maintain gainful employment and still manage to prioritize their children’s needs when that proves necessary. I see no reason why Ms. Hawas could not do the same.

41In deciding the amount of income to be imputed, the court must consider what is reasonable in all of the circumstances, taking into account Ms. Hawas’s age, education, experience, skills, health, past earning history, and her potential remuneration if she worked to her capacity: Drygala, at para 45; Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 36.

42Ms. Hawas is 35 years of age. She has three university degrees. Based on her testimony, combined with her role throughout the trial in assisting her counsel, it is apparent that Ms. Hawas is a highly intelligent, articulate, organized, and industrious individual. Although the only remunerated work she has done in the past was as a teaching assistant, her potential to do far more in future, given her employable skills, is obvious. As a result, I am satisfied that, at least since Nour began school in September 2019, Ms. Hawas could have worked on a part-time basis.

43Mr. Ibrahim submits that the court should impute a part-time income to Ms. Hawas of $18,000 per year. I agree. Accordingly, the court will impute income in that amount to Ms. Hawas beginning in September 2019.

(c) Mr. Ibrahim’s Income for Support Purposes

44Mr. Ibrahim secured salaried employment with the CIBC in late 2016. He has remained with the bank since then. After immigrating to Canada, Mr. Ibrahim has also upgraded his qualifications, obtaining his designations as a Certified Valuation Analyst and Chartered Financial Analyst. In 2016, Mr. Ibrahim had $6,809 in taxable earnings from Investors Group. His taxable earnings from the CIBC were $48,896 in 2017, $73,982 in 2018, and $80,127 in 2019.

45Beyond his earnings from the CIBC, Mr. Ibrahim acknowledged receiving $500 a month since August 2017 from one of his aunts who lives in Canada and Egypt. Although he characterizes these payments as gifts, he concedes that their regularity justifies imputing them as income. Beyond that, Mr. Ibrahim contests that the court should impute as income any other funds he has received from his brother, his grandfather’s company, or the one-time gift he received from that same aunt in March 2019.

46The evidence concerning the money Mr. Ibrahim has received from his family members came primarily from Canadian and Egyptian banking records he provided as disclosure. Ms. Hawas compiled summaries detailing the funds received by Mr. Ibrahim into various bank accounts. Although counsel for Mr. Ibrahim objected to the admissibility of these summaries, he withdrew his objection once it became apparent that Ms. Hawas’s methodology was sound. That concession was sensible because summaries of that nature, compiled based on the documentary evidence that also became trial exhibits, are admissible to assist the court to understand voluminous documentary evidence better: R. v. Scheel (1978), 1978 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.), at p. 34.

47Additionally, Mr. Ibrahim retained Mr. Neil Maisel, with the accounting firm of Crowe Soberman LLP, to review the records from his various bank and investment accounts from 2014 to February 23, 2017. Based on that review, Mr. Maisel testified concerning a report he authored, which became an exhibit, that details the funds received by Mr. Ibrahim during that period. The report makes detailed reference to explanations provided by Mr. Ibrahim concerning the various transactions reflected in his financial records. It adopts Mr. Ibrahim’s characterization of the funds he received as gifts. The truth of Mr. Ibrahim’s explanations for the transactions it details is a foundational assumption on which the report depends for its conclusions.

48Ultimately, the various financial records establish that between December 2013 and March 2019, Mr. Ibrahim received approximately $1.65 million CAD from his grandfather’s company, his brother and one of his aunts.

49Most of that money came directly from his grandfather’s company. Between December 10, 2013, and November 7, 2019, the company made 37 separate transfers for varying amounts to Mr. Ibrahim. The most substantial sum he received was $276,296 CAD, and the smallest amount was $335 CAD. The total amount of funds received directly from his grandfather’s company during that period was $1,300,900 CAD.

50Additionally, Mr. Ibrahim received various sums from his brother, deposited into Mr. Ibrahim’s USD account at the Abu Dhabi Islamic Bank (ADIB) in Cairo. Between April 4, 2016 and July 12, 2017, deposits into that account by his brother totalled $346,747.50 CAD. Included in that amount was a deposit, on April 4, 2016, for $266,295 CAD. Mr. Ibrahim testified that money also came from his grandfather’s company. According to Mr. Ibrahim, his brother received the funds on his behalf because, at the time, he did not have a USD account. Concerning other smaller sums, Mr. Ibrahim testified that these represented interest on investments he made in Egypt through his brother.

51Finally, Mr. Ibrahim acknowledged receiving a gift of $18,600 CAD from his aunt in March 2019 (separate and apart from the $500 monthly gifts she has been sending him since August 2017).

52Mr. Ibrahim testified that he knows nothing at all about his grandfather’s wealth. He denied having any knowledge of whether other family members receive any money from his grandfather’s company. According to Mr. Ibrahim, the first time he received a substantial gift from his grandfather’s company was on December 12, 2013, when he received $276,282.52 CAD. He testified that his grandfather sent him that money to help him get established in Canada. When shown the transfer document for that money, which references “family expenses,” Mr. Ibrahim testified that this gift would have been a family expense for his grandfather. He testified that his uncle, who works at his grandfather’s company, would have been the person who made the arrangements for that transfer.

53Mr. Ibrahim testified that he would periodically ask his grandfather for financial assistance, but there was never any guarantee he would receive it. With that first transfer, he testified to speaking by telephone with his grandfather. According to Mr. Ibrahim, his grandfather is in his 90s and suffers from Alzheimer’s disease. As a result, he would have also spoken with his uncles and aunts, who manage the company. In making such requests, Mr. Ibrahim testified that he never requested a specific amount. After explaining his situation and asking for financial assistance, they would take a couple of months to decide and then send an amount of their choosing. He testified that his grandfather and grandmother told him the money was a gift.

