COURT FILE NO.: FC-16-1475
DATE: 2024/10/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maya Zakhour
Applicant
– and –
Fady Nayel
Respondent
Applicant, Self-Represented
Diane Magas, for the Respondent
HEARD: May 22-24, 2024
REASONS FOR DECISION
Justice K.A. Jensen
Introduction
[1] This is a decision on an application that was filed in October 2016. In her application, the Applicant, Maya Zakhour, made claims for spousal support (and indexing thereof), a restraining/non-harassment order, equalization of net family properties, exclusive possession of the matrimonial home and its contents, the freezing of assets, and sale of family property.
[2] At the trial, the Applicant limited her claims to the equalization of net family property, occupation rent, and the return of or reimbursement for personal items she says she left in “the matrimonial home”.
[3] Ms. Zakhour is the cousin of the Respondent, Fady Nayel. Ms. Zakhour was raised in Montréal, where she completed her training to become a physician. Mr. Nayel was living in Lebanon when Ms. Zakhour contacted him and stated that she wanted to get married. Ms. Zakhour married the Respondent in Lebanon on May 24, 2015 and they honey-mooned in Greece. They remained in Lebanon until on or around December 13, 2015 at which point they travelled to Canada. The parties separated on January 20, 2016 when Mr. Nayel left for Lebanon.
[4] For the reasons that follow, I find that Ms. Zakhour is entitled to an equalization payment of $581.49. The rest of her application is dismissed.
The Issues in the Present Case
[5] Ms. Zakhour claims equalization of net family property. The following are the property items in which Ms. Zakhour claims an interest:
i. A home at 156 Barrette Street in Ottawa that Ms. Zakhour states was the matrimonial home;
ii. A property at 529 boulevard Hurtubise in Gatineau, Québec that Mr. Nayel owned but has since been destroyed in a flood;
iii. Property that Mr. Nayel owns in Lebanon; and
iv. An investment fund with Investors Group in Mr. Nayel’s name.
[6] Ms. Zakhour also claims occupation rent, although she does not specify for what period of time.
[7] Finally, Ms. Zakhour claims that a large number of her personal possessions consisting of clothing, accessories, and jewellery were not returned to her. She wants to be compensated for the value of those possessions.
The Property at 156 Barrette Street
[8] Ms. Zakhour claims that a home located at 156 Barrette Street in Ottawa was the matrimonial home. She claims that she is entitled to 50 percent of the appraised value of that home, which she says was $430,000. The home is in Mr. Nayel’s name.
[9] Mr. Nayel was born in Lebanon in 1962, immigrated to Canada in 1984 with his family, and thereafter became a Canadian citizen.
[10] Mr. Nayel lived and worked in Canada for 20 years, after which he decided to move back to Lebanon. From 2006 on, he came back to Canada two to three times per year to bring his son from another marriage home to Lebanon for the summer to visit his family who live in Canada.
[11] In 1988, the Nayel family purchased the home located at 156 Barrette Street in Ottawa. The family consisted of five people – Mr. Nayel, his parents, and his brother and sister. The title of the house was registered under the names of Mr. Nayel and his brother. In 1990, the title of the house was registered exclusively in Mr. Nayel’s name.
[12] Mr. Nayel’s parents lived at 156 Barrette Street. Mr. Nayel’s father died in 2005 and his mother remained in the house until 2014 when she became ill and went to live with Mr. Nayel’s sister, Nelly. In Mr. Nayel’s mother’s absence, the plan was to renovate 156 Barrette Street so that she would have a bathroom on the same floor as her bedroom once she was well enough to move back into the home. However, this did not happen because Mr. Nayel’s mother never regained her health.
[13] There were three other apartments in 156 Barrette Street that were rented out to tenants at various times.
[14] From 2014 until it was sold in 2018, 156 Barrette Street was under renovation. No one lived there other than Mr. Nayel, who stayed there from time to time when he was in Canada.
[15] As noted above, Mr. Nayel and Ms. Zakhour were married in Lebanon in May 2015. Ms. Zakhour stated that the couple had planned to live in Canada and to raise children here. However, Mr. Nayel testified that they had had no such conversation and that he believed that Ms. Zakhour wanted to live in Lebanon with him. She had called him and expressed an interest in living in Lebanon before they got married. In the short period of their marriage, they lived much longer in Lebanon than in Canada.
