Al-Khouri v. Al-Khouri, 2011 NSSC 122

SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Al-Khouri v. Al-Khouri, 2011 NSSC 122 Date: 2011/03/25 Docket: 1206-6002 Registry: Sydney Between: Mahfouz Al-Khouri Petitioner v. Rajaa Al-Khouri Respondent LIBRARY HEADING Judge: The Honourable Justice Theresa M. Forgeron Heard: January 19, 2011 Sydney, Nova Scotia Last Submissions: February 10, 2011 Written Decision: March 25, 2011 Subject: Motion by the Petitioner to severe the divorce from the corollary relief trial. Issue: Whether the divorce hearing should be severed from the hearing for corollary relief.

Result: Motion for severance denied due to financial ramifications for the Respondent. There was no substantial delay and little prejudice to Mr. Al-Khouri because of his current living arrangements.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Al-Khouri v. Al-Khouri, 2011 NSSC 122 Date: 2011/03/25 Docket: 1206-6002 Registry: Sydney Between: Mahfouz Al-Khouri Petitioner v. Rajaa Al-Khouri Respondent Judge: The Honourable Justice Theresa M. Forgeron Heard: January 19, 2011, in Sydney, Nova Scotia Last Submission : February 10, 2011 Written Decision: March 25, 2011 Counsel: Julia Cornish, Q.C., and William Burchell for the

Counsel: Julia Cornish, Q.C., and William Burchell for the Applicant LeeAnne MacLeod-Archer, for the Respondent By the Court: I. Introduction [ 1 ] After approximately 35 years of marriage, Mahfouz and Rajaa Al-Khouri separated. The separation was, and is acrimonious. Mr. Al-Khouri wants an immediate divorce so he can marry another woman. Ms. Al-Khouri vehemently disagrees. II. Issue [ 2 ] The only issue before the court is whether the divorce hearing should be severed from the hearing for corollary relief. III. Analysis [ 3 ] Position of Mr. Al-Khouri [ 4 ] Mr. Al-Khouri seeks a severance and the granting of a divorce judgement for the following reasons:

a) Mr. Al-Khouri wants to marry his common law partner, who is a Syrian national. His fiancée has a student visa which allows her to remain in Canada, while taking courses at Cape Breton University.

b) Mr. Al-Khouri never learned to cook or clean. Mr. Al-Khouri wants a wife to attend to these tasks, and to serve him.

c) In his affidavit, Mr. Al-Khouri raised religious and cultural reasons in support of an immediate divorce.

d) Mr. Al-Khouri wants a wife to care for him should an illness or medical emergency occur. Mr. Al-Khouri noted past health issues.

e) Mr. Al-Khouri is concerned that Ms. Al-Khouri is inappropriately delaying the matter. He states that Ms. Al-Khouri cancelled the settlement conference, and also requested the adjournment of the trial in 2010. [ 5 ] On cross examination, Mr. Al-Khouri denied that dowery played any role in his decision to seek a divorce and marry. [ 6 ] Position of Ms. Al-Khouri

[7] Ms. Al-Khouri contests the severance for the following reasons:

a) Ms. Al-Khouri is concerned that Mr. Al-Khouri will delay the trial if the divorce is granted. She states that Mr. Al-Khouri willhave less incentive to participate and complete the corollary relief hearing if he is already divorced.

b) Ms. Al-Khouri raised jurisdictional issues. Mr. Al-Khouri commenced divorce proceedings in both Syria and Canada. The Syrianproceedings were commenced before the divorce proceedings in Nova Scotia. Mr. Al-Khouri has not discontinued the proceedings inSyria.

c) Ms. Al-Khouri states that a severance will negatively impact on her financial security. Mr. Al-Khouri has no life insurance. If aseverance is granted, there could be two wives, albeit one a former spouse, competing for financial aid should Mr. Al-Khouri die beforethe corollary relief issues are determined. [8] Law [9] Rule 59.48(1) allows a judge to grant a divorce if she is satisfied that the ground for divorce, and other necessary facts, areproved. Rule 59.48(3) states that unless a judge directs otherwise, a corollary relief order must issue immediately after the divorceorder.

Rule 59.48(3) therefore provides the court with the discretionary authority to grant a severance. [10] In MacIsaac v. MacIsaac (1996) 1996 NSCA 128 , 150 N.S.R. (2d) 321 (C.A.), Bateman, J.A. discussed the meaningof judicial discretion. She noted that discretion is not unfettered, nor arbitrary. Rather, judicial discretion must be exercised withinacceptable limits according to rules of reason and justice. [11] The leading Nova Scotia case on the granting of severance is Newman v. Seaman (1994) (NS SC), 140N.S.R. (2d) 251 (S.C.). Gruchy, J. stated that a severance should only be granted if there is a valid reason.

He also expressed concernabout the “unnecessary proliferation of hearings” should severances be granted “as a matter of course” (para. 9). [12] In Newman v. Seaman, supra, Justice Gruchy granted the severance in a case that involved a one year marriage, and a lengthyseparation. In granting the divorce, Gruchy, J., held there was no prejudice to the wife in the factual circumstances presented. [13] In Spiring v. Spiring

(2004) M.B.Q.B. 258, Allen, J. held that the court must balance competing factors to determine ifseverance is an appropriate remedy. Allen, J. summarized the case law relevant to this determination. Cases in which the severancerequest was denied include the following, as found at para 21: 21 Counsel cited a variety of cases where severance was or was not granted. From these cases a number of principles relevant to thismotion can be distilled.

