COURT FILE NO.: FS-16-181-00

DATE: 20210602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BABIKER MOHAMED ALI HAMOUR

Applicant

– and –

ENTISAR ABDALLA AWOUDA HAMOUR

Respondent

J. Etienne, K. Smirnova and R. An, for the Applicant

J. Wilson and J. Waxman, for the Respondent

HEARD: May 10, 11, 12, 13 and 14, 2021

REASONS FOR JUDGMENT

Justice Van Melle

[1] Babiker Hamour and Entisar Hamour married on August 28, 1995 in Sudan. They have three adult children: Elsir Babiker Hamour, born June 19, 1996; Mohamed Babiker Hamour, born January 19, 1998; and Dalia Babiker Hamour, born March 4, 2002. They have one minor child Dana Babiker Hamour, born November 14, 2009.

[2] The family lived in Sudan and the Dubai and emigrated to Canada in July 2008.

[3] The parties agree that they separated on January 9, 2015. They continued to live in the matrimonial home for almost four years until December 2018 at which time Mr. Hamour moved out of the home. The matrimonial home was sold in July of 2019. The funds remaining from the matrimonial home, in the amount of $620,469.07, are held in trust. Both parties claim entitlement to the funds.

[4] The issues for determination are:

a) Child support including section 7 expenses

b) Spousal support

c) Imputation of income

d) Resulting trust re the matrimonial home

e) Equalization

f) Unequal division of net family property

g) Occupation rent

h) Post-separation adjustments

i) The amendment of the final custody order to permit the respondent to travel with Dana without the consent of the applicant.

j) The repayment of funds advanced to the applicant by Adil Yagoub H. Elsayegh.

k) The repayment of the $5,000 that the respondent withdrew from the RESP account.

APPLICANT’S POSITION

[5] Mr. Hamour’s evidence is that he was an architect and retired in 2009. He says that he receives only Old Age Security income in the annual amount of $18,358.92. He says that since October 2014 his income is supplemented by loans from family and friends.

[6] Mr. Hamour seeks to have income of $42,000 per year imputed to Ms. Hamour. He asks for spousal support, child support and a proportionate sharing of section 7 expenses for the three oldest children (and Dana until December 2018) retroactively and prospectively.

[7] Mr. Hamour asks for an unequal division in his favour of the parties’ net family property, pursuant to Section 5(1) of the Family Law Act on the basis that Ms. Hamour depleted the family property and that Mr. Hamour has incurred a disproportionately larger amount of debt than Ms. Hamour for the support of the family.

[8] Mr. Hamour asks as well that Ms. Hamour be held responsible for one-half of the debt that he has incurred; repayment of post-separation expenses that he made on her behalf; and occupation rent.

[9] Mr. Hamour graduated in 1977 from the University of Khartoum in Sudan. During the marriage, he worked in construction and architecture. He owned a company in Sudan, BladCo Engineering, Trading & Contracting Co. Ltd. (“BladCo Sudan”) prior to and as of the date of marriage. Mr. Hamour says that the company was established on October 4, 1990 and liquidated on December 31, 2006.

[10] He and Ms. Hamour decided to immigrate to Canada to provide opportunities for their children. Mr. Hamour says that when their immigration application was approved in 2008, he sold all his assets and transferred approximately $2,200,000 to RBC in Canada.

[11] In February 2009 Mr. Hamour incorporated a company with a similar name to the company he had in Sudan – BladCo Inc. BladCo Inc. was closed September 3, 2014, but according to him it was never active in Canada except for one minor business activity in 2009.

[12] Mr. Hamour says that it was his plan to start and continue his business in Canada, but he had to stop his business activity as a result of “ongoing family issues”.

[13] Mr. Hamour acknowledges that Ms. Hamour was not employed outside the home during the marriage.

[14] Mr. Hamour says that Ms. Hamour purposely or recklessly depleted her net family property, abandoned her responsibilities toward the children’s needs and is capable of finding gainful employment in her field of study. He says that she has never shown any interest in following her responsibilities toward the children, given that her priority was herself and then her extended family. He says that he has been the sole caregiver of the children, including the youngest child, Dana. He says that despite Ms. Hamour having an order for full custody of Dana, Dana spends a great amount of time with him at his home.

[15] Mr. Hamour says that he owned a 50% interest in BladCo Sudan, two properties in Sudan (Khartoum and Medani) and two vehicles on the date of marriage. He says that apart from the matrimonial home, he owned no property at the date of separation.

[16] Mr. Hamour testified that prior to his marriage, Mr. Hamour purchased vacant land in Khartoum and built a house on the land. He says the Khartoum property was bought in November 1992 and was valued at $315,000 on the date of marriage. He says that he sold the property on November 23, 2007 for $400,000 of which $370,000 was used to repay debt owed to the purchaser.

[17] Mr. Hamour says that the Medani property was purchased in 1986 and was valued at US$180,000 on the date of marriage. He says the house in Medani was sold in May 2004 for US$165,000 and that the sale proceeds were used to buy a house in Dubai in 2004.

[18] Mr. Hamour takes the position that Ms. Hamour is not entitled to half of the proceeds of sale of the matrimonial home as he was the sole owner of all the properties purchased except for the property in Mississauga. He takes the position that his net family property should reflect the value of the matrimonial home as at the date of separation.

[19] Mr. Hamour says that he exhausted the money that he brought to Canada in 2008 and now has no assets. He says that he owes over $600,000 to Dr. Adil Yagoub H. Elsayegh. He says that Ms. Hamour never contributed to any household expenses or toward the needs of the children. He asks for an order that Ms. Hamour jointly repay the funds borrowed from Dr. Elsayegh.

[20] Mr. Hamour claims that Ms. Hamour is in possession $800,000 worth of gold jewellery.

[21] Mr. Hamour seeks occupation rent and post-separation expenses. He says that after separation the parties continued to reside in the matrimonial home until December 2018:

I moved out of the matrimonial home with the three eldest children because I began to feel unsafe in the property and could no longer be forced to endure the respondent’s toxic and unhealthy behaviour on a daily basis. For instance, in or about July 2016 I left the matrimonial home and spent the night at the hotel room as I was feeling unsafe in the house.

Initially, I wished to keep the matrimonial home for the benefit of the children. That is why we continued to live in the same property to avoid disturbing the children’s daily routine. However, the respondent proceeded to force me to move out as she began exhibiting unstable behaviour and eventually stooped to practicing black magic which concerned me, forcing me to consider selling the house and move out.

