COURT FILE NO.: FS-21-26711
DATE: 20221213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Felix Salman Youssef Applicant
– and –
Haifaa Arab AKA Haifaa Salman Youssef Respondent
Self-Represented Applicant
Maood Tahir and Wasique Rakib, for the Respondent
HEARD: May 9 and 10, and December 8, 2022
PINTO J.
Overview
REASONS FOR JUDGMENT (UNCONTESTED TRIAL)
[1] This was a three-day uncontested trial where the applicant father did not participate and the respondent mother requested the following orders:
(a) That the court in Ontario have jurisdiction over the matter;
(b) The mother have sole decision-making over R, the parties' 9-year old son, who resides with the mother;
(c) The father have supervised parenting time with R;
(d) The father pay child support to the mother in the amount of $7,607 per month starting on November 1, 2021 based on the father's imputed annual income of
$400,000;
Facts
(e) The father pay spousal support to the mother starting August 1, 2021 based on the father's imputed annual income of $400,000 and the mother's income of $28,000;
(f) The father pay 50% of the proceeds of sale of properties sold during the marriage;
(g) The father pay $1,910,885 to the mother, representing an equalization amount of
$1,473,317.50 plus $436,567.50 (50% of depleted profits from six out of the seven properties excluding profits of the Tilford Road property);
(h) An order tracing and freezing the worldwide assets of the father;
(i) A restraining order be issued against the father; and
(j) Costs.
[2] The parties were married on December 23, 2012 in Ontario and separated on July 29, 2021.
[3] The parties have a son R, now 9, born April 18, 2013.
[4] The mother, 48, and child R, are Canadian citizens. The father, 46, is a Spanish citizen who was born in Syria. The mother came to Canada as a skilled immigrant in 2005.
[5] The father moved to Qatar in 2014 for work. Each party travelled back and forth with the child between Ontario and Qatar.
[6] The child completed grade one and two at a school in Milton, Ontario in 2019-20 and 2020- 21.
[7] The mother has three children, now all adults, from a previous relationship.
[8] The mother alleges that due to psychological and verbal abuse from the father, she experienced an emotional and mental breakdown on December 17, 2020 and attempted suicide. On December 18, 2020, the father returned to Ontario and stayed until January 2, 2021.
[9] In January 2021, the mother visited Qatar with the child with the intention of moving there with the father. Initially, the child attended school in Ontario virtually from Qatar, however, due to the difference in time zones this proved difficult. The father and child returned to Ontario in April 2021 where the child completed his grade two year.
[10] On or around April 13, 2021, the mother provided the father with a general Power of Attorney (POA) so that he could sell everything in Canada with the intention that the family move to New Zealand. At the time, the mother did not know what amounts the father received from
selling the parties' property.[^1] She believes that the father misused the POA in order to try to defeat her right to equalization of net family properties.
[11] On July 25, 2021, the father returned to Qatar with the child.
[12] On July 29, 2021, the father called the mother, who was in Turkey at the time, and told her "don't come back, I don't want you anymore in my life."
[13] In August 2021, the parties retained counsel to finalize a Separation Agreement. The father has since terminated his retainer with his then counsel.
[14] The mother, through her lawyer, received a letter from Karl Chebil, a Canadian lawyer practicing in Qatar, dated November 1, 2021 enclosing a draft Separation Agreement.
[15] On November 1, 2021, the mother travelled to Qatar with the intention of finalizing the Separation Agreement. On November 4, 2021, the father dropped the child off in his school uniform at the mother's hotel. He gave the mother the child's Canadian passport and his Qatari ID. The mother sought the assistance of the Canadian Consulate in Qatar. She returned to Ontario with the child on November 9, 2021.
[16] On November 19, 2021, the father commenced proceedings in the Ontario Superior Court of Justice by way of an ex-parte urgent motion requesting that the child be immediately returned to Qatar, the child's purported habitual residence. On November 22, 2021, Justice Shore ordered that the child not be removed from Ontario, and that the mother deliver the child's passport to the father's Canadian lawyer for safekeeping pending further court order or agreement between the parties.
[17] On December 2, 2021, following an urgent Case Conference, Justice Hood made disclosure and related orders setting up a trial to commence on May 9, 2022. The father consented to the child being enrolled in the catchment area of the mother's residence without prejudice to his position that the correct jurisdiction to resolve the parties' dispute is Qatar, and that the child should be returned there.
[18] As of the time of trial, the last time that the father had contact with the child was via virtual parenting time on December 19, 2021 when he spoke to the child for approximately one hour. The mother deposed that the father has not asked for further parenting time.
[19] The father was required by Justice Hood's order to file affidavit material by December 22, 2021. The father asked for an extension of time to January 15, 2022, which extension was consented to by the mother.
[^1]: At trial, the mother presented evidence of properties purchased and sold by the father and the profits he made.
[20] In a letter dated December 21, 2021, Asmaa AlQuradaghi, a new lawyer retained by the father in Qatar, advised the mother through counsel that the father was filing a Divorce Application in Qatar and that the mother was being reported to Interpol for kidnapping the child. The email further advised that the child is a Spanish citizen. The mother states that she has no knowledge of the child being or becoming a Spanish citizen and that she has never provided her consent in this regard. Subsequently, the father clarified in an email that the child is not a Spanish citizen.
[21] The mother enrolled the child in a school in Mississauga, Ontario and informed the father of this development.
[22] On January 7, 2022, the father's Canadian lawyer, Mr. Tobin, sent the mother a Divorce Certificate that was issued in Qatar on December 16, 2021. The mother deposed that she never received any notice of the divorce proceeding and that the address that the father sent the Notice to was the father's address in Qatar. In the same correspondence, Mr. Tobin advised the mother that he is no longer representing the father.
