COURT FILE NO.: FS-20-18885

DATE: 20230906

ONTARIO

SUPERIOR COURT OF JUSTICE

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maha Gamal Eldin Dahroug, Applicant

AND:

Amr Hamada Saad Hassan, Respondent

BEFORE: Kristjanson J.

COUNSEL: None, both parties self-represented

HEARD: At Toronto by videoconference May 8, 2023

Endorsement

Kristjanson, J

[1] The only issue on this long motion is whether the parties were legally divorced on August 5, 2010, in the United Arab Emirates (“UAE”), as alleged by the respondent, or whether they remain married and separated on January 10, 2020, as alleged by the applicant. The respondent relies on a bare talaq Muslim divorce. No divorce decree has been granted with official or adjudicative oversight in the UAE based on the bare talaq, and there is no valid foreign divorce.

Legal Framework

[2] Under section 22 of the Divorce Act, RSC 1985, c 3 (2nd Supp), the court may recognize a foreign divorce based on the principles of conflicts of laws and the rules of common law. A foreign divorce decree with official or adjudicative oversight is presumptively valid. But for a foreign divorce to be recognized by Canadian law, it must be “granted” by the foreign authority: Abraham v. Gallo, 2022 ONCA 874, paras. 15 and 19.

[3] Bare talaq divorces, not validated by a foreign divorce decree, are not recognized as valid in Canada. As Roberts J.A. held for the Court of Appeal in Abraham v. Gallo, 2022 ONCA 874 at para. 20:

It is not controversial that bare talaq divorces, without more, have not been recognized as valid in Canada. While a bare talaq divorce that is performed in accordance with customary requirements is sufficient to establish the validity of the divorce under Islamic religious law, it does not comprehend the civil law component of adjudicative or official oversight “to address important public policy issues which can arise out of the domestic recognition of informal or religiously-based divorces”…Those public policy issues include the potential for abuse and lack of natural justice (including lack of notice) because of the unilateral nature of a bare talaq divorce that, as confirmed by the expert evidence in this case, is effective under Islamic law upon the husband’s third pronouncement of his intent to divorce. Despite its effect on the wife’s status and her rights to corollary relief, the wife has no participatory role and cannot stop the divorce from coming into effect. (internal citations omitted)

[4] Foreign law is a question of fact to be proved by expert evidence: Abraham v. Gallo, 2022 ONCA 874 at para. 22. Because the content of foreign law is an issue of fact, the onus of proof is on the party pleading the foreign law.

Position of the Respondent

[5] The position of the respondent is that the parties were married in Egypt on February 2, 2005, and divorced in the UAE on August 05, 2010. The respondent divorced the applicant after pronouncing “talaq” (which means “I divorce you” in Arabic). The marriage relationship terminated immediately. The respondent’s position is that both parties are Muslims by faith, and their marriage contract was entered into in Egypt in accordance with Islamic family law. Under Islamic family law, a bare talaq divorce is sufficient. In short, the respondent is relying only on his verbal “talaq”, absent a divorce decree, to assert an extrajudicial divorce in the UAE as a valid foreign divorce to be recognized in Canada.

[6] The respondent relied on thousands of pages of material, including a variety of internet newspaper articles, and videos of an imam on the internet speaking Arabic, with some kind of captioning in English (but no official translation).

[7] Because the content of foreign law is an issue of fact, the onus of proof is on the party pleading the foreign law. The respondent has failed to prove that as a matter of foreign law, the bare talaq divorce took he alleges took place in 2010 in the UAE was effective to end the marriage immediately without requirement for further steps. There is no foreign divorce decree, nor any evidence that the divorce was granted with judicial or official oversight in the UAE. There is reference to a proceeding in the Personal Status Court, but there is no copy of the court file.

[8] There is no expert evidence about the requirements for divorce in the UAE. There are letters from Egyptian law firms appended to Mr. Hassan’s affidavit, which I decline to accept as evidence about the validity of the divorce. There is no affidavit. There is no acknowledgement of expert duty. There is no recitation of the lawyer’s credentials to qualify them as experts. There is no discussion of the requirements of UAE law, in 2010, or why Egyptian law would apply when the divorce allegedly took place in the UAE. There is no discussion of a divorce decree, nor why there is no divorce decree in the file.

