COURT FILE NO.: FS-20-990021-00
DATE: 2022 12 16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HANIN AHMED BABI
APPLICANT
– and –
MOHAMMED JAMAL ANWAR CHAYKHOUNI
RESPONDENT
David Pomer, Counsel for the Applicant
Fadwa Yehia, Counsel for the Respondent
HEARD: December 13, 2022
Ranjan K AgARWAL J.
ENDORSEMENT
I. INTRODUCTION
[1] The applicant Hanin Ahmed Babi moves for an order that the respondent Mohammed Jamal Anwar Chaykhouni give certain requested information and, if he fails to do so, that his answer be struck. Chaykhouni moves for: (a) a declaration that the parties had their last common habitual residence in the United Arab Emirates and, as such, Babi’s requests for information are irrelevant; and (b) Babi give certain requested information.
[2] Though these two motions are framed as discovery disputes, the core issue in dispute is whether Chaykhouni can refuse disclosure now on the basis that UAE law governs this proceeding. He argues that there’s no equalization of net family properties under UAE law and, as such, information about property in his name is irrelevant to this proceeding. In doing so, he relies on section 15 of Family Law Act, RSO 1990, c F.3, which deals with conflict of laws in family property disputes.
[3] To be clear, this issue is not about jurisdiction or forum non conveniens. Chaykhouni has attorned to the jurisdiction of the Ontario courts. Instead, it’s about the law that governs this proceeding. The parties advise that they know of no published case in which section 15 of the Family Law Act has been applied on a discovery motion.
[4] For the reasons discussed below, I decline to make the declaration asked for by Chaykhouni. The parties’ evidence conflicts to the point that I can’t make findings of fact on this motion. As a result, I’ve granted both parties’ requests for information, in part, as explained below.
[5] As a preliminary matter, the parties haven’t complied with the Central West Notice to the Profession and Parties, effective April 16, 2022. I endorse an order that Babi, as the applicant, shall ensure, on or before February 15, 2023, that all pleadings have been uploaded into the Pleadings bundle and all previous orders and endorsements in the case have been uploaded into the Orders and Endorsements bundle in CaseLines.
II. BACKGROUND FACTS
[6] The parties were born in Syria. They were married in the UAE in December 1995. They have three children: Nala (age 26), Dala (age 23), and Abdelkareem (age 17). The lived in the UAE after they were married.
[7] Noor was born in the U.S. in 1996. The parties returned to the UAE shortly after she was born.
[8] The parties immigrated to Canada in 1998.
[9] Dala was born in Waterloo, Ontario, in 1999. The parties bought a house in Waterloo that same year.
[10] In 2002, the parties sold their house in Waterloo and bought a house in Kitchener, Ontario. They became Canadian citizens that year.
[11] Abdelkareem was born in Kitchener in 2005.
[12] The parties also had various homes in the UAE. The children went to secondary school in the UAE until 2014.
[13] In 2014, Noor began post-secondary education at the University of Guelph. In July 2014, Babi travelled from UAE to Kitchener. Dala and Abdelkareem went to Kitchener at that time. They completed their secondary schooling in Ontario.
[14] Chaykhouni alleges that the parties separated on July 25, 2014.
[15] The parties bought a house together on Fairwind Drive in Mississauga in June 2015.
[16] Babi alleges that the parties separated on August 15, 2019.
[17] Babi started this proceeding in March 2021. Chaykhouni delivered an answer in April 2021 (and, in doing so, attorned to the jurisdiction of the Ontario courts).
[18] Chaykhouni filed tax returns in Ontario between 1998 and 2021.
[19] On April 19, 2022, the parties were divorced by the courts in Syria. Babi says Chaykhouni obtained this divorce unilaterally.
[20] Chaykhouni worked for Dutco Group, a UAE-based company. In 2013, he began operating his own business in the UAE. Babi was a part-time Arabic-language teacher.
[21] Diane Hamade, a UAE-lawyer with expertise in family law, opined:
- there’s no matrimonial sharing regime under UAE law
- when a couple is married without a pre-nuptial agreement addressing the division of property, each party retains the assets held in their own name
- jointly owned assets, such as bank accounts or stocks, are divided equally or proportionally according to the partner’s ownership as proven
[22] The parties own almost all of their assets in their own respective names. The only joint assets are the Mississauga home and a Canadian bank account.