[23] The mother made inquiries with the Qatar court as to how a Divorce Certificate could be issued without her being notified of the proceeding but did not hear back from the court.
[24] The mother brought an urgent ex-parte motion on March 30, 2022 before Papageorgiou J. who ordered, on an interim basis, that the mother would have sole decision-making responsibility. A further 15 days extension was provided to the father to comply with the order of Hood J. to file affidavit material. On April 4, 2022, the mother's counsel sent the order of Papageorgiou J. to the father's counsel in Qatar.
[25] A further Case Conference took place on April 12, 2022, but the father did not attend.
[26] The father also did not attend the Trial Management Conference on April 22, 2022.
[27] On May 5, 2022, the father sent emails to the mother claiming, inter alia, that he is not defending himself because the parties lived together and they had an agreement that was binding on them, that he had nothing to claim from the mother, and that their life together had come to an end.
[28] The Uncontested Trial took place in person over two days, May 9 and 10, 2022. The only person who testified was the mother. She provided a Trial Affidavit, an Affidavit for Uncontested Trial and viva voce evidence. The mother provided written submissions dated May 13, 2022. I requested and received further oral submissions from the mother's counsel via Zoom on December 8, 2022, and further written submissions on December 10, 2022.
[29] The mother and child continue to reside in Ontario.
The Law
[30] The relevant sections of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) state:
Jurisdiction
22 (1) A court shall only exercise its jurisdiction to make a parenting order or contact order with respect to a child if,
(a) the child is habitually resident in Ontario at the commencement of the application for the order; or
(b) the child is not habitually resident in Ontario, but the court is satisfied that,
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario.
Habitual residence
(2) A child is habitually resident in the place where the child resided in whichever of the following circumstances last occurred:
With both parents.
If the parents are living separate and apart, with one parent under a separation agreement or with the consent, implied consent or acquiescence of the other or under a court order.
With a person other than a parent on a permanent basis for a significant period of time.
Abduction
(3) The removal or withholding of a child without the consent of all persons having decision-making responsibility with respect to the child does not alter the habitual
residence of the child unless there has been acquiescence or undue delay in commencing due process by the person from whom the child is removed or withheld.
Serious harm to child
23 Despite sections 22 and 41, a court may exercise its jurisdiction to make or vary a parenting order or contact order with respect to a child if,
(a) the child is physically present in Ontario; and
(b) the court is satisfied that the child would, on the balance of probabilities, suffer serious harm if,
(i) the child remains with a person legally entitled to decision-making responsibility with respect to the child,
(ii) the child is returned to a person legally entitled to decision-making responsibility with respect to the child, or
(iii) the child is removed from Ontario.
Best interests of the child
24 (1) In making a parenting order or contact order with respect to a child, the court shall only take into account the best interests of the child in accordance with this section.
Primary consideration
(2) In determining the best interests of a child, the court shall consider all factors related to the circumstances of the child, and, in doing so, shall give primary consideration to the child's physical, emotional and psychological safety, security and well-being.
Issue #1: Did the father abandon his application?
[31] The mother is seeking that the application be dismissed with costs against the father because the father abandoned his application.
[32] The application was commenced on November 19, 2021 in the Ontario Superior Court of Justice. The primary relief sought in the application is that the child be immediately returned to "his habitual residence of Doha, Qatar pursuant to s.40 of the CLRA."
[33] The application claims that the parties separated on November 30, 2020.
[34] I find that the father abandoned his application. The father did not comply with the orders of Hood J. or Papageorgiou J. to provide disclosure. The father did not attend the Case Conference on April 12, 2022 or the Trial Management Conference on April 22, 2022. In the Trial Scheduling Endorsement Form (TSEF), Sanfilippo J. indicated "though the Applicant-Father initiated these proceedings against the Respondent-Mother. But later he has abandoned these proceedings."
[35] The father and his counsel were properly served with all pre-trial and trial materials of the mother, but the father did not participate in the Trial and did not provide any explanation for not participating.
Issue #2: Does the Ontario Superior Court of Justice have jurisdiction over this matter?
[36] Under section 22 of the CLRA, I find that this court has jurisdiction over this matter as R was habitually resident in Ontario at the commencement of the application on November 19, 2021.
[37] In the alternative, if I am wrong and R is not habitually resident in Ontario, I am satisfied that:
(i) the child is physically present in Ontario at the commencement of the application for the order,
(ii) substantial evidence concerning the best interests of the child is available in Ontario,
(iii) no application respecting decision-making responsibility, parenting time or contact with respect to the child is pending before an extra-provincial tribunal in another place where the child is habitually resident,
(iv) no extra-provincial order respecting decision-making responsibility, parenting time or contact with respect to the child has been recognized by a court in Ontario,
(v) the child has a real and substantial connection with Ontario, and
(vi) on the balance of convenience, it is appropriate for jurisdiction to be exercised in Ontario
[38] R was born in Ontario in April 2013 and raised here. The father moved for work to Qatar in 2014 and did not take the child. The mother was R' s primary parent and while the mother and R occasionally visited Qatar, the only time R lived in Qatar was from January to April 2021, and from July 25 to November 9, 2021.
[39] The parties never entered into a Separation Agreement.
[40] While the parties were discussing a potential Separation Agreement, on November 4, 2021, the father brought R to the hotel in Qatar where the mother was staying and left the child there.
