Court File and Parties

COURT FILE NO.: FC-19-1573 DATE: 2023/03/16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALAADDIN ABAZA, Applicant AND: RAGHAD ADAM, Respondent

BEFORE: Madam Justice J. Breithaupt Smith

COUNSEL: Applicant Self-Representing Deepa Dayal, Counsel for the Respondent

HEARD: October 17 – 21 and 24 – 28, 2022

Reasons for Judgment

[1] This is my decision following twelve days of trial arising from the discontinuation of the relationship between the Applicant, Alaaddin Abaza (“Father”) and the Respondent, Raghad Adam (“Mother”). The following issues arise:

(a) parenting of the parties’ son (now 3 ½ years of age);

(b) changing the name of the parties’ son;

(c) child and spousal support payable by Father to Mother;

(d) a MEHR monetary repayment obligation allegedly owing by Father to Mother arising from a traditional Islamic contract of marriage;

(e) an equalization of net family property; and

(f) costs.

[2] Mother seeks sole decision-making responsibility for the parties’ son, with his primary residence to remain with her. She seeks an Order that the child be in Father’s care on alternate weekends and every Tuesday overnight to Wednesday. She further seeks a prohibition on Father’s travelling more than 100 kilometres from Hamilton with the child except as may be approved by her or ordered by the Court. She is agreeable to a requirement that she not move the child’s primary residence more that 100 kilometres from Hamilton without Father’s prior consent or further Order of the Court.

[3] Father seeks sole decision-making authority but was candid with the Court in indicating his preference for decisions to be made jointly. He proposes an equally shared parenting schedule on a 2/2/3 rotation. He does not object to the payment of child or spousal support but notes that it should be based upon a reasonable income for Mother and must take any shared parenting schedule into account. He asks that any mobility or travel restrictions be mutual, with any proposed change of residence to be within 35 kilometres of Hamilton. He disputes the Mehr entirely and says there was no such contractual agreement between the parties.

[4] The parties were married and therefore the Divorce Act governs. Both parties sought a divorce, which will be included in the final disposition of this matter.

Chronology

[5] The history, in brief, of this family is as follows based on the undisputed evidence:

(a) Father was born in Syria on January 1, 1989 and was 33 years old at the date of trial.

(b) Mother was born in Syria on January 5, 1997 and was 25 years old at the date of trial.

(c) The parties immigrated separately, with their respective birth families, to Canada in February of 2016. Their families became acquainted with one another.

(d) The parties’ marriage was arranged. Paternal Grandmother met Mother in the late Summer or early Fall of 2017.

(e) The parties were married according to Islamic custom on October 22, 2017. They did not start cohabiting immediately but waited until after their wedding celebration was held on August 21, 2018.

(f) Both parties were students when they met and married. Mother was completing her High School diploma, which she received in June of 2018. Father was studying English and working at a gas station. In November of 2017, Father started working as a Canada Post mail carrier, a job that he enjoyed, but had a workplace injury and was unable to continue. He then started driving for Uber and Lyft.

(g) The parties cohabited in the paternal family home from August 21, 2018 until they separated on April 23, 2019.

(h) The parties’ son was born in 2019. Mother registered his name as “J.A.” without Father’s input. Father was told of the child’s birth by Paternal Grandfather on July 30, 2019 and saw him for the first time on that date.

(i) The parties’ fathers initially tried to resolve the marital dispute with the assistance of elders in the community. During this time, Father was granted only sporadic visits with J.A. which always took place at Mother’s parents’ apartment and were supervised by them.

(j) Father commenced this Application on November 19, 2019.

(k) At the case conference on December 12, 2019 before Justice Lococo, the parties agreed that Father would have parenting time for two hours on each of Saturdays and Wednesdays for one month, expanding to four hours on each of Saturdays and Wednesdays on February 1, 2020.

(l) At the settlement conference on March 4, 2020 before Justice Bale, Father’s Saturday parenting time was expanded to ten hours (10:00 a.m. – 8:00 p.m.).

(m) Also on consent, Father commenced paying child support in the amount of $370.00 monthly effective March 1, 2021 based on an estimated income of $41,000.

(n) On February 6, 2021, the parties agreed to further expand Father’s parenting time to overnights on Saturdays, such that it took place every weekend from Saturday at 10:00 a.m. to Sunday at 12:00 noon and every Wednesday from 5:30 p.m. to 9:30 p.m.

(o) At the conclusion of the trial, the parties agreed to a further expansion of Father’s parenting time which has been as follows since November 8, 2022:

i. every Tuesday at 5:30 p.m. overnight to Wednesday at 9:00 a.m. (delivery to daycare); and

ii. alternate weekends from Saturday at 10:00 a.m. through to Monday at 8:30 a.m., with both exchanges taking place at Mother’s home.

Witnesses & Evidence Generally

Viva Voce Evidence

[6] Ten witnesses testified in total and for the balance of these Reasons I will identify each based on their relationship to the child where that is applicable:

(a) Father;

(b) Father’s friend, Mr. Mohammad Al Noufal;

(c) Paternal Uncle, Mr. Muhammed Bilal Abaza;

(d) Paternal Grandfather, Mr. Abdulkarim Abaza;

(e) Mr. Mohammad Ali Kazmouz, mutual friend of Father and Maternal Grandfather;

(f) Mr. Osama Shanat, friend of Father’s and lender of funds to him;

(g) Mr. Sami Khani, mutual friend of Father and Maternal Grandfather;

(h) Mother;

(i) Maternal Grandfather, Mr. Emad Adam; and

(j) Maternal Grandmother, Ms. Amneh Alsalahi.

Business Records

[7] The parties agreed that all health-related documents and some financial documents filed as Exhibits at trial could be relied upon as business records without the need to call the author of each. For clarity, the authenticity of the following financial documents was not contested:

(a) e-transfer banking records;

(b) insurance documentation;

(c) documents issued by Service Canada and/or the Canada Revenue Agency;

(d) banking, credit card and loan statements;

(e) copies of receipts for jewellery purchases and valuations;

(f) Hamilton Police Services records; and

(g) Hamilton Health Services hospital records.

[8] It is not my practice to reference each document individually, as doing so is likely to render any decision unnecessarily laborious and protracted. The use of business records without the live testimony of the record-keeper is itself an exception to the rule against hearsay evidence. Thus, in reviewing the exhibits, I have been stringent in identifying layered hearsay and cautious in ensuring that my reliance upon a document in my reasoning focuses squarely on its admissible content in accordance with the direction of the Supreme Court of Canada in R. v. Khelawon, [2006] 2 S.C.R. 787, 2006 SCC 57, at paragraph 35.

[9] In R. v. Khelawon, the Supreme Court of Canada defined the essential features of hearsay as: (1) the fact that the statement is adduced to prove the truth of its contents; and (2) the absence of a contemporaneous opportunity to cross-examine the declarant. Writing for an unanimous Supreme Court, Justice Charron underscored that hearsay rules and exceptions, including the “principled exception” originally outlined in R. v. Khan, [1990] 2 S.C.R. 531, 1990 SCC 77, at p. 546:

Just as traditional exceptions to the exclusionary rule were largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must be founded the overarching principled exception to hearsay. When it is necessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement and leaves the ultimate determination of its worth to the fact finder. [4]

[10] A prime example of this distinction is in the hospital records: Exhibit 34 describes the admission of Mother and J.A. to McMaster University Hospital on August 19, 2019 and their discharge on August 21, 2019. Mother and J.A. were attended by Dr. Natalie Orovec, who recorded the following observations of J.A.:

...his current weight was 100 grams below his birth weight which is a 3% decrease after three weeks. As such, he was admitted due to failure to thrive. There were no concerning features on history or physical for any organic causes of failure to thrive. There was no vomiting, good tone, no head lag and the patient had a normal neurological and physical exam.

[11] These are Dr. Orovec’s observations, recorded in the normal course of her business of providing patient care, and are presumptively admissible as proof that J.A.’s weight had decreased and that no causes for this weight loss were obviously identifiable.

