SUPREME COURT OF NOVA SCOTIA FAMILY DIVISION Citation: B.A.J. v. S.D. , 2015 NSSC 205 Date: 2015 07 23 Docket: 1201-67528 (SFHD-089069) Registry: Halifax Between: B.A.J. Petitioner v. S.D. Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: June 1, 2, 3, 4 and 5, 2015 in Halifax, Nova Scotia Subject: Divorce and Corollary Relief

Summary.

Summary: The parties were married in Abu Dhabi on October 2, 2011 and separated a little over a year later. During their marriage they had one child, a daughter born in August 2012. The primary issue in dispute was the parenting of their daughter. Subsequent to the parties’ separation the husband relocated to Calgary where he became engaged to be married. He and his fiancé had a child. Subsequent to the parties’ separation the wife entered into a common-law relationship. She and her partner had a child and at the time of the trial were living in Montreal, Quebec. Issues: 1.

The parenting arrangements with respect to the parties’ daughter. 2. Child support for the parties’ daughter. This issue included the calculation of the husband’s income, retroactive support and prospective support. 3. The division of assets and debts pursuant to the Matrimonial Property Act . 4. Whether the wife was entitled to enforcement of a Mahr negotiated at the time of the marriage. Result: Custody and primary care were granted to the wife. The husband left Nova Scotia for Alberta when the child was approximately 3 months of age. At the time of trial she was two years and ten months old.

While the husband had exercised some limited access to the child post-separation, the only parent with whom she could be said to have a bond was her mother. She was only just beginning to know her father. It was in the child’s best interest that she remain in the care of the wife. Specified and gradually increasing access by the husband was ordered.

Retroactive child support was ordered to be paid by the husband with a portion to be forgiven if he exercises the access specified by the Court, in order to offset the access costs. Prospective child support was ordered in the table amount based on the husband’s current income. No division of assets was ordered. The evidence of the parties was too vague for the Court to determine if there were any assets at the time of the parties’ separation and, if there were, what their values may have been. The Mahr which was a provision of the parties’ “Marriage Contract” at the time of their marriage was not enforced.

It did not meet the requirements of a marriage contract under the Matrimonial Property Act and in any event its terms were too vague. This information sheet does not form part of the Court
s judgment. Quotes must be from the judgment, not this cover sheet. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: B.A.J. v. S.D. , 2015 NSSC 205 Date: 2015 07 23 Docket: 1201-67528 (SFHD-089069) Registry: Halifax Between: B.A.J. Petitioner v. S.D. Respondent

Judge: The Honourable Justice Leslie J. Dellapinna Heard: June 1, 2, 3, 4 and 5, 2015 in Halifax, Nova Scotia Counsel: William Leahey for the Petitioner Heather McNeill, Q.C. for the Respondent By the Court: [ 1 ] The parties appeared before this Court for a five day divorce trial during the first week of June 2015. The primary issue was the parenting of their daughter, S.J., who, at the time of the trial was approximately two years and 10 months of age. [ 2 ] The parties agreed on very few facts. Ultimately the decision with respect to primary care could be determined on facts that could not be disputed.

BACKGROUND [ 3 ] The Petitioner/husband (hereafter referred to as B.A.J.) is 36 years of age. In his affidavit he said he was a “citizen of Jordan” but he came to Canada in August 2012 just before S.J.’s birth. He was previously married to a woman in the United States. That marriage lasted less than six months and ended in divorce. B.A.J. now lives in Calgary with his fiancé, L.A., and their infant son who was born in May, 2015 just a few weeks prior to the trial. B.A.J. has applied for residency status in Canada.

L.A. is sponsoring him. [ 4 ] B.A.J. is employed as an assistant pipe fitter but is in the process of obtaining a dealer’s license which would allow him to buy and sell automobiles on a wholesale basis in Alberta. [ 5 ] The Respondent/wife (hereafter referred to as S.D.) is 28 years of age. Although originally from Nova Scotia S.D. now resides in Montreal. S.J. lives with her. Also living with her is C.R. (her common-law partner) and their son, M.D., who at the time of the trial was just one month short of his second birthday.

Although not married to anyone previous to B.A.J., S.D. does have an older child, V.B., a daughter who was born in 2006 when S.D. was 19 years old. V.B. now resides with her father. S.D. does not exercise access. [ 6 ] The parties originally got to know each other through Facebook in 2010. They met in person for the first time on August 29, 2011 and, according to S.D., were engaged by September 11, 2011. They were married in Abu Dhabi on October 2, 2011, just a little over a month after their first meeting. [ 7 ] Each accused the other of misleading them.

B.A.J. said that S.D. misled him about her education and told him that she had no children. S.D. said that B.A.J. misrepresented to her his employment background, his financial circumstances and the financial circumstances of his family. She said he also failed to mention to her that he had been previously married. [ 8 ] In December 2011 (two months after their marriage) S.D. learned that she was pregnant.

B.A.J. said in his affidavit sworn April 17, 2015 that because the parties were having a difficult time economically they mutually decided that S.D. would return to Canada and live temporarily with her parents while she obtained employment.

He said: “This would allow her to sponsor my immigration to Canada and thereby create better economic opportunities for us both.” S.D.’s version was that on the same day that she informed B.A.J. that she was pregnant he told her that she would be sent back to Canada so her family could care for her during her pregnancy. [ 9 ] Regardless of the reason, on December 25, 2011 S.D. arrived in Nova Scotia after which she moved in with her parents. B.A.J. remained living in the United Arab Emirates. [ 10 ] S.D. met C.R. in April, 2012.

She said initially they were just friends but by the summer of 2012 it was clear that S.D. and C.R.’s relationship was more than just a friendship. [ 11 ] S.D. said that during a Skype session in June 2012 she informed B.A.J. of her relationship with C.R.. She said that she did not want to continue in her marriage with B.A.J. and did not want him to come to Canada. [ 12 ] On August 3, 2012 B.A.J. arrived in Nova Scotia and took up residence in the home of S.D.’s parents.

S.D. claimed that while he lived in her parents’ home (where she too was residing) B.A.J. tried to control her “every move” and lectured her for hours on how she was a bad person and how she had mental issues. She said she tried unsuccessfully to end “this controlling relationship”. B.A.J. denied ever trying to control her. [ 13 ] On August 11, 2012 S.J. was born. [ 14 ] As with just about all their evidence, the testimony of the parties regarding precisely what happened between them after that conflicted. B.A.J. alleged that S.D. simply wanted to party (and drink) after S.J.’s birth.

S.D. claimed that B.A.J. continued to be controlling and tried to limit her ability to even leave her own room. [ 15 ] On August 20, 2012 B.A.J. returned to the United Arab Emirates to collect his “belongings” and returned to Canada approximately ten days later. In October 2012 on two different occasions B.A.J. went to Montreal to find work. On the second of those occasions he returned to find that S.D. had left with S.J. and taken up residence with C.R..

[ 16 ] In December 2012, in response to an invitation from a friend, B.A.J. moved to Calgary, Alberta and has been living in Calgary ever since. [ 17 ] In January 2013 B.A.J. met L.A.. In L.A.’s affidavit she said that they “started getting to know each other by text and by phone” and soon after made plans for their first date. She said that “[a]fter a short-time” she asked him to move in with her in her home in Calgary. They have been cohabiting since February 2013. [ 18 ] L.A. is employed although at the time of the trial she was on maternity leave. She has family in the Calgary and Cold Lake areas.

