Court File and Parties

Court File No.: FS-17-000419955-0000 Date: 2025-08-07 Ontario Superior Court of Justice

Between: Fatou Sall, Applicant – and – Malick Sene, Respondent

Self-represented (both parties)

Heard: June 23 and 24, 2025

Before: Newton-Smith J.

Overview

[1] Mr. Sene, the Respondent father came to Canada from Senegal in 1998. In 2005, he married the Applicant mother, Fatou Sall, in Senegal. Ms. Sall came to Canada in 2007 sponsored by Mr. Sene. Their first child, P.F., was born in June of 2008. In April of 2011, their second son, O.S., was born. The parties separated in 2012 and proceedings commenced in the Ontario Court of Justice.

[2] On December 17, 2012, Ms. Sall was awarded sole custody of their two children and a child support order was made. This was an order of Justice Spence of the Ontario Court of Justice.

[3] In September of 2017, Ms. Sall brought an application in this court seeking a divorce, equalisation, and spousal support. The parties are now divorced.

[4] The matter languished in this court and eventually the parties were ordered to proceed to trial.

[5] On June 23, 2025, the trial proceeded before me.

[6] The remaining issues to be decided in this case are parenting, spousal support, and equalisation.

[7] The parties are self-represented. English is the second language for both, and Ms. Sall has only a grade school education. The issues are relatively straightforward, and the evidence was minimal. The parties require a final resolution as quickly as possible.

Previous Court Orders

Orders from the Ontario Court of Justice

[8] A final order with respect to child support was made by Justice Spence in the Ontario Court of Justice on December 17, 2012. The support order made was as follows:

On a temporary basis, the applicant father, Malick Sene shall pay support to the respondent, Fatou Sene-Sall for the support of the children, Pape Faly Sene born June 5, 2008 and Omar Suleman Sene born April 24, 2011, in the amount of $1342.000 per month, commencing November 1, 2012. This amount is in accordance to the Ontario Child Support Guidelines for two children and based on the imputed 2011 income of the payor at $94,078.00.

[9] On October 1, 2019, Justice Spence varied the final order as follows:

1. On a final basis and based on the Applicant's 2018 Notice of Assessment which reflects an income of $72,805.00 the Applicant Father shall pay child support for the two children, Pape Faly Sene, born June 5, 2008, and Omar Sene, born April 24, 2011, in the amount of $1106.00 per month starting January 1, 2018.

2. This varies the final Order of Justice Spence dated January 30,

[10] Mr. Sene brought a motion to change and on October 8, 2024, Justice Sager varied the final order of Justice Spence dated October 1, 2019. The final order of Justice Sager varied Mr. Sene's support obligations as follows:

1. Commencing September 1, 2022 and up to and including December 1, 2022, the Applicant father shall pay the Respondent mother child support for the two children of the relationship, Faly Sene born June 5, 2008 and Omar Suleman Sene born April 24 2011, in the amount of $789.00 per month based on an annual imputed income to him of $52,500.00 and the Child Support Guidelines . The Applicant shall receive credit towards this order for any amounts he paid towards child support through the Family Responsibility Office.

2. Commencing January 1, 2023, and on the first of each month thereafter, the Applicant father shall pay the Respondent mother child support for the two children of the relationship Faly Sene born June 5, 2008 and Omar Suleman Sene born April 24 2011, in the amount of $884.00 per month based on an annual imputed income to him of $58,000.00 and the Child Support Guidelines . The Applicant shall receive credit towards this order for any amounts he paid towards child support through the Family Responsibility Office.

3. The balance of relief requested by the Applicant in his Motion to Change is dismissed.

Orders from the Superior Court of Justice

Parenting Orders

[11] On May 7, 2019, Justice Stewart of the Superior Court of Justice made the following parenting order:

1. On consent, the Respondent, Malick Sene (hereinafter "the Respondent), shall have access to the children, Pape Faly Sene born June 5, 2008, and Omar Suleman Sene born April 24, 2011 (hereinafter collectively "the children"), as follows:

a. On alternate weekends, starting on May 17, 2019, from Friday at 8:00 p.m. until Sunday at 5:00 p.m. or after the children's activities;

b. Each weekend that the children are with the Respondent he shall take them to their taekwondo class at 4:45 p.m. on Saturdays or any other activity that may be scheduled during his access weekend;

c. The Respondent shall pick up the child, Pape Faly, each Tuesday and Thursday at 6:00 p.m. to take him to his soccer practice at 7:00 p.m. and bring him home after the practice, or on such other weekdays as the Respondent may be advised by the Applicant, Fatou Sene-Sall (hereinafter "the Applicant"), if the practice dates change or the child switches to a different sport;

d. All transfers to take place at the front door of the Applicant's apartment building;

e. Each March school break from Friday at 8:00 p.m. at the start of the March break until Sunday at 5 :00 p.m. on the final weekend;

f. Two weeks in July and two weeks in August in each year, the Respondent to notify the Applicant in writing by April 1st in each year as to the exact dates of the July and August extended visits; and,

g. Such other access as the parties may agree upon.