[22] Mr. Hamour states that to date he remains solely responsible for all educational expenses for each child, including Dana. He says that he has been the sole contributor to the RESPs for the children.

[23] He says that three of the children are now or have been enrolled in post-secondary education and that he continues to pay for these expenses. Elsir is 24 years old and living in Ottawa. He is in his final year of post-secondary studies at the University of Ottawa; Mohamed is 23 years old and living in Ottawa. He is a university graduate, employed full-time and financially independent. Dalia is 19 years old and in her first year of post-secondary studies at McMaster University.

RESPONDENT’S POSITION

[24] Ms. Hamour testified that throughout the marriage she was responsible for the children and for the household. She said that Mr. Hamour travelled frequently throughout the years and was often away from home for months at a time. During the marriage, Mr. Hamour gave her money for the household expenses, she had access to the bank account, she had a credit card, cell phone, and vehicle and was able to draw on these resources as necessary.

[25] Ms. Hamour takes the position that Mr. Hamour is not being forthright about his financial situation now and at the date of marriage. She says that the steps taken by Mr. Hamour beginning in the fall of 2014 were intended to defeat her financial entitlements arising from the marriage.

[26] Ms. Hamour says that although she agrees that she and Mr. Hamour formally separated on January 9, 2015, the beginning of the end was May 17, 2014 when Mr. Hamour was arrested for hitting and biting her during an argument. Those charges were withdrawn after friends and family pressured her to ask the police to drop the charges. Ms. Hamour advised the police that she would not testify against Mr. Hamour. She says that within days of the withdrawal of the criminal charges, Mr. Hamour dissolved his Canadian company, left Canada for Dubai and sold the family’s former residence in Dubai.

[27] Ms. Hamour takes the position that despite multiple court orders, Mr. Hamour has not properly traced alleged transactions in Sudan, nor has he disclosed the full extent of his banking records in Canada or overseas as of the date of separation.

[28] Ms. Hamour says that over and above the funds brought by the family to Canada in 2008, Mr. Hamour has had access to more than $1 million tax-free since the separation in 2015. He has used the money to maintain the lifestyle that he and the three eldest children enjoyed prior to the parties’ separation. He continues to dine out frequently and travel regularly. He has paid for the entirety of the two eldest children’s post secondary education without either of them having to take on a loan or find part-time employment.

[29] Ms. Hamour says that she does not know why Mr. Hamour took title to the matrimonial home in his name alone. She was surprised when she attended at the lawyer’s office to discover that Mr. Hamour had taken title in his name alone, but she did not receive an explanation.

[30] Ms. Hamour says that she and the children joined Mr. Hamour in Dubai on their bi-annual overseas holiday during the 2014 Christmas school break. While there, the conflict over her desire to see her parents escalated as she again sought Mr. Hamour’s permission to travel with Dalia and Dana to see her parents, which he again refused. She eventually decided to travel to Sudan on her own while Mr. Hamour returned to Canada with the children.

[31] Ms. Hamour says that in retaliation for defying his wishes, Mr. Hamour refused to purchase a plane ticket back to Canada for her, forcing her to obtain funds from her brother to allow her to purchase a plane ticket so that she could return to Canada.

[32] Once she returned to Canada, she learned that M­­­­r. Hamour had sold the car that she drove, cancelled her cellphone, her access to his credit card and her bank card. Ms. Hamour was locked out of the family garage and was not given a key to the mailbox. Mr. Hamour repeatedly disparaged her to the children.

[33] Ms. Hamour says:

the period January 2015 to December 2018, while we lived separate and apart under the same roof, was the most difficult period of my life. While I had a place to sleep, Babiker otherwise provided me with no money. I managed to buy food with the financial help of my brothers who gave me money. During this time, I also sold some of my jewellery to cover the cost of basic necessities.

[34] Her ability to access the family’s financial resources was cut off as at the date of separation. Since separation she has upgraded her accounting and office administration skills.

[35] Ms. Hamour claims a beneficial entitlement to the matrimonial home on the basis of resulting trust. She points to the fact that the proceeds of sale from the jointly held Mississauga property went into the purchase of the matrimonial home.

[36] Ms. Harmour is seeking an order that the remainder of the funds held in trust be transferred to her. She submits that this can occur through different ways: a retroactive and prospective spousal support order; a finding that Mr. Hamour is not telling the truth about the assets he held at the date of separation or a combination of the two approaches.

EVIDENCE AT TRIAL

[37] The parties entered into a consent on November 26, 2018 regarding the parenting issues. Since then Ms. Hamour has been the sole custodial parent of Dana. In the consent, she agreed to obtain Mr. Hamour’s consent to any travel with Dana.

[38] In 2019 Ms. Harmour wanted to travel, with Dana, to Sudan to see her parents. Pursuant to the court order, she required Mr. Hamour’s permission, which he refused to give her. She had to bring a motion and was granted an order dispensing with Mr. Hamour’s consent. Mr. Hamour indicated that his intention to appeal the order but eventually dropped it and Ms. Hamour and Dana travelled to Sudan.

[39] I find that Mr. Hamour attempted to block Ms. Hamour’s travel to Sudan unreasonably, particularly as he was fully aware that Ms. Hamour was travelling to a part of Sudan with which she was familiar and that was not particularly dangerous. An order will issue permitting Ms. Hamour to travel with Dana without Mr. Hamour’s consent. Ms. Hamour is also permitted to apply for or renew Dana’s passport without Mr. Hamour’s consent.

[40] Mr. Hamour applied to immigrate to Canada through the “investor” category. The stated goal in the 2008 Operations Manual (exhibit 11) was to attract investment to Canada. In the Manual, even if one meets all the requirements, entry could be denied where there is reason to believe that the foreign national and their dependants would not become economically established in Canada.

[41] Mr. Hamour listed the following assets and liabilities on his immigration application:

50% interest in BladCo. Sudan $562,626

Fixed (term) deposits $311,739

Villa: The Spring Phase VI (purchased for $186,926 in 2002) $652,926

MCA Securities $400,000

Personal debt – MCA Securities ($280,000)

[42] When the Hamours arrived in Canada they purchased a house in Mississauga on Starlight Crescent. Title to the property was held jointly by the parties. Subsequently, in July 2012 the parties moved to Brampton. Title to the Brampton home was taken in Mr. Hamour’s name alone.

[43] Although Mr. Hamour says that he retired in 2009, the bank account statements and credit card statements show that while together, the parties spent roughly $12,000 per month for their expenses. Mr. Hamour acknowledged that in 2014 the family expenses were on average $12,000 per month.

