COURT FILE NO.: FC-19-532

DATE: 20240809

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Boshra Mikhail, Applicant

AND:

Eman Mikhail, Respondent

BEFORE: McVey J.

COUNSEL: No one appearing for the Applicant

Shawn Duguay, for the Respondent

HEARD: April 23, 2024

DECISION ON UNCONTESTED TRIAL

[1] The parties were married in Egypt on August 28, 2008. They moved to Canada approximately eight months later. They have three children together: Jonathan Mikhail (born May 27, 2009), Joanna Mikhail (born December 26, 2010), and Joy Mikhail (born December 5, 2014). Throughout the parties’ marriage, the Respondent mother was the children’s primary caregiver. The mother proceeded to this uncontested trial to resolve numerous financial issues: child support, section 7 expenses, spousal support, damages for intimate partner violence, and equalization of net family property. For the reasons that follow, I grant the relief sought by the mother.

[2] The parties separated in March 2019. They have been involved in high-conflict litigation since that time. In 2021, the Office of the Children’s Lawyer recommended that the Applicant father complete anger management counseling and that he have only supervised access to the children. In March 2021, the mother was granted exclusive possession of the matrimonial home and primary care of the children. Since that time, the father has cared for the children on only seven occasions. Through no fault of the mother, the father has not seen the children since July 2022.

[3] For the better part of their marriage, the mother did not work outside of the home. Her focus was the children. The father is a successful pharmacist and owns numerous pharmacies. The full extent of his business holdings is unknown because he has repeatedly failed to provide complete financial disclosure, contrary to multiple court orders.

[4] A trial was scheduled to commence in September 2023. It was adjourned at the request of the father. The parties secured a new trial date of November 27, 2023. Leading up to both trial dates, numerous court orders were issued requiring the father to make critical financial disclosure.

On November 24, 2023, Justice Engelking struck the father’s financial pleadings because of his repeated non-compliance with those orders.

[5] The parenting issues were ultimately resolved by way of a consent order. The mother was granted sole decision-making power and sole care of the parties’ three children.

[6] An uncontested trial on the financial issues proceeded before me on April 23, 2024. Pursuant to Minutes of Settlement signed between the parties, their agreed upon valuation date is March 19, 2019, the date on which the father launched his application.

Child Support

[7] The father has a positive obligation to financially support his children because all three children are in the sole care of the mother. For the reasons set out below, pursuant to the Federal Child Support Guidelines, commencing April 1, 2019[^1], the father shall pay child support to the mother for the support of the three children based on the table amount for the following incomes:

a. 2019 - $159,000 per year

b. 2020 - $143,000 per year

c. 2021 - $165,000 per year

d. 2022 and ongoing - $200,000 per year (as dividend income grossed up for the purpose of calculating child support)

The above findings re income are based on the expert report tendered by the mother and drafted by Greg McEvoy, CPA, Cohen Hamilton Steger & Co. Inc., which I accept in its totality.

[8] The father’s income is uncertain because of incomplete financial disclosure. For the following four reasons, I find it appropriate to impute income to him: 1) the father has repeatedly failed to provide financial disclosure despite being under a legal obligation to do so; 2) the evidentiary record before me establishes that the father has diverted income from his corporate holdings to finance the purchase of additional pharmacies; 3) the father derives a significant portion of income from dividends; and 4) the father deducts personal expenses from his closely held corporations: see s. 19(1) of the Guidelines. The above findings are based on the expert financial report from Mr. McEvoy.

[9] Further, I find there is a rational basis in the evidence to impute to the father a dividendderived income of $200,000 for 2022 and onwards. First, that amount is consistent with the father’s own expert’s income calculations for the year 2020, a year when the father was not diverting

income to open new pharmacies. Second, when the father applied for a mortgage in March 2023, he relied on a self-employed income of $200,000.

[10] Therefore, the total amount owing from April 1, 2019, to June 30, 2024, is $204,873. Commencing July 1, 2024, the Applicant father shall pay monthly child support in the amount of $3762.00, based on an annual income of $222,879 (after grossing-up the imputed divided income of $200,000).

[11] The child support paid by the father to the mother under the October 2022 temporary Order (that required him to pay $2098 per month in child support) shall be credited to the child support owed above. For the period from October 22, 2022 to April 23, 2024, the father has made only seven child support payments totalling $14,686. This amount plus any payments made since April 23, 2024, if any, shall therefore be deducted from the total otherwise owed.