Since meeting B.A.J. she converted to Islam. They plan to be married. As stated earlier, together they now have a son. [ 19 ] On October 30, 2013 the Minister of Community Services (the Agency) filed with this Court a Notice of Child Protection Application naming S.D., C.R. and B.A.J. as Respondents. In part because B.A.J. was residing in Calgary he did not receive notice right away. S.J. and M.D. were at the time in the care of S.D. and C.R.. [ 20 ] The Agency’s Application was supported by an affidavit sworn by Ms.

Ashley Vallee, a social worker employed by the Halifax District Office of the Department of Community Services. Her affidavit, as well as other affidavits subsequently filed in the course of the child protection proceedings, were the source of many, but not all, of B.A.J.’s concerns regarding S.D. [ 21 ] The Agency’s application was triggered by an incident that occurred on September 15, 2013. In her affidavit, Ms. Vallee stated that on September 15 the Agency received information from a Constable Hodgson of the Halifax Regional Police.

That information was to the effect that S.D. had left the two children inadequately supervised while she sought out C.R. who she believed to be at a bar or restaurant in downtown Halifax. The police report stated that S.D. left then two month old M.D. in the care of a neighbor while 13 month old S.J. was left alone in S.D.’s apartment, asleep.

During the course of the police investigation S.D. was reported to have become uncooperative and belligerent with the police such that she was ultimately charged with assaulting one of the investigating officers. [ 22 ] S.D. did not admit leaving S.J. unattended although there was evidence to suggest that she did. Rather, she said she showed poor judgement in the choice of an inadequate babysitter. [ 23 ] During the course of the child protection proceedings a family support worker was assigned to S.D. and C.R. to address issues associated with parenting.

S.D. also saw a therapist at Community Mental Health and both she and C.R. received individual counselling. [ 24 ] On September 30, 2014 the protection proceedings initiated by the Agency were terminated by order of the Honourable Associate Chief Justice O’Neil. [ 25 ] S.D. and C.R. did not remain together as a couple during the entire time that the protection proceedings ran their course.

By at least April 2014 S.D. and C.R. had separated and it was after their separation and near the conclusion of the child protection proceedings that C.R. moved to Quebec City where he opened an office cleaning business. [ 26 ] S.D. visited C.R. in Quebec along with the children and she says that by the end of September they decided that they and the children would again live together. In paragraph 118 of her affidavit she said: “[C.R.] and I get along quite well now.

Yes, we have our occasional disagreements as any couple would, however we use the skills we were taught to work through them in a productive way.” [ 27 ] Since moving to Calgary B.A.J. has had some limited contact with S.J.. He tried to arrange contact by way of Skype with the assistance of S.D.’s mother in early 2013. When the child protection proceedings were ongoing he had contact with S.J. through Skype beginning in or about January, 2014.

He also had supervised access at the Agency’s offices on February 17, 2014 (one and a half hours), on February 18, 2014 (two hours) and on February 19, 2014 (one and a half hours). [ 28 ] He had unsupervised access to S.J. for approximately two hours on April 14, 2014, three to four hours on April 15, approximately five hours on April 16, approximately five and a half hours on April 17, from 4:00 p.m. on April 18 until approximately 2:30 or 3:00 p.m. on April 19, approximately three hours on April 20 and approximately five or more hours on April 21. [ 29 ] The parties disagreed on how well S.D. coped with those visits. [ 30 ] On June 9, 2014 I conducted a hearing under the Children and Family Services Act S.N.S. 1990, c.5 in response to a motion by B.A.J. for access.

B.A.J. sought an order to allow him to have a full month with S.J. in Calgary in the summer of 2014. At the conclusion of the hearing I granted an order for access that provided that B.A.J. would have access for one week in July 2014 and one week in August 2014 or alternatively two consecutive weeks in either of those two months. I specified the access but generally speaking I allowed for half days initially, progressing to overnights. That access was to take place in Halifax. [ 31 ] B.A.J. exercised access on just one day, June 10, 2014, for a few hours before he left for Alberta.

In his affidavit he said that he could not afford to rent a hotel room in Halifax as well as pay for his travel and legal costs. [ 32 ] On September 30, 2014 Associate Chief Justice O’Neil granted an Interim Consent Order negotiated by the parties. That order was pursuant to the Divorce Act R.S.C. 1985, c.3 and coincided with the termination of the child protection proceedings. The order allowed for B.A.J. to exercise access to S.J. in Quebec City where S.D. and the children were then residing. He visited with S.J. from November 13, 2014 through to November 18, 2014.

I understand that the visits did not include overnights except for the visit from November 17 to November 18 which began at 9:00 a.m. on the 17 th and ended at 9:30 a.m. on the 18 th . Again the parties disagreed on how well those visits went. JURISDICTION [ 33 ] I am satisfied that all jurisdictional issues have been properly addressed. B.A.J.’s Petition for Divorce was issued on December

5, 2013 and was served on S.D. on December 8, 2013. During a Pre-trial Conference held on December 2, 2014 counsel for both parties indicated that whereas S.D. and the children lived in Nova Scotia at the time the Petition was issued and had been residing in Nova Scotia for over a year prior to the issuance of the Divorce petition this Court had jurisdiction. Neither party sought to transfer the proceedings to any other province. THE DIVORCE [ 34 ] At the request of B.A.J. and with the consent of S.D.

I granted B.A.J.’s Petition for Divorce verbally during the course of the trial based on the period of time the parties have been living separate and apart. A Divorce Order has been issued. ISSUES [ 35 ] The following are the issues to be addressed by this decision: 1. The parenting arrangements with respect to S.J., 2. Child support for S.J., 3. The division of the parties’ assets and debts, and 4. Whether S.D. is entitled to enforcement of the Mahr. POSITIONS OF THE PARTIES [ 36 ] In his Petition for Divorce B.A.J. asked for an order for custody and access.

In his evidence he clarified that he was seeking primary care of S.J..

In paragraph 28 of his affidavit sworn April 17, 2015 he stated: “I seek primary care of my daughter not only because I believe that my spouse [L.A.] and I can offer to her a more stable, loving environment better suited to her needs but also because the facts describing the conduct of [S.D.] as a mother has convinced me that it would be a major mistake for [S.J.] to be placed with her permanently as her primary care parent.”. [ 37 ] If granted primary care he proposed that S.D. have access to S.J. which would include four weeks during the summer, alternate Christmas recesses (or half of each Christmas break), each March Break and such other times as the parties may agree upon from time to time. [ 38 ] Alternatively, if he is not granted primary care he requested the same access that he proposed for S.D.. [ 39 ] By way of her Answer S.D. requested an order for custody and primary care as well as an order for child support - including retroactive child support.

She also requested that B.A.J. continue to cover S.J. on his medical/dental plan through his employment. [ 40 ] She proposed that B.A.J. have access to S.J. including two weeks in the summer of 2015 (non-consecutive) and that any such access take place in Montreal where she is now living.

She said in her affidavit that over time, as S.J. grows older and trust between S.J. and B.A.J. builds, she would be “open to increased access” and said in paragraph 211 of her affidavit; “I believe [B.A.J.] has the potential to be a wonderful father but he needs time to get to know his daughter and for me to feel secure about him taking her for longer periods of time.” [ 41 ] S.D. also asked for an order pursuant to the Matrimonial Property Act, R.S.N.S. 1989, c. 275 for a division of assets and a money award in relation to a Mahr which she said the parties agreed upon at the time they were married.