III. LEGAL FRAMEWORK
[23] If a party believes that the financial disclosure provided by another party under Rule 13 of the Family Law Rules, whether in a financial statement or otherwise, doesn’t provide enough information for a full understanding of the other party’s financial circumstances, (a) the party shall make a request in writing to the other party for the necessary additional information; and (b) if any requested information is not given within seven days of the request, the court may, on motion, order the other party to give the information or to serve and file a new financial statement (rule 13(11)).
[24] The most basic obligation in family law is the duty to disclose financial information. This requirement is immediate and ongoing. Failure to abide by this fundamental principle impedes the progress of the action, causes delay, and generally acts to the disadvantage of the opposite party. It also impacts the administration of justice. Unnecessary judicial time is spent and the final adjudication is stalled. See Roberts v Roberts, 2015 ONCA 450, at paras 11-12. Rules for disclosure and the sanctions for non-compliance are “the centrepiece of the Family Law Rules”. See Sickinger v Sickinger, 2018 ONCA 526, at para 36.
[25] That all said, the information requested must be relevant and the burden of producing the information can’t be unfair or inappropriate. “Although full and frank disclosure is a necessary component of family law litigation, exhaustive disclosure may not always be appropriate. Courts and parties should consider the burden that disclosure requests bring on the disclosing party, the relevance of the requested disclosure to the issues at hand, and the costs and time to obtain the disclosure compared to its importance….” See Kovachis v Kovachis, 2013 ONCA 663, at para 34.
[26] Determining whether the requested information is relevant requires a consideration of the issue in dispute, which necessarily involves examination of the applicable law or legal test. In other words, the requested information has to be legally relevant.
[27] The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there’s no place where the spouses had a common habitual residence, by the law of Ontario. See Family Law Act, s 15.
[28] The words “common habitual residence” have been interpreted to mean “where the spouses most recently lived together as a husband and wife and participated together in everyday family life.” See Pershadsingh v Pershadsingh, 1987 CanLII 4361 (ON SC), [1987] OJ no 641 (Ont Sup Ct), at para 7; Zakhour v Nayel, 2017 ONSC 1735, at paras 16-17; Jiang v Shi, 2017 BCCA 276, at para 54.
[29] In order to establish a “common habitual residence”, neither “permanence” nor “intention” will be determinative so long as the fact of physical presence, enduring for some time, is established, especially in the absence of an expressed intention of a temporary stay or a commonly acknowledged intention to maintain, and return to, an earlier established common habitual residence. See Pershadsingh, at para 9; Adam v Adam, 1994 CanLII 18164 (Ont Sup Ct), at para 14.
[30] Our court’s decisions under section 15 have identified several factors for determining common habitual residence:
- where did the parties own a home or homes?
- did they select new furniture and set up a home there?
- did they have a religious ceremonies to bless the home?
- where did they stay together?
- where did they work?
- did they take meals together with family or friends in that place?
- where did they file income tax returns?
- did they declare ownership of foreign property?
- where did they keep their personal belongings?
- did they travel to or from the other country at issue?
- where did they have sexual relations?
- where did the celebrate family events? from where did they manage family crises?
- where were their family finances, assets, and bank accounts located?
- in which country did they have citizenship or permanent residency?
See Pershadsingh, at para 10; Zakhour, at para 20; Burkhardt v Burkhardt Estate, 2015 ONSC 2688, at para 2; Rezagholi v Ezami, 2010 ONSC 5469; Zaman v Khan, 2009 CanLII 12127; and Adam, at para 14.
[31] Like the analysis of when spouses began living separate and apart, the determination of “common habitual residence” requires a “global analysis and weighing of all factors”—no one factor is determinative. See Al-Sajee v Tawfic, 2019 ONSC 3857, at para 26.
[32] There’s no bar to an Ontario court applying the law of another jurisdiction. In Stefanou v Stefanou, 2009 ONCA 204, the Court of Appeal held that Ontario was the appropriate forum for resolving the parties’ family property issues but Greek law governed the determination of those issues. In that way, Stefanou is similar to the case here—Chaykhouni accepts that Ontario is the appropriate forum to decide the property issues between him and Babi but he says UAE law governs the determination of those issues.
