) ) LORETTE SABANEGH Applicant – v. –, 2010 ONSC 6572

CITATION : Sabanegh v. Habaybeh, 2010 ONSC 6572 COURT FILE NO.: 30890/08 DATE: 2010-11-30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) LORETTE SABANEGH Applicant – and – ODEH HABAYBEH Respondent ) ) ) ) ) ) ) ) ) Laura E. Oliver, for the Applicant Steven McCutcheon, for the Respondent ) ) ) HEARD: November 15, 16, 17 & 18, 2010 REASONS FOR JUDGMENT gray j. [ 1 ] The issues in this matrimonial proceeding are equalization, spousal support, and child support. A divorce has already been granted. The parties consented to an earlier order resolving the issues of custody and access.

Background [ 2 ] The parties were married in Jordan on May 11, 1995. They have two children, both boys, aged 14 and 12. [ 3 ] It is of some importance to understand that the respondent’s father is a wealthy man in Jordan. He is 74 years of age. He owns considerable property in Jordan, and he has spent significant amounts supporting his three children. [ 4 ] The respondent is a professional engineer, having qualified as such in Jordan. However, he does not have the requisite qualifications in Canada. [ 5 ] After the respondent graduated from university, he commenced working for one of his father’s companies.

He met the applicant when she was working for a shipping company. He had attended at the shipping company to arrange for the shipment of a piece of machinery. One thing led to another, they became engaged, and ultimately they married. [ 6 ] There is no dispute that the parties had a good life when they lived in Jordan. According to the applicant, the respondent always assured her that money would never be a problem. She testified that they always had whatever they needed, and money was never an issue.

I think it is fair to say that the applicant was not really aware of or concerned about where the money came from, whether it was from the respondent’s employment income, or whether it came from the respondent’s father. [ 7 ] There is a minor dispute as to the circumstances under which the parties came to Canada. They had discussed leaving Jordan in 1999 or 2000.

The applicant testified that she did not wish to leave, but the respondent persuaded her that they should go to Canada for about four years, so that their children would then be able to have another passport. [ 8 ] The respondent, for his part, testified that there was difficulty being a minority in Jordan (they are Catholic), and they thought it best to move to a safe country for the sake of the family.

Ultimately, it was decided that Canada would be the best place for them to live. [ 9 ] The respondent sought to immigrate to Canada as a professional, and was able to do so, but discovered, once he arrived, that his qualifications as a professional engineer in Jordan were not sufficient to allow him to practice as an engineer in Canada. [ 10 ] The parties arrived in Halifax in November 2002. After a short period, the respondent decided it would be better to move to Ontario, and he drove to Montreal, and then to Oakville, to see what options there were.

Ultimately, they moved to Oakville. [ 11 ] Once the parties arrived in Oakville, they stayed for a short period with the respondent’s brother-in-law, Bishara Arraf, and then rented a house.

[ 12 ] Mr. Arraf is the franchisor of a chain of restaurants known as Montfort. He offered work to the respondent in one of the restaurants, and the respondent accepted the work, which paid very little. [ 13 ] The respondent’s father had provided much of the funds to come to Canada, and was supporting the couple for the most part once they arrived. The respondent’s father came to visit, and advised the respondent that he would provide funds to assist the respondent to start a business. [ 14 ] After some discussion, it was agreed that the respondent would become a partner in a franchised Montfort restaurant.

The other partner would be Mr. Arraf himself. A numbered company was incorporated, and the shares were owned 50/50 by each of the respondent and Mr. Arraf. The respondent’s father advanced much of the start-up money for the restaurant. It was understood that the respondent would run the restaurant, while Mr. Arraf, who had many other restaurants in which he was engaged, would provide advice. [ 15 ] The restaurant opened in December 2004.

According to the respondent, the restaurant made a small profit in 2004, a somewhat larger profit in 2005, less profit in 2006, and almost no profits since then. [ 16 ] Also in 2004, the parties bought the matrimonial home. According to the respondent, it was a bargain. They paid $278,000. [ 17 ] According to the applicant, the parties continued to enjoy a good lifestyle after their arrival in Canada. As far as she was aware, the respondent earned a good income from the restaurant. They bought cars.

Indeed, the respondent currently drives a BMW, which is owned or leased by the numbered company that runs the restaurant. [ 18 ] The applicant had access to a VISA card, and the respondent would provide money for daily expenses. She also had an AMEX card, to be used only in emergencies. [ 19 ] After the parties separated, the applicant used the card to obtain funds to pay her lawyer, after which the respondent cancelled the card. [ 20 ] In addition to his income from the restaurant, which was approximately $50,000 per annum, the respondent received money from his father quite regularly.