[16] Mr. Nayel and Ms. Zakhour came to Canada for three weeks over the Christmas holidays in December 2015 and January 2016. They stayed at 156 Barrette Street for approximately seven days.
[17] Ms. Zakhour spent some time in Montréal while they were in Canada over the holidays. She attended three appointments there and spent time with her family in Montréal.
[18] On January 3, 2016, Ms. Zakhour moved out of 156 Barrette Street to live with her sister in Montréal. Both parties agreed that Ms. Zakhour’s mental health was very poor at the time. Mr. Nayel phoned Ms. Zakhour’s sister in Montréal and asked her for help and advice about what to do regarding Ms. Zakhour’s erratic behaviour. Ms. Zakhour’s sister came to pick up Ms. Zakhour and took her back to Montréal. She brought Ms. Zakhour’s medication for her mental health condition with her.
[19] Mr. Nayel went to Montréal to attend two psychiatrist’s appointments with Ms. Zakhour. He then returned to Lebanon in mid-January 2016, and filed for divorce in the Maronite Court of Lebanon.
[20] The parties were married for approximately seven and a half months.
[21] While Ms. Zakhour testified that she and Mr. Nayel intended to make 156 Barrette Street their family residence, she also agreed in cross-examination that it was not fit to live in because it was under renovation. She agreed that there was no kitchen and that the couple did not eat their meals there.
[22] Mr. Nayel testified that there was no kitchen, no fridge, and only a minimally functioning bathroom. It was a house under renovation and, by all appearances, would require extensive work to become livable. Ms. Zakhour admitted that she had no keys for 156 Barrette Street.
[23] While they were visiting Canada in December 2015 and January 2016, the couple had their meals with Mr. Nayel’s sister and spent the daytime hours with Mr. Nayel’s family. They came back to 156 Barrette Street to shower and sleep at night.
[24] There was very little furniture at 156 Barrette Street. There were some beds, a washing machine, and an armoire in one of the rooms. Ms. Zakhour indicated that she put her toiletries in the bathroom and took her showers there.
[25] Ms. Zakhour produced evidence of a consultation with a fertility specialist in Montréal in December 2015 as well as an ultrasound picture that seemed to show a faint image of a fetus. She testified that she had had a miscarriage early in 2016. She stated that this proved that she and Mr. Nayel were attempting to have children in Canada and that they were planning on living in the family home at 156 Barrette Street.
[26] Mr. Nayel provided different evidence about the couple’s intentions. He stated that he knew Ms. Zakhour was trying to get pregnant, but there was no discussion that the couple would raise their children in Canada.
[27] Ms. Zakhour produced utility bills and receipts for payment that showed Mr. Nayel’s address as being 156 Barrette Street. Mr. Nayel agreed that he paid home insurance and paid for the utilities for 156 Barrette Street for both the periods when he was away and when he came back to visit Ottawa. He stated that he did so to maintain the property while he was living in Lebanon. He had his sister come in to check on the property from time to time while he was away.
[28] Ms. Zakhour produced pay stubs from a Denny’s restaurant that showed that Mr. Nayel had been “employed” at the restaurant in April 2016. She stated that this showed that he lived and worked in Canada. However, Mr. Nayel explained that when he was in Ottawa, he did odd jobs for his sister at the Denny’s restaurant that she co-owned. The restaurant did not always have enough money to pay him right away for the work he did. Therefore, the arrangement was that they would pay him as an employee when they had the money to do so, although the period of employment did not correspond to the dates when he completed the odd jobs at the restaurant. Denny’s would issue a T4 slip for the payments made during that the year and he would complete a tax return for that year.
