COURT FILE NO.: FC-20-597 DATE: 2022/01/07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sahar Zeitoun, Applicant -and- Hassan Abdallah, Respondent

BEFORE: Justice P. MacEachern

COUNSEL: Karla Policelli, for the Applicant Respondent, Self-Represented

HEARD: November 30, 2021 by Video Conference

Endorsement on Motion

[1] The Applicant brought a motion on November 30, 2021 seeking the partition and sale of the matrimonial home, terms for its sale, child support based on the Respondent having an imputed income of $100,000 per year, and disclosure.

[2] On November 30, 2021, I ordered the sale of the matrimonial home and reserved the remaining issues. This is my decision on the remaining issues.

[3] The issues to be determined are:

a. What temporary child support should the Respondent pay for the support of the parties' three children, ages 12, 6, and 5? b. What order should be made regarding the proceeds of the sale of the matrimonial home pending trial? c. What order should be made concerning the Respondent's disclosure?

Preliminary Matters

[4] It is improper for the Respondent to place offers to settle before the court. The Respondent's affidavit sworn November 24, 2021, contains a letter from the Applicant's counsel, dated November 20, 2020, entirely made up of the Applicant's settlement offer, plus emails related to this offer. This exhibit (Exhibit 15) is struck from the Respondent's affidavit.

[5] The parties' pleadings do not include a claim for a divorce. As such, child support is determined under the Family Law Act.

Issue #1: What temporary child support should the Respondent pay for the support of the parties' three children?

[6] The Applicant seeks an order requiring the Respondent to pay her temporary child support at the table amount based on income of $100,000 per year, retroactive to the date of separation of February 8, 2020.

[7] It is not contested that the children primarily reside with the Applicant. Justice Mackinnon made an interim Order on May 4, 2020, that reflects this. The current parenting schedule set out under Justice MacKinnon's Order provides for the Respondent to see the children on a two-week rotating schedule, from Tuesday to Thursday evening in week one, Wednesday during the day in week two, and alternate weekends. The oldest child has not attended parenting time with the Respondent since April 13, 2021, except for one short visit of a few hours.

[8] The Applicant seeks the full table amount of child support for all three children. Her position is that the children are with the Respondent 5 of 14 days, less than 40% of the time. The Respondent does not oppose paying the full table amount of support. He does not argue that he has the children in his care for more than 40% of the time, such that child support should be calculated under s.9 of the Child Support Guidelines (CSG). Given this, I am determining child support by applying the table amount payable based on the Respondent's income, under s.3 of the CSG.

[9] The Respondent states that he is not opposed to paying child support but wants to pay based on his current income. He argues that his income is significantly less than in previous years. He states he is currently working part-time, 20 hours bi-weekly, as a cashier at a gas station, earning $17 per hour [1]. Annualized, this works out to approximately $8,500 per year. No child support is payable under the tables at this level of income.

[10] It is not contested that the Respondent previously earned a significantly higher income. Before March 28, 2020, the Respondent was employed as a business manager with Donnelly Automotive Group. His evidence is that he was laid off on March 28, 2020, related to the Covid-19 pandemic. However, he states this also corresponded to his mental health problems, described as having a psychological break related to the marriage breakdown. The Respondent states he has been diagnosed with PTSD caused by discovering the Applicant was having an affair.

[11] I will not go further into the issue of the alleged affair except to state that the Applicant denies this. Her evidence is that the Respondent has been spreading mistruths about her far and wide within their community. I do not need to determine if the Applicant had an affair – this is not relevant to the determination of the legal issues. However, the Respondent's fixation on his belief that the Applicant had an affair, whether true or not, and his view that she has, through this conduct, "destroyed his life", is very concerning to the court. I urge the Respondent to take immediate steps, including through professional medical assistance, to reframe his perspective – which is not healthy for him, the Applicant, or the children.

[12] Turning back to the Respondent's income-earning ability, in 2017, the Respondent's line 150 income was $153,665 [2]. In 2018, the Respondent's line 150 income was $177,992 [3]. In 2019, his line 150 income was $186,769 [4]. In 2020, his line 150 income was $70,819, made up of employment income (approx. $58,000) and Employment Insurance and CERB [5].

[13] The Respondent has not provided an updated financial statement as required under the Rules. The Respondent's only financial statement in the court file was sworn on July 21, 2020.