[12] In contrast, Dr. Orovec’s comments regarding her analysis, diagnosis and stated course of treatment are expert opinion, which is a second exception to the rule against hearsay. She wrote:

Over the two days, J.A. was drinking well, continued to remain afebrile and increased his weight by 80 grams within the two days. As she was showing improvement [with breastfeeding] and there were no concerning signs for organic causes of failure to thrive, we determined that it was likely due to poor oral intake. We discharged J.A. and gave his mother some instructions with regards to breastfeeding and he should follow up with his family physician within one week to determine whether he is progressing with regards to his weight.

[13] In situations where the diagnosis is central to the litigation (personal injury matters, for example), the expert witness is usually called to testify about his or her analysis and conclusions. Where the expert witness is not being called, we must be certain that the opinion proffered as evidence is necessary and reliable, and that the contents of the statement are trustworthy because of the way in which it came about.

[14] The Family Law Rules, O. Reg. 114/99 consider Dr. Orovec to be a Participant Expert (Rule 20.2(1)) as she “is not engaged to provide expert opinion evidence for the purposes of the litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.” She is not the family physician and treated Mother and J.A. in the context of a hospital admission, and so calling her as a witness would be disproportionate to her involvement with the family. Having regard to the Court’s duty to actively manage cases by “saving expense and time” [6] and “considering whether the likely benefits of taking a step justify the cost,” [7] I find that the admission of the hospital record meets the threshold requirement of necessity.

[15] The hospital records are documents prepared in the ordinary course of Dr. Orovec’s work in applying her “skills, knowledge, training or experience while observing or participating in the events at issue.” Records such as Dr. Orovec’s are done as events unfold during the course of rendering care to patients. Exhibit 34 includes Dr. Orovec’s electronic signature and a timestamp showing “Report Authenticated Date/Time: 28/09/19 1241” (which I read as meaning September 28, 2019 at 12:41 p.m.). I find that the contents of Exhibit 34 are trustworthy as a reflection of how the document was generated and that it meets the threshold of reliability.

[16] It is important to pause here to note, however, that hospital records can be difficult to interpret with certainty. For example, the parties themselves identified what is likely a human error in a hand-written date on one document, and regrettably the makers of some of the documents had handwriting that is illegible. I have been mindful of these challenges in assigning weight to these materials as they are received into evidence.

[17] As this example demonstrates, if I have relied upon any document as proof of the truth of its contents, including any expression of opinion or diagnosis, I have undertaken the appropriate Khelawon hearsay analysis.

Substantive Issues

[18] As noted, this matter raises the following issues:

(a) parenting of the parties’ son (now 3 ½ years of age);

(b) changing the name of the parties’ son;

(c) child and spousal support payable by Father to Mother;

(d) a MEHR monetary repayment obligation allegedly owing by Father to Mother arising from a traditional Islamic contract of marriage;

(e) equalization of net family property; and

(f) costs.

A. Parenting Arrangements for the Child

The Divorce Act Factors

[19] Although the text of the governing legislation has changed in many important ways, as always, the sole focus is on the best interests of the children. In determining whether the best interests of the children require decisions to be made primarily by one parent or jointly by both parents, the new language of section 16 of the Divorce Act:

(a) mandates that the primary consideration be each child’s “physical, emotional and psychological safety, security and well-being”;

(b) incorporates and expands upon the inclusive list of factors delineated at sections 24(2) through 24(5) of the former text of the Children’s Law Reform Act, which factors guided many Ontario decisions before March 1, 2021;

(c) adds the consideration of “any civil or criminal proceeding, order, condition or measure” relevant to the child’s circumstances;

(d) sets out a non-exhaustive list of seven factors to be taken into account in assessing family violence; and

(e) clarifies that the “Maximum Contact Principle” does not presume equally-shared parenting but rather means “that a child should have as much time with each spouse as is consistent with the best interests of the child.”

[20] Sections 16.1 through 16.4 and 16.6 are applicable to this family’s situation. [8] The complete text of these sections, together with section 16, is reproduced at Appendix A to these Reasons [9] . With the greatest of respect to the drafters of the new language, any parenting order that focuses exclusively on the best interests of the children must, of necessity, make the children’s physical, emotional and psychological safety, security and well-being its primary consideration. Realistically, 16(2) adds nothing to the analytical framework of the “best interests” test. The factors for consideration, distilled from the balance of the above-listed sections, are:

(a) each child’s needs having regard to his or her developmental stage;

(b) each child’s relationship(s) with each of the parents [10] , extended family members and other people special to him or her;

(c) each parent’s willingness to support the other’s role in the child’s life;

(d) the history of care for the child;

(e) each child’s views and preferences;

(f) each child’s cultural heritage, inclusive of language and faith as applicable;

(g) any plans for the child’s care;

(h) each parent’s ability and willingness to meet each child’s needs;

(i) the parents’ ability to communicate and co-operate with one another;

(j) an assessment of family violence, taking into account:

i. the timing, severity and frequency of the incidents;

ii. any pattern of coercive or controlling behaviour;

iii. whether the child was subjected to or witnessed aspects of the violence;

iv. the harm or risk of harm to the child;

v. other compromises to the safety of the child or another family member;

vi. current fear experienced by the child or another family member arising from the family violence;

vii. any remedial steps taken by the violent parent; and

viii. any other relevant factor;

(k) the impact, if any, of family violence on the ability of the offending parent to care for and meet the needs of each child;

(l) the impact, if any, of family violence on the parents’ co-operation moving forward;

(m) any legally-founded order, condition or measure relevant to the child’s safety, security and well-being;

(n) past conduct only insofar as it is relevant to a parent’s participation in decision-making for, or parenting time with, the child;

(o) the child’s entitlement to as much time with each parent as is consistent with his or her best interests;

(p) a presumption that day-to-day decisions are to be made by the parent caring for the child at the time the decision arises, unless otherwise ordered by the court;

(q) the best allocation of decision-making responsibility (regarding major decisions) as between the parents and/or any other participating individual;

(r) the means by which information regarding each child’s health and education is to be sourced, i.e. whether as between the parents or from third parties directly; and

(s) the existence of a parenting plan submitted jointly by the parents to the court.

Analysis

[21] The following is my application of the facts as elicited at twelve days of trial, inclusive of my review of the 134 total exhibits filed, to these nineteen Divorce Act factors.

(a) Each child’s developmental needs

[22] Simply put, a parent’s challenges in meeting a child’s needs diminishes his or her parenting ability. A general assessment of any special needs that a child may have, and each parent’s ability to respond to those needs (both individually during his or her own parenting time and collaboratively in addressing same with the other parent) informs the Court on this factor.

Educational Needs

[23] As J.A. is not yet in school, his educational needs revolve around activities and general socialization. He is enrolled in day care through Mother’s student union at McMaster University and Father agrees that this is the proper venue for his education at this time. His earliest potential school attendance would be September of 2023 when he is eligible to attend Junior Kindergarten.

Emotional Wellness

[24] J.A. has not had any counselling or other interactions with professional persons working with him on psychological matters. All witnesses agreed that he is an active and happy child, and there appear to be no concerns regarding his emotional wellness.

(b) Each child’s significant relationships

[25] Father resides with his parents. Mother resides with her parents and two siblings, one being her developmentally disabled older sister. Having regard to J.A.’s young age, there was little evidence presented about his interactions with the other members of each parent’s household. I am prepared to presume that J.A. is developing bonds with his extended family, both within and outside of his two households.

(c) Each parent’s support of the other’s parent/child relationship

[26] During the first six months of J.A.’s life, Mother could not be described as supporting Father’s parent/child relationship. She kept most of the information about J.A.’s health and development from Father until their communication improved after the Temporary Order of Justice Bale in March of 2020. This arises in part from the communication restrictions associated with their cultural norms and could also be ascribed to Mother’s own young age and desire to move on with her own life away from her marriage to Father. Happily, for J.A., this Court finds that each of his parents now supports his relationship with the other.

(d) Historic care of the children

[27] Keeping in mind that J.A. was born post-separation, Father was not provided with any opportunity to care for him overnight until he was roughly eighteen months old. As there is no pre-separation care patterns to which this Court can compare the parties’ current parenting involvement, this factor is less relevant than the others.

(e) Children’s views and preferences

[28] At the young age of 3 ½, and without the involvement of a Clinician assigned through the Office of the Children’s Lawyer, there is no evidence regarding J.A.’s stated views and preferences.