ANALYSIS Parenting [ 42 ] The relevant legislation is found at

section 16 of the Divorce Act (supra).

Section 16 provides in part as follows: 16.

(1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage. ….

(4) The court may make an order under this

section granting custody of, or access to, any or all children of the marriage to any one or more persons.

(5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

(6) The court may make an order under this

section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(7) Without limiting the generality of subsection (6), the court may include in an order under this

section a term requiring any personwho has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty daysbefore the change or within such other period before the change as the court may specify, any person who is granted access to that childof the change, the time at which the change will be made and the new place of residence of the child.

(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage asdetermined by reference to the condition, means, needs and other circumstances of the child.

(9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct isrelevant to the ability of that person to act as a parent of a child.

(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as muchcontact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration thewillingness of the person for whom custody is sought to facilitate such contact. [43] Sub-section 16(8) makes it clear that when determining custody or access the Court is to take into consideration only the bestinterests of the child. The focus is on the child, not the interests or rights of the parents. (Gordon v. Goertz, (SCC),[1996] S.C.J.

No. 52, 2 S.C.R. 27, at paragraph 49) [44] The Supreme Court of Canada in Young v. Young, (SCC), [1993] 4 S.C.R. 3 discussed the “best interests” testand at paragraph 17 stated: “…the test is broad. Parliament has recognized that the variety of circumstances which may arise in disputes over custody and access isso diverse that predetermined rules, designed to resolve certain types of disputes in advance, may not be useful. Rather, it has been left tothe judge to decide what is in the “best interests of the child”, by reference to the “condition, means, needs and other circumstances” ofthe child.

Nevertheless, the judicial task is not one of pure discretion. By embodying the “best interests” test in legislation and by settingout general factors to be considered, Parliament has established a legal test, albeit a flexible one. Like all legal tests, it is to be appliedaccording to the evidence in the case, viewed objectively. There is no room for the judge’s personal predilections and prejudices. Thejudge’s duty is to apply the law.

He or she must not do what he or she wants to do but what he or she ought to do.” [45] With respect to the “maximum contact” clause in sub-section 16 (10) the Court said at paragraph 18: “…Section 16(10) provides that in making an order, the court shall give affect “to the principle that a child of the marriage should haveas much contact with each spouse as is consistent with the best interests of the child”. This is significant. It stands as the only specificfactor which Parliament has seen fit to single out as being something which the judge must consider.

By mentioning this factor,Parliament has expressed its opinion that contact with each parent is valuable, and that the judge should ensure that this contact ismaximized. The modifying phrase “as is consistent with the best interests of the child” means that the goal of maximum contact of eachparent with the child is not absolute. To the extent that contact conflicts with the best interests of the child, it may be restricted, but onlyto that extent.” [46] Then, at paragraph 24; “I conclude that ultimate criterion for determining limits on access to a child is the best interests of the child.

The custodial parent has no“right” to limit access. The judge must consider all factors relevant to determining what is in the child’s best interests; a factor whichmust be considered in all cases is Parliament’s view that contact with each parent is to be maximized to the extent that is compatible withthe best interests of the child.” [47] In his brief, counsel for B.A.J. quoted the Honourable Justice MacDonald of this Court in the decision P.D. v.

D.D., 2007 NSSC67 at paragraph 4; “The sole and guiding principle to follow when adjudicating custody and access disputes is to determine what is in the best interest of thechild or children involved. Several cases provide guidance to the court in applying this principle: See for instance Foley v. Foley (1993), (NS SC), 124 N.S.R. (2d) 198 (N.S.S.C); Abdo v. Abdo (1993), (NS CA), 126 N.S.R. (2d)1(N.S.C.A). Particularly useful is the comment in Dixon v. Hinsley (2001), (ON CJ), 22 R.F.L. (5th) 55 (Ont. C.J.),at p. 72: “The best interests” of the child is regarded as an all embracing concept.

It encompasses the physical, emotional, intellectual and moralwell-being of the child. The court must look not only at the child’s day to day needs but also to his or her longer term growth anddevelopment." What is in the child's best interests must be examined from the perspective of the child's need with an examination of the ability andwillingness of each parent to meet those needs. Each parent's plan for the child must be examined carefully in light of the child's needs.

Custody is not always awarded to the parent who has "cooked the most meals, driven the most miles, attended the most concerts orcheered the loudest at their achievement..." ( Gillis v. Gillis (1995), (NS SC), 145 N.S.R. (2d) 241 (N.S. S.C.) at p.259.” [48] Among the cases referred to by Justice MacDonald was Foley v. Foley in which Justice Goodfellow attempted to identify anumber of factors to be considered when determining a child’s best interests. [49] In Bourgoyne v. Kenny, 2009 NSCA 34 Bateman, J.A. referenced the Foley factors and said the following beginning at

paragraph 25: “25 The list does not purport to be exhaustive nor will all factors be relevant in every case. Each case must be decided on the evidencepresented. Nor is determining a child’s best interests simply a matter of scoring each parent on a generic list of factors. As Abella J.A., asshe then was, astutely observed in MacGyver v. Richards (1995), (ON CA), 11 R.F.L. (4th) 432 (Ont. C.A.): 27 Clearly, there is an inherent indeterminacy and elasticity to the “best interests” tests which makes it more useful as legal aspirationthan as legal analysis.

It can be no more than an informed opinion made at a moment in the life of a child about what seems likely toprove to be in that child’s best interests. Deciding what is in a child’s best interests means deciding what, objectively, appears most likelyin the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving theneeded care and attention. Because there are stages to childhood, what is in a child’s best interests may vary from child to child, fromyear to year, and possibly from month to month.

This unavoidable fluidity makes it important to attempt to minimize the prospects forstress and instability. 28 . . . the only time courts scrutinize whether parental conduct is conducive to a child’s best interests is when the parents are involved inthe kind of fractious situation that is probably, in the inevitability of its stress and pain and ambiguity, least conducive to the child’s oranyone else’s best interests. 29 Deciding what is best for a child is uniquely delicate.

The judge in a custody case is called upon to prognosticate about a child’sfuture, and to speculate about which parenting proposal will turn out to be best for a child. Judges are left to do their best with theevidence, on the understanding that deciding what is best for a child is a judgment the accuracy of which may be unknowable until laterevents prove — or disprove — its wisdom. 26 The judge must determine in which parent’s custody the children’s future will best be served on the basis of the available evidencerelevant to the children’s emotional and physical well-being.

This is a discretionary decision deserving of deference provided it is notpremised on material error of fact and is informed by the application of proper legal principles.” [50] Therefore when making a determination respecting custody or access pursuant to

section 16 of the Divorce Act, the followingguidelines would seem to apply: 1. The court shall take into consideration only the best interests of the child as determined by reference to the condition, means, needsand other circumstances of the child. 2. While factors such as those listed in Foley (supra) are helpful, that list of factors is not exhaustive and not all of those factors would berelevant in all cases and the weight to be assigned to each factor that may be relevant will vary depending on the circumstances of eachcase. 3. Each case must be decided on its own facts and the evidence presented. 4.