[44] Mr. Hamour testified, and his testimony was corroborated by Dr. Adil Elsayegh, that he had received more than $600,000 from Dr. Elsayegh between 2015 and 2021.

[45] Dr. Elsayegh testified that he and Mr. Hamour are very close friends and that when Mr. Hamour asked him for funds, he obliged. He doled out amounts of money, $5,000, $10,000, $20,000 at a time until he had given him over $600,000

[46] It appears that Dr. Elsayegh was not keeping track of the funds advanced. On February 2, 2021, Dr. Elsayegh swore an affidavit for trial indicating that he had advanced funds in the amount of $524,264.30 to Mr. Hamour. There is also a letter dated January 16, 2021 which indicated a further $66,000 in funds advanced between September 16, 2016 and April 27, 2020 that was missing from the payment schedule in the affidavit. The timing of the documents probably reflects the fact that the affidavit was prepared prior to the letter. There is no explanation for not having updated the affidavit prior to it being sworn, to include the amounts in the January letter.

[47] In addition to advancing funds directly, Dr. Elsayegh entered into a lease agreement on behalf of Mr. Hamour. Dr. Elsayegh paid and continues to pay $2,350 per month for the house where Mr. Hamour lives with Dalia.

[48] Dr. Elsayegh testified that he expected Mr. Hamour to use the funds he gave him to fund the children’s education and pay for their expenses so that they could continue to live a comfortable life.

[49] Dr. Elsayegh testified that Ms. Hamour did not know about this arrangement.

[50] After separation, Mr. Hamour continued to spend approximately $16,000 per month. He paid all the expenses for the three oldest children including all of their educational expenses, housing, food and clothing. He did not require the children to have part-time jobs or loans or contribute to their own expenses in any way.

[51] Mr. Hamour claims that he could not work after separation because he had to look after the children, one of whom resided with Ms. Hamour and two of whom were attending university in Ottawa.

Property

[52] Counsel for the parties jointly prepared a very helpful comparative Net Family Property Statement. They carefully noted the differences in the positions of the parties. I will address the differences; the evidence relating to each party’s position and my findings with respect to the evidence.

Matrimonial home

[53] Mr. Hamour took title to the matrimonial home in his name alone. As the home was just in his name, Mr. Hamour says that only the value of the home as of the date of separation is subject to equalization. Mr. Hamour says that the value of the matrimonial home as at the date of separation was $875,000. He bases this on the Municipal Tax Assessment from May 2016 which shows a value for municipal tax purposes as $840,000. He testified that he rounded up the value given on the tax assessment. When questioned as to why he did not obtain an assessment from a certified appraiser the answer was that it was “too expensive”.

[54] Ms. Hamour claims a resulting trust and seeks to share in the proceeds of sale from the matrimonial home. She says that the proceeds of sale from the jointly held Mississauga home were used to purchase the matrimonial home. The only explanation from Mr. Hamour as to why he took title to the Brampton home in his name alone, was that Ms. Hamour had not contributed any money to the purchase.

[55] Mr. Hamour confirmed that approximately $311,000 from the proceeds of the Mississauga home was paid to the parties and that the funds were deposited into the parties’ joint account and subsequently into an account in Mr. Hamour’s name alone. Despite requests from Ms. Hamour, these funds have not been accounted for, and Mr. Hamour failed to produce the real estate lawyers’ files with respect to both the sale of the Mississauga property and the purchase of the Brampton property. Mr. Hamour admitted during cross-examination that at least $115,000 from the proceeds of sale from Mississauga went into the Brampton home. He did not explain what happened with the other $196,000.

[56] A resulting trust arises where one person contributes to the purchase of an asset, without the intention of gifting their interest, and title to the asset is taken solely in the name of another person. The person who acquired title to the asset holds it in trust for the person who contributed to the purchase of the asset. This presumption is found in section 14 of the Family Law Act. The onus is on the person who received title to the asset to rebut this presumption by demonstrating that the conveyance was intended as a gift.

[57] Mr. Hamour’s failure to satisfactorily explain his reason for taking the Brampton home in his name alone and failure to trace all of the funds realized from the sale of the Mississauga home lead me to conclude that in all probability the whole of the funds from the Mississauga home went to the purchase of the Brampton home. Mr. Hamour has not rebutted the presumption of resulting trust. I find that Ms. Hamour has established a resulting trust in the matrimonial home and is entitled to share in the post-separation increase in the value of the matrimonial home.

Khartoum

[58] Prior to the move to Canada, Ms. Hamour says that she and Mr. Hamour discussed and agreed to sell two apartment units that they owned in Sudan in order to access sufficient cash to support the application as investor immigrants. They agreed to keep the Villa in Dubai (the Spring Phase VI no. 29) and the home in Khartoum as rental properties.

[59] Ms. Hamour says that Mr. Hamour still owned the property in Khartoum, Sudan on the date of separation.

[60] Ms. Hamour says that for at least part of the time, the property has been rented out to the Eritrean Embassy. This was corroborated by Dr. Faisal Hamour, a witness called by Ms. Hamour. Dr. Faisal Hamour testified that he is distantly related to both Mr. and Ms. Hamour. Dr. Hamour and his family came to Canada in 1997. From his testimony it is apparent that he was friends with both parties throughout prior to and after their marriage. He is a general surgeon and resides in Niagara Falls. Dr. Hamour said, “While I cannot recall the exact year, I remember Babiker telling me, well after he had arrived in Canada, that he was renting the parties' home in Khartoum to the Eritrean Embassy.”

[61] Mr. Hamour testified that he did not own the Khartoum property on the date of separation as he had sold it on November 23, 2007. Mr. Hamour produced a document (Exhibit 13) titled a Declaration of giving up Property dated November 23, 2007, (translation)

Declaration of giving up a property------------------ I, the undersigned, declare that I have given up voluntarily and with my free will legally and according to the Sharia and law and being the registered owner of property No. 29/1, square H, Alharat Aiola, Juwaif, west of Khartoum, I have given the above mentioned property to Mr. Hisham Abdulqader Abdullah Mahmoud for the price of (800,0000) pound from which the debt of (743,000) pounds that l owe him shall be deducted. I promise to have a search certificate with the aim of the sale and to conclude the final· contract when the price balance of (57 ,000) pounds is paid, and that is a declaration from me to this effect.