The Law on Matrimonial Property
[29] The definition of “matrimonial home” is provided at s. 18(1) of the Family Law Act, (FLA): “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”[^1]
[30] “Ordinary occupation” is determined through a flexible and contextual analysis, whereby “[e]ach case is decided on its own facts.”[^2] Additionally, “[t]o occupy something ordinarily does not require constant or continual occupancy, nor does it require occupancy of every square metre.”[^3]
[31] It has also been held that the term “family residence” connotes something more than the simple occupation of a dwelling. It must be the residence around which a couple's normal family life revolves.”[^4]
[32] A short stay does not preclude a finding that a given property is a matrimonial home.[^5] However, “[w]here usage is minimal or sporadic, the courts have focused on the intent of the parties.”[^6]
[33] For example, in Oliver v. Oliver, this court found that the disputed property was not ordinarily occupied by the parties at the date of separation (or valuation date) and was not a matrimonial home.[^7] The wife had purchased the property with her aunt prior to the marriage. The wife intended that the property would be the aunt’s home.[^8] The property was occasionally tenanted, and the tenants understood that the larger bedroom was for the use of the wife and her husband.[^9] The parties used the property to store belongings, as a transit point for their annual trips, and also to stay at when the husband got treatment in Toronto.[^10] The property was infrequently used for family visits and events (e.g., for a birthday party approximately ten years before).[^11] The court found that the parties’ occupancy of the condo was “infrequent, minimal and sporadic.”[^12]
[34] In finding a lack of intention to treat the property as a matrimonial home, the court in Oliver noted that it was originally purchased as the wife’s aunt’s home and “once it became apparent that the wife's aunt would not use the condo as her new home, neither the husband nor the wife demonstrated any express intention to treat the property as a matrimonial home.”[^13] The fact that the parties kept beds, personal belongings, and a scooter on the property, and also the fact that the husband helped with the upkeep and repair of the property, did not reveal a “clear intent” to treat the property as a matrimonial home.[^14] The court highlighted the fact that the parties never used the kitchen, other than for one meal four years prior when the parties had already decided to separate.[^15]
[35] In summary, stays of only short durations may qualify as ordinary occupation where the intent of the parties as of the date of separation supports such a finding. Courts have looked to the parties’ lifestyle and longer-term plans, the extent to which they have moved in personal property, whether they slept or prepared meals in the premises, and whether they hosted family events at the property in ascertaining this intention.
Application of the Law to the Facts in the Present Case
[36] Ms. Zakhour argued that the decision of Justice Engelking on March 17, 2017 in which Justice Engelking found that she had jurisdiction over Ms. Zakhour’s motion for, inter alia, exclusive possession of the matrimonial home and temporary spousal support, establishes that 156 Barrette Street is the matrimonial home. However, Justice Engelking did not find that the home at 156 Barrette Street was the matrimonial home, and in fact expressly declined to make a finding in that regard, stating the following:
The evidence before me did not reveal that the residence was ordinarily occupied by them or that they were participating in everyday family life there. Rather, the evidence seems to reveal that they were temporarily "camping out" at 156 Barrette Street as a matter of convenience. As was stated by Justice Steinberg in Taylor v. Taylor 1978 CarswellOnt 305 at paragraph 54: "The term "family residence" connotes something more than the simple occupation of a dwelling. It must be the residence around which a couple's normal family life revolves."[^16]
[37] Therefore, Justice Engelking dismissed the Applicant’s motion for exclusive possession of the home at 156 Barrette Street.
[38] On December 20, 2017, Justice Engelking issued another decision on another motion brought by the Applicant who was seeking 16 grounds of relief. Among the claims that Ms. Zakhour raised in the motion was a request for occupation rent.
[39] Justice Engelking denied the Applicant’s request for occupation rent, reiterating that there had been no conclusion that 156 Barrette Street was the matrimonial home. She further found that there was no evidence that the Applicant had contributed to the carrying and maintenance costs of the property.
[40] I find that 156 Barrette Street was not the matrimonial home. Notwithstanding Ms. Zakhour’s vehement insistence that she intended 156 Barrette Street to be the matrimonial home, I find that there was no such intention at the time of separation. Rather, the intention was to “camp out”, to use Justice Engelking’s expression, at 156 Barrette Street during the parties’ brief stay in Canada when visiting family.
[41] The dwelling at 156 Barrette Street was under a state of renovation for the express purpose of moving Mr. Nayel’s mother back in when she was well enough to do so. The parties’ intention in January 2016 was to return to Lebanon where they would live, and Mr. Nayel’s mother would move back into 156 Barrette Street.