[41] The child has no real and substantial connection with Qatar. When the child left Qatar on November 9, 2021 there were no pending court orders or applications regarding the child in Qatar.
[42] Conversely, the child has a strong connection to Ontario having attended kindergarten and completed Grade 1 and Grade 2 here as well.
[43] As of the time of trial, the child was enrolled in a public school in Mississauga, Ontario. The child's half-siblings are present in Ontario as well.
[44] Ontario is the jurisdiction where the child spent a significant amount of time with one party, the mother.
[45] This is not a Hague Convention[^2] case. The father brought his application under section 40 of the CLRA. The approaches under the Hague Convention and section 40 of the CLRA are not interchangeable: Geliedan v. Rawdah, 2020 ONCA 254, at para. 30.
[46] In the further alternative, if I am wrong about Ontario taking jurisdiction under section 22 of the CLRA, I would find that Ontario has jurisdiction under section 23 of the CLRA as I am satisfied, on a balance of probabilities, that the child would suffer serious harm if returned to Qatar. The mother is fearful to travel to Qatar as she may be arrested and the child can be withheld by the father. Qatar is a not a signatory to the Hague Convention and is presumed not to deal with parenting in relation to the children's best interests: Geliedan, at para. 38.
Issue #3: Who should have decision-making responsibility over R?
[47] The law concerning parenting was aptly expressed in Saeed v. Khalid, 2020 ONSC 939 per Dennison J.:
[39] Section 16(1) of the Divorce Act, R.S.C., 1985, c. 32 (2nd Supp.) provides that a court may make an order respecting custody of, or access to, a child of the marriage on application by a spouse or another person. Section 16(4) of the Divorce Act clarifies that in making an order under section 16, the court may grant custody and/or access to more than one person.
[40] Section 16(8) states that the sole criterion for determining custody and access issues is "the best interests of the child … as determined by references to the condition, means, needs and other circumstances of the child". As the Supreme Court of Canada stated in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 S.C.R. 3, the best interests must be determined from the perspective of the child, rather than from the parent's perspective.
[^2]: Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, 1343 U.N.T.S. 22514 (entered into force 1 December 1983).
[41] Section 16(10) of the Divorce Act states that the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child. The goal of maximum contact with each parent is not absolute but should only be restricted to the extent that it conflicts with the best interests of the child.
[42] While the Divorce Act does not set out a detailed list of factors in determining the best interests of the child, the jurisprudence often refers to the criteria set out in the relevant provincial or territorial legislation. In Ontario, the relevant provision is s.24 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. Section 24 states,
(1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
[43] In determining the best interests of the children, courts will generally give deference to the status quo, although it is not determinative: Poole v. Poole, 1999 BCCA 203, at para. 23.
[48] I find that it is in the best interests of R that the mother have sole decision-making responsibility over him. Relatedly, I find that the mother should be authorized to apply for and renew any government issued documentation including passports, birth certificates, travel documents without the consent or signature of the father. And I find that the mother should be permitted to travel with the child without the consent or signature of the father.
[49] The mother has always been R's primary parent and caregiver. The father left for overseas in 2014 when R was a baby and continues to reside in Qatar. But for a few months in 2021, the father has spent little parenting time with R, albeit the father provided for the family financially.
[50] The evidence suggests that that, on separation, the father intended to cut the mother out of R's life, and that the father involved the child in the parties' marital conflict by, inter alia, falsely suggesting to the child that the mother was involved with other men during the marriage, and that the mother does not care for the child.
[51] Finally, the evidence is that the parties do not communicate well and certainly not to the degree required to award joint decision-making to the parties. Joint custody (now decision-making responsibility) should not be ordered where there is poor communication and the parties fundamentally disagree on too many issues affecting the child's best interests: Graham v. Butto, 2008 ONCA 260 and Roy v. Roy, 2006 CanLII 15619 (ON CA), [2006] O.J. No. 1872 (CA).
Issue #4: What kind of parenting time for the father is warranted?
[52] I find that the father should have supervised parenting time with the child using the services of an independent agency at the times and location solely determined by the mother, unless the parties otherwise agree or with further order of the court. The cost of such supervision by an independent agency should be borne solely by the father. I find that a non-removal order is also warranted such that the father shall not remove the child from the Greater Toronto Area without the prior written consent of the mother, or further order of the court.
[53] The father abandoned his application. He breached court orders regarding financial disclosure. He lives in Qatar, a non-signatory nation under the Hague Convention. There are flight- risk concerns if the father has unsupervised parenting time with the child. In any event, the father has not physically parented the child in over a year. While supervised parenting is rarely a long- term solution, circumstances may warrant supervised parenting for the foreseeable future: Lakhtakia v. Mehra, 2022 ONSC 20 at paras. 412 and 413.
Issue #5: What child support should the father pay to the mother in respect of R?
[54] Section 15.1(1) of the Divorce Act states that on application, a court of competent jurisdiction may make an order requiring a spouse to pay child support.
[55] In determining the quantum of child support owed, the Federal Child Support Guidelines, SOR/97-175, provide that the quantum of child support is determined having regard to the payor's income and the number of children: s. 3(1).
[56] Further, as stated in Saeed:
[96] Sections 15-20 of the Federal Child Support Guidelines are the starting point for the calculation of child support. The goal is to ascertain current income of the payor spouse.
[97] [deleted]
[98] Section 19 of the Federal Child Support Guidelines permits the court to impute income that the court thinks is appropriate in the circumstances, including circumstances where the spouse has failed to provide financial disclosure when under a legal obligation to do so: s. 19(1)(f). In this case, Mr. Khalid was under a legal obligation to provide disclosure regarding his income.