[62] There was no indication that the final contract was ever signed, nor was there any evidence to establish the value in Canadian dollars of the alleged sale.

[63] If Mr. Hamour had sold the property, he did not take any steps to have the record at the Khartoum Land Registry office corrected.

[64] Mr. Hamour did not list the parties’ Khartoum home as an asset when he completed the immigration application in 2008, as the immigration officials had strict verification requirements for the valuation of the assets listed on the form. However, he did not suggest during his testimony that the Khartoum home was no longer an asset at the time of immigration, simply that the information available to corroborate the ownership of the property did not meet the standards for an investor application.

[65] Ms. Hamour produced a letter from the Head of the Khartoum East Land Registration office dated February 9, 2017, which was attached to the back of a statement of claim that she commenced in Sudan. The document was issued in the Khartoum Sharq Preliminary Court, confirming that the property was registered in Mr. Hamour’s name at the date of the letter, which was after the date of separation.

[66] Ahmed Khalil Gumaa Mursa was called as an expert witness on behalf of Ms. Hamour.

[67] Mr. Khalil is a lawyer who graduated from the University of Khartoum, Faculty of Law in 1994. Mr. Khalil has 25 years of experience in dealing with commercial and land-related disputes. I qualified Mr. Khalil as an expert witness to testify about the procedures used by the Sudanese courts when dealing with land disputes.

[68] Mr. Khalil testified that when a land dispute is adjudicated by a Sudanese Court, the judge overseeing the hearing is required, as a preliminary step, to write to the land registration office in the relevant jurisdiction to confirm that at least one of the parties to the dispute is a registered owner of the land. Upon receiving a letter from the Sudanese Court, the head of the land registration office to whom the request is made checks their records and writes to the Court confirming whether or not the party in question is, in fact, a registered owner of the land. Only once the Sudanese Court receives the necessary verification of ownership, in writing, from the land registration office, will the action be permitted to continue. If the land registration office’s records show that the land which is the subject of the dispute is not owned by one of the parties to the dispute, the head of the land registration office would confirm this fact in their response to the Court and the action will not be permitted to continue.

[69] On cross-examination Mr. Khalil was asked if when someone purchased a property it needed to be registered right away. Mr. Khalil answered that although there is no legal obligation to register the property after sale, the new owner should register it immediately because if they do not, the person who sold the property could easily sell it to someone else.

[70] It was available to Mr. Hamour to produce the necessary evidence tracing the status of the registered ownership and the proceeds of sale of the property. He did not do so. He did not produce any documentation to enable sale proceeds to be traced. He did not produce the alleged purchaser to testify. I therefore find that Mr. Hamour still owned the property at the date of separation.

Business Interests

[71] Mr. Hamour’s testimony that BladCo Sudan, was liquidated on December 31, 2006, is not borne out by the evidence. The company formed part of the assets shown on the parties’ immigration application in 2008 and Mr. Hamour testified that he still pays annual fees for the company. Under cross-examination he said that his reason for paying the fees was to avoid paying penalties. Other evidence corroborates the ongoing existence of BladCo Sudan.

[72] Ms. Hamour testified that during the marriage, Mr. Hamour would be absent from home travelling two or three times per year to Dubai, staying between 30 days to three months at a time. According to Ms. Hamour he travelled to Dubai to attend to his ongoing business interests in the region. When questioned about this during trial, he refused to say what he was doing on these trips. His passports show regular trips to Dubai and Sudan. When cross-examined about the January 2015 trip to Sudan and what appears to be several weeks spent in Dubai, he would not say what he had been doing in Dubai. Added to his failure to be forthright, is the failure to produce the passport he would have used to travel to Dubai between September 2014 and January 2015. The Sudanese passport that he disclosed expired on September 11, 2014 and the Canadian passport he disclosed (which has no entries in it) was not issued until November 6, 2015. When cross-examined on this issue, he obfuscated, refusing to answer the questions put to him directly on this issue.

[73] Mr. Hamour purchased tickets for flights on Emirates Airlines on June 15, 2015 for $2,290.54; November 18, 2015 for $1,820.09; April 22, 2016 for $1,585.83; and September 15, 2016 for $1,294.65. When cross-examined about these purchases he claimed that he did not use these tickets. He also said that he did not request refunds for not using them. It is difficult to believe that someone who claims to have minimal income would spend $6,991.11 on airline tickets and not use them or turn them in for refunds.

[74] I find that the purchase of the airline tickets confirms Ms. Hamour’s belief that Mr. Hamour has continued his bi-annual trips to Dubai to attend to his business interests.

[75] Although Mr. Hamour’s credit card statements confirm ongoing travel to Dubai both before and after separation, the statements and bank accounts that he has disclosed do not reveal any overseas transactions. There is no record of any money being spent in Dubai or elsewhere during any of Mr. Hamour’s trips either prior to or after the separation.

[76] Dr. Faisal Hamour testified that he witnessed Mr. Hamour establish a very successful business, first in Sudan and later in Dubai.

[77] Dr. Hamour was impressed by Mr. Hamour’s ability to use the assets that he has acquired over the years to earn money to support his family. He described Mr. Hamour as a shrewd and successful businessman and a person willing to share his knowledge with others.

[78] Dr. Hamour said that he had also met Mr. Abdlwahed Abrahim Haj Mohamed Aboush, Mr. Hamour’s business partner, in Dubai on a number of occasions. At Mr. Hamour’s behest, Mr. Abdlwahed helped Dr. Hamour buy a villa in Dubai in 2014 or 2015.

[79] Dr. Hamour’s testimony demonstrates that in 2014 or 2015 Mr. Hamour had a business partner. Mr. Hamour’s business partner Mr. Abdlwahed is the same person who “loaned” him money with the Dubai property as collateral and is now, according to Mr. Hamour, the owner of the property.

[80] When Mr. Hamour was questioned about his failure to produce Mr. Abdlwahed as a witness at trial, he said that he did not want call Mr. Abdlwahed as the trial took place during Eid, a religious holiday celebrated by Muslims worldwide that marks the end of Ramadan. This year Eid took place on May 12 and May 13. The dates of Eid would have been known when this trial was scheduled. There is no mention of Mr. Abdlwahed on the Trial Scheduling Form. There is no mention of any scheduling issues on the Trial Scheduling Form. Had the trial office been advised, this trial could have been scheduled to take place later in the sittings. Also, this trial took place over 5 days and had a request been made, testimony from Mr. Adblwahed would have been accommodated.

