Court File and Parties
COURT FILE NO.: FS-16-413254-00 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
A.S.1 Applicant – and – A.A.S. Respondent
Counsel: Archana Medhekar, for the Applicant Acting in Person, for the Respondent
HEARD: June 11, 12, 13, 14 and 15, 2018
Reasons for Judgment
SANFILIPPO, J.
Overview
1This application involves the fall-out from an arranged marriage that did not last. There were no children of this marriage. The parties settled the issues of spousal support and divorce during the course of the trial. This left for determination the property claims by the applicant in regard to the matrimonial home and net family property equalization. For the reasons that follow, I have determined that the applicant is entitled to judgment against the respondent in the amount of $26,583.50 in regard to her claim for net family property equalization.
A. The Marriage
The Events of July 2012
2In 2012, A.S.1, at the time A.S.1, was a 22-year-old Pakistani woman who studied in the Master of Business Administration program at the University of C[…].
3A.A.S. was then a 28-year-old Canadian man whose parents had emigrated from Pakistan a generation earlier. A.A.S. had graduated from secondary school in Toronto and was pursuing a career in the financial sector. A.A.S.’s mother set upon arranging for A.A.S. to marry a woman from Pakistan.
4A.A.S.’s mother contacted A.S.1’s mother and they arranged for A.S.1 to marry A.A.S.. A.S.1 and A.A.S. went along. In July 2012, A.A.S., together with his mother and sisters, travelled from Toronto to Pakistan, for A.A.S.’s marriage to A.S.1. The couple met for the first time in the days before the wedding and were married on July 6, 2012. The traditional marriage ceremony, joint family functions and celebrations continued into July 7, 2012. After the wedding, A.S.1 left her home to reside with A.A.S. for about a week in a relative’s house. A.S.1 testified that she and A.A.S. consummated their marriage. A.A.S. testified that they did not.
5A.S.1 recalled that she and her new husband happily celebrated with family members in the week after their wedding. A.A.S. testified that he was immediately overcome with remorse. He had gone along with the arranged marriage to please his traditional parents, and to maintain cultural values, but was saddened to be married to someone he did not know and with whom he had little in common.
6On July 12, 2012, A.A.S. returned to Canada without A.S.1, who understood that A.A.S. would begin the process of applying for her to immigrate to Canada as his spouse. A.A.S. filed an immigration application for A.S.1, but not until November 22, 2012. In the meantime, A.S.1 made arrangements to emigrate. She changed her surname to S., applied for a passport and updated her identification cards. She withdrew from university because she would not have enough time to finish her program before the immigration approval was anticipated to be released.
7A.A.S. and A.S.1 communicated by email, Skype and telephone. A.S.1 testified that she and A.A.S. were excitedly planning for her immigration to Canada so that they could start their life together. A.A.S. testified that the calls and emails became less frequent, progressively more brief and with dwindling emotional connection. A.A.S. increasingly despaired that he had made a mistake.
8A.A.S. shared with his mother his conclusion that the arranged marriage was not going to last. His mother told him that the marriage might take time to grow, that he should give it some time. A.A.S. was prepared to continue to try, he said, for the sake of his family.
B. The Alleged Religious Divorce
The Events of May 2013
9A.A.S. and A.S.1 would next see each other in May 2013 on the occasion of another wedding in Pakistan. A.A.S.’s mother and A.S.1’s mother planned yet another arranged marriage, this time the marriage of A.A.S.’s sister, H., to A.S.1’s brother, F.. A.A.S. cautioned his mother that this might not be a good idea as he was having significant regrets on his marriage to A.S.1, causing him untold anxiety and depression. A.A.S.’s mother assured him that he would be fine when he got to Pakistan and could spend some time with A.S.1.
10A.A.S. and his mother and sisters arrived in Pakistan on May 22, 2013 for the wedding of H. and F.. A.A.S. stayed with A.S.1 and her family. A.S.1 stated that the time with A.A.S. in May 2013 was a happy, joyous occasion. She produced several pictures that show them attending the wedding of H. and F. as a couple.
11In the period after this wedding, A.A.S. and A.S.1 travelled with family members around Pakistan. A.S.1 stated that this time was spent with her husband in shopping and dining and planning for her travel to Canada. A.A.S. stated that this time with A.S.1 confirmed his sentiments that he could not remain married to her.
12A.A.S. testified that late in the evening of May 28, 2013, he spoke with his mother and told her that he had decided that he could no longer remain married to A.S.1. He felt anxious and ill and wanted to terminate the relationship. A.A.S. testified that he understood from his mother that as his marriage had not been consummated, it could be annulled if he convened a meeting with A.S.1, her family, and a village elder, and spoke the word “Talaq” to A.S.1 three times.
13The evidence of A.S.1 and A.A.S. could not be more different as to what occurred on May 29, 2013. A.S.1 stated that it was a happy day of sightseeing, shopping and spending time together with A.A.S., just like the days that had preceded it. A.A.S. testified that on the afternoon of May 29, 2013, he convened a meeting with A.S.1, her parents, his mother and a community elder and, in their presence, spoke to A.S.1 the word “Talaq” three times. A.A.S. states that A.S.1 and her family were not angry, just disappointed. He testified that he then moved out of A.S.1’s parents’ house where he had been staying while in Pakistan and went to stay with his relatives until he flew back to Canada two days later, on May 31, 2013. A.A.S. contended that in this religious ceremony he divorced A.S.1.