[99] Determining the amount of income to impute to a party is a matter of discretion for the trial judge. The only limitation on the discretion of the court is that there must be some basis in the evidence for the amount that the court has chosen to impute: Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711 (C.A.), at para. 43.
[100] Although the onus is on the party seeking to impute income, once the party has established a prima face case, the onus shifts to the person seeking to defend the income position the payor takes. The reason for this is that the information that can actually determine the person's income is in their possession and no one else's. It is not fair to expect the person seeking to impute income to bear the entire onus of proving the imputation of income: Lo v. Lo, 2011 ONSC 7663, at para. 57.
[101] Where a party fails to provide income information, s. 23 of the Federal Child Support Guidelines allows the court to draw an adverse inference and to impute an income to the spouse that the court considers appropriate based on the evidence available: Jassa v. Davidson, 2014 ONCJ 698, at para. 35; Smith v. Pellegrini, 2008 CanLII 46927 (Ont. S.C.), at para. 34; Sharma v. Sharma, 2018
ONSC 862, at para. 71.
[57] The father failed to provide a Financial Statement (Form 13.1) in this proceeding and did not provide any financial disclosure. The mother was able to produce, among other items, a joint account bank statement.
[58] The mother requests that I find that the father's income is at least $400,000 annually. I am prepared to do so for the following reasons.
[59] The mother produced the father's "Employment Contract of Indefinite Duration" with Puentes Construction Gulf WLL dated "01/07/2010" - either January 7, 2010 or July 1, 2010 - wherein the father's basic monthly pay is 32,962 Qatari Riyal per month. The mother also produced the father's "Salary Certificate" from Puentes dated September 20, 2016 which shows that the father earned 46,194.57 Qatari Riyal per month.
[60] The mother testified that, as of 2020, the father was paid 50,000 Riyal per month and then it went up to 55,000 Riyal more recently. The mother testified that the conversion rate for one Canadian dollar is approximately 2.8 Qatari Riyal. Accordingly, proceeding on the basis that the father's monthly income is 55,000 Riyal, his yearly income is CAD $235,714.28 (55,000 / 2.8 x 12 months) from base salary income alone.
[61] The mother testified that it was evident that, in addition to his salary from Puentes, the father was earning large commissions from deals associated with his business activities, the details of which she is unaware. The mother produced bank statements from the parties' joint TD Trust bank account from August 8, 2017 to November 9, 2021 that show the following large deposits:
October 28, 2019 deposit of $173,861.74
October 29, 2020 deposit of $323,704.76
March 19, 2021 deposit of $369,271.71
July 23, 2021 deposit of $16,945
[62] The mother also produced a breakdown of her and the child's monthly expenses in Qatar that total $29,140 (approximately $30,000) per month. As she had no source of income, these expenses were paid for by the father. Such expenses would be approximately $360,000 annually. These expenses were consistent with the mother's testimony of the parties' high-end lifestyle in Qatar. The parties hired a company to clean their house. They travelled business class. The mother had a Porsche and a BMW. The father had a Range Rover. Vacations were spent in luxury hotels, especially in the United Arab Emirates (UAE). The parties' son was in private school, wearing high-end brand clothing and playing with electronic toys and devices.
[63] Finally, the mother produced a list of 7 properties that were purchased and sold by the father during the parties’ marriage. The mother submits that, were the father's annual income less than $400,000, it would be impossible for the father to have purchased and financed these property transactions.
[64] In sum, I find that there is compelling evidence that the father's annual income is at least
$400,000 based on the evidence presented at trial.
Issue #6: What spousal support should the father pay to the mother?
[65] Where there is a foreign divorce, a court must analyze the validity of the purported divorce since an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction: Okmyansky v. Okmyansky, 2007 ONCA 427. Also see Sonia v. Ratan, 2022 ONSC 6340 at paras. 128 and 216 and the cases cited therein; and Simpson-Campbell v. Stark-Campbell, 2022 ONSC 5481 at para. 61.
[66] In Sonia v. Ratan, at paras. 31 to 36, Monahan J. discussed the principles of recognition of foreign divorces in Canada under the Divorce Act. Paragraph 36 states:
[36] In this context, the limited grounds upon which a Canadian court may refuse to recognize a foreign divorce can be summarized as follows:
i. the foreign court or other authority that granted the divorce did not have the jurisdiction to do so under the law of the foreign country;
ii. there was fraud involved in the granting of the divorce going to the jurisdiction of the granting authority;
iii. there was a denial of natural justice, including the absence of notice; or
iv. the foreign divorce is contrary to Canadian public policy. [footnote omitted]
[67] Here, I refuse to recognize the Qatari divorce since it was obtained without notice to the mother. It appears that notice was sent to the mother at the father's Qatar address. Her uncontested evidence is that she had no notice whatsoever of the divorce proceeding or that the divorce certificate was being obtained.
[68] The mother's counsel rested their argument about why I should not recognize the Qatari divorce on an additional ground that the father commenced his Ontario proceeding on November 19, 2021 before he obtained the Qatari divorce issued on December 16, 2021. Counsel submitted that, because the within proceeding including for spousal support was commenced before the Qatari divorce was obtained, I should find jurisdiction to order corollary relief spousal support. I take counsel to argue that even if the Qatari divorce was valid, because the Ontario proceeding commenced first, I should decline to recognize the Qatari divorce and find jurisdiction to order spousal support. I decline to accept this argument as I do not find that the question of which proceeding commenced first falls into one of the criteria to refuse to recognize a foreign divorce. Accordingly, I find that this Ontario court has jurisdiction to order spousal support notwithstanding the Qatari divorce because that foreign divorce was obtained without proper service to the mother, so this court will not recognize that divorce.
