ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-21-21503
DATE: 20230310
BETWEEN:
MOHAMED EL KHATIB
Applicant
– and –
NOUHAD NOUN
Respondent
In Person
Fadwa Yehia, for the Respondent
HEARD: February 13, 14, 15, 16, 17 and 28, 2023.
M. Kraft, J.
reasons for decision
Background
[1] The parties were married in Lebanon on June 23, 2007. They immigrated to Canada in 2014. They separated on September 14, 2019.
[2] They were divorced by the judgment of Shore, J., dated May 18, 2022.
[3] Both parties are of the Islamic faith. Theirs was a traditional marriage, where the applicant, Mr. El Khatib, was the breadwinner, and the respondent, Ms. Noun, did not work outside of the home and looked after the household and children. During the marriage, the parties moved countries four times for Mr. EL Khatib’s employment.
[4] The parties have two sons, A., who is 13 years of age, and E., who is 9 years of age.
[5] Mr. El Khatib first vacated the matrimonial home, a rental apartment, at the end of March 2019. He did not return to the home until May 30, 2019. During this time, Mr. El Khatib did not see the children. The final separation occurred on September 14, 2019, when Mr. El Khatib telephoned Ms. Noun after she dropped off the children at school and told her that he was not coming back home.
[6] The children have been in the primary care of Ms. Noun since then. Ms. Noun has temporary sole decision-making responsibility for the children pursuant to the Order of Sanfilippo, J., dated July 14, 2021.
[7] The children have not had contact or parenting time with Mr. El Khatib since July 2021. They are both in therapy to address past trauma arising from witnessing and experiencing family violence. Mr. El Khatib denies any family violence and argues that the children have been alienated against him by Ms. Noun. Ms. Noun submits that the children are justifiably estranged from Mr. El Khatib based on his own conduct.
[8] At the commencement of this trial, Mr. El Khatib advised the Court and Ms. Noun for the first time that he had accepted an offer of employment and would be relocating to the United Arab Emirates (“UAE”) when the trial ended to start new employment on March 1, 2023. If Ms. Noun had not requested a copy of Mr. El Khatib’s passport, received days before the trial commenced, she would not have known that Mr. El Khatib had been residing in the UAE since November 2022.
[9] It is Mr. El Khatib’s proposal that the primary residence of the children be moved from Toronto, and they relocate with him to the UAE. Mr. El Khatib admitted during the trial that he did not disclose the fact that he had relocated to the UAE in November 2022 or that he intended to relocate there for a new employment opportunity in his affidavit in chief, sworn on January 20, 2023. Mr. El Khatib testified that he will be earning $175,000 CAD from this employment position. However, no documentary evidence was produced to verify this income.
The Issues
[10] The issues to be determined on this trial are:
a. What parenting arrangements are in the best interests of A. and E. in terms of decision-making authority and the parenting schedule?
b. What quantum of child support should Mr. El Khatib pay Ms. Noun going forward?
c. What quantum of retroactive child support is owing by Mr. El Khatib?
d. What quantum of spousal support should Mr. El Khatib pay Ms. Noun going forward and in what duration?
e. What quantum of retroactive spousal support is owing by Mr. El Khatib, if any?
f. How should the Mahr be treated for equalization purposes?
g. What is the sum of the Equalization Payment owing and by which party?
Mr. El Khatib’s Position on the Issues
[11] Mr. El Khatib seeks to change the primary residence of the children from Toronto to the UAE on the basis that Ms. Noun has poisoned his relationship with the boys since separation. He submits that if he does not have primary care of the children and sole decision-making responsibility, he will have no relationship with the boys. Mr. El Khatib’s plan of care for the children is that they both move with him to the UAE, Dubai, and they see Ms. Noun pursuant to a specified parenting schedule. Mr. El Khatib offered no concrete plan of care for the children in the UAE, such as what schools they would attend, the names of health care professionals they would see, or where they would be residing.
[12] If the Court does not see fit to change the children’s primary residence as he proposes, Mr. El Khatib recognizes he has an obligation to pay child support in accordance with the Child Support Guidelines, S.O.R. /97-175 (“CSG”) and proposes that he does so on the basis of his 2022 income which was $203,349 a year. Mr. El Khatib submits that he has paid spousal support to Ms. Noun for the past three years, voluntarily for a period of time, and then pursuant to an order[^1], and suggests that his obligation to pay spousal support last for four more years and that he pay the mid-range of spousal support as set out in the Spousal Support Advisory Guidelines (“SSAGs”). He argues that the Mahr should be included as an asset of Ms. Noun on both the date of separation and the date of marriage and that the Mahr should be a debt of his on both the date of separation and the date of marriage.
Ms. Noun’s Position on the Issues
[13] Ms. Noun seeks continued primary residence of the children and sole decision-making responsibility for the boys.[^2] She also seeks retroactive and ongoing child support; retroactive and prospective spousal support; the removal of the Mahr from the calculation of each party’s net family property (“NFP”) and/or an unequal division of NFP; and the payment of the Mahr from Mr. El Khatib.
Issue One: What Parenting Arrangements are in the Best Interests of A. and E.?
The Law
[14] Pursuant to s.16(1) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) (“DA”), the only consideration for the Court when making a parenting order is to examine what is in the best interests of the children of the marriage.
[15] I am required to give primary consideration to the children’s physical, emotional and psychological safety, security and well-being: s.16(2).
[16] In determining the best interests of the children, I am required to consider the circumstances of A. and E., some of which include,
a. Their needs, given their ages and stage of development, such as a child’s need for stability;
b. The nature and strength of their relationship with each spouse;
c. Each spouse’s willingness to support the development and maintenance of the children’s relationship with the other spouse;
d. The history of care of the children;
e. A.’s and E.’s views and preferences, giving due weight to their age and maturity, unless they cannot be ascertained;
f. Any plans for the children’s care;
g. The ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of A. and E.;
h. The ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting A. and E.;
i. Any family violence and its impact its impact on, among other things,
i. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the children, and
ii. the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the children.
[17] I am also required to give effect to the principle that children should have as much time with each spouse as is consistent with the best interests of the children: s.16(6).
Analysis
[18] A. is a 13-year-old boy who is described as intelligent, kind, responsible, and respectful. A. does well in school and is protective of his younger brother and his mother. At the beginning of 2023, A. was diagnosed with Post Traumatic Stress Disorder (“PTSD”) and separation anxiety disorder.[^3]
[19] E. is a 9-year-old boy who was described as sensitive, kind and smart. In 2019, E. was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”).[^4] At the beginning of 2023, E. was diagnosed with PTSD and separation anxiety disorder. E. has had an Individual Education Plan (“IEP”) which has been in place since Grade 1.
[20] The parties agree that Ms. Noun was the primary parent during the marriage, and she took on the lion’s share of looking after the children and meeting all of their physical, social and emotional needs.
[21] Ms. Noun testified that during the marriage, Mr. El Khatib often travelled for work and was away from the home for weeks at a time. Ms. Noun describes him as being a hands-off father who was not overly connected to the boys. Mr. El Khatib denied working long hours. He did not deny travelling for work.
Mr. El Khatib’s Parenting Position
[22] Mr. El Khatib argues that Ms. Noun has had an agenda to vilify him and destroy his relationship with A. and E. He submits that she has no insight into positive parenting decision-making, such as the need to encourage the boys having a relationship with him.
[23] Mr. El Khatib’s plan is to change the primary residence of the children from Toronto to relocate with him to the UAE. He testified that the only way to ensure that he has a relationship with the children is for them to move with him. Mr. El Khatib submits that he will ensure the children travel to Ontario for reasonable holidays and part of the summer and that Ms. Noun can have unlimited electronic parenting time. He submits that his plan provides the children with the opportunity to have a meaningful relationship with both parents.
Ms. Noun’s Parenting Position
[24] Ms. Noun testified that she has never poisoned the children against their father. Instead, she swears that the boys did not have an established, bonded relationship with their father when he left, and they were justifiably estranged from Mr. El Khatib as a result of family violence and his regular absence from their daily lives. Notwithstanding this, Ms. Noun has always encouraged the children to spend time with the father since the separation. Further, Ms. Noun testified that she has continued to attempt to involve Mr. El Khatib in decisions that impact the children, but he has refused to become involved. One example is Ms. Noun seeking to obtain Mr. El Khatib’s consent to allow the children to begin therapy and Mr. El Khatib denied that the children required any therapeutic intervention.
[25] Ms. Noun deposes that Mr. El Khatib did not have a direct or strong relationship with either A. or E. during the marriage. She described Mr. El Khatib as having to travel for work frequently during the marriage and working long hours. Ms. Noun was the parent who was responsible for taking the children to their medical and dental appointments; she was the point person with whom the school would connect if any issues arose with the children; she was the parent who attended parent-teacher interviews; and the parent who planned the children’s birthday parties, extra-curricular activities and social plans.
[26] Ms. Noun alleges that she and the children suffered family violence at the hands of Mr. El Khatib. She deposes that he physically and verbally disciplined the children by hitting them with his slippers, grabbing their arms, pinching them and yelling at them. Both boys disclosed various forms of abuse by Mr. El Khatib to their therapists, who testified in this trial. In terms of the family violence she suffered, Ms. Noun describes being pushed, told she was crazy, having her hair pulled to the point where she cut her hair, and being pinched. Ms. Noun also describes that the children witnessed Mr. El Khatib being violent toward her and seeing him push her on the floor. At one point, Mr. El Khatib locked Ms. Noun and the children in a room and on other occasions, she and the children locked themselves in the master room to avoid his wrath. Another incident of abuse described by Ms. Noun occurred when Mr. El Khatib forcefully shaved A.’s hair against his will.
Parenting Roles Post-Separation
[27] Mr. El Khatib first left the rental matrimonial home in March 2019. He did not return until May 30, 2019. During these two months, he did not make any attempt to speak to or see the children. Mr. El Khatib returned to the matrimonial home on May 30, 2019, after being prompted to do so by Ms. Noun’s brother because E. had contracted a virus which caused him to go to the hospital. Within a day, Mr. El Khatib travelled to Italy for work instead of staying home to assist Ms. Noun with E.
[28] Mr. El Khatib left the home on a final basis on September 14, 2019. He did not make any attempt to see the children until the last week in November 2019, when Ms. Noun called him and arranged for him to spend time with the children.
[29] Between December 2019 and October 2020, Ms. Noun deposes that she facilitated Mr. El Khatib’s parenting time with the children either weekly or on alternating weeks. These visits generally took place in the matrimonial home or at the park, particularly since the Covid-19 health crisis began in March of 2020. Both parties agree that Ms. Noun was present for each of these visits.