14A.S.1 testified that A.A.S. is “totally lying”. She states that there simply was no such ceremony. A.S.1 is adamant that A.A.S. did not attempt to divorce her in 2013 and that he did not even tell her that he wanted out of the marriage.
15Even though the parties agreed, during the trial, to consent to divorce, A.A.S. nonetheless contended that the property entitlements advanced by A.S.1 had to be evaluated on the basis of the religious divorce that he states took place on May 29, 2013. For the reasons that follow, I have determined that A.A.S. and A.S.1 did not divorce that day.
Issue #1: Did the Parties Divorce on May 29, 2013?
16A.A.S. bears the onus of proving his assertion that the marriage was terminated in May 2013. He has failed to do so on both factual and legal grounds.
Did the Religious Divorce Ceremony Take Place?
17I must determine, as a matter of credibility, whether the religious divorce ceremony that A.A.S. speaks of took place. I have to do so with only the evidence of A.A.S. and A.S.1. A.A.S. states that there were others at the ceremony, including A.A.S.’s mother and A.S.1’s parents. Clearly, their evidence would have been of assistance in determining the credibility dispute between A.A.S. and A.S.1.
18A.A.S. has the burden of establishing that the religious divorce ceremony took place. A.A.S.’s mother resides in Toronto and A.A.S. could have called her to testify. He chose not to do so. In the course of the trial, I alerted A.A.S. that where a party fails to call a witness, and it is clear from the evidence that the witness would have been able to testify to a material issue, the court may draw an adverse inference against the party who failed to call the witness: Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (C.A.), at para. 158, quoting from Kaytor v. Lion’s Driving Range Ltd. (1962), 40 W.W.R. 173 (B.C.S.C.), at p. 176. The adverse inference would be that the witness was not called to give evidence because she did not have evidence favourable to the party’s position. An adverse inference ought not to be drawn where there is a plausible reason why the witness was not called: R. v. Ellis, 2013 ONCA 9, 300 O.A.C. 191, at para. 47; R. v. Lapensee, 2009 ONCA 646, 99 O.R. (3d) 501, at para. 42; R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C. C.A.), at pp. 512-513. Here, no plausible reason was established.
19At the same time, however, A.S.1 did not call her parents to testify, albeit remotely through electronic means as they reside in Pakistan. As such, any adverse inference between the parties neutralizes as each failed to call material witnesses on the events of May 29, 2013.
20Without reliance on any adverse inferences, I have determined on a balance of probabilities that the religious divorce ceremony did not occur. In weighing the evidence, I do not accept that A.A.S. told A.S.1 in Pakistan on May 29, 2013 that he wanted to end their marriage, in the manner that he has described, for a number of reasons. The email communications between A.A.S. and A.S.1 leading to the May 2013 trip to Pakistan do not support A.A.S.’s evidence. They show the usual dialogue between a couple planning to get together after time apart. The pictures tendered in evidence of A.A.S. and A.S.1 at their relatives’ wedding and travelling along with others after the wedding are not consistent with A.A.S.’s testimony. Having observed the parties testify, and having weighed their evidence, I do not find plausible that A.A.S. would travel with his family to Pakistan in May 2013 to attend his sister’s arranged marriage into A.S.1’s family, stay with A.S.1 and her family in the days leading to the wedding and afterwards, only to tell his wife and in-laws in the days following that he no longer wished to be married to A.S.1.
21A.A.S. did not take any steps with the civil authorities in Pakistan to legalize the divorce that he contends to have effected. He did not consult with a lawyer in Pakistan regarding whether the steps that he had taken were sufficient to constitute a divorce in Pakistani law. He did not attend at the central registry of the Union Council of the City of Gujrat, Punjab that had issued his Marriage Registration Certificate to take steps to change his marital status. Upon his return to Canada in the days following May 29, 2013, A.A.S. did not take steps, then or at any time, to revoke the immigration application that he had set in motion to sponsor A.S.1’s immigration to Canada as his spouse.
22A.S.1’s conduct in the period after May 29, 2013 is not consistent with someone who had been told that her husband was leaving the marriage. A.S.1 continued with her plans to travel to Canada and to live with A.A.S. and his family.
23On all of the foregoing, I prefer A.S.1’s evidence over A.A.S.’s evidence on the events of May 29, 2013. I conclude that A.A.S. has not established that he held a religious divorce ceremony with A.S.1 in Pakistan that day.
The Respondent has Failed to Prove Foreign Law
24Even if I had accepted A.A.S.’s evidence over A.S.1’s evidence regarding the events of May 29, 2013, I have no basis on which to determine the effect of the religious divorce ceremony that A.A.S. swears took place. The marriage between these parties occurred in Pakistan. No expert evidence was tendered in this trial of either Pakistani or Islamic law.