(f) Cultural heritage considerations

[29] The parties have a shared cultural heritage. They are Syrian-born, and grew up in the Middle East, with Mother spending a significant portion of her childhood in Egypt. They are both practising Muslims. Overall, it appears that Father’s family takes a more traditional approach to cultural norms. Father attested that he believes it is important for women to be educated and to have career options, and indeed both of his sisters are professionals. However, it is clear that the expectation in Father’s household is that Mother, as the young woman in the home, would respect the direction of Father’s parents and would be significantly involved in the housework. It is reasonable to conclude that Father’s parents, who viewed Mother almost like a granddaughter in view of her comparatively young age, would be unlikely to consider her input or accommodate her opinions.

[30] Mother’s overall naivete likely added to the generational gap: by way of example, she admitted to being upset when her family moved to Canada, despite the political climate in the Arab-speaking world at the time, because she had almost completed her program at an academically focused high school. Without suggesting that she does not respect her roots, Mother considers herself a modern Muslim woman who prefers the secular climate of Canadian culture over traditional roles.

[31] Certainly, there are elements of the fishbowl nature of ethnic communities that chafe at a natural desire for privacy; in this case, each of Mother and Father had to endure toxic overtures from strangers about the dissolution of their marriage. Overall, while J.A. will have differing experiences of his heritage in each of his two homes, I find that this will strengthen his appreciation of his Syrian Islamic culture.

(g) Go-forward care plans for the child

[32] Both parties hope to be living independently from their birth families as soon as possible, and certainly when their studies are completed. Father is now working full-time, and use of the daycare during his parenting days is available to him. The timing of Mother’s classes varies by term, but as the daycare is associated with the University, J.A. can maintain the stability of that placement as needed, when needed. J.A. has his own room at Father’s home. Each parent will be primarily responsible to care for J.A. during his or her parenting time, with some assistance from extended family members.

(h) Parenting ability

[33] J.A. is the first child for both parties, and the first grandchild for maternal family. In contrast, Father is the youngest of his siblings and has seen his siblings parent their children.

[34] Mother clearly struggled significantly in the earliest months after J.A.’s birth. She took a hypervigilant approach when the child displayed respiratory symptoms, taking him to hospital with considerable frequency, although this is understandable considering the climate of fear created around the COVID-19 virus. Unfortunately, she was dismissive of Father’s concerns about J.A.’s digestive issues. When J.A. had an issue with chronic constipation, the approach taken by Mother and her allies was to minimize the problem and depict Father as obsessive. In fact, it eventually became clear that J.A. was suffering from a viral condition that required treatment.

[35] Mother’s most sincere and compelling testimony flowed when she described her relationship with her son. She is actively involved in every aspect of his learning and development, reading to him nightly and engaging him in a wide variety of age-appropriate activities. She is teaching him English and Arabic and looks forward to again enrolling him in swimming lessons in the Summer of 2023.

[36] Father is similarly smitten. He too supports J.A.’s learning in all its forms. Paternal Grandfather and family friend Mohammed Al Noufal described a close and loving bond between Father and son. Father’s intuition regarding J.A.’s digestive issue proved to be correct – his continued input regarding J.A.’s health, education and welfare is in the child’s best interests.

(i) Communication and co-operation between parents

[37] It is candidly difficult to assess whether this separated couple qualifies for the designation of “high conflict” or not. Mother has made serious allegations of family violence, addressed below. Due to the decorum of their faith, the parties discontinued direct communication post-separation and did not reinstate real contact until after the Temporary Order of Justice Bale in March of 2020. This gap exacerbated Father’s suspicions that he was being intentionally marginalized. Happily, communication between the parties is now civil, and occasionally pleasant. It is child-focused and, although Father is often overly focused on minutia and Mother can be brusque and accusatory, communication is generally respectful.

[38] The Court of Appeal provided direction on apportioning decision-making in high conflict cases in Kaplanis v. Kaplanis, 2005 ONCA 1625, but that case does not, as is often argued, stand for the proposition that conflict between separated parents precludes co-operative decision-making. As Weiler, J.A. wrote: “The fact that one parent professes an inability to communicate with the other parent does not, in and of itself, mean that a joint custody order cannot be considered.” [12] As Sherr, J. wrote in considering the language of the amendments to the Children’s Law Reform Act, which mirror the new language of the Divorce Act: [13]

Courts do not expect communication between separated parties to be easy or comfortable, or free of conflict. A standard of perfection is not required and is obviously not achievable. The issue is whether a reasonable measure of communication and cooperation is in place, and is achievable in the future, so that the best interests of the child can be ensured on an ongoing basis.

[39] There is no question that these parents continue to be in conflict despite the passage of almost four years since separation, but that conflict does not mean that co-operation has been, or will be, impossible; it means merely that procedures must be in place to address an impasse. There is clear evidence that they are able to respect one another’s parenting time and that consultation regarding major decisions has taken place and, eventually, resolutions have been achieved on most issues. I find that communication challenges in this matter do not prohibit some form of collaborative decision-making.

(j) Family violence

[40] Family violence is defined in the Divorce Act as:

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 themselves 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;

[41] This very broad definition of family violence serves to remind Canadians that, while its characteristics take many forms, any of these forms can create an imbalance of power in a relationship. It also serves to dispel myths around relationships characterized by power imbalance. For example, the fact that the survivor of the family violence did not contact police, or other third-party authorities, to report an incident does not mean that it did not take place. Equally, a division of responsibilities in a spousal partnership resulting in one partner taking carriage of the management of the family’s finances does not, in and of itself, constitute “financial abuse.” The Court must objectively assess the frequency, severity and recency of the incidents of family violence in weighing its impact upon a relationship. Human relationships are not easy, and the court must be very cautious, and must take a broad and comparative approach, in assessing the impact of family violence on post-separation co-parenting. Family violence, and its impact, is thus best assessed by the placement of each individual case on a spectrum that accounts for frequency, severity and recency rather than by using any kind of checklist-based metric.

[42] Family violence is an aspect of these parties’ experience. Mother alleges stalking both during the marriage and after separation. She believes that she was emotionally abused throughout the parties’ short relationship, although this primarily took the form of obligations to Father’s parents. She said that she was intentionally isolated by Father from family and friends. She said that she was not permitted to have a key to Paternal Grandparents’ home and that they searched her bag whenever she entered and existed the home. She said that a schedule was drawn up to ensure that only Father or Paternal Grandfather would transport her to and from her classes so as to further isolate her. She describes an incident on April 21, 2019 when Father pushed her against a nightstand in their room and she fell to the floor. She alleges that Father threatened to harm her further in future if she did not obey his Mother’s directions. She alleged that Paternal Grandmother also pushed her “a few times.” Mother’s perspective on her experience living at the paternal family home was one of constant monitoring and control. She alleges that Father ambushed her and forcibly attempted to take J.A. from her when she was out for a walk on October 4, 2019 [14] . She alleges that Father used an employee of the Hamilton Children’s Aid Society to bully and intimidate her, and that Father and Paternal Grandmother demanded, on separate occasions, that she “sign over” the child to their care. She alleges that Father used her smartphone to track her and that he may have been responsible for the malfunction of her email and complained that police were unable to provide any assistance to her when she contacted them about it.

[43] Mother’s evidence about the restrictions on her life at the paternal family home is supported to some extent by the evidence of her parents. I pause here to note that, as between Mother’s parents, I prefer the evidence of Maternal Grandmother as being straightforward and sincere. Maternal Grandfather presented as coy with his evidence, as if he had rehearsed his presentation to ensure that the information given was exclusively favourable to his daughter’s case. Further, some aspects of his evidence were directly contradicted by that of Mohammad Ali Kazmouz, an independent witness. Part of Maternal Grandfather’s motivation appeared to be the return of Mother to close proximity to his home so that she could resume her role in helping the family with day-to-day matters that required English translation. Thus, where the evidence between them differs, I have relied upon that of Maternal Grandmother.