[12] The most recent parenting order which has been brought to my attention is an order of Justice Gilmore in the Superior Court of Justice dated March 29, 2019. Justice Gilmore's order is as follows:

The Respondent Malick Sene shall have access to the children namely Pape Faly Sene born June 5, 2008 and Omar Suleiman Sene, born April 24, 2011 on alternate weekends from 8:00 pm on Friday to after soccer on Sunday night (8:00 pm which is later) commencing April 5, 2019.

The August 16, 2024, Superior Court of Justice Order of Justice Vella

[13] Following a case conference on August 16, 2024, Justice Vella made several orders.

[14] With respect to "Father's Parenting Rights" she made the following orders:

1. On consent, the Applicant Mother (Ms. Sall) provided the Respondent Father (Mr. Sene) with the cell phone numbers of the two children, and Mr. Sene provided Ms. Sall with his cell phone number at the conference. The children and Mr. Sene may contact each other to arrange parenting time, which shall not be exercised during school hours. The Mother will not interfere with this arrangement and will not speak with the Father on any of these cell phones.

2. There is an existing parenting order and it remains in force. However, the eldest is now 16, and the youngest is 13 years old. The Mother cannot compel the children to visit their Father, but she is reminded that she must not discourage or prevent any such visits, and she must encourage the children to see their Father.

3. The Mother has no difficulty with the Father seeing the children in accordance with the existing parenting order or having the children chose when to see their Father, so long as such visits do not interfere with their school attendance.

[15] With respect to "Date of Separation, Matrimonial Home Sale and Division of Proceeds" Justice Vella made the following orders:

[7] Much discussion occurred on this issue. Both parties stated in their respective settlement conference briefs that they agree to a sale of the matrimonial home and that the Applicant's consent can be dispensed with. The issue is the Applicant's entitlement to proceeds from the sale. Both parties agree the Applicant is entitled to something, but not the amount.

[8] However, the parties agree to the process for sale, which is taken in part from the Respondent's earlier offer to settle, as modified at the conference. Therefore, I order on consent:

1. For purposes of equalization, the date of separation is March 1, 2012;

2. The matrimonial home, the registered owner on title being Respondent, Malick Sene ("Mr. Sene"), municipally known as and located at 74 Clouston Avenue in Toronto, Ontario M9N 1A8 ("Matrimonial Home") shall be sold by Mr. Sene as soon as is practicable. The parties acknowledge that Mr Sene is in arrears of his mortgage, and so time is of the essence;

3. Mr. Sene is authorized to sign a listing agreement with a listing agent and real estate lawyer of his choice forthwith for the purposes of selling the Matrimonial Home;

4. Once Mr. Sene has hired a real estate lawyer, he shall provide Ms. Sall and me (via my judicial assistant, Maria Kolliopoulos), with the lawyer's name and contact information. He anticipates hiring a lawyer next week;

5. Mr. Sene will authorize his real estate lawyer to communicate with Ms. Sall regarding the sale of the Matrimonial Home, and will instruct his real estate lawyer to provide a copy of his final reporting letter and statement of adjustments to Ms. Sall by email;

6. Mr. Sene will, until the Matrimonial Home sale is closed, continue to pay for all of the household, expenses, mortgage payments, property taxes and property insurance in respect of the Matrimonial Home.

7. Mr. Sene will be solely responsible for the costs of all repairs required to prepare the Matrimonial Home to be sold. To be clear, these costs will not be deducted from Ms. Sall's share of the net sale proceeds on equalization;

8. Mr. Sene will be solely responsible for selecting and hiring any contractor/repair companies required to prepare the Matrimonial Home to be sold;

9. Ms. Sall will cooperate in the sale of the Matrimonial Home, and will sign any document necessary, in the opinion of the real estate lawyer with carriage of the sale, to complete the sale (e.g.: there is apparently a matrimonial home designation registered on title);

10. When an offer to purchase the Matrimonial Home has been accepted, Mr. Sene shall direct the real estate lawyer acting on the sale of the Matrimonial Home to pay the following expenses from the sale proceeds in order to complete the sale and closing:

a. Real Estate Commission;

b. outstanding realty taxes, utilities, and municipal fees or levies;

c. Amounts required to discharge any tax, utilities, and municipal fees or levies or liens registered against title to the Matrimonial Home;

d. Amounts required to discharge the mortgage, including but not limited to mortgage arrears, registered on title to the Matrimonial Home;

e. Legal fees and disbursements relating to the sale; and

f. All other usual sale adjustments.

[9] Again, for clarification, these amounts will not be deducted from Ms. Sall's share of the net sale proceeds on equalization because the mortgage, as at date of separation, will be considered in equalization.

[10] After paying the amounts set out in paragraph 8 above, the remaining proceeds realized from the sale of the Matrimonial Home shall remain in the trust account of the real estate lawyer retained by Mr. Sene with carriage of sale until all remaining financial issues raised by the parties' respective pleadings bearing Court File #FS-17-419955 are resolved on a final basis either through a Final Court order or Final Minutes of Settlement.

Recent Endorsements from this Court

January 8, 2025

[16] On January 8, 2025, the matter proceeded to a combined conference before Justice Kraft. At that time, 4.5 months after Justice Vella's order, the Respondent had still not listed the matrimonial home for sale. At the time of the conference, there was a lien on the matrimonial home from the Family Responsibility Office (FRO) for approximately $80,000 in child support arrears owing to the Applicant.