What is in a child’s best interest varies from child to child and may vary over time. 5. The determination of what is in a child’s best interest involves a discretionary decision on the part of a judge but that discretion mustbe exercised by applying the proper legal principles and according to the evidence presented, viewed objectively.

It often involves speculation by the judge about a child’s future and about which parenting proposal will turn out to be best for the child.i.e. the judge must determine in which parent’s custody the child’s future will be best served based on the available evidence relevant tothe child’s physical, emotional, intellectual and moral well-being. 6.

In making an order for custody or access, the court is required to give effect to the principle that the child should have as much contactwith each of his or her parents as is consistent with that child’s best interests and, for that purpose, shall take into consideration thewillingness of each parent for whom custody is sought to facilitate such contact. [51] B.A.J. gave evidence of many circumstances that caused him to be concerned for the welfare of S.J. if she was left in theprimary care of S.D..

His concerns included: • S.D.’s abuse of alcohol: S.D. has a history of alcohol abuse going back to when she was a teenager. Her abuse of alcoholcaused her parents sufficient concern that they enrolled her in a group therapy program while she was in her mid-teens. • S.D.’s tumultuous relationship with C.R. which included an altercation between S.D. and C.R. on October 7, 2012 whichresulted in C.R. being charged with assault for slapping S.D.. There were other incidents of domestic disputes between S.D. and C.R. onJanuary 5, 2013, August 24, 2013, September 11, 2013 and October 13, 2013.

It should be noted that many of those incidents appear tohave been made worse because of S.D’s alcohol consumption. • On October 28, 2012 S.D. was hospitalized as a result of an attempted suicide. She consumed medication as well asalcohol. S.D. said that it was her understanding that her medication (an antidepressant that was prescribed by her physician) whencombined with alcohol caused her to have suicidal thoughts.

It was also S.D.’s evidence that she has not been on antidepressantmedication since separating from B.A.J. and has not experienced any further suicidal thoughts. [52] In addition, B.A.J. expressed concern for S.D.’s character and his counsel submitted that she would make a poor role model forS.J.. More specifically he referred to the following: • An inclination on the part of S.D. not to be truthful. On October 7, 2012 C.R. was charged as a result of S.D.’s allegation

that he had slapped her. S.D. gave a statement to the police on that occasion (while she was intoxicated) in which she said that C.R. had in fact assaulted her. Approximately one year later, on September 26, 2013, S.D. gave another statement to the police in which she indicated that there had been no intention on the part of C.R. to assault her. S.D. did not attend C.R.’s assault trial and the charge was dismissed.

Under cross-examination S.D. admitted that she either lied to the police when she alleged an assault occurred in October 2012 or lied in her statement given on September 26, 2013. • On September 15, 2013 S.D. told the police that C.R. had cut her with a knife. C.R. was in fact talking to a police officer at the time he was alleged to have assaulted her. S.D. admitted during cross-examination that her accusation was not true. • B.A.J. accused S.D. of falsifying e-mails that were presented to the Court.

S.D. denied falsifying e-mails and in turn accused B.A.J. of falsifying other e-mails that were also put before the Court. It appeared likely that some of the e-mails that were presented to the Court had been altered but it was impossible, based on the evidence, for the Court to determine how, when and by whom the e-mails may have been changed. [ 53 ] In addition to B.A.J.’s concerns regarding S.D., he also had concerns relating to her partner, C.R..

Evidence was produced that C.R. has a number of criminal convictions including three for theft under $5,000.00 (shoplifting), six for failing to comply with a condition of an undertaking or recognizance, two for breach of probation and one for possession of illegal cigarettes. One of those offenses occurred in 2011 and the remainder occurred in 2012. [ 54 ] S.D. has her own criminal convictions. She was found guilty of assaulting a police officer as a result of the incident on September 15, 2013 and another for fraud as a result of an offence on December 3, 2013. [ 55 ] I share many of B.A.J.’s concerns.

S.D. has a history of alcohol abuse. It began before her relationship with B.A.J. and between October 2012 and December 2013 was a contributing factor in disputes that she had with C.R. and her assault on a police officer in September 2013. It appears that other than the counselling that she may have received as a teenager, she has had no ongoing treatment specifically for alcohol abuse.

While there is no evidence that alcohol is a problem for her now (or since September 2013) it is reasonable for B.A.J. to have lingering concerns. [ 56 ] S.D.’s relationship with C.R. has been peppered with disagreements, some of which caused one or the other of them to contact the police.

While C.R. was not convicted of slapping S.D. in October 2012, I find, on the balance of probabilities, he did slap her. [ 57 ] While C.R. was not asked to testify, S.D. gave evidence that as a result of the counselling that she and C.R. engaged in during the course of the child protection proceedings, she and C.R. learned how to be better parents and better partners with each other. [ 58 ] Regarding S.D.’s attempted suicide in October of 2012, it appears to have been an isolated incident. I do not believe that S.D. is suicidal.

It is, however, another example of how alcohol had been affecting her life. [ 59 ] S.D.’s criminal record is not disputed. Her assault on the police officer can be directly linked to her abuse of alcohol. She admitted to committing fraud at a Walmart Store because, she said, she needed the money. She seems to have accepted responsibility for her actions.

There is no evidence of any further criminal behaviour on her part after 2013 or by C.R. after 2012. [ 60 ] As for S.D.’s credibility, her evidence regarding her statements to the police demonstrated a willingness on her part to avoid the truth when the circumstances suited her. Also, during her cross-examination there were occasions when I found her to be evasive and non-responsive – both warning signs when assessing a witness’s credibility. [ 61 ] However, there were also occasions when I questioned B.A.J.’s credibility. He said in his affidavit that S.J. had already travelled by air when she had not.

He claimed that C.R. was a “drug runner” when there was no evidence that that was the case. He also claimed that when he left for Calgary in December 2012 he did so in part because he did not know where his daughter was. He knew full well that she was still in Halifax and most likely in the care of S.D.. [ 62 ] B.A.J. expressed concern with the number of times S.D. has changed her residence – suggesting that it was indicative of further instability on her part. I did not find the number of times S.D. changed residences subsequent to her separation from B.A.J. to be concerning.

She had acceptable reasons for each of her moves. [ 63 ] I considered the factors listed in Foley (supra) in relation to the facts and evidence of this case. A review of those factors was not determinative. [ 64 ] It was B.A.J’s submission that primary care of S.J. should be granted to him because of the poor role model S.D. would be for their daughter.

It was also his position that given her past conduct, S.D. could not be trusted to provide S.J. with the stability that a young child requires. [ 65 ] To be fair, S.D.’s criminal behaviour (the assault and fraud conviction) was limited to 2012 and 2013, with none since. Further, there was no evidence that she or C.R. have been the subject of any further child welfare investigations or proceedings since the termination of the Protection Application in September 2013.

There was also no evidence of further disharmony between S.D. and C.R. since the child protection proceedings ended. [ 66 ] On behalf of B.A.J. it was submitted that the absence of evidence that S.D.’s past behaviours are continuing does not mean that she has changed. He assumed that it is just a matter of time before she falls back to her old ways and their daughter suffers as a result. [ 67 ] I have considered all of B.A.J.’s concerns regarding S.D.’s character and conduct, particularly since they met in 2011.