[14] The Respondent's position is that he cannot earn income at the previous level because he is suffering post-traumatic stress disorder caused by the Applicant's alleged affair. He argues that he cannot work in the car industry, as he did before, because "everyone" knows that his wife had an affair. He states he has nightmares and anxiety about going out in public because "everybody" that knows him mentions the Applicant's adultery.

[15] The Respondent blames the Applicant for "destroying" his career. He submits that he cannot find a job in any car dealership in Ottawa because "they all say" they are sorry to have heard about her affair, which means he must leave. In the draft order presented to the court, the Respondent seeks $16,000 in damages from the Applicant for loss of career and opportunity due to stress and anxiety caused by the Applicant. He also seeks spousal support from the Applicant.

[16] As noted in my endorsement of November 30, 2021, the Respondent did not serve a Notice of Motion. I am not dealing with a motion brought by him. But I do comment that the Respondent has not claimed damages or spousal support in his Answer. Even if he had brought a motion that was properly before me, I would dismiss his motion on this basis. The claim for damages is also an issue that would need to be determined at trial.

[17] In support of his claim that he has medical issues that limit his ability to work, the Respondent has provided two letters – one from Raquel Soteldo, dated October 14, 2021, and a second from Julia Guerra and Dr. Karine Cote, dated August 18, 2021.

[18] Neither of the reports is sworn by the report writer. Only Ms. Guerra's and Dr. Cote's report contains information, which is very limited, on the writers’ qualifications and experience to express any opinion therein.

[19] I place no weight on Ms. Soteldo's report, which is very brief and certainly not comprehensive enough to allow me to draw any conclusions from it. I have discounted it for this reason. Ms. Soteldo's statement in her report that the Respondent is unable to go back to work is also undermined by the Respondent's evidence that "his psychologist" (not identified) recommended that he work two to three times a week to occupy himself.

[20] Ms. Soteldo did refer the Respondent to Ms. Guerra and Dr. Cote for a psychodiagnostic assessment. This assessment was completed on August 18, 2021. Although not a sworn statement, this report is very comprehensive, including information on various testing of the Respondent. The report concludes that the Respondent does not meet the DSM-5 criteria for PTSD. However, the writers conclude that the Respondent meets the criteria for Other Specified Trauma and Stressor-Related Disorder from traumatic attachment injury and Major Depressive Disorder. While the report does not express an opinion on the Respondent's ability to work, it describes the Respondent's condition in detail, including several aspects that impact his day-to-day functioning and ability to work. These include depression, hostility, anger and resentment to himself and others, social withdrawal, difficulty with mood, intrusive thoughts, angry outbursts, etc.

[21] The information contained in the Guerre/Cote report is very concerning to the court. There are many aspects of the Respondent's conduct that are controlling, abusive, and hostile towards others, particularly the Applicant. Whether emanating from a traumatic event or not, these symptoms raise concerns about the Applicant's safety and the safety of the children. I have already provided, in my endorsement of Nov 30, 2021, leave for the Applicant to bring a motion seeking a restraining order, if she wishes to do so. The Applicant has not sought relief concerning parenting or a restraining order on this motion.

[22] This is a motion for temporary child support. Child support has been sought by the Applicant since the outset of this matter and was explicitly addressed at the case conference before Justice Mackinnon on September 17, 2020. The purpose of temporary child support is to provide a temporary remedy pending trial, where the matter can be determined on a full evidentiary record. It provides a "stop-gap" or "band-aid" pending trial.

[23] There continues to be significant outstanding disclosure and other contested issues. The Applicant seeks disclosure, which is addressed below. The Respondent has not been cross-examined on his evidence about his ability to work. He had not provided other medical records. The medical reports are unsworn and have not been subject to cross-examination. Notably, the Respondent has failed to provide an updated sworn financial statement – the only financial statement he has provided is dated July 21, 2020. The Respondent has not provided an expert report stating he is disabled and unable to work. He can work to some extent because he is doing so now. Other than the two reports addressed above, which are several months old, the Respondent has provided little evidence about what steps he is taking, currently, to follow the recommended treatment to address his mental health issues.

[24] Notably, the Respondent does not deny that he could have returned to his position at Donnelly Automotive, except for his submission that he can no longer work in the car industry because everyone knows about the Applicant's affair, which relates to his mental health issues. The Applicant's evidence is that Donnelly Automotive rehired someone for the Respondent's position later in 2020, and the Respondent could have applied if he wanted to. The Respondent does not deny this.

