CITATION: Khamis v. Noormohamed, 2011 ONCA 127
DATE: 20110215
DOCKET: C50751
COURT OF APPEAL FOR ONTARIO
Moldaver, Gillese and LaForme JJ.A.
BETWEEN
Shiraz Khamis
Appellant (Applicant)
and
Yasmin Noormohamed
Respondent (Respondent)
Alnaz I. Jiwa, for the appellant
Michael J. Polisuk, for the respondent
Heard: February 9, 2011
On appeal from the judgment of Justice Nancy Backhouse of the Superior Court of Justice, dated June 1, 2009.
By The Court:
INTRODUCTION
[1] The appellant husband and respondent wife were married on April 27, 1996, and separated on March 27, 2006. Both of them are currently 61 years old and there are no children of the marriage.
[2] The trial lasted six days with the major issue being the equalization of net family property under the Family Law Act, R.S.O. 1990, c. F.3. The trial judge, after providing comprehensive reasons for her findings, ordered that:
(i) The divorce be granted;
(ii) The husband is to pay $84,999 to the wife. Of this amount, approximately $65,000 was for equalization and $20,000 was pursuant to the contract of Maher the parties entered into at the time of marriage;
(iii) An equal division of jointly held mutual funds; and
(iv) The sale of the matrimonial home, which is to be divided equally after the wife first receives $84,999.
[3] The husband appeals from the trial judge’s decision. In concluding that the appeal must fail, we note at the outset that the grounds of appeal are almost entirely fact driven. The appeal raises no issues of law except in relation to the marriage contract (the “Maher”), which the trial judge considered and found to be valid and not contrary to Ontario law. As we address further below, we agree with her analysis and conclusions as well as her factual findings supporting its validity. The remainder of the case, as we have said, is fact driven and dependent largely on the trial judge’s findings of credibility.
[4] In sum, the trial judge gave thorough and persuasive reasons for her factual findings. We do not accept that she misapprehended the evidence by failing to consider or appreciate all of the relevant evidence. Nor do we accept that the trial judge erred by considering matters that had not been pleaded.
GROUNDS OF APPEAL
[5] The three main grounds advanced by the husband are as follows. First, he submits that the trial judge erred in her treatment of the $100,000 the wife received in connection with her settlement of a motor vehicle accident claim. Second, he argues that the trial judge erred in concluding that the husband “recklessly depleted” matrimonial assets in connection with $216,000. Third, he submits that the trial judge erred in her treatment of assets the parties had at the date of marriage.
[6] What follows are our reasons for dismissing the appeal. We deal first with the husband’s complaints about the pleadings.
DISCUSSION
The Pleadings
[7] The husband contends that the trial judge erred in deciding two issues against him that were not pleaded, namely: (1) the wife’s claim that she was entitled to exclude from her net family property $100,000 that represented damages for pain and suffering she received from a motor vehicle accident; and (2) the unequal division of assets for an alleged investment loss occasioned by the husband on the ground of “reckless depletion”. We would not give effect to either submission.
[8] With respect to the $100,000, the husband did not seek an adjournment or further production when he learned of the wife’s position regarding it. Instead, he argued the matter fully and relied on deficiencies of proof in the wife’s evidence. Accordingly, he cannot complain at this stage. As for the unequal division of assets, the wife was clear in her answer to the husband’s position; she sought an unequal division of assets. In the circumstances, nothing further was required. No one was taken by surprise at trial. The issues in dispute were known to the parties and fully canvassed. No unfairness was occasioned.
The Maher Agreement
[9] The trial judge provided cogent reasons for concluding that the Maher Agreement was enforceable. At para. 69 of her reasons, she set out some of the factual underpinnings for her conclusion:
The marriage contract in this case was in writing and signed by both parties. The parties’ signatures were both witnessed. There is a certificate by the Mukhi and Kamadia who officiated at the marriage that the parties signed the marriage contract of their own free will, and volition.
At paras. 73 and 74, the trial judge made the following observations:
Setting aside a marriage contract under s. 56(4) of the Family Law Act is discretionary. This is not a case where the parties were opting out or giving up rights under the Family Law Act where understanding the legislative scheme and the other party’s financial position were critical. The terms of the marriage contract were simple. Other than the payment of the maher amount of $20,000, the parties retained their rights under the Family Law Act. The evidence satisfies me that the husband understood the promise he made and understood that it was binding upon him. I am not persuaded that, in these circumstances, the court should exercise its discretion to set aside the contract.