IV. THE PARTIES’ POSITIONS
[33] This matter was a long motion. The parties filed, between them, five affidavits including an expert’s reports, and many exhibits. Both parties filed factums and extensive caselaw. The witnesses were not cross-examined.
[34] On the conflict of laws issues, the parties made several arguments. Chaykhouni argued:
(a) this court can, on an interlocutory motion, make a declaration about the parties’ common habitual residence;
(b) both parties’ evidence makes clear that their common habitual residence was the UAE;
(c) this court can accept Ms. Hamade’s unchallenged evidence that there’s no equalization under UAE law; and
(d) the requested information is legally irrelevant and need not be produced.
[35] In response, Babi argued:
(a) Ms. Hamade’s report is inadmissible as it fails to comply with the Family Law Rules on expert’s reports and she is not qualified to give opinion evidence on UAE family law (in part because she was not advised of the divorce in Syria);
(b) under section 5(6) of the Family Law Act, the court can award disproportionate equalization regardless of the governing law where there’s unconscionability—the requested information is relevant to any argument Babi might make under this section;
(c) Chaykhouni is effectively seeking summary judgment and the question of common habitual residence is a genuine issue requiring a trial;
(d) even if there’s no equalization under UAE law, disclosure of the requested information is relevant to Babi’s claims for spousal support and child support; and
(e) the parties’ common habitual residence was Ontario.
[36] On the other disclosure issues, both parties allege that the other party has breached their obligations. At the hearing, these issues narrowed significantly—Chaykhouni concedes that he has to make some disclosure if Ontario law applies; Babi concedes that many of Chaykhouni’s requests are relevant to issues of spousal support and child support.
V. ANALYIS AND DISPOSITION
A. Issue #1: Is the issue of common habitual residence properly determined on a motion?
[37] Generally, motions aren’t decided on the basis of conflicting evidence. See Moyle v Palmerston Police Services Bd., 1995 CanLII 10659 (ON SC), [1995] OJ no 627 (Div Ct), at para 11. Though our courts can decide summary judgment motions on conflicting evidence, the court has to be persuaded that the process: (a) allows the judge to make the necessary findings of fact; (b) allows the judge to apply the law to the facts, and (c) is a proportionate, more expeditious and less expensive means to achieve a just result. See Hryniak v Mauldin, 2014 SCC 7 at para 49. But, even then, the court’s power to do so comes from a specific rule governing summary judgment motions (Rule 16(6.1) of the Family Law Rules). Chaykhouni is not moving for summary judgment.
[38] I’m prepared to accept that the Family Law Rules give the court sufficient flexibility and discretion to weigh the evidence, make credibility findings, and draw reasonable inferences on an interlocutory motion (see, for example, rules 1(7.2), 2(2), 2(3), 2(4), and especially 2(5)).
[39] But, in this case, I’m not persuaded that I can or should decide the issue of common habitual residence only on the affidavit evidence before me. Though the parties argue that, in fact, the evidence supports their respective position, I believe there’s a conflict in the evidence that I can’t resolve without viva voce evidence.
[40] At a general level, the parties present two strikingly opposite narratives. Babi says that she, Chaykhouni, and their children lived in Ontario since at least 2014 until they separated in 2019, and Chaykhouni only traveled to the UAE to work. Chaykhouni says that he and Babi lived in the UAE until they separated in 2014, and Babi then lived, separately, in Ontario but he visited occasionally.