[42] Evidence of the parties’ intention to return to Lebanon is found in the fact that Ms. Zakhour left many of her clothes and possessions in Lebanon. She testified at trial that she brought almost all her clothes to Canada with her from Lebanon because she and Mr. Nayel were planning on making Canada their home. However, on cross-examination, Ms. Zakhour acknowledged that her aunt had brought two large suitcases full of her clothing from Lebanon to Canada and had given them to her. She also acknowledged that she had previously testified in the Maronite Court that she had left all of her belongings in Lebanon. Ms. Zakhour’s credibility during the proceedings was weak. She often contradicted herself and justified the inconsistencies in her testimony by saying she had been abused by the family. I find that Ms. Zakhour left her clothing in Lebanon on the assumption that the couple would be returning to establish their lives there.
[43] The residence at 156 Barrette Street was where the parties slept and showered in December 2015 and January 2016. They ate their meals at Nelly Nayel’s and spent their time elsewhere, visiting with family in Ottawa and Montréal. They were at 156 Barrette Street only for a brief time before they separated. Although Ms. Zakhour testified that she entertained people there, such as her sister, the evidence does not support that statement. Ms. Zakhour’s sister, who came to pick her up when she was not well, did not testify at the trial. Mr. Nayel denied that the parties entertained at 156 Barrette Street. I do not accept Ms. Zakhour’s statements that the parties entertained at 156 Barrette Street.
[44] I find that the facts in the present case are very much like those in the Oliver case, discussed above. There was no clear intention by the parties to treat 156 Barrette as the matrimonial home.
Occupation Rent
[45] Section 24(c) of the FLA provides me with the authority to direct that Mr. Nayel make periodic payments to Ms. Zakhour if I find that the house is the matrimonial home and exclusive possession has been ordered.[^17] As noted above, I do not find that 156 Barrette Street is the matrimonial home.
[46] However, that does not end the matter. As noted in Higgins v. Higgins, the court may make an order for occupation rent as an equitable remedy.[^18] This remedy may be ordered when the parties are joint owners of the property, and it would be unfair to permit one party to have the advantage of sole possession of the property at the expense of the other.[^19]
[47] In the present case, Mr. Nayel is the exclusive owner of the property. Ms. Zakhour was not a joint owner according to her testimony. Moreover, as noted by Justice Engelking, there is no evidence that she contributed any money whatsoever to the carrying or maintenance costs of the property. In fact, she denied doing so. She testified that she assisted in renovating the property, but the evidence does not, in any way, support that assertion. There was no evidence that any renovation work was completed on the premises during the Christmas holiday, other than Ms. Zakhour’s bold assertion that renovation work took place during the brief period that the couple stayed at 156 Barrette Street during the holidays in 2015-2016. Ms. Zakhour’s claim for occupation rent therefore fails.
Equalization of Net Family Property
[48] Section 5 of the FLA provides that “when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.”[^20]
[49] Ms. Zakhour stated in her opening statement at trial that her main concern was to obtain half of the value of 156 Barrette Street, which she said was the matrimonial home, and to obtain an order for occupation rent. However, during her testimony, Ms. Zakhour added that she thought she was additionally entitled to half of the following: the increased value of Mr. Nayel’s property in Lebanon; the interest on an investment fund he has in Canada; and the increased value of his Canadian properties.
[50] Mr. Nayel relies on s. 5(6)(e) of the FLA in support of his claim that equalizing the parties’ net family properties as at the date of separation would be unconscionable. Section 5(6)(e) states the following:
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;[^21]
[51] The steps to be taken when s. 5(6) is engaged are well-established.[^22] The court in Serra set them out as follows:
“The court must first ascertain the net family property of each spouse by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally -- and before making an order under s. 5(1) -- the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paras. 5(6)(a) through (h) (citations omitted) [^23]
[52] It must be noted that the threshold of "unconscionability" under s. 5(6) of the FLA is exceptionally high. The jurisprudence is clear that circumstances which are unfair, harsh, or unjust alone do not meet the test.[^24] To cross the threshold, an equal division of net family properties in the circumstances must shock the courts’ conscience.[^25]
[53] The mere fact that the parties cohabited for less than five years does not automatically justify an unequal distribution. Instead, successful claims for unequal distribution generally turn on one spouse’s insufficient contribution to the marriage.