I have tried to refer to most of his concerns in some detail in this decision primarily so that B.A.J. can be assured that his concerns have been taken into account. However, the one factor that is most relevant and which carries the most weight, in my view, is the relationship S.J. has with her two parents. The reality is that since December of 2012 B.A.J. has had virtually no relationship with the child. It cannot be said that there is a bond between them. He has had limited contact with S.J. since leaving Nova Scotia in December 2012. He is all but a

stranger to her. [ 68 ] In paragraph 42 of B.A.J.’s affidavit sworn April 17, 2015 he said that by December of 2012 it was clear that his relationship with S.D. was not working. He also said that by then he realized that S.D. “was incapable of raising [S.J.]” and he decided that he “would fight for her custody”. However, instead of staying in Nova Scotia and pursuing custody, B.A.J. moved to Calgary. At that time he had no connection to Calgary other than a friend in that province who invited him to come to Alberta. He had no job waiting for him.

While he did go to Legal Aid in Calgary soon after his arrival in Alberta, he ultimately learned that any legal proceeding that involved custody would most likely have to take place in Nova Scotia and in particular Halifax. But B.A.J. did not return to Halifax. [ 69 ] Whatever B.A.J. might be able to say about S.D., she never left S.J.. S.J. has been in her care since birth.

Even after the child protection proceedings were initiated, S.J. remained in her care. [ 70 ] If S.J. has a bond with either of her parents it is with her mother. [ 71 ] As compelling as B.A.J.’s evidence may be, it will take stronger evidence than that to convince the Court that it would be in S.J.’s best interests to take her from the only parent she knows and from the only sibling she knows (M.D.) and place her in the primary care of a person with whom she has no attachment and minimal familiarity.

To be removed from the care of her mother at this stage in her life would presumably cause her considerable trauma. [ 72 ] The Court is not blind to S.D.’s behaviour in 2012 and 2013 – particularly the incident of September 15, 2013 and her actions which led to her two convictions. However, at no time did S.D. abandon S.J.. Furthermore, following the commencement of the child protection proceedings, S.D. engaged in the services asked of her by the Agency to the satisfaction of the Agency and the Court.

There is no evidence that at this time S.J. is in any way suffering while in the care of her mother or that she is at risk of any harm. [ 73 ] Had B.A.J. stayed in Nova Scotia and maintained a relationship with his daughter and had S.D.’s conduct following the termination of the child welfare proceedings continued on the same path as it had prior to December 2013, the result of this decision may have been different.

But instead B.A.J. put his own interests before that of his daughter by moving to Calgary. [ 74 ] It should also be noted that among B.A.J.’s concerns was the stability of S.D.’s relationship with C.R.. B.A.J.’s own marital history is one of a failed marriage to a citizen of the United States of America which lasted between four and six months (his estimation) and his marriage to S.D. which lasted approximately one year during which they cohabited approximately only seven months. He should know as well as anyone that when it comes to domestic relationships there are no guarantees.

Further, once he obtained employment in Alberta beginning in May 2013 he did not provide financial support for his daughter. Instead, he waited until May, 2014 before he started paying any child support; the month prior to his appearance before this Court for the hearing of his motion for access. [ 75 ] In conclusion, I find, after considering all of the evidence that has been presented, it is in S.J.’s best interests that she remain in the primary care of her mother.

I find too that it would be in S.J.’s best interests to foster a relationship between her and her father so that she gets to know him better and so that he can have a meaningful role in her future. With that in mind B.A.J. will have gradually increasing parenting time with SJ. [ 76 ] I therefore order the following: 1. Because of the lack of a working relationship between the parties, their mistrust of each other and their inability to communicate constructively, S.D. will have custody of S.J. as well as primary care. 2.

S.D. will not make any major developmental decision regarding S.J. which may affect S.J.’s education, health, medical care or her relationship with B.A.J. without first consulting with B.A.J. and considering in good faith his input. S.D. and B.A.J. will make reasonable efforts to reach an agreement on such major developmental decisions within a reasonable period of time but, failing an agreement, S.D. will have the final say. S.D. has to understand that if she abuses this privilege this provision could potentially be varied in the future. 3.

Both parties will be entitled to receive information relating to S.J. such as school progress reports, medical reports, information regarding S.J.’s recreational activities and the like and both will be entitled to attend any functions and meetings relating to S.J. that parents are normally entitled to attend such as school related events, medical and dental appointments, recreational activities, concerts and the like. 4.

Because of the distance between B.A.J. and S.J.’s service providers, the Court’s order will also include a provision that places an obligation on S.D. to share with B.A.J. any information she may receive concerning S.J.’s education, health, recreational activities and the like. This obligation on S.D. does not in any way limit B.A.J.’s right to secure such information directly from the service provider if he is able to do so. 5. Neither party will relocate from their current residence without first giving to the other party at least 60 days advance written notice of their intention to do so.

I’ve made this obligation mutual because I anticipate that in the future S.J. will be spending more time with her father than is currently the case and any change of residence of S.J.’s parents will affect her. The advance notice requirement gives both parties an opportunity to assess whether the relocation impacts on S.J.’s relationship and time spent with either of her parents and, if so, an opportunity to discuss how that impact should be addressed. 6.

Both of the parties will keep the other informed of any changes to his or her home address, home phone number, cell phone number, work address and any other means of contact such as e-mail addresses and the like. 7. B.A.J. will have parenting time with S.J. as follows: (

I) In 2015 B.A.J. will have parenting time with S.J. on two separate occasions at times to be agreed upon by the parties. If the parties are

unable to agree one such occasion will be in the month of August and one such occasion will be in the month of September. Each of those occasions will be for a period of up to five days and those two occasions will not run consecutively unless both parties agree. Such parenting time will take place in Montreal, Quebec unless the parties agree on another location. The following conditions will apply to such parenting time: a. For the first two days B.A.J. will have parenting time for half days either from 9:30 a.m. to 1:30 p.m. or from 1:30 p.m. to 5:30 p.m.. b.

On the third day B.A.J. will have parenting time from 9:00 a.m. to 5:00 p.m.. c. For the remaining two days B.A.J. may exercise parenting time from 9:30 a.m. on day four until 5:30 p.m. on day five. (II) In 2016, provided B.A.J. exercised the parenting time allowed in 2015, B.A.J. will have parenting time with S.J. for two periods of one week each, which two weeks will not be consecutive unless both parties agree. Such parenting time may take place in his city of residence which at the present time is Calgary.

B.A.J. will be responsible for the financial cost of such access and he will accompany the child from Montreal to Calgary and from Calgary back to Montreal and he will be responsible for her care and supervision during his parenting time. Such parenting time will be decided by B.A.J. but will not conflict with S.J.’s birthday in August or December 24 and 25. (III) In 2017, provided B.A.J. exercised the parenting time in 2015 and 2016, B.A.J. will have parenting time with S.J. for a minimum of four weeks with no more than two weeks at a time running consecutively unless the parties agree otherwise.

Therefore, B.A.J. could have two blocks of two weeks each. Such parenting time will not conflict with December 24 or December 25 unless the parties agree otherwise and will not interfere with S.J.’s attendance at school (if she is attending school by that time).