25I agree with the statement by Perell J. in Das v. George Weston Ltd., 2017 ONSC 4129, at para. 200, that foreign law must be proven by expert evidence:
The content of foreign law is treated as an issue of fact that is proved by expert evidence: Hunt v. T&N plc, [1993] 4 S.C.R. 289 at p. 308; Callpro Canada Inc. v. Prima Telematique Inc., [2001] O.J. No. 1474 (S.C.J.). A judge may not independently research the substance of foreign law and must rather determine its content based on evidence, typically expert evidence: Bumper Development Corporation Ltd. v. Commissioner of Police of the Metropolis, [1991] 4 All ER 638 (C.A.)
26Similarly, in Gonos v. Hadzipetros, 2017 ONSC 6773, 4 R.F.L. (8th) 418, Kristjanson J., in dealing with an application for variation of support, noted at para. 23 that “this Court cannot take judicial notice of foreign law. If any party relies on U.S. law, it must provide an expert opinion from a lawyer qualified in the appropriate jurisdiction”. In Moussa v. Sundhu, 2018 ONCJ 284, in addressing an issue of custody and access, Pawagi J. stated, at para. 12, that “[f]oreign law is ordinarily a question of fact to be proven by expert evidence on a balance of probabilities: Lind v. Sweden, [1987] O.J. No. 871 (Ont. C.A.), (appeal to S.C.C. dismissed)”.
27The parties were aware in advance of trial of the necessity to prove foreign law, that the issue of a religious divorce raised in this action would require expert evidence of Pakistani law, as is reflected in Endorsements rendered on July 5, 2017 and June 6, 2018. In the absence of proof of foreign law, I have no expert evidence on which to analyse the effect of the religious divorce ceremony that A.A.S. alleges to have taken place in Pakistan on May 29, 2013.
Summary – Did the Parties Divorce on May 29, 2013?
28A.A.S. has failed to discharge his burden of establishing that he divorced A.S.1 on May 29, 2013.
C. The Second Marriage
The Ongoing Immigration Application
29The events in the two-year period from May 29, 2013 to May 30, 2015 show dramatic divergence between A.S.1 and A.A.S. in their approach to their marriage.
30In the period from May 2013 to February 25, 2015, A.S.1 continued to be in contact with A.A.S. to advance her immigration application. A.S.1 dealt with both A.A.S. and his sister, H., on the materials that were required. Government documents were produced that showed additional filings in the period from September 11, 2014 to February 2, 2015. A.S.1 contends that the materials were supplied by A.A.S., but A.A.S. states that H. was assisting A.S.1.
31A.S.1 produced emails sent to A.A.S. during this period which exhibit an ongoing dialogue that would be expected between spouses anticipating reunion in Canada. A.A.S. contends that the “yahoo” email address to which these emails were sent was not his. He denies the ongoing communications with A.S.1, including emails on both of their birthdays in January and February 2015. On this credibility issue, I again prefer A.S.1’s evidence over A.A.S.’s evidence. I see no basis on which to conclude that A.S.1 created a “yahoo” email account in A.A.S.’s name and then manufactured emails to him for the purpose of creating a record for trial.
32A.A.S. testified that notwithstanding the religious divorce that he contends took place in Pakistan on May 29, 2013, he and his family committed to the continued sponsorship of A.S.1 as a new immigrant to Canada. A.A.S.’s father, A.S.2, gave similar evidence. They stated that as A.S.1’s brother was now a member of their family through marriage, the family would assist A.S.1 in becoming a new Canadian even though A.A.S. denied that she was his spouse.
33A.A.S. did not correct the immigration application filed with the Government of Canada wherein he represented that A.S.1 was his spouse. A.A.S. seeks to justify this on the basis that he was facilitating A.S.1’s immigration to Canada, and also that his family was placing him under “extreme emotional blackmail” for having adversely affected his sister’s marriage to F. by leaving A.S.1. A.A.S. tried to smooth this situation by continuing to sponsor A.S.1’s immigration to Canada.
A.A.S.’s Second Marriage
34In December 2013 or January 2014, A.A.S. re-connected with a high school friend and began a relationship with her. A.A.S. stated that he felt unfettered from his marriage with A.S.1 because he believed that he had effected a religious divorce. A.A.S. relied on his mother’s advice that his marriage to A.S.1 was now annulled, but he did not call her as a witness.
35A.A.S.’s new relationship was frowned upon by his parents, who were entirely opposed, but not because of A.A.S.’s marriage to A.S.1. A.A.S.’s new partner did not belong to the culture that A.A.S.’s parents sought to preserve and nurture in their family. A.A.S.’s parents made clear to him that they wanted nothing to do with his new partner.
36Since A.A.S.’s parents did not accept his new partner, and because A.A.S. wanted to be with her, A.A.S. entered into an apartment lease on January 17, 2015 together with his new partner. The lease had an eighteen month term. A.A.S. testified that he began living in the new apartment shortly after January 17, 2015, and thereby moved out of his family home at P[...] Crescent, Toronto.