[54] For example, in Argiris v. Argiris, the wife was awarded only ten percent of the value of the appreciation of the matrimonial home.[^26] The husband had brought the home into the marriage, and the parties had cohabitated for only nine months (which included periods of separation). The court remarked “that in the circumstances of this very short cohabitation very little was contributed by the respondent wife[^27] and “all of the acquisition, maintenance and improvements of the home fell to the applicant husband and his father [with a minor exception] and […] all of the burden of financial provision has been assumed by the applicant [husband] while the respondent [wife] contributed little in the way of household management and nothing else”.[^28]
[55] More recently, in Burden v. Burden, the court awarded the wife roughly ten percent of what would have been her net family property.[^29] The parties were married for less than 18 months. The husband brought the home into the marriage, and transferred it into joint tenancy with the wife.[^30] The husband sought unequal division of the net family property under s. 5(6)(e) “given that the applicant would realize a windfall when the matrimonial home is considered as part of the NFP calculations and obviously, the short duration of the marriage.”[^31] The court stated that “[t]here is no evidence that the respondent’s home, which eventually became the matrimonial home and which was placed in joint tenancy, ever increased in value during the short duration of the marriage.”[^32] The court thus awarded an unequal distribution.[^33]
[56] In the present case, I make the following findings with respect to the family property:
(a) The property at 529 boulevard Hurtubise in Gatineau
[57] Mr. Nayel testified that he bought land with a trailer home on the Gatineau property in 1998, which flooded in or around the Spring of 2017. The City of Gatineau did not allow residents to rebuild anything on this land because it was in a flood zone. In his financial statement, sworn January 3, 2017, Mr. Nayel states that the land was worth $150,000 on the date of marriage, and $150,000 on the date of separation.
[58] Ms. Zakhour did not present any evidence to contradict Mr. Nayel’s evidence about the value of the Gatineau property. She argued that Mr. Nayel was required to provide a valuation of the property, which he has not done. Mr. Nayel responded by stating that the property was essentially worthless because nothing can be built on it. He was provided with $80,000 in compensation in or around 2018 for the loss of value to the property. He has estimated that the land could be valued at $150,000, but it was not worth obtaining a property valuation given the brevity of the marriage and the lack of value of the land.
[59] I find that the property value likely did not increase in the seven and a half months that the couple was married. Therefore, there is no contribution to the net family property from the Gatineau property.
(b) The home at 156 Barrette Street in Ottawa
[60] As noted above, this property is not a matrimonial home. Therefore, it is only the increase in the value of the home during the marriage that counts toward the net family property.
[61] In his financial statement, Mr. Nayel stated that on the date of marriage, the value of 156 Barrette Street was $387,000. He stated that the value of the home on the date of separation was $387,000. Ms. Zakhour did not provide any evidence to the contrary. Instead, she provided evidence of a valuation of $430,000 as of January 11, 2018 which is not the valuation date for the purposes of determining any increase in value during the marriage. Therefore, I find that there was no evidence of any increase in value in 156 Barrette Street during the seven and a half months that the parties were married. As a result, there is no contribution to the net family property from 156 Barrette Street.
(c) The Properties in Lebanon
[62] Ms. Zakhour alleges that she is entitled to half of the increase in value of the properties that Mr. Nayel owns in Lebanon.
[63] This court has held that “[i]n calculating the parties’ net family property and the ultimate equalization payment, if any, owing by one to the other, the court will take into account the value of the foreign-owned property, but it has no authority to order its sale.” (citations omitted).[^34]
[64] On August 11, 2017, Justice Ryan Bell ordered Mr. Nayel to provide evidence for the items listed in his financial statement. Mr. Nayel has never listed his property in Lebanon in his financial statements. He takes the position that the Maronite Court held that Ms. Zakhour was not entitled to financial compensation, based on the brevity of the marriage, and that this includes part of the value of the properties in Lebanon. Therefore, he has not produced evidence of the value of the properties in Lebanon.
[65] Ms. Zakhour did not provide any evidence with respect to the value of the properties in Lebanon. She produced a Real Estate Property Information Card that listed Mr. Nayel’s property interests in Lebanon. The card showed that he owns shares in some ten properties. Mr. Nayel testified that he inherited some of the properties from his grandfather and that he shares ownership of some of the properties with other members of his family. The Real Estate Property Information Card did not give any indication of the value of Mr. Nayel’s property interests in Lebanon, nor how much they would have increased over the seven and a half months of the marriage.
[66] Ms. Zakhour did not cross-examine Mr. Nayel with respect to the value of his property in Lebanon. Indeed, she did not seem particularly interested in pursuing this issue during the course of the trial. She conceded that there was no evidence of the value of the Lebanese properties.
