Court File and Parties

Court File No.: FS-20-00015287-0001 Date: 2025-09-09 Ontario Superior Court of Justice

Between: Mohamed Ahmed Mohamed, Applicant – and – Amel Farouk Mohamed, Respondent

Counsel: Sayed Mossad, for the Applicant Roma S. Mongol, for the Respondent

Heard: June 24-25, August 19, 2025

Mathen, J.

Focused Hearing Decision

Introduction

[1] The parties to this family law case are the applicant husband, Mohamed, and respondent wife, Amel. Mohamed and Amel had a focused hearing about a separation agreement they signed on January 14, 2020. Mohamed argues that the entire agreement should be set aside. He does so on two alternative grounds: section 56(4) of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA"); or that, after signing the agreement, the parties reconciled for more than ninety days.

[2] Mohamed and Amel married in 1999 in Egypt and moved to Canada in 2001. They lived in Toronto until 2014, when they and their two children relocated to Saudi Arabia. The family returned to Toronto in 2019.

[3] According to Amel, the parties' relationship broke down in Saudi Arabia. In 2019, the couple had a brief, failed reconciliation following which Amel asked a lawyer to draw up divorce papers and a separation agreement. The parties signed both sets of documents on January 14, 2020. The parties' divorce was finalized in April or May, 2020.

[4] While Mohamed acknowledges signing the divorce application, he says the divorce was a sham intended to assist the couple's eldest daughter with her student loans. Mohamed adds that he did not know he was signing a separation agreement. He simply signed everything placed in front of him; and without English language interpretation, he could not have understood the documents anyway. Mohamed also argues that Amel failed to make full financial disclosure, and he did not have the benefit of independent legal advice.

Issues and Brief Conclusion

[5] The issues on this motion are:

a. Should the parties' separation agreement dated January 14, 2020, be set aside under section 56(4) of the FLA because:

i. Amel failed to disclose to Mohamed significant assets?

ii. Mohamed did not understand the nature or the consequences of the agreement? and/or

iii. Mohamed's lack of independent legal advice renders the agreement unconscionable and, therefore, contrary to the law of contract?

b. Alternatively, is the separation agreement void because, after signing it, Amel and Mohamed reconciled for more than ninety days?

[6] Mohamed's claims are dismissed. I am not persuaded by any of Mohamed's arguments for setting aside the agreement under the FLA, nor do I find that the parties reconciled for any length of time after January 14, 2020.

Background Facts

[7] Mohamed and Amel have two children born, respectively, in 2002, and in 2013. The elder daughter, N.,[1] testified at the hearing.

[8] Mohamed is a cook. Amel, a teacher, did not work during the marriage.

[9] After returning to Canada from Saudi Arabia in 2019, the family lived at Seneca College for a few weeks, 177 Linus Road in 2019-2020, and finally 30 Easterbrook Avenue. The parties disagree on whether they lived together as a couple at any of these locations.

[10] Amel says that, because she and Mohamed had already separated by the time they came back to Canada, she lived with friends. In a sort of "nesting" arrangement, she would care for the girls while Mohamed worked. Amel says the parties tried to reconcile in November 2019, but Mohamed assaulted her. Amel made a police complaint about this incident in 2022. The charges against Mohamed have since been withdrawn.

[11] Amel says that she decided to divorce Mohamed in 2019, after the alleged assault. At Amel's request, a lawyer named Waseem Kala prepared a joint application for divorce, and a separation agreement. Mr. Kala testified at the hearing; I discuss his evidence further in these reasons.

[12] According to the separation agreement:

a. The parties separated on December 1, 2018;

b. The parties each agree that they have made "full financial disclosure of their respective income, assets, and debts existing at the date of the marriage, the date of separation and the date of this Agreement";

c. The parties agree to shared parenting and decision-making;

d. Mohamed's income is $27,000 and Amel's is $0.00;

e. Mohamed agrees to pay monthly child support of $1000, which the parties acknowledge is higher than the table amount;

f. The parties agree to share section 7 expenses equally;

g. There will be no support deduction order unless Mohamed defaults;

h. Each party releases the other from spousal support obligations;

i. Both parties are entitled to "all property in his or her own name including investments, savings, bank accounts, real estate, RRSPs, employer pensions and business interest free and clear of any claim of the other party";

j. Each party releases the other from all claims at common law, in equity or by statute, including under the Divorce Act, Family Law Act and Succession Law Reform Act; as well as all "claims in trust, including any claims to a constructive or resulting trust";

k. If the parties attempt to reconcile, and cohabit for longer than 90 days, the agreement is void except for prior transfers and payments;

l. Amel acknowledges receiving independent legal advice from Waseem Kala;

m. Mohamed acknowledges that he has waived the opportunity to obtain independent legal advice.