37A.A.S. stated that in the period after January 2015, he would return to the P[...] Crescent house to see his parents once or twice a week, or even less as time went on. A.A.S.’s father, A.S.2, corroborated his son’s testimony on this point.
38A.A.S. did not tell A.S.1 that he had a new partner. And so it was that on February 26, 2015, when A.S.1 celebrated in Pakistan the issuance of her Canadian visa authorizing her entry into Canada as a permanent resident, A.S.1 did not know that A.A.S. had a new partner.
39Shortly after A.S.1 received her Canadian visa, her brother F. left for Canada, having previously received his own Canadian visa. F. arrived in Canada on March 18, 2015 and began to live with his wife, H., in one of the four bedrooms in the P[...] Crescent house. Like A.A.S.’s mother, F. was not called to give evidence at trial. As a result, I did not have any evidence of any observation by F. regarding whether A.A.S. resided at the P[...] Crescent house at the time that F. began to live there.
40In April 2015, while A.S.1 was planning to travel to Canada as a permanent resident and, in her mind, to reunite with her husband, A.A.S. was applying for a marriage licence to marry his new partner. A.S.1 testified that still no one told her that A.A.S. had a new partner, including her brother F. who was now part of the S. family household in Toronto.
41In his application for an Ontario marriage licence, A.A.S. was confronted with three choices concerning the certification of his marriage status: “Never Married; Widowed, or; Divorced”. A.A.S.’s marriage licence dated April 21, 2015 records his statement under oath that he was “Never Married”. A.A.S. testified that he truthfully made this statement on his understanding that his Pakistan marriage had been annulled and so simply did not exist.
42On May 30, 2015, A.A.S. married his new partner.
D. A.S.1’s Arrival in Canada
43On July 10, 2015, A.S.1 arrived in Canada. She travelled from Pakistan with A.A.S.’s sister and mother, who had been vacationing there. A.A.S. picked A.S.1 up at the airport, together with other family members. He drove everyone to the family home on P[...] Crescent.
Issue #2: Did the Parties Cohabit in Canada?
44When A.S.1 arrived at the P[...] Crescent house on July 10, 2015, there were six occupants of that home: A.A.S.’s parents occupied one bedroom; A.A.S.’s sister H. and A.S.1’s brother F. occupied a second bedroom; A.A.S.’s younger sisters resided together in a third bedroom. This left one bedroom, which had been used by A.A.S. since the property was bought in May 2011. There is no doubt that A.S.1 was provided with this bedroom to stay in. There is considerable doubt that A.A.S. resided in it with her.
45A.S.1 testified that she shared this bedroom with A.A.S.. A.A.S. denies this, testifying that by July 10, 2015, he had moved out of the P[...] Crescent house and into the apartment that he rented and cohabited with his second wife. A.A.S.’s father A.S.2 supports A.A.S.’s evidence, testifying that by the time that A.S.1 arrived, “A.A.S. was gone”. A.S.2 testified that A.A.S. would visit A.S.1 from time-to-time at the P[...] Crescent house, but “not like husband and wife”.
46I would have been assisted in the determination of this credibility dispute by the evidence of the occupants of the P[...] Crescent house. Seven people have direct evidence of whether A.A.S. shared a bedroom with A.S.1 in the P[...] Crescent home: A.A.S.’s parents, A.A.S.’s two younger sisters, A.A.S.’s sister H. and her husband F., and A.A.S.’s new wife. Of this group, only A.A.S.’s father, A.S.2, was called to testify. The other six witnesses could readily have provided meaningful evidence concerning whether A.A.S. lived in the P[...] Crescent house with A.S.1, but were not called to testify.
47These six uncalled witnesses were available to both parties. Although both parties invited me to draw adverse inferences against the other for the failure to call these witnesses, or any of them, I do not consider that an adverse inference ought to be drawn when both of the parties had equal access to the uncalled witnesses: Miller v. Carley (2009), 98 O.R. (3d) 432 (S.C.J.) at paras. 198-203; R v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751 at para. 25; R. v. Rooke (1988), 40 C.C.C (3d) 484 (B.C.C.A.). I decline to draw any adverse inferences and will decide the credibility issue concerning the parties’ cohabitation after A.S.1’s arrival in Canada on the available evidence.
48There is no question that A.S.1 resided with the S. family in the P[...] Crescent house from her arrival on July 10, 2015 until April 2016. That is where she received mail and bills. That is the address that she gave to medical caregivers and to government ministries. There is similarly no question that A.A.S. attended at that P[...] Crescent house, from time-to-time, to be with family and for family functions. The question is whether A.A.S. lived with A.S.1 in the P[...] Crescent house.
49A.S.1 introduced into evidence pictures of her and A.A.S. together in the period after her arrival in Canada. I am not persuaded that these pictures establish anything other than that A.A.S. and A.S.1 were at the same location at times of certain family functions. I do not accept that these pictures establish that A.S.1 and A.A.S. conducted themselves as spouses, as is contended by A.S.1.