[67] I have no evidence of any potential increase in the value of the Lebanese properties during the short duration of the parties’ marriage. I cannot surmise whether there might have been an increase during this time without any evidentiary basis. Given the lack of evidence, it is open to me to ascribe no value to the increase in the Lebanese properties.[^35] I find that this is the most reasonable approach, given the brevity of this marriage.
(d) The Interest on the Investment Fund
[68] Ms. Zakhour produced a document from Investors Group that she identified as Mr. Nayel’s Financial Portfolio Statement from July 1, 2016 to September 30, 2016. It is unclear exactly how Ms. Zakhour arrived at the conclusion, based on the dates in that document, that Mr. Nayel made $4,094 in interest for the period from May 24, 2015 to January 3, 2016. However, Ms. Zakhour states that she is entitled to half of $4,094, or $2,047.
[69] Mr. Nayel’s financial statement indicates that the value of the Investor’s Group investment fund on the date of marriage was $48,000.00, and on the valuation date it was $52,651.88. Therefore, the increase in value of the Investors Group investment fund was $4,651.88 according to Mr. Nayel’s financial statement. This amount seems to be a more accurate reflection of what the increase in the value of that investment fund is likely to be. Therefore, the amount of $4,651.88 will be included in the net family property.
Conclusion with Regard to Equalization of Property
[70] Based on the submissions and evidence provided at trial, I find that the net family property in this case is $4,651.88. In his financial statement of January 3, 2017, Mr. Nayel stated that the net family property was $14,738.68. However, the 2017 financial statement included household items and an account that were not raised by Ms. Zakhour at trial, nor was evidence presented to support the value of these items by Ms. Zakhour or Mr. Nayel. In addition, Ms. Zakhour disputed the truth of Mr. Nayel’s 2017 financial statement. Therefore, I have not included those items in my calculation of the net family property.
[71] For the following reasons, I find that Ms. Zakhour is not entitled to half of the net family property amount of $4,651.88.
[72] I find that this case is analogous to the Burden case. The marriage was of very short duration. Furthermore, the evidence established that Ms. Zakhour’s contributions to the acquisition, maintenance and improvement of the family property during the marriage were minimal. In fact, Ms. Zakhour benefitted more from the short-term marriage than she invested into it.
[73] Mr. Nayel testified that he gave Ms. Zakhour $50,000 worth of jewellery for the wedding, including a one carat diamond wedding ring, which she kept. In cross-examination, Ms. Zakhour stated that Mr. Nayel had only loaned her the jewellery and that she had left the jewellery in Lebanon in a safe. However, she also stated that she brought her wedding ring back and pawned it for $500. Later, in cross-examination, she stated that she might have pawned another ring from a different man, not the ring from Mr. Nayel. She also admitted that in previous proceedings, she had testified that Mr. Nayel did not permit her to bring her diamond wedding ring to Canada.
[74] Mr. Nayel’s evidence with respect to the jewellery was much clearer and more consistent. Mr. Nayel denied that he loaned Ms. Zakhour the jewellery; he paid for the jewellery in installments because he did not have $50,000 to pay for it all upfront. Mr. Nayel stated that Ms. Zakhour was proud of the jewellery he gave her and wanted to show it off to family in Canada. He advised her not to, but she insisted on bringing it on the holiday trip to Ottawa in 2015-2016.
[75] Ms. Zakhour’s evidence about the jewellery was weak. She changed her story about the diamond wedding ring, denied that she had brought the jewellery back with her, made the implausible statement that the jewellery was a loan, and then suggested that her evidence on this point did not matter since she was not claiming the jewellery as part of the net family property.
[76] I prefer Mr. Nayel’s testimony about the jewellery and find therefore that Ms. Zakhour likely brought the jewellery with her to Canada and did not give it back to Mr. Nayel. She therefore had the benefit of $50,000 worth of jewellery.
[77] In light of the following factors in this case, I find it would be unconscionable to attribute half the value of the increase in the Investors Group investment fund to Ms. Zakhour:
• Ms. Zakhour kept $50,000 worth of jewellery;
• Mr. Nayel brought all of the property into the marriage;
• the parties were married for only a brief period;
• there are no children of the marriage; and
• there is no indication that Ms. Zakhour contributed to the assets of the marriage.