[13] Following the signing of the separation agreement in January 2020, Amel went to Egypt for one month. When she returned, she sublet a basement apartment at 1042 Kennedy Road, Scarborough. Amel's next trip to Egypt was for several months in 2021. When she came back to Canada in September of that year, she says, she discovered that Mohamed had stolen her belongings and forged her signature on cheques worth $15,000. In November 2023, Mohamed was charged with fraud over $5,000. That charge appears to be outstanding.

[14] Mohamed says the parties did not separate until June 29, 2021. He started a family case against Amel on July 22, 2022. When Amel pointed to the separation agreement, Mohamed made the further claims that led to this hearing.

[15] At the hearing, Amel objected to having her daughter, N., testify on that basis that it would be prejudicial and would irreparably harm their relationship.

[16] I allowed N. to testify because:

a. N.'s evidence is relevant.

b. While it is unfortunate that N. is involved in her parents' litigation, she is an adult and, as such, her best interests are not at issue.

c. Amel presented no caselaw to suggest that N.'s testimony should be treated differently from that of any other witness.

[17] At the hearing, both parties received Egyptian Arabic interpretation. The court thanks the interpreters for their service.

Analysis

[18] The following analysis contains my findings of fact on a balance of probabilities.

[19] I begin with credibility.

[20] Credibility is a primary vehicle for determining the truth of alleged facts – a task that can become "unenviably difficult" depending on the narrative put forward by the parties: Konstan v. Berkovits, 2023 ONSC 497, at para. 8.

[21] In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20, the Supreme Court of Canada cautioned that evaluating witness credibility is not "a science."

[22] Traditional criteria used to assess witness evidence include witness demeanour, inherent probability in the circumstances, and internal and external consistency: Prodigy Graphics Group Inc. v. Fitz-Andrews, [2000] O.T.C. 237, at para. 46.

[23] Witness credibility is critical to the burden of proof: Konstan. Where a party has the burden to discharge a legal onus, I must satisfy myself, on a balance of probabilities, of "the credibility and reliability of the evidence in order to be in a position to make the relevant findings of fact": Konstan at para. 9.

[24] It is necessary to distinguish credibility from reliability. Credibility has to do with whether parties' testimony is honest, while reliability concerns whether testimony is accurate: R. v. Sanichar, 2013 SCC 4, [2013] 1 S.C.R. 54, at para. 19. One may find a witness generally credible yet doubt their reliability. Conversely, a witness who is not credible may still offer reliable testimony.

[25] As the moving party on this focussed hearing, Mohamed bears the persuasive burden.

[26] Neither party is entirely credible. But, where the parties' accounts diverge, I prefer Amel's testimony to Mohamed's.

[27] I do not accept Mohamed's explanation that the divorce was a sham. I find Mohamed's position on the parties' Canadian divorce to be internally inconsistent. I also do not believe that Mohamed's English is so poor that he could not understand the documents he signed on January 14, 2020.

[28] Some of Amel's testimony was confusing. I am not wholly persuaded by her account that after she returned to Canada with the rest of the family in 2019, she lived with a friend until January 2020. Nor am I convinced that Mohamed was as controlling of Amel as she says. Throughout the marriage, Amel traveled freely. She purchased property in 2017.

[29] Nevertheless, I find Amel's testimony more believable than Mohamed's. For example, unlike Mohamed, Amel did not exaggerate her deficiencies in English. While she requested a translator for the hearing, Amel explained that, while she can speak English, translation would provide her greater "peace of mind". Most importantly, any frailties in Amel's testimony do not affect the plausibility of her narrative about the parties' separation and divorce.

[30] I discuss the other witnesses, N. and Mr. Kala, in my analysis of the issues. Briefly, I find that N. is not credible and Mr. Kala is credible.