54Mr. Ibrahim testified that from the money received in December 2013, he used $15,000 for the deposit on the house they purchased and then $124,000 towards closing. The house cost $640,000, and they financed the balance with a mortgage. Mr. Ibrahim testified to using the rest of the money to cover the family’s living expenses, including buying a car for Ms. Hawas and financing a used 2012 Mercedes for himself.

55In October 2014, Mr. Ibrahim contacted his grandfather to ask for more money. His grandfather did not understand him, so he also spoke with his grandmother and his uncles and aunts who manage the company. They responded to his request by sending him a further $200,0000 CAD on October 27, 2014. The associated transfer document referenced “family expenses,” which Mr. Ibrahim again explained as being how his grandfather would have perceived this money.

56Despite that reference, Mr. Ibrahim testified that money was not for his living expenses. Instead, these funds were for him to invest in GICs at Investors Group and to finance a business venture he was planning. Mr. Ibrahim testified that he was planning on developing an app to connect chefs with potential customers. He testified that he spoke with application developers about this idea and had completed a one-page business plan. Ultimately, he never put the plan into action, and he ended up investing $162,900 of these funds in GICs with Investors Group.

57Mr. Ibrahim testified that on February 2, 2016, just before the parties separated, he redeemed a GIC at Investors Group, sourced from money his grandfather previously provided him. He then transferred most of the proceeds, $115,000 CAD, back to his grandfather. (Mr. Ibrahim did not produce any documentation to corroborate that the money went to his grandfather). Mr. Ibrahim acknowledged that his grandfather had not asked for the money to be returned. During cross-examination, he explained that, at the time, the marriage was breaking down, and he made the transfer because he was scared that Ms. Hawas would take all of the money. He testified that he was not making the “best decisions” at that point.

58Mr. Ibrahim testified that in March 2016, he contacted his grandfather and told him he had separated, and that Ms. Hawas had commenced legal proceedings against him in Canada. He also told his grandfather that he was interested in attending the Rotman School of Management at the University of Toronto. He asked his grandfather for financial assistance but again did not specify an amount.

59In response, Mr. Ibrahim testified that on March 24, 2016, his grandfather’s company sent $213,000 USD to his brother in Egypt. According to Mr. Ibrahim, that money had two purposes. He testified that some of the money ($133,085 USD) was to assist him with the situation he found himself in. The balance ($115,000 CAD) represented the return of the money he had sent back to his grandfather on February 2, 2016.

60Mr. Ibrahim testified that he did not receive the March 24, 2016 transfer directly because, by then, he had closed all of his USD accounts. He also explained the money was sent to Egypt because, by that time, he was travelling back and forth between Egypt and Canada. Finally, he testified to being unsure of what would happen with the legal proceedings and not wanting the money to go to Canada. Mr. Ibrahim testified that from the $213,000 USD, his brother withdrew $8,000 USD. From that, Mr. Ibrahim retained $4,000 USD, sent $4,000 USD to Canada, and then transferred the balance of $205,000 USD into an ADIB USD account that he opened.

61On June 13, 2016, Mr. Ibrahim used some of the money he deposited into his ADIB USD account to purchase a condominium in Cairo. He testified that, at the time, property prices in Egypt were rising and that he bought the condominium only as an investment. He denied purchasing the condominium in Cairo because he was planning on permanently relocating to Egypt.

62On a motion for interim support, on October 27, 2016, beyond ordering interim spousal and child support prospectively, Bielby J. also ordered Mr. Ibrahim to make a payment of $50,000 to Ms. Hawas. Mr. Ibrahim testified that he made two transfers to his cousin in Canada from his Egyptian USD account to facilitate that payment. His cousin then gave him two cheques, one for $45,000 and the other for $50,917, which he then deposited into his Canadian account. Mr. Ibrahim testified to using that money to pay the $50,000 to Ms. Hawas and cover his legal expenses. He testified that his cousin gave him the money by providing him with two cheques because of the large sum involved.

63In March 2017, Mr. Ibrahim received another substantial transfer from his grandfather’s company – $249,977 USD. He testified that that money was to assist him with buying a condominium in Toronto. Again, Mr. Ibrahim described calling his aunts and uncles who manage his grandfather’s company, explaining that he needed money to purchase a condominium, telling them about the real estate market in Toronto, and then receiving that amount. Mr. Ibrahim maintained that he had no control over the amount of money he received, that his aunts and uncles did research of their own and some months later forwarded him a sum of their choosing. Mr. Ibrahim testified that, at the time, he decided he could not afford to purchase the condominium. Instead, he used the $249,977 USD to make interim support payments, pay legal fees, and cover the cost of Mr. Maisel’s report.

64On June 7, 2018, Mr. Ibrahim received $100,000 USD from his grandfather's company. He testified that a few weeks before receiving that transfer, he reached out to one of his uncles, who is involved in managing his grandfather's company, and explained that he still wanted to buy a condominium in Toronto. The money then arrived. On August 8, 2018, Mr. Ibrahim purchased a condominium, 1705-125 Western Battery Road, Toronto. The purchase price was $649,000. He put down $149,000 and financed the balance with a mortgage.

65Concerning lesser sums he received from his grandfather's company – which arrived at regular intervals, beginning in June 2017 – Mr. Ibrahim testified that his aunts and uncles who manage the company decided to send him monthly support after he spoke with them. Initially, it was $918.97 CAD per month, then reduced to $552 CAD per month, which he continues to receive. He testified he had no say in the amount they chose to send him.

