Deepak Malik v. Anu Malik, 2017 ONCA 163

Court of Appeal for Ontario

Date: February 24, 2017 Docket: C62753

Panel: LaForme, Pepall and Pardu JJ.A.

Between

Deepak Malik Appellant

and

Anu Malik Respondent

Counsel

Deepak Malik, in person

Alexandra Abramian, for the respondent

Heard: February 22, 2017

Appeal Information

Appeal from the decision of Justice Heather McGee, dated May 2015, with reasons reported at 2015 ONSC 2218, her further judgment dated September 9, 2015, with reasons reported at 2015 ONSC 5302, and her costs order of January 6, 2016, with reasons reported at 2016 ONSC 105.

Endorsement

1The central question for the trial judge was whether the appellant was a man of modest means, unable to earn a living due to disability and advancing age, or was he running a successful, lucrative business, the extent of which he had taken pains to conceal?

2The trial judge made extensive findings of fact and credibility against the appellant, including: he earned enormous sums of money through, amongst other things, an "improper insurance scheme"; and he concealed those amounts from his wife and then from the court. The trial judge held in the respondent's favour on virtually all issues and ordered equalization pursuant to a consent of the parties, child and spousal support arrears, s. 7 expenses, and full recovery costs to the respondent.

3The appellant, representing himself on appeal, takes issue with many aspects of the trial judge's decisions. He argues that the trial judge: (i) ignored his documented medical conditions in finding him able to pay child and spousal support; (ii) ignored the respondent's failure to disclose relevant assets; (iii) erroneously granted the respondent child support despite her never suffering economic disadvantage from the marriage; (iv) erred in denying him occupation rent after leaving the family home; and (v) made errors in her reasoning on costs.

4We see no merit to any of the grounds of appeal advanced by the appellant. We note that the appellant was represented by counsel at trial.

5Prior to the conclusion of the trial, the parties agreed to an equalization payment of $15,633 from the appellant to the respondent. The statement of agreed net family property filed by the parties included a value of $86,793.72 for the respondent's OMERS pension as of the separation date of December 30, 2007. This figure was based on the pension valuation information prepared by the OMERS pension plan administrator. The appellant now takes issue with the consent equalization payment because he asserts that the respondent failed to disclose the valuation of her pension plan.

6We reject this submission. The equalization payment was negotiated with the benefit of counsel and was based in part on the information provided by OMERS. There is nothing before us that would cause us to give effect to this ground of appeal or to accept the other challenges to the respondent's financial statement raised before us today.

7As for the appellant's other grounds of appeal, the trial judge referred to the appellant's medical conditions on numerous occasions, properly awarded support based on the applicable legal principles and factual record before her, and fairly denied any order of occupation rent in the appellant's favour. We see no basis on which to interfere with the trial judge's findings of fact or the exercise of her discretion.

8In our view the trial judge was fair and arguably charitable to the appellant in the face of her findings of fact and the appellant's credibility. On our review of the record, the trial judge demonstrated admirable restraint in the face of the appellant's egregious conduct both before and during the trial.

9The trial judge found the appellant acted in bad faith, yet significantly curtailed the scope of her finding and ordered full recovery costs only in respect of certain issues. She imputed income to him based on his clandestine corporate revenues, yet went on to reduce those revenues in accordance with the expenses he incurred to operate his "questionable" insurance scheme. Further, the trial judge limited herself to imputing income based on the appellant's corporation's revenues, despite there being evidence in the record that he also used his parent's accounts to shield profits from his various business endeavours. The trial judge might have imputed a higher income.

10In the end, the appellant has not directed us to any error of fact or law in the trial judge's decisions. Accordingly, the appeal is dismissed. Costs are to the respondent in the amount of $17,246.39, inclusive of disbursements and HST.