Issue One: Should the separation agreement dated January 14, 2020, be set aside because:

i. Amel failed to disclose to Mohamed significant assets;

ii. Mohamed did not understand the nature or the consequences of the agreement; and/or

iii. Mohamed's lack of independent legal advice renders the agreement unconscionable and, therefore, contrary to the law of contract?

[31] Under section 56(4) of the FLA, a court may set aside all or part of a separation agreement (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (b) if a party did not understand the nature or consequences of the domestic contract; or (c) otherwise in accordance with the law of contract.

[32] The court must first determine whether one of the conditions in section 56(4) is satisfied. If one or more conditions is satisfied, then the court must decide whether to exercise its discretion to set aside the agreement. Factors to be considered may include:

a. whether there was concealment of assets or material misrepresentation;

b. whether there was duress or unconscionable circumstances;

c. whether the moving party neglected to pursue full legal disclosure;

d. whether the moving party moved expeditiously to have the contract set aside;

e. whether the moving party received substantial benefits under the contract;

f. whether the respondent fulfilled his or her obligations under the contract; and

g. whether the non-disclosure was a material inducement to entering into the agreement and its importance to the negotiations.

Virc v. Blair, 2014 ONCA 392, 119 O.R. (3d) 721, at para. 31

[33] As I explain below, I am not persuaded that any of the conditions set out in section 56(4) applies in this case.

a. Did Amel fail to disclose to Mohamed significant assets?

[34] Non-disclosure of assets is the "cancer" of family law litigation: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920, at para. 34, citing Cunha v. Cunha, 99 B.C.L.R. (2d) 93. The fact that section 56(4) of the FLA includes "failure to disclose" as a reason to set aside a separation agreement is consistent with that idea.

[35] This case, however, does not feature that kind of non-disclosure.

[36] In his 2022 application, Mohamed claims a beneficial interest in a property registered in Amel's name located at 1881 McNichol Avenue, Toronto. The property was purchased in 2017. Mohamed and Amel disagree on who provided funds to purchase this property and whether Mohamed contributed anything to the property afterwards.

[37] The parties spent a great deal of time arguing about the purchase of the McNichol property. For the most part that evidence is immaterial to this hearing. If Mohamed has a claim against the McNichol property, that is a trial issue.

[38] What is material to this hearing is whether Amel failed to disclose the McNichol property, or any other significant asset, to Mohamed before he signed the separation agreement. The evidence shows the opposite: Mohamed knew about the McNichol property, including that it was registered in Amel's name, years before the separation agreement. Mohamed testified that he had contributed money to McNichol's purchase.

[39] Amel says that Mohamed told her not to disclose their assets to the lawyer. I find that, for reasons that remain somewhat obscure, neither party wanted to make full disclosure to Mr. Kala. Any such non-disclosure, however, did not affect the parties themselves. There is no evidence that the non-disclosure to the parties' lawyer constituted a "material inducement" to Mohamed to enter into the agreement: Dochuk v. Dochuk, [1999] 44 R.F.L. (4th) 97, at para. 19. Nor is there evidence that Amel deliberately withheld from Mohamed information about any significant asset: Levan v. Levan, 2008 ONCA 388, 90 O.R. (3d) 1, at para. 35.

[40] Therefore, I am not persuaded that section 56(4) (a) of the FLA applies.

b. Did Mohamed not understand the nature or the consequences of the agreement?

[41] Mohamed makes several overlapping arguments for why he did not understand what he signed on January 14, 2020. First, Mohamed says that because he thought that he and Amel were divorcing on paper only, he had no reason to suspect he was also signing a separation agreement. Second, Mohamed says his English is too poor for him to have understood the separation agreement without translation. Third, Mohamed says he did not read any of the documents before he signed them.

[42] Mohamed repeatedly testified that, because of his complete trust in Amel, he did not question what she was doing when the two visited Mr. Kala's office on January 14, 2020.

[43] I find Mohamed's arguments implausible. I reject both Mohamed's and N.'s testimony that the divorce was a sham. I am not persuaded that Mohamed's ability to read English is as poor as he says. And, I find that Mohamed's admitted failure to read the documents harms rather than helps his argument.

i. The Sham Divorce

[44] Mohamed says that the only reason the parties divorced was to help their daughter, N., secure more favourable repayment terms for loans from the Ontario Student Assistant Program (OSAP). According to Mohamed, Amel devised the entire scheme.