[81] I find that Mr. Hamour continued to have an interest in BladCo Sudan as at the date of separation. There is no evidence as of the date of separation value of BladCo Sudan. I find therefore that the value is at least what it was at the date of marriage.

Date of marriage deductions

[82] Both parties had experts testify as to the values of the Sudanese properties – Reem Noor for Mr Hamour and Fadil Asal for Ms. Hamour. On consent, each witness was qualified as an expert to give evidence as to the values of the properties.

[83] When the parties married, Mr. Hamour owned property in Khartoum, Sudan. He says there was a structure on the property at the date of marriage. On his comparative Net Family Property Statement, Mr. Hamour shows the date of marriage value of the property in Khartoum as $315,000 and the date of marriage value of the property in Medani as $180,000.

[84] Other than Mr. Hamour’s testimony in chief, there was no corroborating evidence adduced to confirm that there was a structure on the property on the date of marriage. Ms. Hamour testified that she visited the vacant lot with Mr. Hamour around the time of their marriage. She said that the area was under development and she did not want to live there as there was “nothing” there. She testified that the parties started to build their home after their marriage and that it was completed in 1999 or 2000 at which time the area had been developed and she was agreeable to living in the house. The family lived in rented premises until the house in Khartoum was ready.

[85] Mr. Hamour also owned a property in Medani, Sudan on the date of marriage. The parties agree that this property had a structure on the land.

[86] Ms. Reem Noor testified on behalf of Mr. Hamour as to the value of his real estate at the date of marriage. She has a bachelor’s degree in Architectural Engineering from the Sudan University of Science and Technology. ­She testified that she has 7 years of experience in site supervision and design and has never given evidence in a legal proceeding. Ms. Noor testified that she had arrived at her valuations by visiting the properties in 2020.

[87] Ms. Noor provided a Curriculum Vitae but she did not append an acknowledgement of her understanding of an expert’s role. Ms. Noor testified that the value of the Khartoum property was US$315,000 at the date of marriage and of the Medani property US$180,000.

[88] She testified that in determining values as of 1995 she relied on third party information available in her office. She did not append the information or any explanation of the information, to her reports. She was unable to describe the information that she had relied upon and said that she had already sent in two appraisals which were available in the office. I did not understand this part of her testimony.

[89] Exhibit 61, Ms. Noor’s appraisal for trial, shows the value of the land in Khartoum in 1995 as US$336,000 and the value of the land and the building in 1995 as US$458,500. This appraisal dated January 1, 2020 is exhibit 61. There is also a document (not authored by Ms. Noor) dated February 27, 2017 and addressed “To Whom it May Concern” clarifying that the Khartoum property would have been worth US$315,000 at the date of marriage. This letter was not entered as an exhibit at trial, but it accords with the date of marriage value that appears on Mr. Hamour side of the comparative Net Family Property Statement.

[90] Ms. Noor testified that she appraised the Medani property and valued it at US$180,000. The appraisal itself was not introduced as an exhibit at trial. Mr. Hamour shows the Medani property as worth CDN$180,000 as at the date of marriage.

[91] Mr. Asal did not provide a Curriculum Vitae; instead his affidavit described his education and his work experience. He graduated from the engineering program at the University of Sudan for science and technology in 1979. He has been the owner of Falcon and Company since 1996. His work includes buying plots, building houses, maintaining and repairing buildings. He appended to his affidavit the signed acknowledgement of his duties in providing expert evidence.

[92] Mr. Asal testified that he has over 40 years of experience buying and selling land in the region and was able to give a comprehensive explanation to support his opinions of values in respect to the two properties. Over the last 15 years he has prepared property valuations for use in court and he has testified in court as well.

[93] Mr. Asal testified that Mr. Hamour’s land in Khartoum would have been a vacant lot in 1995 without a structure on it. Mr. Adel himself purchased a plot of vacant land in the area around the same time. Mr. Adel described the Khartoum area as being highly desirable today as it is near the U.S. compound and a river. However, in 1995 though the property was vacant land and the area was not well developed.

[94] Mr. Asal described the Medani property in 1995 as a non-residential area with no infrastructure - no hydro, no drainage system and no roads. It was undeveloped farmland, approximately 20 to 30 kilometers from the city centre of Medani.

[95] Exhibit 6 is the Land Selling Deed for the property in Khartoum in 1992. Despite Mr. Hamour testifying that he purchased the property for US$121,000 in 1992, Exhibit 6 indicates that Mr. Hamour purchased the property for 16,000,000 in Sudanese pounds. There was no evidence led to explain the monetary conversion from Sudanese pounds to US or Canadian dollars. In the absence of admissible evidence on the value in Canadian dollars at the relevant times I will have to accept the best evidence available, which I find, is Mr. Adel’s testimony.

[96] Mr. Hamour has also not provided any title documents for the Medani property. Although Exhibit 8 is described on the Exhibit List as a “Registration of the property in Mendany [sic]”, it is titled Utility Lease. The translated version states:

I certify that number 960, square 290, city of Madani with an area of 600 sq. m. is registered under the name of the Government of the Republic of the Sudan and given as a utility ownership for a preliminary period of one year as from 01/07 /1986 under the name of: Babiker Hamor [sic].

[97] There is nothing to corroborate the price that Mr. Hamour says he paid for the property.

[98] I find that there was no structure on the Khartoum property on the date of marriage and that the value of the vacant land was US$42,000. The respondent applies a conversion rate of 1.3443 from U.S. currency to Canadian currency, which rate was not challenged, resulting in a value for the Khartoum property of $56,460 and for the Medani structure and land of $48,394.80.

Jewellery

[99] Mr. Hamour claims that Ms. Hamour has jewellery in her possession worth $111,880. He bases this on appraisal receipts (exhibit 32) he obtained from jewellers after describing jewellery to them. The value of items generally pursuant to the Family Law Act is fair market value, not the replacement value and not the appraised value for insurance purposes. The “appraisal documents” themselves are not reliable given that there is nothing to indicate the qualifications of the people who prepared them. One document is typed, while the others are handwritten receipts. I cannot be sure that the items as described to these people were items that were in the possession of Ms. Hamour.