50A.S.1’s evidence was vague concerning her interaction with A.A.S. in the P[...] Crescent house. She admitted telling her doctor that there was an absence of sexual relationship, which she attributed to disinterest on the part of A.A.S.. A.S.1 conceded that A.A.S. was away from the P[...] Crescent house for weeks on end, which she attributed to business trips, and overnight and on weekends, which she attributed to “night shifts”, even though A.A.S. denies that his employment position entails work in the evenings. A.S.1 stated that he did not call her when away from the house. She understood that this was because he did not want to incur roaming charges. She stated that he did not call her when working overnight and weekends because, she thought, he could not take his phone into the server room at his workplace.
51A.S.1’s evidence was striking in its profound detail of minute anecdotes said to have been told to her by A.A.S., time together at events involving the broader family, details of work tasks that she states that she assisted him with, car rides with him to appointments, but yet very little evidence of daily family activities from the home base of the P[...] Crescent house, other than the blanket assertion that the bedroom that she slept in was designated to both her and A.A.S..
52I do not accept A.S.1’s evidence that A.A.S. cohabited with her in a shared bedroom in the P[...] Crescent house. In making this finding, I do not need to find that A.S.1 is an untruthful witness. I do not doubt that A.S.1 may have thought that she was in a relationship with A.A.S.: after all, their relationship had been remote since its inception. A.S.1 may well have perceived her role as supporting the broader family while A.A.S. was working, paying bills and occasionally dropping by to drive her to appointments. But A.A.S. had a leased apartment, another wife and another life at the time that A.S.1 arrived in Canada that he did not tell A.S.1 about.
53Having heard and weighed the evidence of A.A.S., A.S.1 and A.S.2, and having considered the documentary evidence adduced at trial, I have concluded that A.S.1 and A.A.S. did not cohabit at the P[...] Crescent home, at any time.
Issue #3: Is the P[...] Crescent House a Matrimonial Home?
54Section 18 of the Family Law Act, R.S.O. 1990, c. F.3 states as follows:
Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.
55In order for the P[...] Crescent house to qualify as a matrimonial home, the applicant must establish: (a) that A.A.S. had an interest in the P[...] Crescent house, and; (b) that, at the time of separation, A.A.S. and A.S.1 ordinarily occupied the P[...] Crescent house as their “family residence”.
a) What is the Respondent’s Interest in the P[...] Crescent House?
56The parcel register to the P[...] Crescent house establishes that it was purchased on May 26, 2011 by A.A.S. and his father, A.S.2. They took title as tenants in common. No percentage is stipulated for their ownership interests.
57A.S.2 and A.A.S. testified that A.A.S. received an ownership interest in the P[...] Crescent property solely for the purpose of assisting A.S.2 in obtaining mortgage financing as A.S.2 had insufficient income to purchase the property. A.A.S. set out to establish that he holds his interest in the P[...] Crescent house in trust for his father.
58The parcel registry shows that the P[...] Crescent house was purchased on May 26, 2011 for the amount of $450,000 and assisted by a mortgage registered that day to ING Bank in the amount of $341,550. Therefore, the sum of $108,450 was required on closing to complete the purchase of this property.
59A.A.S. and A.S.2 testified that A.S.2 paid the entire amount due on closing, such that A.A.S. made no financial contribution to the purchase of this property. In cross-examination, A.S.2 stated that he had savings, predominately consisting of a capital gain made on the sale of a previous property that he used to pay the $108,450 required to complete the acquisition of the P[...] Crescent property. A.A.S. and A.S.2 both testified that A.S.2 has, throughout, paid all of the expenses pertaining to the ongoing ownership, operation and management of the P[...] Crescent house.
60A.A.S. had the burden of establishing his position that his interest in the P[...] Crescent house, as a tenant in common, was only as a holder of his father’s beneficial interest. A.A.S. conceded that there is no trust deed that sets out the trust relationship wherein he alleges to hold this interest for the benefit of his father. A.A.S. had an obligation to produce documents to support his position disclaiming any interest in the P[...] Crescent house.
61A.A.S. not only failed to produce any such documentary evidence, but failed to comply with court orders that he do so. The following orders were made in regard to A.A.S.’s disclosure obligations:
a) By court order of April 10, 2017, A.A.S. was required to provide A.S.1 with the following: a copy of any written agreement or trust declaration pertaining to his ownership interest in the P[...] Crescent house; any documentary proof of A.A.S.’s claim of not being a beneficial owner of 50% of the P[...] Crescent house;
b) By court order of July 5, 2017, A.A.S. was required to disclose mortgage statements for the P[...] Crescent house, the application for mortgage financing for this property and appraisal evidence pertaining to the value of this property at pertinent times;
c) By court order of March 23, 2018, A.A.S. was prohibited from relying on any document at trial that he failed to produce in breach of the disclosure orders: “To the extent the respondent A.A.S. has not complied with the disclosure orders, he shall be prohibited at any later stage in this proceeding, including trial, from relying on any document he was obliged to provide but failed to provide by today’s date.”
62If documents were available to A.A.S. that would have been material to his position that he holds his interest in the P[...] Crescent house for the benefit of his father, they were required to be disclosed before trial. These documents include the real estate lawyer’s file on the May 26, 2011 purchase of the property; the application to ING for mortgage financing as part of the purchase of the property; any reporting letter from his lawyer or mortgage broker in relation to either the purchasing or mortgaging of the property; the application submitted for refinancing of the property in January 2014; bank records pertaining to the transfer of funds for the purchase of the property or receipt of funds from its financing; bills showing the manner by which the property’s expenses were paid.
