Abu-Shaban v. Abu-Shaaban, 2022 ONSC 65

COURT FILE NO.: FC-16-2728

DATE: 2022/01/10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MOHSIN HILMI MESBAH ABU-SHABAN

Applicant

– and –

MONA SOBHY ABU-SHAABAN

Respondent

Rod A. Vanier, for the Applicant

Annmarie Roodal, for the Respondent

HEARD: January 19, 20, 21, 22, February 3, 4, 16, 18, March 8, 2021; and on September 13, 2021 (in writing)

REASONS FOR JUDGMENT

M. SMITH J

[1] The Applicant, Mohsin Hilmi Mesbah Abu-Shaban (the “Father”) and the Respondent, Mona Sobhy Abu-Shaaban (the “Mother”) met through their families and had an arranged marriage in Cairo, Egypt. A marriage contract was signed on June 6, 1987, and they were married on July 4, 1987. They immigrated to Canada on March 10, 1994. Between 1998 and 2002, the parties resided abroad in the United Arab Emirates to return permanently to Canada in or around 2002. The parties have two children: May Mohsin Abu-Shaban (born on December 11, 1989) and Nadine Abu-Shaban (born June 13, 2001). The parties separated on December 9, 2016.

[2] The trial proceeded for nine (9) days during the months of January through March 2021. In April 2021, the Mother wrote to the Court seeking leave to reopen the trial on the basis that fresh evidence had presented itself since the closing of the trial in March 2021. The Mother’s Motion was granted (see Abu-Shaban v. Abu-Shaaban, 2021 ONSC 3623). The parties agreed to file written submissions on the new evidence, which was received in September 2021.

[3] The Father is 66 years old. He obtained a bachelor’s degree in Business Administration and Economics. He pursued a career in accounting and auditing in Abu Dhabi. While in Canada, the Father opened a franchise business, but it was sold a few years later. He was then self-employed in the field of accounting. The Father claims that he has minor health challenges, including cataracts in both eyes, making it difficult for him to drive at night.

[4] The Mother is 58 years old. She obtained a master’s degree to teach English as a foreign language. In or around 2005, she obtained her certification as an Arabic interpreter and worked in this area until April 2014, when she suffered personal injury. The Mother is now receiving disability payments through the Ontario Disability Support Program and the Canada Pension Plan.

[5] The Mother claims that on or about December 1, 2016, the Father assaulted her, prompting her to vacate the matrimonial home shorty thereafter. On November 18, 2018, the Mother initiated legal proceedings against the Father (Court File No. CV-18-78571) claiming damages for assault together with a claim for breach of contract regarding an unpaid loan (the “Civil Action”). Given that the Civil Action is still ongoing, I have not made any findings in this family law trial regarding any of the claims or allegations made in the Civil Action.

[6] The issues to be determined in this trial are:

1. What is the amount due by the Father to the Mother under the marriage contract?

2. What is the amount of child support and section 7 expenses payable by the Father?

3. What is the equalization of the Net Family Property?

4. Is the Father liable for occupation rent?

5. What are the terms and conditions for the sale of the matrimonial home?

6. Is spousal support payable by the Father?

[7] The parties seek a divorce, which shall be granted upon receipt of a valid clearance certificate.

INTRODUCTORY REMARKS

[8] Before proceeding with my analysis of the issues, I find it necessary to briefly comment on the testimony of the parties.

[9] The testimonies of the Father and Mother raised credibility concerns. I did not find either party to be a straightforward and candid witness. Neither party offered wholly credible evidence.

[10] The Father was argumentative, flippant, evasive, unresponsive, and unreasonably confrontational during cross-examination. At times, he would answer the question with a question, leaving me to conclude that he wanted to avoid giving an answer that was detrimental to his case. I found his evidence to be conflicting and disingenuous on many fronts.

[11] The Father’s claims were seriously weakened by the lack of supporting documents. The evidence reveals that during the family law proceedings, the Father has repeatedly failed to comply with Court Orders. His explanations for his non-compliance are not convincing, leading me to drawing an adverse inference.

[12] The Mother’s testimony was not as blatantly incredible as the Father’s testimony. However, the Mother would also not always respond to the questions directly. Sometimes, she claimed to not understand the question or she became argumentative. When challenged with a contradiction in her evidence, the Mother responded that there are many things that she does not remember because of the concussion that she sustained in April 2014. I do not accept this explanation because much of her testimony was given in a detailed manner, with no indication that the Mother’s memory was affected.

[13] I must approach and consider the evidence of the parties with caution, especially the Father’s evidence. I am therefore reluctant about accepting the testimony of either party unless it is corroborated by other reliable objective evidence.

THE ISSUES

Issue #1: What is the amount due by the Father to the Mother under the marriage contract?

[14] On June 6, 1987, the parties signed a marriage contract. The original marriage contract was written in Arabic. An English translated version of the marriage contract was filed as an exhibit at the trial.

[15] The disputed issue relates to the amount of the dowry to be paid upon divorce, by the Father to the Mother. The relevant clause of the marriage contract reads as follows: “This marriage is solemnized with a dowry of EGP 10,000.25-out of which EGP 0.25 is paid today and the balance of EGP 10,000 is due to the Bride upon the death of her husband or divorce, whichever comes first.” (the “deferred dowry”).

[16] The Mother seeks to enforce the marriage contract. She claims that she is entitled to the sum of $20,600.00 CAD, which is the value of the Egyptian pound in Canadian Dollars when the agreement was made in 1987.

[17] The Father does not dispute that the marriage contract is enforceable, nor does he dispute that the Mother is the intended recipient of the dowry. He submits that the dowry to be paid should be based upon the value of the Egyptian pound in Canadian dollars, as of today’s date. The Father submits the amount to be paid is $812.94 CAD.

Analysis

[18] Agreements that satisfy the elements of a valid civil contract may be legally enforceable, even where it includes a religious aspect. In the event of a disagreement regarding the interpretation of the contract, the Court must consider the objective intentions of the parties, including any religious and/or the cultural purposes of the contract: see Bakhshi v. Hosseinzadeh, 2017 ONCA 838, at paras. 21 and 22.

[19] The Father concedes that the marriage contract is valid and enforceable under our provincial laws. The Father seeks a divorce and agrees that the deferred dowry will be due and owing.

[20] The marriage contract provided that the dowry be paid in Egyptian pounds because the Mother was living in Cairo at the time.

[21] It is uncontroverted that the value of the Egyptian pound has decreased since the signing of the marriage contract.

[22] The Mother testified that in 1987, 10,000 Egyptian pounds would have permitted her to purchase a small apartment. She says that the purpose of the deferred dowry was to provide her with sufficient support in the event of a divorce or the Father’s death. She argues that the value of the amount agreed at the time of the signing of the contract (in 1987) should be the amount that the Father is required to pay. I disagree.

[23] The marriage contract contemplates the payment of the deferred dowry upon the happening of an event, namely the divorce of the parties or the death of the Father.

[24] The marriage contract is silent as to the value of the Egyptian pound. The marriage contract does not contemplate that the Egyptian pound’s value will increase or decrease in time.

[25] If the parties intended to consider the increase or decrease of the value of the deferred dowry at the time of payment, I find that it would have been expressly included in the marriage contract.