[30] On September 24, 2020, Mr. El Khatib relocated to Vancouver, British Columbia for work. It is agreed that Mr. El Khatib did not tell the children he was moving to Vancouver and left that to Ms. Noun. Mr. El Khatib did not see the children for 10 months until he returned to Toronto in July 2021. During this time period, Mr. El Khatib returned to Lebanon and spent five months there, instead of travelling to Ontario to spend time with the children.
[31] Ms. Noun facilitated Mr. El Khatib’s parenting time with the children between July 2 and July 14, 2021, despite the fact that the children resisted spending time with their father. The children saw their father only 3-4 times during that 12-day time period. The visits generally took place at Fairview Mall or at the park. Mr. El Khatib was working during his time in Ontario keeping Vancouver time, and there were a number of occasions when Ms. Noun proposed he have parenting time with the children when he declined to do so. Again, both parties agree that Ms. Noun was present for each of these visits. It is agreed that A. and E. were resistant to spending time with their father in July 2021. Mr. El Khatib blames Ms. Noun for poisoning the children against him.
[32] On July 14, 2021, the parties attended a case conference before Sanfilippo, J., at which time a consent order was entered into which set out, among other things, that Ms. Noun was to have temporary sole decision-making responsibility for the children; Mr. El Khatib was to have supervised parenting time with the children through Brayden Supervision Services on July 17, 18, 24, and 25, 2021 for 3 hours, and thereafter he was to notify Ms. Noun when he would be arriving in Ontario; and the OCL was to be requested to conduct a s.112 parenting assessment.
[33] On July 25, 2021, Ms. Noun brought the children to the Brayden Supervision Centre for the arranged visit, but the children refused to get out of the vehicle and see Mr. El Khatib. Ms. Noun did her best to encourage the children to leave the car, as did the supervisor from Brayden but they refused to do so and, as a result, the parenting time at Brayden did not take place. The parenting time note prepared by Brayden Supervision Services dated July 25, 2021 confirms that Ms. Noun approached the supervisor, agreed to the supervisor coming to the car to introduce herself to the children, both children told the supervisor there was nothing she could do to help make the visit feel more comfortable and they refused to leave the car. The supervisor’s note specifically states, “Mother also offered encouragement and supportive messages to ensure the children that they were safe and that she was in support of them seeing their father.”[^5]
Mr. El Khatib’s Proposed Parenting Plan
[34] Mr. El Khatib’s plan is to move to the UAE for work and to take the children with him. He suggests that he will agree to a parenting plan to ensure that Ms. Noun has parenting time and that he will pay for Ms. Noun to travel to the UAE to have parenting time with the children.
[35] Mr. El Khatib swears that his plan for the children is in their best interests because he has essentially lost his relationship with the boys because Ms. Noun has blocked him and prevented him from having a relationship with them. He argues that if the children are not placed in his primary care, he will lose his opportunity to have a parent-child relationship with his sons. Further, he submits that Ms. Noun has demonstrated that she is unwilling to be cooperative or promote his relationship with the boys.
[36] During his testimony, Mr. El Khatib deposed that he was an actively involved father and parent to the boys, but he was not able to “parent” the children because Ms. Noun would regularly insult or denigrate him in front of the boys, thereby undermining his role.
[37] However, during cross-examination, Mr. El Khatib admitted that
a. He never cared for the boys alone, during the marriage or after separation.
b. He left the matrimonial home in 2019 and returned 3 months later on May 30, 2019. During this three-month period, he did not visit or speak with the children;
c. In May 2019, E. contracted a serious viral infection that caused him to be in tremendous pain. Ms. Noun’s brother called him to return to the matrimonial home, since he had left the home in March 2019, to check on E. He returned on May 30, 2019 and left on June 1, 2019, to travel to Italy for a work conference.
d. Mr. El Khatib could have returned to Canada but, instead, went to visit his family in Lebanon on June 18, 2019;
e. He travelled to Montreal for three weeks between March and April 2019;
f. When he travelled regularly for work, he never telephoned to speak with the children or video called them. Instead, he would call Ms. Noun and ask her how the children were;
g. He left the home on September 19, 2019, without telling the children he was leaving;
h. He did not see the children until November 2019.
i. Ms. Noun reached out to him to facilitate him seeing the children between September 2020 and November 2020.
j. He relocated to Vancouver on September 26, 2020 because his employment position had become obsolete. He did not tell the children he was relocating to Vancouver and would not see them for some time.
k. He did not visit the children between October 2020 and July 2021, when he was in Vancouver. However, he travelled to Lebanon in December 2020 and stayed there for 5 months, instead of returning to Ontario to see the children;
l. He returned to Toronto on July 2, 2021 and continued to work on Vancouver time and Ms Noun facilitated him seeing the children.
m. When he was in Toronto in July 2021, he wanted to spend time alone with the children, but Ms. Noun would not allow it. As a result, he decided to have supervised parenting time with the children but that this time be supervised by someone other than Ms. Noun. After scheduling a visit with the children at the Brayden Supervision Centre, Ms. Noun brought the children to the centre, but they refused to get out of the vehicle. He did not consider the impact on the children of spending time with him at supervised access centre when they had never had parenting time with him after the separation without their mother present.
n. He asked Ms. Noun to tell the children about the separation. He did not want to tell the children on his own, because he feared for his safety if he did; and
o. Ms. Noun told the children about the separation in April 2022 as per his direction and using the language that had been suggested to the parents by the reunification therapist, Ms. Barkin.
[38] Mr. El Khatib’s narrative during his testimony was that Ms. Noun was controlling and would not allow him to parent the children. However, Mr. El Khatib was not able to adduce any evidence that demonstrated that Ms. Noun interfered with his attempts to parent the children or access information about the children’s health, education or well-bring from any third parties involved with the children.
[39] Mr. El Khatib argued that Ms. Noun isolated him from his family and friends and behaved in a controlling and jealous manner during their marriage. However, Mr. El Khatib was not able to adduce any evidence that demonstrated this was true.
[40] Mr. El Khatib alleged that Ms. Noun “alienated” the children again him, but he did not put forward any evidence on the record of the following alienated behaviours:
a. A campaign of denigration of targeted parent;
b. Wek, frivolous and absurd rationalization for rejection of targeted parent;
c. Lack of ambivalence about alienating parent;
d. Child professes decision to cut off parent as child’s intendent decision;
e. Absence of guilt about treatment of targeted parent;
f. Reflexive support of alienating parent in parental conflict;
g. Presence of scenarios borrowed from alienating parent;
h. Rejection of targeted parents’ extended family.[^6]
[41] In this matter, E. and A. did not denigrate Mr. El Khatib. Their refusal in seeing him was not rooted in weak, frivolous or absurd rationalizations. Rather, it was based on their perceived and lived experiences of having lived with their father, having been physically disciplined and/or emotionally abused by Mr. El Khatib, all of which was confirmed by the therapists that have worked with them.
Children’s Mental Health Post-Separation
[42] After the separation, the children both suffered tremendously. Ms. Noun testified that A. was experiencing anxiety symptoms, including stomach pain, shortness of breath and trouble sleeping. Additionally, E. was experiencing difficulty in school with his attention, focus and acting out.
[43] The family doctor referred E. to a psychologist on June 22, 2019 to address his acting out behaviours at school. E. was assessed by Dr. Govan and diagnosed with ADHD and ODD. As a result of this diagnosis, E. was given an IEP which has been in place since the beginning of Grade 1.
[44] The children were not told about the separation until April 2022, despite the fact that the parties had been separated since September 2019. Much was made of the fact by Mr. El Khatib that he had asked Ms. Noun to tell the children that the parties had separated, and she refused to do so. Ms. Noun testified that she did not want to be the parent to tell the children about the separation. Firstly, she submitted that she had hoped she and Mr. El Khatib would have further discussions about their separation before the children were told. Secondly, she submitted that culturally it would have been inappropriate for her to be the parent to tell the boys about the separation without involving Mr. El Khatib, since he was male and initiated the divorce. Thirdly, Ms. Noun did not want to take on that responsibility on her own. Mr. El Khatib testified that he did not tell the boys about the separation because he “feared for his own personal security” if he did so, implying that Ms. Noun would have tried to harm in some fashion if he told the boys about the separation. Despite claiming this, Mr. El Khatib provided no evidence as to how or why his personal security was threatened by Ms. Noun. In the end, Ms. Noun told the boys about the separation, using the language suggested to her by Jennifer Barkin, the reunification therapist, which Mr. El Khatib sought and sent to Ms. Noun.
[45] The children were already resisting having parenting time with Mr. El Khatib when they were told about the separation. As mentioned above, the children have not seen or spent time with Mr. El Khatib since July 2021.
[46] At a motion before Shore, J. on January 20, 2022, the parties reached a consent to retain Jennifer Barkin to conduct reunification therapy to assist in the repair of the boys’ relationship with their father. Ms. Noun testified that when she agreed to “reunification therapy” she was not fully aware of the process. Since Ms. Barkin was appointed by the Court, she was the Court’s witness at trial.
[47] Upon learning that they would be commencing reunification therapy, both children started to experience severe anxiety symptoms. The family doctor, Dr. Kodsi, referred A. to a therapist to address his anxiety symptoms which included shortness of breath and stomach upset. Beginning in April 2022, A. began therapy with a psychotherapist to address his panic attacks and anxiety symptoms. E. was also referred to a therapist to address his trauma and symptoms he was experiencing. E. began therapy with a social worker in June 2022.
[48] It is agreed that when Ms. Noun brought the children to their first scheduled session with Ms. Barkin on May 23, 2022, they would not leave the car. Ms. Noun had described to them that the reunification therapy was to allow them to work on repairing their relationship or estrangement from Mr. El Khatib. Ms. Barkin testified that she went out to the car to encourage the children to come inside for their appointment and A. told her boldly that he did not want to speak to her, and she could not make him speak to her. Ms. Barkin, in front of both A. and E., told Ms. Noun that children should be given consequences if they refuse to do something, i.e. see their father, and Ms. Barkin admitted during her testimony that she called A. “rude” within his ear shot.
[49] Natascha Piciga, E.’s trauma therapist, testified at trial as a participant witness. Ms. Piciga is a psychotherapist from the Toronto Neurofeedback and Psychotherapy Centre. She testified that E. was referred to her to provide E. with a safe space in which he could express his emotions and work through his anxiety and fears toward his father. Ms. Piciga first began working with E. on June 2, 2022 and subsequently saw him weekly. She deposed that on July 5, 2022, E. expressed anger and sadness about being forced to meet with a social worker who was not supportive of his feelings and who told his mother that if he and his brother did not want to see their father, they should be punished. When Ms. Piciga asked E. why he did not want to see his father, E. shared his experiences growing up and his fears that Mr. El Khatib would take him away and try and kidnap him from school. E. told Ms. Piciga that he was yelled at by his father and not listened to. He also described being locked in a room with his brother and mother for a long time. Ms. Piciga’s clinical notes reveal that E. shared previous abuse he experienced at the hands of his father; E. told her he was worried about his father showing up when he is alone; and E. described his father as mean, scary and a monster.[^7] Ms. Piciga’s therapeutic involvement with E. ended on November 16, 2022, because she felt that E. would benefit from trauma therapy, at which time she referred him to a specialist.