[17] Justice Kraft made further orders with respect to the sale of the matrimonial home. Additionally, she made the following orders:

[10] This court makes the following order on consent:

b. The parties shall return before me on February 3, 2025 at 9:00 a.m. on zoom for a check-in conference. A copy of this Endorsement shall be sent to the real estate agent listing the home for sale so he/she can attend the check-in conference by zoom on February 3, 2025.

c. Prior to February 3, 2025, the respondent shall attempt to refinance the matrimonial home to see if he can pay the applicant the equalization payment and the child support arrears. He shall upload any and all correspondence he receives from TD or any other bank regarding the refinancing. The respondent shall also upload the mortgage application he submits to the bank for such refnanciing.

d. There shall be a two-day trial scheduled of this matter on June 23, 2025. The Trial Scheduling Endorsement Form shall be completed by the parties in draft form and uploaded onto Case Centre prior to February 3, 2025. The TSEF form can be found at https://ontariocourtforms.on.ca/en/family-law-rules-forms/trial-scheduling-endorsement-form/ .

e. Both parties shall swear a financial statement detailing their assets and debts on the date of separation, March 1, 2012, in advance of the February 3, 2025 by completing a Form 13.1 which can be found at https://ontariocourtforms.on.ca/static/media/uploads/courtforms/family/1 3_1/flr-13-1-e.pdf.

February 11, 2025

[18] When the matter proceeded to the "check in" conference on February 11, 2025, the Respondent Mr. Sene had still not complied with Justice Vella's order compelling the sale of the matrimonial home. Mr. Sene had uploaded a financial statement, but it was unsworn. Ms. Sall had not completed a financial statement.

[19] Justice Kraft ordered Mr. Sene to list the home for sale within 45 days. The terms of Justice Vella's previous order were reiterated, and the following orders were included:

9. When an offer to purchase the Matrimonial Home has been accepted, Mr. Sene shall direct the real estate lawyer acting on the sale of the Matrimonial Home to pay the following expenses from the sale proceeds in order to complete the sale and closing:

a. Real Estate Commission;

b. outstanding realty taxes, utilities, and municipal fees or levies;

c. Amounts required to discharge any tax, utilities, and municipal fees or levies or liens registered against title to the Matrimonial Home;

d. Amounts required to discharge the mortgage, including but not limited to mortgage arrears, registered on title to the Matrimonial Home;

e. Legal fees and disbursements relating to the sale; and

f. All other usual sale adjustments.

10. Again, for clarification, these amounts will not be deducted from Ms. Sall's share of the net sale proceeds on equalization because the mortgage, as at date of separation, will be considered in equalization.

11. After paying the amounts set out in paragraph 9 above, the remaining proceeds realized from the sale of the Matrimonial Home shall remain in the trust account of the real estate lawyer retained by Mr. Sene with carriage of sale until all remaining financial issues raised by the parties' respective pleadings bearing Court File #FS-17-419955 are resolved on a final basis.

12. Both parties shall complete Trial Scheduling Endorsement Forms (listing the issues for trial, their witnesses and other items as stated in the form) within 60 days of the release of this Endorsement.

13. If Mr. Sene does not comply with the timelines set out in this Endorsement, Ms. Sall has leave to bring a motion to strike his pleadings pursuant to r.1(8) of the Family Law Rules and/or to seek an order issuing a Writ of Possession to enforce this order.

[20] By the time of the February 11, 2025, conference, June 11, 2025

[21] On June 11, 2025, Justice Kraft held a trial management conference. By that time, Mr. Sene had listed the matrimonial home for sale. Justice Kraft's endorsement states as follows:

[7] The husband has now listed the matrimonial home for sale. It is listed at $889,800. The listing agreement with REMAX began on March 2, 2025 and expires on September 2, 2025. There have been no offers to purchase the home yet. The increase in the fair market value of the matrimonial home since the date of separation is significant. Title to the matrimonial home is in the husband's sole name.

[8] The parties have two children. There is a 17-year-old son and 14-year-old son. Neither child sees the father.

[9] In terms of retroactive child support, from 2017 to 2022, the husband was paying child support to the wife of about $1,350 a month. The husband was in arrears of child support and FRO was enforcing the support. The husband then brought a Motion to Change in the OCJ before Sager, J..

[10] On November 20 2024, a Default Hearing Consent was reached requiring the husband to pay the wife $884 a month toward the ongoing child support and $200 per month towards the arrears commencing December 1, 2024, totalling $1,084 a month. The husband has been complying with this child support order. It is unclear as to whether an SDO or the Order was ever taken out.

[22] The issues of equalisation and spousal support remained unresolved, and Justice Kraft ordered to the parties to proceed to trial, stating, "Although this case is not ready for trial, this case has to be resolved". With respect to the evidence and issues for trial, Justice Kraft directed the parties as follows:

[16] The parties have been told that they will appear on June 23, 2025 and give viva voce testimony about child support, parenting, spousal support and property division and take the court through their assets and debts as at the date of separation so this matter can end.