[41] Chaykhouni has put into evidence several facts, many of them uncontradicted, that he says shows that the parties’ last common habitual residence was the UAE. But this evidence, for the most part, discusses events before 2014 (which is when he says they separated). His evidence about where the parties lived after 2014 is:
- the parties had marital difficulties in 2014
- Babi went to Ontario in 2014 to help Noor settle into university
- Dala and Abdelkareem went with her, and registered for school in Ontario
- he traveled to Ontario “every few months to see the children and to try to work things out” with Babi
- Babi didn’t want to live in Kitchener, so they bought a house in Mississauga and had a joint bank account for housing expenses
- he remained in their home in the UAE and Babi made it clear that there was no prospect of reconciliation
- he expected Babi to return to the UAE because Dala didn’t want to go to university and he wanted Abdelkareem to learn the family business
- after they bought the Mississauga property, Babi made clear there was no reconciliation and decided to stay in Ontario with the children
[42] In contrast, in discussing their post-2014 living arrangements, Babi’s evidence, some of which is also uncontradicted, is:
- she travelled to Kitchener in July 2014 after Noor was accepted to the University of Guelph
- when Chaykhouni came to Canada in 2014, 2015, and 2016 they “stayed in the same bedroom” or “lived together” as “husband and wife”
- Chaykhouni paid the expenses for the homes in Kitchener and Mississauga, and the children’s expenses
- the parties had joint bank accounts in Canada
- they bought the Mississauga property together in June 2015
- they went to Dubai for vacation in 2014-15 and 2017
- Chaykhouni filed income tax returns in Canada until 2019
[43] The parties are like ships passing in the night, perhaps intentionally. Chaykhouni wants the court to focus on the parties’ living arrangements and family life before 2014, because that’s when he says they separated. But it’s arguable that they separated in 2019, in which case the parties’ living arrangements until then are relevant. Even then, Chaykhouni argues that their last common habitual residence was still the UAE because the parties lived separately after Babi went to Ontario in 2014. Babi forcefully disagrees. I can’t make this determination based on only affidavit evidence. The process here, which didn’t include cross-examinations or viva voce evidence, doesn’t allow me to make the necessary findings of fact.
[44] My decision here is informed by the context for these motions—Babi is only seeking disclosure of information about Chaykhouni’s property. The disclosure or production of a document is not an admission of relevance or admissibility. Chaykhouni reserves the right to argue at trial that the UAE is the parties’ common habitual residence and, in doing so, argue that evidence about assets in his name are irrelevant. But I am loath to deny production of otherwise arguably relevant documents at this stage on the basis of a contested evidentiary record.
[45] Both parties relied on Rezagholi. In that case, Justice McGee found that the parties’ common habitual residence was Iran and, as such, the Ontario court had no jurisdiction to make an equalization order. That finding was made after a 10-day trial. In her reasons, Justice McGee discussed credibility at length because the parties had different evidence on whether they lived in Canada before they separated. So too here. In my view, Rezagholi affirms that when the parties’ evidence on common habitual residence conflicts, there should be a trial of the issue.
[46] Even if I found, on this record, that the UAE was the parties’ common habitual residence, it could only be for this motion. It’s possible that, at trial, the evidence is such that the trial judge finds that the parties’ common habitual residence was Ontario. In that case, it’s likely the trial would have to be adjourned for Chaykhouni to disclose and produce information about his assets, which would increase the parties’ costs and delay the just adjudication of this proceeding.
[47] As a result of my determination, I need not decide whether Ms. Hamade’s expert’s report is admissible or Babi’s arguments about section 5(6) of the Family Law Act and that the requested information is relevant to the issues of spousal support and child support.
[48] That said, I will make two observations about Ms. Hamade’s expert’s report. First, Babi argued that Ms. Hamade’s expert’s report is inadmissible because she didn’t make herself available for cross-examination at the hearing. Babi may be making this argument because Ms. Hamade’s report was filed as an exhibit to a clerk’s affidavit. In my view, the best practice is for the expert to provide an affidavit attaching their report so there’s no doubt that they are available for cross-examination. That said, Chaykhouni was not trying to shield Ms. Hamade from cross-examination. Thus, if Babi wanted to cross-examine Ms. Hamade, she should have asked to do so before the hearing, and not presume that Chaykhouni would produce Ms. Hamade to be cross-examined in court (which is not the usual practice with any witness on a motion). There was ample time to do so, or she could have sought an adjournment of the motion.
[49] Second, Babi challenged Ms. Hamade’s qualifications and whether her report complied with rule 20.02(2) of the Family Law Rules. In my view, it did so. Ms. Hamade has been accepted as an expert by our courts on UAE law in other cases (see, for example, F v N, 2022 SCC 51; and Volgemut v Decristoforom, 2021 ONSC 7382). But, to the extent that Babi wanted to challenge Ms. Hamade’s opinion by, for example, providing her different factual assumptions or testing the information or documents she relied on, she should have done so by cross-examining Ms. Hamade or relying on her own expert’s report.