[69] Having found jurisdiction to award spousal support, I must still find that the mother is entitled to spousal support. I find that she is so entitled both on a compensatory and non- compensatory basis. The evidence is that the mother was independent before the marriage but became utterly dependent on the father for the duration of the marriage. The mother did not work outside the home during the marriage. The mother was the child's primary caregiver since 2013 and the father moved to Qatar for work in 2014. On a non-compensatory basis, the mother has need for support as she is now 48, working at a gas station earning $28,000 annually, and living in a basement apartment with the child. I imputed the father's annual income as $400,000 and he clearly has the means to support the mother.
[70] The mother's counsel provided a DivorceMate calculation based on the parties' incomes as found in this decision based on a separation date of July 29, 0221.[^3] The mid-point of the Spousal Support Advisory Guidelines (SSAGs) is $6,077 in monthly support.
[71] In choosing where within the range to land, I have considered the factors summarized by Carol Rogerson and Rollie Thompson in the Spousal Support Advisory Guidelines: The Revised User's Guide, April 2016 (Ottawa: Department of Justice Canada, April 2016) (the "Revised User's Guide"), at pp. 45-46. Those factors are (i) the strength of any compensatory claim, (ii) the recipient's needs, (iii) the needs and ability to pay of the payor, (iv) work incentives for the payor,
(v) property division and debts, and (vi) self-sufficiency incentives.
[72] I find that the mid-point of SSAGs is appropriate because while the compensatory and needs based aspects of the mother's support claim point towards the higher range, the 8-1/2 year duration of the marriage and significant equalization award point towards the lower range.
[73] The parties separated on July 29, 2021. I find the mother eligible for spousal support from August 1, 2021 in the amount of $6,077 per month.
Issue #7: What is the appropriate order in respect of equalization of NFP?
[74] As discussed, the father did not provide a Form 13.1 Financial Statement in this proceeding. Under section 5 of the Family Law Act, R.S.0. 1990 c. F.3 ("FLA"), the mother is entitled to one- half of the difference between the parties' net family property.
[75] The mother concedes that she does not know the actual value of the father's net family property due to the father's lack of financial disclosure, however, the mother provided a Net Family Property Statement (Form 13B) that indicates that the father owes the mother a NFP equalization payment of $1,474,317.50.
[76] The evidence is that the parties entered the marriage in 2012 with relatively few assets. The mother has declared, for the purposes of the NFP calculation, that the father had zero assets and that she had $74,540 on the date of marriage. However, as of the date of separation in July 2021,
[^3]: A copy of the DivorceMate calculation is appended to these Reasons.
the father had significant assets acquired through property transactions. In particular, the father had purchased and sold 7 properties.
[77] At trial, the mother testified about each of the property transactions to the extent that she had information and I find that the mother's NFP equalization calculation is consistent with the evidence that she provided and consistent with the mother's overall evidence about the father as a high-income earner who invested in a number of properties in Ontario and made a profit.
[78] The owner of two of the properties were two numbered companies owned by the father. I find it reasonable, in the circumstances, to attribute the assets of the two number corporations to the father.
[79] In addition to the equalization amount, the mother requests that the father pay an additional
$436,567.50 representing 50% of the depleted profits from six out of seven properties (excluding the profits of last house 235 Tilford Rd). I understand the mother to base her claim for this additional amount on a request for an unequal division of net family property since the father depleted his assets post-separation.
[80] To justify an unequal division of net-family properties, a court must be satisfied that a party’s behaviour has been unconscionable.
[81] Section 5(6) of the FLA states:
(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or
(3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[82] I am not satisfied that the mother presented sufficient evidence for the court to determine that the father’s conduct has been unconscionable and to award an unequal division of net family properties. Accordingly, while I am prepared to award that the father pay the equalization amount of $1,474,317.50, I decline to order that he additionally pay $436,567.50.
Issue #8: Should the court issue an order for tracing and freezing of the respondent's worldwide assets?
[83] The mother submitted that the father has depleted his properties to avoid his financial obligations. The father failed to provide financial disclosure making it difficult to know his financial status. The mother requests that the court issue a tracing and freezing order otherwise the mother will be deprived from realizing her equalization rights.
[84] I find that the concept of tracing is inapplicable here. The FLA contains a single reference to "tracing" which is found at section 4(2)(5) in terms of property that can be excluded from a spouses' net family property:
Excluded property
(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse's net family property:
Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse's net family property.
Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.
Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.
Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
Property that the spouses have agreed by a domestic contract is not to be included in the spouse's net family property.
Unadjusted pensionable earnings under the Canada Pension Plan.
[85] In the within matter, there was no discussion of property that a party sought to be excluded from a spouse's net family property. Rather, I understand the mother to be looking for some sort
of order whereby the father's assets, where found passed on to a third party, can be "traced" and be somehow found exigible. I am not prepared to make such an order.
[86] The mother also requests that I order a worldwide freezing order on the father's assets. As counsel are aware, this court can only enforce this order within its own jurisdiction and it will be up to other jurisdictions to recognize an Ontario court order and enforce within their own jurisdiction. Still, I do not find it inappropriate, in the circumstances to issue a freezing order against the father's assets wheresoever situate.
Issue #9: Should a Restraining Order issue against the father?
[87] The mother asks for a restraining order against the father to prevent him from coming into contact or communicating with her, the parties' child, and the mother's three adult children at their place of residence, school, workplace and anywhere else they may reasonably be.