Applicant’s Position

[9] The applicant’s position is that there has never been a valid foreign divorce, that even if the husband pronounced talaq, the parties reconciled. The parties kept living together in Abu Dhabi from 2010 until 2013. In the UAE the applicant was sponsored by the respondent's work (only available to spouses and dependents, or servants). The parties lived together continuously until January 2013, when the applicant moved with the children to Canada before the family’s permanent residency lapsed. The respondent was to continue working in Abu Dhabi until he secured a job in Canada and would then join the family. In fact, the respondent’s permanent residency did lapse.

[10] After the wife and children came to Canada in 2013, the parties and their children visited and holidayed together, until the separation in January 2020. In December 2019, the applicant and the children traveled to Egypt to spend the holidays with the respondent due to his inability to come to Canada. The respondent was staying with the applicant and the children at the applicant’s parents’ home in Egypt. There was a fight. A few days after the fight, the applicant returned to Canada on January 10, 2020. In January 2020 the respondent contacted the Canadian embassy in Egypt to follow up on his travel documents to be able to enter Canada, and urged the embassy to help him reunite with his “wife and children”.

[11] There is no evidence or documentation of a granting or decree of divorce in 2010. All the respondent's official documents with taxes, immigration, bank mortgage, and car insurance before January 2020 show the respondent’s status as “married.”

[12] On his 2019 income tax return the respondent declared that he was married. He did not declare himself as separated on his tax return until 2020 – when the applicant also states they are separated.

[13] Although the matrimonial home in Canada is in the respondent’s name, the applicant was listed as the consenting spouse on the purchase documents in 2014. Emails between the respondent and the real estate lawyer in 2014 refer to the applicant as his wife, and confirm that she has power of attorney.

[14] In November 2019, Mr. Hassan wrote to his Member of Parliament for an update on his permanent residency application, emphasizing the hardship of separation from his wife as follows: “My PR application is in process since February 16, 2018 Any update please? Will I be able to get together again with my wife and children? Do you know how hard it is to live without your family and for your family to live without you for more than a year?”

[15] Mr. Hassan retained a lawyer in his immigration case. In February 2019, the lawyer wrote to Immigration, Refugees and Citizenship Canada (IRCC) providing more information in Mr. Hassan’s permanent residency application. The lawyer made a request based on humanitarian and compassionate grounds. The 2019 letter to IRCC states:

Mr. Hassan has a wife and two children permanently residing in Canada. We have enclosed school registration letters for the children and extra activities bills. Refusing PR renewal for the father would result in tremendous hardship for the children.

[16] A certified copy of the Record of Appeal of the Immigration and Refugee Board shows that the application for permanent residency in 2019, provided to the IRCC, lists the applicant’s marital status as married. The Record of Appeal shows direct communications by Mr. Hassan to various people in the government where he refers to reuniting with his “wife and children”, as late as January 2020.

[17] Mr. Hassan’s response to most of the wife’s evidence is a bare allegation of forgery. There is simply no evidence that the applicant forged the wide array of documents in the record. Rather than a bare allegation of forgery, Mr. Hassan could have filed a letter from the immigration lawyer saying he never represented Mr. Hassan or never wrote the letter, evidence from the CRA that the income tax return was forged, from the IRB that the certified records were forgeries, or evidence from an independent expert on forgery. The bare allegations of forgery are contradicted by the wife’s extensive evidence and third-party evidence, and constitute unfounded and inflammatory attacks on the integrity of the wife.

[18] It is of particular concern to the court since t Mr. Hassan represented to Canadian government entities (the CRA, IRCC, the Canadian embassy in Egypt) and financial institutions at all times prior to 2020 that the applicant was his wife. For the purposes of permanent residency, or purchasing a house, Mr. Hassan was content to represent that the applicant was his wife. Yet for the purposes of equalization and net family property, Mr. Hassan now resiles from these representations to assert that he divorced the applicant in 2010.