66Mr. Ibrahim also explained some of the other amounts received from his grandfather's company. For example, he testified that a June 5, 2017 transfer into one of his Canadian bank accounts for $4,987 was a gift from his grandfather for Ramadan.

67In 2019, Mr. Ibrahim received a total of $40,000 from his grandfather's company. He testified that the amount received has been steadily decreasing since 2016, which he described "one-off" year. Mr. Ibrahim testified that he has no control over the money he receives from his grandfather's company. He maintained that there is no guarantee that he will receive any additional money from his grandfather's company in future.

68The only witness who gave direct evidence concerning the reason for the money transfers over the years was Mr. Ibrahim. He testified that these funds represented gifts, and he did not expect to receive any more money from his grandfather's company in future. Mr. Ibrahim did not call anyone from his grandfather’s company to testify at trial; for example, one of the aunts or uncles who he testified manage the company. Nor did Mr. Ibrahim call his brother as a witness. Finally, he did not call his aunt, who has transferred money to him over the years, and who lives in Canada and Egypt, as a witness. Ultimately, Mr. Maisel's report, which details funds received from 2014 until February 13, 2017, relies heavily on the explanations that Mr. Ibrahim provided concerning the transactions that it describes.

69Consequently, Mr. Ibrahim's credibility is crucial to his claim that the funds received were gifts and are unlikely to continue in future. Ultimately, I do not believe Mr. Ibrahim. I have three principal reasons for concluding that Mr. Ibrahim is not a credible witness.

70First and most critically, Mr. Ibrahim has a demonstrated track record of lying under oath. That includes omitting significant assets from a Financial Statement he swore on March 29, 2016. Additionally, in his affidavit for the motion before Bielby J. in October 2016, Mr. Ibrahim deposed that he did not have assets in Egypt. In truth, at the time, he still owned the townhouse in Cairo where the parties had lived, a BMW, and the condominium he purchased in Egypt in June 2016. In his affidavit, Mr. Ibrahim falsely deposed that he had sold the townhouse in Cairo to his brother on August 25, 2015. He attached as an exhibit a copy of a contract in Arabic (with an English translation) to corroborate his claim that he had sold the townhouse. The contract was an elaborate forgery that Mr. Ibrahim created to mislead the court.

71Although Mr. Ibrahim acknowledged failing to adequately disclose his assets in the March 2016 Financial Statement and making a "mistake" in the affidavit by misrepresenting his assets and forging the contract concerning the sale of the townhouse, his acceptance of responsibility was, at best, half-hearted. For example, despite his extensive professional training in finance, Mr. Ibrahim claimed that his failure to report assets in the Financial Statement stemmed from his confusion in completing the form. Further, he initially testified that the falsehoods in his affidavit resulted from the advice he received from his first lawyer. With that answer, the court ruled that Mr. Ibrahim had waived solicitor and client privilege. That gave rise to the potential of his former lawyer testifying as a witness at this trial. It was only after that ruling, with his former lawyer scheduled to testify, that Mr. Ibrahim changed his evidence and acknowledged that the "mistake" was his alone.

72Second, Mr. Ibrahim’s explanations for many of the financial transactions he described during his evidence were convoluted and non-sensical. For example, his effort to explain why after separation, his grandfather’s company sent funds earmarked for him to his brother was little more than a tortured effort to avoid admitting what was painfully obvious. There is only one rational explanation for sending money to Mr. Ibrahim through his brother. A misguided effort to keep Ms. Hawas in the dark concerning these transfers given the ongoing family court proceedings.

73Finally, there were material internal inconsistencies in Mr. Ibrahim’s evidence. One of the more notable examples concerns Mr. Ibrahim’s testimony that he has never expected to receive funds from his grandfather and doubts that he will continue to do so in future. Nevertheless, Mr. Ibrahim testified to opening a USD account at the BMO in March of 2016. He explained doing so to receive transfers in US funds. In particular, he referenced potential transfers from his grandfather. In other words, despite insisting that he has never expected to receive funds from his grandfather’s company, his actions suggest quite the opposite.

74Ultimately, I do not believe Mr. Ibrahim's evidence. More specifically, I do not accept his evidence that he: never received substantial sums of money from his grandfather's company before December 2013; has no idea how the amounts he receives are determined; does not know whether other family members also receive funds; and that he does not expect to receive funds in the future.

75In rejecting Mr. Ibrahim's claim that he does not know whether other family members receive funds, some of the documentary evidence is quite noteworthy. To verify that he received certain funds from his brother, Mr. Ibrahim produced a statement from his brother's Egyptian bank account detailing transactions from 2016 and 2017. His brother’s banking statement revealed that his brother also received substantial sums of money from the grandfather’s company at around the very same time that Mr. Ibrahim received such payments.

76In contrast, I found Ms. Hawas to be a credible and reliable witness. To be sure, there were some difficulties with her evidence. For example, it is apparent that she grossly overestimated the cost of the parties' honeymoon. That said, I note that her knowledge concerning the honeymoon's cost came from what Mr. Ibrahim told her. Additionally, Ms. Hawas testified that she regularly travelled between Canada and Egypt after the parties were married. However, her passport during that period only contains two Canadian entry stamps. During cross-examination, Ms. Hawas explained that border officials did not always stamp her passport when entering Canada. I accept that evidence. Ultimately, I believe Ms. Hawas.

77Given the evidence, in light of the various factors identified by the Court of Appeal in Bak, I am satisfied that it is appropriate in the circumstances to impute income to Mr. Ibrahim based on the funds received directly and indirectly (through his brother) from his grandfather’s company.

78First, although the amounts received have varied, Mr. Ibrahim has consistently received significant sums over an extended period (at least for more than a decade). In that regard, I believe Ms. Hawas’s evidence that funds received from Mr. Ibrahim’s grandfather’s company supported him at least as far back as when he was attending university.