The Evidence at Trial

[23] Both Ms. Sall and Mr. Sene testified at trial. No other witnesses were called.

Ms. Sall's Evidence

[24] Ms. Sall and Mr. Sene were married in Senegal in 2005. In 2007, Mr. Sene sponsored Ms. Sall to come to Canada in 2007. Ms. Sall testified that when she came to Canada, she had very little education and spoke no English.

[25] She and Mr. Sene lived together in a small apartment in Toronto. She described their marriage as a traditional African marriage in which she had to do Mr. Sene's bidding. It was her evidence that Mr. Sene was domineering and psychologically abusive. In 2009, after their first son was born, Ms. Sall left Mr. Sene and went to a shelter. She stayed for some time at the shelter but eventually returned to her husband.

[26] In May of 2009, Mr. Sene purchased a home at 74 Clouston Avenue in Toronto for $255,000.00. The parties moved into the house with P.F., who was almost a year old. There is no dispute that this property, which is still owned by Mr. Sene, is the matrimonial home. Ms. Sall testified that Mr. Sene paid all the bills for the house including the downpayment and mortgage.

[27] Ms. Sall began volunteering at the Runnymede long term care home (the "LTC") in order to practice her English. In 2010, she got a part-time paid job at the LTC working in the kitchen for 16 hours a week.

[28] She testified that after the purchase of the matrimonial home, things between them became worse. According to Ms. Sall, Mr. Sene accused her of "not participating in the house" and would not pay for enough food and heat for her and P.F.. Later that year she became pregnant with their second child O.. The arguments continued. After an occasion where the neighbours called the police, Ms. Sall again went to a shelter. This time she stayed at the shelter for 6 months but returned to her husband and the matrimonial home shortly before O. was born.

[29] Ms. Sall testified that she thought Mr. Sene would change, however as she learned English and "got smarter" she realised that she had "married a monster". When O. was three months old, Ms. Sall went back to work at the LTC working 25 hours a week. According to Ms. Sall, Mr. Sene told her that she wasn't working hard enough and he "wasn't her babysitter". Ms. Sall had to find a babysitter for the children so that she could go to work.

[30] In March of 2012, Ms. Sall left Mr. Sene for good. It is agreed, as per a previous order made by Justice Vella in these proceedings, that the date of separation for the purposes of equalisation is March 1, 2012.

[31] When she left the marriage, Ms. Sall had only $1,000.00. With help from a friend, she managed to get an apartment. Ms. Sall testified that she altered a bank statement so as to make it appear that she had $10,000.00, and not $1,000.00 which was all she actually had. She did this in order to secure the apartment. It was never suggested that in fact Ms. Sall had $10,000 on the date of separation.

[32] Eventually, Ms. Sall got a second job at the LTC and a daycare spot for the children.

[33] She still works at the LTC making $22.00 an hour doing two different jobs. She works full time as a dietary aid for $1600.00 biweekly, and then works another 30 hours a month as a cleaner. Ms. Sall testified that she also works cleaning offices on weekends and makes $300.00 a week doing that.

[34] Ms. Sall testified that since separation, the children have always lived with her. According to Ms. Sall, Mr. Sene would see them occasionally on weekends, but his visits were infrequent.

[35] There are parenting orders in place which give Mr. Sene parenting time on alternate weekends. According to Ms. Sall, he has chosen not to exercise that parenting time consistently and has not seen the children since January of 2024.

[36] Ms. Sall testified that the last time that Mr. Sene saw his children was on a Friday night in January. She thought that it was January of 2024. Mr. Sene came to her apartment to pick up the boys, who went down briefly to see their father but refused to go with him. He has not seen them since.

[37] Ms. Sall testified that both children are doing extremely well. The older child, P.F., was a serious hockey player and Ms. Sall invested a lot of time and money in his hockey. When the covid pandemic hit, P.F. stopped playing hockey. This came as a financial relief to Ms. Sall. He now plays soccer. P.F. is in grade 11 and plans on attending university to study engineering when he graduates from high school next year.

[38] The younger son O., who is also doing very well, has asthma. His medications are covered by Ms. Sall's benefits, however on the advice of O.'s doctor, she has had to remove all of the carpeting from her apartment. This cost her approximately $6,000.00. Soon O. will be getting braces which will cost a total of approximately $7,000.00.

[39] O. plays basketball which costs approximately $800.00 a season, although sometimes he is subsidised.

[40] Both children also attend religious classes which cost $200.00 a month. Ms. Sall pays for these classes.

[41] Over the years, Ms. Sall has taken out various credit cards and loans in order to finance the children's activities, clothing, and other needs such as a car which she needed to drive P.F. to hockey.

[42] Her current financial situation is precarious. She is facing eviction from the co-op apartment where she has lived for the past 12 years for unpaid rent. She owes money on credit cards and for PayDay loans.

Mr. Sene's Evidence

[43] Mr. Sene, who is from Senegal, came to Canada as a student when he was 22 years old. He went to the university of Moncton where he earned a B.A. in biology.

[44] He testified that after he sponsored Ms. Sall to come to Canada, they lived in a small apartment. It was his evidence that his goal was to buy a house "for my kids". In 2009, he was able to purchase a house using money withdrawn from his RSP as the downpayment. Mr. Sene testified that he asked Ms. Sall to contribute to the house and she "refused".