[44] Maternal Grandmother described a clear pattern of limited contact with her daughter, which included telephone calls only when Father was out driving in the evenings. She appeared to lay the bulk of the responsibility for the abusive climate in the paternal home at the feet of Paternal Grandparents. She described holding a secretive gathering at her home so that Mother could visit with a female high school friend whose lifestyle choices met with Father’s disapproval. She attested that, when Father and Paternal Grandmother had their first visit with the child on August 4, 2019, Paternal Grandmother told her that, according to Islamic custom, if Mother refused to return home after giving birth, then the child was forfeited to the paternal family. She described an incident when she and her husband decided to stop by the paternal family home to visit Mother. When they arrived, they were refused entry after Mother telephoned Paternal Grandfather to ask for permission to admit them into the home. Paternal Grandfather required them to wait until he and his wife returned home. Maternal Grandmother attested that no private conversations were permitted between Mother and either of her parents whenever they visited; everything took place under the watchful eyes of Father’s parents. After the parties separated, Maternal Grandmother described receiving a meddling telephone call from another woman related to Father, who asserted that Mother’s label as a “divorced woman” would smear all of the maternal family.

[45] Maternal Grandfather attested that he participated in the attempts to mediate a reconciliation between the parties in the Fall of 2019, along with Father and certain community elders. At that time, he did not know the extent of the isolation and control his daughter was experiencing; he believed that the solution would be for the parties to have their own apartment away from Paternal Grandparents. He realized later the impact upon his daughter when she expressed to him that she no longer felt safe in the family home as she thought that she would be pressured to return to the marriage.

[46] Father denies all of these accusations. He submitted many text message exchanges supporting his position that he and Mother had positive and loving communication and that he was always supportive of Mother’s study plans. He denied controlling Mother’s ability to speak with or visit her parents and attested that Mother would contact him or Paternal Grandfather to ask them for rides to and from school and other appointments, not to seek their permission to attend. He attested that Mother would become melodramatic and unreasonable. He and another witness, his friend Mohammad Al Noufal, attested that the smartphone software application “Life 360” was used by the two of them as a safety precaution to confirm one another’s locations when they were out driving late at night, and that Mother asked to be added to their “circle” so that she too could see that Father was safe. He denied using that application, or any other means, to track Mother’s whereabouts. He denied asking any person to communicate with the Maternal Grandparents in an attempt to influence Mother to return to the marriage.

[47] In support of one aspect of Father’s evidence, Maternal Grandfather attested that he returned Mother’s house key when he collected Mother’s clothing and other belongings via Mr. Mohammad Ali Kazmouz in June of 2019.

[48] Maternal Grandmother’s evidence regarding the events of October 4, 2019 is also consistent with Father’s position on the events of that date. Maternal Grandmother was out for a walk with Mother and J.A., who was in his stroller, and her other two daughters. The weather was nice. All of a sudden, she saw Father standing in front of them. Father approached her, kissed her on the forehead and apologized to her. Father then turned to Mother and asked to be able to take J.A. to visit with his family, a request that Mother refused. Importantly, Maternal Grandmother did not describe either of Mother or Father as being particularly angry or upset, nor did she say anything about Father attempting to grab the child and abscond with him.

[49] Paternal Grandfather also testified about his perspective in the household. He attested that he loved Mother like a granddaughter and supported her desire for education. He found her to be well-mannered and was never aware of any raised voices or disagreements between Mother and Father. He said that the purpose behind the transportation schedule he wrote up based on Mother’s class timetable at university was to ensure that he would know when to drive her, as he spent considerable time daily at the mosque and swimming at the YMCA and could not be easily reached by telephone during those times. His understanding was that the separation occurred because Mother wanted Father to rent a separate apartment, and at one point he offered to sell his vehicle to provide first and last month’s rent.

[50] My own observations of the demeanour of the parties have informed my assessment of the nature and impact of family violence in this case. Both parties are clearly disappointed by the marriage and its breakdown. Father’s demeanour was courteous and professional at all times, and his determination in presenting his case included dogged and pressing cross-examination of Mother’s witnesses. Mother presented as introverted and brooding, with a propensity to see herself as victimized. By way of example of this latter statement, it became clear during the third day of Mother’s evidence that when she used the word “argument” to describe Father’s communication with others (including herself and J.A.’s family doctor), she in fact meant: “it’s conversation, which means complaining.” I do not believe that Mother intended to mislead the Court in her evidence, simply that she sees the world through a more melodramatic lens at this stage of her life.

[51] Viewed as a whole, the evidence shows that:

(a) Father’s parents held tight control over the activities in their household, in a manner likely characteristic of their generation and heritage;

(b) Father pushed and restrained Mother on a single occasion when they argued after she had become emotional to his embarrassment;

(c) Mother did not have a voice of her own in the paternal family household;

(d) Mother felt that her judgment about her own health was under scrutiny, and that Maternal Grandmother in particular did not take her concerns seriously;

(e) Mother perceived herself as being under constant attack, and after separation as being stalked by Father;

(f) Father’s personality and intellect suggest an ability to advocate politely but ceaselessly for his position, which could certainly create an atmosphere of oppression; and

(g) the involvement of meddling community members exacerbated the situation.

[52] Overall, while the severity of the family violence is at the low end of a theoretical scale, the ever-present tone of control, combined with the parties’ personalities (Mother being introverted and prone to some exaggeration, and Father being a dogged advocate for his opinion) speaks to an imbalance of power. This situation is one wherein completely joint decision-making would not be appropriate.

(k) Any impact of family violence on the offending parent’s ability to care for the children

[53] The tension and family violence between the parties has no impact on Father’s ability to care for J.A.

(l) Any impact of family violence on the parents’ co-operation moving forward

[54] Co-operation moving forward is coloured by the tone of the post-separation relationship which flows necessarily from the tone of the partnership immediately pre-separation. There is an unique evidentiary problem for the Court in this matter, as the parties did not communicate directly with one another for more than a year post-separation due to cultural conventions. The emails tendered as evidence of the parties’ communication since the commencement of the litigation are respectful and generally positive. There is no evidence that the parties have significant difficulty with communication at this time; Mother has certainly found her voice in expressing her views and concerns to Father. If anything, it seems possible that the hiatus of communication immediately post-separation had a salutary effect on the parties’ ability to discuss parenting J.A..

(m) Other legal proceedings

[55] There are no other legal proceedings involving the parties brought to the Court’s attention.

(n) Relevant past conduct (not otherwise considered)

[56] Not applicable.

(o) Child-focused division of time between households

[57] At the conclusion of trial, the parties agreed that J.A. would be in Father’s care on alternate weekends (Saturday to Monday) and on Wednesdays overnight in each week. J.A. is thus in Father’s home four nights biweekly and in Mother’s home for the balance of his time. Appreciating that one of the stated goals in promoting the best interests of children in separated families is to maximize the time available with each parent, I find that this existing plan provides J.A. with stability and a solid foundation in both households. Should Father’s work schedule permit him to add alternate Friday evenings to his weekends, that would be an appropriate expansion.

(p) Presumed day-to-day decision-making

[58] The parties agree that the parent caring for J.A. will make minor, day-to-day decisions at the time as required.

(q) Allocation of major decision-making

[59] While I have no doubt whatsoever that both parties will seek to make decisions based only upon J.A.’s best interests, the historical power imbalance in the parties’ short relationship militates against a fully-equal sharing of major decision-making responsibility.

(r) The flow of information regarding the child

[60] Each party shall be entitled to receive information directly from all professional persons working with J.A. The parties shall exchange lists for contact information for any such professionals engaged at this time and shall keep one another updated with any developments. Father shall be listed as the second contact person for J.A.’s daycare and, in September of this year, at school. Moving forward, each party shall be responsible to ensure that he or she has independent access to any mailing lists or other forms of information flow regarding J.A.’s health, education and welfare.

(s) Any Parenting Plan

[61] No parenting plan document was brought to the Court’s attention.

Conclusion on Parenting Arrangements

[62] Having regard to the evidence presented at trial, and in the context of the paramount consideration of J.A.’s best interests, I conclude that:

(a) decisions for J.A. shall be made on the basis of joint consultation but, in the event of any disagreement between the parties, Mother shall have the final decision-making authority;

(b) both parties shall have unfettered access to all professional persons working with J.A. and shall be entitled to communicate directly with, and receive information from, any such persons;

(c) Father will be added as the secondary contact for J.A. at day care and, in September, at school;

(d) the current schedule, which took effect November 8, 2022, shall continue;

(e) Father’s alternate weekend parenting time may expand to include Friday evenings once his work schedule permits; and

(f) a detailed schedule regarding holiday and vacation parenting time will be provided by the Court, which can be adjusted by the parties by mutual written agreement.