[50] Iva Keightley, a registered social worker and psychotherapist, A.’s therapist, also testified at trial as a participant witness. Ms. Keightley specializes in in EMDR therapy[^8], a therapeutic model that aims to transform traumatic experiences into positive feelings by identifying and processing a person’s triggers in the hope of neutralizing them. She testified that A. was referred to her to address his anxiety and fears about his father. She treated A. from April to November 2022. She stopped treating A. because he was not progressing at the speed people typically progress in EMDR therapy and she recommended that A. by assessed by a psychologist who specializes in child/teenage trauma, as she suspected he may have PTSD but, as a social worker, was unable to diagnose him.
[51] Ms. Keightley testified that A. told her he was very scared when his father forced him to shave his head and he showed pictures of his shaved head to her. He told her that he was worried that he would be forced to spend time with his father and that his father would find out how he feels about him and beat him. A. also disclosed that he had a negative reaction to Ms. Barkin, the reunification therapist, because he felt that she was forcing him to spend time with his father which retraumatized him and she refused to hear him or listen to his fears and concerns. He was also very upset that Ms. Barkin called him “rude”. In terms of his memories, A. described being hit by his father, drinking water and being hit in the face, attempting to do the monkey bars and being laughed at by his father when he failed; and being forced to ride his bike despite suffering injuries and feeling discouraged.[^9]
[52] Ms. Keightley’s clinical notes[^10] reveal that A. made the following disclosures during his sessions with her:
a. “My father had power over me all my life”.
b. “My father forced me to do things – now Jennifer is forcing me to do things that I do not feel comfortable and safe doing. If I say no to her she calls me rude – how would she call my father when he hits me?”
c. “I feel I do not have a right to protect myself if he [the father] is violent”.
[53] Given A.’s expressed fears of being kidnapped by his father and the past abuse, Ms. Knightley made a report to the CAS on July 12, 2022 due to A.’s severe anxiety symptoms and his extreme hypervigilance. CAS decided not to investigate the concerns further because A. and E. were in the care of Ms. Noun.
[54] Diana Velikonja, the child psychologist who completed psychological assessments of both A. and E., also testified at trial, as a participant expert. Both A. and E. were referred to Dr. Velikonja by their family doctor, Dr. Kodsi.[^11] On January 9, 2023, Dr. Velikonja prepared a Psychological Assessment and Treatment Plan for E. She had assessed E. on December 17, and 20, 2022 and testified that,
a. E. told her that he remembers his father being physically and verbally violent toward him.
b. Specifically, E. described being hit, slapped, pinched, squeezed, locked in a closet, locked in a room with his brother and mother, hit with a slipper and being called spoiled.
c. He recalled doors being broken and he feared being along with his father.
d. He had a worry that if he didn’t do things right, his father would discipline him harshly.
e. He also told her that he witnessed his father be physically and verbally violent toward his brother and mother.
f. Of great concern to him was being at the zoo and his father’s brother suggesting that he and his brother get in the car with the uncle and not tell his mother. He truly believed that his father would take him. As a result, E. is vigilant about watching for his father; he was nervous at night and had bad dreams related to his father threatening him.
[55] Dr, Velikonja testified that her clinical impressions were that E. suffered from Post-Traumatic Stress Disorder (“PTSD”) and Separation Anxiety Disorder based on the following criteria: a) E. had excessive distress about his primary attachment figures, his mother and brother; b) E. was reluctant to leave the home to go to activities or to places not part of his routine; c) E. perceived school as a safe place and that his mother was safe when he was at school; d) E. was not comfortable to sleep away from home; e) E. experiences intrusive and recurring thoughts of physical and verbal abuse he suffered at the hands of his father; f) E. reports feelings of fear and detachment from his father; and g) E. has an excessive distortion of his negative impression of his father.
[56] Dr. Velikonja testified that she did not feel E.’s earlier diagnosis of ADHD and/or ODD in 2019 were applicable when she assessed E. Rather, she felt that E.’s trouble concentrating was the result of his fears and not his ADHD. In terms of treatment, she believed it would be important for E. to learn to cope with his sense of threat because his level of hypervigilance was very extreme. Dr. Velikonja testified that she felt it was important for E. to learn coping strategies and if there was to be a reunification process, it would have to be done in a very careful way given E.’s heightened level of concern, anxiety and perceived level of threat.
[57] In terms of the Psychological Assessment of A., she described that A. asked to speak with her before he came in. Specifically, A. wanted to know if Dr. Velikonja was going to have contact with his father or if his father was going to part of the process because if he was, A. was uncomfortable with that. Dr. Velikonja testified that
a. A. presented as guarded and tense;
b. A. also demonstrated significant stress and anxiety when separating from his primary attachment figure, his mother;
c. A. had excessive worry about something bad happening to his mother;
d. A. was worried to leave the house because of his mother’s safety;
e. A. was not comfortable to sleep out.
[58] Dr. Velikonja concluded that A.’s symptoms are consistent with Separation Anxiety Disorder and PTSD based on the following criteria: (a) He talked about having experienced and witnessed a traumatic situation, physical and verbal violence which led to fear of his safety; (b) He was told by his father he could not cry and watched his mother and brother be exposed to violence. He was fearful for their collective wellbeing; (c) His fear of safety was entrenched and a heightened sense of threat about his father; (d) He felt shame, intrusive thoughts, flashbacks, nightmares, racing heart, and on most days he has avoidance, fear and detachment from his father; (e) She was struck by his severe anxiety and the intensity of his perceived level of threat. He was not able to even describe what would have to happen for him to feel safe. He was fixed; and (f) He had a sense of hopelessness and fear for his future.
[59] As indicated above, the parties consented to engaging Jennifer Barkin as their reunification therapist. Although Ms. Barkin testified as a witness in this trial, she was not qualified as an expert in reunification therapy. It was clear from her testimony that Ms. Barkin perceived the children’s reluctance to engage with her as the reunification therapist as emanating from Ms. Noun.
[60] Ms. Noun and both therapists testified that A. and E. both felt that Ms. Barkin was “forcing” them to see their father, she did not listen to them, and she felt they should be punished for their refusal to see their father.
[61] During her testimony, Ms. Barkin acknowledged that she did not have any of the background information to verify whether the children had, in fact, experienced physical or verbal violence at the hands of Mr. El Khatib, nor was she able to speak to the boys’ respective trauma therapists. Further, Ms. Barkin did not speak to the children’s physician, Dr. Kodsi, to Dr. Govan (who had diagnosed E. with ADHD and ODD), or to Dr. Velikonja, the psychologist who assessed both A. and E. The only third-party collateral Ms. Barkin spoke to was, the principal at E.’s school, Ms. Jeanette Lang, who gave her misinformation about a letter Ms. Noun requested of her.
[62] During cross-examination, Ms. Barkin admitted that she was not able to develop a rapport with the children; she was not able to establish the nature or the strength of the children’s’ relationship with Mr. El Khatib; she did not give due consideration to Ms. Noun’s disclosure of physical and mental abuse; she gave too much weight on what she perceived to be Ms. Noun’s lack of cooperation with the reunification therapy process; she was not aware of Mr. El Khatib’s extensive travel during the marriage; she was not aware that Mr. El Khatib had never parented the children alone for more than a few hours; she accepted Mr. El Khatib’s assertions that he had been denied contact with the children since separation; she was unaware that Ms. Noun had been facilitating telephone calls and visits between the children and Mr. El Khatib; she did not review the children’s school records or report cards; she did not account for cultural or religious considerations; and her conclusions were based upon incomplete and inaccurate information.
[63] As a result, I give little weight to Ms. Barkin’s evidence as it was clear to the Court that she has no expertise in reunification or resist/refuse dynamics between children and parents and that this family’s dynamics were beyond her skill set.
[64] In cross-examination, Ms. Barkin did admit and acknowledge that if the children had experienced family violence, reunification therapy would not be an appropriate process as it could potentially retraumatize the children.
[65] I find, therefore, that it is not in the children’s best interests to continue in any reunification therapy process, given their diagnoses of PTSD and separation anxiety which emanates from their lived and/or perceived experiences with Mr. El Khatib. As a first step, the boys need to be in therapy to develop coping mechanisms to live with their heightened states of anxiety and perceived threat.
[66] Mr. El Khatib has presented a plan of care for A. and E. that would have them move with him to the UAE. This plan would result in the children being uprooted from their schools, their neighbourhood, their friends, their activities and their primary caregiver, Ms. Noun. Mr. El Khatib, however, did not present a true plan of care for the children. He did not advise the court whether he had looked into schools for the boys; whether he had looked into replacement doctors/dentists for the boys; whether he had considered the kind of therapy the boys could access in the UAE; or whether the schools in the UAE could meet E.’s educational needs as set out in his IEP, etc.
[67] I find that Mr. El Khatib’s plan does not consider the ages of the children or their need for stability and predictability. More concerning is that Mr. El Khatib’s plan of care demonstrates that he has little insight into why A. and E. are estranged from him and the role that he played in this estrangement.
[68] Of tremendous concern to the Court was Mr. El Khatib’s decision to relocate to Vancouver in August 2019 and his failure to tell the children he was moving. Mr. El Khatib then went 10 months without seeing the children but blames Ms. Noun for the rupture in his relationship with the boys. Mr. El Khatib did not approach his post-separation parenting in a child-focused manner. Rather, he left it to Ms. Noun to tell the children about the separation and then proceeded to blame her for her delay in doing so. Further, he did not think it would be important for the boys to hear from him that he was relocating to Vancouver and would not see them for quite some time. When Ms. Noun asked Mr. El Khatib if she and the boys should move to Vancouver to be close to him, he dismissed this plan commenting that a move by her and the children to Vancouver would not make sense if the boys would have to relocate again. This approach makes it clear that Mr. E Khatib, himself, does not see his parenting role in relation to the boys’ as important.
[69] Instead of trying to understand why both A. and E. resisted spending time with M. El Khatib, he took the approach that it must have been Ms. Noun who was poisoning the children against him. The text messages and emails between the parties are clear that Ms. Noun was always encouraging the children to spend time with Mr. El Khatib and making suggestions to entice the children to spend time with Mr. El Khatib, yet, nonetheless, Mr. El Khatib has continued to insist that A. and E. don’t want to spend time with him because of Ms. Noun. I find that Mr. El Khatib has little insight into the impact of his actions on the children, demonstrating an inability on his part to place the children’s needs and best interests ahead of his own.