[25] The issue then is what temporary child support order should be made in the face of the Respondent's past income-earning history at Donnelly Automotive and the evidence regarding his mental health issues and ability to work.

[26] As suggested in my comments above, in my view, there is a significant issue as to what extent the Respondent's current fixation, anger and hostility towards the Applicant, whether considered a mental health issue or not, can be relied upon to limit his income-earning ability for the purpose of determining child support. But that issue will need to be addressed at trial.

[27] Pending trial, at this time, the evidence before me, in particular, the Guerre/Cote report, supports that the Respondent cannot earn the level of income that he previously did – being income in the range of $150,000 to $180,000 per year. The Applicant's submissions accept this in that she is seeking income of $100,000 per year to be imputed to the Respondent. But I do not find that the evidence before me supports income of $100,000 being imputed to the Respondent, at this time, for temporary child support. There is little evidence to support this $100,000 per year figure.

[28] I am prepared to impute income to the Respondent of $50,000 per year for temporary child support. This is based on the following:

a. The Guerre/Cote medical report, although unsworn and not subject to cross-examination, supports that in August of 2021, the Respondent met the criteria under the DSM-5 for two diagnoses (Other Specified Trauma and Stressor-Related Disorder from traumatic attachment injury, and Major Depressive Disorder) and has symptoms that impact his day-to-day functioning and ability to work. b. The evidence before me supports that the Respondent is capable of working part-time and has been working part-time since the fall of 2021. c. The Respondent has significant skills and experience reflected in his past income-earning ability of between $150,000 to $180,000 per year. d. Although I am prepared to accept, for interim child support, that the Respondent has mental health issues that impact his ability to work such that he is not able to earn income at previous levels, I am not satisfied that the Respondent's ability to earn an income is limited to $17 per hour, working 10 hours per week. e. I infer that the Respondent has a greater ability to pay support than what he has presented to the court. This inference is based on the evidence before me, including that Respondent has not provided an updated sworn financial statement as required by the rules, he has not explained how he was able to come up with $85,000 to purchase the Applicant's interest in the home as he says he was prepared to do, and he is motivated by an intense level of hostility towards the Applicant to minimize his income, and to "punish" the Applicant (exemplified by his claims for the Applicant to pay him damages and spousal support, even though not included in his pleading). f. I find, therefore, for interim child support purposes, that the evidence before me supports that income of $50,000 per year should be imputed to the Respondent, based on him working part-time and calculated as being 1/3 of his previous earnings modestly estimated at $150,000 per year.

[29] For the time being, I am providing for temporary child support to be payable as of May 1, 2020, because the Applicant has been seeking interim child support from the outset of this proceeding. This child support shall be payable from May 1, 2020, to correspond to Justice Mackinnon's May 4, 2020 decision on interim parenting. Before May 4, 2020, the parties were engaged in a back and forth battle over the children's residence. The detail of how that should impact child support during the period of separation to May 1, 2020, can be determined at trial. The terms of this temporary child support order will also be reviewed at trial, based on a full evidentiary record.

[30] The child support table amount payable for a payor in Ontario earning $50,000 per year for three children is $977 per month.

[31] I am also ordering that the child support payable by the Respondent for the period from May 1, 2020, through to and including April 30, 2022, a period of two years (24 months), be paid to the Applicant from the Respondent's share of the proceeds from the sale of the matrimonial home. The child support for this period totals $23,448. As of May 1, 2022, the Respondent is expected to pay the ongoing interim child support monthly from financial resources other than any interest he may have in the proceeds of the sale held in trust unless the parties otherwise agree or further court order.

Issue #2: What order should be made regarding the proceeds of the sale of the matrimonial home pending trial?

[32] The jointly-owned matrimonial home has been listed for sale. I am advised that the parties have now agreed to sell the home, with a closing date of January 17, 2022.

[33] The parties disagree on what should happen to the sale proceeds on the sale. The Applicant seeks to hold $50,000 in trust from the Respondent's share, with the remainder of the proceeds paid out equally between them. The Respondent submits that he should be reimbursed for all mortgage payments (principal and interest) that he has paid since separation. Then the remainder of the proceeds should be paid out equally. He estimates this amount to be approximately $35,000 but did not provide a mortgage statement to confirm this amount.