B. Name Change

[63] Father attested that he was quite surprised when he learned that Mother had named their son “J.A.,” a name that does not seem to have any meaningful family connection. He thought, even after the child was born, that they were still discussing names together despite their separation and had exchanged text messages with Maternal Grandfather on that point. He recalled quite clearly the discussion with Mother on August 2, 2019. He described Mother as his “lovely wife” and said that he asked her about her health and recovery from the Caesarian section delivery, and that they joked and talked happily with Mother’s two brothers, who were also present. He described the tone of the meeting “as if nothing happened,” referring to the parties’ separation. He said that he asked Mother if they could call their son “Y.A.” – the name of the Prophet said to be the most handsome (also known as Joseph, son of Jacob, in the Old Testament). He said Mother responded positively “yes, of course!”

[64] Father’s description of this conversation was detailed and his demeanour sincere and somewhat sad. I accept his evidence on this point in its entirety.

[65] Father learned later that Mother had already completed the birth registration documentation on August 1, 2019, listing the child’s name as “J.A.” Mother attested that this name means “God’s gift” as that is how she views their son. Mother failed to put Father’s name on the birth registration form. She attested she could not do so as she did not know Father’s date of birth. She says that she attempted to make inquiries to determine Father’s date of birth, but it would seem that those inquiries did not include requiring Maternal Grandfather to contact Father or his family to ask. I reject Mother’s evidence on this point, and query whether she in fact failed to include Father’s name as a result of some other pressure or consideration.

[66] However, “J.A.” is the name that the child has come to know in his maternal household and the outside world. [15] He has been attending daycare and will be known by that name to his teachers and peers. Although Father sought in his Application to change the child’s name completely, during the course of the litigation he softened that position and asked to add “Y.A.” This is an entirely reasonable request in the circumstances. The child’s name will be changed to “J.Y.A.” and should Father wish to call him Y.A. in his household there will be no restrictions upon him in that regard.

C. Child & Spousal Support

[67] Father agrees that Mother was entirely financially dependent upon him throughout the period of their cohabitation. Although the duration of the parties’ actual cohabitation (8 months) was shorter than their marriage (18 months), I have used the duration of the marriage in the Spousal Support Advisory Guidelines calculations.

[68] Father was trained as a lawyer in Syria. Having regard to the lengthy accreditation and on-boarding process of transferring such types of credentials to functionality in Canada, Ms. Dayal for her client does not suggest that he is capable of earning that level of professional income. Father’s 2021 annual income from his current employer, Evertz Microsystems Ltd., was $50,941. Noting that this trial was conducted in the Fall of 2021, full information for 2022 was not available at that time. Father’s most recent Financial Statement sworn July 5, 2022 (Exhibit 55 at trial) showed an annual income of $50,500 calculated from his paystubs to that date.

[69] Mother is in the process of completing a transitionary program at McMaster University which will allow her to enrol in a full-time course of study in mathematics and statistics. She has real long-term prospects of a professional career, and she has considered mathematics, pharmacy and engineering. Father was quite vocal – in a positive way – about his appreciation of Mother’s intellect and his support of her educational and career goals. In fact, Father attended with Mother at various post-secondary institutions to meet with officials and support Mother in her exploration of the different programs. Understandably, Father does not want Mother’s abilities to be overlooked in the assessment of his long-term financial obligations. However, I do not get the impression that he is seriously contesting Mother’s current income-earning ability, which is $NIL as a result of her two-fold responsibilities to pursue her studies and to care for their son.

[70] Child support is payable by Father for J.A. in the amount of $469 monthly based on Father’s 2021 income. Day care expenses for him are covered by Mother’s student union and her low-income status. Hopefully, that will continue so long as she is pursuing her studies. There are no other current expenses for J.A., although he will undoubtedly need routine dental care and the like, and the parties may well wish to enrol him in swimming lessons or other basic toddler and childhood programs. As a result of my conclusions on spousal support, below, any expenses for J.A. will be shared proportionately on the basis that Father will pay seventy-seven percent (77%) and Mother will pay twenty-three (23%). Expenses other than childcare to enable Mother to attend classes and associated educational events are to be agreed upon between the parties in advance, in writing, and the party incurring the expense will be reimbursed by the other party within ten days of providing a receipt.

[71] Child support was claimed by Mother retroactive to August 1, 2019, being the first day of the month following J.A.’s birth. The parties agree that, throughout the Spring and Summer of 2019, Father attempted to send $1200 to Mother by way of e-transfers that she refused to accept. The parties further agree that Mother accepted $900 from Father on December 18, 2019. The parties were attempting to negotiate a resolution of their issues – including the possibility of reconciliation – through the Fall of 2019. Father commenced this litigation in November of 2019 and Mother’s Answer is dated December 5, 2019. Overall, I find that Father discharged his obligation for child support for the months of August through December of 2019. The child support analysis will start thereafter effective January 1, 2020.

[72] In 2020, Father’s income was $41,292. This generates a child support obligation of $373 monthly for one child. In 2021, Father’s income was $50,941. This generates a child support obligation of $469 for one child. Father has been paying $370 monthly since March 1, 2021. The following calculation of outstanding child support, totalling $7,889 therefore applies:

Annual Income	FSG Amount	Amount Paid	Differential
$41,292 (Jan. – Dec., 2020	$373	$NIL	$373 x 12 = $4,476
$50,941 (Jan. – Feb., 2021)	$469	$NIL	$469 x 2 = $938
$50,941 (Mar. – Dec., 2021)	$469	$370	$99 x 10 = $990
$50,941 (Jan. – Dec., 2022)	$469	$370	$99 x 12 = $1,188
$50,941 (Jan. – Mar., 2023)	$469	$370	$99 x 3 = $297
TOTAL			$7,889

[73] I respect Father’s commitment to living debt-free, which is an aspect of his faith. Therefore, I will not presume to set out repayment terms and will leave it to Father to negotiate with the Family Responsibility Office in that regard.

[74] The Divorce Act sets out the following four objectives for spousal support: [16]

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[75] It cannot be said that the marriage or its breakdown negatively impacts one party more than the other at this stage. This is a time of financial prudence for both parties. Each of them continues to reside with his or her parents. In addition to rearing J.A., each has anticipated costs associated with addressing prior debts and/or planning future savings for education and independence. It is possible that Father will seek to gain accreditation as a lawyer in Ontario at some future point in time; it is a certainty that Mother will have considerable costs associated with her education plan, as it is likely that she will attend a four-year University program which would not commence before September of 2023.

[76] Spousal support arrangements are situation specific and change over time. The parties’ circumstances must be evaluated and re-evaluated, particularly in cases such as this one where the parties are quite young and have many career options open to them. The circumstances of this young, separated family relevant to the apportionment of cash flow between them (being the result of the payment of child and spousal support) include:

(a) the practical financial support that each parent receives from his or her own parents in the form of minimal housing costs;

(b) the incurring of future expenses and/or debts (i.e. student loans) that is reasonably anticipated for the parties (and especially Mother) in order to move toward self-sufficiency;

(c) the duration of Mother’s education plan (i.e. approximately five years from the conclusion of the trial, assuming a four-year University degree);

(d) the cost of raising a toddler in money and time;

(e) both parties’ shared desire to eventually be financially independent of one another (noting that child support would still be payable as the right of the child).

[77] The Spousal Support Advisory Guidelines (“SSAG”) is a supporting document to the federal and provincial legislative language regarding spouses’ obligations to financially support one another. The legislation itself (here, section 15.2 of the Divorce Act) outlines general themes but does not assist judges in actually coming up with hard figures to include in Temporary or Final Orders. Themes regarding amount and duration have been developed by judges over time in crafting spousal support Orders. These themes are compiled and analysed in the SSAG. A software program has been created which generates calculation results based on the premises outlined in the SSAG. The SSAG calculation shows a spread of figures for the amount payable on a monthly basis and bookends the term of support payments from a short duration to a maximum duration. Sometimes, depending upon the circumstances of a particular case, the maximum duration is “indefinite”, which does not mean “infinite” but rather means “unspecified.”