[100] Ms. Hamour testified that she brought jewellery from Sudan when the family emigrated to Canada. Both Mr. and Ms. Hamour agree that they ascribed a value of $50,000 to the jewellery at that time. However, not all the jewellery belonged to Ms. Hamour. Some belonged to the children and some to Mr. Hamour. Ms. Hamour says the jewellery was worth $20,000 at the date of separation. However, Mr. Hamour has an ongoing lawsuit in Sudan:

The events are summarised when the appellant submitted his case against the defendant, his former wife, who took possession of his jewellery that was deposited in the Sudanese-French 735No. Ml/334/2019 Page 2 Bank deposit box. She did not hand it over to him and she refused to do so he asked for a judgement relating to his demands. The claimant attached a statement of the type and price of each jewellery item.

[101] The Sudanese lawsuit was initially dismissed for lack of jurisdiction, but after an appeal by Mr. Hamour the lawsuit was reinstated in October 2019 with the following endorsement (translation):

First: jurisprudence which the lawyer of the defendant raised and a decision was issued by the court accordingly, we believe it is not correct. The court has the jurisprudence according to article 7 Civil Procedures 1983, amended in 2009 which states that with the court's approval, a case against a Sudanese national can be submitted before Sudanese courts even if they do not have a place of residence in the Sudan with the exception of cases of property located outside the Sudan. Article 3 of the same law states that this law applies to procedures relating to civil matters and personal status issues and to measures relating to others ........ .. 736Page 3 No. Ml/334/2019 From these texts, the Personal Status Court has the jurisdiction as stated by article (3) Civil Procedures 1983. Texts of the third schedule annexed to the Civil Procedures Law 1983 states that anything that does not have a text in the law shall be applied according to article (1) of the schedule.

Second: The way the case was submitted and responded to is insufficient. This should have been clarified so that the case becomes clear in line with article 28, third schedule Civil Procedures 1983. This insufficiency becomes clear because the claimant did not tell the court the way the defendant took possession of the jewellery and he did not clarify whether the jewellery was a gift or used as ornaments. Besides, the response to the case was not clear as the phrase (that she denied she took the jewellery) is not a sound response. The court should have got a clear response from the defendant. Is there actually jewellery? Did she took possession of it? Was it presented as a gift or as an ornament? How was the jewellery received? Did the claimant allow the defendant to receive the gold from the bank? The act of taking possession of the jewellery from the bank is not clear. It is known that the bank does not hand over what was deposited with it to anyone unless there is a clear authorization or a power of attorney to receive it and that the person who deposited the jewellery have to be notified otherwise, the bank has betrayed the trust.

Third: The court should have followed the sound procedures in explaining and responding to the case and to clarify any incomplete information whether during the stage of explain the case or in responding to it and the response should be in compatible with the explanation of the case so that the court will be able to determine who has to prove the disputed issue.

I am troubled by the failure to provide the original lawsuit which apparently had the list of jewellery that Mr. Hamour claimed Ms. Hamour had in her possession, appended. The only reliable value is the value the parties claimed when entering Canada. Recognizing that some of the jewellery brought to Canada belongs to Mr. Hamour and to the children, I therefore accept Ms. Hamour’s valuation of the jewellery at $20,000.

Bank Accounts

[102] Mr. Hamour has listed three accounts with RBC – a Chequing account, a US dollar account and a Savings account. Ms. Hamour believes that Mr. Hamour has not disclosed all of his bank accounts despite several court orders wherein he was ordered to produce all bank accounts. He was also to write to all the banks to confirm that he did not have accounts with them. Ms. Hamour is not satisfied with the efforts made by Mr. Hamour in this regard and there are several reasons why I agree with her.

[103] Mr. Hamour provided his records for the RBC accounts and says that those comprise the totality of his bank accounts. Ms. Hamour’s counsel reviewed the records carefully and found unexplained deposits into the chequing account ending in 7931 of approximately $450,000. Mr. Hamour did provide a document (Exhibit 50) that he put together with the assistance of counsel. He says that the document explains the transfers into the account of the $450,000 that Ms. Hamour says is unaccounted for. Exhibit 48 purports to be the corroborating documentation, but much like other documentation produced by Mr. Hamour consists of documents with yellow highlighting and not a comprehensible explanation.

[104] There are a number of items where the explanation is “Gift”. In support of these gifts (which total $100,000) he appended a document from a friend with a list of gifts from other friends. There was no evidence to confirm or explain the contested entries on this document or to explain who the people are who appear in the document. Mr. Hamour was given the opportunity during cross-examination to explain the contested entries but failed to do so.

[105] To the extent that Mr. Hamour is incurring costs with respect to annual filings to maintain BladCo Sudan, those expenses do not show up in any accounts that Mr. Hamour has produced for this litigation.

Other property

[106] Mr. Hamour deposed to having purchased a property in Dubai (Spring Villa 29) in August 2004 (This despite having indicated on his immigration application that the Villa was purchased in 2002). He said that he sold it in July 2008 for $632,174 to Abdlwahed Abrahim Haj Mohamed Aboush. He said that the title to the house was subsequently registered under the purchaser’s name on January 14, 2010. Mr. Hamour says that he entered into an agreement with the purchaser that he would receive an advance of the sale proceeds as a loan and if he was unable to pay back the loan in a year, the purchaser would keep the property as collateral for the funds previously provided to him. Mr. Hamour says that, despite having brought $2,200,000 with him into Canada in 2008, the sale proceeds from the Dubai property were used to finance the purchase and renovation of the parties’ home in Mississauga.

[107] During cross-examination Mr. Hamour confirmed instead that the Dubai property was sold by him on October 9, 2014 as set out in Exhibit 43. Despite many requests from Ms. Hamour the proceeds of sale have never been accounted for.

[108] Mr. Hamour relies upon the fact that he provided Ms. Hamour with Authorizations and Directions which would have allowed her to make her own inquiries through her counsel at the time to Abu Dhabi Commercial Bank and to EMAAR in the United Arab Emirates, to demonstrate that he has not hidden any assets or bank accounts. Ms. Hamour testified that when she received these documents, she made inquires to try to find someone to carry out the investigation but found that it was far too expensive to hire someone in Dubai to carry out the necessary inquiries.

[109] Pursuant to the Family Law Act, it is up to the person who has the assets to disclose them; the other party should not have to go on a hunting expedition. It is unquestionable that there are obvious gaps in Mr. Hamour’s disclosure, which gaps he would not explain. To ensure that family proceedings are fair, it is incumbent upon both parties to make full and frank disclosure on an ongoing basis. There were also several court orders in this matter ordering Mr. Hamour to provide disclosure. While he appears to have provided reams of documents, he has failed to provide the necessary and relevant documentation required to justly determine this case.