[70] Section 2(1) of the DA sets out an expansive definition of what constitutes family violence:
Family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect oneself or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property.
[71] As set out in paragraph [41] by Pazaratz, J. in Dayboll v. Binag, 2022 ONSC 6510, with its expanded definition, family violence can take many forms, including the following:
a. Family violence can be insidious, and frequently involves coercive and controlling behaviors which can create an imbalance of power in a relationship.
b. Violence need not be physical. Emotional and psychological abuse can have a devastating impact on a child. B. v. W. 2022 ONSC 934(SCJ).
c. Denigration of the other parent in front of the children has been found to fit within the definition of family violence: Ammar v. Smith, 2021 ONSC 3204(SCJ); McIntosh v Baker, 2022 ONSC 4235(SCJ); N.M. v. S.M., 2022 ONCJ 482(OCJ).
[72] In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada recently addressed the relevance of family violence in parenting determinations and stated:
a. Courts have increasingly recognized that any family violence or abuse may affect a child’s welfare and should be considered when determining a parenting order.
b. In relocation cases, have been significantly more likely to allow relocation applications where there has been a finding of abuse.
c. The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator’s parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives.
d. Harm to children can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.
e. Domestic violence allegations are notoriously difficult to prove. Family violence often takes place behind closed doors and may lack corroborating evidence. Thus, proof of even one incident may raise safety concerns for the victim or may overlap with and enhance the significance of other factors, such as the need for limited contact or support.
f. The prospect of repeated or protracted may deter abuse survivors from coming forward. The evidence shows that most family violence goes unreported.
g. The recent amendments to the Divorce Act recognize that findings of family violence are a critical consideration in the best interests analysis: Section 16(3)(j) and (4). The Divorce Act broadly defines family violence in Section 2(1) to include any violent or threatening conduct, ranging from physical abuse to psychological and financial abuse. Courts must consider family violence and its impact on the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child.
h. Because family violence may be a reason for the relocation and given the grave implications that any form of family violence poses for the positive development of children, this is an important factor in mobility cases.
[73] A. and E. have been clear with their family doctor, their mother, their individual therapists, Ms. Barkin and the psychologist who assessed them that they are afraid toward their father. They have bravely explained to the adults who have been there to listen that they have witnessed abuse and been verbally and physically abused by their father. They have explained that they are fearful that their father will try and take steps to kidnap them. They have expressed that they are scared about their own safety and their mother’s safety. These fears and anxiety have manifested into physical symptoms which include shortness of breath, stomach problems, difficulty sleeping, intrusive thoughts and feelings, sweating and racing hearts.
[74] Although Mr. El Khatib denies he has been violent or emotionally abusive to Ms. Noun and/or A. and E., I find Ms. Noun’s evidence on this and most topics to be credible and very concerning.
[75] To address both boys’ emotional needs and current diagnoses of PTSD and Separation Anxiety Disorder, I am persuaded that moving the children from Ms. Noun’s primary care into the primary care of Mr. El Khatib would be to grossly ignore their emotional trauma. Mr. El Khatib’s proposes to suddenly change everything in the children’s lives, seemingly with no awareness or regard for the impact of such upheaval on the children demonstrates a sense of entitlement, selfishness and poor parental judgment. Both A. and E. need to be in the care of a parent who will address their need for treatment and assist them in gaining the coping skills they both need to manage their anxiety, hypervigilance and entrenched views of their father. It is only once these coping skills have been acquired that any kind of reunification therapy can commence.
[76] Mr. El Khatib needs to validate both A.’s and E.s feelings, even if he does not agree with them. Further, Mr. El Khatib needs to demonstrate and model to both A. and E. that he will be there for them while they sort through their difficult feelings. It will be very difficult for Mr. El Khatib to demonstrate his commitment to improving his relationship with the boys once he moves to the UAE for work, unless he builds in time to regularly try and connect with them and/or see them, when A. and E. are ready.
[77] I find that Mr. EL Khatib’s prolonged absences from the children’s lives, along with the children’s perceived threat of their father, is such that it is not in the children’s best interests to be in the primary care of the father. Further, I find it is not in the children’s best interests to be removed from their current primary residence in Toronto with their mother and moved with the father to the UAE. Further, it is clear that Mr. El Khatib is not in the best position to meet A.’s and E.’s social and emotional needs.
[78] There is no evidence that Mr. El Khatib and Ms. Noun have been able to work together, communicate and make important decisions about the children together. Instead, Ms. Noun has demonstrated a willingness to consult with and obtain Mr. El Khatib’s consent in relation to the children and Mr. El Khatib has either refused to participate or diminished her concerns. Without any meaningful objection, Mr. El Khatib has allowed Ms. Noun to make all decisions about the children since the separation and Ms. Noun has been consistently making good decisions. Ms. Noun has clearly demonstrated a history of working with the third-parties involved with the children in making thoughtful decisions that are in A.’s and E.’s best interests, including following the recommendations of the physician and beginning therapy, obtaining educational supports for E. and continuing to involve Mr. El Khatib.
[79] Joint decision-making requires a basic level of respect and civility between the parents so that meaningful communication regarding the children can occur. Both parents must have the opportunity and comfort level to express their views and have meaningful input into the decisions that have to be taken. But effective co-parenting cannot occur in an environment of verbal abuse or intimidation. No parent should be exposed to the bullying of a former spouse in the name of shared parenting. Cameron v. MacGillivray, 2005 CarswellOnt 8095 (SCJ); Brown v. Brown, 2021 ONSC 1753(SCJ)
[80] At the very least mutual trust and respect are basic elements required for shared decision-making to work effectively. L.B. v. P.E. 2021 ONCJ 114; Jacobs & Coulombe v. Blair & Amyotte, 2022 ONSC 3159(SCJ); S.W.-S. v. R.S., 2022 ONCJ 483(OCJ).
[81] In Dayboll v. Binag, 2022 ONSC 6510, Pazaratz, J. states in para. [58]:
In the wrong family circumstances, a joint decision-making order can perpetuate hostilities, indecision, and power struggles. Children -- particularly children already exposed to the upset of family breakdown -- look to their parents for love, guidance, stability, protection, and consistency. They need to have confidence that adult decisions will be made quickly, properly and uneventfully. Izyuk v. Bilousov, 2011 ONSC 6451, 2011 CarswellOnt 12097 (SCJ); Seyyad v. Pathan, 2022 ONCJ 501(OCJ).
[82] In S.S. v. S.K., 2013 ONCJ 432(OCJ) Sherr J. stated that courts should assess the dynamics of a family when determining if a joint decision-making responsibility order is appropriate. Particularly, the court should examine if the granting of such an order is:
a. more or less likely to de-escalate or inflame the parents' conflict;
b. more or less likely to expose the child to parental conflict; and,
c. whether a parent is seeking the order as a mechanism to inappropriately control the other parent. Parents who seek such orders for the purpose of asserting control over their former spouse and children tend to be rights-based, overly litigious, unbending and the best interests of their children can be secondary considerations. For such parents, a shared parenting order can be a recipe for disaster. It can become a springboard for that parent to assert control and make the lives of their former partner and children much more difficult.
[83] Given the hostility and mistrust between these parties; the serious allegations of family violence; the children’s perceived threat of violence from their father; the children’s diagnoses of PTSD and the fact that Mr. El Khatib is moving to the UAE – this is not a case for joint or shared decision-making. The evidence satisfies me that it is in the best interests of the children for Ms. Noun to continue to have sole decision-making authority over the major decisions that impact the children.
[84] Given the level of anxiety both A. and/or E. experience, which is entrenched, both A. and E. require ongoing treatment. Given the children’s’ perception of the high level of threat they each experience, it is critical that the traumatization is not intensified by Mr. El Khatib’s desire to reunify with the boys and/or that the boys be forced to spend time with Mr. El Khatib.
[85] Given that Mr. El Khatib is relocating to the UAE, it is impractical to require Ms. Noun to obtain his consent if she needs to obtain government issued documentation for the boys. Further, it is impractical to require Ms. Noun to obtain his consent to allow her to travel with the boys.
Issues Two and Three: What quantum of child support should Mr. El Khatib pay Ms. Noun going forward? What quantum of retroactive child support is owing by Mr. El Khatib?
The Law
[86] Pursuant to s.5.1(1) of the DA, a court has jurisdiction to make an order for child support. The CSG provides that the amount of a child support order for children under the age of majority is the amount set out in the applicable tables, according to the number of children to whom the order relates and the income of the spouse against whom the order is sought s.3(1) of the CSG.
[87] Section 16 of the CSG provides that a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form used by the CRA, adjusted as per Schedule III.
[88] During the trial, Mr. El Khatib proposed that he pay child support for the two children of the marriage on the basis of his 2022 income, as reported in his income tax return of $203,349. This level of income corresponds to table child support of $2,701 a month. In his closing submissions, Mr. El Khatib proposes that he pay child support based on what he claims his current income will be in the UAE, $175,000 a year. However, Mr. El Khatib provided no evidence whatsoever that this will be his income. The only evidence on which the court can rely for Mr. El Khatib’s income is his notice of assessment for 2022. Accordingly, any child support order will be based on Mr. El Khatib’s 2022 income of $203,349.
[89] Ms. Noun is agreeable to using Mr. El Khatib’s 2022 income to determine his table child support obligation as well as his going forward obligation to pay s.7 expenses.
Retroactive Child Support
[90] Pursuant to the consent order of Sanfilippo, J., dated July 14, 2021, Mr. El Khatib was to pay temporary without-prejudice child support to Ms. Noun in the sum of $2,462 a month; temporary without-prejudice spousal support to Ms. Noun in the sum of $3,223 a month; Ms. Noun was to assume sole responsibility for the rent; Mr. El Khatib was to continue to pay the car insurance and the car payments without prejudice to his right to argue that these payments be set off against spousal support payments
[91] On March 21, 2022, the parties attended a trial management conference before Nakonechny, J., at which, among other things, they settled the issues of prospective table child support for the children on a final basis, such that starting March 1, 2022 and on the first day of each following month, Mr. El Khatib was to pay child support in the sum of $2,462 based on his income of $175,704 and the parties were to exchange income information commencing June 1, 2023.
[92] Between the date of separation and until March 1, 2022, Mr. El Khatib was making third-party payments on behalf of Ms. Noun and the children. Both parties agree that these payments included rent; Car loan payments; car insurance payments; home insurance; cellular phone bills; and internet service.
[93] For the 2019, 2020 and 2021 years, the total third-party payments made by Mr. El Khatib on behalf of the children and Ms. Noun came to $99,922.38. This is not disputed.
