Reasons for Decision
Court File No.: FC-21-120
Date: 2025/05/05
Ontario Superior Court of Justice
Between:
Chadia Abou-Assaly, Applicant
– and –
Mounir El-Saikali, Respondent
Appearances:
Diana Aoun, for the Applicant
Self-Represented, for the Respondent
Heard (original trial): January 16-19, 22-26, 29-31, February 1-2, 2024.
Justice Marc R. Labrosse
Overview
1This trial proceeded in January and February 2024 over 14 days before the original trial judge who has since medically retired. Pursuant to s. 123 of the Courts of Justice Act, RSO 1990, c C.43, the matter has been assigned to me for a rehearing. I have reviewed all the transcripts of the trial, listened to portions of the evidence that I deemed important to hear and reviewed the exhibits.
2During the trial, the original trial judge discussed that each party provide their draft order of the relief being sought. On my review of the record, I could not locate either party’s draft order. As such, I communicated to the parties through trial coordination and requested that they upload their respective draft orders to Case Center and serve and file a copy with the court. In December 2024, the applicant mother uploaded a draft order but the respondent father did not upload a copy of his draft order when requested. On April 14, 2025, the respondent sent three documents to the court which were forwarded to me: a draft order which is not in a format that corresponds with the issues at trial, a 38-page document titled “Summary, for the Purpose of Draft Order” and another 38-page document titled “Division Tables and Division of Assets and Liabilities Pursuant to the Date of Separation.” These 38-page documents contain a series of tables, calculations and submissions which go beyond the court’s request for a draft order and will be dealt with later in this decision.
3My review of the trial transcript and exhibits makes it clear that, through no fault of the original trial judge or of the applicant or her counsel, the respondent was ill-equipped to participate in a trial in the Superior Court of Justice.
4Our courts have been making efforts over the years to make the court process accessible to self-represented litigants and in this case both the original trial judge and counsel for the applicant were very accommodating to the challenges that the respondent faced. Prior to the commencement of trial, it appears that the respondent was being assisted by a lawyer who would have been on a limited retainer and facilitated the uploading of a considerable amount of documentation to Case Center. However, the respondent did not understand the issues or what was uploaded on his behalf.
5Further, it is apparent from the trial transcript that the respondent arrived on the first day without a computer, and without any ability to navigate the documents that were uploaded for the trial. The original trial judge attempted to guide the respondent in dealing with the electronic documents and allowed him to have assistance in the courtroom to find documents and follow along with the trial. Notwithstanding the original trial judge's efforts, the respondent struggled to navigate the electronic documents and to understand the legal principles relevant to the issues before the Court.
6As will become evident in this decision, the efforts of the legal community in Ontario to facilitate the process for self-represented litigants did not attain their objectives in this trial. The respondent should have never allowed this trial to proceed, and the entire system may have failed in this matter due to the respondent’s self-represented status and his inability to meaningfully participate in the trial.
7In this regard, I highlight significant disclosure issues which should have been addressed by the parties prior to the commencement of trial. There were numerous assets for which no proper valuation was provided and for which basic disclosure of information was not fully pursued. The result has been that some of the assets cannot be valued by the court and that some of the issues raised at trial were never fully addressed by the respondent. Simply put, the respondent needed to resolve this dispute prior to going to trial and avoid the significant financial consequences of losing at trial. The respondent did not have adequate evidence to address the issues before the court and his inability to appreciate what was relevant resulted in a large part of his evidence being of limited assistance.
8In the result, the applicant has been successful on almost all fronts in the relief sought in her pleadings and in her draft order. Who knows what the outcome would have been had the respondent been properly represented by legal counsel, or if this family dispute had been resolved within a framework more suitable to self-represented parties. Despite these introductory comments, the adjudication of the issues in dispute between the parties was necessary, and I was the one tasked to resolve them.
Background
9The respondent immigrated to Canada from Lebanon in 1989. He has lived here ever since, with the exception of a few extended stays when he returned to Lebanon between 1994 and 1996.
10The parties were married on September 22, 1996, in Lebanon. The respondent sponsored the applicant to immigrate to Canada from Lebanon. She came to Canada in September 1998.
11In 1998, the respondent was already working as a welder after having been employed in various shorter-term functions prior to the applicant's arrival. The respondent has worked as a welder in different capacities since that time.
12Upon the applicant's arrival in Canada, she immediately started working at a Mac’s Milk managed by the respondent’s brother. She then had other minimum wage employment at Tim Hortons and at a jewelry store. Since 2014, she has been employed as a pre-test technician with an eye doctor.