63None of this evidence was presented by A.A.S. even though he had the obligation of proving that his registered interest in the P[...] Crescent house was in trust, to the benefit of his father. None of this evidence was available to the applicant as it was within the possession, power or control of A.A.S., either alone or together with his father. In assessing A.A.S.’s credibility in regard to his evidence that he held his interest in this property on behalf of his father, I take into consideration that A.A.S. has not tendered into evidence any of the myriad documents that, if available, would support his position. Further, an adverse inference can be drawn that if there were documents that supported A.A.S.’s position that he held his interest in the P[...] Crescent house in trust for A.S.2, he would have produced them: Drosophilinks Consulting Inc. et al. v. Canadian National Railway Company et al., 2010 ONSC 3576; Indcondo Building Corp. v. Steeles-Jane Properties Inc. (2001), 14 C.P.C. (5th) 117 (Ont. S.C.J.); Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257, 111 O.A.C. 201 (C.A.).
64All matters considered, on the available evidence, I have determined that A.A.S. has not discharged his burden of establishing on a balance of probabilities that he holds his registered interest on the title of the P[...] Crescent house further to a trust arrangement on behalf of his father. I thereby find that, at all material times, A.A.S. holds an interest in the P[...] Crescent house as a tenant in common. Further, as A.A.S. did not lead any evidence that would allow for a determination that his percentage interest in the P[...] Crescent house was other than equal with the interest of his father, I find that the percentage of A.A.S.’s interest is 50%.
b) Was the P[...] Crescent House Occupied by the Parties as a Family Residence?
65The second requirement that the applicant must establish in order for the P[...] Crescent house to constitute a matrimonial home is that A.A.S. and A.S.1 ordinarily occupied the P[...] Crescent house as their “family residence”. In order to constitute a “family residence”, the house must be the place where the family’s activities occur. I adopt the statement made by Steinberg U.F.C.J. in Taylor v. Taylor (1978), 6 R.F.L. (2d) 341 (Ont. U.F.C.) that: “The term "family residence" connotes something more than the simple occupation of a dwelling. It must be the residence around which a couple's normal family life revolves.”
66I have already found that A.A.S. and A.S.1 did not cohabit in the P[...] Crescent house. But even beyond this, the evidence does not reveal that they participated in everyday family life there. On the evidence that I have accepted, A.S.1’s family activities in the P[...] Crescent house were with members of the S. household apart from A.A.S.. As such, I conclude that A.S.1 has not established that the P[...] Crescent house was ordinarily occupied by her and A.A.S. as a family residence.
Summary – Is the P[...] Crescent House a “Matrimonial Home”
67I have concluded that the P[...] Crescent house is not a matrimonial home as it does not satisfy the requirements of section 18 of the Family Law Act. While A.A.S. has an interest in this property, it was not ordinarily occupied by A.A.S. and A.S.1 as their family residence.
E. The Events of April 2016
68A.S.1 stated that she first learned of A.A.S.’s second marriage in February 2016, when H. told her. It seems incredible that A.S.1 could have resided in the P[...] Crescent house from July 2015 to April 2016, in an environment in which A.A.S. was absent and all others were in a position to know of his second marriage, but yet A.S.1 was unaware that A.A.S. had a second wife. However, as A.S.2 had no helpful evidence on this point, and as A.A.S. admitted that he did not, at any time, tell A.S.1 that he had remarried, I am prepared to accept A.S.1’s testimony that she first learned of A.A.S.’s second marriage in February 2016.
69A.S.1 stated that when she learned of A.A.S.’s second marriage, she was in disbelief, thinking that such a thing could not have occurred, and then in denial, believing that A.A.S. would have a change of heart, leave his second wife and return to her. A.S.1 stated that H. showed her pictures of A.A.S.’s wedding with his second wife. Yet, A.S.1 did not confront A.A.S. with her discovery.
70A.S.1 continued to reside in the P[...] Crescent house from February to April 2016. A.S.1 testified that on April 2, 2016, A.S.2 attempted to sexually assault her. A.S.1 made a criminal complaint and A.S.2 was charged with assault. A.S.1 was distraught, and contacted her brother, who assisted her in packing her belongings and moving out of the P[...] Crescent house. A.S.1 suffered an anxiety attack while staying with F. and H. that resulted in her being taken to hospital.
71A.S.1 states that on April 19, 2016, A.A.S. told her, for the first time, that he had married another woman. A.S.1 knew at this point that her relationship with A.A.S. was over. She has not since resided with the S. family in the P[...] Crescent house.
F. Analysis of Entitlements
72The parties settled the issue of spousal support. This leaves for determination the issue of property equalization which, involves analysis of A.A.S.’s interest in the P[...] Crescent house and A.A.S.’s pension.
Issue #4: What is the Valuation Date?