[110] Attached is the Net Family Property statement with the numbers that I accept. The numbers demonstrate that Ms. Hamour is owed an equalization payment in excess of $1,000,000.

Unequal Division

[111] Mr. Hamour claims an unequal division of net family property. He says that an equal division would be unconscionable as he had contributed disproportionately to the maintenance and preservation of the matrimonial home since the date of separation. He relies on section 5(6) of the Family Law Act:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

[112] Mr. Hamour claims as well that Ms. Hamour depleted family property. There was no evidence whatsoever that Ms. Hamour had depleted family property.

[113] Ms. Hamour’s position is that she should not receive an unequal division of the net family property based among other things on Mr. Hamour’s failure to fully and accurately disclose his assets at the date of marriage, the date of separation and today.

[114] I have made adverse findings with respect to Mr. Hamour’s failure to fully and accurately disclose his assets. Those findings, on the whole, favour Ms. Hamour. I therefore decline to find that she is entitled to an unequal division of the parties’ net family property.

Occupation Rent

[115] Mr. Hamour claims occupation rent from Ms. Hamour. Ms. Hamour had de facto exclusive possession of the matrimonial home between December 2018 and July 2019. Mr. Hamour has not provided any evidence as to what the occupation rent should be, other than to produce his own rental agreement. Mr. Hamour chose to take the three eldest children and to move from the home. He failed to provide any financial support to Ms. Hamour for herself and Dana. The matrimonial home was listed for sale in January 2019, not long after Mr. Hamour left the property. This is not a situation which attracts the equitable remedy of occupation rent.

Repayment by Ms. Hamour of the $5,000 she withdrew from RESP

[116] Mr. Hamour asks for an order that Ms. Hamour repay $5,000 she withdrew from the children’s RESP. She testified that she withdrew the money when she had no money available to her to buy food for herself and Dana. I accept this explanation and decline to order repayment.

Post-separation expenses

[117] Mr. Hamour seeks to have Ms. Hamour repay amounts that he paid on her behalf after separation. Exhibit 36 appears to contain all the bills related to the matrimonial home between the date of separation and the date of sale. There is no chart or calculation setting out the amount claimed. No figure is set out in Mr. Hamour’s Draft Order filed at the outset of trial. Given the lack of specificity in this request and Mr. Hamour’s refusal to provide financial support to Ms. Hamour and Dana, there will be no order for repayment of any amounts incurred by Mr. Hamour after the date of separation.

INCOME

[118] Both parties ask that I impute income to the other for the purposes of child and spousal support. Prior to imputing income, in order to obtain spousal support, entitlement must be established. In his closing submissions, Mr. Hamour addressed the law and argument on the issue of imputation of income. He did not discuss entitlement.

[119] Mr. Hamour claims child support as well. There is no question that the three eldest children have resided with their father since separation. There is not much information available to explain why the children went with their father instead of staying with their mother. However, when one looks at the lifestyle of Mr. Hamour and the three children, it is readily apparent that the children enjoy access to money and a lifestyle that they would not have had they remained with their mother.

[120] Mr. Hamour also claims a contribution to section 7 expenses for the three oldest children. He has not quantified those expenses. Exhibit 35 is a collection of documents that appear to relate to section 7 expenses. There is no attempt to separate out genuine section 7 expenses. For example there is a receipt that appears to reflect a purchase of hoverboards. Many of the entries on the documents relate to Boston Pizza, Tim Hortons and McDonalds. Mr. Hamour incurred the section 7 expenses without any consultation with Ms. Hamour. Mr. Hamour paid all of the children’s expenses without expecting a contribution from the children to their post-secondary expenses. During the relevant periods Ms. Hamour did not have any income and pursuant to the Child Support Guidelines would not have had to make a contribution in any event.

[121] Imputation of income is addressed in section 19(1) of the Federal Child Support Guidelines. The relevant portions are:

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;

(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

[122] Mr. Hamour relies on subsection (a) and submits that Ms. Hamour has not taken any steps to find gainful employment during the marriage and after separation. While it is true that Ms. Hamour was employed prior to the marriage, despite Mr. Hamour’s claim that he was responsible for the children, the evidence clearly established that her role in the marriage was to care for the household and the four children. She is now 57 years of age and has learned English and found some employment which gives her the flexibility to be at home with Dana. Dana is 11 years old and in Grade 6. Like most children at the moment she is attending school virtually.

[123] Ms. Hamour’s annual income is estimated at $18,500. I find she is making every effort to contribute to her own and her daughter’s support. I decline to impute additional income to her.

[124] The sub-sections that I have reproduced above must be considered in Ms. Hamour’s claim for spousal and child support. I do not believe that Mr. Hamour is unemployed. The bank records at Exhibit 47 contain a Client Profile as at February 2, 2021 wherein Mr. Hamour is described as self employed and the owner of a business.

[125] From the evidence presented I find that he has been employed all along and has misrepresented his employment status. I find that in doing so, he has been receiving funds tax-free. I find as well that he has property available to him that he has been using to earn income.

[126] In imputing income to Mr. Hamour it is appropriate to examine the funds going into his bank account each month together with evidence of his post-separation lifestyle.

[127] A large part of the Mr. Hamour’s monthly income appears to be derived from money received from Dr. Elsayegh. As stated earlier there is other money from unexplained sources that goes into Mr. Hamour’s bank account as well. Although I have my doubts about the nature of the funds advanced by Dr. Elsayegh, I cannot accuse Dr. Elsayegh of being part of a scheme to defraud Ms. Hamour. I am, however, not reluctant to find that Mr. Hamour has taken and will continue to take whatever steps necessary to deprive Ms. Hamour of the property and support to which she is entitled.

[128] Although I am able to reach the above conclusion based on Mr. Hamour’s actions in bringing this matter to trial and on his testimony at trial, it is also corroborated by Dr. Faisal Hamour.

[129] Dr. Hamour said that over the years, particularly after the family moved to Canada, Mr. Hamour would talk to him about the state of his marriage. He would frequently complain about his wife’s spending and he would complain about her family. Dr. Hamour testified that his last attempts to help the family with their marriage issues took place after the family’s final trip to Dubai in December 2014. After Ms. Hamour returned to Canada from Sudan, Dr. Hamour tried to tell Mr. Hamour that he was concerned that Mr. Hamour was speaking poorly of Ms. Hamour to the children and trying to turn them against her. Dr. Hamour also felt that it was not right for Mr. Hamour to financially abandon his wife. In response Mr. Hamour said, “I will spend all my money to go to the court and I will leave her with no money and no kids.”