[94] What is disputed is whether Mr. El Khatib should receive credit for paying 100% of the car loan payments for the parties’ jointly-owned car. Ms. Noun argues that he should not receive credit for making the car loan payments since Mr. El Khatib used the car more than she and the children had access to it, she did not want to keep the car and asked that he sell it, and she was forced to pay for expensive repairs for the car. The total car expenses between October 1, 2019 (after separation) until July 2021, when the consent order was entered into, came to $19,207. Accordingly, if Mr. El Khatib is given no credit for making the car loan payments as Ms. Noun submits, he will receive credit for $80,715.38 of the $99,922.38. If Mr. El Khatib receives credit for 50% of the car payments, since the car was in the joint names of the parties, as was the car loan, then he will receive credit for $9,603.50 of the car expenses, or $90,318.88 of the $99,922.38 paid in third-party expenses.
[95] Using the income information for Mr. El Khatib for 2019, 2020 and 2021, the child support that was owing by him pursuant to the CSG compared with what was paid by him is set out in the chart below:
Year
Mr. El Khatib’s Income as per NoA
Child Support as per CSG
What was paid by Mr. El Khatib
2019
$146,774
$6,762
($2,254 x 3 months)
$14,872.23
2020
$185,704
$30,060
($2,505 x 12 months)
$56,160.26
2021
$193,498
$18,704
$2,672 x 7 months)
$28,889.89
TOTAL
$55,526
$99,922.38
Overpayment
$44,396.38 or
$34,792.88
(if Mr. El Khatib is only given credit for 50% of the car expenses of $9,603.50
[96] On July 16, 2021, Sanfilippo, J. made an order for child support that Mr. El Khatib pay child support in the sum of $2,462 a month, with which he has complied.
[97] For the period commencing August 1, 2021 to and including February 28, 2023, Ms. Noun submits that Mr. El Khatib owes her retroactive child support in the sum of $5,628, calculated as follows:
Year
Mr. El Khatib’s income as per NoA
What child support was paid as per consent order
What Mr. El Khatib Should have paid
Underpayment
2021
$194,498
$12,310
$2,462 a month x 5 months
$13,360
$2,672 a mo. X 5 months
$1,050
2022
$203,349
$29,532
$2,462 a mo. x 12 months
$33,468
$2,789 a mo. x 12 months
$3,924
2023
$203,349
$4,922
$2,462 a mo. x 2 months
$5,578
$2,789 a mo. x 2 months
$654
Total
$35,684
$52,406
$5,628
[98] Given that the car was jointly-owned, I find that Mr. El Khatib should be given credit for paying 50% of the car loan payments. Accordingly, up until the consent order, Mr. El Khatib overpaid child support by $34,792.88 less the retroactive adjustment of $5,628, leaving an overpayment of child support of $29,164.88.
[99] Both Ms. Noun and Mr. El Khatib agree that this overpayment should be applied to the spousal support Mr. El Khatib owed retroactive to the date of separation.
[100] The most recent Family Responsibility Office (“FRO”) statement of arrears is dated January 6, 2023. It was tendered an exhibit at trial and lists the arrears of child support at $13,285.95.[^12]
[101] Applying the amount of spousal support set out in the Sanfilippo consent order, being $3,223 a month for the period October 2019 to and including July 31, 2021, adjusted for income taxes, Mr. El Khatib should have paid net spousal support of $50,502. If we deduct the net overpayment of child support of $29,164.88, the remaining lump sum net spousal support Mr. El Khatib owes Ms. Noun is $21,337.12.
[102] Applying Mr. El Khatib’s actual incomes for 2021 and 2022 and using the mid-range of the SSAGs, the chart below details what Mr. El Khatib should have paid in spousal support, as compared with what he did pay:
Year
Mr. El Khatib’s income as per his NoA
Spousal Support paid by Mr. El Khatib as per Sanfilippo consent order
What Mr. El Khatib should have paid using the mid-range of the SSAGs
Underpayment
2022
$193,498
$38,676
$3,223 a mo. x 12 months
$43,980
$3,665 a mo. x 12 months
$5,304
2023
$203,349
$6,446
$3,223 a mo. x 2 months
$7,702
$3,851 a mo. x 2 months
$1,256
Total
$6,560
Plus The remaining retroactive net lump sum spousal support
$21,337.12
Plus the FRO arrears of support under the Sanfilippo Consent Order as at Jan 6, 2023
$13,285.95
Total child and spousal support arrears owing in net dollars
$41,183.07
[103] Mr. El Khatib owes Ms. Noun arrears of s.7 expenses. He did not take issue with any of the section 7 expenses Ms. Noun incurred for the children. The total amount of the s.7 expenses arrears are $12,248.05.[^13]
Issues Four and Five: What quantum of spousal support should Mr. El Khatib pay Ms. Noun going forward and in what duration? What quantum of retroactive spousal support is owing by Mr. El Khatib, if any?
[104] Ms. Noun seeks spousal support in accordance with the high-range of the SSAGs. She argues that this is not a case where spousal support should be terminated or time limited.
[105] Mr. El Khatib did not take issue with Ms. Noun’s entitlement to spousal support. The issue between the parties is the quantum and duration of spousal support.
[106] I find that Ms. Noun has a strong compensatory and needs based entitlement to spousal support based on the following factors:
a. She deposes that she was the victim of financial and verbal abuse by Mr. El Khatib throughout the marriage. Mr. El Khatib controlled the family’s finances and made all financial decisions for the family.
b. Given that only Mr. El Khatib worked during the marriage, his income was the only source of support for the family. Ms. Noun was entirely financial dependent on Mr. El Khatib during their marriage and since separation.
c. Ms. Noun was never gainfully employed during the marriage.
d. Ms. Noun sacrificed her own career path and skills to assist Mr. El Khatib in advancing his career. This is demonstrated by the following:
i. The parties met in 2003 in Lebanon. They became engaged in December 2005. After they became engaged Mr. El Khatib moved to Lebanon for work in 2006.
ii. Their engagement lasted 18 months. Ms. Noun was living in Beirut and Mr. El Khatib was travelling, working for a few months in Lebanon.
iii. In September 2006, Mr. El Khatib’s employer offered him a position in Saudi Arabia. As a result, Mr. El Khatib travelled to Saudi Arabia in November 2006 and the parties agreed he would work in Saudi Arabia for a year to save money. The parties were married in Lebanon on June 23, 2007, after which Ms. Noun moved with Mr. El Khatib to Saudi Arabia. This was the first move Ms. Noun made for Mr. El Khatib’s work.
iv. Prior to the marriage, Ms. Noun worked in Lebanon for a few months. In Saudi Arabia, Ms. Noun testified that she was unable to work because she was a woman and there were cultural boundaries imposed on her. In 2008, Ms. Noun worked for five months in Saudi Arabia, but left her employment because of a sexual assault.
v. Once Ms. Noun became pregnant, she went to reside with her parents in Beirut. When A. was born, the parties moved back to Lebanon in early 2010. This was the second move Ms. Noun made for Mr. El Khatib’s work. Mr. El Khatib then travelled to the UAE and decided to work there because he could earn four times his salary in the UAE than what he was able to earn in Lebanon.
vi. In early 2011, Ms. Noun completed a computer certificate course and found a job while A. attended at daycare where her sister was working. Mr. El Khatib then asked Ms. Noun to move with him to Dubai and she agreed to relocate again in August 2011. This was the third move Ms. Noun made for Mr. El Khatib’s work.
vii. Ns. Noun’s Visa in Dubai indicated that she was a dependant and not allowed to work in Dubai. In early 2012, Mr. El Khatib told Ms. Noun that he was applying to immigrate to Canada. At that time she was pregnant with E. E. was born on May 31, 2013. The parties started the process to move to Canada right after he was born. The parties landed in Canada on September 19, 2014. This was the fourth move Ms. Noun made for Mr. El Khatib’s work.
viii. Within 4 months of arriving in Canada, Ms. Noun’s father passed away in Lebanon. The parties travelled with the children to Lebanon for two weeks, during which trip E. broke his femur bone and was in a full cast from his stomach to his toes for ten weeks.
ix. Ms. Noun’s language skills were such that she was not able to find employment in Canada, particularly since she has no employment skills.
x. Beginning in 2016, Mr. El Khatib travelled to the United Kingdom for work for five weeks and Ms. Noun stayed with the children in Canada. During that time, the parties’ Visas expired. Ms. Noun was unable to obtain employment in Canada without a work permit. From July 13, 2016 to September 10, 2016, Mr. El Khatib went to Lebanon, leaving Ms. Noun and the children in Canada.
xi. In November 2017, Mr. El Khatib obtained his LMIA, which allowed the parties to become permanent residents in Canada. Ms. Noun obtained her permanent residence status on October 13, 2017.
xii. From February 27, 2017 to May 11, 2017, Mr. El Khatib moved to London for four months, leaving Ms. Noun and the children in Canada.
xiii. From September 2018 to October 21, 2018, Mr. El Khatib returned to Lebanon, leaving Ms. Noun and the children in Canada.
xiv. After separation, when the Covid-19 health crisis began, Ms. Noun was solely responsible for guiding the children through online schooling and Mr. El Khatib was not present.
e. From the time the parties were married, Ms. Noun has moved four times to four different countries to support Mr. El Khatib and the advancement of his career. She has never had an opportunity to pursue stable employment as a result. Given the demanding travel requirements for Mr. El Khatib’s employment, Ms. Noun was responsible for all of the childcare and operated as a single parent.
[107] Mr. El Khatib did not pay spousal support to Ms. Noun until the order of Sanfilippo, J., dated July 16, 2021.
[108] Spousal support in this case is governed by s.15.2 of the Divorce Act.
[109] The seminal cases in Canada on spousal support are Moge v Moge, [1992] 3 S.C.R. 813, 1992 25, and Bracklow v. Bracklow, [1999] 1 S.C.R. 420, 1999 715. Although both were decided in the 1990s, the principles they enunciate have continued to resonate in the case law since then. First, in Moge, the court noted, at pp. 848-849, “the purpose of spousal support is to relieve economic hardship that results from ‘marriage or its breakdown’. Whatever the respective advantages to the parties of a marriage in other areas, the focus of the inquiry when assessing spousal support after the marriage has ended must be the effect of the marriage in either impairing or improving each party’s economic prospects.”
[110] Bracklow requires the court to consider all the factors and objectives set out in the Divorce Act. The Court said, however, that no single objective is paramount. All must be borne in mind since “[t]he objectives reflect the diverse dynamics of the many unique marital relationships”: at para. 35. The uniqueness of marital relationships means that each case will be fact-driven to a large degree.
[111] Since Moge and Bracklow were decided, the SSAGs, although not law, have often been relied on by judges in determining the quantum and duration of a spousal support order, once a party has established his/her entitlement to spousal support. Unlike the Divorce Act, the SSAGs are not statutory authority. They are guidelines designed to advise on a reasonable range of spousal support and a reasonable duration for spousal support in various circumstances. While the SSAGs are advisory only, courts are required to consider them where they have been addressed by the parties: Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.