[45] In her testimony, N. backs up Mohamed's narrative. According to N., in January 2020, Amel telephoned her to advise her of the divorce and assure her that it was strictly for the purpose of N.'s OSAP. Both Mohamed and N. say that the Canadian divorce was unimportant to the family – only an Islamic divorce would count.

[46] Amel rejects the above account. She says she resolved to divorce after Mohamed (allegedly) physically and sexually abused her in November 2019.

[47] In response to a question from the court, Mohamed says he did not think there would be any legal consequences to getting divorced.

[48] If Mohamed's story is true, he obtained a divorce under false pretences, including swearing a false affidavit. Swearing an affidavit that one knows to be false is a form of perjury – a criminal offence.

[49] However, I do not accept that the divorce was obtained under false pretences, because I find the purported reasons for the fake divorce to be unbelievable.

[50] First, in January 2020, N. was still in high school. There is no evidence before the court about how a divorce would affect N.'s future OSAP loans. In her testimony N. alluded to how a divorce would help her and offered to show the court information to that effect. Any such documents should have been offered in advance of the hearing. There was no request to admit such records. The evidence before the court lacks corroborating information about how OSAP works, and, in particular, the effect on a student's loan obligations of their parents' divorce.

[51] Second, I do not find N. credible or reliable:

a. N.'s description of the critical conversation with Amel lacked detail and was internally inconsistent. N. did not explain why Amel would have been so concerned about N.'s OSAP loans. Amel, who never studied in Canada, testified that she was not familiar with OSAP. In addition, N. said she spoke to Amel "in January" and N. knew that Amel was in Egypt. If true, this means that N. spoke to Amel after the parties had visited Mr. Kala since no one disputes that Amel went to Egypt shortly after January 14, 2020.

b. N. says that in their phone call, Amel asked for help to find a lawyer. The evidence is uncontradicted that Amel found Mr. Kala in December. Mr. Kala deposes that he was contacted by Amel on December 19, 2019. The parties visited Mr. Kala's office on January 14. I find it unlikely that Amel would have asked for N.'s help to find a lawyer after she had already secured one and, possibly, already signed the divorce application. I find N.'s account of the phone call unconvincing.

c. N.'s relationship with her mother is strained. N. believes that Amel does not support her, and that Amel unfavourably compares N. to her cousins. N. says that she does not believe that Mohamed sexually assaulted Amel because that is inconsistent with what Amel has told N. about the parties' sex life. N.'s animosity towards her mother leads me to conclude that her testimony is unreliable.

[52] Third, Mohamed had already married and divorced in Canada. In cross-examination he described his first marriage, to a "white Canadian", as a marriage of convenience to assist his immigration status. Mohamed is familiar with what a divorce involves. I do not believe Mohamed's statement that he thought he could get a fake divorce without any legal consequences.

[53] Therefore, on a balance of probabilities, I find that Mohamed has not met his burden of proof about the circumstances of the divorce. Amel's account that she decided to divorce after the failed reconciliation in 2019, and after what she alleges was an assault against her, is more credible than Mohamed and N.'s account that Amel decided to engineer a fake divorce to reduce N.'s future repayment of student loans.

[54] Given my finding about the divorce, the parties' signed affidavits in support of their joint divorce application, which depose that they separated on December 1, 2018, must be treated as valid. In his cross-examination of Amel, Mohamed's counsel tried to draw a negative inference based on different dates of separation in various documents filed over the course of the litigation. The parties' divorce is the best evidence of their date of separation. Mohamed has not persuaded me to set that evidence aside.

[55] Therefore, I am not persuaded that, because Mohamed thought the divorce was fake, he had no idea he was also signing a separation agreement.

ii. Mohamed's English

[56] Mohamed says that his English is so poor that, absent interpretation, he could not have understood what the separation agreement was or what it contained. He says that Mr. Kala did not provide such interpretation.