[26] The event that triggers the deferred dowry is the divorce, which will take place in 2022. In the absence of evidence demonstrating that the parties intended to consider the increase and decrease of the value of the deferred dowry, it is my opinion that the deferred dowry must be valued at the time that the event is triggered.

[27] I find that the Father’s proposed value of $812.94 CAD is reasonable, considering the actual conversion rate.

Issue #2: What is the amount of child support and section 7 expenses payable by the Father?

[28] The Mother seeks the following: (a) ongoing child support for Nadine, as of February 1, 2021, (b) child support arrears from May 1, 2017 to January 31, 2021, and (c) section 7 expenses from May 1, 2017 to present.

[29] The Mother requests imputing an income of $47,700.00 to the Father, as of February 1, 2021, on the basis that he is intentionally unemployed or under-employed.

[30] Regarding the child support arrears, the Mother seeks payment in the amount of $19,888.00 for the period of May 1, 2017 to January 31, 2021. This amount is based upon imputing income to the Father as follows: $50,629.00 in 2017; $43,668.00 in 2018; $55,271.00 in 2019; $47,770.00 in 2020.

[31] For the section 7 expenses, the Mother argues that the amount of $3,442.00 is payable by the Father.

[32] The onus is on the Mother and there must be an evidentiary basis to make the finding being requested: see Drygala v. Pauli, 2002 41868, at para. 44.

[33] Section 19 of the Federal Child Support Guidelines states that a Court may impute income to a spouse in the appropriate circumstances, such when a spouse is intentionally unemployed or under-employed.

Analysis

Imputation of income

[34] The Father’s declared net income for the years 2013 to 2019 is as follows:

1. 2013: $27,275.00

2. 2014: $32,560.00

3. 2015: $17,344.00

4. 2016: $22,438.00

5. 2017: $9,962.00

6. 2018: $11,237.00

7. 2019: $10,950.00

[35] The Father testified that from 2012 until 2019, he has worked different jobs, including working in a call centre, being a customer representative and as a bookkeeper.

[36] The Father stated that he has not earned employment income since 2019. At the age of 60, he started to receive Canada Pension Plan benefits. Since 2020, he has been receiving the Canada Emergency Response Benefit. The Father says that he is now retired because of his cataract issues and the pandemic.

[37] I am not satisfied that the Mother has met her burden of proof that the employment income should be imputed to the Father on the basis that he is unemployed or under-employed. In considering the Father’s work history, he has seldom held a full-time position, jumping from one job to another to eventually working for himself. He has not earned income since 2019 and I accept that the pandemic would have caused him difficulties in finding employment. The Father may hold University degrees, but he has not been successful in finding a stable job for years. While I do not believe that the Father made any efforts in finding employment, I find that it would have been a futile exercise. At the age of 66, with his limited skills, some health issues, and a poor historical work profile, he is likely unemployable. I am therefore unable to impute income to the Father for being intentionally unemployed or under-employed. However, the analysis does not end there.

[38] For reasons that follow, I believe that an income should be imputed because the Father has not declared rental income and he has failed disclose income information required of him by various Court Orders.

[39] The Father owns part of a property in the Gaza Strip with his siblings (the “Gaza Strip Property”), managed by his nephew, Hazim Samir Abu Shaba. There are approximately ten shops operating on the Gaza Strip Property, generating some income. The Father said that he receives small amounts of rental income, referring to it as “not anything major”.

[40] The Father has previously been ordered by Shelston J. on March 18, 2019 to provide copies of the income and expenses for the Gaza Strip Property as of January 2017. On July 17, 2019, Beaudoin J. ordered that the Father provide the financial disclosure for the Gaza Strip Property within 30 days. On February 6, 2020, the Father was ordered by Shelston J. to comply with his March 18, 2019 order by no later than February 28, 2020.

[41] During cross-examination, the Father was reminded that he had not complied with the Orders of Shelston J. and Beaudoin J., to which he responded that he could not get the financial records. However, later in his cross-examination, the Father said that he will work on getting the financial information for the Gaza Strip Property and ask his nephew to send it again. He then admitted that he spoke to his nephew who provided him with a figure, but he has not produced it to Court because it is not reliable. The Father’s evidence on this point did not have a ring of truth, and he contradicted himself in his testimony. I find it unbelievable that the Father has been unable to provide any financial disclosure regarding the rental income earned at the Gaza Strip Property, especially when the property is managed by his nephew.

[42] The Father admitted that in 2017 and 2019, he received payments, by way of wire transfer, from his nephew: $4,026.00 USD on January 26, 2017, $3,547.00 USD on January 8, 2019, and $1,974.00 USD on February 13, 2019. Although the Father claims that the purpose of these transfers were not disclosed to him, he stated that it could represent rental income or simply that his nephew wanted to help him financially. I find that it is more likely than not that these transfers represented rental income from the Gaza Strip Property.

[43] Throughout the years, the Father also received numerous other wire transfers from his sister and brother. The Father stated that these amounts were loans and not related in any way to the Gaza Strip Property. The Father was also ordered to produce loan documents from his sister and brother by Shelston J. and Beaudoin J., but he has not produced any because he claims that there are no written agreements with his siblings.

[44] According to the Father’s Financial Statement dated January 18, 2021, at the date of separation, the Father owed his sister and brother the sum of $112,036.00. Between the date of separation to January 18, 2021, further sums were loaned to the Father, totalling $16,005.00, for a grand total owing of $128,041.00.

[45] The Mother notes that post-separation, the Father’s declared income dropped significantly, almost 50%. Despite this drop, the Father has been able to pay all his monthly expenses. The Mother argues that there is a disconnect between the Father’s declared income and his expenses, even when you consider the monies that he received from his sister and brother. I agree.

[46] Since the separation in December 2016, until early January 2020, the Father’s bank account statements reflect that he has received the total sum of $57,804.55 (assuming a conversion rate of 1.328 for the USD funds). Of that amount, as noted above, $16,005.00 is alleged to have been additional loans to the Father from his sister and/or brother. That leaves an unaccounted amount of $41,799.55 that has been deposited into his account by his nephew, sister and/or brother.

[47] I find that the Father has been less than forthcoming with respect to the rental income funds generated from the Gaza Strip Property as well as the funds received from his sister and brother. The Father has repeatedly failed to comply with Court Orders requiring him to disclose his financial information. I do not accept any of the Father’s explanations for his failure to comply with the Court Orders. As such, because of the Father’s failure to declare rental income and his failure to disclose the financial records, including, without limitation, the Gaza Strip Property documents as well as the up to date bank statements, I draw an adverse inference against the Father. Specifically, I infer that the Father resisted in providing the financial records because he knew that the outcome of the disclosure would be that he was receiving rental income from the Gaza Strip Property.

[48] From the date of separation in December 2016 to January 2020, the Father received an unaccounted amount of funds totalling $41,799.55. I find that it is reasonable to infer that this amount relates to the rental income generated from the Gaza Strip Property for a three-year period, representing approximately $14,000.00 per year. In my view, this amount was available to the Father to pay support and will therefore be imputed to him as income for the years 2017, 2018 and 2019.