[12] By no later than June 1 of each year, the Applicant shall provide the Respondent with the information required by section 21 of the Child Support Guidelines. Child support and the parties’ respective contributions to the children’s section 7 expenses shall be reviewed and adjusted as of July 1 of each year. In the event the parties cannot agree with respect to the adjustment of child support or their proportionate contribution to the children’s section 7 expenses, the Applicant shall continue to pay child support and section 7 expenses at the rate applicable for the prior year until the matter is resolved.

Spousal Support

[13] Pursuant to section 15.2(1) of the Divorce Act, I find that the mother is entitled to spousal support at the high end of the range on both a compensatory and needs basis, commencing April 1, 2019.

[14] In 2009, the mother relocated from Egypt to Canada after marrying the father. She left behind a career in banking. She assumed a caregiver role to the father and their three children. She bore all the childcare responsibilities during the marriage and post-separation. Since 2019, she has had to do so with very little financial or other support from the father. The mother is currently unable to work due to an injury sustained prior to separation.

[15] The father has not paid any spousal support to the mother since separation.

[16] Commencing July 1, 2024, the father shall pay the mother indefinite periodic spousal support of $3280 per month, subject to future variation in the event of a material change in circumstance. This amount is based on the father’s imputed income of $200,000. These periodic payments of spousal support shall be tax deductible to the Applicant and taxable to the Respondent as income.

[17] Further, the periodic spousal support shall be indexed and increased annually in accordance with the indexing calculation set out in the Family Law Act, effective May 1, 2025 and on each anniversary of that date.

[18] Because of the tax treatment for spousal support, the mother seeks a lump sum for past spousal support payable from April 1, 2019, to June 30, 2024, based on the midpoint between the after-tax cost to the father (based on the imputed income values noted above), and the after-tax benefit to the mother. She has provided the following yearly after-tax midpoints from April 1, 2019, to April 30, 2024.

[19] I accept these calculations and find it appropriate and just to lump sum the spousal support payable from April 1, 2019, to June 30, 2024, based on the mid-point after-tax amount. For the period from April 1, 2019, to June 30, 2024, the spousal support payable by the Respondent to the Applicant is therefore fixed at $104,766. This award has been calculated on a net of tax basis and shall not be taxable to the Respondent as income nor deductible from the income of the Applicant.

Section 7 Expenses

[20] The father is also required to make a proportional contribution towards the children’s special and extraordinary expenses. A detailed summary of these expenses was provided by the mother. In my view, these expenses are reasonable as they mainly relate to therapy, medical and dental expenses, activities, prescriptions, and other school-related expenses. On average, they amount to $4917.78 per year for all three children ($409.82 per month). The father has never contributed to these expenses since the parties separated despite the mother making requests through Our Family Wizard. I find that the expenses for which contribution is claimed by the mother qualify as special and extraordinary expenses under s. 7 of the Child Support Guidelines.

[21] The mother’s current source of income is CPP disability benefits. Based on current income figures, including the spousal support payable as determined above, commencing July 1, 2024, the father shall be responsible for 77.1% of these expenses.

[22] Given the father’s refusal to contribute to these expenses in the past, I am prepared to order that he pay a fixed amount of section 7 expenses based on the four-year average disclosed by the mother’s evidence. His share amounts to $315.97 per month commencing July 1, 2024. Again, this ongoing obligation is based on the mother incurring s. 7 expenses of approximately $4917 per year (based on the average) and the proportionate sharing based on income.

[23] Regarding past section 7 expenses, the mother provided the following chart (and supporting materials) justifying the amounts claimed. I accept these values.

[24] For the period from April 1, 2019, to June 30, 2024, the section 7 expenses payable by the father to the mother is therefore fixed at $20,912.04 (after adding amounts owed from January 1, 2024 to June 30, 2024, to the above figures).

Commencement Date for Past Spousal Support, Child Support, and Section 7 Expenses

[25] This application was commenced on March 19, 2019. In her answer, the mother seeks support and section 7 expenses from April 1, 2019. I am prepared to order support and section 7 expenses payable from that date even though the mother and children resided in the matrimonial home after separation, and the father paid the home expenses during that time. For the following reasons, I do not find it appropriate to reduce the child and spousal support payable by the father or to credit his support obligation with amounts paid towards the house expenses:

The father was the sole legal owner of the matrimonial home and therefore received the benefit of the principal component of the payments after separation;
After the father sold the matrimonial home, he received the benefit of the increased value of the home during the period of separation and the financial benefit associated with the mother’s care of the home;
The father was removed from the matrimonial home because of his violent conduct towards his son, Jonathan;
The father has refused to consistently pay child support as ordered by Justice Audet in 2022;
The mother has financially supported the children and herself by relying on Court advances of the equalization payment owed to her. She has had to deplete this capital to meet her children’s needs, all while the father purchased himself a new home and pharmacies, thereby increasing his net worth; and
The father’s conduct throughout this proceeding, including his refusal to provide full financial disclosure, which ultimately resulted in his pleadings being struck.