Beginning with cases where the request was denied: · the issues were simple and the party wanting severance could easily get to trial within a reasonable time: Desjardins, supra; · severing the divorce meant corollary relief issues might not be dealt with reasonably: Desjardins, supra; Zimmerman v. Zimmerman(1992), (AB KB), 41 R.F.L. (3d) 291 (Alta. Q.B.); · there was possible prejudice to both parties regarding their marital property: Potter v. Potter (1999), 1999 ABCA 139 , 48R.F.L. (4th) 450 (Alta. C.A.);

· the interaction between severance and

summary judgment is problematic: Friesen v. Friesen (1996), (MB CA), 113Man. R. (2d) 192 (Man. C.A.); [14] Cases in which the severance request was granted are as follows, and as found in para 22: 22 Secondly, where the request was granted: · as the outstanding property issues were complicated and would take some time to resolve, there was no reason to block the petitioner'sfuture plans: Pow v.

Pow, supra; · spousal support and property issues were outstanding and may well take years to finalize, so to continue the actions as joined wouldunduly complicate matters: Kornberg, supra; · the access issues were going to be protracted and there would be no prejudice to the father to sever and proceed with all other issues:Janz v. Harris (1993), (MB CA), 88 Man. R. (2d) 6 (Man. C.A.); · the objection to severance was that the divorce might prejudice marital property because the husband might marry and move out of thejurisdiction; not sufficient to deny severance/summary judgment: Heon v.

Heon (1988), (ON CA), 67 O.R. (2d) 312(Ont. C.A.); · the objection to severance was that the husband might remarry and live in another jurisdiction, but as he was paying supportvoluntarily, this was simply a tactical position to force settlement and not a bona fide defence: Cochran v. Cochran (1996), (ON SC), 22 R.F.L. (4th) 170 (Ont. Gen. Div.); · the argument that severance should not have been granted because of a lack of financial information went to corollary relief issues andwas not a ground for refusing the divorce: Johnson v. Johnson (1991), (BC CA), 32 R.F.L. (3d) 349 (B.C.

C.A.); · the argument that severance would make it more difficult to settle spousal support and property issues where the party seekingseverance was out of the jurisdiction did not raise the issue of injustice to the person opposed; a divorce order will not alter entitlement:Wong v. Wong (1997), (BC SC), 30 R.F.L. (4th) 382 (B.C.

S.C.); · the argument that the wife would lose her rights to marital property as she would no longer be a spouse if the divorce was granted wasnot accepted as the spousal rights had crystallized and the fact that they would no longer be spouses will not adversely affect those rights:Newman v. Seaman (1994), (NS SC), 140 N.S.R. (2d) 251 (N.S. S.C. [In Chambers]); [15] In

summary, the court must balance issues of real prejudice stemming from the granting of the severance, against issues of delay inrespect of an uncontested matter. [16] Decision [17] I refuse the motion of Mr. Al-Khouri. He has not proved, on a balance of probabilities, that a severance of the divorce andcorollary relief proceedings is an appropriate exercise of my discretion.

[18] A financial prejudice will attach to Ms. Al-Khouri if the severance is granted. Ms. Al-Khouri, after approximately 35 years ofmarriage, likely has a maintenance claim against Mr. Al-Khouri. Mr. Al-Khouri has no life insurance. Without life insurance, Ms. Al-Khouri has little security because maintenance does not attach to an estate. In Carmichael v. Carmichael (1992) 1992 NSCA 62, 115 N.S.R. (2d) 45 (C.A.), Freeman, J.A. stated that the court had no jurisdiction to make a support order binding on thepayor’s estate, as reviewed in paras. 17 to 27. [19] Further, in the event of Mr. Al-Khouri’s death, Ms.

Al-Khouri will have no access to the Testator’s Family Maintenance Act ifthe divorce was granted. A former spouse is not included within the definition of a dependent in s. 2 of the Act. However, the new Ms.Al-Khouri would have standing. [20] There are outstanding jurisdictional issues because the Syrian divorce proceedings were initiated before the Canadianproceedings. The jurisdictional issue has not been resolved to date, nor has counsel for Mr. Al-Khouri sufficiently addressed this point.

In the event, it is determined that Nova Scotia does not have jurisdiction to issue the divorce, property and maintenance issues can bedetermined pursuant to Ms. Al-Khouri’s application which relies upon the Matrimonial Property Act and the Maintenance and CustodyAct at the upcoming trial. [21] There has been no significant delay. The trial is scheduled for May and June of this year. The previous adjournment wasnecessary because an expert report had not been completed. The adjournment request was valid; it was unrelated to tacticalconsiderations.

The expert evidence has since been secured, and further delays are not anticipated. [22] There is little prejudice flowing by my decision not to grant the severance. Mr. Al-Khouri is residing with his partner. Shecompletes the tasks which Mr. Al-Khouri seeks. On cross examination, it quickly became apparent that religious and cultural concernswere not significant factors in Mr. Al-Khouri’s life. [23] In

summary, the court will not sever the divorce from the corollary relief trial. There is no significant delay because the trialwill be heard in May and June, 2011. Mr. Al-Khouri’s stated needs have been met by virtue of his current living arrangement. Incontrast, if the severance was granted, the evidence confirms financial prejudice flowing to Ms. Al-Khouri. On balance, this prejudice isof greater concern than postponing Mr. Al-Khouri’s second marriage. Further, the jurisdictional issue will have to be fully explored bycounsel for Mr.

Al-Khouri by the time of the trial in May. [24] If either party seeks costs, brief submissions should be forwarded to the court by April 5th. Forgeron, J. (N.S.S.C.F.D.)