B. Issue #2: Should Chaykhouni be ordered to give the requested information?
[50] Chaykhouni’s position on several items are that if UAE law governs, the information is irrelevant. As I have concluded that there’s an arguable case that Ontario law applies, I endorse an order that Chaykhouni shall give the following information on or before February 15, 2023:
- May 13, 2021 Request for Information—items 18 to 32
- November 22, 2021 Request for Information—items 5, 6, 10, and 11
- December 9, 2021 Request for Information—items 1 to 8
[51] For the balance of the requests, I agree with Chaykhouni that they are unparticularized and vague. It’s difficult to know what Babi is asking for.
[52] As a result, I endorse an order that Babi shall deliver a fresh request for information on or before January 15, 2023, and Chaykhouni shall give the information on or before February 15, 2023. In doing so, I encourage Babi to be precise in her requests to avoid further litigation over disclosure. At the same time, I encourage Chaykhouni to be reasonable in his response. Again, the disclosure and production of a document is not an admission of relevance or admissibility. But the failure to make reasonable disclosure will delay this action, increase costs, and may lead to judicial sanction.
C. Issue #3: Should Babi be ordered to give the requested information?
[53] At the hearing, in oral submission, Babi agreed to provide much of the information requested by Chaykhouni. It’s unclear to me why two parties, represented by experienced lawyers, couldn’t meet and confer to resolve this impasse.
[54] Babi agrees to produce the following:
- documents supporting the disclosure of assets and liabilities in the Form 13A Certificate of Financial Disclosure
- list of Noor’s and Abdelkareem’s employers, hours per week, and wages
- Noor’s T4 statements and income tax returns since 2018
- Noor’s cell phone bills, redacted for calling information, if Babi seeks support for this expense
- CIBC bank statements since 2018
- details about Babi’s group life insurance policy through her employer
- particulars about Noor’s and, if necessary, Abdelkareem’s enrolment in university or college, including proof of enrolment, tuition invoice, student loan information, expenses, and transcripts
- particulars of $55,000 to renovate the Mississauga property
- particulars of ATM withdrawals from the joint TD Bank account
[55] Babi refuses to produce the following information:
- the children’s contributions to the household expenses from their employment earnings
- jewelry claimed and appraisals for each item in support of her valuation of $15,000
- comparative market analysis for the Mississauga home
- Dubai Islamic bank statements
- copy of Babi’s passport and list of travel
- information about Babi’s inherited property
[56] In my view, the children’s contribution to household expenses, the particulars of the jewelry, Dubai Islamic bank statements, and information about Babi’s inherited property are relevant to the financial claims in this proceeding, and should be given. I also believe the passport information is relevant given the dispute about common habitual residence.
[57] Though I believe both parties will benefit from an appraisal of the Mississauga home, I’m not ordering it.
[58] I endorse an order that Babi shall give the information in paragraphs 54 and 56, or an affidavit explaining why she doesn’t have this information, on or before February 15, 2023.
[59] To the extent that Chaykhouni has not done so, I endorse an order that he will give the following information to Babi on or before February 15, 2023:
- documents supporting the disclosure of assets and liabilities in the Form 13A Certificate of Financial Disclosure
VI. CONCLUSION AND COSTS
[60] At the hearing, Chaykhouni provided a costs outline. Babi didn’t have one but promised to upload her costs outline by December 18, 2022.
[61] Given my disposition, in which both parties were just as successful and unsuccessful, I encourage them to resolve the issue of costs between them. If they can’t do so, they should advise my judicial assistant (sara.stafford@ontario.ca) on or before December 23, 2022, at 4pm. I will rely on the costs outlines uploaded to CaseLines to fix the costs of these motions.
[62] The settlement conference is scheduled for July 6, 2023. In my view, it may be easier to sort out the financial issues here if the parties were questioned. As a result, I endorse an order that the parties may be questioned for up to 3 hours each on the financial disclosure.
[63] I’m not seized.
Agarwal J.
Released: December 16, 2022
COURT FILE NO.: FS-20-990021-00
DATE: 2022 12 16
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HANIN AHMED BABI
APPLICANT
– and –
MOHAMMED JAMAL ANWAR CHAYKHOUNI
RESPONDENT
ENDORSEMENT
Agarwal J.
Released: December 16, 2022