79Second, the funds were the primary means by which the parties supported themselves. The money was instrumental to maintaining the lifestyle the parties enjoyed in both Egypt and Canada. In that regard, I believe Ms. Hawas’s evidence concerning who paid for the parties’ wedding and their lifestyle in Egypt after they were married.

80Third, although the amounts received varied over time, Mr. Ibrahim consistently received, over an extended period, substantial sums of money from his grandfather’s company. Ultimately, these funds were not simply gifts. Instead, as at least some of the transfer documents available revealed, these were funds earmarked to assist Mr. Ibrahim with his “family expenses.”

81Fourth, the funds provided much more than a basic standard of living. In Egypt, the money enabled the family to enjoy a very privileged lifestyle. And, in Canada, where the cost of living is much higher, the parties still enjoyed a lifestyle that far exceeded what an average family could afford.

82Fifth, in Egypt and Canada, Mr. Ibrahim's employment income only ever represented a small percentage of the money he depended on to support the family. Even after securing a full-time position at the CIBC in late 2016, Mr. Ibrahim's employment earnings still represented just a small fraction of the total money available to him because of the substantial sums he regularly receives from his grandfather's company, tax free.

83Sixth, despite the amounts received decreasing in recent years, I am satisfied that, based on the history of Mr. Ibrahim regularly receiving funds over the years, he will continue to do so in the future. The ongoing family court proceedings provide the most likely explanation for why the amounts received have decreased in recent years.

84Between December 2013 and March 2019, Mr. Ibrahim received approximately $1,567,195 CAD directly or indirectly (through his brother) from his grandfather's company. In all of the circumstances, much of that money deserves imputation as income to Mr. Ibrahim. That said, given that the $276,282.52 received in December 2013 was mainly used to purchase the matrimonial home and has already factored into the equalization payment that Ms. Hawas will receive, it would not be appropriate to also include that money as income. In the circumstances, that would be unfair to Mr. Ibrahim and result in an unjustified windfall to Ms. Hawas. However, the $6,000 Mr. Ibrahim receives annually from his aunt, in $500 monthly installments, as he concedes, should be treated as income. Given all of this, the court will impute to Mr. Ibrahim $20,500 as untaxed monthly income.

85As a result, in calculating Mr. Ibrahim’s support obligations, the court will impute an untaxed annual income to him of $246,000 per year. That amount is firmly grounded in the evidence; it has a rational connection to the funds historically received by Mr. Ibrahim: Drygala, at para. 44; Mason v. Mason, 2016 ONCA 725, 132 O.R. (3d) 641, at para. 127.

86After grossing up to account for it being untaxed income, that amount ($246,000), along with Mr. Ibrahim's annual employment income ($80,127), will be used in calculating his child and spousal support obligations going forward.

III. Child and Spousal Support and Ancillary Issues

87This part addresses five interrelated issues: (a) the quantum of child support; (b) the quantum of spousal support; (c) child and spousal support arrears; (d) whether to order the sale of the matrimonial home; and (e) whether to order security for support.

(a) The Quantum of Child Support

88The trial began in January 2020, continued in September 2020, and only finished in early December 2020. Unfortunately, before the trial ended, the court did not receive updated evidence concerning Mr. Ibrahim’s income in 2020. As a result, in determining his support obligations, the court must necessarily rely on Mr. Ibrahim’s 2019 employment income.

89Given Mr. Ibrahim’s taxable income of $80,127 in 2019, when combined with his imputed annual income of $246,000, after grossing up the latter amount because he receives that money tax-free, his total income for support purposes is $582,680. Applying s. 3(1)(a) of the Federal Guidelines, Mr. Ibrahim should be paying table support for the three children of $9,015 per month.

90Additionally, under s. 7(1) of the Federal Guidelines, Ms. Hawas seeks an order requiring Mr. Ibrahim to pay an additional $1,500 per month towards special and extraordinary expenses. That includes, for Jana, $400 a month for autism therapy, $200 a month for speech therapy, and $300 for swimming lessons. And, for Zeina, $300 a month for a tutor and $300 a month for drama classes.

91The swimming lessons for Jana and the drama classes for Zeina do not qualify as special or extraordinary expenses. These are ordinary extracurricular activities that Ms. Hawas should pay for with the child support she receives. However, the remaining expenses do qualify under s. 7.

92Since Bielby J.’s order of October 27, 2016, Mr. Ibrahim has been paying interim child support of $2,611 per month. He acknowledges having never made any contributions towards the children’s special or extraordinary expenses since separation. He testified that he pays child support and insisted that he cannot afford to pay anything more.

93Given Mr. Ibrahim’s refusal in the past to contribute towards special or extraordinary expenses, it is appropriate to order him to make his proportionate contribution towards such expenses, in advance, each month. The total anticipated s. 7 expenses are $900 per month, and Mr. Ibrahim’s proportionate share (81.4%) is $732.60.

94Accordingly, commencing June 1, 2021, each month, Mr. Ibrahim shall pay Ms. Hawas $9,015 in child support and $732.60 for s. 7 expenses, and he shall do so on the first day of each month after that.

(b) The Quantum of Spousal Support

95The court has the authority to order a spouse to pay a lump sum or periodic sums, or a combination of these, “as the court thinks reasonable for the support of the other spouse”: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 15.2(1).

96In exercising its authority to order spousal support, s. 15.2(4) of the Divorce Act requires the court to consider certain enumerated factors. The court must take into account the 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.