Conclusion

[19] I accept the applicant’s evidence on all issues relating to continuation of the marriage until the date of separation of January 10, 2020, based on the evidence set out above.

[20] The bare Islamic talaq relied on by the respondent as the basis for his position that the parties were legally divorced in 2010, is not valid as a foreign divorce, and should not be recognized in Canada. I find that the respondent has failed to establish that there was a valid foreign divorce granted with official or adjudicative oversight in the UAE based on the alleged bare talaq in 2010. The court grants the order sought by the applicant. The respondent’s motion is dismissed, with costs.

Procedural Concerns

[21] There were significant issues with the respondent’s materials. I raise this both as a cautionary tale for others, and because it affects the issue of costs. Given my concerns with the materials, I issued a Procedural Order before the hearing and permitted the respondent to cure the worst deficiencies (the unidentified exhibits). The respondent uploaded over 2,440 pages of evidence into CaseLines. Collectively, the parties filed over 3,000 pages for the motion.

[22] The respondent filed two affidavits. The first was 60 pages long, excluding exhibits. The second was 322 pages long, not including the 2,440 pages of evidence, and he filed a factum of 50 pages without an order for a long factum.

[23] The affidavits filed by the respondent were deficient. They incorporated, by reference, earlier affidavits and documents. In some cases, the respondent simply inserted documents into the body of the affidavit. In others, the exhibits were not identified (for example, “The legitimate opinion on such issue is attached as two Exhibits evaluated and assessed by two different law offices in Egypt” – but no exhibit number or letter was set out in the body of the affidavit so that the exhibits could be found. All exhibits must be identified in an affidavit by a letter or number, clearly described in the body of the affidavit, and attached to the affidavit as a lettered or numbered exhibit.

[24] The affidavit should be self-contained. All documents referred to must be attached as exhibits to the affidavit. There is no incorporation by reference. Moreover, the Toronto Notice to Profession and Parties – Toronto Region | Superior Court of Justice (ontariocourts.ca) provides:

All exhibits in affidavits and cases in facta shall be hyperlinked or bookmarked for ease of reference. In the alternative, parties may file/upload an index of exhibits or cases, hyperlinked to the exhibits and/or cases.

[25] So every reference to a document in an affidavit must be a reference to a properly identified exhibit, and that exhibit must be hyperlinked. The same for cases in factums.

[26] The sheer volume of material concerned the court, given the limited time judges have to prepare for and hear motions. By the Procedural Order before the argument of the motions, the court drew the attention of the parties to the Notice to the Profession, Parties, Public and the Media as it then read.

17. Materials uploaded into CaseLines that are not brought to the attention of the judicial officer at the hearing may not be considered

The oral hearing is the occasion when arguments must be succinctly set out by the parties. Parties must bring to the attention of the court all relevant material facts and the authorities that establish the legal proposition relied upon. It is not sufficient to merely upload filed materials to CaseLines. Materials that are not brought to the attention of the judicial officer at the hearing may not be considered. Judicial officers’ judgment writing time is not sufficient to permit it to be used as an extension of the time allocated for oral argument.

[27] I told the parties this meant that I would only consider a fact or a case if the party referred to the document, and took me to the document, in oral argument.

[28] Since the parties were self-represented, I advised them before the hearing that foreign law is a question of fact to be determined generally based on expert evidence.

[29] I advised Mr. Hassan to narrow the scope of documents, given the tight time frame, and permitted him to submit the draft revised affidavit to applicant by Saturday at 6 pm Toronto time for a Tuesday hearing.

Costs

[30] The applicant is successful, and is presumptively entitled to costs. The applicant seeks costs of $16,000, partially to sanction the respondent for his lengthy and non-compliant affidavits containing irrelevant and inflammatory statements. She has computed this based on awarding her costs at the rate of $200/hour, for 80 hours of work. She had to take 3 days off work both to respond to the materials and to attend at court. Mr. Hassan states that he is unemployed and has no income, and makes no claim for costs.