The respondent says his father has advanced him $192,000, all of which is a loan and which he is obligated to repay. [ 21 ] There is a dispute as to the date the parties separated. [ 22 ] The applicant says the parties quarrelled and fought constantly, and ultimately the respondent moved to the guest room in March 2008. He began coming home later, and intoxicated. From March 2008 onwards, the respondent was living in the matrimonial home in name only. [ 23 ] During the first week of May 2008, the applicant says she found in some laundry she was doing for the respondent a receipt from a matrimonial lawyer.

She confronted the respondent about this, and he admitted that he had a lawyer. He then went to Jordan, and she discovered later that he arranged to transfer out of his name certain properties in Jordan, about which more will be said later. [ 24 ] After the respondent returned to Canada, the applicant had a discussion with him on May 26, 2008. The respondent asked the applicant why she would not talk to him. The applicant advised that she had looked at his Vonage telephone bills and was aware that he was telephoning his girlfriend. The respondent became angry and threatened to knock her teeth out.

He chased her, and she called 911. The police came, after which the respondent left, and never returned. [ 25 ] Until the respondent left the matrimonial home, he had always supplied sufficient funds to run the household. After he left, the applicant testified that things changed considerably. Property taxes, for example, have never been paid since the separation. [ 26 ] The parties agree that the matrimonial home is worth approximately $340,000 to $350,000. The mortgage is currently $237,000. [ 27 ] There are two properties in Jordan in which it is said that the respondent has an interest.

During the trial, they were referred to as the “Zarqua lands” and the “Marka lands”. [ 28 ] The Zarqua property is located in Zarqua, Jordan, which is said to be the industrial capital of Jordan. The property had been in the respondent’s family for many years. It was owned by the respondent’s grandfather, and passed to the respondent’s father. It is not in dispute that it was registered in the respondent’s name from June 4 th , 1989 to May 18 th , 2008. [ 29 ] According to the respondent, he never had the beneficial ownership of the land.

He testified that in Jordan it is common for parents to sometimes place things in their sons’ names. This is less common in the case of daughters. [ 30 ] In 1989, while the respondent was in second year university, and he was 20 years old, his father decided to put the Zarqua land into the respondent’s name. When he did so, he obtained at the same time a power of attorney that gave the respondent’s father the right to do whatever he wished with the property. The respondent testified that this was because his father wanted to control the property.

The respondent did not pay anything to have the land transferred into his name. [ 31 ] The respondent testified that the transaction was effected so that any income from the property would be allocated as income to the respondent, thus reducing his father’s taxes. [ 32 ] The respondent testified that until 2000, it was not possible to evict tenants of a rental property. This made it almost impossible to redevelop lands such as the Zarqua property. In 2000, it became possible to evict tenants, but only on condition that they

be paid substantial amounts of money. At that point, the respondent’s father decided to evict the tenants and redevelop the property, which he did. It cost large amounts of money to evict the tenants and redevelop the property. Documents were produced that purport to show that it cost JD 138,700 (138,700 Jordanian dinars), to evict the tenants, and it cost JD 1,120,500 to reconstruct and refurbish the building. [ 33 ] Various documents have been produced that purport to show that the land and buildings were worth, on average, approximately JD 1,215,000 ($1,712,000 U.S.) in May 2008.

One estimate of value in 1995 was produced – it purports to show the value then at JD 719,000. [ 34 ] As far as the Marka land is concerned, it was registered in the respondent’s name from December 28, 1993 to December 15, 2008. It appears that the respondent’s registered interest was with respect to a one-half interest. His interest was transferred in December 2008 to his sister, and she now has a one-half interest. It apparently has a value of between JD 250,000 and JD 270,000 currently.

No evidence was produced to show the value as of the date of marriage. [ 35 ] Evidence to show that the lands were held in trust by the respondent for his father is somewhat skeletal. [ 36 ] As noted, the respondent testified that he had signed a power of attorney allowing his father to exercise control over the property and do virtually whatever he wished with it. A copy of the power of attorney has been produced in these proceedings.

The respondent testified that such a power of attorney must be renewed or replaced every two years, and he testified that it was. [ 37 ] Also produced was a letter from a lawyer in Amman, Jordan, who related that pursuant to an agreement dated January 10, 1989, the respondent’s father registered some land in the respondent’s name, “for family private circumstances”, and “provided that its registration shall be considered trust in the hands of Mr.