97The objectives of an order for spousal support are also statutorily enumerated. Section 15.2(6) of the Divorce Act directs that an order for spousal support 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) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

98Section 15.2 of the Divorce Act, as interpreted by the case law, recognizes three conceptual bases for entitlement to spousal support: 1) compensatory, 2) non-compensatory, and 3) contractual: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at pp. 431, 448; see also Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813.

99Mr. Ibrahim concedes that Ms. Hawas is entitled to spousal support for an indefinite duration. Given each of the parties’ roles during the marriage and their financial circumstances after separation, Mr. Ibrahim’s concession concerning Ms. Hawas’s entitlement to spousal support was sensible.

100The factors and objectives set out in s. 15.2 of the Divorce Act guide the exercise of the court's discretion when determining the quantum and duration of spousal support.

101Additionally, the Court of Appeal for Ontario has recognized that, although neither legislated nor binding, after establishing entitlement, the Spousal Support Advisory Guidelines supply a useful tool in deciding the quantum and duration of spousal support: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241, at para. 95. They assist because “they suggest a range of both amount and duration of support that reflects the current law”: Fisher, at para. 98. All of that said, the Court of Appeal also provided the following caution in Fisher, at para. 96:

Importantly, in all cases, the reasonableness of an award produced by the Guidelines must be balanced in light of the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.

102The Spousal Support Advisory Guidelines generate suggested ranges for both quantum and duration of spousal support, taking into account the factors and objectives identified in the Divorce Act relevant to spousal support: Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice Canada, 2008), at p. 98.

103The combination of Mr. Ibrahim’s employment income and his imputed income after grossing up because it is untaxed yields a total income for support purposes for 2021 of $582,680. As noted, $18,000 annually is imputed income to Ms. Hawas because she is deliberately unemployed. Given their respective incomes, the Spousal Support Advisory Guidelines suggest a range of spousal support of $7,007 (low), $7,806 (mid), and $8,607 (high).

104In all of the circumstances of this case, mindful of the relevant factors and objectives identified in s. 15.2 of the Divorce Act, taking into account the family’s lifestyle before separation, that Ms. Hawas’s onerous childcare responsibilities will most likely interfere with her ability to enter the full-time workforce at any point in the foreseeable future, and her ongoing financial needs as detailed in her sworn Financial Statement, a mid-range award is appropriate.

105Accordingly, commencing June 1, 2021, Mr. Ibrahim shall pay Ms. Hawas periodic spousal support of $7,806 per month, and he shall pay that amount on the first of each month after that.

(c) Child and Spousal Support Arrears

106Ms. Hawas commenced this application within a week of separation on February 11, 2016. Although counsel for Ms. Hawas framed her submissions for an award of child and spousal support to the commencement of the application as a “retroactive” claim, post-application support is not the same as retroactive support: MacKinnon v. MacKinnon (2005), 2005 13191 (ON CA), 75 O.R. (3d) 175 (C.A.), at para. 21. The payment of post-application support does not engage the considerations that govern retroactive claims: MacKinnon, at para. 20. An Applicant who succeeds in claiming for either child or spousal support is entitled to an award that accounts for any arrears dating back to when they commenced their application: MacKinnon, at para. 22.

• Arrears for 2016

107In 2016, Mr. Ibrahim had a taxable income of $6,809 and an imputed non-taxable income of $246,000. After grossing up Mr. Ibrahim’s untaxed imputed income, his total income in 2016 for support purposes was $467,567. Ms. Hawas had no actual or imputed income that year.

108Based on his income, Mr. Ibrahim should have paid Ms. Hawas monthly child support of $7,184 and monthly spousal support, at the mid-range, of $5,900. Therefore, for eleven months, Mr. Ibrahim should have paid $79,024 in child support and $64,900 in spousal support.

109In compliance with Bielby J.’s order, effective November 1, 2016, Mr. Ibrahim began paying Ms. Hawas interim child support of $2,611 per month and interim spousal support of $1,600 per month.

110In determining what Mr. Ibrahim still owes for 2016, he must be credited for $4,140 in support payments he voluntarily made prior to the motion for interim support. Additionally, he made child support payments for November and December under the terms of Bielby J.’s order (totalling $5,222). Therefore, Mr. Ibrahim paid Ms. Hawas $9,362 towards child support in 2016, whereas he should have paid $79,024. Accordingly, Mr. Ibrahim owes Ms. Hawas $69,662 for unpaid child support in 2016.

111Mr. Ibrahim paid Ms. Hawas $3,200 in spousal support for 2016, while he should have paid $64,900. Therefore, Mr. Ibrahim underpaid spousal support to Ms. Hawas for 2016 by $61,700.

• Arrears for 2017

112In 2017, Mr. Ibrahim had a taxable income of $48,896 and an imputed non-taxable income of $246,000. After grossing up Mr. Ibrahim’s untaxed imputed income, his total income in 2017 for support purposes was $539,044. Ms. Hawas had no actual or imputed income that year.

113Based on his income, Mr. Ibrahim should have paid Ms. Hawas monthly child support of $8,378 and monthly spousal support, at the mid-range, of $7,146. As a result, in 2017, he should have paid Ms. Hawas $100,536 in child support and $85,752 in spousal support.

114In 2017, Mr. Ibrahim paid Ms. Hawas $31,332 in child support. Therefore, Mr. Ibrahim owes Ms. Hawas $69,204 for unpaid child support in 2017.

115Mr. Ibrahim paid Ms. Hawas $19,200 in spousal support for 2017. Therefore, Mr. Ibrahim underpaid spousal support to Ms. Hawas for 2017 by $66,552.

• Arrears for 2018

116In 2018, Mr. Ibrahim had a taxable income of $73,982 and an imputed non-taxable income of $246,000. After grossing up Mr. Ibrahim’s untaxed imputed income, his total income in 2018 for support purposes was $575,836. Ms. Hawas had no actual or imputed income that year.