[45] He was working two jobs, one at Metro and one at Staples, as well as working as a crossing guard for the Toronto Police Service. It was Mr. Sene's evidence that during the marriage, he was earning approximately $90,000.00 a year.

[46] It was Mr. Sene's evidence that he "got" Ms. Sall her job at the LTC, and he changed his work schedule so that he could "babysit" for her.

[47] Mr. Sene's explanation for why Ms. Sall left the matrimonial home and went to a shelter was that she "had her own income" and simply "chose to leave the house and go somewhere else".

[48] He testified that since she left, Ms. Sall has denied him access to the children. According to Mr. Sene, he had to go to court to get access and Ms. Sall does not let the kids see him. He testified that it was his recollection that the last time he saw them was January of 2023. According to Mr. Sene, he went to her apartment to pick them up on a Friday evening. The kids came down but refused to go with him. He has not seen them since.

[49] Mr. Sene testified that he has never called his children because he doesn't have their phone numbers. It was put to him that at the August 2024 case conference before Justice Vella, the children's phone numbers had been given to him. Mr. Sene denied that this happened. When confronted with Justice Vella's endorsement which stated that the phone numbers had been given to him at the conference, Mr. Sene continued to deny that he had ever received them.

[50] Ms. Sall produced screen shots of a text message sent to Mr. Sene by their oldest son on January 3, 2025. The message reads "Salam dady it's [P.F.] and [O.] we just wanted to wish you happy new year, we haven't heard from you in a while. Mamy always says to call and message you but you never but you never answer, why ??". There is also a screen shot of an outgoing phone call to Mr. Sene's number about half an hour later. The call is 1 minute long.

[51] Mr. Sene denied ever receiving any text message from P.F. but acknowledged that O. had called him. Mr. Sene continued to deny having phone numbers for either child, testifying "how should I know what number he is calling me from".

[52] When asked, Mr. Sene was not able to say what elementary school his children attended or what high school P.F. was in.

[53] Mr. Sene claimed that he had opened an account for the children in 2010 into which he put $5,000.00. According to Mr. Sene, the bank has denied him access to this account and he does not know what happened to the money.

[54] Mr. Sene testified that he has called the police to try to enforce his access to the children but was told that he needed a court order.

[55] Mr. Sene testified that he owes no arrears in child support and has been paying in accordance with the most recent order from the Ontario Court of Justice.

[56] In 2020, Mr. Sene lost his job at Metro where he has worked since before the children were born. He acknowledged in his testimony that he has received an RSP transfer of approximately $100,000.00 by way of compensation from Metro.

[57] Mr. Sene agreed that he has never paid spousal support.

[58] With respect to the matrimonial home, Mr. Sene testified that he paid for everything, and Ms. Sall paid for nothing.

[59] According to Mr. Sene, he paid for "all" of the children's activities but stopped when Ms. Sall began denying him access. He thought that this was sometime around 2021.

[60] In his evidence, Mr. Sene conceded that the home is a matrimonial home. He currently lives in the home with his second wife who is expecting a child.

[61] Mr. Sene testified that he took steps to refinance the home in accordance with Justice Kraft's order but decided to "hold off" because the rates were too high.

[62] Currently he is working at Apple Express as a logistics coordinator. He was hired on a contract in November of 2024 but is now permanent and earns $1600.00 biweekly.

[63] Mr. Sene denied that he had ever been abusive to Ms. Sall.

The Parties' Financial Statements

Ms. Sall's Financial Statement

[64] Ms. Sall filed a financial statement dated June 17, 2025. It states that her gross income for the previous year was $43,047.00 and her annual expenses are $48,960.00. Her total savings as of June 2025 are $16,584.53, and her total debts are $55,942.23.

[65] At the time of marriage, she had no assets. She testified at trial that when she left the marriage in March of 2012, she had only $1,000 in the bank. Her financial statement says that she had $100 on valuation date.

[66] There is no dispute that Ms. Sall came into the marriage with no assets and left with very little.

[67] There is a letter from FRO in evidence at trial. It is dated June 12, 2025, and contains an accounting of support that is owed to Ms. Sall. As of June 12, 2025, Mr. Sene was in arrears with FRO in the amount of $114,316.89.

[68] Ms. Sall filed a financial statement in the Ontario Court of Justice dated October 12, 2012, which is in evidence. It claims a gross income for 2012 of $15,307.00. Attached is a notice of assessment for the tax year 2010 showing a total income of $8,732.00.

[69] Ms. Sall also produced Notices of Assessments for 2017 showing a line 150 income of $46,552.00 and for 2016 showing a line 150 income of $43,047.00.

Mr. Sene's Financial Statement

[70] Mr. Sene's financial statement is undated and unsworn.

[71] According to his financial statement, Mr. Sene's 2023 gross income was $29,832.00. The statement lists his current gross income as $50,352.00 and his expenses as $50,948.76.

[72] In his evidence at trial, he testified that during the marriage, he was earning approximately $90,000.00 per year. The December 17, 2012, order of Justice Spence from the Ontario Court of Justice imputed Mr. Sene's income for 2011 to be $94,078.00.