[78] The SSAG calculation prepared by the Court for this matter uses an equal division of net disposable income as the starting point (it becomes the “Low” end of the range). It is attached as Appendix “B” [17] . Were Father’s income to be divided equally between the two households, he would pay $702 monthly in spousal support (and $469 monthly in child support). Father’s net disposable income would be $2,294 monthly and Mother’s would be $2,295 monthly. Of course, J.A. is primarily in Mother’s household, and thus she will have more of the overall costs of child rearing to bear. The “Mid” range figure does not acknowledge this reality; only the “High” amount (spousal support of $978 monthly) provides J.A. with a financial boost in Mother’s home (resulting in a difference in net disposable income that gives an additional $137 monthly to Mother and J.A.).

[79] However, Mother’s future income earning prospects are high – possibly higher than Father’s. She will not have an income of $NIL once she has completed her post-secondary education (likely by May of 2027). An additional year following the anticipated study completion date will be allotted to provide Mother with an opportunity to integrate into the workforce. Spousal support will be reviewable effective May 1, 2028 and the presumption at that time will be that it will be payable at the “Mid” range on the basis of the parties’ anticipated 2028 incomes.

[80] With respect to the start date of spousal support, this litigation was commenced by Father in mid-November of 2019 with a first return date of January 9, 2020. Mother’s crossclaim for spousal support was made in her Answer dated December 5, 2019. During her testimony, Mother admitted to refusing support payments from Father post-separation. It would not be fair and reasonable for Father to now face a significant retroactive spousal support payment.

[81] Overall, I find that the most equitable means of addressing cash flow between the parties is to require Father to pay spousal support commensurate with the “High” result of the SSAG calculation. He will pay $978 monthly from May 1, 2021 through to April 30, 2028. Spousal support will be reviewable effective May 1, 2028, presumed to be payable at the “Mid” range as calculated using the SSAG on the basis of the parties’ anticipated 2028 incomes.

[82] For clarity, spousal support is income to Mother, and thus taxable, and is deductible from income for Father. As a source of income, it is accounted for in the proportionate sharing calculation for special and extraordinary expenses for the parties’ son.

D. Mehr

[83] The Mehr is an Islamic tradition; it is a contract in which the groom and/or his family undertakes to make certain payments to the bride and/or to her family at the outset and, if applicable, the conclusion of the marriage. The Supreme Court of Canada has not yet dealt squarely with a Mehr (also spelled “Maher”). In Bruker v. Marcovitz, [2007] 3 S.C.R. 607, 2007 SCC 54, our highest court was asked to opine on the interplay between a religious pre-marital contract between two Jewish Canadians and Québec’s Civil Code of Québec. The faith of the litigants is important in the context of family law specifically – much of the discussion revolved around the crafting of the Divorce Act’s prohibition upon barriers to remarriage specific to the Jewish faith. In her decision, Justice Abella explained her understanding that: “in the Jewish religion divorce is accomplished by the delivery of a Get [permission document] from the husband and its acceptance by the wife in the presence of a Rabbinical Court.” A Jewish man can divorce a Jewish woman with the Get and remarry civilly (although perhaps not religiously) but the opposite did not appear to be true. [19] A distinction on the basis of gender arose, and in 1990 section 21.1 of the Divorce Act was crafted to address all religious barriers to remarriage.

[84] In Bruker v. Marcovitz, the wife sought damages from the husband for his refusal over a period of fifteen years to provide the Get or to appear before religious elders, despite having agreed to do so in Minutes of Settlement of the divorce litigation. The husband argued that the concept of a Get itself, and thus any alleged damages sought by the wife, was contrary to Québec law and unenforceable, and “that he was entitled to be shielded by his right to freedom of religion from the consequences of refusing to comply with his commitment.” The parties called expert witnesses at trial to address the issues of religious importance. The Trial Judge agreed with the wife’s position and ordered damages totalling $47,500, which did not arise from the agreement itself but which were personal in nature and attempted to compensate the wife for lost time. The Court of Appeal held that because “the substance of the ... obligation is religious in nature, irrespective of the form in which the obligation is stated, the obligation was a moral one” [20] and thus unenforceable.

[85] Justice Abella, reviewed the definitions of “moral obligation” and “civil obligation” (referenced in section 12 of Québec’s Civil Code of Québec) taken from a bilingual dictionary of legal terms, and wrote: [21]

I do not see the religious aspect of the obligation in Paragraph 12 of the Consent as a barrier to its civil validity. It is true that a party cannot be compelled to execute a moral duty, but there is nothing in the Civil Code preventing someone from transforming his or her moral obligations into legally valid and binding ones. Giving money to charity, for example, could be characterized as a moral and, therefore, legally unenforceable obligation. But if an individual enters into a contract with a particular charity agreeing to make a donation, the obligation may well become a valid and binding one if it complies with the requirements of a contract under the Civil Code of Québec. If it does, it is transformed from a moral obligation to a civil one enforceable by the courts.

[86] Putting aside for a minute the questionable parallel drawn between a contract for on-going funding by charitable donation (easily defined at its outset and known to both “contracting” parties) with a request for damages (uncertain and only definitively discernable at trial), the concept that comes out of Bruker v. Marcovitz is that, in order to be enforceable, any religious contract must meet the requirements of any other form of contract. Here, the comparison is between the Islamic Marriage Certificate (Exhibit 70 at trial) and a marriage contract described by sections 52 and 55(1) of the Family Law Act.

[87] Sections 52 and 55(1) of the Family Law Act read:

52.(1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,

(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children, but not the right to decision-making responsibility or parenting time with respect to their children; and

(d) any other matter in settlement of their affairs.

(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.

55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.

[88] Mother did not call an expert witness to identify and comment upon the Mehr concept generally or Exhibit 41 specifically. She asks the Court to conclude that there is an enforceable contractual obligation arising from the document. To do so would require the Court to take judicial notice that this document entitled “Certificate of Marriage” is in fact the document that would be applicable to give effect to the Mehr and further that the means by which it was created and signed is consistent with the practices of the Syrian Muslim diaspora in Ontario [22] . Judicial notice is a narrow concept and can never be applied to resolve the tension between disputed facts or to validate opinion evidence. Where, as in this case, religious concepts and cultural norms are engaged, reasonable people may disagree as to their exact nature and implications. If judicial notice is to be taken, there can be no dispute as to the fact alleged. Judicial notice cannot bridge the gap between individuals’ opinions regarding purported facts. In the absence of expert evidence that convinces the Court that Exhibit 41 documents a firm and binding agreement between the parties, I am not prepared to order payment by Father to Mother.

[89] Note that the inquiry also calls into play the foundational principles of contract, namely that the parties, the content, and the obligations must be readily identifiable. In this matter, the following points are disputed or uncertain:

(a) Mother was not at any meeting where the potential Mehr payment(s) were discussed and has no knowledge of the details of the potential Mehr agreement between Father and her parents.

(b) Although Father thinks it was done by the officiant, Mr. Hosan Helal, neither party is certain who completed the portion beside the English word “Dower”, which reads as follows (sic):

Presented: agreed upon

deferred: 10,000 to be paid

(c) The “agreed upon” portion was provided in jewelry and funds for the purchase of clothing. The parties do not agree which specific items of jewelry were included in this heading and which were gifts from Father and/or his family to Mother. The funds ($5,000) were borrowed by Father and paid to Maternal Grandfather.

(d) Father says that the currency for the 10,000 figure was not clear in his mind, as some families use gold coins and others use the currency of their homelands.

(e) Father acknowledged that the 10,000 figure could have been in Canadian dollars.

(f) Mother believed that the 10,000 figure was in Canadian dollars and represented half of the total Mehr of $20,000.

(g) There was a back-and-forth negotiation between the parties’ Fathers raising the total up by $5,000 and then dropping it back down again. The parties themselves were not involved in these discussions.

(h) The document was not read by Mother and her signature was not witnessed on the document; neither of the witnesses were present to see her sign it.

[90] Based on these facts, if I am wrong in dismissing Mother’s claim to enforce the Mehr as a result of the lack of expert opinion evidence allowing the Court to understand its terms from a cultural and religious perspective, I nonetheless find that the contract itself fails due to uncertainty.