[112] Ms. Noun seeks spousal support from Mr. El Khatib in the sum of $4,555 a month, being the high-range of the SSAGs commencing on March 1, 2023 and on the first month of each following month.
[113] Ms. Noun argues that this is a case where spousal support should not be terminated or time limited. She seeks the high-range of the SSAGs in light of the many sacrifices she made for Mr. EL Khatib’s benefit and his career advancement: Afridi v. Shah, 2016 ONSC 1971, at para. 11.
[114] I find that Ms. Noun’s compensatory spousal support claim is very strong. She sacrificed any opportunity to pursue her own employment to support Mr. El Khatib’s career development. She married Mr. El Khatib immediately after completing her university degree and followed him to Saudi Arabia where there were severe restrictions in place for women to become employed; she never entered the work force prior to or during the marriage.
[115] Ms. Noun is the primary caregiver to the children. Her only means of support is from Mr. El Khatib in the form of child and spousal support, as well as the child tax benefit. She resides with the children in the rental apartment where the family moved when they arrive in Canada. She requires spousal support to maintain the lifestyle to which she became accustomed during the marriage. Further, Mr. El Khatib has the ability to pay spousal support. His 2022 income was in excess of $200,000. Mr. El Khatib provided no evidence whatsoever of his living expenses in the UAE nor did he argue that he cannot meet his living expenses or those of Ms. Noun and the children.
[116] I find that based on the roles played during the marriage, and the expectations of Mr. El Khatib on Ms. Noun, that she clearly suffered an economic disadvantage by virtue of the marriage and its breakdown. She sacrificed her own career to enable Mr. El Khatib to advance in his career path by moving with him to four countries and by looking after the children and household. While Ms. Noun does have an obligation to become self-sufficient, the disparity between what she would be able to earn and Mr. El Khatib’s current income of $200,000 a year is vast.
[117] I am persuaded that that Ms. Noun is entitled to spousal support in the high-range of $4,555 a month for an indefinite period of time, subject to variation and possible review.
Issues Five and Six: How should the Mahr be treated for Equalization Purposes and who is owed an EP and in what amount?
[118] Pursuant to s.5(1) of the Family Law Act, R.S.O., c. F.3 (“FLA”), the spouse whose net family property is the lesser of the two net family properties in entitled to one-half the difference between them.
[119] 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 number of factors, one of which is (h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property: s.5(6).
[120] According to Mr. El Khatib, he is owed an EP from Ms. Noun in the sum of $43,530.33. According to Ms. Noun, Mr. El Khatib owes her an EP of $11,762.68.
[121] Ms. Noun is seeking that the court take the Mahr out of the calculation of both parties’ NFP and treat it as a debt to be paid by Mr. El Khatib in addition to the EP. If the court is not inclined to exclude the Mahr from the calculation of each party’s NFP, then Ms. Noun asks to be paid an EP that is greater than what one-half of the difference would be between her NFP and Mr. El Khatib’s NFP as a result of the Mahr, pursuant to s.5(6) of the FLA.
[122] The areas of dispute between the parties are for the most part, nominal, except for the treatment of the Mahr. The summary of the differences between the parties’ NFP statements are listed below:
a. Mr. El Khatib placed a value of the household items on Ms. Noun’s side of the ledger of $3,000. This item was not included on Ms. Noun’s calculation of her NFP. I find this a reasonable figure for contents.
b. Mr. El Khatib disproportionately attributed $9,972.50 of the value of the 2014 GMC on Ms. Noun’s side of the ledger and allocates $6,000 to himself because Ms. Noun kept the vehicle until it was sold for $12,000 and the proceeds were divided equally. Ms. Noun allocates 50% of the value of the 2014 GMC on both parties; side of the ledger. I agree with Ms. Noun that this should be shared equally by the parties;
c. Mr. El Khatib values his savings and savings plans at $30,597.35 on the V-date and Ms. Noun values his savings and savings plans at $37,412.08 on the V-date, the difference being the value of his RRSP at Manulife, account #319. I find that the value of $37,412.08 for Mr. El Khatib’s savings and savings plans is reasonable.
d. Mr. El Khatib listed the Mahr as an account receivable for Ms. Noun with a value of $107,000 on the V-date. While Ms. Noun agrees with the value of the Mahr, she argues that it is unconscionable to include the value of the Mahr as an account receivable as her asset on the date of separation and on the date of marriage and as a debt for Mr. El Khatib on both dates;
e. Mr. El Khatib lists the values of the Mahr as at the date of marriage in the sum of $32,972 on Ms. Noun’s side of the ledger, whereas Ms. Noun does not include this as an asset on her side of the ledger as at the date of marriage.
f. Ms. Noun lists $4,000 as excluded property which was a gift she claims was received by her after the date of marriage by her parents in 2018, which she deposited into her Scotiabank savings account, #681. I am prepared to accept that Ms. Noun has excluded property of $4,000.
g. Mr. El Khatib lists the entire debt associated with the 2014 GMC Acadia on his side of the ledger in the sum of $12,191.28 whereas Mr. Noun lists 50% of the debt on each side of the ledger. I agree with Ms. Noun that this should be a debt listed on both sides of the ledger.
[123] Although a Mahr can be paid upon an Islamic divorce or during a marriage, in this case the parties agree that the Mahr was not paid during the marriage. The Mahr is also not paid to a wife if she initiates the divorce. It is not in dispute that Mr. El Khatib initiated the divorce and that he initiated an Islamic divorce.
[124] In Islamic law, there is no division of the Mahr between spouses. Rather, it is payable once the husband requests a divorce. The value of the Mahr as at the date of marriage is irrelevant. The only value that is relevant is what is payable under the Mahr at the time of separation.
[125] It is agreed that the Mahr in this case is the value of is 201 British Sovereign gold coins and 1 coin was paid prior to the marriage.
[126] It is also agreed that the value of the Mahr, being the 200 gold coins, on the date of separation, is $107,092.
[127] Further, there is no dispute that at the date of marriage, the value of 200 gold coins was $32,972 because the value of gold on the parties’ date of marriage was far lower than it was on the V-date.
The Treatment of the Mahr in Ontario
[128] Historically, Mahrs were entered into in order to ensure that a wife has some level of financial security on the breakdown of a marriage. Absent a Mahr, the wife’s rights, at least at some point, were restricted to property in her name, one-half of the home (since it was owned jointly). Iranian law did not provide for a sharing in the value of the increase in the assets and debts of each spouse between the date of marriage and the date of separation or for child or spousal support.
[129] The courts in Ontario have recognized the Mahr as an enforceable foreign marriage contract. The general treatment of the Mahr is that it is to be listed as an account receivable on the wife’s side of the ledger and valued as of any applicable dates in the calculation of her NFP. Conversely, it is to be listed as a debt on the husband’s side of the ledger on any applicable dates.
[130] The Mahr is treated as a lien on the husband that can be called upon by the wife if there is a breakdown of the marriage. There is no dispute in this case that the Mahr is an enforceable contract under the FLA, as it was made in writing, signed by the parties and witnessed: s.55(1) of the FLA.
[131] Although initially there was some dispute as to whether these traditional marriage contracts under Muslim law could be enforced in Canada, that disagreement was resolved by the Supreme Court of Canada in Bruker v. Marcovitz, 2007 SCC 54, [2007] 3 S.C.R. 607. A marriage contract that meets all the requirements for a civil contract under provincial legislation is legally enforceable, even if the contract has a religious aspect: see Bruker, at para. 123; Bakhshi v. Hosseinzadeh, 2017 ONCA 838, 139 O.R. (3d) 531, at paras. 21-22.
[132] In Khanis v. Noormohamed, 2011 ONCA 127, 91 R.F.L (6th) 1, at paras. 9-10, the Ontario Court of Appeal upheld the decision of Backhouse J. to enforce a Mahr agreement, which was in writing, signed by both parties and witnessed, thereby complying with the provisions of the FLA.
[133] It is Ms. Noun’s submission that the inclusion of the Mahr as an account receivable on her side of the ledger increases the equalization payment that she will owe Mr. El Khatib, which is punitive to her. It is her position that since she is the payer of the equalization and the recipient of the Mahr, the calculation of the equalization payment should not impact the Mahr that the husband owes her. She asks that this court not include the value of the Mahr as either an account receivable or a debt in the calculation of the parties’ respective NFPs. Ms. Noun asks that the Mahr be paid by Mr. El Khatib to her after the amount of the equalization payment is determined without consideration of the Mahr.
[134] Ms. Noun testified that the intent of the Mahr is to ensure that a wife has financial security in the event of a divorce. As a result, if the Mahr is considered in the calculation of the parties’ NFPs, the result will be that she has to pay the husband a greater EP than she otherwise would, which is contrary to the purpose of the Mahr in the first place.
[135] In Bakhshi, the parties were married in Iran in May 1995. They entered a Mahr that required the husband to pay his wife 230 gold coins upon her request. The Court of Appeal for Ontario did not interfere with the trial judge’s finding that the Mahr was a civil domestic contract enforceable under provincial legislation. Therefore, the husband had a debt to the wife, which was to be included in the equalization calculation: at paras. 2, 20-22, 34 and 41-44.
[136] In the case at bar, no agreement existed between the parties for the value of the wife’s entitlement or the husband’s obligation under the Mahr to be excluded from the calculation of the parties’ NFPs. As set out in Bakhshi, “the objective contractual intentions of the parties are to be determined as of the time when the contract is made”: at para. 22. There was no evidence at the trial presented that when she agreed to the terms of the Mahr, Ms. Noun had understood, believed or intended that the Mahr would not be considered in the resolution of the parties’ issues should they separate in Ontario, let alone that Ms. El Khatib had agreed that it would not. However, it was not contemplated that the parties would be moving to Canada when the Mahr was negotiated and as such, the parties did not contemplate their mutual obligations that could exist in Ontario under the FLA.
[137] As was the case in Bakhshi, absent any evidence of an objective intention at the time of the contract to treat the Mahr differently, the Mahr payment must be treated under the FLA like any other payment obligation between the spouses: at para. 34.
[138] Ms. Noun submitted at trial that the Mahr should be excluded from the NFP calculation as it was a transaction between her and the husband. This exact submission was made by the wife in the case of Bakhshi and rejected for the following three reasons, at para. 35:
First, there is simply no provision in the FLA that excludes transactions between spouses. On the contrary, bona fide inter-spousal debts must be included in NFP: Burke (Public Trustee of) v. Burke Estate, [1994] O.J. No. 1342 (Gen. Div.), at paras. 37-40, 1994 7442, at paras. 38-41; and Long v. Long, 1989 CarswellOnt 2687 (H.C.), at paras. 15-17. Second, because of the effect of the deeming provision in s. 4(5), transactions between spouses may affect the equalization payment where a spouse’s net assets would otherwise be negative. Transferred assets that fluctuate in value could also make a difference. Third, excluding transactions between spouses would be inconsistent with the separate property regime under the FLA, which continues during a marriage and terminates only on the triggering of the valuation date. As Feldman J.A. said in Stone v. Stone (2001), 2001 24110 (ON CA), 55 O.R. (3d) 491 (C.A.), at para. 26:
The nature of the property regime established as between spouses under the Family Law Act was clearly described by Cory J. in Rawluk v. Rawluk … Spouses each own their separate property throughout the marriage. However, upon the happening of one of the five triggering events, there is a valuation date.