[49] I conclude that the Father’s annual income amount for child support purposes for the years 2017 to 2019 is:

1. 2017: $23,962.00

2. 2018: $25,237.00

3. 2019: $24,950.00

[50] For years 2020 and ongoing, the annual sum of $14,000.00 is added to the Father’s declared income, for as long as he owns his share of the Gaza Strip Property and that child support is payable.

Child support payments

[51] I accept the Mother’s submission that the arrears of child support should start as of May 1, 2017.

[52] The Father submits that the strict child support guidelines should be modified because Nadine has earned income and the Father does not earn sufficient income. I reject this submission. First, although Nadine has earned income of $3,495.00 and $5,523.00 in years 2018 and 2019, respectively, she is nonetheless living with the Mother and attending school on a full-time basis. Nadine is excelling at school. Her transcripts reveal that she is obtaining grades of A and A+ in her school courses. Second, with my finding that income should be imputed to the Father, he is now earning enough income to pay for child support. As such, the Father has not convinced me that the circumstances warrant a modification of the standard child support guidelines.

[53] According to my calculations, the arrears of child support for the years 2017, 2018 and 2019 are $1,533.60, $2,415.36, and $2,386.08, respectively. I am unable to calculate the child support arrears for 2020 or the Father’s ongoing child support payments because I do not have the Father’s up to date Notices of Assessment for years 2020 and 2021.

[54] I invite counsel to calculate the child support arrears which have accrued since May 1, 2017 to the date of these Reasons for Judgment, as well as the Father’s ongoing monthly child support obligations. If counsel cannot agree, they may re-attend before me to determine the amounts due and owing by the Father for child support.

Section 7 expenses

[55] In her final submissions, the Mother seeks the following section 7 expenses:

1. In 2017, the Mother incurred $125.00 in dental expenses and $2,164.30 for Jenny Craig. The Mother submits that the Jenny Craig expense is a health-related expense because Nadine needed to lose weight.

2. In 2018, the Mother incurred $158.20 in violin expenses as well as $2,855.97 for a gym membership with Good Life (including a personal trainer). The Mother argues that the gym expense was also a necessary health-related expense for Nadine for the same weight loss reasons.

3. In 2019, the Mother incurred further gym expenses in the amount of $355.95.

[56] In support of the Mother’s contention that the health-related expenses were reasonable and necessary, the Mother filed a three lined letter from Nadine’s family physician dated October 24, 2017, who recommended that Nadine join weight watchers.

[57] The Father does not dispute the dental expenses. He argues that there is insufficient evidence to support a finding that the remaining expenses are reasonable and necessary. Also, he says that he had no knowledge that the section 7 expenses were being incurred.

[58] The dental expense is a proper health-related expense. The amount of $125.00 may be claimed.

[59] The violin expense relates to the rental of the instrument while Nadine was attending Ridgemont high school. I fail to see how this expense does not fall within the extraordinary activities. The amount of $158.20 may be claimed.

[60] Regarding the gym expense, I do not find that this a health-related expense. Nadine’s doctor did not recommend that she attend the gym or engage the services of a personal trainer. Also, this expense is not reasonable in relation to the means of the parents. The gym expenses totalling $3,211.92 for the years 2018 and 2019 may not be claimed.

[61] Lastly, in terms of the Jenny Craig expenses, I find that the medical evidence presented is insufficient. Nadine’s doctor simply mentions that Nadine join weight watchers “due to her medical condition”. The doctor’s opinion lacks specificity as to Nadine’s medical condition and the reasons for incurring an expense of this kind. Therefore, I am unable to determine if the Jenny Craig expenses are health-related expenses. The amount of $2,164.30 may not be claimed.

[62] Going forward, the Mother shall not incur section 7 expenses without the prior written consent of the Father, which consent shall not be unreasonably withheld.

[63] The past and future section 7 expenses are to be shared in proportion to the parties’ income, taking into consideration my imputation of income findings. If counsel cannot agree on the percentage, they may appear before me for my determination on this issue.

Issue #3: What is the equalization of the Net Family Property (“NFP”)?

[64] The Mother claims that she is entitled to an equalization payment in the amount of $184,386.81. Conversely, the Father says that he is entitled to an equalization payment in the amount of $91,029.23. For reasons explained below, I find that both parties are over-reaching with their respective equalization claims.

[65] The parties agree that the valuation date is the day of their separation, being December 9, 2016.

[66] The most controversial issue is the value to be attributed to the Father’s share of the Gaza Strip Property. The Mother and Father retained experts from the Gaza Strip to provide opinion evidence on the value of the Gaza Strip Property as of the date of marriage and date of separation.

[67] Other contentious issues include the following: (a) whether the Father should be able to claim a deduction of savings in the amount of $125,000.00 which he says that he brought into the marriage; (b) whether the Father should be permitted to claim loans of $112,036.00 that he says is owed to his sister and brother; (c) whether the Mother should be permitted to claim loans of $61,322.85 that she states is owed to her brothers and mother; and (d) whether the Mother has other jewelry not valued to date, and whether the value of the items that the Father alleges she possessed in 1990 should be added to her assets.

[68] The equalization regime is set out in section 4 to 11 of the Family Law Act, R.S.O. 1990, c. F.3. In my view, the most relevant sections to this case are sections 4 and 5.

[69] The party asserting the value of an asset that he or she controls must provide credible evidence as to its value: see Homsi v. Zaya, 2009 ONCA 322 at para. 38.

Analysis

Total Value of Property Owned on the Valuation Date

Matrimonial Home

[70] The parties agree that the estimated value of the matrimonial home is $318,000.00. There is no dispute that the matrimonial home is equally owned by the parties.

Household goods & furniture

[71] The Father claims that household goods are of limited value, all being 20 years old at the valuation date. He proposes that they be divided equally.

[72] The Mother estimates the value of the household goods at $5,000.00. She says that all items have remained with the Father since her departure from the matrimonial home.

[73] After the Mother left the matrimonial home, the Father changed the locks. He has since refused access to the Mother. The Mother was required to bring a Motion for the recovery of her personal belongings. The Father resisted the Motion and swore an affidavit stating that the only documents in his possession that belonged to the Mother were immigration documents and old passports. However, the Father subsequently provided the Mother with other personal belongings, including a crystal vase and some Quran CDs. Clearly, the Father’s affidavit was not accurate. However, when confronted with this contradiction during cross-examination, his curt response was “so what”.

[74] The Father admitted during his cross-examination that he disposed of the furniture, but he claims that it was old and damaged. He was of the view that he did not need to tell the Mother that he got rid of the furniture.

[75] I do not accept the Father’s evidence. Not only has he previously shown not being truthful regarding the contents of the matrimonial home but his responses to this line of questioning were not credible in the least. However, the Mother has not adduced any evidence on the valuation of the household items and/or she has not provided sufficient evidence regarding the items that were left behind in the matrimonial home. As such, I am unable to determine the value of the household furnishings and goods.

[76] Within 30 days of these Reasons for Judgment, the Father is to provide a list to the Mother of the remaining household furnishings and goods. The parties are to equally divide same amongst them, failing which, either party may seek an appointment before me through the Trial Coordinator for a determination of this issue.