[88] Pursuant to s. 46 of the FLA, the court may grant a final restraining order where the applicant has reasonable grounds to fear for their safety or the safety of any child in their lawful custody: see also s. 35 of the CLRA: Grewal v. Singh, 2022 ONSC 221 at para. 41 per Dennison J.
[89] The mother's evidence concerning why a restraining order is warranted was based on the following:
a) There was verbal abuse and verbal threats by the father during and after the marriage.
b) The father created confusion and problems amongst the mother's adult children.
c) The level of abuse was such that the mother attempted to commit suicide in December 2020.
d) The father has involved the child in the parental conflict by seriously denigrating the mother's character and conduct and trying to alienate the child from the mother.
e) The father misused the POA that the mother provided to him and sold properties without her consent.
f) The father lives in Doha, is a flight risk, and potential abduction of the R is an issue.
g) The father reported to the Doha and Interpol authorities that the mother had kidnapped the child.
[90] The mother has satisfied me that she has reasonable grounds to fear for her own safety. While the mother has made out a compelling case for a restraining order to be issued against the father in respect of herself and R, the same cannot be said about the mother's three adult children.
[91] As McGee J. stated in Jiang v. Zeng, 2019 ONSC 1457, at para. 28:
Section 46 of the Family Law Act allows the court to make a temporary restraining Order if the moving party has reasonable grounds to fear for his or her safety. Restraining Orders are serious and should not be ordered unless a clear case has been made out. There are criminal consequences for a breach, it can adversely affect a person’s ability to work and it can limit one’s liberty. It is not sufficient to argue that there would be no harm in granting the Order, or that there was a prior justification. [footnotes omitted]
[92] I find that a non-contact order will suffice with respect to the mother's three adult children. A no-contact or communication order made pursuant to section 28 of the CLRA is not as wide-ranging as a restraining order.
Issue #10: What is an appropriate costs award?
[93] The mother requests a costs order of $30,000 (all-in). As of the Bill of Costs the mother submitted on May 13, 2022, the mother's full-indemnity costs were $36,606.35. Subsequently, the mother incurred further costs on counsel's attendance on December 8, 2022 and in preparation of further written submissions. Mr. Tahir and Mr. Rakib were both called to the Bar of Ontario in 2020, and each of their hourly rates was $250 which I find reasonable. I find the request for
$30,000 reasonable in respect of the factors identified in Rule 24(12) of the Family Law Rules.
Order
[94] I order that:
a) The Respondent shall have sole decision-making authority over all decisions in respect of the child of the marriage, R, born April 18, 2013;
b) The Applicant, shall have parenting time with R, born April 18, 2013, on a supervised basis using the services of an independent agency, and at the times and locations solely determined by the Respondent, unless the parties otherwise agree or with further order of this court. The costs of such supervision by an independent agency shall be borne solely by the Applicant;
c) The Respondent, is authorized to apply for, and renew, any government documentation, such as a passport, birth certificate, health card, travel document, for R, born April 18, 2013, without the consent or signature of the Applicant;
d) The Respondent, or her designate, shall be permitted to travel with R, born April 18, 2013, outside of Ontario and Canada for vacation, family or leisure purposes, without notice to, or the written consent of, the Applicant-Father;
e) The Applicant, shall not remove R, born April 18, 2013, from the Greater Toronto Area without the prior written consent of the Respondent-Mother, or further order of this court;
f) Pursuant to section 36 of the CLRA, that the police services in the Province of Ontario, including but not limited to the Toronto Police Service, the Peel Regional Police, Ontario
Provincial Police and any other law enforcement agency having jurisdiction, are directed and authorized to enforce the decision-making responsibility and parenting-time terms.
g) The Applicant pay child support in the amount of $7,607 per month for R, born April 18, 2013, based on the Applicant's annual income of $400,000, prospectively and retrospectively from November 2021;
h) The Applicant pay supposal support to the Respondent in the amount of $6,077 per month prospectively and retrospectively from August 1, 2021 based on the Applicant’s annual income of $400,000, the Respondent’s annual income of $28,000, at the mid-point of the SSAGs;
i) Judgement issue against the Applicant to pay to the Respondent an Equalization amount of
$1,474,317.50;
j) The Respondent’s assets be and are hereby frozen including but not limited to bank accounts in the jurisdiction of this court;
k) A final restraining order issue against the Applicant-father from directly or indirectly contacting or communicating with the Respondent-mother and R, born April 18, 2013 and from coming within 100 meters from the Respondent and R, their place of residences, schools, workplaces and anywhere else they may reasonably be, pursuant to s. 35 of the CLRA and s. 46 of the FLA.
l) A non-contact or non-communication order issue against the Applicant-father to prevent him from directly or indirectly contacting or communicating with the three adult children of the Respondent-mother, pursuant to section of the CLRA.
m) The Applicant pay the Respondent’s costs fixed in the amount of $30,000 within 30 days of the release of my Reasons for Judgment;
n) Prejudgment and post judgement interest apply pursuant to Section 128 and 129 of the
Courts of Justice Act, R.S.O. 1990, c.C.43; and
o) Payments required pursuant to this Order shall be paid through and enforced by the Family Responsibility Office.
[95] A Support Deduction Order (SDO) shall issue.
[96] The mother’s counsel shall send me a revised Order in WORD format for my review and signature within 7 days of the release of this Judgment.
Pinto J.
Released: December 13, 2022
Felix M, , Resident of ON
Income
Employment income 400,000
Haifaa F, 49, Resident of ON
Income
Employment income 28,000
Children Age Lives with Table Claimed Roy 9 Haifaa Yes Haifaa Ousama 25 Haifaa Yes N/A Joudi 21 Haifaa Yes N/A Mohamad 19 Haifaa Yes N/A
Dependant credit claimed by Haifaa.