[Underlining added. Citations omitted.]
[139] I conclude that the principles in Bakhshi apply to the issues in this case.
[140] Neither party suggested that the terms of the Mahr were unreasonable, let alone unconscionable. Neither party moved to set the Mahr aside under s.56(4) of the FLA or otherwise. To the contrary, Ms. Noun seeks her entitlement under the Mahr, and Mr. El Khatib has agreed to pay Ms. Noun the sum of $107,000 (the value of the gold coins on V-Day). It was the intention of the parties to be bound by the terms of the contract.
[141] 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, which in this case is Ontario: FLA, s.15.
[142] As an alternative argument, Ms. Noun seeks an unequal division of the parties’ NFP’s see FLA, s.5(6). Although not pled, Ms. Noun submits that as long as the parties are aware that the Court will be asked to vary the usual equalization of the net family property at the time it is calculated, the court has the discretion to apply s.5(6) if the conditions are met. Ms. Noun made it clear from the outset of the trial that it was her position that including the Mahr in the calculation of her NFP was unconscionable.
[143] The right to claim an unequal division of the parties’ NFPs is found in s.5(6) of the FLA, which reads as follows:
Variation of share
(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 number of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
[144] As recently stated in Daciuk v. Daciuk, 2023 ONSC 70 by Kurz, J. at paras. 18-21,
In determining unconscionability, the court must look to “the financial result, the result of the usual NFP equalization … after taking into account only the eight enumerated considerations, nothing else”: Cosentino v. Cosentino, 2015 ONSC 271, at para. 49, cited in Frick v. Frick, at para. 32.
In Maharaj v Wilfred-Jacob, 2016 ONSC 7925, at paras. 205-6, Trimble J. set out a very helpful summary of the rules and rationale for the application of s. 5(6) and its high bar of unconscionability. He wrote:
205 The case law has made it clear that the intent of the section is not to alleviate every situation that may be viewed as in some ways unfair or inequitable, because equal sharing should occur in most cases. The test is that equal division is "unconscionable", a high test, rarely met. The Ontario Court of Appeal has interpreted "unconscionable" to mean "shocking the conscience of the court" (see Macdonald v. Macdonald (1997), 1997 14515 (ON CA), 33 R.F.L. (4th) 75 (Ont. C.A.). The terms, "shockingly unfair", and "patently unfair" or "inordinately inequitable" have also been applied (see Mehmeti v. Mehmeti, [1999] O.J. No. 3534 at para. 12 and the cases referred to therein). Further, since the Family Law Act s. 5(6) uses the word "unconscionable" as opposed to "inequitable" as used in s. 4(4) of the Family Law Reform Act, the test is intended to be higher or more strict that unfairness, harshness or unjust (see Braaksma v. Braaksma, 1992 8623 (ON SC), [1992] O.J. No. 1326 (UFC) app'd 1996 904 (ON CA), [1996] O.J. No. 4097 (C.A.) and Peake v. Peake, [1989] O.J. No. 988 (Ont. H.C.J.).
In Serra v. Serra, 2009 ONCA 105, Blair J.A., writing for the Ontario Court of Appeal underscored the high bar intended by the Legislature when it set the test for an unequal division of NFP’s at unconscionability. At para. 48 he wrote: “There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable”.
The rationale for the setting of the bar under s. 5(6) at unconscionability rather than unfairness was articulated by Trimble J. in Maharaj v Wilfred-Jacob at para. 206 as follows:
206 The Family Law Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims (see Ward v. Ward, 2012 ONCA 462, para. [22 to 25](https://www.canlii.org/en/on/onca/doc/2012/2012onca462/2012onca462.html, and Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.
[145] In this case, Ms. Noun argues that her entitlement to receive an EP that is more than half the difference between the parties’ NFPs falls under s.5(6)(a) and (h). She argues that the Mr. El Khatib has not been forthright about his accounts and investments based on the following facts:
a. Mr. El Khatib’s RRSP increased by more than $60,000 between the date of separation, September 1, 2019, and the current date. On the V-date, his RRSP was valued at $26,944.04 and as at January 10, 2023, his RRSP was valued at $84,548.99. There is no explanation provided for how Mr. El Khatib’s RRSP grew by 32% over the past 41 months since separation;
b. The bank statements Mr. El Khatib produced for the one bank account he deposes he has in his name in Canada at RBC shows funds being withdrawn and deposited in a savings account (“Find and Save”) and an SHR investment account. The total amount of Find and Save funds were $612 in 2019; $1,971 in 2020 and $709 in 2021. The total funds transferred to an investment account were $450 in 2019; $2,302.11 in 2020 and $1,837.03 in 2021. There was also a transfer of $4,500 into Mr. El Khatib’s RBC account on April 8, 2021 from an unknown investment account. Mr. El Khatib did not disclose the Find and Save account or the investment account on his sworn financial statements.
c. During cross-examination, Mr. El Khatib admitted that the “Find and Save” account was held separately by him, as were the investment accounts. He testified that he tried to invest in stocks for a short while and was unsuccessful, so he closed the accounts. He did not disclose either of these accounts in his previous or updated sworn financial statements in this proceeding. During his testimony, Mr. El Khatib claimed this was an oversight on his part.
d. During cross-examination, Mr. El Khatib admitted that their household expenses totalled $6,000 a month. However, he would not admit to his income range being between $9,000 and $12,000 net per month in any given year, notwithstanding that he earned $185,708 in 2020; $193,498 in 2021 and $203,349 in 2022. Ms. Noun submits that Mr. El Khatib refused to admit to his available net income because then he would have to account for where the balance of his funds were going if they were not used to support the family.
[146] Ms. Noun argues that Mr. El Khatib’s NFP statement is likely a misrepresentation of his NFP and, as a result, the court should draw an adverse inference against him given his failure to disclose all of his bank accounts/investment account information. Ms. Noun submits that Mr. El Khatib’s failure to disclose all of his assets on his sworn financial statements affects the calculation of the EP and the impact of the Mahr on the EP. Since she claims that Mr. El Khatib has underrepresented his assets, there is no way for the Court to determine what else was not disclosed, but the unexplained significant increase in his RRSP post-separation by $60,000 indicates the extent of the non-disclosure.
[147] The essence of Ms. Noun’s unconscionability argument is premised on the fact that the unique circumstances of these parties’ finances is such that the inclusion of the Mahr in the calculation of each party’s NFP leads to an unconscionable result pursuant to s.5(6)(h) of the FLA. The fact that the recipient of the Mahr, Ms. Noun, is required to first equalize the value of the money owed to her under a contract with her debtor, and then receive less than half of the amount stipulated in the contract is unconscionable. The unique circumstances of this case are,
a. The fact that the Mahr as an account receivable to Ms. Noun is her only significant asset;
b. The fact that placing the Mahr on Mr. El Khatib’s side of the ledger as a date on both the date of marriage and the V-date results in him having a negative NFP which is deemed to be zero because the debt he owes Ms. Noun because of the Mahr exceeds the value of all of his other assets;
c. Since she owes Mr. El Khatib an EP, she ends up having to equalize or share the Mahr with Mr. El Khatib which defeats the purpose of the Mahr, granting him a discount on the full amount he owes to Ms. Noun, which he otherwise would not have received.
d. Mr. El Khatib’s assets on the V-date are $35,597.35, whereas Ms. Noun’s assets on the V-date are $130,767.65, comprised mostly of the Mahr in the sum of $107,092. Mr. El Khatib’s debts on the V-date total $129,124.30, compromised of the Mahr he owes Ms. Noun of $107,092. Ms. Noun’s debts on the V-date are $31.63. As a result, Mr. EL Khatib’s NFP is ($92,526.95) or deemed to be zero and Ms. Noun’s NFP is $130,735.02. Ms. Noun, therefore, owes Mr. El Khatib an EP of $65,368.01 and since the Mahr is still a debt payable by Mr. El Khatib to Ms. Noun, when he pays her the $107,092, she ends up receiving $41,723.99, discounting the Mahr by more than 50% of its value.
[148] Ms. Noun relies on Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, in which the court had to address the impact of market conditions on the value of the husband’s business after the V-date and the corresponding equalization payment ordered. The Court of Appeal concluded it would be “unconscionable” to order an EP of the NFPs based on the V-date value of the husband’s business, because to do so would result in the husband having to make an EP that exceeds his total net worth, perhaps significantly. The court also noted in Serra that an order for an unequal division of NFPs is exceptional and may only be made on such a basis:
a. Where the circumstances giving rise to the change in value related (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s.5(6)(h)) and
b. Where equalizing the NFP would be unconscionable, having regard to those circumstances.
[149] The market flotations, however, complained of by Ms. Noun occurred between the date of marriage and the date of separation, which is the period of time during which the strict application of s.5 of the FLA applies. Ms. Noun argues that the value of gold coins on the date of marriage was significantly lower than the value of the gold coins on the V-date and, as a result, Mr. El Khatib’s NFP was a negative number but deemed to be zero. As such, Ms. Noun argues that the value of gold and market fluctuation gave rise to the change in value of Mahr.
[150] In this case, the application of s. 5(6) is at issue. Ms. Noun relies in particular upon para. 5(6)(h) above. She says that the marked increase in the value of gold between the date of marriage and the V-date is a circumstance relating to the disposition, preservation and maintenance of her Mahr and, therefore, of her property assets. In these circumstances, she submits that it would be "unconscionable" to order an equalization of net family properties after deducting the date of marriage valuation of the Mahr from the separation-date valuation of the account receivable and debt to Mr. El Khatib of the Mahr; to do so would be to require her to make an equalization payment that reduces the Mahr to which she is entitled by more than half.
[151] The scope of the exception in s.5(6) - and, in particular, whether its factors encompass post-marriage dated fluctuations in the value of family property assets is not controversial in my view. In Serra, the market conditions had changed post-separation, not during the marriage. The essential characteristic of the FLA property division sections is the promotion of certainty, predictability and finality in the determination of support obligations and property division and the removal of judicial discretion in those areas to the extent possible. The great concern is to dispel any interpretation of the FLA that might suggest the courts are empowered to deal with the division of family property on the basis of "discretionary fairness". On this view, expanding the discretion in the hands of the judiciary in family law matters is anathema to Ontario's legislative scheme and the development of any trend in that direction would be worrisome.