Vehicles

[77] The parties had two vehicles at the time of separation: 2011 Mitsubishi Lancer and a 2013 Mitsubishi RVR. Post-separation, the vehicles were in the Mother’s possession. Appraisals were conducted and the parties agree that the total value of these two vehicles amount to $19,754.90.

Jewelry

[78] The Mother testified that before the marriage, she possessed jewelry that she had received as gifts from her parents, siblings, relatives and even the Father. After the marriage, she received further jewelry, mostly from the Father.

[79] The Mother said that when she left the matrimonial home in December 2016, she was traumatized. She needed to flee quickly and therefore did not take all her jewelry with her.

[80] The Father alleges that the Mother has not disclosed all jewelry in her possession. The Father claims that when the Mother left the matrimonial home in December 2016, she attended at the bank and emptied a safety deposit box where she had stored her jewelry. The Father further claims that the Mother brought her jewelry to the brother’s home in San Diego. The Mother denies this allegation.

[81] The Father produced a jewelry appraisal report dated September 20, 1990. This appraisal had been obtained for immigration purposes. Twenty-three items were appraised, and the total value was assessed at $57,250 USD.

[82] The Mother testified that some of those 23 items were gifted to relatives at their weddings, some were sold, and others were lost.

[83] In April 2019, the parties assessed the remaining jewelry at a jeweler called Conger’s. Six items were assessed for a total value of $16,650.00 CAD. The Mother claims that the six items that were assessed represent the totality of jewelry in her possession.

[84] The Mother was thoroughly cross-examined on the value that she attributes to her jewelry. The Mother was unable to provide an explanation for the value of some items in her Financial Statement. For other items, she conceded that the value was less and that the Conger’s appraisal was accurate.

[85] Without any reliable corroborating evidence, I am unable to accept the testimony of the Father or Mother. I find that neither party has established the truth of their allegations regarding their failure to disclose the existence of jewelry in their respective possession.

[86] The only reliable evidence before me is that there remains six pieces of jewelry, as appraised by Conger’s. Accordingly, I find that, at the time of separation, the value of jewelry in the Mother’s possession was $16,650.00.

Bank Accounts

[87] At the date of separation, the parties had a joint bank account with the Bank of Nova Scotia. The Father says that the amount remaining in the bank account was $9,684.87, while in the Mother’s most recent NFP, she claims it was $9,284.87. I believe this to be an error on the Mother’s part because in a previous version, she agreed with the Father’s figures. In any event, this issue was not debated at trial.

[88] I accept that the amount of money in the bank accounts is as described in the Father’s most recent NFP statement.

Monies owed by the Father

[89] The Father claims a debt owed to the Mother in the total amount of $100,000, representing $62,599 for breach of contract and $37,401 for damages pertaining to the Mother’s assault claim. This claim is in relation to the Civil Action.

[90] The Father has defended the Civil Action. In his pleading and at trial, he denied that these amounts are not due and owing to the Mother.

[91] Any monies allegedly owed to the Mother have yet to be determined and forms part of the Civil Action. The Father is therefore not able to claim $100,000 as of the valuation date on his NFP statement.

Gaza Strip Property

[92] The most controversial issue at trial was the value to be attributed to the Gaza Strip Property.

[93] Before the marriage, the Father inherited the Gaza Strip Property from his father. The parties agree that the Father is the beneficial owner of 100.62 square metres of property, located in the commercial district in the Gaza Strip

[94] Two experts testified at trial. They were both qualified to give opinion evidence. The Father called Mr. Mohammed Ali Al-Farawi and the Mother called Mr. Majed Saadi Hussein Khayal.

[95] The parties agree that, in 1987, the value of the Gaza Strip Property was $2,000 USD per square meter, representing a value of $270,480 CAD. The parties disagree on the increased value of the Gaza Strip Property.

[96] The Father claims that, at the date of valuation, the Gaza Strip Property was worth $3,000 USD per square meter, for a total value of $395,456. The Mother says that it should be assessed at $6,000 USD per square meter, for a total value of $795,100.

Expert Evidence

[97] At trial, the experts testified that their valuations were based on their personal experiences. Although they both referred to market comparables in their analysis, these comparables were not found on an existing database because such a database does not exist in the Gaza Strip.

[98] Mr. Al-Farawi opined that the Gaza Strip Property should be valued at $3,000 USD per square meters, for reasons that include the following:

1. The Gaza Strip Property forms part of a larger property owned by the Father’s siblings. There have been historical disputes between the siblings, to the point where the Gaza Strip Court has seized the property. These events devaluate the property because the dispute impacts the ability to sell.

2. Over the years, the economy in the Gaza Strip has worsened because of certain events, such as the political group called Hamas taking over the Gaza Strip in or around 2007 and the destruction of the Gaza Strip tunnels as a result of a military coup in or around 2013. Many people in the Gaza Strip lost their jobs over the years and the poverty has increased.

3. Because of the deteriorating economy, there is a lack of investment and commercial transactions in the Gaza Strip. During the years 2015 to 2017, there have been no cash sales of commercial buildings and/or land.

4. It would be very difficult to sell a small portion such as the Gaza Strip Property because of the existing Gaza Strip Court Order seizing the property.

5. In comparing other properties, they are being sold in the range of $3,500 USD to $4,000 USD per square meter. However, because of the Court seizure, the Gaza Strip Property is discounted to $3,000 USD per square meter.

[99] Mr. Khayal opined that the Gaza Strip Property should be valued at $6,000 USD per square meter, for reasons that include the following:

1. Using the sales comparison approach, he identified similar commercial properties that sold in or around the $5,500 USD per square meter range. He did not account for the value of the building, as the focus was on the value of the land.

2. The location of the Gaza Strip Property is unique because it is situated in a commercial shopping district, on a street that is in the middle of the city that runs from East to West of the Gaza Strip.

3. Despite the political and economical strains, the Gaza Strip continued to receive aid in 2016. The purchasing power was mostly affected in 2017, and not 2016. The reason for this decrease in purchasing power is that in 2017, the Palestinian Land Authority (“PLA”) lowered the wages by approximately 30%. Commercial land retained its value in populated areas as opposed to remote areas where the values declined.

4. During the years 2010 to 2013, construction continued in the Gaza Strip and there were some investments being made in land. Examples include the construction of the Gaza Mall in 2010, the Capital Mall in 2012, and a luxury resort in the Gaza Strip in 2013.

[100] I prefer Mr. Khayal’s opinion evidence for several reasons:

1. Despite Mr. Al-Farawi’s 30 years experience, he did not obtain his licence from the PLA to conduct land appraisals and as such, he is not legally authorized to complete land appraisals. When challenged on this fact, he minimized the importance of the PLA, saying that he has conducted many appraisals for the Court in the Gaza Strip, which he claims is recognized by the Court in the Gaza Strip. Throughout Mr. Al-Farawi’s testimony, he arrogantly referred to himself as the “godfather” of appraisals. The Father argued that Mr. Al-Farawi did not mean “godfather” but rather “dean”. I do not agree. Mr. Al-Farawi’s self-importance was clear. He most definitely believes that he is superior to others. In presenting his opinions, I find Mr. Al-Farawi’s testimony to be too categorical and exaggerated.