Youngest child finishes high school 10 years from the date of separation.
Tools Cloud 2022
21-1727 Salman: Calculation 1
Child Support (Table) Felix's income over
$150,000; CSG Table Amount may be inappropriate
SSAG Felix's income over $350,000; SSAG may not apply
Child Support (Table) Child(ren) are age of majority or older; CSG Table Amount may be inappropriate
Felix Haifaa Annual Guidelines Income 400,000 28,000
CSG Table Amount (Current) 7,607 0
Child Support (Table) 7,607 0
Length of marriage/cohabitation: 9 years Recipient's age at separation: 47 years
Felix
Special Expenses paid/claimed
Haifaa paid/claimed
"With Child Support" Formula
No Special Expenses. Relationship Dates
Date of marriage/cohabitation Jun 2, 2012
Date of separation Jul 29, 2021
The formula results in a range for spousal support of
$5,324 to $6,920 per month for an indefinite (unspecified) duration, subject to variation and possibly review, with a minimum duration of 4.5 years and a maximum duration of 10 years from the date of separation.
SSAG Considerations: The results of the SSAG formula must be interpreted with regard to: Entitlement; Location within the Ranges; Restructuring; Ceilings and Floors; and Exceptions.
Felix
Haifaa
Felix
Haifaa
Felix Haifaa
Gross Income
33,333
2,333
33,333
2,333
33,333 2,333
Taxes and Deductions
(12,032)
(1,610)
(11,630)
(1,865)
(11,178) (2,230)
Benefits and Credits
31
260
31
236
31 209
Cash Flow Adjustments
0
0
0
0
0 0
Spousal Support
(5,324)
5,324
(6,077)
6,077
(6,920) 6,920
Child Support (Table)
(7,607)
7,607
(7,607)
7,607
(7,607) 7,607
Net Disposable Income (NDI)
adult in household child in household
shared/summer child
Percent of NDI
8,401
37.6%
13,914
62.4%
8,050
14,388
7,659 14,839
35.9%
64.1%
34% 66%
CSG Special Expenses Apportioning %
78.5%
21.5%
76.4%
23.6%
74.1% 25.9%
After-tax Cost/Benefit of Spousal Support
(2,474)
3,701
(2,824)
4,198
(3,216) 4,676
v. 2.1003 (c) 2022 DivorceMate Software Inc. page 1 of 4
Felix
Haifaa
Employment income
400,000
28,000
Total Income (Line 150 - T1 General)
400,000
28,000
Annual Guidelines Income
400,000
28,000
of Children for whom party pays CSG Table Amount
4
0
CSG Table Amount
7,607
0
Child Support (Table)
7,607
0
INDI
Felix
Haifaa
Felix
Haifaa
Felix Haifaa
Guidelines Income
400,000
28,000
400,000
28,000
400,000 28,000
Taxes and Deductions
(144,387)
(19,315)
(139,555)
(22,375)
(134,137) (26,762)
Benefits and Credits
373
3,123
373
2,834
373 2,510
Child Support (Table)
(91,284)
0
(91,284)
0
(91,284) 0
Notional Table Amount
0
(8,496)
0
(8,496)
0 (8,496)
Spousal Support
(63,893)
63,893
(72,920)
72,920
(83,041) 83,041
INDI ($)
100,809
67,205
96,614
72,883
91,911 78,293
INDI (%)
60
40
57
43
54 46
Guidelines Income (SSAG)
Employment income
400,000
28,000
400,000
28,000
400,000 28,000
Total Income (Line 150 - T1 General)
400,000
28,000
400,000
28,000
400,000 28,000
Guidelines Income (SSAG)(Annual)
400,000
28,000
400,000
28,000
400,000 28,000
Guidelines Income (SSAG)(Monthly)
33,333
2,333
33,333
2,333
33,333 2,333
Taxes
Taxable Income (Line 26000 - T1 General)
335,647
91,709
326,620
100,736
316,499 110,857
Federal tax on taxable income
(88,945)
(16,040)
(85,966)
(17,909)
(82,626) (20,541)
Federal non-refundable tax credits
2,700
4,761
2,700
4,761
2,700 4,761
Federal dividend tax credit
0
0
0
0
0 0
Canada Workers Benefit
0
0
0
0
0 0
Refundable medical expenses credit
0
0
0
0
0 0
Federal tax payable
(86,245)
(11,279)
(83,266)
(13,148)
(79,926) (15,780)
Provincial tax on taxable income
(36,717)
(6,496)
(35,529)
(7,488)
(34,197) (8,618)
Provincial non-refundable tax credits
764
1,124
764
1,124
764 1,124
Ontario surtax 1
(6,192)
(76)
(5,955)
(275)
(5,688) (501)
Ontario surtax 2
(10,644)
0
(10,216)
0
(9,737) (399)
Ontario dividend tax credit
0
0
0
0
0 0
Ontario tax reduction
0
0
0
0
0 0
Ontario "LIFT" credit
0
0
0
0
0 0
Ontario "CARE" credit (refundable)
0
0
0
0
0 0
Ontario Health Premium
(900)
(750)
(900)
(750)
(900) (750)
Provincial tax payable
(53,689)
(6,198)
(51,836)
(7,389)
(49,758) (9,144)
Federal/Provincial Tax (Annual)