13During their marriage, the parties had three children: R.S., born in January 2001, M.S., born in May 2004 and L.S., born in February 2009.
14R.S. is no longer a child of the marriage as of December of 2023 when he finished his four-year university degree in software engineering with a co-op program. He still resides full time with the applicant.
15M.S. is 19 years of age and still lives with the applicant. She attends Algonquin College as a full-time student in the Level 2 Esthetician Program.
16L.S. is 15 years of age and attends high school at Franco-Cité Catholic High School.
17In 2001, the parties jointly purchased a matrimonial home at 51 Foxden Place in the city of Ottawa. In 2011, title to the matrimonial home was transferred solely to the respondent’s name. Also in 2011, a second residence at 138 Forestglade Crescent was purchased in the respondent’s name. The matrimonial home became 138 Forestglade and the residence at 51 Foxden became a rental property. In 2019 and following the date of separation, the applicant remained in the Forestglade property with the children and the respondent moved into the Foxden property where the children visited for parenting time. It was not disputed that although the respondent furnished the Foxden property for the children, they have continued to principally reside at the Forestglade property with the applicant since the date of separation.
18Relevant to decision-making, the issues only involve the youngest child L.S., who resides principally with the applicant and is free to visit the respondent at his discretion. The applicant seeks sole decision-making for L.S. The respondent’s pleading seeks shared custody but then seeks joint decision-making with the respondent to have the final decision making after meaningful consultation with the applicant, in writing.
19In terms of parenting, there is very little in dispute between the parties. The children have resided principally with the applicant since the date of separation. Very little evidence was adduced by the parties in respect of decision-making. The respondent has alleged that he is the one that the children go to when they require guidance and that he is in the best position to assist them as they grow older. In contrast, the applicant has indicated that she has always been the primary caregiver for the children, has been responsible for their care, and has been solely involved with their schooling, health issues and recreational activities. The respondent’s evidence does not contradict this.
20It is in the context of this background information that I must now turn to the relevant issues and the applicable law. There was really no dispute in the evidence about the applicant’s role as the children’s primary caregiver. The issue really lies with the fact that the respondent feels that as the children are older now, he is in a better position to guide them, particularly L.S.
Issues
21The following issues are raised by the parties and require adjudication:
a. Date of separation;
b. Decision-making and primary residence for L.S.;
c. Determination of income for child support;
d. Prospective child support and child support arrears;
e. Resulting trust for the two residences owned by the respondent;
f. Equalization of net family property; and
g. Other requested relief.
22The respondent’s amended answer raises other issues which he did not fully address in his evidence and which he then requested in his post-trial submissions such as:
i. The applicant’s obligation to pay child support;
ii. Restrictions on relocation with the children;
iii. Restrictions on travel with the children.
23The two 38-page documents filed by the respondent are not admissible. They go well beyond the evidence provided at trial by the respondent and request matters that do not form part of his pleadings such as:
i. Payment of $141,745.50 for the loss of rental income for the residence on Foxden Place
ii. Reimbursement of child tax benefit received by the applicant;
iii. The payment of rent by the applicant for the Forestglade residence along with a claim for the payment of capital gains related to the eventual sale of the Forestglade property;
iv. Payment of numerous expenses related to the Mercedes driven by the applicant;
v. That the court issue some kind of restraining order against the applicant that she may not be within 300m of the Foxden Place residence;
vi. An accounting for points accumulated from credit cards;
vii. Payment of 50% of the grant/bursary received by the applicant for her studies;
viii. A claim for half the amount of $300,000 that the respondent claims that the applicant has hidden and not disclosed. Although raised at trial, no evidence was provided to support this claim;
ix. That the applicant pay $25,624.60 being 50% of the respondent’s business loss in Ottawa Competitive Crane Inc.
24Overall, the respondent requests in his written submissions to be entitled to retain title to both properties and a payment by the applicant of $588,523.60.
25Many of these submissions were not made during the trial and the evidence required to understand the amounts claimed do not form part of the evidence filed at trial. While I have read his written submissions, I place very little weight on them. They are received for the purpose of considering the issues that the respondent would like to see form part of the Final Order but they can only be considered in the context of the evidence and issues which formed part of the trial.
Date of Separation
26The court must first turn to the issue of the date of separation.
27The respondent claims that the date of separation should be July 2018 as this is the date when there was an incident of family violence when the respondent forced open the door to the bathroom in the midst of an argument with the applicant. The parties’ eldest son was home on that day and was involved in trying to calm the conflict. Shortly thereafter, the applicant left for Montreal with the parties’ daughter, M.S., and resided with family during the remainder of the summer of 2018. The applicant returned prior to the start of the school year and the parties continued living under the same roof. The respondent claims that they were living separate and apart and while they may have attended certain functions together, they were not a couple. The respondent highlights the absence of a physical relationship between them in support of his contention that they separated in July 2018. The respondent also states that upon the applicant’s return, she never truly made any effort to reconcile.