73Section 1 of the Family Law Act defines “spouses” as persons who are married to each other. A.A.S. and A.S.1 admit to being married in Pakistan on July 6, 2012. I have determined that A.A.S. has not established a religious divorce. The parties have not obtained a civil divorce. They are spouses of each other.
74Section 4(1) of the Family Law Act defines “valuation date” as the earliest of five different events. The event applicable to the separation between A.A.S. and A.S.1 is the “date the spouses separate and there is no reasonable prospect that they will resume cohabitation”.
When Did These Spouses Separate?
75A.A.S. admitted that he resided together with A.S.1 in Pakistan in the time period immediately after their marriage on July 6, 2012. A.A.S. states that although he was then physically separated from her by distance, did not separate from A.S.1 as a spouse until May 29, 2013, by reason of the religious divorce ceremony that he states took place that day. I have declined to find that there was a religious divorce on May 29, 2013. As a result, I do not accept that the parties separated on May 29, 2013.
76A.S.1 testified that she separated from A.A.S. on April 19, 2016 when he told her for the first time that he had a second wife, and she thereby concluded, for the first time, that there was no prospect of reconciliation.
77I agree with the statement by Killeen J. in Czepa v. Czepa (1988), 16 R.F.L. (3d) 191 (Ont. S.C.), at p. 196: “The quest for a valuation date is tied to that date when the marriage is irretrievably broken down and a resumption of co-habitation is not reasonably in the cards.” Similarly, in Paulsen v. Paulsen, 2017 ONSC 2937, 96 R.F.L. (7th) 395 at para. 14, McDermot J. commented that separation is established when “an unequivocal act by one of the parties shows an intent to separate with no going back”.
78In Rosseter v. Rosseter, 2013 ONSC 7779, 38 R.F.L. (7th) 339 at para. 9, Ellies J. commented that parties who are not cohabiting are therefore separated, relying on the definition of “cohabit” contained in section 1(1) of the Family Law Act: “‘cohabit’ means to live together in a conjugal relationship, whether within or outside marriage”. In Greaves v. Greaves (2004), 4 R.F.L. (6th) 1 (Ont. S.C.J.) at para. 34 Mesbur J. summarized the factors to be assessed in considering if parties are living separate and apart, relying on the elements identified by Weiler J., as she then was, in Oswell v. Oswell (1990), 74 O.R. (2d) 15 (H.C.J.):
It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The court must look at various objective factors to determine if the parties are living apart or not. Oswell v. Oswell perhaps best sets out the criteria for the court to consider. These include the following:
(a) There must be a physical separation . . . Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
(b) There must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
(c) The absence of sexual relations is not conclusive but is a factor to be considered;
(d) Other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern;
(e) Although the performance of household tasks is also a factor . . . weight should be given to those matters which are peculiar to the husband and wife relationship outlined above;
(f) The court must have regard to the true intent of a spouse as opposed to a spouse's stated intent . . . [a]n additional consideration ... in determining the true intent of a spouse as opposed to that spouse's stated intentions is the method in which the spouse has filed income tax returns.
79In assessing the two elements contained in section 4(1) of the Family Law Act, being the separation of the parties and the absence of a reasonable prospect of resuming cohabitation, I find that, as far as A.A.S. is concerned, these elements were present on May 30, 2015 when A.A.S. married his new partner. From his standpoint, the parties were living separately and there was no prospect of A.A.S. cohabiting in a marital relationship with A.S.1. However, he did not tell A.S.1.
80The unique element of this case, for determination of the valuation date, is that A.S.1 did not know on May 30, 2015 that A.A.S. had remarried and thereby left the marriage with her. Can parties be found to have ‘separated’, in the determination of a valuation date in accordance with section 4(1) of the Family Law Act, when one spouse is not aware that the other has left the marriage?
81I adopt the approach to this issue taken by Corbett J. in Strobele v. Strobele (Ont S.C.J.), 34 R.F.L. (6th) 111 at para. 30, varied on other grounds, 275 D.L.R. (4th) 346 (C.A.):
Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this requires that an objective eye be cast upon the unique circumstances of the couple.
82In assessing the circumstances of the relationship between A.A.S. and A.S.1, I accept that the first time that A.S.1 concluded that there was no prospect of resuming cohabitation, as A.S.1 perceived cohabitation, was on April 19, 2016. I am not prepared to find that knowledge by A.A.S. of his irreconcilable exit from the marriage on May 31, 2015, with no communication to, or knowledge on the part of A.S.1, is sufficient to satisfy the requirements of section 4(1) of the Family Law Act. On the evidence, I find that the valuation date is April 19, 2016.
83However, if knowledge on the part of a spouse of the other’s departure from the marriage is not required to satisfy the requirements of section 4(1) of the Family Law Act, such that May 30, 2015 is the proper valuation date in this case, there would be no monetary difference to the result. As I will now explain, on the imperfect property valuation evidence in this case, there is no difference in the quantification of A.S.1’s monetary entitlements by applying either May 31, 2015 or April 19, 2016 as the valuation date.