[34] The matrimonial home was appraised at $555,000 on November 3, 2020. The Respondent submits that it is now valued at approximately $700,000. I do not know the sale price. As of October 2020, the mortgage on the home had a principal owing of $351,000.

[35] There is an equalization claim in this proceeding (made by the Respondent). However, neither party has provided me with a net family property statement or provided any evidence of the potential equalization payment, if any. Neither party seeks to secure a possible equalization payment. The Applicant aims to hold a portion in trust to secure child support. The Respondent does not seek to have any amounts in trust; he just wants to be reimbursed for the mortgage payments. I note that the Respondent's pleadings do not include a reimbursement claim for the mortgage payments. The Respondent was also residing in the home, so received a benefit for the mortgage payments and delayed its sale. Whether there should be a reimbursement or adjustment related to the mortgage payments will need to be sorted out at trial.

[36] I agree that security for future child support is warranted, given the Respondent's failure to pay child support to date, the Respondent's mental health issues related to intense hostility towards the Applicant, and his failure to provide a sworn financial statement.

[37] Given the dispute about the mortgage payments and child support issues, I am ordering below that the sum of $100,000 be held in trust pending further agreement between the parties or further court order.

Issue #3: What order should be made concerning the Respondent's disclosure?

[38] The Applicant seeks an order requiring the Respondent to produce various documents relating to his income (for support purposes) and equalization. The Applicant's evidence is that her counsel has made detailed requests for disclosure since the case conference. She attaches letters from her lawyer dated October 5, 2020, May 25, 2021, and November 3, 2021, which detailed what disclosure has been provided and what is missing. She seeks an order in line with the requests made in this correspondence.

[39] The Respondent's evidence is that he has provided all of the requested disclosure "numerous times." He views the Applicant's counsel's request for disclosure as part of the Applicant's attempts to intimidate him through the legal process and overwhelm him. The Respondent also submits that the Applicant has not provided him with required disclosure. However, he did not provide any evidence in support of this.

[40] On the issue of the Respondent's request for disclosure from the Applicant, the Applicant's counsel advised that the Applicant will provide any reasonable and proportional disclosure requested by the Respondent, but no requests have been made. Given that the Respondent did not provide evidence of making any requests for disclosure, and he does not have a motion for disclosure in front of me, I leave this issue here – being that if the Respondent seeks disclosure from the Applicant, he needs to request such disclosure, including the particulars for why the requested disclosure is relevant to the issues in dispute (framed by the pleadings), is within the Applicant’s possession, power or control, and is proportional. The Applicant shall respond to such request within 30 days.

[41] Concerning the Respondent's disclosure, upon review of the various letters, including the Respondent's letter to the Applicant's counsel dated May 28, 2021, and the parties' submissions, it is clear that the Respondent has not provided all of the disclosure sought by the Applicant. For example:

a. The Applicant seeks the Respondent's 2018 and 2019 income tax returns. The Respondent has only provided his notices of assessment for 2018 and 2019. A notice of assessment is different from an income tax return. Both are required under the Family Law Rules and the Child Support Guidelines. b. The Applicant seeks the Respondent's 2020 notice of assessment. The Respondent has provided a copy of his 2020 income tax return, which is different from the notice of assessment. c. The Applicant seeks various bank statements for the date of separation. It appears that some bank statements have been provided, but I do not have evidence that these were provided for the date requested. Other statements were not provided, with no supporting documents that they had been requested from the bank.

[42] I have made the order below for the Respondent to provide the disclosure within 30 days because the Respondent's evidence that he has already provided "all" of the requested disclosure is not credible; it is obviously not true in many respects; and because the disclosure ordered below is relevant to the issues in dispute, and proportional.

Orders

For the above reasons, I make the following orders:

Pursuant to the Family Law Act:

[43] To determine temporary child support, an income of $50,000 per year is imputed to the Respondent.

[44] The Respondent shall pay temporary child support to the Applicant for the three children, of $977 per month, being the table amount payable for three children for a payor in Ontario earning $50,000/yr. This temporary child support shall be payable on the first day of each month, commencing May 1, 2020, and continuing until further order of the court or agreement of the parties. The names and birthdates of the children shall be inserted in the issued child support order.

[45] The child support payable by the Respondent to the Applicant under the above orders, for the period from May 1, 2020, to and including the end of April 2022, fixed at $23,448, shall be paid in full from the Respondent's share of the proceeds from the sale of the matrimonial home, as directed below.