This parenting time may also take place in B.A.J.’s home province. (IV) In 2018 and each year thereafter unless varied by a Court order or a written agreement between the parties, and provided B.A.J. exercised the parenting time allowed in 2015, 2016 and 2017, B.A.J. will have parenting time with S.J. for a minimum of four weeks each summer (which weeks may be consecutive) as well as seven days during S.J.’s Spring Break from school. This parenting time may also be in B.A.J.’s home province. (

V) If B.A.J. arranges his

schedule such that he is able to exercise additional parenting time with S.J. in Montreal, then, beginning in 2016, B.A.J. may have additional parenting time with S.J. with such additional times to be agreed upon by the parties. (VI) B.A.J. may have such other additional parenting time with S.J. as the parties may agree upon from time to time. 8. In addition to the foregoing, B.A.J. will have Skype contact with S.J. with the assistance of S.D. each Sunday and Wednesday at 3:00 p.m., Calgary time. Such Skype access will be for a period of approximately 20 to 30 minutes.

Any “missed” Skype time will be replaced with alternate Skype contact within 30 days following the missed Skype contact. 9. S.D. may also have Skype contact with S.J. when S.J. is in the care of B.A.J. in Calgary. Such contact will not exceed two occasions per week (unless the parties agree otherwise) and each session will be for a reasonable period of time, not to be in excess of 30 minutes. [ 77 ] B.A.J.’s relationship with his daughter depends in large part not just on S.D.’s cooperation (which should be forthcoming) but also on his consistency.

If he fails to exercise parenting time when it is permitted he runs the risk of his relationship with S.J. diminishing. That is not something that he would want and that is not likely to be in S.J.’s best interests. If B.A.J. exercises all of the parenting time permitted by this decision with consistency, and assuming S.J.’s familiarity and comfort level with him grows, it is expected that his parenting time with her will also grow.

While it is impossible to predict the future, the parties could reasonably expect to expand upon the specified parenting time provided for by this decision beginning around the time that S.J. attains the age of five or six years. [ 78 ] Whenever discussing parenting time, the parties should also be mindful of the desirability of maintaining a relationship between S.J. and M.D. as well as creating such a relationship between S.J. and her younger brother. [ 79 ] Hopefully the parties will be able to agree to changes to this parenting arrangement in the future but failing an agreement a Court of competent jurisdiction may be willing to vary this order if there is evidence of material changes in the circumstances of S.J..

Child Support [ 80 ] S.D. asked for child support pursuant to the Federal Child Support Guidelines and more particularly pursuant to the Federal Child Support Tables . The legislative authority for a child support order is found in

section 15.1 of the Divorce Act (supra). [ 81 ] S.D. requested child support prospectively in the table amount and she also asked for an order having retroactive effect to address what she considered to be the insufficient amount of support paid by B.A.J. for S.J. since the parties separated. I intend to address the issue of retroactive child support first. [ 82 ] The parties’ marriage broke down in October 2012. In December 2012 B.A.J. moved to Calgary. He had no employment income. He applied for and received income assistance.

After receiving his work permit he was able to find employment as a construction safety officer at the end of May 2013. Before then his income was sufficiently low that he could not have afforded to pay child support. His 2013 Notice of Assessment showed that from January to May 2013 he received total income assistance of $2,508.00. [ 83 ] As a construction safety officer his income increased and for the remainder of the year he earned employment income of $36,472.00.

The Court should look at his annual rate of income for the period June to December inclusive “using the sources of income set out under the heading “Total Income” in the T1 General form issued by the Canada Revenue Agency”. (See

Section 16 of the Guidelines ). That figure is then to be adjusted in accordance with

Schedule III if applicable. The proper calculation of the amount of monthly support that B.A.J. could be required to pay in 2013 would be as follows:

January to May 2014 incl. $2,508.00 ÷ 5 months = $501.60 $501.60 X 12 months = $6,019.20 Monthly child support = $ 0 June to December 2014 $36,472.00 ÷ 7 = $5,210.28 $5,210.28 X 12 months = $62,523.36 Monthly child support = $524.00 [ 84 ] His potential total child support obligation in 2013 would therefore be $3,668.00 ($524.00 x 7 months). [ 85 ] In 2014 B.A.J.’s income rose to $74,101.78 which, using the Alberta table, would require a monthly child support figure of $633.00 per month. [ 86 ] B.A.J. reported the same level of income in 2015 as he had in 2014. [ 87 ] B.A.J. began paying child support at the end of May 2014 in the sum of $305.00 per month.

He increased that support to $640.00 as of the 1 st of June 2015.

Based on my calculations the short-fall of child support (if he was required to pay the full table amount from the date of separation to date and assuming he paid $640.00 on July 1, 2015) would be $10,450.00 calculated as follows: Date Annualized Income Monthly support due Total support due Total support paid Shortfall June – Dec ‘13 $62,523.36 $524.00 $3,668.00 $0 $3,668.00 2014 74,101.78 633.00 7,596.00 2,440.00 5,156.00 Jan. – July ‘15 74,101.78 633.00 4,431.00 2,805.00 1,626.00 TOTAL SHORTFALL $10,450.00 [ 88 ] The Court has the jurisdiction to order support on a retroactive basis (see D.B.S. v.

S.R.G. , 2006 SCC 37 ). Whether retroactive support is ordered and, if so, in what amount, involves some discretion on the part of the Court. The Supreme Court in D.B.S. (supra) provided a number of factors that are to be considered when exercising that discretion. Those factors are: 1. The reason for the Applicant’s delay in seeking child support; 2. The conduct of the payor parent; 3. The past and present circumstances of the child, including the child’s needs at the time the support should have been paid; and 4.

Whether the retroactive award might entail hardship on the payor. [ 89 ] No reason was given by S.D. for why she did not seek support earlier than she did. It is possible that her efforts were concentrated on addressing the Agency’s concerns and the legal proceedings that followed the filing of the Agency’s protection application. [ 90 ] The evidence was conflicting as to when B.A.J. received S.D.’s first request for child support by way of an e-mail.

Regardless of the date B.A.J. received effective notice of S.D.’s request for child support, it seems to me that he should have been aware and probably was aware of his obligation to pay support for his daughter once he had the means to do so.

It seems somewhat disingenuous of B.A.J. to claim so much concern for the welfare of his daughter and yet not meet his own obligations to her as a parent by either providing for her physical care or at the very least by assisting with her financial needs. [ 91 ] S.J. was in need of his financial assistance since the day he left Nova Scotia and for much of that time he was in a position to provide that help. [ 92 ] I find that this is an appropriate case to award child support on a retroactive basis. [ 93 ] The fourth and final factor for the Court to consider is whether a retroactive award would entail hardship by the payor.

I do not believe that a retroactive award of child support by its own would cause hardship to B.A.J.. However, I have already concluded that it would be in S.J.’s best interest that a relationship be developed between her and her father and for that to happen B.A.J. will incur access costs and, in particular, airfare and hotel costs. If the full amount of retroactive support is to be paid, B.A.J.’s ability to develop that relationship may be compromised. Therefore, with S.J.’s best interests being the primary consideration, I order the following: 1.

B.A.J. will pay to S.D. child support on a retroactive basis for the period June 2013 to and including July 2015 in the sum of $10,450.00. 2. Of the total retroactive amount owing, $5,000.00 will be paid by B.A.J. to S.D. no later than June 1, 2016. 3. If B.A.J. exercises the parenting time as allowed by this decision in the years 2015, 2016 and 2017 the remaining retroactive child support of $5,450.00 will be forgiven. Between now and December 31, 2017 no efforts will be made to collect the remaining $5,450.00. 4.