[57] For the following reasons, I am not persuaded that Mohamed's English is as weak as he says:

a. Mohamed admits that he did not ask for any of the documents to be translated.

b. By January 14, 2020, Mohamed had obtained the following English-language qualifications and diplomas:

i. A certificate entitling him to use the title "Certified Journeyman" issued by the Alberta Ministry of Advanced Education and Career Development (August 1998);

ii. Membership in the Canadian Culinary Federation; and

iii. A transcript from Humber College Institute of Technology and Advanced Learning showing that, as of April 2013, Mohamed passed 10 courses with a combined grade point average of 82.7.

c. Mohamed explained the above qualifications on the basis that he studied and worked in environments where the English is confined to specialized cooking terms. In other words, Mohamed says he knows enough English to function as a line cook, not review legal documents. However, the Humber transcript shows two courses – Communications, and Resource Management Theory – that likely involved at least some college level reading and writing. Mohamed says that a friend helped him with the written components of those courses. Like other aspects of Mohamed's testimony, I do not believe this explanation.

d. At the hearing, Mohamed was assisted by an Arabic interpreter. However, when he began testifying, Mohamed answered questions in English without waiting for interpretation. After the interpreter raised a concern, Mohamed's lawyer asked Mohamed to restrict his answers to Arabic. To be sure, there is a difference between oral and written English. Nevertheless, I find it puzzling that a person whose grasp of English is a frail as Mohamed claims would instinctively answer English questions in English.

e. The physical copy of the Separation Agreement states in capital letters at the top left margin "THIS IS A SEPARATION AGREEMENT DATED January 14, 2020". I am not persuaded that Mohamed is unable to read and understand what those words mean.

f. Mohamed's affidavits and other materials were filed in English. He confirmed he did not review Arabic translations first. While Mohamed's lawyer speaks Egyptian Arabic, Mohamed did not say he relied on his lawyer. He said that his daughters assisted him in translating. Neither of Mohamed's daughters is legally trained. I am not persuaded that Mohamed relied entirely on his daughters to explain to him what he was signing. I find it more likely than not that he independently understood the documents.

iii. Mohamed's failure to read the documents

[58] Mohamed says he did not read any of the documents he signed on January 14, 2020. He simply signed everything that was put in front of him. He did so, he testified repeatedly, because he "trusted his wife".

[59] If what Mohamed says in this part of his testimony is true, it suggests a so-called "failure to self-protect" on his part: Singh v. Khalill, 2023 ONSC 6324, at para. 57, aff'd 2024 ONCA 909, citing Harnett v. Harnett, 2014 ONSC 359, 43 R.F.L. (7th) 464, at paras. 87-94. Individuals who sign separation agreements are expected to exercise due diligence to protect themselves. They cannot rely on a failure to exercise that due diligence as a reason, after the fact, to set aside the agreement.

[60] Mohamed's most frequent answer to why he simply went along with everything at Mr. Kala's office was that he (Mohamed) trusted his wife (Amel). (Mohamed cites other reasons, too, including that Amel had been pressuring him to get the "fake" divorce, and he was exhausted after a long shift at work. I discuss those claims in the next section.)

[61] Given that I do not accept Mohamed's account of the sham divorce, it follows that Mohamed knew, at the very least, that he was applying to be divorced "for real". Mohamed had divorced once before, so he knew what was involved.

[62] Given the parties' situation, it is neither credible nor reliable for Mohamed to now say he had complete trust in the person he was agreeing to divorce.

[63] Therefore, even if I were to accept that Mohamed chose to not read a single paper that he signed on January 14, 2020, considering all the circumstances I am not persuaded that Mohamed's choice is a sufficient reason to set aside the agreement under section 56(4) (b) of the FLA.

c. Does the lack of independent legal advice render the agreement unconscionable?

[64] I will now consider Mohamed's argument that he was unfairly deprived of independent legal advice. He says the unfairness is compounded by the fact that Amel was represented by Mr. Kala with respect to the separation agreement. Essentially, Mohamed argues that his lack of independent legal advice makes it unconscionable to enforce the agreement against him.

[65] I do not agree that Mohamed's failure to receive independent legal advice renders the separation agreement unconscionable. I acknowledge that there was an imbalance between the parties owing to the fact that Amel had legal advice and Mohamed did not. Nevertheless, I am not persuaded that that imbalance warrants setting aside the separation agreement. That is because I find that Mohamed freely signed a waiver after being offered an opportunity to consult a lawyer, in a situation where he was not under any duress or pressure.