28The applicant takes a different view on what happened in the summer of 2018. She contends that after the incident of family violence, she took refuge with family in Montreal, but she only had their daughter with her and as such, had no intention of leaving the matrimonial home permanently. She returned to attend a surgery for one of their sons and states that the parties resumed the marriage even though they may not have resumed a physical relationship. They attended family functions together, a graduation and a family wedding. The applicant relies upon a number of text messages which demonstrate a normal marital relationship. She also relies on the fact that in 2019 she made a number of Interac e-Transfers to assist the respondent with family expenses, including the payment of his taxes in April 2019.
29The applicant states that the parties’ date of separation was not until the respondent expressed a desire to separate definitively, when he changed the locks to the house and locked out the applicant. Accordingly, it was not until August 13, 2019, when the applicant made the decision to leave the matrimonial home with the parties’ two youngest children and move into a shelter. Prior to that event, the applicant claims that she still held some hope or intention to try to work things out with the respondent.
30As for the specific date of separation, both parties have argued how the court should apply the criteria for determining the date of separation as set out in Oswell v. Oswell, 74 O.R. (2d) 15 (S.C.), which are:
a. if there was a physical separation;
b. if there was a withdrawal by at least one spouse from the matrimonial obligation with the intent of destroying the matrimonial consortium;
c. the absence of sexual relations (which is not conclusive);
d. other relevant matters including communication, joint social activities, and meal patterns;
e. the performance of household tasks; and
f. the method in which the spouse has filed income tax returns.
31The applicant also relies on paragraph 40 in Sullivan v. McCarthy, 2017 ONSC 94, where the court will often look for an unequivocal statement to determine a date of separation. In the present case, the applicant relies on the incident on August 13, 2019, when the applicant made the decision to leave the matrimonial home with two of the parties’ children and move into a shelter. The applicant states that this was the point of no return prior to which the path had been tumultuous, but the applicant still held some hope and intention to work things out.
32Although the incident in August 2019 is certainly more akin to an unequivocal statement than the temporary separation in July 2018, the court must still consider the factors set out in Oswell and apply them.
33It is certainly significant that after July 2018, both parties agreed that they slept in separate rooms and were no longer intimate. However, this factor alone is not conclusive.
34Moving forward with the factors in Oswell, it cannot be said that there was a partial physical separation in July 2018. The applicant’s decision to seek refuge in Montreal after an incident of family violence does not qualify as form of separation. That decision alone does not indicate permanence given that the parties’ two other children remained in Ottawa and the applicant never took any steps to permanently move to Montreal, such as registering their daughter to a school in Montreal, which would have been suggestive of a permanent move. She also never acquired her own residence in the Montreal area.
35Despite this period apart during the summer of 2018, the parties continued living under the same roof. There is evidence of the manner in which they communicated through text messages in respect of the children which suggest that they were still operating as a family. There are also messages between the parties when the respondent was in Lebanon and sent the applicant photographs of jewelry. These are not typically things done by separated spouses.
36When considering the respondent’s 2018 tax return, that document indicated that the respondent was married and, at that time, the parties were still operating with a joint bank account, joint credit card and mixed finances. To that effect, on April 30, 2018, the applicant paid the respondent’s taxes of almost $9,500.
37Overall, I am satisfied that the factors in Oswell favour a conclusion that the date of separation is properly August 13, 2019, given that, with the exception of the time apart in the summer of 2018, the parties continued to operate as a family, both at home and in how they managed their finances. The lack of intimacy is not sufficient to persuade me otherwise.
Decision-Making
[Further sections continue as in the original, with appropriate markdown subheaders for each logical section, such as:]
Respondent’s Parenting Time
Income for Child Support
Child Support Arrears
Equalization of Net Family Property
51 Foxden Place
138 Forestglade Crescent
Values for the Foxden and Forestglade Properties
Other Property Which Form Part of the Financial Statements
2014 Mercedes
Debts at the Date of Separation
Respondent’s Debt to his Father
Date of Marriage Assets
Conclusion on Equalization
Other Relief Requested
Vesting Order
Restraining Order
Other Relief from Draft Order
Divorce
Relocation and Travel
Proportionate Share of Section 7 Expenses
Conclusion
Justice Marc R. Labrosse
Released: May 5, 2025