[73] Mr. Sene lists his savings as follows: $3,000.00 at the date of marriage, $500.00 on date of separation and $101,420.31 currently. He claims unspecified debts in the amount of $4,800.00 on date of marriage. At trial, he gave no evidence with respect to these debts.

[74] Mr. Sene claims that the valuation day value of the matrimonial home of $299,000.00. This accords with the MPAC value of the home for 2012. According to his financial statement, the mortgage on valuation date was $236,000.00. Currently, he lists his mortgage as $136,126.36.

[75] At trial, Mr. Sene affirmed the truth of his financial statement but testified that he did not prepare it. When questioned about some of the amounts recorded in the statement, for example his debts and liabilities on valuation date, he was only able to give vague answers.

[76] Mr. Sene provided little by way of supporting documentation. For example, he testified that he had RRSP's but provided no evidence or documentation with respect to their value as at any of the dates in question. The only documentation which he produced relating to the RRSPs were two documents. One was a document showing that he had withdrawn $11,000.00 in 2009 on the Home Buyers Plan. This accords with his evidence that he had withdrawn from his RRSP to make a downpayment on the matrimonial home. The other was a document showing that in 2011 he had contributed $4460.89.00 to an RSP.

The Matrimonial Home

[77] There are a few supporting documents from which the purchase price of the home, the downpayment, the initial mortgage and the current mortgage can be surmised.

[78] Mr. Sene produced a statement from TD bank which he uploaded to case centre in accordance with Justice Kraft's order, showing that as of February 6, 2025, his mortgage was $134,972.24.

[79] Another document produced by Mr. Sene shows a receipt for a bank draft in the amount of $10,000.00 to ReMax Realty dated May 1, 2009 "re downpayment (house)".

[80] There is also an undated application for credit in Mr. Sene's name, requesting a mortgage of $248,912.00.

[81] A document produced by Ms. Sall at trial, the Ontario Land Transfer Tax Refund Affidavit, shows that the home was purchased on May 5, 2009, for $255,000.00.

[82] Accepting that the value of the house on the date of separation was $299,999.00 and there was a mortgage of approximately $236,000.00, the equity in the home on valuation date was approximately $64,000.00.

[83] The house is currently listed for $889,900.00. It has been on the market for several months. According to Mr. Sene, there have been no offers to purchase. Given the history of Mr. Sene's failure to abide by orders requiring the home be listed for sale, it is difficult to have any confidence that he is actively trying to sell the house.

[84] Nothing in Mr. Sene's evidence at trial suggested that he actually intends to sell the home. He currently lives in the home with his new wife, and they are expecting a child. He referred to the home as his "savings" and suggested that he intended his children to have it. He spoke of it as his home and gave no evidence of any plans or intention to move.

[85] Mr. Sene's evidence is that his current mortgage is only $136,000.00. The home is currently on the market listed at close to $900,000.00. The listing details show that it is a detached home in the "rapidly gentrifying Weston Village" in the city of Toronto with a detached garage and private driveway. Even if the house sells for below the asking price, Mr. Sene still has significant equity in the home. Mr. Sene testified that his agent has suggested reducing the price of the home to $760,000.00. At that reduced price, Mr. Sene would still have over $600,000.00 of equity in the home.

Issues and Analysis

[86] The issues in this case are parenting time, equalisation of family property and spousal support. There is already a final court order in place with respect to child support.

Parenting

[87] When it comes to orders involving parenting and children, the best interests of the children is the only concern of the court. This is required by both the Divorce Act and the Children's Law Reform Act.

[88] Section 24 of the Children's Law Reform Act (CLRA) provides that the best interest of the child is the only consideration when making parenting orders.

[89] Section 24(2) of the CLRA provides that in determining the best interests of the child, the primary consideration is the child's physical, emotional, and psychological safety, security and well being.

[90] Section 24(3) sets out the following list of factors related to be considered:

(a) the child's needs, given the child's age and stage of development, such as the child's need for stability;

(b) the nature and strength of the child's relationship with each parent, each of the child's siblings and grandparents and any other person who plays an important role in the child's life;

(c) each parent's willingness to support the development and maintenance of the child's relationship with the other parent;

(d) the history of care of the child;

(e) the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

(f) the child's cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

(g) any plans for the child's care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and co-operate, in particular with one another, on matters affecting the child;

(j) any family violence and its impact on, among other things,

(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

(k) any civil or criminal proceeding, order, condition or measure that is relevant to the safety, security and well-being of the child.

[91] Following separation, an Order was made in the Ontario Court of Justice awarding "sole custody" of the two children to Ms. Sall.

[92] There is no dispute that since separation, the children have always lived with Ms. Sall. They are now 17 and 14 years old. They are no longer children, rather they are teenagers who are capable of making their own decisions.

[93] Mr. Sene claims that Ms. Sall has denied him access to the children. While Ms. Sall may not have done much to facilitate the visits or contact, it is clear that Mr. Sene has done little to try to contact his children.

[94] Mr. Sene claims not to know his children's phone numbers. I do not accept his evidence. It is clear from Justice Vella's August 16, 2024, endorsement that Mr. Sene was provided with the cell phone numbers for his children. The text message in evidence shows that the children have tried in vain to contact their father, asking "you never answer, why??".

