Ahmed v. Naseem, 2016 NSSC 74

Judge:Jollimore, J.
Court:Supreme Court of Nova Scotia
Case Date:October 30, 2015
Jurisdiction:Nova Scotia
Citations:2016 NSSC 74;(2016), 373 N.S.R.(2d) 89 (SC)
 
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Ahmed v. Naseem (2016), 373 N.S.R.(2d) 89 (SC);

    1175 A.P.R. 89

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Temp. Cite: [2016] N.S.R.(2d) TBEd. MR.035

Mohammed Ahmed (petitioner) v. Iram Naseem (respondent)

(No. 1206-06433; SFSN-D 082475; 2016 NSSC 74)

Indexed As: Ahmed v. Naseem

Nova Scotia Supreme Court

Family Division

Jollimore, J.

March 23, 2016.

Summary:

Ahmed and Naseem took part in a wedding ceremony in Pakistan in 2006. In 2008, they began to cohabit and in 2009, they started the process of adopting a little boy (Muneeb). By March 2012, they had separated. Ahmed sought a divorce and orders relating to parenting, spousal and child support, and a property division. Muneeb's adoption had not been completed. Naseem claimed that the marriage was void.

The Nova Scotia Supreme Court, Family Division, held that the marriage between Ahmed and Naseem was void. Further, Ahmed did not marry Naseem in good faith, so he had no claim for a property division under the Matrimonial Property Act. The court dismissed Ahmed's claim for parenting time with Muneeb. Nasseem had not sought child support for Muneeb and none was ordered. The court ordered Naseem to pay Ahmed lump sum spousal maintenance of $152,366.

Family Law - Topic 216

Marriage - Invalid marriages - Grounds for invalidity - Ahmed and Naseem took part in a wedding ceremony in Pakistan in 2006 - In 2008, they began to cohabit and in 2009, they started the process of adopting a little boy (Muneeb) - By March 2012, they had separated - Ahmed sought a divorce and orders relating to parenting, spousal and child support, and a property division - Muneeb's adoption had not been completed - Naseem claimed that the marriage was void - The Nova Scotia Supreme Court, Family Division, held that the marriage was void because Ahmed had not proven on a balance of probabilities that he was validly divorced from each of his previous wives under Muslim Pakistani family law - The documentary evidence was not sufficient to prove that the requirements of talaq and khulla divorces had been fulfilled - In the absence of testimony from his earlier wives, the court had only Ahmed's testimony, which it did not believe - The court also rejected Ahmed's testimony that he had married Naseem in good faith - The documentary evidence indicated otherwise - Therefore, a division of property could not be made under s. 2(g)(iii) of the Matrimonial Property Act - See paragraphs 5 to 73.

Family Law - Topic 223

Marriage - Invalid marriages - Evidence - [See Family Law - Topic 216 ].

Family Law - Topic 256

Marriage - Bars - Existing marriage - [See Family Law - Topic 216 ].

Family Law - Topic 314

Marriage - Common law marriage - What constitutes - Ahmed and Naseem took part in a wedding ceremony in Pakistan in 2006 - In 2008, they began to cohabit and in 2009, they started the process of adopting a little boy (Muneeb) - By March 2012, they had separated - Ahmed sought a divorce and orders relating to parenting, spousal and child support, and a property division - Muneeb's adoption had not been completed - The Nova Scotia Supreme Court, Family Division, held that the marriage between Ahmed and Naseem was void because Ahmed had not proven that he was validly divorced from each of his previous wives - However, where the parties had cohabited in a conjugal relationship from 2008 to 2012, Ahmed was a common law partner entitled to seek spousal maintenance under ss. 4 and 5 of the Maintenance and Custody Act - Ahmed was entitled to spousal maintenance because he sacrificed his job in Qatar to come to Sydney - In doing this, he gave up his self-sufficiency and became financially dependent on Naseem - Lump sum maintenance was appropriate for these parties as a clean break was possible (the court had ordered no further contact between Muneeb and Ahmed) - The lump sum support would help Ahmed reestablish himself - Ahmed testified that during the eight years he worked for the Qatar General Petroleum Corporation (QGPC) he saved approximately $153,000 CDN which he brought to Canada - When he moved to Canada, he transferred $152,366 to a bank - While cohabiting in Sydney, Ahmed was supported by the earnings of Naseem, a doctor - According to the two financial statements provided for the period of cohabitation, her professional corporation's annual gross revenue was $676,000 in 2009 and $762,793 in 2012 - In 2013 and 2014, it was $731,368 and $661,9770 - Typically, Naseem took less than $250,000 as her annual income - Ahmed had lost, at most, eight years of employment as a result of the relationship - The relationship had spared him the cost of supporting himself for the four years of cohabitation and money he took from it had supported him to date - The only remaining consequence was his lost opportunity to save as he did in the past - This required that Naseem pay him the same amount that he was able to save during his years of employment by QGPC ($152,366) - See paragraphs 129 to 153.

Family Law - Topic 681

Husband and wife - Property rights during and after common law marriage or relationship - General - [See Family Law - Topic 2347 ].

Family Law - Topic 756

Husband and wife - Actions between husband and wife - Property - Jurisdiction of courts - [See Family Law - Topic 2347 ].