E. Equalization of Net Family Property

[91] As described at sections 4 and 5 of the Family Law Act¸ Net Family Property is the difference between each party’s net worth on the date of marriage and on the date of separation (called the “valuation date”). The concepts apply only to married spouses. Where one party has seen a greater growth (or, in some cases, a smaller decline) in net worth over the lifetime of the marriage, that party pays an “equalization payment” (calculated as half of the difference) to the other party. There are a number of situations, such as when the parties have cohabited for less than five years, in which the court may adjust the equalization payment if an equal division would be considered “unconscionable.” Such adjustments are entirely discretionary. A list of possible reasons favouring an unequal division of net family property are set out at section 5(6).

[92] Certain assets are excluded: gifts or inheritances from third parties, damages for personal injury and benefits received from a life insurance policy. These are considered to be conceptually intended for the individual receiving them, rather than for the family as a whole. In order for such assets to remain the separate property of the spouse who received them, they cannot be incorporated into any jointly owned asset, including the matrimonial home.

[93] The matrimonial home (being the residence in which the parties last cohabited prior to separation) is dealt with specially, but in this matter the parties were residing in Paternal Grandparents’ rented residence, and thus that issue does not arise.

[94] The parties were students throughout their marriage and had minimal assets. Certain items of jewelry were gifted by Father to Mother as part of the traditional Islamic dowry, or Mehr, addressed previously in this document. Those items are excluded from the analysis as, although I have found that the balance of the Mehr (the “deferred” portion) was unenforceable against Father, to additionally include the jewelry as an asset in either party’s hands on the date of marriage would be unfair in light of the parties’ sincerely held religious beliefs.

[95] Evidence was tendered for the following assets and liabilities:

(a) Father’s Vehicle – Father owned a 2012 Honda Civic on the date of marriage. The parties agree that it was worth $4,520 on that date. Father was in an accident in January of 2019 and the vehicle was written off through his insurer. Using the insurance proceeds and a further $2,500 borrowed from his brother, Muhammad Bilal Abaza, Father purchased a 2013 Honda Civic as a replacement. The parties agree that this vehicle was worth $6,500 on the date of separation. It had a corresponding debt item against it of $2,500 on the date of separation.

(b) Father’s Cash in Hand – Father delivered a cash payment of $5,000 to Maternal Grandfather as part of the Mehr. He had to borrow those funds, receiving $1,500 from each of his father (Paternal Grandfather) and from his brother, Muhammad Bilal Abaza, and a further $2,000 from his friend, Osama Shanat. Those funds, and their corresponding debts which remained unpaid until after the date of separation, cancel one another out mathematically. I have not included the $5,000 in cash as an asset in Mother’s hands, as the parties agree that it was paid to Maternal Grandfather.

(c) Father’s Bank Accounts – Statements were tendered showing that Father’s bank accounts contained $25.31 on the date of marriage and $1,987.45 on the valuation date.

(d) Father’s Credit Accounts - Father had a VISA credit card with a nominal balance of $33.89 owing on the valuation date.

(e) Father’s Student Loans – He owed $11,734 in student loans on the valuation date.

(f) Mother’s Gold Bracelets – Having a value of $1,650, these items were purchased after the marriage using joint funds.

(g) Mother’s Bank Accounts – Mother’s RBC bank statement showed $267.85 in her account on the valuation date. She did not have her own bank account on the date of marriage.

(h) Mother’s Other Jewelry – Mother was gifted additional items by her own family which are excluded by operation of law.

(i) Bedroom Set in Father’s Possession – This item, which the parties agree was worth approximately $1,600 on the date of marriage, was gifted by Paternal Grandfather to Father and thus is excluded.

[96] Excluding all jewelry associated with the Mehr, Mother had $NIL net worth on the date of marriage and a net worth of $1,917.85 on the valuation date; her net family property was $1,917.85. Excluding items gifted to him, Father’s net worth was $4,545.31 on the date of marriage and ($5,780.44) on the valuation date; his net family property was ($10,325.75). As a spouse’s net family property can never be less than zero by operation of section 4(5) of the Family Law Act, his net family property is fixed at $NIL. Thus, in theory, Mother owes Father an equalization payment of $958.92.

[97] However, Father’s student loan is the only reason why his net worth at the date of separation plunged so low. Student loans, unlike consumer debts, do not reflect the use of funds for the benefit of both parties when they are incurred. The purchase of a vehicle on credit allows a family immediate access to convenient and reliable transportation. A student loan, in contrast, is a purchase for the future. The bulk of the student loan funds go toward tuition and associated educational expenses and do not influence a family’s lifestyle in the short term.

[98] It could be said that, by intentionally incurring student loans, Father depleted his net family property as contemplated by section 5(6)(d), although such intentional depletion is most certainly not “reckless.” Nor, having regard to the fact that the parties were students throughout their short marriage, can it be said that the financial situation at separation prejudices either party in an “unconscionable” manner. However, section 5(6)(g) allows a court to consider “a written agreement between the spouses that is not a domestic contract;” certainly the contested Mehr falls into that category. Finally, section 5(6)(h) points to “any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property” as a possible reason for a variation of the equal division. In light of the language of section 5(7), which speaks of “childcare, household management and financial provision” as “joint responsibilities of the spouses,” and in the context of the factors discussed, I find that the requirement of any equalization payment by either party to the other would run counter to the intention behind sections 4 and 5, and thus vary the share payable to zero.

F. Costs

[99] Success has been divided in this matter. While Mother maintained primary residency of J.A. and is granted final decision-making authority in the event of a disagreement following consultation regarding major decisions, she did not convince this Court of the existence of family violence severe enough to justify circumscribing Father’s involvement in J.A.’s life (as she had sought in her Answer). [23] Father is paying spousal support at the “High” end of the SSAG recommended range, but only for a defined period of time while Mother gains self-sufficiency. Mother’s claim for payment under a Mehr was dismissed. Exhibit 111, the Net Family Property Statement prepared by Ms. Dayal for Mother, shows an equalization payment owed by Father to Mother in the amount of $120.67. I have held that Mother arguably owes an equalization payment to Father of $958.92 which I have fixed at zero. In all areas, each party substantiated, and gave up, aspects of his or her litigation position.

[100] As stated in the oft-referenced Court of Appeal case of Mattina v. Mattina, 2018 ONCA 867 at paragraphs 10 – 13, costs awards are discretionary and call into play the important principles of reasonableness and proportionality. Costs awards have four fundamental purposes: (1) to partially indemnify successful litigants; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; and (4) to ensure that cases are dealt with justly under Rule 2 (2) of the Family Law Rules. Here, both parties were partially successful and neither behaved inappropriately. The most just result for this young family is for each to bear his or her own costs of this trial, so as to enable the parties to move forward as co-parents.

G. Final Order

[101] Two Orders shall issue. Divorce Order to issue as a stand-alone document. Final Order to issue pursuant to the Divorce Act and the Family Law Act:

1. The Applicant, Alaaddin Abaza, is the Father of the child, registered at birth as J.Y.A. born in 2019, and the Respondent, Raghad Adam, is his Mother.

2. The child’s name shall be changed to “J.Y.A.,” effective immediately, and Father is authorized to complete all necessary documentation to give effect to the name change without Mother’s participation or consent, which is hereby dispensed with.

3. Major decisions for the child, J.Y.A. in 2019, will be made on the following terms:

a. major decisions include, but are not limited to: school enrolment or specialize learning, including an Individual Education Plan; non-emergency medical or dental care; orthodontic care; enrolment in counselling; participation in overnight camps; participation in extra-curricular activities;

b. as soon as possible, Mother shall advise Father in writing of the decision to be made, including contact information for any associated professional person working with the child;

c. Mother shall provide Father with not less than five days to respond;

d. Father shall provide his input with respect to the decision to be made, including any information upon which he relies in support of his position, to Mother as soon as possible, but not more than ten days after receiving notice from Mother;

e. either party may seek a second opinion from another relevant professional, but any costs associated with such second opinion are borne by the party so seeking it unless otherwise agreed upon in advance in writing;

f. any second opinion or other consultation shall be made within ten days after Mother provides notice to Father of the decision to be made; and

g. in the event of a disagreement between the parties, Mother shall make the final decision.