Odeh Habaybeh and to return it to his father, Abdelnour Habaybeh, on request.” In the letter, it is recited that the respondent is not entitled to any right in the property, and is not entitled to any income from the property “due to the fact that his father is the only sponsor of all his expenses including living expenses and study expenses and all his needs.” The letter also recites that the respondent’s father may ask him to re-register the property in his name whenever he wishes.

The letter also recites that on February 1, 2009, the respondent’s father ratified in written deed “confessing that his son Odeh Habaybeh has re- registered all pieces of lands, which were registered in his name under the agreement of 10/1/1989, in his father’s name and/or persons named by his father.” [ 38 ] In another letter from the same lawyer dated May 3, 2009, it is recited that the respondent’s father had expended considerable funds in evicting the tenants on the lands. It is also recited as follows: During the presence of Mr.

Odeh Abdelnour Habaybeh to Amman in summer of 2007, he showed up to my office with his father Abdelnour Habaybeh to discuss the mode of above land re-registration issue and the building installed over it to his father’s name which was possessed previously to his father, especially by considering the expenses incurred by his father in building process in addition to expenses indicated in

Article 1, and 3 above. It was agreed to start transferring the ownership to his father’s name Abdelnour Habaybeh, but due to the unexpected travel of his father outside Jordan, the ownership transfer was not accomplished. Such transfer was completed once Mr.

Odeh Habaybeh returned back to Amman, Jordan in May 2008. [ 39 ] Further reference will be made, later, to the fact that the agreement dated January 10, 1989, referred to in the lawyer’s letter, was not produced in these proceedings, nor was the respondent’s father called to give evidence in these proceedings. [ 40 ] The respondent claims that he no longer has any interest in the franchised Montfort restaurant, and he now has no income.

Documents were produced that purport to show that the restaurant had been in arrears in paying a number of expenses and franchise fees, and purporting to show that the franchisor, the respondent’s brother-in-law, has, shortly before trial, taken over the restaurant entirely. The respondent’s shares in the numbered company have been transferred to the respondent’s brother-in-law, and the respondent’s employment with the restaurant has been terminated. [ 41 ] It should be noted that, at the outset of trial, I was advised that the accountant for the restaurant would be called as a witness, but he was not.

Neither was Mr. Arraf, the franchisor, and the respondent’s partner in the restaurant, called as a witness. Furthermore, the respondent undertook to provide a breakdown for $268,381 in wages and payroll taxes, and $54,600 in management salaries and bonus, incurred in the operation of the restaurant in 2009. That undertaking was not complied with. [ 42 ] The respondent testified that all the advances from his father are loans, and must be repaid. Submissions [ 43 ] Ms. Oliver, counsel for the applicant, submits that a substantial equalization payment must be paid by the respondent.

Furthermore, she argues that the respondent must be required to pay both spousal support and child support. As far as the matrimonial home is concerned, the applicant is willing to purchase the respondent’s one-half interest in it, by allocating a portion of the equalization payment for that purpose. [ 44 ] Ms. Oliver submits that this case is as much about what evidence was not called as it is about what evidence was called.

She submits that there was significant evidence that was not called by the respondent, and that I should draw the appropriate adverse inferences as a result. [ 45 ] As far as the lands in Jordan are concerned, Ms. Oliver submits that there is nothing in the record that should cause me to conclude that the respondent was not, at all relevant times, the beneficial owner of the properties. The Zarqua lands were in his name for almost 20 years, and the stated purpose, according to the respondent, was so that the income from the properties could be allocated to the respondent for tax purposes.

That could only be done, lawfully, if the respondent was actually the beneficial owner, otherwise the scheme would be nothing more than one to defraud the taxing authorities. Thus, it must be assumed, in the absence of compelling

evidence to the contrary, that the respondent was the beneficial owner, and that it was intended that he be so. [ 46 ] Ms. Oliver submits that not only was no compelling evidence produced, it is apparent that a deliberate choice was made not to produce evidence that might have assisted in shedding light on the matter. The 1989 agreement, said to record the specific understanding between the respondent and his father, was not produced.

The respondent’s father, who was originally on the respondent’s witness list, and who would be in the best position to testify as to his intention in placing the property in his son’s name, was not called. Any evidence that was produced is hearsay, and cannot be cross-examined upon or tested. [ 47 ] Furthermore, evidence that would assist in disclosing the respondent’s interest in, and income from, the Montfort restaurant, was not produced. A breakdown of the wages and salaries, that was undertaken to be produced, was not.