[66] While the term "unconscionability" does not appear in the Family Law Act, it is a relevant consideration under section 56(4) (c) which refers to agreements which are "otherwise contrary to the law of contract". The latter phrase incorporates ordinary contract law principles: Ezzati v. Bae, 2019 ONSC 5292 at para. 9, citing M.O. v. F.S., 2019 ONSC 5091, at para. 187, including unconscionability.

[67] "Unconscionability" has a different context in matrimonial compared to other legal disputes. There must be "persuasive evidence…that one party took advantage of the vulnerability of the other party". However, there need not be the sort of "power imbalance" that is usually required to set aside, for example, commercial transactions: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303 at para 82.

[68] A domestic contract must be in writing, signed by the parties, and witnessed: FLA, s.55(1). Such a contract is not invalid just because the parties did not obtain independent legal advice: Anderson v. Anderson, 2023 SCC 13, 481 D.L.R. (4th) 1, at para. 69. The lack of independent legal advice is one factor for the court to consider in all the circumstances: Dougherty v. Dougherty, 2008 ONCA 302, 89 O.R. (3d) 760 at para. 11. For example, where a case features informational asymmetries or power imbalances between the parties, the fact that the weaker party did not receive independent legal advice could render the agreement unconscionable.

[69] Therefore, I must consider whether, in all the circumstances of this case, Mohamed's lack of independent legal advice renders the separation agreement unconscionable.

[70] At Mr. Kala's office, Mohamed signed the following:

a. A joint retainer with Amel for Mr. Kala to prepare an application for an uncontested divorce;

b. An affidavit in support of the uncontested divorce;

c. The application for the uncontested divorce; and

d. A waiver of independent legal advice for the separation agreement.

[71] The parties dispute the circumstances of the visit with Mr. Kala:

a. Amel says that she and Mohamed agreed to divorce and agreed to the terms of the separation agreement including child support payable by Mohamed, no spousal support payable to Amel, and a release from all property and equalization claims.

b. Mohamed says that he agreed to divorce only as a ploy to assist their elder daughter, N. with respect to OSAP funding. I have rejected this argument.

c. Mohamed says he does not know enough English to have been able to read the documents without assistance. I have rejected this argument.

d. Mohamed says Amel took him to the office after he finished a long shift, that he was exhausted and, by implication, that he went along with everything because of fatigue. Mohamed adds that he signed whatever he was put in front of him, in part, because he trusted his wife.

e. Mohamed also says he felt pressured to sign by Amel. Amel says she did not exert any pressure on Mohamed. She was looking to resolve things "peacefully."

[72] Mr. Kala testified that he drew up the materials after Amel initially reached out to him on December 19, 2019. Mr. Kala has prepared similar files in many other cases. He did not view Amel and Mohamed's matter as being complex or difficult.

[73] Mr. Kala met both parties in person for the first time on January 14, 2020.

[74] When the parties arrived, Mr. Kala says, he took them to a boardroom where he gave each of them copies of the divorce application and the separation agreement. Mr. Kala testified that he explained to Mohamed that he, Mr. Kala, was acting for both parties on the joint application for divorce but acting only on Amel's behalf on the separation agreement. Mr. Kala says he told Mohamed that he was entitled to independent legal advice. According to Mr. Kala, Mohamed declined the opportunity to obtain independent legal advice.

[75] Mr. Kala then took Amel into a separate room where the two had a conversation and she signed a retainer for the separation agreement. Amel rejoined Mohamed and Mr. Kala left them alone together for a time. When Mr. Kala returned, both parties signed all the required documents, including a joint retainer for the divorce, and Mohamed executed the waiver of his right to seek independent legal advice.

[76] Under cross-examination, Mr. Kala said that he did not believe that Mohamed had any difficulty understanding English. Mr. Kala recalls speaking to both parties in English. Mr. Kala has an assistant who speaks Arabic and can assist Arabic-speaking clients, but Mr. Kala did not believe that interpretation was necessary. There is some uncertainty about whether the assistant was physically in the office on that day, but I am persuaded that she would have been available, if necessary, by electronic means. According to Mr. Kala, Mohamed did not ask for interpretation.