117Based on his income, Mr. Ibrahim should have paid Ms. Hawas monthly child support of $8,915 and monthly spousal support, at the mid-range, of $8,080. As a result, in 2018, he should have paid Ms. Hawas $106,980 in child support and $96,960 in spousal support.

118In 2018, Mr. Ibrahim paid Ms. Hawas $31,332 in child support. Therefore, Mr. Ibrahim owes Ms. Hawas $75,648 for unpaid child support in 2018.

119Mr. Ibrahim paid Ms. Hawas $19,200 in spousal support for 2018. Therefore, Mr. Ibrahim underpaid spousal support to Ms. Hawas for 2018 by $77,760.

• Arrears for 2019

120In 2019, Mr. Ibrahim had a taxable income of $80,127 and an imputed non-taxable income of $246,000. After grossing up Mr. Ibrahim’s untaxed imputed income, his total income in 2019 for support purposes was $583,890. Ms. Hawas did not have employment income that year. However, commencing September 2019, she has an imputed income of $18,000 annually.

121Based on his income, Mr. Ibrahim should have paid Ms. Hawas monthly child support of $9,033, or $108,396 for the year. In 2019, Mr. Ibrahim paid Ms. Hawas $31,332 in child support. As a result, Mr. Ibrahim owes Ms. Hawas $77,064 for unpaid child support in 2019.

122Additionally, for the first eight months of 2019, Mr. Ibrahim should have paid Ms. Hawas spousal support, at the mid-range, of $8,312 each month, or $66,496 in total for that period. For the last four months of 2019, he should have paid spousal support, at the mid-range, of $8,024 each month, or $32,096 in total for that period. As a result, in 2019, Mr. Ibrahim should have paid Ms. Hawas spousal support totalling $98,592.

123Mr. Ibrahim paid Ms. Hawas $19,200 in spousal support for 2019. Therefore, Mr. Ibrahim underpaid spousal support to Ms. Hawas for 2019 by $79,392.

• Arrears for 2020

124Again, using Mr. Ibrahim’s 2019 employment income of $80,127, after grossing up his imputed income of $246,000 because it is untaxed, his total income in 2020 for support purposes was $583,142. Ms. Hawas did not have employment income but had an imputed income of $18,000 for that year.

125Based on his income, Mr. Ibrahim should have paid Ms. Hawas monthly child support of $9,022 and monthly spousal support, at the mid-range, of $7,944. As a result, in 2020, he should have paid Ms. Hawas $108,264 in child support and $95,328 in spousal support.

126In 2020, Mr. Ibrahim paid Ms. Hawas $31,332 in child support. Therefore, Mr. Ibrahim owes Ms. Hawas $76,932 for unpaid child support in 2020.

127Mr. Ibrahim paid Ms. Hawas $19,200 in spousal support for 2020. Therefore, Mr. Ibrahim underpaid spousal support to Ms. Hawas for 2020 by $76,128.

• Arrears for the first five months of 2021

128Once again, using Mr. Ibrahim’s 2019 employment income of $80,127 and his imputed income of $246,000, grossed-up because it is untaxed, his projected income in 2021 is $582,680¹ for support purposes. Ms. Hawas’s imputed income is $18,000.

129Based on his income, Mr. Ibrahim should be paying Ms. Hawas monthly child support of $9,015 and monthly spousal support, at the mid-range, of $7,806. As a result, from January 2020 to May 2021, Mr. Ibrahim should have paid Ms. Hawas $45,075 in child support and $39,030 in spousal support.

130By the end of May 2021, Mr. Ibrahim will have paid Ms. Hawas child support of $13,055 and spousal support of $8,000.

131Therefore, Mr. Ibrahim owes Ms. Hawas $32,020 for unpaid child support for the first five months of 2021. And, he has underpaid spousal support during that same period by $31,030.

• Total Arrears of Child and Spousal Support

132Mr. Ibrahim owes Ms. Hawas child support arrears, from February 2016 to the end of May 2021, totalling $400,530. Thus, I will order Mr. Ibrahim to pay that amount to Ms. Hawas.

133Additionally, for that same period, Ms. Hawas was underpaid spousal support by $392,562. From that amount, a further deduction should be made to reflect the income tax consequences of a lump sum payment. As a result, I will order Mr. Ibrahim to pay Ms. Hawas $275,000 on account of unpaid spousal support.

134Although Ms. Hawas also sought an order for the payment of s. 7 expenses incurred in the past, she failed to give any detailed evidence concerning those expenses or produce any invoices to substantiate that she had such expenses. Accordingly, there is no evidentiary foundation for the court to make an order concerning arrears for s. 7 expenses.

(d) The Matrimonial Home

135The parties purchased the matrimonial home, 4820 Glasshill Grove, Mississauga, in June 2016, for $640,000. They continue to hold title to the residence jointly.

136Since separation, Ms. Hawas alone has been paying the mortgage and property tax for the residence. As of September 2020, the mortgage on the home was $450,000.

137The mortgage came up for renewal in June 2019. At the time, Mr. Ibrahim refused to lock in for a fixed term. Consequently, the monthly cost of financing increased by $1,000. Ms. Hawas testified that since June 2019, she has gone into debt to her brother to cover the extra financing costs. Additionally, as of October 2020, the property tax has fallen into arrears totalling $7,686.66.

138Ms. Hawas wants to keep the house because she says it is already configured to meet Jana’s needs. She wants Mr. Ibrahim’s interest in the home vested in her. Additionally, she seeks compensation for the extra financing costs she has incurred since June 2019 because Mr. Ibrahim refused to lock in for a fixed term mortgage and his share of the property taxes.