[78] I find that the mathematical formula, which is based on the length of the marriage, is the appropriate approach to use in determining the fair proportion of the net family property to which Ms. Zakhour is entitled. In Gomez v. McHale, the Ontario Court of Appeal described the mathematical approach using the following example:
In several cases, courts have looked at the actual period of cohabitation (e.g. 48 months) and then fixed an unequal division of net family property using that period as a percentage of the five year statutory period, i.e. 48/60 = 80 per cent).[^36]
[79] The Court of Appeal has recently reaffirmed the mathematical approach, stating that it provides the benefit of certainty in appropriate cases.[^37]
[80] In the present case, the mathematical approach would provide Ms. Zakhour with 12.5 percent of the increased value of the Investors Group investment fund.[^38] Ms. Zakhour is therefore entitled to a $581.49 equalization payment from Mr. Nayel.
Personal Possessions
[81] Ms. Zakhour provided a list of clothing, accessories, and jewellery that she wanted returned to her. She stated that she left the items behind at 156 Barrette Street in January 2016. However, at trial Ms. Zakhour stated that she did not expect to have the items returned to her; rather, she would prefer to be reimbursed for their value. Ms. Zakhour did not provide any evidence of the value of the items.
[82] Ms. Zakhour’s evidence with respect to the list of items was also weak. As noted above, I have found that Ms. Zakhour left a large amount of clothing in Lebanon that was returned to her in two large suitcases by her aunt.
[83] Mr. Nayel and his sister testified that Ms. Zakhour left only a few personal items, such as pyjamas, behind at 156 Barrette Street after she left for Montréal at the beginning of January 2016. Mr. Nayel gave those items to Ms. Zakhour’s aunt, who gave them back to Ms. Zakhour.
[84] Ms. Zakhour testified that she is a hoarder and has a lot of clothing. Therefore, she stated that it is plausible that there is more clothing in Lebanon or Canada that has not been returned to her. Those are the items on the list she provided, she stated.
[85] Even if I were to accept Ms. Zakhour’s testimony that there is a long list of clothing, accessories, and jewellery that have not been returned to her, I am not able to grant her request for reimbursement of those items because she has not provided any evidence regarding the value of the items. She guessed that they might be worth $4,000, but conjecture is not acceptable evidence. Furthermore, I am not convinced that Mr. Nayel and his family have refused to return her possessions. Rather, I find that they made every effort to return all of her belongings at the end of the relationship. It does not make sense that they would go to the trouble of shipping two large suitcases full of items to her through her aunt, and then leave out a number of items such as underwear and bathing suits. Therefore, I reject Ms. Zakhour’s claim for compensation for items she believes were not returned to her after the separation.
Conclusion and Costs
[86] For the reasons set out above, I find that Ms. Zakhour is entitled to an equalization payment of $581.49 from Mr. Nayel. The rest of the Application is dismissed.
[87] Mr. Nayel is ordered to pay Ms. Zakhour $581.49 within 30 days of the date of this decision.
[88] Mr. Nayel was largely successful on this Application; most of Ms. Zakhour’s claims were defeated. Therefore, I find that Mr. Nayel is entitled to a modest amount of costs to partially indemnify him for the cost of defending against this matter. That amount should reflect the fact that Ms. Zakhour was successful on a small part of her claim.
[89] I would encourage the parties to reach an agreement on the costs, failing which they may schedule a half hour appearance before me. Both parties should serve, file and upload to case center a brief of not more than 3 pages (including the Bill of Costs) three days prior to the appearance.
Justice K.A. Jensen
Released: October 1, 2024
COURT FILE NO.: FC-16-1475
DATE: 2024/09/XX
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Maya Zakhour
Applicant
– and –
Fady Nayel
Respondent
REASONS FOR DECISION
Somji J.