Security for Child Support and Spousal Support

[26] The father swore in his financial statement that he holds an insurance policy with Canada Life with a face value of $1,000,000.00. I find it appropriate to order that the father designate the mother as the irrevocable beneficiary of $864,323.00 of that policy to secure his child and spousal support obligations: Katz v Katz, 2014 ONCA 606. The father shall provide annual confirmation that the policy remains in force and in unencumbered form. This amount of life insurance coverage should decline over time as the total amount of support payable over the expected duration of the award diminishes.

[27] The father’s child and spousal support obligation shall be a first charge on his estate.

[28] Specifically, I order the following:

The father shall maintain security for his child and spousal support obligation owing to the mother, for so long as he has an obligation to pay support, in accordance with the following:

a. The father shall maintain a policy of life insurance on his life with a minimum face value of $864,323.

b. The father shall name the mother as the sole irrevocable beneficiary of the policy proceeds;

c. The father shall, at all times, maintain the policy in good standing, in unencumbered form, and shall ensure no gap in coverage;

d. The minimum face value of the life insurance policy may be reduced annually, upon written agreement of the parties or further Order of the court, to reflect any corresponding reduction in the father’s outstanding support obligation;

e. The father shall provide proof of compliance with this provision to the mother within

30 days of this Order, and each year upon its anniversary;

f. These terms of security for support may be variable based upon a material change in circumstance, including a change in the total amount of support payable over the expected duration of the support obligation.

g. Upon the death of the father, any policy proceeds not required to satisfy the support obligation owed by the father to the mother shall be paid to the Estate and distributed according to law; and

h. Upon the death of the father, any shortfall in the policy proceeds as required to satisfy the support obligation owed by the Respondent to the Applicant shall be binding upon the father’s Estate.

Equalization of Net Family Property

[29] According to the Net Family Property Statement tendered by the mother (attached as Schedule A), the father owes her a total equalization payment of $473,065.95 less the two advances she has already received in the cumulative amount of $258,000. This leaves a total payment of $215,065.95 owing from the father to the mother. I accept these calculations.

[30] Specifically, I accept the high-end of the business valuations set out in Mr. McEvoy’s expert report. These values are consistent with what the father ultimately paid to acquire his business partner’s 50% interest in one of the companies. Such consistency enhances the reliability of the estimate, and the reliability of the report writ large. I also agree with the mother that the line of credit debt should be removed as a deduction from the father’s net family property because 1) the father has repeatedly failed to disclose how the line of credit funds were diverted and utilized; and 2) the father obtained this line of credit and a further mortgage on the home without the mother’s consent.

[31] I am prepared to order pre-judgment interest on the equalization payment at the Courts of Justice Act rate. As a general rule, “a payor spouse is required to pay prejudgment interest on an equalization payment owing to the payee spouse. …There are exceptions to the general rule. Exceptions arise ‘where, for various reasons, the payor spouse cannot realize on the asset giving rise to the equalization payment until after the trial, does not have the use of it prior to trial, the asset generates no income, and the payor spouse has not delayed the case being brought to trial’”: Muraven v Muraven, 2021 ONCA 657.

[32] I am not persuaded that exceptions call for deviating from the general rule. The father did have use of the matrimonial home for close to two years following separation. The father was ultimately removed from the home, and exclusive possession granted to the mother, due to the father’s own aggressive misconduct. The property has been sold since January 2023. Due to the father’s misconduct in the proceedings, including his persistent failure to abide by court orders relating both to disclosure and the payment of support, the mother has experienced significant financial hardship and has had to support herself and her children with advances she has received on the equalization payment. She has also incurred additional legal expenses due to significant delays in the litigation brought about by the father’s lack of compliance with court orders.

Damages

[33] The mother is seeking an order for compensatory and aggravated damages arising from the family violence she suffered at the father’s hands during the marriage and post-separation while they cohabitated in the matrimonial home.

[34] The unchallenged evidence before me is that the father attempted to suffocate the mother with a pillow; punched, slapped, and choked the mother with sufficient force to leave bruising; kicked her ankle with sufficient force to cause ligament damage; dragged the mother down a flight of stairs by her hair; spat on the mother; and demanded physical intimacy from her. The tortious act of battery involves physical contact by the tortfeasor or bringing about harmful or offensive contact with another person”: Barker v Barker, 2022 ONCA 567. The acts mentioned above clearly constitute tortious acts of battery.