Neither the respondent’s business partner nor his accountant were called as witnesses. [ 48 ] Ms. Oliver also notes that even though the respondent has purportedly been terminated from the restaurant’s employ, he nevertheless continues to drive the BMW that he has driven while he had his interest in the restaurant. Furthermore, Ms. Oliver notes that the respondent’s financial difficulty had always seemed to arise shortly before court appearances, and, coincidentally, his termination arose shortly before the trial was to commence. [ 49 ] Ms.

Oliver notes that many thousands of dollars were deposited in the respondent’s bank account. While the respondent explains that these deposits were advances from his father, once again, the respondent’s father was not called to testify to explain them. Ms. Oliver submits that it is more likely that the deposits came as a result of income from the Zarqua land in Jordan.

If one adds the respondent’s likely attributed income from the restaurant, in the amount of $55,000 to $60,000, together with the attributed value of the car, and the likely income from the Zarqua land, the respondent’s annual income should be considered to be $115,000 per annum. [ 50 ] In the result, if one gives the respondent the benefit of the doubt, and allocates nothing for the Marka land, assumes a debt to the respondent’s father in the amount of $120,000, and assigns an increase in value of the Zarqua lands from the date of marriage to the date of separation of $1,180,500 U.S., then after performing the requisite currency conversions, the respondent will owe an equalization payment of approximately $500,000.

The respondent’s share of the equity in the matrimonial home is worth approximately $54,000, and that amount should be deducted from the equalization payment in order that the applicant can have the matrimonial home registered absolutely in her name. [ 51 ] As far as child support is concerned, if one takes the respondent’s income as $115,000 per annum, and the applicant’s income as $40,000 per annum, an offset would produce child support payable to the applicant in the amount of $985 per month. [ 52 ] Ms. Oliver submits that a reasonable amount of spousal support should be paid, as fixed by me. [ 53 ] Mr.

McCutcheon, counsel for the respondent, submits that the respondent has produced ample evidence to show the situation regarding the lands in Jordan, and his ownership of the Montfort restaurant. Mr. McCutcheon disputes that any adverse inferences should be drawn, and submits that adequate evidence has been produced in the circumstances, having regard to the difficulties in securing evidence from Jordan. [ 54 ] Mr.

McCutcheon submits that the evidence that has been produced clearly shows that the properties in Jordan were in the respondent’s name for convenience only, and that he had no beneficial interest in the properties.

Accordingly, they cannot be brought into the equation as properties that are to be considered for the purpose of an equalization payment. [ 55 ] In any event, there is nothing in the record that would suggest that the Marka land was worth more on the date of separation than it was on the date of marriage. [ 56 ] As far as the Zarqua lands are concerned, it is clear that they were not in the respondent’s name on the date of separation. Mr. McCutcheon submits that the respondent’s evidence as to the separation date should be preferred.

It was not until May 26, 2008 that the respondent left the matrimonial home, and that is the date on which the separation occurred. By then, the property was not in the respondent’s name. [ 57 ] Mr. McCutcheon submits that the respondent and his father had discussed the re-conveyance of the Zarqua land about a year earlier than it was actually re-conveyed. He had paid nothing for the property in 1989, and no money changed hands when it was re-conveyed to the respondent’s father on May 18, 2008.

Accordingly, there is nothing of value that should be included on the respondent’s side of the ledger for the purpose of an equalization payment. [ 58 ] Further, and in any event, it would be highly artificial to take the apparent value of the Zarqua property in 2008, without taking into account the substantial cost of evicting the tenants and reconstructing the property.

If those amounts are taken into account, once again there is simply nothing of value to be taken into account for equalization purposes, even if the respondent could be considered to be the beneficial owner of the property. [ 59 ] While the respondent had calculated, in his net family property statement, that the applicant would owe him a small equalization payment, he is willing to forgo that claim now. [ 60 ] As far as child support is concerned, Mr. McCutcheon notes that the parties have approximately equal access to the children, and it is clear that each party has access at least 40% of the time.

Thus, he submits, the appropriate starting point is to take an offset of the table amounts for child support. Mr. McCutcheon submits that the respondent’s income is zero, and the applicant’s is $40,000 per annum. Based on an offset of the table amounts, the applicant will owe the respondent child support in the amount of $601 per month. Mr. McCutcheon submits that an offset should be calculated going back to September 4, 2009, based on the parties’ respective incomes from that date. [ 61 ] As far as spousal support is concerned, Mr.