2. In contrast, Mr. Khayal’s testimony was measured and reasonable. He testified that he is a PLA accredited appraiser, as verified by a filed PLA document, showing that Mr. Khayal’s licence will expire on December 31, 2025. He has attended numerous courses and conferences relating to real estate appraisals. He has provided appraisals for the Gaza Strip Court and he has been appointed as an expert appraiser for the Gaza Strip Court. He was a member of special committees to appraise land in the Gaza Strip, including the Special Municipal Committee to re-appraise the Gaza Strip land, and the Land Authority Special Committee to appraise government lands.

3. Mr. Al-Farawi’s low valuation is based, in large part, upon a Court seizure that prohibits the property from being sold. Mr. Al-Farawi claims to have accessed the documents showing such a Court seizure but he testified that he was not authorized to copy them. Mr. Al-Farawi did not provide any documents in support of his opinion.

4. Mr. Al-Farawi’s valuation was also based on comparables. When asked to provide a list of the comparables, he responded that he did not have it with him, and it was written in a book in his office.

5. On the other hand, Mr. Khayal was able to provide the Court with a list of comparables, which included neighbouring commercial properties, specifically Khayal Mall, Zinnedine building, Kassab building, and Hamada Lands.

[101] Although I prefer Mr. Khayal’s testimony, I nonetheless find his valuation at the date of separation to be excessive. During his cross-examination, Mr. Khayal admitted that his comparables were his own appraisals and that it was only a starting point to the negotiations for the seller and purchaser. He further acknowledged that the $5,500 USD attributed value to his comparables was not the price that one would see as a final price on the close of a transaction. He was also unable to provide a specific example of a significant cash transaction involving the sale of a property in the Gaza Strip in or around 2016 and 2017.

[102] Another difficulty with Mr. Khayal’s valuation is that he did not limit his valuation to the Gaza Strip Property. He assessed the entire property and did not consider that only a portion of the entire property would be sold. Mr. Khayal testified that he could not appraise a piece of the property.

Additional Evidence

[103] As a result of the Mother’s Motion to re-open the trial, additional evidence has been submitted, notably the following:

1. Extract of a record from the Gaza Land Registry, issued on June 16, 2021, of the Father’s updated land registration documents for the property owned by him located at Plot No. 704, Parcel No. 96 (old parcel No. 29), Gaza Al-Jadidah, City- Gaza Al Daraj.

2. Extract of a record from the Gaza Land Registry, issued on June 16, 2021, of the ownership by sale on February 11, 2021, to Abdo Adel Abdo Ghoneim (48.04 sq. m.), Mohamed Nawaf Abdullah Musleh (48.04 sq. m.), and Nahed Mohamed Hashem Daban (96.08 sq. m.) of Plot No. 704, Parcel No. 96 (old parcel No. 29), Gaza Al-Jadidah, City- Gaza Al Daraj.

3. Contract of Sale registered in the Gaza Land Registry Department on February 11, 2021, between Mazin Hilmi Mesbah Abu-Shaban (seller) and Nahed Mohamed Hashem Daban, Abdo Adel Abdo Ghoneim, and Mohamed Nawaf Abdullah Musleh (buyers) for Plot Nno. 704, Parcel 96, City- Gaza Al Daraj.

4. Letter dated June 27, 2021 to the Registrar of the Gaza Magistrate Court from Mr. Issam Abdel Fattah Al- Hamarneh, Director of the General Administration of Land and Real Estate, Gaza Land Registrar. This letter provides the Gaza Court with information that the Land Registry Committee’s estimation of the price of one square meter of Parcel No. 96, Plot No. 704, is set at $3,929 Jordanian Dinars.

[104] The Mother submits that the additional evidence filed with the Court shows that in or around February 2021, the Father’s brother sold his portion of the land (192.17 square meters) to three individuals, for $750,000 USD or at $3,902.79 USD per square meter.

[105] The Mother argues that this additional evidence is relevant because:

1. As of October 26, 2016, the Land Registry extract for the property in question did not indicate any registered seizures. The only indication of a Court Order was due to the severance obtained by Samir Abu-Shaban which removed his name from the co-ownership of the property.

2. It shows that a portion of the property co-owned by the siblings is marketable and can be sold, despite Mr. Al-Farawi’s evidence to the contrary. The three new purchasers identified above have now been listed as the new owners on the Gaza Land Registry.

3. The sale of the Father’s brother piece of land is consistent with Mr. Khayal’s opinion evidence that businessmen get together to buy land.

4. In the Father’s affidavit material to the Motion re-opening the trial, he provided a document entitled Notice of Intent to Sue, whereby the Father’s brother indicates that during the period of 2016 to 2019, he received higher offers to purchase his share of the property, in the range of 6,000 Jordanian Dinars or $8,463 USD per square meter.

5. On June 27, 2021, the Land Registry provided information to the Gaza Court, stating that according to their records, one square meter of the property in question is estimated to be 3,929 Jordanian Dinars or $5,541.46 USD.

[106] The Father disagrees with the Mother and submits that the sale of the Father’s brother portion of the land is irrelevant to the current proceedings because:

1. A sale of a portion of the land in February 2021 is not the same as a sale in December 2016.

2. The Mother has failed to show that the square meter values that are found in the additional evidence ($3,902.79 USD for the sale of the Father’s brother portion of the property and the estimated value assessed by the Land Registry at $5,541.46 USD) are relevant to a December 2016 valuation.

3. The Court heard significant evidence from both experts that from 2016 to the current date, that the Gaza Strip economy has been subjected to numerous stressors and influences. As such, to work backwards from a value arrived at more than 4 years later is a futile exercise.

4. The Notice of Intent to Sue filed in the Father’s affidavit was not made as an exhibit at trial but simply tendered by the Father to demonstrate the existence of the family dissension.

Discussion and disposition

[107] The valuation of the Gaza Strip Property is far from being an exact science and the significant difference between Mr. Al-Farawi and Mr. Khayal’s valuations is a testament of this inexactitude. In my view, the most accurate indicator of the value of the Gaza Strip Property, if available, would be the sale of a similar property on the open market, in or around the time of the date of separation.

[108] While it is difficult to arrive at a figure with precision, I believe that Mr. Khayal’s testimony coupled with the additional evidence filed by the Mother, provides me with sufficient evidence to determine a fair and equitable value of the Gaza Strip Property.

[109] The additional evidence provided by the Mother has some relevance because it dispels Mr. Al-Farawi’s opinion evidence regarding the devaluation of the Gaza Strip Property and the inability to sell the property because of the family discord and Court seizure.

[110] I disagree with the Father’s submission that the brother’s sale of his portion of the land at $3,902.79 USD per square meter is irrelevant to the valuation of the Gaza Strip Property in December 2016.

[111] Mr. Khayal testified that the value of real estate in the Gaza Strip increased from 1987 to 2016 because: (a) the Palestinian Authority became responsible for the Gaza Strip; and (b) the opening of the tunnels between the Gaza Strip and Egypt caused people to crossover freely to these two regions. This had an effect of increasing commercial activity, whereby people would invest and purchase land in the Gaza Strip.