(139,934)
(17,477)
(135,102)
(20,537)
(129,684) (24,924)
Federal/Provincial Tax (Monthly)
(11,661)
(1,456)
(11,258)
(1,711)
(10,807) (2,077)
Deductions
CPP contributions
(3,500)
(1,396)
(3,500)
(1,396)
(3,500) (1,396)
EI premiums
(953)
(442)
(953)
(442)
(953) (442)
Deductions (Annual)
(4,453)
(1,838)
(4,453)
(1,838)
(4,453) (1,838)
Deductions (Monthly)
(371)
(153)
(371)
(153)
(371) (153)
v.2022.1003 (c) 2022 DivorceMate Software Inc. page 2 of 4
Benefits and Credits
Net Income - Family (Line 23600 - T1 General)
335,647
91,709
326,620
100,736
316,499 110,857
CCB - Standard Benefit
0
2,564
0
2,275
0 1,951
CCB - Disability Benefit
0
0
0
0
0 0
GST/HST Credit
0
0
0
0
0 0
Climate Action Incentive (CAI)
373
559
373
559
373 559
Ontario Child Benefit (OCB)
0
0
0
0
0 0
Ontario Trillium Benefit
0
0
0
0
0 0
Benefits and Credits (Annual)
373
3,123
373
2,834
373 2,510
Benefits and Credits (Monthly)
31
260
31
236
31 209
SSAG Duration
Years of marriage/cohabitation 9
Haifaa's age at separation 47
Years until youngest child attends fulltime school 0
Years until youngest child finishes high school 10
Marriage/cohabitation period of 20 years or more no
'Rule of 65' (Haifaa's age plus marriage/cohabitation period) no
Income
Felix
Haifaa
Felix
Haifaa
Felix Haifaa
Total Income (Line 15000 - T1 General)
400,000
91,893
400,000
100,920
400,000 111,041
Spousal support received
0
(63,893)
0
(72,920)
0 (83,041)
Gross Income (Annual)
400,000
28,000
400,000
28,000
400,000 28,000
Gross Income (Monthly)
33,333
2,333
33,333
2,333
33,333 2,333
Taxes
Taxable Income (Line 26000 - T1 General)
335,647
91,709
326,620
100,736
316,499 110,857
Federal tax on taxable income
(88,945)
(16,040)
(85,966)
(17,909)
(82,626) (20,541)
Federal non-refundable tax credits
2,700
4,761
2,700
4,761
2,700 4,761
Federal dividend tax credit
0
0
0
0
0 0
Canada Workers Benefit
0
0
0
0
0 0
Refundable medical expenses credit
0
0
0
0
0 0
Federal tax payable
(86,245)
(11,279)
(83,266)
(13,148)
(79,926) (15,780)
Provincial tax on taxable income
(36,717)
(6,496)
(35,529)
(7,488)
(34,197) (8,618)
Provincial non-refundable tax credits
764
1,124
764
1,124
764 1,124
Ontario surtax 1
(6,192)
(76)
(5,955)
(275)
(5,688) (501)
Ontario surtax 2
(10,644)
0
(10,216)
0
(9,737) (399)
Ontario dividend tax credit
0
0
0
0
0 0
Ontario tax reduction
0
0
0
0
0 0
Ontario "LIFT" credit
0
0
0
0
0 0
Ontario "CARE" credit (refundable)
0
0
0
0
0 0
Ontario Health Premium
(900)
(750)
(900)
(750)
(900) (750)
Provincial tax payable
(53,689)
(6,198)
(51,836)
(7,389)
(49,758) (9,144)
Federal/Provincial Tax (Annual)
(139,934)
(17,477)
(135,102)
(20,537)
(129,684) (24,924)
Federal/Provincial Tax (Monthly)
(11,661)
(1,456)
(11,258)
(1,711)
(10,807) (2,077)
Source Deductions
CPP contributions
(3,500)
(1,396)
(3,500)
(1,396)
(3,500) (1,396)
EI premiums
(953)
(442)
(953)
(442)
(953) (442)
Deductions (Annual)
(4,453)
(1,838)
(4,453)
(1,838)
(4,453) (1,838)
Deductions (Monthly)
(371)
(153)
(371)
(153)
(371) (153)
v.2022.1003 (c) 2022 DivorceMate Software Inc. page 3 of 4
Benefits and Credits
Net Income - Family (Line 23600 - T1 General)
335,647
91,709
326,620
100,736
316,499 110,857
CCB - Standard Benefit
0
2,564
0
2,275
0 1,951
CCB - Disability Benefit
0
0
0
0
0 0
GST/HST Credit
0
0
0
0
0 0
Climate Action Incentive (CAI)
373
559
373
559
373 559
Ontario Child Benefit (OCB)
0
0
0
0
0 0
Ontario Trillium Benefit
0
0
0
0
0 0
Benefits and Credits (Annual)
373
3,123
373
2,834
373 2,510
Benefits and Credits (Monthly)
31
260
31
236
31 209
Cash Flow Adjustments
Social assistance clawback
0
0
0
0
0 0
OAS clawback
0
0
0
0
0 0
GIS clawback
0
0
0
0
0 0
Cash Flow Adjustments (Annual)
0
0
0
0
0 0
Cash Flow Adjustments (Monthly)
0
0
0
0
0 0
v.2022.1003 (c) 2022 DivorceMate Software Inc. page 4 of 4
COURT FILE NO.: FS-21-26711
DATE: 20221213
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Felix Salman Youssef Applicant
– and –
Haifaa Arab AKA Haifaa Salman Youssef Respondent
REASONS FOR JUDGMENT (UNCONTESTED TRIAL)
Pinto J.
Released: December 13, 2022