[31] Costs orders are in the discretion of the court pursuant to section 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. The Court of Appeal in Mattina v. Mattina, 2018 ONCA 867 at para. 10 held that modern family cost rules are designed for the fundamental purposes of: (1) partially indemnifying successful litigants; (2) encouraging settlement, (3) discouraging and sanctioning inappropriate behaviour by litigants, and (4) ensuring, in accordance with Rule 2(2), that cases are dealt with justly. Reasonableness and proportionality are the touchstone considerations to be applied in fixing costs.

[32] The court must step back and exercise judgment, having regard to all the circumstances as to what a fair and reasonable amount should be paid by the unsuccessful party rather than any exact measure of the actual costs to the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON C.A.), (2004) 71 O.R. (3d) 291. And as stated by Justice Pazaratz in D.D. and F.D. v. H.G., 2020 ONSC 1919 at para. 1: “An enormous waste of time and money cannot go without consequences. Otherwise, what is the disincentive for irresponsible litigants inclined to abuse former partners and the court system?”

[33] Justice Desormeau summarized concerns in Carmichael v. Carmichael 2019 ONSC 7224 at para. 12-13, which I find equally applicable here:

12 The justice system is a precious public resource. Access to the justice system by individuals must be balanced with the need to ensure that the resource is available for all portions who need it. This is one of the purposes of Rule 2: Lawrence v. Lawrence, 2017 ONCJ 431, at para. 52.

13 Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation…

[34] I consider the extraordinary length of the respondent’s affidavits, their grave technical deficiencies which made identifying exhibits and arguments extremely difficult, and the sheer amount of irrelevant and inflammatory evidence adduced. The material filed by Mr. Hassan is filled with allegations of forgery and fraud by the applicant. In his factum, the respondent referred to the applicant’s “continuous misrepresentation of the facts before the Honorable Court and false statements under oath.” Full indemnity costs are an appropriate sanction for the respondent’s conduct.

[35] Ability to pay is less of a mitigating factor when the impecunious party has acted unreasonably, or where their claim was illogical or without merit: D.D. and F.D. v. H.G., 2020 ONSC 1919, para. 44. Here, I find that Mr. Hassan has acted unreasonably and in bad faith, since he continued to represent to the Canadian government (IRCC, CRA) and financial institutions that he was married until early 2020, not 2010 as he tried to establish here.

[36] I turn to the costs claimed by the self-represented applicant. I consider the factors set out by Fryer, J. in Browne v. Cerasa 2018 ONSC 2242 at paras. 30-31 and 36. The applicant provided useful affidavit evidence, well-organized and responsive, and a useful factum. She was organized in her submissions, and they helped the court. At the same time, a lawyer would not have taken 80 hours. As set out by Price, J. in Abela v. Gibbens, 2018 ONSC 2544 at para. 39:

In fashioning a costs order for a self-represented litigant, the Court must balance the principle of fairness with the principle of access to justice. In applying the principle of fairness, as the Divisional Court noted in Andersen (2006) that the court seeks to avoid inconsistency with comparable awards in other cases. As was held in Murano (1998), "[l]ike cases, [if they can be found], should conclude with like substantive results".

[37] For the reasons given by Price, J., I set the value of the applicant’s time at $75 per hour on a partial indemnity basis, which is $105 per hour on a full indemnity basis. This was argued as a long motion (which means that the materials were longer, and court time was longer). The applicant’s materials were practically indecipherable, which required significantly more time. The issue was crucial to the applicant since equalization is dependent on a later date of separation. But the time allotted is 60 hours, not the 80 claimed by the applicant.

[38] A fair and reasonable amount of costs for the applicant in this case is $6,300.00, calculated at 60 hours at the full indemnity rate of $105.00 per hour, payable in 30 days.

Order

1. This Court declares that the parties were never legally divorced on August 5, 2010, or any other date.

2. This Court declares that the parties were married at the date of separation of January 10, 2020.

3. This Court orders that the divorce is severed from corollary relief claims, and either party may apply to obtain a divorce.

4. This Court orders that the Respondent shall pay the applicant costs of $6,300.00 within 30 days.

“Justice Kristjanson”

Released: September 6, 2023