[46] Commencing May 1, 2022, the Respondent shall be responsible for paying the above ordered temporary child support to the Applicant through the Family Responsibility Office on the first day of each month.

[47] The proceeds of the sale of the matrimonial home shall be paid out as follows:

a. To legal fees and adjustments related to the sale transaction; b. To pay out the mortgaged registered on title to the home; c. The sum of $100,000 shall be held in trust by the lawyer handling the real estate transaction pending further order of the court or agreement of the parties; d. The remaining proceeds shall be divided equally between the parties. From the Respondent's share of these proceeds, the sum of $23,448 shall be paid to the Applicant in satisfaction of the temporary child support payable by the Respondent to the Applicant for the period from May 1, 2020, to and including April 2022 (being $977/month X 24 months).

Pursuant to the Family Law Rules:

[48] If the Respondent seeks further disclosure from the Applicant, he shall, within 30 days, provide a letter to the Applicant's counsel setting out the disclosure he requests, including the particulars for why the requested disclosure is relevant to the issues in dispute (framed by the pleadings), is within the Applicant's possession, power or control, and is proportional. The Applicant shall respond to such request within 30 days.

[49] Within 30 days, the Respondent shall provide the Applicant's counsel with the following disclosure:

a. A copy of his 2018 Income Tax Returns, together with all schedules and enclosures (T4s, etc.). b. A copy of his 2019 Income Tax Returns, together with all schedules and enclosures (T4s, etc.); c. If the Respondent does not have a copy of his complete income tax return, he shall provide the printout from CRA showing all of his income tax return for the applicable year, including copies of all T-slip information; d. A copy of his 2020 Notice of Assessment and any re-assessment; e. Proof of his CERB income received in 2020 and 2021; f. Proof of his 2021 year-to-date income from all sources; g. A complete and up-to-date sworn financial statement; h. Any evidence in his possession confirming the value of the jewellery as outlined in his Financial Statement sworn July 21, 2020; i. A formal statement from TD Canada Trust confirming the value of his savings account number ***868 as of the parties' date of separation (February 8, 2020); j. Documentation confirming he is responsible for the loan associated with Ms. Zeitoun's father's (Ahmad Zeitoun) vehicle; k. A formal statement from National Bank MasterCard Statement confirming the amount owing as of the date of separation; l. A formal statement from the Royal Bank of Canada confirming the amount due on the line of credit as of the parties' date of separation (February 8, 2020); m. A complete copy of statements from Mr. Abdallah's Royal Bank Visa from January 11, 2020, to February 10, 2020, and BMO Mastercard statement date February 6, 2020; and n. Proof of job search, including but not limited to a list of all positions applied to with copies of applications submitted and responses received.

[50] In addition, the Respondent shall provide the following:

a. A copy of all T slips received for 2021, to be provided on or before March 1, 2022; b. A copy of his 2021 income tax return, as filed, including all attachments and schedules, to be provided on or before April 30, 2022; c. A copy of his 2021 notice of assessments, and any notices of re-assessments, within 14 days of receipt; d. Ongoing financial disclosure as required under the Family Law Rules (Rule 13); e. Notice of any changes in his income or employment status within 30 days of such a change, including supporting documents.

Costs

[51] If the parties cannot agree on the costs of this motion, the Applicant may file submissions concerning costs on or before February 1, 2022. The Respondent may file submissions concerning costs on or before February 14, 2022. Cost submissions of both parties shall be no more than three pages in length, plus any offers to settle and bills of costs and shall be spaced one point five spaces apart, with no less than 12-point font.

Justice P. MacEachern Date: January 7, 2022

COURT FILE NO.: FC-20-597 DATE: 2022/01/07 ONTARIO SUPERIOR COURT OF JUSTICE RE: Sahar Zeitoun, Applicant -and- Hassan Abdallah, Respondent BEFORE: Justice P. MacEachern COUNSEL: Karla Policelli, for the Applicant Respondent, Self-Represented ENDORSEMENT on motion Justice P. MacEachern

Released: January 7, 2022

[1] Letter from Ultramar dated Nov. 1, 2021 [2] Respondent’s 2017 Assessment, attached to his financial statement sworn July 21, 2020 [3] Respondent’s 2018 Assessment, and 2019 T1 comparative summer [4] Respondent’s 2019 Assessment, and 2019 T1 comparative summer [5] Respondent’s 2020 income tax return