[95] Having considered all of the factors relevant to the children's best interests, and in particular that they are now teenagers and Mr. Sene's involvement in their lives has been inconsistent at best, it is now appropriate that Mr. Sene's parenting time be in accordance with the wishes of the children.

[96] Ms. Sall will remain the sole decision-maker for the children but must share information with Mr. Sene respecting major decisions, activities, and events in their lives. She must also facilitate contact with their father and not interfere with his parenting time.

Equalisation

[97] Section 5 of the Family Law Act (FLA) creates a presumption of equal division of family property upon separation. The reason for this presumption is set out in s.5(7):

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7) .

[98] Unequal division of property is permitted by s.5(6) of the FLA, but it is exceptional.

[99] The threshold question to be determined by the court in considering unequal division is whether equalisation would be unconscionable. The threshold is high, as emphasised by Blair J. in Sera v. Serra, 2009 ONCA 105, at para 47 :

In this regard, the threshold of "unconscionability" under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court.

[100] Mr. Sene concedes that the home is a matrimonial home. However, Mr. Sene made his views clear in his evidence that the home is his and Ms. Sall deserves nothing of it. Mr. Sene is of the view that because he paid the downpayment, mortgage and bills, Ms. Sall is not entitled to share equally in the equity accrued during the marriage.

[101] Mr. Sene is an educated man with a university degree. Ms. Sall was a new immigrant who spoke no English and had little education. During the marriage they had two children. Ms. Sall was the primary parent looking after the children. Mr. Sene referred to any childcare he engaged in as "babysitting".

[102] When Ms. Sall left the marriage, she went to a shelter and Mr. Sene remained in the matrimonial home where he lives to this day.

[103] There is nothing in the circumstances of this case which would justify the exceptional step of unequal division of property between these spouses.

[104] There is little financial information before the court. I accept Ms. Sall's evidence that she had no assets going into the marriage and next to none when she left. This evidence was not challenged by Mr. Sene. Her financial statement is lacking in detail, but this is hardly surprising given her lack of assets.

[105] Mr. Sene has not been forthcoming with respect to his financial information.

[106] The only evidence which I can accept with any confidence is that the equity in the matrimonial home at the time of separation was approximately $64,000.00.

[107] It appears likely that Mr. Sene had more assets, at least in the form of RSP's at the time of separation. Unfortunately, I have no evidence from which I can determine the value of Mr. Sene's other assets as at date of marriage and date of separation. I do not accept the little evidence which he gave with respect to his debts and liabilities other than the mortgage.

[108] It is more likely than not that the absence of proper financial disclosure benefits Mr. Sene. Mr. Sene has provided no evidence from which I can impute a value to his RSP.

[109] This leaves me with only the matrimonial home to equalise.

[110] Ms. Sall is entitled to half of the equity in the home as at date of separation. The equity being $64,000.00 at date of separation, Ms. Sall is owed an equalisation payment of $32,000.00.

Spousal Support

[111] Under s. 15.2(1) of the Divorce Act, the court can make an order for spousal support. In making an award of spousal support, the factors identified in s. 15.2(4) must be considered:

… the condition, means, needs and other circumstances of each spouse, including

a) the length of time the spouses cohabited;

b) the functions performed by each spouse during cohabitation; and

c) any order, agreement or arrangement relating to support of either spouse.

[112] The objectives of an award for spousal support can be found at s. 15.2(6):

An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should:

a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[113] All four objectives must be considered. "No single objective is paramount": Moge v. Moge, [1992] 3 S.C.R. 813, at p. 852; Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 35 .

[114] Ms. Sall did not bring an application for spousal support until she commenced proceedings in this court in 2017. She asks for spousal support as of the date of separation. Her claim therefore is a retroactive one. Ms. Sall does not ask for spousal support going forward.

[115] The considerations governing an award of retroactive spousal support were set out by the Ontario Court of Appeal in Bremer v. Bremer, at para. 9 :

i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor's ability to pay;

ii) the underlying basis for the ongoing support obligation;

iii) the requirement that there be a reason for awarding retroactive support;

iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital;

v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure;

vi) notice of an intention to seek support and negotiations to that end;

vii) delay in proceeding and any explanation for the delay; and

viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued.

Entitlement to Spousal Support

[116] The first question to be determined is whether Ms. Sall is entitled to spousal support.

[117] The parties were married for 7 years. Mr. Sene sponsored Ms. Sall to come to Canada. When she came here, Ms. Sall was in her early thirties and had only grade school education. She relied upon Mr. Sene who supported her and their two children financially. Ms. Sall was the primary caregiver for the children while Mr. Sene worked three jobs. Eventually Ms. Sall was able to find part-time work in an LTC kitchen that became full-time work and is the job which she holds to this day.

[118] It was Mr. Sene's evidence that he told Ms. Sall that he did not need to "babysit" their children when she worked only 16 hours a week.

[119] Theirs was what is often described as a traditional marriage. Ms. Sall looked after the children while Mr. Sene worked. Mr. Sene expected this of Ms. Sall, and it angered him when she asked for his help.