[35] The mother has been engaged in intensive personal counseling for years to deal with the anxiety and mental distress caused by the father’s abusive conduct. The mother lived in nearconstant fear, which negatively impacted her long-term mental health and ability to work.

[36] I agree with the mother that this case mirrors closely the facts in Ahluwalia v Ahluwalia, 2023 ONCA 476, where the Ontario Court of Appeal upheld an award of $50,000 in aggravated damages and $50,000 in compensatory damages.

[37] In my view, a total award of $100,000 in aggravated and compensatory damages is appropriate. The father’s conduct was despicable, prolonged, highly blameworthy, and worthy of significant judicial rebuke. The mother was particularly vulnerable given that she was a racialized immigrant to Canada. The demand for physical intimacy is particularly aggravating. There is ample evidence before me that the mother suffered greatly, both physically and emotionally, from the father’s abusive disposition.

Conclusion

[38] The evidence filed in the context of this uncontested trial justifies the relief being sought.

[39] The net proceeds of the sale of the matrimonial home currently held in trust with Ms. Elisha Kelly of KMH Layers, shall be attributed first to the remaining equalization payment and associated pre-judgment interest. The remaining amount in trust shall be attributed to the outstanding costs awards currently owed by the father.

[40] An updated draft order reflecting these reasons shall be sent to my attention.

Costs

[41] The mother was the successful party and is entitled to costs. She shall file her written costs submissions within 10 days of the release of these reasons.

McVey J. Date: August 9, 2024

SCHEDULE 'A'

Court File Number FC-19-532

ONTARIO

Superior Court of Justice, Family Court

(Name of Court)

at 161 Elgin Street, Ottawa, Ontario, K2P 2K1 Form 13B: Net Family (Court office address) Property Statement

Applicant(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).

Boshra Mikhail

Christian Pilon

Charon Pilon Sauve LLP

1-2784 Laurier Street

C.P./P.O. Box 1030

Rockland, Ontario K4K 1L5

Tel: 613-446-6411 ext 237 Fax: 613-446-4513 cpilon@cpsllp.ca

Respondent(s)

Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).

Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any).

Eman Mikhail

Shawn Duguay

Gowling WLG (Canada) LLP

160 Elgin Street

Suite 2600

Ottawa, ON K1P 1C3

Tel: 613-233-1781, x58969 Fax: 613-563-9869

shawn.duguay@gowlingwlg.com (Box 145)

My name is (full legal name) Eman Mikhail

The valuation date for the following material is (date) March 19, 2019

The date of marriage is (date) August 28, 2008

(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)

Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)

PART 4(a): LAND

Nature & Type of Ownership

(State percentage interest)

Address of Property

APPLICANT

RESPONDENT

Matrimonial Home

302 Saddleridge Drive, Orleans

• Per April 1, 2019 Appraisal

• Sold on January 16, 2023 for $780,000

• $240,182.22 remains in trust

$560,000.00

Totals: Value of Land

$560,000.00

$0.00

PART 4(

b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item

Description

APPLICANT

RESPONDENT

Household goods & furniture

Divided

FLR 13B (May 15, 2009) www.DIVORCEmate.com

Cars, boats, vehicles

Acura MDX 2018 (Leased)

$0.00

Mercedes 2018 (Leased)

$0.00

Jewellery, art, electronics, tools,

Tools

$200.00

sports & hobby, equipment

Other special

Jewelry

$325.00

items

Totals: Value of General Household Items and Vehicles

$200.00

$325.00

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

APPLICANT RESPONDENT

TOTAL 1: Value of Property Owned on Valuation Date (item 22)

$1,134,382.82

$44,151.71

TOTAL 5: (from above)

$188,250.92

$58,531.42

TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)

$946,131.90

$0.00

EQUALIZATION PAYMENTS

Applicant Pays Respondent

Respondent Pays Applicant

$473,065.95

$0.00

Signature Date of signature

[^1]: In the mother’s Answer, she seeks child support payable commencing April 1, 2019.

Mikhail v. Mikhail, 2024 ONSC 4427

Case Summary

DECISION ON UNCONTESTED TRIAL

Child Support

Spousal Support

Section 7 Expenses

Commencement Date for Past Spousal Support, Child Support, and Section 7 Expenses

Security for Child Support and Spousal Support

Equalization of Net Family Property

Damages

Conclusion

Costs

SCHEDULE 'A'

APPLICANT RESPONDENT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 6

Legal Tests 4

Legislation 1