139In contrast, Mr. Ibrahim wants the house sold. He maintains that he needs his share of the proceeds to make the $377,000 equalization payment he owes to Ms. Hawas. Further, he notes that if Ms. Hawas is deserving of compensation for the extra financing costs she incurred since June 2019 or the property taxes, there should be an offset because she has not been paying rent to him for living in the home.

140The parties disagree concerning the value of the matrimonial home. Ms. Hawas commissioned an appraisal that estimates the home’s fair market value, as of January 2020, as $915,000. Mr. Ibrahim commissioned a more recent appraisal, which estimates the home’s fair market value, as of October 2020, as $1,025,000. The court accepts the valuation from the second appraisal, given that, as between the two, it is timelier.

141The court has the authority to grant a vesting order concerning the ownership of real property. The Courts of Justice Act, R.S.O. 1990, c. C.43, s. 100, confers a broad general power to grant a vesting order. Additionally, in the specific context of family law claims, the Family Law Act, R.S.O. 1990, c. F.3, confers an equally broad power to grant a vesting order on an application for equalization of net family property (s. 9(1)(d)(i)) or support (s. 34(1)(c)).

142Ms. Hawas has established that it would be appropriate for the court to exercise its discretion to vest Mr. Ibrahim’s interest in the matrimonial home to her on account of the outstanding equalization payment. There are three reasons for coming to that conclusion.

143First, despite 16 months having elapsed since Mr. Ibrahim agreed to the equalization payment of $377,000, he still has not paid it to Ms. Hawas. He takes the position that he cannot afford to pay the equalization payment without the sale of the matrimonial home.

144Second, Mr. Ibrahim owes significant child and spousal support arrears. Given that, combined with the efforts he has made since separation to have money from his grandfather’s company earmarked for him funnelled through his brother, there is a concern that the equalization payment could go unpaid without a vesting order.

145Finally, Mr. Ibrahim’s share of the equity in the home is $275,000, whereas he owes an equalization payment of $377,000. As a result, there is a reasonable relationship between the value of Mr. Ibrahim’s interest in the home and the equalization payment he owes to Ms. Hawas.

146Given all of these circumstances, it is appropriate for the court to exercise its discretion to vest Mr. Ibrahim’s interest in the matrimonial home to Ms. Hawas in partial satisfaction of the equalization payment that he owes her: see Lynch v. Segal (2006), 2006 42240 (ON CA), 82 O.R. (3d) 641 (C.A.), at paras. 32-33; Vetro v. Vetro, 2013 ONCA 303, at paras. 11-14.

(e) Security for Support

147Ms. Hawas seeks an order for a charge on the condominium that Mr. Ibrahim owns, Unit 1705, 125 Western Battery Road, Toronto, as security for his child and spousal support obligations. Ms. Hawas submits that Mr. Ibrahim's actions after separation occasion a well-founded concern that he may fail to meet his support obligations.

148Mr. Ibrahim submits that there is no justification for the court to make an order placing a charge on his condominium as security for support. Mr. Ibrahim denies that when he left Canada after the parties separated, his purpose was to evade his obligation to support Ms. Hawas and their children. He notes that he has paid interim child and spousal support as required by Bielby J.'s order of October 27, 2016.

149Section 34(1)(k) of the Family Law Act confers authority on the court, on an application for support, to make an order "requiring the securing of payment under the order, by a charge on property or otherwise” (emphasis added) in making an interim or final order. Additionally, the provisions in the Divorce Act that confer authority on the court to make an order for child or spousal support are sufficiently broad that they also empower the court to make such an order: see ss. 15.1(4), 15.2(3).

150The case law recognizes various situations in which it is appropriate for courts to order security for support. These include where a Respondent has a history of dissipating assets or is likely to leave the jurisdiction and effectively become an absconding debtor: see Ainger v. Posendorf, 2019 ONSC 2220, at para. 58; Sadlier v. Carey, 2015 ONSC 3537, 61 R.F.L. (7th) 443, at para. 62; Kumar v. Kumar (1988), 63 O.R. (2d) 572 (H.C.), at pp. 574-575, reversed on other grounds; Singh v. Singh (1999), 1999 14954 (ON SC), 1 R.F.L. (5th) 136 (Ont. S.C.), at paras. 13-14. Also relevant to the court's exercise of its discretion is whether a Respondent has engaged in other conduct calling into question their trustworthiness, for example, by lying to the court: Boisvert v. Boisvert (2007), 2007 24073 (ON SC), 40 R.F.L. (6th) 158 (Ont. S.C.), at para. 79; Sadlier, at para. 63.

151In all of the circumstances of this case, it is appropriate for the court to order a charge against Mr. Ibrahim's condominium as security for his child and spousal support obligations.

152Mr. Ibrahim's conduct after separation gives rise to a well-founded concern that he could decide to return to Egypt to escape the significant debt he now owes for child and spousal support arrears or his future obligation to pay such support. After separation, Mr. Ibrahim returned to Egypt. Before doing so, he cashed out a $150,000 GIC in Canada and transferred $115,000 CDN from the proceeds to Egypt. Mr. Ibrahim cancelled all of the utilities at the matrimonial home. He also quit his job in Canada, and returned the car he was financing. Once in Egypt, in June 2016, Mr. Ibrahim purchased a condominium there. Since separation, Mr. Ibrahim has taken steps to try and conceal his assets and the money he receives from his grandfather's company. Finally, Mr. Ibrahim has lied to the court in the past, and he has also fabricated evidence. Given all of this, the court cannot trust that Mr. Ibrahim will satisfy his support obligations.

