Ontario Superior Court of Justice
Court File No.: FS-21-00099426-0000
Date: 2025-07-18
Between:
Jamilla Jaha
Self-represented
Applicant
-and-
Mabruck Mengele
S. Balasunderam, for the Respondent
Respondent
Heard: May 13–16, 2025
Reasons for Judgment
Robert Lemay
Table of Contents
- Background
- Evidence and Credibility
- Positions of the Parties
- Issues
- Analysis
- Conclusions
- Appendix A: Support Arrears Calculations
Background
The Parties and the Relationship
The parties met online, were married on May 10, 2015, and separated on January 1, 2020. There is one child of the marriage, Nabil, who is currently ten years old. The applicant has a child from a previous relationship, Norah, who is currently nineteen years old and has been treated as a child of the marriage.
The applicant was born in Uganda and, at the time of trial, was 49 years old. She described a difficult childhood and ultimately moved to Tanzania at age 11 to live with her father and stepmother. She later settled in St. Louis, Missouri, at age 19, where she worked as a hairdresser and home care healthcare worker, and had a daughter, Norah.
The respondent was born in Tanzania and is currently 64 years old. He has a master’s degree in architecture from a university in Ukraine. He also has two adult children from a previous relationship.
The parties met on a dating website in late 2013. The applicant visited the respondent in Toronto in spring 2014, and Nabil was born on March 31, 2015. The applicant moved to Brampton at the end of January 2015 with Norah, and both became permanent residents before the parties separated.
On January 1, 2020, the parties had an argument regarding the applicant’s cannabis use, after which the respondent moved out for seven weeks. The applicant, respondent, and children continued to live together for most of 2020, but the applicant left the home in November 2020, and the family stopped living together around December 25, 2020.
The Procedural History
The litigation commenced in 2021, with both parties initially represented by counsel. The applicant wanted to travel to the United States in 2021, and the respondent refused consent, resulting in Nabil living with the respondent for two months.
On October 15, 2021, the respondent was ordered to pay the applicant $1,518 per month for child support and $1,324 per month for spousal support, enforced through the Family Responsibility Office (FRO).
In April 2023, the parties entered into minutes of settlement regarding parenting issues before Van Melle J., resolving those issues on a final basis. The parenting order was followed until April 28, 2024, when the applicant withheld parenting time. The matter came before Bloom J. on August 9, 2024, who ordered that the respondent have parenting time and the right to travel with Nabil.
A Trial Management Conference was held before McGee J. on January 23, 2025, resolving the division of OMERS pension credits and agreeing on an equalization payment of $32,025 to the applicant. An exit pre-trial before Kumaranayake J. defined the issues for trial.
The trial was originally scheduled for April 2025 but was moved to May 2025 and commenced on May 13, 2025.
The Adjournment Request
At the outset of trial, the respondent’s counsel sought an adjournment for additional production and to call an additional witness. After discussions, the adjournment was granted for a day for the applicant to produce more documentation.
The applicant also sought documentation about the mortgage on the matrimonial home. The respondent’s counsel advised that the applicant was not on title or the mortgage. The court ordered that the applicant be removed from any mortgage documentation within thirty days.
After the evidence, the applicant alleged the respondent might have forged her name on financial documents, but there was no evidence to support this.
Post-Hearing Communications
After the hearing, the applicant sent two emails to the judge’s assistant: one requesting a decision, and a second, longer email alleging that the respondent was withholding their son and that she and the son were homeless. The court found no urgent action was required.
Evidence and Credibility
The court received Notices of Assessment and various financial documents, primarily relating to the applicant. The respondent prepared evidentiary briefs, which the applicant reviewed.
The admissibility of wage surveys and government publications was considered, with reference to Lewis v. Willis, 2022 ONCJ 421 and R. v. Khan. The court agreed with the necessity and reliability of such evidence, especially given disclosure issues.
The court heard viva voce evidence from both parties. The applicant was found to exaggerate and focus on her position rather than facts, and her testimony was not found credible or reliable. The respondent was precise and consistent, and his evidence was generally accepted.
Positions of the Parties
The applicant argued she was unable to earn income due to childcare responsibilities, trauma, and inability to work. She sought exclusive possession of the matrimonial home or its sale, and argued the respondent should have a higher income imputed due to a renter. She also sought to reopen parenting issues.
The respondent sought to have the applicant’s income imputed at $35,000, based on job availability, lack of job search evidence, and her actual work history. He asked for dismissal of the applicant’s motions regarding parenting and the matrimonial home.
Issues
The court identified the following issues:
a) Does the court have jurisdiction to address parenting or equalization issues?
b) Should the applicant be given exclusive possession of the matrimonial home?
c) Should income be imputed to either party?
d) What is the calculation and duration of child support?
e) What is the calculation and duration of spousal support?
f) Do any calculations result in an adjustment to the equalization payment?