[112] The additional evidence provided by the Mother corroborates Mr. Khayal’s opinion. The Father’s brother sold his portion of the land at approximately $4,000 USD per square meter in 2021, which is in line with Mr. Khayal’s testimony that the value of land in the Gaza Strip decreased in 2017.

[113] That said, I am of the opinion that Mr. Khayal’s value of $6,000 USD per square meter is inflated, especially considering his admissions that the comparables of $5,500 USD per square meter was only a starting point to the negotiations and that he was unable to provide any cash transactions that took place in or around 2016.

[114] For all these reasons, I find that the value for the Gaza Strip Property as of the date of separation is $4,250 USD per square meter. Using the conversion rate of 1.317 (USD to CAD) as at the date of valuation, the value of the Gaza Strip Property is $563,195.30.

[115] The Father claims that there should be an income tax contingency on the capital gain of the Gaza Strip Property, and he proposes a tax rate of 21%. The Mother submits that the valuing for equalization is the value at the time of separation and capital gains should not be considered in the calculation. She argues that the Court should not determine the gains if the property is sold but simply the value of the asset.

[116] I agree with the Father’s position. The Gaza Strip Property is an asset that has a contingent tax liability. In my view, the caselaw is settled on this issue. The value of an asset should be discounted by the tax and/or disposition costs. I adopt the Court’s reasoning in the case C.Z. v. J.Y., 2021 ONSC 256 at paras 144 to 153. I find that the Father’s proposed tax rate of 21% is reasonable. I calculate the income tax contingency at $30,735.11 ($563,195.30 - $270,480 = $292,715.30 / 2 = $146,357.65 X 21%).

Value of debts and other liabilities

Matrimonial Home

[117] It is undisputed that, at the date of separation, the mortgage with RMG Mortgages amounted to $204,059. Although it was solely in the Father’s name, the mortgage is a shared debt between the parties.

Credit Cards

[118] The Mother claims that she had accumulated credit card debt of $186.75 and $410.78 on the TD Visa and Walmart MasterCard, respectively. The Father does not dispute these items.

Loan with Scotiabank

[119] The Mother claims $14,754.90 for a loan with Scotiabank regarding the 2013 Mitsubishi RVR. This item is not disputed by the Father.

Household Bills - Sears

[120] The Mother claims $700.00 for an outstanding payment regarding the air conditioner. This amount is not disputed by the Father.

Basma Baraket Debt

[121] The Father claims $2,000 for a debt owed to the maternal grandmother. He argues that it is a liability that existed at the time of the separation.

[122] Approximately two years after the separation of the parties, the maternal grandmother commenced an action against the Father and Taysir Alsousi (the “Defendants”), claiming that she had lent them the sum of $3,000 USD, which remained unpaid.

[123] The matter was resolved at a Settlement Conference in or around December 2019 where the Defendants agreed to pay the sum of $2,000 CAD to the maternal grandmother. There is no evidence before me regarding Taysir Alsousi’s participation in the settlement and/or his contribution towards the settlement.

[124] I find that there is insufficient evidence before me to support the quantum of the Father’s claim and that this is a proper liability that existed as of the date of separation.

Family Loans

[125] The Father claims that he owes $112,036 to his brother and sister. The Mother claims that she owes the total sum of $61,322.85 to her brothers and the maternal grandmother. I reject both claims.

[126] Regarding the Father’s loans, as noted earlier, the Father was ordered to produce loan agreements. He testified at trial that none exist. He also said that he is obligated to repay the loans when he has money.

[127] The Mother claims that she was unaware that the Father’s siblings had loaned him money.

[128] The Father’s siblings have not filed any supporting affidavits confirming the existence of these loans. The Father’s siblings did not testify at trial. Given that this trial was conducted entirely by Zoom, it would have been easy to call the Father’s siblings as witnesses to confirm the personal loans. He did not. I draw an adverse inference from his failure to do so. In the absence of any corroborating evidence that the money transferred were loans as opposed to gifts, I am not persuaded that the Father owes any monies to his siblings.

[129] Turning to the Mother’s claim, she testified that she borrowed money from the maternal grandmother and her brothers for a variety of reasons, such as paying for in vitro fertilization treatments, Nadine’s private school expenses, travel to the United States and payment of taxes. The Mother said that hand-written promissory notes were prepared by her and signed by her, at the time of the loan. She explained that she agreed to an annual rate of 7% and that payment would be made upon demand or upon her financial ability to pay it back, whichever came first.

[130] During cross-examination, the Mother admitted that the monies borrowed from the maternal grandmother was in the form of cash and there is no record of the transaction. With respect to the loan from her brother Maher Abou-Shaban, she said that part of the loan was for plane tickets that he had purchased for family vacations in San Diego. The Mother also testified that part of the monies received from her siblings was used to pay taxes in 2014.

[131] The maternal grandmother testified that she lent money to the Mother. When asked if she expected to be repaid, she responded yes because her daughter told her that she was going to repay her when she had money.

[132] The Mother’s brother, Mazen Abou-Shaaban testified that he also lent money to the Mother. Similar to the maternal grandmother’s testimony, he said that he expects to be paid back by his sister.

[133] I am not satisfied with the Mother’s evidence for the following reasons:

1. I question the reliability of the promissory notes. They all appear the same, despite the first promissory note being executed in 1996 and the last in 2016.

2. The interest rate of 7% raises suspicions. Regardless of the passage of time between the first and last promissory note (20 years), the interest rate remains the same.

3. I am unable to determine when the promissory notes were generated, when they were signed and how the funds were advanced to the Mother.

4. Although the maternal grandmother and the Mother’s brother testified that they expect to be repaid by the Mother, neither of them ever demanded payment. Some of the debts are old. One of the brother’s loans dates to 1996, while the maternal grandmother’s first loan is 2011. Given the passage of time, I find that there was a limited expectation that the monies advanced would be repaid and it is unlikely that the Mother would have been called upon to repay any of the loans.

5. The largest loan was from the Mother’s brother Maher Abou-Shaban in the amount of $33,648.98. Mr. Abou-Shaban did not testify and I draw an adverse inference for his failure to do so.

6. The Mother’s explanation that one of the loans by her brother was to be used for the payment of taxes in 2014 is unbelievable. The Mother’s 2014 tax assessment shows that the taxes were paid by installment and no monies were due and owing.

7. The Father was unaware of the Mother’s loans to the maternal grandmother and her siblings.

Property, debts and other liabilities on date of marriage

Father’s savings

[134] The Father submits that, at the date of marriage, he had accumulated the equivalent of $125,000 CAD in savings. He testified that by the time he married the Mother in 1987, he had been working for seven years. In 1994, he immigrated to Canada as an entrepreneur and he declared the value of his assets to be $210,000 CAD.

[135] The Father claims that he could not find any corroborating bank documents. He testified that, as part of the immigration application, he had shown the authorities the bank statements. However, he said that there was no reason to keep the bank statements.

[136] The Mother accurately points out that the Father has kept other older documents that formed part of the immigration application such as documentation estimating the value of land that he owned in 1992, proof of inheritance, jewelry appraisals and jewelry receipts. She argues that without credible evidence to support the deduction, same should not be allowed. I agree.