4. The child, J.Y.A. in 2019, shall reside primarily with Mother. He shall reside with Father on the following terms (the “Regular Schedule”):

a. Every Tuesday at 5:30 p.m. overnight to Wednesday at 9:00 a.m. (delivery to daycare);

b. Alternate weekends from Saturday at 10:00 a.m. through to Monday at 8:30 a.m., with both exchanges taking place at Mother’s home; and

c. once Father’s work schedule permits, such alternate weekends shall expand to commence on Friday at 5:30 p.m.

5. The following Holiday Schedule shall supersede the Regular Schedule, which shall be suspended during such periods as follows:

(a) Every Mother’s Day, the child shall be in Mother’s care from the Saturday immediately preceding Mother’s Day at 6:00 p.m. (or such other exact time as the parties agree in advance in writing) through to Monday at 9:00 a.m. or the start of the school day, at which time the Regular Schedule shall resume.

(b) Every Father’s Day, the child shall be in Father’s care from the Saturday immediately preceding Father’s Day at 6:00 p.m. (or such other exact time as the parties agree in advance in writing) through to Monday at 9:00 a.m. or the start of the school day, at which time the Regular Schedule shall resume.

(c) Each parent shall have two weeks of vacation parenting time (consecutive or non-consecutive) during the Summer school vacation break in each year, which weeks shall start and end on Mondays at 9:00 a.m. unless otherwise agreed between the parties in advance in writing. Mother shall have her first choice of vacation weeks in even-numbered years and Father shall have his first choice of vacation weeks in odd-numbered years. The parent with first choice shall advise the other parent in writing of his or her selected weeks by February 1st in each year and the parent having second choice shall advise the other parent in writing of his or her selected weeks by March 1st in each year.

(d) During Eid al-Adha, J.A. shall be in Father’s care on the first night in odd-numbered years until 5:00 p.m. (or such other exact time as the parties may arrange between them) on the second day, and in Mother’s care for the balance of the holiday. In even-numbered years, this pattern shall reverse. The parties may agree upon any alternate arrangement in advance in writing.

(e) During Eid al-Fitr, J.A. shall be in Mother’s care for the first two nights in odd-numbered years until 5:00 p.m. (or such other exact time as the parties may arrange between them) on the third day, and in Father’s care for the balance of the holiday. In even-numbered years, this pattern shall reverse. The parties may agree upon any alternate arrangement in advance in writing.

(f) At Christmas, the child shall be in Mother’s care from December 24th at 12:00 noon through to December 25th at 12:00 noon and in Father’s care from December 25th at 12:00 noon through to December 26th at 12:00 noon.

(g) At New Year’s, the child shall be in Mother’s care from December 31st at 10:00 a.m. through to January 1st at 10:00 a.m. and in Father’s care from January 1st at 10:00 a.m. through to January 2nd at 10:00 a.m.

6. The child shall spend such further and other time in the care of either party as the parties may, from time to time, agree upon in advance in writing.

7. Neither party shall move the child’s residence more than 35 kilometres outside of the boundary of the City of Hamilton without the prior written consent of the other, which consent shall not be unreasonably withheld, or until further Order of the Court.

8. Neither party shall remove the child from Canada without the prior written consent of the other, which consent shall not be unreasonably withheld, or until further Order of the Court. Should either party plan a trip with the child outside of Canada, he or she shall provide the other party with complete details of the anticipated trip, including a complete travel itinerary showing contact information during the anticipated trip, together with copies of travel tickets and medical travel insurance coverage, at least thirty (30) days prior to the date of departure. As part of that documentation, the travelling party shall provide a completed Consent Letter for Travel with Child (sample available at: https://travel.gc.ca/travelling/children/consent-letter) for the non-travelling party to sign. At least twenty (20) days prior to departure, the non-travelling party shall either sign the form and return it to the travelling party or advise the travelling party in writing of his or her objection to the travel plans. Thereafter, either party may bring a motion before the Court to address the issue.

9. The child’s Health Card, medications, prescribed medical or dental devices and similar items shall travel with him to and from the parties’ households unless otherwise agreed between the parties in advance in writing.

10. Mother shall be the librarian for all government and identity documents for the child other than his Health Card. She shall be entitled to apply for and renew any such documents without the participation or consent of the Father which is hereby disposed with. Any costs of such application and/or renewal shall be paid by her. She shall provide Father with a notarial copy of such documents and shall update same on an ongoing basis.

11. Commencing April 1, 2023 and on the first day of each month thereafter, support for the child, J.Y.A. born in 2019 shall be payable by Alaaddin Abaza to Raghad Adam at the rate of $469.00 monthly, based upon his annual income of $50,941.00 and in accordance with the Federal Child Support Guidelines.

12. Effective April 1, 2023, the parties shall divide special and extraordinary expenses for the children between them proportionately to income, with Alaaddin Abaza being responsible for 77% of such expenses and with Raghad Adam being responsible for 23% of such expenses. Raghad Adam shall ensure that she has maximized all possible benefits and subsidies for the child in connection with any such expense. All activity-related expenses shall be agreed upon between the parties in advance in writing before contribution is sought. The party incurring the expense shall provide the other with all documentation regarding the expense, including proof of any subsidy or other coverage, and the contributing party shall provide payment within ten (10) days.

13. For the period from August 1, 2017 through March 31, 2023, the arrears of child support and contribution toward special and extraordinary expenses are fixed in the amount of $7,889 owing by Alaaddin Abaza to Raghad Adam.

14. Alaaddin Abaza shall pay spousal support to Raghad Adam commensurate with the “High” result of the Spousal Support Advisory Guidelines calculation in the amount of $978 monthly from May 1, 2021 through to April 30, 2028. This amount is predicated upon an annual income for the payor of $50,941.00 and an annual income of $NIL for the recipient.

15. Spousal support will be reviewable effective May 1, 2028, presumed to be payable at the “Mid” range as calculated using the SSAG on the basis of the parties’ anticipated 2028 incomes, and the Court’s expectation is that Raghad Adam will be working diligently toward self-sufficiency in the interim.

16. Spousal support will be further reviewable in the following circumstances (a non-exhaustive list of material changes in circumstance):

a. Raghad Adam remarries;

b. Raghad Adam cohabits with a spousal partner for more than twelve (12) months;

c. J.Y.A. ceases to reside primarily with Raghad Adam;

d. Aladdin Abaza’s income drops below $46,000 annually or rises above $56,000 annually; or

e. Raghad Adam’s income rises above $10,000 annually.

17. SDO to issue.

18. Both parties shall maintain the child as beneficiaries of any extended medical/dental insurance available through their respective employment. A party who is reimbursed for a covered expense paid by the other party will immediately forward such reimbursed amount to the party who incurred the covered expense. The parties shall work collaboratively to maximize coverage available for the child. Any amounts in excess of the co-ordination of benefits will be divided between the parties proportionately to their respective incomes as a special and extraordinary expense.

19. The parties shall exchange copies of their complete income tax returns, together with all attachments thereto and their Notices of Assessment or Reassessment, by June 1st in each year commencing June 1, 2024. Any adjustment to child support, spousal support or special and extraordinary expenses shall be effective July 1st in an applicable year.

20. The claim by Raghad Adam for payment pursuant to a contract of Mehr is dismissed.

21. There shall be no equalization payment owing by either party to the other.

22. Each party shall bear his or her own costs of this litigation.

J. Breithaupt Smith, J.

Date: March 16, 2023

Appendix “A”

Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.)

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) 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 the child;

(j) any family violence and 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 child, 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 child; and

(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

(a) the nature, seriousness and frequency of the family violence and when it occurred;

(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

(d) the physical, emotional and psychological harm or risk of harm to the child;

(e) any compromise to the safety of the child or other family member;

(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

(h) any other relevant factor.

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

(a) either or both spouses; or

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

(4) The court may, in the order,

(a) allocate parenting time in accordance with section 16.2;

(b) allocate decision-making responsibility in accordance with section 16.3;

(c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

(d) provide for any other matter that the court considers appropriate.

(5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

(7) The order may authorize or prohibit the relocation of the child.

(8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

16.2 (1) Parenting time may be allocated by way of a schedule.

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.