[120] When the parties separated, Ms. Sall spoke little English and had only part-time work. She had sole custody of the children who resided with her. Mr. Sene was ordered to pay child support which he paid inconsistently. A recent FRO accounting shows that he is in arrears over $100,000.00.

[121] Ms. Sall moved first to a shelter until eventually she found an apartment. A friend helped her to pay her first month's rent. Since separation, Ms. Sall has had to support herself and their two children with only minimal and inconsistent child support. She has born most, if not all, of the costs of the children's activities.

[122] She was clearly entitled to spousal support when they separated on both a compensatory basis and a needs basis.

Retroactive Support

[123] Since separation, Ms. Sall has worked hard to support herself and the children. She now has three jobs.

[124] Mr. Sene testified that during the marriage, he was earning approximately $90,000.00 a year. An Order from the Ontario Court of Justice imputes his 2011 income to be $94,078.00. By 2010, Ms. Sall was able to find work for 16 hours a week. When she went back to work after O. was born, she was working 25 hours a week.

[125] The October 1, 2019, order of Justice Spence varied Mr. Sene's child support obligations and based child support on an income of $72,805.00 for Mr. Sene as per his 2018 NOA.

[126] The Notices of Assessment in evidence for Ms. Sall show a total income of $43,047.00 for 2016 and $46,552.00 for 2017.

[127] The equalisation payment which I am ordering Mr. Sene to pay Ms. Sall is not large. It is possible, even likely, that had Mr. Sene made financial disclosure with respect to his savings, Ms. Sall would be entitled to a larger equalisation payment.

[128] Mr. Sene still owns the matrimonial home. He has been ordered to sell it but has not. Whether or not he sells it, he has significant equity in the home from which he can withdraw.

[129] Ms. Sall is now in dire financial straits. Her situation comes as a result of her lack of support post separation, Mr. Sene's failure to maintain his child support obligations and the fact that Ms. Sall has shouldered almost, if not all, of the cost of the children's activities and care. There is also little reason to believe that Mr. Sene will make any meaningful contribution to their post-secondary education.

[130] In considering the objectives set out in s.15.2(6) of the Divorce Act, and the factors to be considered in a retroactive claim for spousal support, I find that Ms. Sall is entitled to spousal support on a retroactive basis commencing on the date of separation.

Amount and Duration of Retroactive Support

[131] The Spousal Support Advisory Guidelines (SSAG) provide a calculation of spousal support based primarily on income, duration of marriage and the number of children. The calculations also provide a range for the duration of support. There is no reason in this case to depart from the SSAG support calculations.

[132] I do not have fulsome information from either party with respect to their incomes, this is especially so for Mr. Sene. Mr. Sene has benefited from his lack of financial disclosure.

[133] It was Mr. Sene's evidence that during the marriage he was making $90,000.00 per year. Justice Spence's December 17, 2012, order imputed an income of $94,078.00 to Mr. Sene for 2011. Accordingly, that is the income which I use for the purposes of calculating spousal support as at the date of separation.

[134] Ms. Sall filed a financial statement in the Ontario Court of Justice dated October 12, 2012, which claims a gross income for 2012 of $15,307.00. This is the income which I use for the purposes of calculating spousal support.

[135] Based on these incomes, the duration of the marriage and the ages of the children upon separation the mid range of spousal support according to SSAG is $188.00 per month for a duration of 10 years and 6 months. This calculation assumes child support in the amount of $1,399.00 per month.

Lump Sum Payment

[136] The spousal support order I am making is retroactive. Mr. Sene has had the benefit of not paying support for the past 13 years.

[137] He has demonstrated an unwillingness to abide by court orders. According to FRO, as of June 12, 2025, Mr. Sene is in arrears of child support in the amount of $114,316.89. He has been ordered to sell the matrimonial home but has not done so, and it does not appear that he has any real intention of doing so.

[138] While Mr. Sene states that his 2023 income was $50,352.00, he has equity in his home that is conservatively approximately $600,000.00.

[139] In considering all of these circumstances, it is appropriate in this case to make a lump sum award of spousal support. A lump sum payment in the mid-range of SSAG is $18,623.00. Accordingly, I am ordering that Mr. Sene make a lump sum payment in the amount of $18,623.00 in retroactive spousal support.

Orders to Follow

[140] The Respondent father, Malick Sene, shall have parenting time with the children, P.F.S., born June 5, 2008, and O.S., born April 24, 2011, in accordance with their wishes.

[141] The Applicant mother, Fatou Sall, will remain the sole decision-maker for the children but must share information with the Respondent father, Malick Sene, respecting major decisions, activities, and events in their lives. The mother will facilitate the children's contact with their father and not interfere with his parenting time.

[142] The Respondent father, Malick Sene, is ordered to pay equalisation payment to the Applicant mother, Fatou Sall, in the amount of $32,000.00 including pre and post judgment interest to be calculated in accordance with the Courts of Justice Act.

[143] The Respondent father, Malick Sene, is ordered to pay retroactive spousal support in a lump sum payment of $18,623.00 to the Applicant mother, Fatou Sall, which is not taxable to the recipient Fatou Sall or tax deductible to the payor Malick Sene.

The Honourable Justice Newton-Smith

Released: August 07, 2025