153To be sure, at some point in 2016, Mr. Ibrahim had second thoughts about abandoning his family and permanently relocating to Egypt. However, given his past behaviour, there is a well-founded concern that Mr. Ibrahim could change his mind again and decide to leave Canada permanently. By ordering a charge against Mr. Ibrahim's condominium in Toronto, the court can provide some security against the financial hardship that such a turn of events would undoubtedly occasion for Ms. Hawas and the children.

154Accordingly, the court will order a charge against Mr. Ibrahim's Toronto condominium as security against his support obligations.

Conclusion

155For all of these reasons, the following Final Order shall issue:

i. Commencing June 1, 2021, and thereafter on the first day of every month, Mohamed Ibrahim shall pay Sara Hawas $9,015 for child support and $732.60 for s. 7 expenses, for Jana Ibrahim, Zeina Ibrahim, and Nour Ibrahim until further order of the court.

ii. At the end of each month, Sarah Hawas will provide Mohamed Ibrahim with copies of any receipts for s. 7 expenses incurred that month. If Mohamed Ibrahim has underpaid his proportionate share for such expenses (81.4%), he shall pay the difference to Sarah Hawas within three days of being provided with the receipts. In contrast, if Mohamed Ibrahim has overpaid his proportionate share for such expenses, Sarah Hawas will reimburse him the difference within the first three days of the month following that overpayment.

iii. Commencing June 1, 2021, and thereafter on the first day of every month, Mohamed Ibrahim shall pay Sara Hawas spousal support of $7,806 per month until further order of the court.

iv. By no later than July 16, 2021, Mohamed Ibrahim shall pay Sara Hawas $400,530 for child support arrears in relation to Jana Ibrahim, Zeina Ibrahim, and Nour Ibrahim.

v. By no later than July 16, 2021, Mohamed Ibrahim shall pay Sara Hawas $275,000 for spousal support arrears.

vi. Any arrears in either child or spousal support, and any amounts of child or spousal support payable under the terms of this order, shall be enforceable by the Family Responsibility Office.

vii. By no later than July 16, 2021, Mohamed Ibrahim shall pay Sara Hawas $102,000, the balance of the equalization payment.

viii. If any of the amounts that Mohamed Ibrahim is required to pay under the terms of this order are not paid by the dates specified, they shall bear post-judgment interest at the rate of 2 percent per annum.

ix. Mohamed Ibrahim’s interest in the Matrimonial Home, situated at 4820 Glasshill Grove Mississauga, Ontario, L5M 7P3, is hereby vested in Sarah Hawas. Mohamed Ibrahim shall execute any documents necessary to facilitate the vesting of his interest to Sarah Hawas within 30 days. However, should he fail to do so, this order shall be sufficient authority to affect the transfer of his interest in the property to Sara Hawas.

x. A charge of $2,000,000 shall be secured against title on the condominium owned by Mohamed Ibrahim, Unit 1705, 125 Western Battery Road, Toronto, Ontario, M6K 3R8, as security against his support obligations under this order. That charge shall be subordinate to any charge that was already on title the day before this order, but take priority to any charge on title registered either on the day of this order or subsequently. This charge shall remain on title until further order of this court or until Sara Hawas consents to its removal.

xi. By no later than August 1, 2021, Mohamed Ibrahim shall obtain, maintain and designate Sara Hawas the sole irrevocable beneficiary of a life insurance policy or policies having a death benefit of no less than $2,000,000, and provide Sara Hawas with a copy of that policy or policies by no later than September 1, 2021. Mohamed Ibrahim shall maintain any such policy or policies in good standing for as long as he has a child or spousal support obligation to Sara Hawas. Mohamed Ibrahim shall not borrow against any such life insurance policy or policies. By no later than September 1 each year, Mohamed Ibrahim shall furnish proof to Sara Hawas that any such life insurance policy or policies remain in effect, continue to insure his life for $2,000,000, that she remains the irrevocable beneficiary on the policy or policies, and that he has not borrowed against the policy or policies. Finally, by September 1, 2021, Mohamed Ibrahim shall sign an Authorization and Direction authorizing and directing any life insurer with whom he has a policy or policies to release information concerning these to Sara Hawas.

xii. In the event that Mohamed Ibrahim breaches his obligations regarding life insurance as set out in paragraph xi above, then his child support and spousal support obligations under this order shall constitute a first lien and charge against his estate.

xiii. Mohamed Ibrahim shall maintain the children, Jana Ibrahim, Zeina Ibrahim, and Nour Ibrahim, as beneficiaries under any extended heath, medical, dental and drug insurance plan available to him through his employment for so long as the children remain eligible to be maintained as beneficiaries under that insurance. Mohamed Ibrahim shall maintain Sara Hawas as a beneficiary under any extended health, medical, dental and drug insurance plan available to him through his employment for so long as the Sara Hawas is eligible to be maintained as a beneficiary under the said insurance. Mohamed Ibrahim shall provide Sara Hawas with the particulars concerning any such health insurance, including the name of the company, the policy and group number, and update her without delay should any of those details change.

156Should the parties be unable to agree as to costs, any party claiming costs must serve and file written submissions, no longer than five pages, not including a bill of costs or copies of any Rule 18 Offer to Settle, by no later than July 1, 2021. Any responding submissions, also no longer than five pages, not including any Rule 18 Offer to Settle, shall be served and filed by no later than July 15, 2021. There are to be no reply submissions unless requested by the court.

Released: May 21, 2021

Signed: “J. Stribopoulos”

Footnotes

1. 1Although the figures remained the same between 2020 and 2021, DivorceMate produced a slightly lesser amount for both child and spousal support for 2021 due to tax differences between the two years.