Released: September XX, 2024
[^1]: Family Law Act, R.S.O. 1990, c. F.3, s. 18(1). [^2]: LeCouteur v. LeCouteur (2005), 2005 CanLII 8726 (ON SC), 18 R.F.L. (6th) 386 (Ont. Fam. Ct.), at para. 78. [^3]: Goodyer v. Goodyer (1999), 1999 CanLII 20759 (ON SCDC), 168 D.L.R. (4th) 453 (Ont. Gen. Div. Fam. Ct.), at para. 16. [^4]: Taylor v. Taylor (1978), 1978 CanLII 3115 (ON SC), 6 R.F.L. (2d) 341 (Ont. Uni. Fam. Ct.), at p. 350. [^5]: El-Sohemy v. El-Sohemy (1980), 1980 CanLII 3632 (ON SC), 17 R.F.L. (2d) 1 (Ont. H.C.), at p. 18. [^6]: Farnsworth v. Chang, 2014 ONSC 1871, at para. 55, aff’d 2016 ONCA 442. [^7]: Oliver v. Oliver, 2012 ONSC 718, at para. 55. [^8]: Oliver, at para. 36. [^9]: Oliver, at para. 37. [^10]: Oliver, at para. 38. [^11]: Oliver, at para. 39. [^12]: Oliver, at para. 40. [^13]: Oliver, at para. 51. [^14]: Oliver, at para. 52. [^15]: Oliver, at para. 53. This case may, in turn, be contrasted with Durakovic v. Durakovic, [2008] O.J. No. 3537 (S.C.), wherein the court found that a similarly sporadically occupied property was a matrimonial home, where the couple led a peripatetic lifestyle. [^16]: Zakhour v. Nayel, 2017 ONSC 1735, at para. 29. [^17]: Family Law Act, R.S.O. 1990, c. F.3, s. 24(c). [^18]: Higgins v. Higgins (2001), 2001 CanLII 28223 (ON SC), 19 R.F.L. (5th) 300 (Ont. S.C.), at para. 43. [^19]: Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (C.A.), at para. 49. [^20]: Family Law Act, R.S.O. 1990, c. F.3, s. 5. [^21]: Family Law Act, R.S.O. 1990, c. F.3, s. 5(6)(e). [^22]: See Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70 (SCC), at pp. 93-94; Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 3 O.R. (3d) 513 (C.A.), at pp. 19-20 ; Stone v. Stone (2001), 2001 CanLII 24110 (ON CA), 55 O.R. (3d) 491 (C.A.), at para. 39; LeVan v. LeVan (2006), 2006 CanLII 31020 (ON SC), 82 O.R. (3d) 1 (S.C.), at para. 247. [^23]: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 37. [^24]: Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789 (C.A.), at para. 39. [^25]: See Merklinger v. Merklinger (1992), 1992 CanLII 7539 (ON SC), 11 O.R. (3d) 233 (Gen. Div.), at p. 17, aff’d 1996 CanLII 642 (ON CA), 30 O.R. (3d) 575 (C.A.) ; McDonald v. McDonald (1988), 1988 CanLII 8635 (ON SC), 11 R.F.L. (3d) 321 (Ont. H.C.), at p. 333; and LeVan, at para. 258. [^26]: Argiris v. Argiris (1981), 1981 CanLII 4100 (ON SC), 23 R.F.L. (2d) 5,(Ont. H.C.), at p. 12. [^27]: Argiris, at p. 11. [^28]: Argiris, at p. 12. Contrast this with Murphy v. Murphy (1987), 1987 CanLII 8279 (ON SC), 17 R.F.L. (3d) 422 (Ont. Dist. Ct.), aff’d [1991] O.J. No. 2905 (C.A.), where the husband also brought the home into the marriage, but the court refused to order unequal distribution because the wife financially contributed to the couple’s accumulation of assets. [^29]: Burden v. Burden, 2014 ONSC 6319. [^30]: Burden, at para. 1. [^31]: Burden, at para. 9. [^32]: Burden, at para. 14. [^33]: Burden, at paras. 14-17. [^34]: Bennett v. Bennett (2001), 2001 CanLII 28114 (ON SC), 13 R.F.L. (5th) 325 (Ont. Fam. Ct.), at para. 6;See also Gupta v. Gupta, 2016 ONSC 6506, at para. 29; S.V. v. A.V., [2002] O.J. No. 4039 (S.C.), at para. 15. [^35]: King v. Mann, 2020 ONSC 108, 53 E.T.R. (4th) 171, at para. 20. [^36]: Gomez v. McHale, 2016 ONCA 318, 79 R.F.L. (7th) 305, at paras. 11-12. [^37]: Booth v. Bilek, 2021 ONCA 128, 456 D.L.R. (4th) 176, at para. 19. [^38]: 7.5 months of marriage divided by 60 months in the statutory 5-year period, times 100, equals 12.5%.