[77] Mr. Kala testified that he did not keep detailed notes of the meeting.

[78] I find Mr. Kala's testimony to be straightforward and believable. I am satisfied that Mr. Kala honestly recounted his memory of the events leading up to, and occurring on, January 14, 2020.

[79] It was not ideal for Mr. Kala to represent, on one hand, Amel on the separation agreement and, on the other hand, both parties in their joint application for divorce. Nevertheless, I am not persuaded that Mohamed's waiver of independent legal advice should be set aside given that:

a. Mr. Kala did not have any interactions with Amel before she reached out to him in December 2019.

b. Mr. Kala met both parties in person for the first time on January 14, 2020.

c. Mr. Kala perceived Mohamed to be sufficiently conversant in English that it did not occur to Mr. Kala that Mohamed might require an interpreter.

d. Mr. Kala explained to Mohamed that Mohamed was entitled to obtain independent legal advice. I find that Mr. Kala was prepared to give Mohamed the opportunity to seek that advice if he wished. There is no evidence that Mr. Kala had an incentive to rush the parties to sign the documents, and I am not persuaded that he did.

e. Mohamed initialed every page of the separation agreement and signed his name on the final page. He signed a joint retainer for the divorce application. He signed a document titled "Waiver of Independent Legal Advice". Based on my earlier findings about Mohamed's facility in English, I am not persuaded that Mohamed could not understand what those documents were. In particular, I find it implausible that Mohamed signed documents which, respectively, prominently featured the words "SEPARATION AGREEMENT", "APPLICATION FOR DIVORCE", and "WAIVER OF INDEPENDENT LEGAL ADVICE" without noticing or understanding those phrases.

f. I am not persuaded there was an informational asymmetry between Amel and Mohamed with respect to the agreement they signed. The evidence suggests that the parties are of relatively modest means. They did not own a matrimonial home. The agreement states that the parties would retain their own property. There is no evidence to show that one party has significantly more property than the other. I have already rejected the claim that Mohamed did not know about any assets Amel owned or had interests in.

g. For the following reasons I also am not persuaded that there was a significant power imbalance between the parties:

i. While Mohamed agreed to pay higher than table child support, Amel waived any entitlement to spousal support.

ii. There is no evidence that Amel exploited any vulnerability of Mohamed, for example, that she exerted undue influence or subjected him to duress.

iii. I accept that Mohamed was tired on January 14, 2020 because he had been working. However, I am not persuaded that Mohamed was so exhausted that it impaired his judgment or his ability to understand what was happening.

iv. Mohamed testified that the parties were entering into a sham divorce. Yet, he also testified that he felt pressured by Amel leading up to and on January 14, 2020 itself. Mohamed's narrative does not make sense. There was no evident reason for the parties to rush into a sham divorce to help their daughter N. with OSAP loans she had not yet received for post-secondary studies she had not yet commenced. Amel's testimony that she did not pressure Mohamed is more credible and reliable than Mohamed's testimony that she did.

v. In his cross-examination of Amel, Mohamed's counsel suggested that she held the threat of a sexual assault complaint over Mohamed's head to get him to sign the documents. Amel denied this. Furthermore, in his own testimony Mohamed never said that he was operating out of fear of a criminal complaint. I do not find this claim plausible.

vi. I find it likely that Mohamed had his own reasons for agreeing to a divorce. I find that Mohamed both understood, and freely agreed to, the terms of the separation agreement.

[80] In conclusion I find that Mohamed has failed to prove, on a balance of probabilities, any of the conditions for setting aside an agreement under section 56(4) of the FLA.

Issue Two: Alternatively, is the separation agreement void because, after signing it, Amel and Mohamed reconciled for more than ninety days?

[81] I have already rejected Mohamed and N.'s account of the "sham divorce". I am satisfied that the parties intended to and did sign both a divorce application and a separation agreement on January 14, 2020. One of the terms of the agreement states that "If the parties attempt to reconcile, and cohabit for longer than 90 days, the agreement is void except for prior transfers and payments."

[82] Mohamed relies on the above term. He says that, after he and Amel signed the agreement, they reconciled for more than 90 days.