If B.A.J. does not exercise the parenting time as allowed by this decision in the years 2015, 2016 and 2017 or such other parenting time as the parties may agree to in writing – clearly stating that it is in lieu of the parenting time as specified by this decision – then the

remaining sum of $5,450.00 will be paid in full to S.D. no later than December 31, 2017 and if he does not, enforcement procedures can then be initiated. [ 94 ] As for prospective child support, based on an annual income of $74,101.78 B.A.J. will pay to S.D. child support in the sum of $633.00 per month which sum will be payable on the first day of each month beginning on the 1 st day of August, 2015 and continuing on the 1 st day of each and every month thereafter until otherwise ordered. [ 95 ] The Corollary Relief Order will contain the usual provisions requiring such support to be paid through the offices of the Director of Maintenance Enforcement and the usual clauses requiring B.A.J. to provide to S.D. a true copy of his income tax return together with all income information slips and schedules as well as his Notice of Assessment or Re-Assessment received from Canada Revenue Agency each year no later than June 1 of each year beginning on June 1, 2016. [ 96 ] In addition to the above B.A.J. will maintain whatever medical and dental benefits he has through his employment (or replacement employment in the future) for the benefit of S.J..

Further, if his plans permit it, S.D. will be given her own means of accessing the plan for the benefit of their daughter so that she may receive reimbursement directly from B.A.J.’s insurers rather than having to seek reimbursement from B.A.J.. [ 97 ] I make no order pursuant to

section 7 of the Guidelines . At the present time S.D. does not have any expenses as contemplated by

section 7. Should that circumstance change and if the parties are unable to agree on the sharing of such expenses, S.D. may apply to vary this order to have such expenses added. Division of Assets and Debts [ 98 ] In her Answer S.D. sought a division of assets and debts. [ 99 ] The applicable legislation is the Matrimonial Property Act (supra) and in particular ss. 4(1) , 12(1) and 13 . [ 100 ] In her affidavit S.D. said the following: “245. I had my own apartment and furniture prior to moving in with [B.A.J.].

However, we purchased new furniture during our marriage, all of which was retained by [B.A.J.] upon separation. I am seeking Cdn $6,000 as a small portion of the value of the furniture, appliances and household items that [B.A.J.] retained after separation. We had bought three sofas each worth 15,000 DHS each (sic), along with all the other expensive furniture in the apartment. 246. I acquired a considerable amount of high-end clothing and jewelry while living in the UAE. [B.A.J.] destroyed or gave away these belongings when I informed him that our relationship was ending.

He had informed me via email that he had thrown away or donated my belongings when I asked him to send them to me. The combined value of the clothing and jewelry is estimated at Cdn $5,000. I am seeking full reimbursement for these items. I provide a low value estimate as I take into consideration the fact they were used items.” [ 101 ] In response, B.A.J., in his rebuttal affidavit said the following: “132. Paragraph 245 contains more false assertions with regard to furniture. Attached to this my Affidavit and marked Exhibit “L” is an inventory of the furniture that I had in 2011 at the time of our wedding.

This is the only furniture that I retained. [S.D.] has no claim on it whatsoever. With respect to her claim in paragraph 245 that she had her own apartment and furniture prior to moving in with me, this is also false. She was actually living with her ex-boyfriend and had no money to get her own place. I offered to let her stay at my fully furnished apartment. I was currently (sic) renting it to a couple but asked them to move out so that [S.D.] could live there. I paid for [S.D.] to stay in a hotel for ten days while they made other arrangements and moved out.

All of the furniture and belongings [S.D.] is claiming she helped pay for where all purchased by me before we even met. 133. With respect to paragraph 246, I paid to have all of her belongings sent to her. There are no remaining items of hers at my Calgary address and the additional items she accidentally received were items [L.A.] had put into the garage meant for donation. I sent these items in error but she did in fact receive all of her belongings. I have never destroyed or withheld any of her belongings.” [ 102 ] Cross-examination of the parties did little to clarify their conflicting evidence.

In S.D.’s Statement of Property she said that B.A.J. had furniture in his possession which she valued at over $7,000.00 as well as a motor vehicle of unknown value. The only asset of her own that she listed was a Bank of Montreal savings account with an “unknown” balance. [ 103 ] B.A.J.’s Statement of Property indicated that he had furniture which he valued at $500.00 and a bank account with a balance of $45.00. [ 104 ] The evidence of the parties’ assets as of the date of their separation is unreliable. No independent evidence of any kind was provided such as appraisals, invoices or photographs.

I am unclear as to who received what by way of assets once the parties separated but if there were any assets they were likely items of furniture and of minimal value. I find that it is more likely than not that B.A.J. received furniture items of greater value than S.D. but most if not all of those furniture items had been acquired by B.A.J. prior to the parties’ marriage. Given the brevity of their marriage, I would have been inclined to divide those furniture items unequally (in B.A.J.’s favour) in any event (see sections 13 (

d) and (

e) of the Matrimonial Property Act (supra)). [ 105 ] Given the inadequacy of the evidence presented I decline to order any division of assets but do order that each party will retain the assets currently in his or her possession and each will be responsible for any debts currently in his or her name. It is my understanding that there are no joint debts. Is S.D. Entitled to Enforcement of the Mahr? [ 106 ] In S.D.’s affidavit sworn May 28, 2015 she gave evidence that the parties were married on October 2, 2011 in an Abu Dhabi

courthouse. A certified copy of the parties’ marriage certificate or perhaps more accurately, marriage contract, was provided to the Court. It appears to be written entirely in Arabic. Also provided was an English translation. [ 107 ] The English translation has the heading “Marriage Contract”. It then proceeds to name B.A.J. and S.D. and their nationalities (he Jordanian and she Canadian) and their religions (both Islam). It refers to the parties’ years of birth and their passport numbers.

It also refers to a Dowry which I understand is the closest English translation for the word Mahr (which in other cases has been spelled Maher and Mehr). It refers to an instant Dowry of DHS.2000.00 (and indicates it was received by S.D.) and a deferred Dowry of DHS.48,000.00 which “will be paid at the nearest due date”. [ 108 ] The translation refers to witnesses, the date of the Contract (02/10/2011), the place of the marriage and the Officiant.

The original “Marriage Contract” does not appear to have been signed by either of the parties. [ 109 ] In S.D.’s affidavit she described the parties’ marriage and how, after she read aloud some phrases from the Quran, she was pronounced a Muslim. She referred to the “Marriage Contract” and how, because it was in Arabic, she was unable to read it. However, she said a court clerk explained the “Contract” to her. She gave evidence of her understanding of what a Mahr is and how the amount of the Mahr was negotiated. [ 110 ] In her counsel’s brief there was a description of a Mahr.

There it read: “ Mahr is a Muslim tradition in which an agreement is entered into prior to or concurrently with the marriage concerning a sum of money that a groom promises to pay his bride in the event of the breakdown of the marriage or death of the husband. It provides financial independence and security to a wife in the event of her husband’s death, or a separation. It recognizes that women are often more financially vulnerable than men in many Muslim societies, particularly after a divorce.