[152] Judges have tended to limit the application of the s.5(6) factors to circumstances arising from misconduct on the part of the spouse who owns the asset in question or against whose favour the unequal distribution is to be made. Indeed, the general view to this point appears to be that post-valuation date variations in value are not to be taken into account under s.5(6).
[153] I conclude that the circumstances in which a court may order an unequal division of net family property under s.5(6) do not include a market-driven increase in the value of property between the date of marriage and date of separation. The cases that have considered market changes in the value of property and which have applied s.5(6) have all been changes that have occurred post-separation and not during the marriage.
[154] In this regard, the threshold of "unconscionability" under s.5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court": see Merklinger v. Merklinger (1992), 11 O.R. (3d) 233 (Gen. Div.), 1992 7539, aff’d, 30 O.R. (3d) 575 (C.A.), 1996 642; Roseneck v. Gowling (2002), 62 O.R. (3d) 789 (C.A.), 2002 45128; McDonald v. McDonald (1988), 11 R.F.L. (3d) 321 (Ont. H.C.J.), 1988 8635; and LeVan v. LeVan (2006), 2006 31020 (ON SC), 82 O.R. (3d) 1 (S.C.), 2006 21020.
[155] I note, for example, the following comments of Backhouse, J. in LeVan, and of Jennings, J. in Merklinger: LeVan, at para. 258:
"Unconscionability" is a much more difficult test to meet than "fairness" and as a result, the courts have only minimal discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined as, among other things, conduct that is harsh and shocking to the conscience, repugnant to anyone's sense of justice, or shocking to the conscience of the court. [Citations omitted]
Merklinger, at para. 54:
Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable.
[156] I am not persuaded that the inclusion of the Mahr in the calculation of each party’s NFP is unconscionable.
[157] The Court of Appeal has dealt with the Mahr obligations and entitlements as follows, in Bakshi, at para. 43:
Collection of the demand obligation is not an equalization issue but a debt collection issue. This can be seen clearly by considering the situation where, during the marriage, the husband endorses over to the wife a third party’s promissory note. The third party’s promissory note would be included in equalization, and afterwards the wife could collect the debt from the third party. The same reasoning applies to the husband’s own promissory Maher obligation in this case. The wife is entitled to collect the debt owed to her. Thus, the wife is entitled to an equalization payment of $36,520 plus post-separation adjustments of $44,449.93 plus realization of the Maher obligation of $79,580 for a grand total of $160,549.93.
[158] Similarly, in Hesson v. Shaker, 2020 ONSC 1319, at para. 39, following a finding that the Sharia Marriage Contract was valid and enforceable, the court also found that the $30,000 amount owed under the contract was a debt that the husband owed the wife for the purpose of the equalization calculation.
[159] To be clear, the husband did not take the position that the Mahr obligation should not be enforced because the parties did not contemplate the rights either of them would have to an equalization of property, were they to separate in Ontario. The husband is prepared to pay the amount demanded in respect of the Mahr.
[160] The effect of the wife’s position is that in addressing the financial circumstances on the breakdown of their marriage partnership, she wants to factor in the husband’s obligation to pay the Mahr by having him pay it but does not similarly want to factor in her right to that property. This approach runs contrary to the purposes of the FLA and the equalization provisions in particular.
[161] Even if the wife’s position, in submitting that including the value of the asset and debt in the parties’ NFPs would be “punitive” to her, is that in doing so, it would be unconscionable for her to pay the EP to the husband, she has not satisfied the court that this is so. The husband agrees to pay $107,000 to her, the amount he owed her when she demanded payment of the Mahr. This is the amount she sought as payment for that debt.
[162] Based on the above, Ms. Noun’s NFP is $75,574.36; Mr. El Khatib’s NFP is deemed to be $0 because it calculates to be ($83,566.64). Accordingly, Ms. Noun owes Mr. El Khatib an EP of $37,787.18, based on the Mahr being included as an account receivable to Ms. Noun on the date of marriage and the date of separation and the Mahr being considered as a debt in Mr. El Khatib’s name on the date of marriage and the date of separation.
Order
[163] This Court orders:
a. Pursuant to ss. 16(1) and (4) of the Divorce Act, the respondent shall have sole decision-making responsibility for the major decisions that impact the children of the marriage.
b. Pursuant to ss. 16(1) and (4) of the Divorce Act, the children shall reside primarily with the respondent in Toronto. If the applicant seeks parenting time with the children, he should provide the respondent with at least two weeks’ notice of when he will be returning to Ontario and seek consent of the children to the parenting time. The applicant shall only have parenting time with the children in accordance with the children’s wishes and only upon reasonable notice.
c. Pursuant to ss. 16(4) and (6) of the Divorce Act, the respondent shall be permitted to renew all of the children’s government issued documentation without the need for the applicant’s signature, including health cards, passports, social insurance numbers, birth certificates.
d. Pursuant to ss. 16(4) and (6) of the Divorce Act, the respondent shall be permitted to travel with the children outside of Ontario without the need for the applicant’s consent and/or the requirement of a travel consent form.
e. Pursuant to ss. 16(4) and (6) of the Divorce Act, the parties shall communicate about the children in writing only by email. The parties shall only communicate about pertinent issues relating to the children and financial issues relating to the children.
f. Pursuant to ss. 15.1(1) and (3) of the Divorce Act, commencing on March 1, 2023 and on the first day of each following month, the applicant shall pay the respondent child support in the sum of $2,789 a month for the two children of the marriage based on his annual income of $203,349.
g. Within 10 days from the release of this Endorsement, the applicant shall pay the respondent arrears of child and spousal support in the sum of $41,183.07, calculated as set out in paragraph [102] above.
h. Within 10 days of the release of this Endorsement, the applicant shall pay the respondent s.7 expense arrears in the sum of $12,248.05.
i. Pursuant to ss. 15.2(1) and (3) of the Divorce Act, commencing on March 1, 2023 and on the first day of each following month, the applicant shall pay the respondent spousal support in the sum of $4,555 a month, being the high-range of the Spousal Support Advisory Guidelines.
j. The children’s current s.7 expenses include:
i. One extra-curricular activity for each child including any related sporting equipment;
ii. Therapy/counselling;
iii. Tutoring;
iv. Summer camp;
v. Uninsured medical and dental expense; and
vi. Attendance at a post-secondary educational program in Canada including tuition, program-related fees, books, transportation, residence on and off campus, meal plans and computer fees.
k. Pursuant to ss. 16(1) and (4) of the Divorce Act. the parties shall pay for the children’s s.7 expenses proportionately based on their incomes. The respondent shall forward receipts for any s.7 expenses to the applicant by email and proof of payment. The applicant shall provide his proportionate share of these expenses within 7 days of receiving proof of same.
l. Pursuant to ss. 15.1(1) and (3) and ss. 16(1) and (3) of the Divorce Act, the applicant shall maintain the respondent and the children as beneficiaries on his medical/dental benefits for as long as such plan is available to him through his employment.
m. The Applicant shall designate the Respondent mother as an authorized user of his benefits such that she may submit claims on behalf of herself and the children for direct reimbursement for as long as his benefits are available to him through his employment.
n. The parties shall exchange financial disclosure on May 1 of each year, commencing on May 1, 2024 and each year thereafter. Such disclosure exchange to include T4s, Income Tax Returns and Notices of Assessment.
o. If the Applicant is residing outside of Canada, he is required to produce the following supplemental disclosure in addition to any other disclosure requested by the Respondent mother as set out in the Child Support Guidelines:
i. Letter of employment setting out the name of the company that the Applicant is
ii. employed with, his role/title, any compensation including salary, commissions,
iii. bonus structure or stock options and the manner in which he is compensated (i.e., monthly, biweekly, annually, etc.)
iv. Three (3) paystubs
v. International and Canadian tax returns or similar taxation forms filed in the foreign jurisdiction
vi. One (1) year of bank statements for the account wherein the Applicant’s pay is deposited.
p. The Applicant shall designate the Respondent as beneficiary of any life insurance policy in trust for the children.
a. Pursuant to s.5 of the Family Law Act, the Respondent shall pay the Applicant an equalization payment in the sum of $37,787.18 within 10 days. The Applicant shall pay the Mahr to the Respondent in the sum of $107,092 within 10 days. Once the two amounts are set-off against the other, the Applicant will owe the Respondent the sum of $69,304.82 which is payable within 10 days.
b. The respondent shall serve and file written costs submissions within 20 days of no more than 3 pages, not including a Bill of Costs and/or Offers to Settle. The applicant shall deliver written costs submissions within 7 days of being served with the respondent’s costs submissions, of no more than 3 pages, not including a Bill of Costs and/or Offers to Settle. Reply submissions, if any, shall be served and filed by the respondent within 5 days of being served with the applicant’s responding costs submissions.
M. Kraft, J.
Released: March 10, 2023
COURT FILE NO.: FS-21-21503
DATE: 20230310
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMED EL KHATIB
Applicant
– and –
NOUHAD NOUN
Respondent
ENDORSEMENT
M. Kraft, J.
Released: March 10, 2023
[^1]: The consent order of Sanfilippo, J., dated July 14, 2021, provides that Mr. El Khatib pay Ms. Noun child support in the sum of $2,462 a month based on a gross annual income of $175,704 and spousal support of $3,223 a month, on a without-prejudice basis as to the quantum and/or commencement date.
[^2]: Pursuant to the consent order of Sanfilippo, J., dated July 14, 2021, Ms. Noun has had temporary, without prejudice, sole decision-making responsibility for the children and Mr. El Khatib was to have supervised parenting time through Brayden Supervision Services between July 17 and July 25, 2021 on four occasions, up to 3 hours on each visit.
[^3]: Dr. Velikonja’s Psychological Assessment and Treatment Plan for A. dated January 9, 2023.
[^4]: Exhibit 44 at Trial: Letter from Dr. Govan, dated December 9, 2019 regarding E.’s diagnosis of ADHD and ODD.
[^5]: Exhibit #20 at Trial: Parenting Time Note prepared by Brayden Supervision Services Inc., Jennifer Millar.
[^6]: Fielding v. Fielding, 2013 ONSC 5102, at para. 143.
[^7]: Exhibit #42 at Trial.
[^8]: EMDR stands for Eye Movement Desensitization and Reprocessing.
[^9]: Exhibit #42 at Trial.
[^10]: Exhibit #42 at Trial.
[^11]: Exhibits #48 and #49
[^12]: Exhibit 26 at Trial: Schedule “A” FRO arrears as at January 1, 2023.
[^13]: Exhibit 27 at Trial: Summary of s.7 expenses paid by Ms. Noun from February 9, 2020 to January 1, 2023.