[130] Dr. Hamour’s evidence was very credible. He had no motive to lie and was straightforward and direct in his testimony.

[131] It defies belief that someone who purports to live on Old Age Security and the generosity of his friends, would continue to spend the sums of money that Mr. Hamour acknowledges that he has spent since the separation. Added to that is Mr. Hamour’s admission at trial that he probably spent more than $50,000 on the trip that he and the family took to Dubai immediately prior to the separation. Despite acknowledging the cost of the trip, nowhere does this show up in the bank records produced by Mr. Hamour.

[132] Ms. Hamour is entitled to spousal support as she and Mr. Hamour were married for almost 20 years. Ms. Hamour did not work outside the home and was the primary caregiver to the parties’ four children, enabling Mr. Hamour to travel extensively for business purposes and to stay abroad for weeks or months at a time. She is entitled to support on both a compensatory and non-compensatory basis. (Divorce Act s. 15.2(6), Moge v. Moge, [1992] 3. S.C.R. 813, at para. 53).

[133] The compensatory element of Ms. Hamour’s entitlement arises from the roles adopted in the marriage and the length of the marriage. In the 20 years of the marriage, Ms. Hamour had four children for whom she had primary care. She looked after the house. Mr. Hamour was able to travel for long periods of time because of the roles assumed during the marriage.

[134] During the marriage, the parties had a very comfortable life that included beautiful homes, expensive domestic and international vacations and private school for the children. This lifestyle continued until separation. For Mr. Hamour and the three eldest children, it continues until this day.

[135] Ms. Hamour is not able to support herself at the moment. She is in need of support. In contrast Mr. Hamour has been able to maintain his lifestyle.

[136] Despite the fact that I do not accept that Mr. Hamour’s sole source of income is loans and gifts from third parties, it is useful to address the factors that determine whether or not a transfer of money is a loan or gift.

[137] Barber v. Magee, 2015 ONSC, 8054, paragraph 68, affirmed 2017 ONCA 558, set out non-exhaustive list of factors to consider when determining whether a transfer of money is a gift or a loan. The factors include:

a) Whether there were any contemporaneous documents evidencing a loan;

b) Whether the manner for repayment is specified;

c) Whether there is security held for the loan;

d) Whether there has been any demand for payment;

e) Whether there has been any partial repayment; and

f) Whether there was an expectation or likelihood of repayment.

[138] Here we have a situation where there were no contemporaneous documents evidencing a loan; no manner specified for repayment; unreliable evidence on whether or not the matrimonial home was security for the home; evidence that demand for repayment was made just in advance of trial; no partial repayment, and based on Mr. Hamour’s testimony, no likelihood of repayment. I am thus able to conclude that the funds advanced from Dr. Elsayegh, including the rent paid on Mr. Hamour’s behalf, were gifts. Certainly the funds described on Exhibit 50 as gifts from other third parties, (if there was money advanced from the parties listed on Exhibit 50) were gifts.

[139] I accept that Mr. Hamour has had the direct or indirect benefit of $1,093,309 since separation which averages $175,000 (net) annually. I find that Mr. Hamour’s annual income, grossed up to account for the nonpayment income tax, is $349,544. I accept that Ms. Hamour’s projected income is $18,500. In 2021, Mr. Hamour should be paying spousal support of $4,733 per month for June, July and August 2021. This calculation is based on Dalia being with her father for the summer months.

[140] Mr. Hamour should pay $6,086 per month from September 2021 onwards, based on the mid-range of the Spousal Support Advisory Guidelines.

[141] Ms. Hamour seeks a lump sum spousal support payment in the amount of $434,784, based on a net present value of spousal support payable for a 7 year duration.

[142] Taking into account Mr. Hamour’s failure to acknowledge Ms. Hamour’s entitlement to spousal support, his belittling of her role in the marriage and his complete and utter failure to make full and frank disclosure, I am prepared to grant the request for a lump sum support payment in the amount that is sought.

[143] Ms. Hamour seeks ongoing child support for Dana. She acknowledges that Dalia resides primarily with Mr. Hamour and acknowledges that there should be a set-off of support for June, July and August of this year. Once Dalia returns to university her expenses will be covered by the RESP. Ms. Hamour believes that Mr. Hamour will comply with an order for ongoing child support as there is no question that he loves his children and would want to treat Dana the same as the older children.

[144] I find that Ms. Hamour had no knowledge of any arrangements between Mr. Hamour and Dr. Elsayegh. She was not a party to the arrangement and has no responsibility for paying any amounts of money back to Dr. Elsayegh

JUDGMENT

[145] The following orders will issue:

a) The applicant and the respondent shall be divorced.

b) The respondent may travel with Dana without the consent of the applicant and is hereby authorized to renew Dana’s passport without the consent of the applicant;

c) The applicant shall pay to the respondent child support, inclusive of table support pursuant to the Child Support Guidelines and his contribution to special and extraordinary expenses, for Dana in the amount of $2,590 per month on June 1, 2021, July 1, 2021 and August 1, 2021. This amount is based on an imputed annual income to the applicant of $359,544 and takes into account the fact that Dalia remains a child of the marriage and entitled to child support until end August 2021 and resides with the applicant. The applicant’s imputed annual income is $349,544 and the applicant’s imputed annual income is $18,500.

d) The applicant shall pay to the respondent $2,736 per month commencing September 1, 2021, inclusive of table support pursuant to the Child Support Guidelines and his contribution to special and extraordinary expenses, for Dana. Child support shall be payable for Dana for so long as she is a child of the marriage as defined by the Divorce Act.

e) Support deduction order to issue.

f) The net proceeds of sale of the matrimonial home (164 Coastline Drive, Brampton, Ontario) held in trust by Sandeep Kaur, plus any accumulated interest, be paid out to the respondent forthwith. This payment shall be in full and final satisfaction of any and all claims made by either party in this proceeding except for prospective child support and costs.

COSTS

[146] I understand that cost submissions have already been prepared. The respondent will have 5 days to forward those submissions to me with any adjustments necessitated by this decision. The applicant will have 10 days to forward his submissions. There will be no right of reply.

Van Melle J.

Released: June 2, 2021

COURT FILE NO.: FS-16-181-00

DATE: 20210602

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

BABIKER MOHAMED ALI HAMOUR

Applicant

– and –

ENTISAR ABDALLA AWOUDA HAMOUR

Respondent

REASONS FOR JUDGMENT

Van Melle J.

Released: June 2, 2021