[137] The Father asserts that his best evidence on this issue is his viva voce evidence. However, for reasons described earlier, I have concluded that the Father is not credible.

[138] While the Father may have had some savings at the date of marriage, I find that $125,000 is substantial savings that does not coincide with any evidence before me regarding the Father’s ability to accumulate savings. For much of his working life, he has earned a modest income and he had to rely on his siblings to pay some of his day to day expenses.

[139] Considering my finding on the Father’s credibility and without any records to substantiate his oral evidence, I find that the Father has not satisfied his onus of proving the value of his asset. I therefore make no allowance for this deduction.

Jewelry owned before marriage

[140] The Mother seeks a deduction of $34,261.20 for the wedding ring given to her at the engagement.

[141] The Father admitted at trial that he gave the Mother two pieces of jewelry (wedding ring and wedding band) at the engagement, which took place at the signing of the marriage contract, approximately one month before the marriage ceremony.

[142] The most reliable evidence available regarding the value of the jewelry remains the Conger’s appraisal. The two pieces of jewelry have been appraised at $10,000.

[143] The Mother’s deduction is limited to $10,000.

Value of property excluded under s. 4(2) of the Family Law Act (“FLA”)

[144] The Mother seeks to exclude four pieces of jewelry that were gifts from her family: a necklace from the maternal grandmother valued at $1,850 and three bracelets given by the paternal grandfather, Maher and Mazen, valued at $1,750, $1,300, and $1,750, respectively.

[145] The Father does not dispute that the Mother received these pieces of jewelry from her family. The values were determined by Conger’s appraisal.

[146] I accept the Mother’s claim.

Summary – Net Family Property

[147] Based on my findings, I have calculated the parties’ net family property as follows:

Assets on valuation date

Father

Mother

Matrimonial home

$159,000.00

$159,000.00

Vehicles

$19,754.90

Jewelry

$16,650.00

Bank Accounts

$8,006.37

$686.88

Gaza Strip Property

$563,195.30

Total 1 – Value of Property on valuation date

$730,201.67

$196,091.78

Debts & Liabilities on valuation date

Matrimonial home (mortgage)

$102,030.00

$102,030.00

Credit cards

$597.53

Scotiabank loan

$14,754.90

Household bills – Sears

$700.00

Income Tax Contingency (Gaza Strip Property)

$30,735.11

Total 2 – Value of Debts on valuation date

$132,765.11

$118,082.43

Net worth on date of marriage

Gaza Strip Property

$270,480.00

Jewelry

$10,000.00

Minus debts

N/A

N/A

Total 3 – Value of all assets less debts on the date of marriage

$270,480.00

$10,000.00

Value of excluded property

Jewelry

$6,650.00

Total 4 – Value of excluded property

$6,650.00

Calculation of Net Family Properties

Total 1

$730,201.67

$196,091.78

Minus Total 2

($132,765.11)

($118,082.43)

Minus Total 3

($270,480.00)

($10,000.00)

Minus Total 4

($6,650.00)

=Net Family Property

$326,956.56

$61,359.35

[148] The Father’s NFP exceeds the Mother’s NFP by $265,597.21 ($326,956.56 - $61,359.35), meaning that the Mother is entitled to an equalization payment of $132,798.61 (50% of $265,597.21).

Issue #4: Is the Father liable for occupation rent?

[149] The Mother seeks the sum of $9,319.44 as occupation rent for the period of January 1, 2017 until December 31, 2020. She was permitted by Audet J. to amend her Answer to make a claim for occupation rent on October 16, 2018.

[150] On April 26, 2019, the Mother obtained a rental appraisal from Wieland & Associates, who concluded that the fair market rental value for the matrimonial home is between $1,700 to $1,900 per month. In arriving at the figure for occupation rent, the Mother used $1,800 as an average monthly rent and she deducted the mortgage and prop

[151] An award of occupation rent is discretionary and can be made if it is reasonable and equitable to do so: see Griffiths v. Zambosco, 2001 24097 (ON CA), [2001] O.J. No. 2096 at para. 49.

[152] The common factors to consider when occupation rent is in issue include: (a) the timing of the non-resident spouse’s claim for occupation rent; (b) the circumstances under which the non-resident spouse left the home; (c) the duration of the exclusive occupancy; (d) whether the non-occupying spouse moved for the sale of the home; (e) the inability of the non-resident spouse to realize on their equity in the property; (f) any financial hardship experienced by the non-resident spouse as a result of being deprived of their equity in the property; (g) any reasonable credits to be set off against occupation rent for expenses associated with the home; (h) the conduct of both spouses, including any failure to pay support; (i) whether children resided with the occupying spouse and, if so, whether the non-occupying spouse paid child support; (j) whether the occupying spouse has increased or decreased the selling value of the property; and (k) any other competing financial claims in the litigation: see Saroli v. Saroli, 2021 ONSC 4450 at para. 312.

[153] The Father has had exclusive possession of the matrimonial home since the date of separation. His eldest daughter May resides with him. He unilaterally changed the locks shortly after the Mother’s departure from the matrimonial home.

[154] The Father refused to provide the Mother with access to her home. When it was put to the Father during cross-examination that the Mother was part owner of the matrimonial home, he arrogantly responded “I don’t care”.

[155] The Mother alleges that the matrimonial home is in disarray because of rabbits living in one of the rooms as well as the Father’s failure to repair the damage to certain areas of the home. The Mother wanted to have the home cleaned professionally but this was refused by the Father.

[156] The Father claims that the house only needs minor repairs, which he says will be done by the time the house is put on the market for sale. He will also remove the rabbit cages and ensure that the house is presentable to receive the maximum value.

[157] As early as March 2017, the parties were contemplating selling the matrimonial home. In or around October 2019, the parties agreed to sell the matrimonial home, but they disagreed on the distribution of sales proceeds. The Father demanded payment of 50% of the sales proceeds but the Mother refused. The house was not listed for sale.

[158] The Father has been paying all carrying charges to the matrimonial home since the separation. He claims that his eldest daughter May does not contribute to the home expenses. On May 18, 2019, Shelston J ordered the Father to provide a letter from May outlining her financial contribution to the matrimonial home. The Father did not comply with this Court Order because he says that she does not contribute anything.

[159] Although I find that the Father’s conduct regarding the events surrounding the matrimonial home was entirely inappropriate during these past four years, I nonetheless conclude that occupation rent is not warranted.

[160] The common factors that militate against making an Order for occupation rent are:

1. The Mother claims that she was forced out of the matrimonial home because of the abuse, but as noted earlier, I make no findings to this effect.

2. The Mother did not initially make a claim for occupation rent and waited approximately two years post-separation before making such a claim.

3. The Mother did not take immediate steps following the separation to force the sale of the matrimonial home. Leave to bring a Motion for the sale of the home was only granted on July 17, 2019, by Beaudoin J. The Mother took no formal steps to schedule the Motion.

4. The Father has paid all carrying costs of the matrimonial home, estimated to be approximately $1,500 per month.

5. Despite the Mother’s claim that the matrimonial home is in disarray, there is insufficient evidence before me to conclude that the value of the matrimonial home has detrimentally decreased in value because of the Father’s occupation of the matrimonial home.