Family Law - Topic 1013

Common law, same-sex or adult interdependent relationships - Maintenance - [See Family Law - Topic 314 and Family Law - Topic 2347 ].

Family Law - Topic 2001.3

Custody and access - Access - Access to children under guardianship order - Ahmed and Naseem took part in a wedding ceremony in Pakistan in 2006 - In 2008, they began to cohabit and in 2009, they started the process of adopting a little boy (Muneeb) - By March 2012, they had separated - Ahmed sought a divorce and orders relating to parenting, spousal and child support, and a property division - Naseem claimed that the marriage was void - Further complicating matters was the fact that Muneeb's adoption had not been completed - The Nova Scotia Supreme Court, Family Division, held that the marriage between Ahmed and Naseem was void - The documentary evidence indicated that Ahmed was Muneeb's guardian, as was Naseem - The court held that it was in Muneeb's best interests that there be no future contact between him and Ahmed - Their last contact was in 2012 and Ahmed had done nothing to further or renew the relationship since - The court rejected Ahmed's reasons for why he had had no contact with Muneeb - There was no evidence of benefit to Muneeb from a renewed relationship with Ahmed and there was some evidence of risk - See paragraphs 74 to 127.

Family Law - Topic 2004

Custody and access - Access - Grounds for refusal, restriction or variation of access - [See Family Law - Topic 2001.3 ].

Family Law - Topic 2329

Maintenance of spouses and children - Maintenance of spouses - Considerations - [See Family Law - Topic 314 ].

Family Law - Topic 2347

Maintenance of spouses and children - Maintenance of children - Jurisdiction - Ahmed and Naseem took part in a wedding ceremony in Pakistan in 2006 - In 2008, they began to cohabit and in 2009, they started the process of adopting a little boy (Muneeb) - By March 2012, they had separated - Ahmed sought a divorce and orders relating to parenting, spousal and child support, and a property division - Naseem claimed that the marriage was void - Further complicating matters was the fact that Muneeb's adoption had not been completed - The Nova Scotia Supreme Court, Family Division, stated that if the parties were not married, there was no basis for a divorce or any of the corollary relief claimed under the Divorce Act - While Ahmed did not plead his claims for parenting, child support and spousal support under the Maintenance and Custody Act (MCA), Naseem did plead relief under that legislation - Therefore, the court could still consider Ahmed's claims under the MCA - If the parties were not married, the court could only consider his claim for a property division if he had taken part in the wedding ceremony in good faith (Matrimonial Property Act, s. 2(g)(iii)) - He had not made an unjust enrichment claim under the common law - See paragraphs 1 to 4.

Family Law - Topic 2483

Maintenance of spouses and children - Awards - Lump sum payments - [See Family Law - Topic 314 ]. Counsel:

Duncan H. MacEachern, for Mohammed Ahmed;

Diana M. Musgrave, for Iram Naseem.

This case was heard on May 7, 8, 14, June 22-24, and August 4 and 5, 2015, by Jollimore, J., of the Nova Scotia Supreme Court, Family Division, who also received written submissions on September 30, October 10 and October 30, 2015. Jollimore, J., delivered the following decision on March 23, 2016.

Section

Title

Paragraph

1.

Introduction

1

2.

Are Mr. Ahmed and Dr. Naseem validly married?

6

2.1

Expert evidence about Muslim family law in Pakistan

8

2.1.1

Talaq divorce

13

2.1.2

Khulla divorce

20

2.2

Documentary evidence

21

2.2.1

Pakistani Family Court documents

22

2.2.2

Divorce Certificates

25

2.2.3

Other documents

33

2.3

Mr. Ahmed's testimony and credibility

37

2.3.1

Did Mr. Ahmed lie about the basis for his divorce from Ms. Naz?

42

2.3.2

Mr. Ahmed's previous sworn Statement about his marriage to Ms. Mafooz

48

2.4

Conclusion on the validity of the Ahmed/Naseem marriage

57

3.

Did Mr. Ahmed marry Dr. Naseem in good faith?

63

4.

Parenting Muneeb

74

4.1

Is Mr. Ahmed Muneeb's guardian?

76

4.2

What parenting arrangement is in Muneeb's best interests?

82

4.2.1

Muneeb's relationship with Mr. Ahmed

90

4.2.1.1

From April 2009 until September 2011

91

4.2.1.2

From September 2011 until June 2012

93

4.2.1.3

From June 2012 until November 2013

102

4.2.1.4

Since November 2013

106

4.2.1.4.1

Did the marriage contract stop Mr. Ahmed from seeing Muneeb?

108

4.2.1.4.2

Did the threat of the police stop Mr. Ahmed from seeing Muneeb?

112

4.2.1.4.3

Did the threat of removal from Canada stop Mr. Ahmed from seeing Muneeb?

116

4.2.1.4.4

Was there something else that stopped Mr. Ahmed from seeing Muneeb?

121

4.3

Future contact between Muneeb and Mr. Ahmed

126

5.

Child maintenance

128

6.

Spousal maintenance

129

6.1

Is Mr. Ahmed entitled to spousal maintenance?

130

6.2

Is lump sum spousal maintenance appropriate?

140

6.3

How much lump sum spousal maintenance is appropriate?

145

7.

Costs

154

8.

Conclusion

155

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