This accorded broadly with [S.D.’s] understanding of the purpose of the mahr at the time the parties’ Marriage Contract was executed (Affidavit of [S.D.], at para. 24). [ 111 ] Neither B.A.J. or S.D. were qualified to give what would amount to expert evidence with respect to a Mahr. Nor, with respect, was S.D.’s counsel. Unfortunately, excluding the evidence of the parties, there was no evidence to explain to the Court what a Mahr is. In Kaddoura v. Hammoud , [1998] O.J.

No. 5054, 44 R.F.L. (4 th ) 228 Justice Rutherford of the Ontario Court of Justice, after hearing expert evidence described a Mahr as follows: “13”Mahr” is a gift or contribution made by the husband-to-be to his wife-to-be, for her exclusive property. It is not, however, a gift in the sense that a gift is given by the grace of the giver, but in fact “Mahr” is obligatory and the wife-to-be receives it as of right. Mahr has its roots in the Holy Qur’an and it is an essential to Muslim marriage. Without it, there is no Muslim marriage. Dr.

Jamal Mannaa Alisolaiman, Imam of the Mosque in Ottawa and a scholar in Islamic studies testified that the Mahr was an obligatory gift, which was a mark of the husband-to-be’s commitment to the marriage. He described how in many marriages, a portion of the Mahr is paid promptly, that is, before the marriage is consummated, and a portion, often the larger portion, is deferred to be paid on demand by the wife, or upon divorce or upon the death of the husband. In the case of such deferred payment, the portion deferred had the effect of helping look after a wife after divorce or after her husband’s death.

He also advised that although a wife could forbear or waive payment of the Mahr, she was entitled to it as a matter of Islamic religious principle. 14 As well, Mufti Abdul Majitkhan, the Director of the Institute of Islamic Learning in Ajax, Ontario, also an Imam and scholar of Islam, expounded in his testimony on the nature of Mahr. Both experts said that while Mahr was in the nature of a right held by a Muslim wife, she could, by certain conduct or in certain circumstances, disentitle herself to it. While Dr.

Gamal was less emphatic on the point than was Mufti Khan, the latter advised that any dispute over the obligation of the Mahr was a matter to be determined by religious authorities. In any event, both agreed that any such dispute was to be resolved according to Islamic religious principles.

Mufti Khan said he has dealt with such disputes in many Muslim communities in North America. 15 As it is essential to a Muslim marriage, there must be an agreement as to Mahr….” [ 112 ] According to S.D.’s evidence, prior to their marriage, she and B.A.J. negotiated that he would give her a “instant” Mahr in the sum of DHS.2000.00 (roughly equivalent to $680.00 Cdn. at this time) and a further deferred Mahr in the sum of DHS.48,000.00 (roughly equivalent to $16,200.00 Cdn. at this time) payable at some time in the future.

It was the evidence of the parties that the instant portion of the Mahr was considered paid by B.A.J. giving to S.D. a ring.

When the marriage broke down S.D. gave the ring back to B.A.J. (according to him) or was taken by B.A.J. (according to S.D.). [ 113 ] Counsel for S.D. submitted that the Mahr is enforceable just like any other Marriage Contract as defined by the Matrimonial Property Act (supra). [ 114 ] Sections 23 and 24 or the Matrimonial Property Act provide as follows: “23 A man and a woman may enter into an agreement, to be known as a marriage contract, before their marriage or during their marriage while they are cohabiting, in which they agree on their respective rights and obligations (

a) under the marriage; (

b) upon separation; (

c) upon the annulment or dissolution of the marriage; (

d) upon the death of either spouse;

24 A marriage contract or a separation agreement is void unless it is in writing and is signed by the parties and witnessed.” [ 115 ] Counsel for S.D. argued that the “Marriage Contract” that has been presented in proof of the Mahr met the requirements of the Matrimonial Property Act .

It named the parties, it named witnesses and it seemed to indicate that while S.D. herself did not sign the “Marriage Contract”, her “attorney” i.e. the judge of the Abu Dhabi court of first instance who was the officiant at the issuance of the “Marriage Contract”, effectively signed as her proxy. [ 116 ] I accept that a Mahr is not rendered unenforceable simply because it is a religious “Marriage Contract”. See Marcovitz v. Bruker , 2007 SCC 54 .

In Marcovitz the parties’ negotiated and both signed a “Consent to Corollary Relief” which included provisions that said that the parties agreed to appear before Rabbinical authorities to obtain a Get immediately upon the court granting a Decree Nisi. After the Decree Nisi was granted Ms. Bruker repeatedly asked her former husband to cooperate so that she could obtain a Get which, as is explained in the decision, is a Jewish Divorce which only a husband can request. A wife could not obtain a Get unless her husband agreed to give it. However, as noted above, Mr.

Marcovitz had agreed to a “Consent to Corollary Relief” to cooperate in order to provide his former wife with a Get . [ 117 ] Mr. Marcovitz opposed the enforcement of that provision of their “Consent to Corollary Relief” on the basis that it violated his freedom of religion. Ultimately the Supreme Court ruled in favour of Ms. Bruker and Abella J., for the majority, wrote at paragraph 47: “The fact that Paragraph 12 of the Consent had religious elements does not thereby immunize it from judicial scrutiny.

We are not dealing with judicial review of doctrinal religious principles, such as whether a particular Get is valid. Nor are we required to speculate on what the rabbinical court would do. The promise by Mr. Marcovitz to remove the religious barriers to remarriage by providing a Get was negotiated between two consenting adults, each represented by counsel, as part of a voluntary exchange of commitments intended to have legally enforceable consequences.

This puts the obligation appropriately under a judicial microscope.” And further at paragraph 51: “I do not see the religious aspect of the obligation in Paragraph 12 of the Consent as a barrier to its civil validity. It is true that a party cannot be compelled to execute a moral duty, but there is nothing in the Civil Code [of Quebec] preventing someone from transforming his or her moral obligations into legally valid and binding ones. Giving money to charity, for example, could be characterized as a moral and, therefore, legally unenforceable obligation.

But if an individual enters into a contract with a particular charity agreeing to make a donation, the obligation may well become a valid and binding one if it complies with the requirements of a contract under the C.C.Q. . If it does, it is transformed from a moral obligation to a civil one enforceable by the courts.” [ 118 ] I am dismissing S.D.’s request for enforcement of the Mahr. The “Marriage Contract” in which the parties entered in October 2011 does not meet the requirements of a marriage contract as described by

section 24 of the Matrimonial Property Act .

Section 24 makes it clear that a marriage contract is void unless it is in writing and is signed by the parties and witnessed. While the “Marriage Contract” in which the parties entered in 2011 is in writing, it was not signed by B.A.J.. Because he did not sign it it is not necessary for me to decide whether it was sufficient for S.D. to have signed it by way of her “attorney”. The fact that B.A.J. did not sign the “Marriage Contract” means that the document, however else it may be interpreted, does not meet the definition of a marriage contract under the Matrimonial Property Act (supra).

Further, it also does not meet the basic requirements of an enforceable contract. It therefore does not fall under the “judicial microscope” referred to in Marcovitz . [ 119 ] There is also a question as to whether the “Marriage Contract” could have been enforced in any event due to the vagueness of its terms.

What, for example, does the “Marriage Contract” mean where it says the deferred dowry “will be paid at the nearest due date”? [ 120 ] I direct counsel for the Petitioner to prepare the Corollary Relief Order and have a draft of it forwarded to counsel for the Respondent within three weeks of the release of this decision. L. Dellapinna, J.