6. After the separation, the Mother moved in with the maternal grandmother and her youngest daughter Nadine. The Mother has not provided me with sufficient evidence to show that she experienced financial hardship because of being deprived the equity in the matrimonial home.

[161] I am not satisfied that, in the totality of the circumstances of this case, an award of occupation rent is reasonable and/or equitable.

Issue #5: What are the terms and conditions for the sale of the matrimonial home?

[162] The parties agree to sell the matrimonial home. Having reviewed the draft orders proposed by the parties, I find the following terms and conditions to be appropriate in the circumstances:

1. The property municipally known as 147 Margrave Avenue, Ottawa, Ontario, shall be listed for sale forthwith.

2. The Father shall sign the listing for the sale of the home with real estate agent Khalid Malik, and any other required documentation for its sale.

3. The Father shall allow Mr. Malik all reasonable access to the property to inspect and photograph the home and determine a list price, as agreed upon both parties.

4. The Father shall maintain the home in good condition and shall prepare the home as directed by Mr. Malik. The pet rabbits, their cages and related paraphernalia belonging to May shall be removed and that room shall be made presentable. The Father shall follow any other recommendations made by Mr. Malik, including cleaning the home, or removing other items that may negatively impact the sale of the home.

5. The Father shall make the home available for viewings from 9:00 a.m. to 6:00 p.m., as requested by Mr. Malik.

6. The parties shall jointly retain and instruct a qualified real estate lawyer to pay the usual closing expenses, including without limitation, the encumbrances, real estate commission, property taxes, utilities or municipal fees that are outstanding, legal fees and disbursements associated with the sale.

7. The balance of the proceeds of sale shall be held in trust by the real estate lawyer, pending written agreement of the parties on the distribution or further Court Order.

[163] If either party requires further direction regarding the above, either party may contact the Trial Coordinator and request a Motion for directions before me.

Issue #6: Is spousal support payable by the Father?

[164] During closing submissions, the Mother stated the following: “giving priority to child support, there shall be no ongoing spousal support or spousal support arrears. Spousal support can be reviewed when the obligation to pay child support changes.”

[165] I disagree with the Mother’s position. Spousal support should not be reviewed.

[166] The Mother has not satisfied me that she is entitled to spousal support. She obtained a master’s degree to teach English as a foreign language and she worked from 2005 until 2014. The Mother stopped working because of an injury. She commenced legal proceedings against third parties for damages, including an economic loss. This lawsuit against the third parties is still pending.

[167] According to T1 Summaries or Notices of Assessment, the Mother earned income as follows:

1. 2013: $21,833

2. 2014: $18,055

3. 2015: $13,901

4. 2016: $8,753

5. 2017: $23,142

6. 2018: $25,150

7. 2019: $30,575

[168] For years 2014, 2015 and 2016, deductions were used for in home office and depreciation of auto assets, which reduced the Mother’s net income. In my view, on average, the Mother’s income has been on par or more than the Father’s income.

[169] Given my finding that the Father is not intentionally under-employed or unemployed coupled with the evidence before me regarding the Mother’s work history and her income, I am not satisfied that the Mother has shown entitlement to compensatory and/or non-compensatory support.

[170] The Mother’s spousal support claim is dismissed.

SUMMARY

[171] Based on the reasons set out in this judgment, I make the following final orders:

1. A Divorce Order to issue upon receipt of a valid clearance certificate.

2. The Father shall pay to the Mother the sum of $812.94 under the marriage contract. This amount to be paid from the Father’s 50% share of the proceeds of sale of the matrimonial home.

3. Commencing February 1, 2021, the Father shall pay child support to the Mother for the child Nadine Abu Shaban, born on June 13, 2001, in a monthly amount to be calculated by the parties in accordance with these Reasons for Judgment.

4. Child support arrears owing by the Father and payable to the Mother for the period of May 1, 2017 to January 31, 2021, shall be fixed in an amount to be calculated by the parties in accordance with these Reasons for Judgment. This amount to be paid from the Father’s 50% share of the proceeds of sale of the matrimonial home.

5. Section 7 expenses for Nadine Abu Shaban from May 1, 2017 to present are fixed at $283.20. The proportionate amount owing by the Father and payable to the Mother shall be calculated by the parties in accordance with these Reasons for Judgment. This amount to be paid from the Father’s 50% share of the proceeds of sale of the matrimonial home.

6. Ongoing section 7 expenses for Nadine Abu Shaban shall be shared in proportion to the parties’ income, the percentage of which shall be calculated by the parties in accordance with these Reasons for Judgment. The Mother shall not incur section 7 expenses without the prior written consent of the Father, which consent shall not be unreasonably withheld.

7. Within 30 days of these Reasons for Judgment, the Father is to provide a list to the Mother of the remaining household furnishings and goods. The parties are to equally divide same amongst them.

8. The Father shall pay to the Mother an equalization payment in the amount of $132,798.61. This amount to be paid from the Father’s 50% share of the proceeds of sale of the matrimonial home, if funds are available, and any remaining amounts shall be due and owing until paid off.

9. The property municipally known as 147 Margrave Avenue, Ottawa, Ontario, shall be listed for sale forthwith.

10. The Father shall sign the listing for the sale of the home with real estate agent Khalid Malik, and any other required documentation for its sale.

11. The Father shall allow Mr. Malik all reasonable access to the property to inspect and photograph the home and determine a list price, as agreed upon both parties.

12. The Father shall maintain the home in good condition and shall prepare the home as directed by Mr. Malik. The pet rabbits, their cages and related paraphernalia belonging to May shall be removed and that room shall be made presentable. The Father shall follow any other recommendations made by Mr. Malik, including cleaning the home, or removing other items that may negatively impact the sale of the home.

13. The Father shall make the home available for viewings from 9:00 a.m. to 6:00 p.m., as requested by Mr. Malik.

14. The parties shall jointly retain and instruct a qualified real estate lawyer to pay the usual closing expenses, including without limitation, the encumbrances, real estate commission, property taxes, utilities or municipal fees that are outstanding, legal fees and disbursements associated with the sale.

15. The balance of the proceeds of sale shall be held in trust by the real estate lawyer, pending written agreement of the parties on the distribution or further Court Order.

16. The Mother’s claim for spousal support is dismissed.

[172] If there is an arithmetic error in any of my calculations or if there is a disagreement amongst the parties on any matters arising from this decision, either party may seek an appointment before me through the Trial Coordinator.

[173] I encourage the parties to agree on the issue of costs. If they are unable to do so, the Mother may deliver written submissions (limited to five pages excluding her Bill of Costs and Offers to Settle), within 90 days of the date of these Reasons for Judgment. The Father may then deliver responding written submissions (limited to five pages excluding his Bill of Costs and Offers to Settle), within 30 days of the receipt of the Mother’s submissions. The Mother may then deliver any reply submissions (limited to one page in length), if necessary, within 15 days of the receipt of the Father’s submissions.

[174] Despite the acrimonious nature of these proceedings as between the parties, counsel should be commended for conducting themselves with the highest degree of professionalism and integrity, as well as for their excellent presentation of this case.

M. Smith J

Released: January 10, 2022