Issue #5: The Net Family Property Entitlements
84There are two assets to be considered in analysis of the issue of net family property equalization: A.A.S.’s interest in the P[...] Crescent house, and A.A.S.’s pension. In regard to each of these assets, the evidence at trial was imperfect, largely as a result of the lack of proper documentary disclosure by the respondent.
85The court has a broad discretion to find value, even in the absence of solid valuation evidence: McLean v. McLean, [2004] O.T.C. 904 (S.C.), at para. 49, citing Tremblay v. Tremblay, 2002 CarswellOnt 484 (S.C.J.). In Felte v. Felte (2004), 3 R.F.L. (6th) 37 (Ont. C.A.) the Court of Appeal stated that where the evidence is unsatisfactory and incomplete, a trial judge must use the evidence he or she does have, in attempting to come to a reasonable and fair result.
86Even though the evidence in this case is far from complete on the valuation of A.A.S.’s 50% interest in the P[...] Crescent house and his pension, I will use the limited evidence available to achieve a just and fair result.
a) The P[...] Crescent house
87Since I have determined that A.A.S. has a 50% interest in the P[...] Crescent house and that it is not a matrimonial home, his interest in this property must be addressed as part of the net family property equalization. This calls for analysis of the value of A.A.S.’s interest in the P[...] Crescent house at the date of marriage (July 6, 2012) and the value of A.A.S.’s interest in the P[...] Crescent house at the valuation date (April 19, 2016).
88There was no evidence at trial of the value of the P[...] Crescent house at the date of marriage: July 6, 2012. I find it reasonable to rely on the value of the P[...] Crescent house at the time of acquisition, May 26, 2011: $450,000. The mortgage registered against title to the property at that time was $341,550, meaning that there was equity at the date of acquisition of $108,450. This value will be applied as a reasonable determination of the equity in the P[...] Crescent house on the date of marriage, which was just over 13 months later. A.A.S.’s 50% interest in the P[...] Crescent house at the date of marriage is thereby fixed at $54,225.
89During closing submissions, the parties agreed that value of the P[...] Crescent house on April 19, 2016 was $730,000. The evidence established that this property was re-financed on January 22, 2014 wherein the previous ING was discharged and replaced with a new mortgage in the amount of $550,000. No evidence was presented concerning any change in the principal amount of this mortgage from January 22, 2014 to April 19, 2016, and no evidence was tendered that would allow any such amount to be calculated. As such, I will use the values available and value the equity in this property at the valuation date as $180,000 ($730,000-$550,000). A.A.S.’s 50% interest in the P[...] Crescent house at the valuation date is thereby $90,000.
90The value of A.A.S.’s interest in the P[...] Crescent property for the purposes of net family equalization is thereby the value of this property at the valuation date ($90,000) less the value of this property at the date of marriage ($54,225) being $35,775.
b) The Pension Entitlement
91No family law value of A.A.S.’s pension was produced by A.A.S., even though he was ordered to do so. The best evidence available was developed at trial by reference to the amounts that were deducted from A.A.S.’s income at source by his employer for investment into his pension. These amounts were identified in A.A.S.’s T-4 forms for the period from 2013-2016. The amounts deducted from A.A.S.’s income for designation into his pension over this time period total the sum of $17,392.
92Although inexact, the only value available to use in the analysis of A.A.S.’s pension is the total of the amounts deducted from his income for this purpose, being $17,392. This may over-state the family law value of A.A.S.’s pension to A.A.S.’s detriment, but this was caused by A.A.S.’s failure to comply with his obligation to disclose this value.
c) The Equalization of Net Family Property
93Section 5(1) of the Family Law Act states:
When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.
94A.S.1’s financial statement shows net family property of zero ($0). Based on my findings, A.A.S.’s net family property is $53,167, consisting of $35,775 as his interest in the P[...] Crescent house and $17,392 as his pension interest.
95Based on section 5(1) of the Family Law Act, A.S.1 is entitled to a 50% equalization. A.S.1 is thereby entitled to an equalization of 50% of the difference between her net family property ($0) and A.A.S.’s net family property ($53,167) which is $26,583.50 ($53,167 ÷ 2 = $26,583.50). A.A.S. is thereby ordered to pay A.S.1 the sum of $26,583.50.
G. Disposition
96The parties settled, during the course of trial, the issues of spousal support and divorce. This left for determination the property claims by the applicant.
97I have determined that the P[...] Crescent house was not a matrimonial home.
98I have determined that the respondent, A.A.S., shall pay the applicant, A.S.1, an equalization payment in the amount of $26,583.50.
H. Costs
99The parties are encouraged to discuss and attempt to resolve the issue of costs.
100In the event that the parties are not able to reach agreement on the issue of costs, the applicant shall deliver written cost submissions of no more than five pages in length, not including any attachments, within fifteen days of the release of this decision. The respondent shall deliver written submissions of a similar length within thirty days of release of this decision. I will then consider and deliver an endorsement with my decision on the issue of costs.
Sanfilippo J.
Released: September 28, 2018
COURT FILE NO.: FS-16-413254-00 DATE: 20180928 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
A.S.1 Applicant – and – A.A.S. Respondent
REASONS FOR DECISION Sanfilippo J. Released: September 28, 2018