Analysis
Issue #1: What Is the Court’s Jurisdiction?
a) The Parenting Issues
The parenting issues were resolved by a final order of Van Melle J. The test for varying a final order is set out in section 17(5) of the Divorce Act and requires a material change in circumstances, as discussed in Gordon v. Goertz and J.D. v. M.C., 2020 ONSC 4599.
The applicant’s reasons for reopening parenting issues did not meet this threshold.
b) The Equalization Issues
The equalization issues were resolved by agreement. The court will not revisit such agreements absent grounds such as mistake, misrepresentation, fraud, or a material change in circumstances, as per Mohammed v. York Fire and Casualty Insurance Co. and Joshi v. Joshi, 2014 ONSC 4677.
c) Conclusion
The court declined to revisit either parenting or equalization issues, except for necessary deductions from the equalization payment to account for overpayments in support.
Issue #2: Urgent Exclusive Possession of the Matrimonial Home
The applicant’s motion for exclusive possession was dismissed, both for procedural reasons and on the merits. The right to exclusive possession ends when the parties cease to be spouses, and the applicant was not on title.
Issue #3: The Imputation of Income
a) The Applicant’s Income
The court found the applicant intentionally underemployed and imputed income of $35,000 per year from January 1, 2021, increasing to $37,500 from January 1, 2024. The court relied on her qualifications, work history, and unexplained inflows of cash.
b) The Respondent’s Income
The respondent’s income was based on his Notices of Assessment. There was no evidence he had rental income.
Issue #4: The Calculation and Duration of Child Support
Child support was calculated from January 1, 2021, with adjustments for periods when the applicant and Norah were in the United States. Norah is treated as a child of the marriage for support purposes, subject to proof of enrollment in post-secondary education.
Section 7 Expenses
The respondent is to pay 1/3 of Norah’s tuition (up to $3,000 per year) upon proof of payment and completion, and $1,000 for Nabil’s extracurricular activities. Going forward, section 7 expenses up to $750 per year may be claimed with receipts.
Issue #5: The Calculation and Duration of Spousal Support
Spousal support is awarded on a needs basis, with the mid-point used for calculation. Support continues until the child finishes high school, with a review in three years upon the respondent’s retirement.
Issue #6: Adjustments to Equalization
The equalization payment is suspended until tax issues and final overpayment amounts are calculated. Overpayments of spousal support are to be set off against arrears and equalization.
Conclusions
For the foregoing reasons, the court ordered:
- The parties are divorced, effective thirty-one days from the judgment.
- The respondent is to transfer OMERS credits to the applicant once costs, equalization, and support overpayments are resolved.
- The applicant’s name is to be removed from any mortgage documents within thirty days.
- Income is imputed to the applicant as set out above.
- The respondent has underpaid child support in the amount of $8,507.31.
- The respondent shall pay $1,000 in arrears for section 7 expenses for Nabil.
- The respondent will reimburse the applicant for section 7 expenses up to $750 per year with receipts.
- The respondent shall reimburse the applicant for 1/3 of Norah’s tuition ($2,469.33) upon proof.
- Norah’s status as a child of the marriage is subject to annual proof of enrollment.
- The respondent has overpaid spousal support in the sum of $53,958, less arrears owing to FRO.
- FRO is to cease collection of any arrears from the respondent.
- Commencing August 1, 2025, the respondent is to pay child support of $1,573 per month and spousal support of $598 per month, subject to review.
- The parties are to make submissions on costs, tax treatment of arrears, and calculation errors as directed.
Appendix A: Support Arrears Calculations
Child Support
| Year | Respondent’s Income | Amount Paid | Amount Owed | Difference |
|---|---|---|---|---|
| 2021 | $105,213 | $10,497.69 | $17,204 | ($6,706.31) |
| 2022 | $105,593 | $18,216.00 | $18,480.00 | ($264.00) |
| 2023 | $107,256 | $18,216.00 | $18,708.00 | ($492.00) |
| 2024 | $108,318 | $18,216.00 | $18,876.00 | ($660.00) |
| 2025 | $108,318 | $10,626.00 | $11,011.00 | ($385.00) |
Underpayment: ($8,507.31)
Spousal Support Arrears Calculation
| Year | Respondent’s Income | Applicant’s Imputed Income | Respondent Should Have Paid | Respondent Actually Paid | Overpayment |
|---|---|---|---|---|---|
| 2021 | $105,213 | $35,000 | $3,792.00 | $15,888 | $12,096.00 |
| 2022 | $105,593 | $35,000 | $2,088.00 | $15,888 | $13,800.00 |
| 2023 | $107,156 | $35,000 | $1,656.00 | $15,888 | $14,232.00 |
| 2024 | $108,318 | $37,500 | $7,140.00 | $15,888 | $8,748.00 |
| 2025 | $108,318 | $37,500 | $4,186.00 | $9,268.00 | $5,082.00 |
Total Overpayment: $53,958.00
Released: July 18, 2025