McCutcheon submits that the applicant earns substantially more than the respondent, and no spousal support should be payable.

[62] Mr. McCutcheon submits that the matrimonial home should be sold, and the proceeds divided. Analysis [63] The first issue to determine is the status of the lands in Jordan. [64] It seems clear that, whatever the situation with the Marka lands may be, those lands will have no impact on anequalization payment in any event.

As noted earlier, there is no evidence as to the value of those lands on the date of the marriage, andaccordingly, there is no evidence that there has been any increase in the value of those lands between the date of marriage and the date ofseparation, whatever the date of separation may be. [65] The situation is somewhat more complex with respect to the Zarqua lands. [66] First, as to the date of separation, I accept that the parties separated sometime in March 2008.

I accept the applicant’sevidence that the parties started sleeping in separate bedrooms by then, and the respondent had consulted a matrimonial lawyer before hedeparted for Jordan in early May 2008. The fact that he physically left the matrimonial home on May 26, 2008 was simply the end resultof a separation that had already occurred. [67] There is little real dispute as to the value of the Zarqua property, both on the date of marriage and the date of separation. The only evidence produced as of the date of marriage shows that the property was worth JD 719,000. I accept Ms.

Oliver’s submissionthat a reasonable average of the valuations as of the date of separation is approximately JD 1,215,000, or $1,712,000 U.S. [68] There is a dispute as to whether the cost of evicting the tenants and reconstructing the building is to be taken into accountin determining the value for equalization purposes. Ms. Oliver submits that the amounts expended for those purposes are not reflected inany mortgage or other debt documents, and thus cannot be taken into account.

The only things to be taken into account, pursuant to theplain wording of the definition of “net family property” in s. 4 of the Family Law Act, are the values of the property on the date ofmarriage and the date of separation. Mr. McCutcheon, on the other hand, submits that the cost of placing the property at its increasedvalue must be taken into account, otherwise an unfair and distorted measure of value will result. [69] I agree with Mr. McCutcheon’s submission in general terms.

In other words, in appropriate circumstances the cost ofincreasing the value of an asset might appropriately be taken into account in determining the value of that asset for equalizationpurposes, otherwise a distorted picture may emerge. However, the increased cost cannot be considered in isolation. Other facts, such asan increased revenue stream, may have an impact. One would expect, in the normal course, that expert evidence would be called onthese matters. None was called here.

I was given nothing more than hearsay information, in the form of letters and financial statements,that have not been tested. [70] In the circumstances, I am not satisfied that I have anything in this record that would allow me to do anything other than totake the agreed-upon evidence of value at the date of marriage, and on the date of separation. [71] I am satisfied, on the balance of probabilities, that the Zarqua lands were beneficially owned by the respondent on the dateof marriage and on the date of separation. I accept Ms.

Oliver’s submission that if, as stated by the respondent in his evidence, thepurpose of placing the property in his name was so that income from the property would be allocated to him, there is a strong inferencethat it was intended that he have the beneficial interest in the property. Furthermore, the property had been in the respondent’s family formany years. Indeed, it had been passed from the respondent’s grandfather to his father, and it is a reasonable inference that it wasintended by the respondent’s father that it pass to him.

There is nothing inconsistent with this intention that the father would wish tohave control over the property until the respondent’s father’s death, and that a power of attorney would be used for that purpose. [72] I am not satisfied that the respondent has produced evidence sufficient to rebut the inference to which I have referred. Therespondent’s father could have been called as a witness (and indeed it is clear that it was initially intended that he be called), but he wasnot called. No reason, such as health, was advanced.

The 1989 agreement between the respondent and his father that is said to set outthe understanding between them was not produced. The letters from the lawyer purporting to convey hearsay information about thematter are not convincing.

I am not satisfied with the explanation as to why the actual re-conveyance to the respondent’s father waseffected on May 18, 2008, a few short days before the respondent physically left the matrimonial home. [73] In my view, this is a case in which it is appropriate to draw adverse inferences from the failure to call evidence that couldhave assisted the respondent’s case, but was not called.

As stated in Sopinka, Lederman & Bryant, The Law of Evidence in Civil Cases (3rd ed., LexisNexis Canada Inc., 2009), at p. 377: In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails toprovide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed tobe willing to assist that party. In the same vein, an adverse infference may be drawn against a party who does not call a material witnessover whom he or she has exclusive control and does not explain it away.