[83] Mohamed's principal argument is that the parties never really separated until June 2021. All of his testimony supports that thesis. By contrast, he has very little to say about a purported reconciliation after January 14, 2020. For example, Mohamed does not explain when, or why, such a reconciliation occurred.

[84] Similarly, N's testimony in support of Mohamed lacks details about the supposed reconciliation.

[85] As I will explain, Mohamed has not met his burden of proof to show that the parties did in fact reconcile and cohabit for more than ninety days.

[86] The question is whether the parties continued to live "separate and apart" following the execution of the separation agreement on January 14, 2020.

[87] In deciding whether parties were living separate and apart, the court may take account of various indicia including "relationship[s], routines, social and other habits and practices and living arrangements over time": Al-Sajee v. Tawfic, 2019 ONSC 3857, at para. 26. There are two factors to consider. First, the parties must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other. Al-Sajee, at para. 26, citing Oswell v. Oswell, [1990] 74 O.R. (2d) 15, at p. 18, aff'd , [1992] 12 O.R. (3d) 95; Greaves v. Greaves, [2004] 4 R.F.L. (6th) 1, at para. 34.

[88] In this case, I have found that the parties signed a valid divorce application. This means that the parties had already lived separate and apart for one year. The issue, then, is whether the parties' relationship underwent a significant enough change after signing the divorce application to find that, for at least ninety days, they were no longer living separate and apart. In this case, the operative period is between January 14, 2020, and June 29, 2021, which is the date on which Mohamed claims the parties separated for a final time.

[89] For the following reasons, I am not persuaded that the parties reconciled at any time between January 14, 2020, and June 29, 2021:

a. First, I am satisfied that immediately after she signed the documents, Amel travelled to Egypt for about one month. Mohamed does not dispute this – he says Amel often went to Egypt for dental work.

b. Second, Amel entered into evidence a rental agreement dated February 12, 2020 whereby she agreed to sublet an apartment located at 1042 Kennedy Road. N. suggested that the agreement was fake, but provided no corroborating evidence for her opinion. While N. and Mohamed both say that Amel never lived at 1042 Kennedy Road, I find it more likely than not that Amel did not wish to live with Mohamed. Amel renting a separate apartment upon her return from Egypt flows logically from the fact that the parties had just applied for a divorce.

c. Third, while Amel admits spending time at Mohamed's apartment located at 30 Easterbrook Avenue during the spring of 2021, I accept Amel's testimony that she did not intend to reconcile with Mohamed. Amel gave a plausible explanation for returning to the apartment: the children contracted COVID, so Amel needed to care for them in order that Mohamed could keep working. I also accept Amel's testimony that she herself caught COVID during this period, which delayed her ability to leave. There is no dispute that Mohamed spent at least part of this time in a separate storage unit. It makes sense that he would isolate from the rest of the family given that he had not contracted COVID himself and was working. I am not persuaded that any time Amel spent at the Easterbrook apartment was out of a desire on her part to reconcile.

d. The parties were legally divorced by May of 2020. Having considered both Mohamed's and Amel's testimony, I am persuaded that Amel believed that, once the parties had obtained their Canadian divorce, it would have been wrongful for them to maintain intimate relations.

e. While I do not wholly accept Amel's account of how controlling Mohamed was during their life together I am persuaded that, throughout the marriage, Amel felt stifled by what she perceived to be Mohamed's overbearing manner.

[90] Therefore, I prefer Amel's testimony that she wanted a divorce, did not wish to reconcile with Mohamed, and, therefore, did not reconcile with him for longer than ninety days after January 14, 2020.

[91] As a consequence, the separation agreement is not void.

[92] Since Mohamed has failed to establish either of his arguments about the separation agreement, the motion must be dismissed.

Costs

[93] Amel prevailed on this motion. I strongly encourage the parties to come to an agreement on costs. If they cannot, they may file submissions of no more than five pages, together with bills and offers to settle, within 45 days. There shall be no right of reply.

Order

[94] In conclusion, I make the following order:

a. The Applicant's motion to set aside or to declare void the parties' separation agreement dated January 14, 2020, is dismissed.

Mathen, J.

Released: September 09, 2025

[1] Although N. is an adult, to protect her younger sister I have initialized her name.