Such failure amounts to an implied admission that that theevidence of the absent witness would be contrary to the party’s case, or at least would not support it. See also: Levesque v. Comeau, (SCC), [1970] S.C.R. 1010; and Vieczorek et al v. Piersoma et al (1987), (ON CA), 58 O.R. (2d) 583 (C.A.).

An adverse inference may be drawn only where there is a prima facie case to answer: Dwyer v.Mark II Innovations Ltd. (2006), (ON CA), 208 O.A.C. 305 (C.A.). [74] In this case, for the reasons articulated earlier, there is clearly a prima facie case to answer, and the failure to call therespondent’s father speaks volumes. The failure to produce the 1989 agreement is also significant. In the circumstances, hearsayevidence to support the respondent’s own evidence is inadequate.

[ 75 ] For these reasons, the Zarqua property will be included in the calculation, and the increase in value between the date of marriage and the date of separation will be included on the respondent’s side of the ledger. [ 76 ] In assessing whether the advances from the respondent’s father are loans or gifts, I have borne in mind the statement of Sharpe J.A. in Collier v.

Torbar (2002), 600 O.R .(3d) 705, at para. 20: “courts must closely scrutinize unsecured and undocumented family loans to ensure the integrity of the equalization provisions of the Family Law Act .” However, I will assume the advances are loans, and I will accept the respondent’s figure of $192,000. [ 77 ] I accept Ms. Oliver’s submission that her calculation produces an equalization payment of $500,000 from the respondent to the applicant. Adjusting the calculation to take into account the increased amount for the father’s loan, from $120,000 to $192,000, the payment becomes $428,000.

The applicant has resided in the matrimonial home since the separation. The respondent wants it sold and the proceeds divided. The same result will be achieved if the respondent is given credit for his share of the equity, and the home is vested in the applicant. Accordingly, I will deduct the respondent’s share of the equity in the matrimonial home, which I will fix at $57,000, thus producing a net equalization payment of $371,000. I order the respondent to pay that amount to the applicant.

I order that a vesting order be issued forthwith, vesting title to the matrimonial home absolutely in the applicant. [ 78 ] As far as spousal and child support are concerned, the first step is to determine the annual incomes of the parties. [ 79 ] There is no dispute that the applicant’s income is now $40,000 per year. [ 80 ] Ms. Oliver submits that the respondent’s annual income is $115,000. The respondent submits that his annual income is zero. [ 81 ] Once again, I am left with gaps in the evidence that could have assisted me in ascertaining the respondent’s income.

It seems odd that the respondent is still driving the BMW. I am not satisfied with his explanation that the owners of the restaurant have simply forgotten about the car. It is instructive, in my view, that the respondent’s accountant was scheduled to give evidence, but he did not. His evidence would have been of assistance in ascertaining the respondent’s income, and clarifying the financial situation of the restaurant. It is significant, in my view, that the respondent did not provide a breakdown of the wages and salaries payable.

Finally, the respondent’s business partner, his brother-in-law, was not called as a witness. It is not without some significance, in my view, that the respondent’s financial difficulties came to a head very short before trial. For the reasons articulated earlier, it is appropriate to draw inferences from the absence of evidence that was not called. [ 82 ] I do not accept that the respondent’s income is $115,000 per annum. As noted, I have assumed that the advances from the respondent’s father are loans. [ 83 ] In the circumstances, I will attribute an annual income to the respondent of $50,000.

This is consistent with his declared income for several years. [ 84 ] Taking a straight offset of the table amounts, the respondent will owe the applicant $152 per month in child support. I see nothing in the circumstances that should result in any variation of that amount. Accordingly, the respondent will pay that amount effective December 1, 2010. I will order no retroactive adjustment. [ 85 ] As far as spousal support is concerned, I see no justification for awarding any. Based on the income I have attributed to the respondent, the income of the parties is not significantly different.

Disposition [ 86 ] Orders will issue in accordance with the foregoing. [ 87 ] I will entertain written submissions with respect to costs, not to exceed three pages, together with a costs outline. Ms. Oliver will have ten days to file her submissions, and Mr. McCutcheon will have ten days to respond. Ms. Oliver will have five days to reply. GRAY J. Released: November 30, 2010 CITATION : Sabanegh v. Habaybeh, 2010 ONSC 6572 COURT FILE NO.: 30890/08 DATE: 2010-11-30

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: LORETTE SABANEGH Applicant – and – ODEH HABAYBEH Respondent REASONS FOR JUDGMENT GRAY J. Released: November 30, 2010