The husband submitted that if the $20,000 maher was enforceable, then his net family property at the date of separation should be reduced by the $20,000 for the debt then owing. The $20,000 obligation was entered into and in existence at the date of marriage and comes within the definition of “net family property”. It also existed at the date of separation. Accordingly, there is no effect on net family property. By necessary implication of the words “in addition and without prejudice to and not in substitution of all my obligations provided for by the laws of the land”, the maher amount is excluded from net family property. Otherwise it would undermine the express intention of the agreement and the contract would have no meaning. I find that the $20,000 maher also comes within the meaning of s. 4(2)6 of the Family Law Act and therefore is excluded from net family property. It provides:
4(2)6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.
[10] We see no basis for interfering with the trial judge’s analysis or conclusion. We therefore reject this argument.
The Remaining Grounds of Appeal
[11] As to the remaining grounds of appeal, to repeat, this was a fact driven case in which the trial judge had to decide the issues based on the evidence presented at trial. Whether that evidence could have been more or better is not the test. Rather, the test on appeal is whether there was sufficient evidence upon which the trial judge could make the findings she did and whether those findings are reasonable.
[12] The findings by the trial judge in this case are all grounded in the evidence presented at trial. A significant part of this evidence was the testimony of the husband and the wife. The trial judge believed most of the evidence of the wife and rejected most of the evidence of the husband. Her findings of fact based on the evidence, including credibility findings of these witnesses, are entitled to deference unless it can be demonstrated that they are manifestly wrong.
The $100,000 Exclusion from the Motor Vehicle Claim
[13] The husband argues that “other than a self-serving letter from the lawyer who acted for [the wife], no other documentation was given…upon which the payments were made to her”. His position appears to be that on this evidence, the trial judge could not have found that $100,000 of the damage award was for pain and suffering and therefore should not have been excluded from the wife’s assets. We see no merit to this submission.
[14] The trial judge did not err in excluding the $100,000 from the assets of the wife. The letter from the lawyer was not at all “self-serving”; rather it was a solicitor’s letter explaining the breakdown of the settlement of funds the wife received from a motor vehicle accident. There was no reason why the trial judge could not rely on this letter, together with the evidence of the wife whom the trial judge believed on this issue. Moreover, there was no evidence to the contrary.
[15] The evidence was sufficient, therefore, to permit the trial judge to find that the wife received these monies pursuant to a settlement for her claim for damages arising out of a motor vehicle accident and that the amount of $100,000 was for pain and suffering. There was no error in the trial judge’s finding that this amount should be excluded from her net family property.
The Joint Account
[16] The husband argues that the trial judge misapprehended, ignored or misapplied relevant evidence in finding that the husband recklessly depleted $216,000 from the parties’ joint bank account. He submits that the evidence at trial established that the investments made by him with these funds were made with the consent and knowledge of the wife. We disagree.
[17] The trial judge found that the husband was not candid in his evidence about how the amount of $216,000, which he removed from the joint account, was used by him. It was the wife’s position that he used the funds, without her knowledge, to make speculative investments. She also maintained that the husband was depleting their joint assets in contemplation of the breakdown of their marriage. Significantly, the evidence at trial included a written acknowledgment from the husband admitting to these two facts. The acknowledgment was freely signed by him and executed in the presence of a trusted leader in the Muslim community.
[18] The trial judge noted that the husband could not explain why $197,000 of the $216,000 was returned to him and deposited into a personal account belonging to him six weeks after he gave the funds to a friend [Lloyd Robinson] to invest. Further, he had no documentation to verify what happened to the funds after he withdrew them from his account and investments were not made in his name. In the end, the trial judge concluded that in all the circumstances, “the husband removed the funds for which the wife was jointly liable without her knowing about it and that he plotted with Lloyd Robinson to prevent her from finding out about it and to keep these funds from her”. Notably, the husband did not call Mr. Robinson to give evidence at trial.
[19] On the evidence, it was open to the trial judge to find that the husband intentionally dealt with this money so as to prevent the wife from knowing about it and to keep these funds from her. It was also open to her to find that he recklessly depleted the funds in speculative investments. Thus, she did not err in applying s. 5(6)(d) and s. 5(6)(g) of the Family Law Act.
Date of Marriage Assets
[20] The husband submits that the trial judge erred in giving the wife credit for bringing to the marriage half of the proceeds from the sale of a property on St. Clair Avenue that the wife claimed she and her sister owned. He suggests that the property really belonged to the wife’s parents.
[21] Again, we see nothing in this argument. The trial judge had before her documents from the lawyer who completed the sale transaction showing that half of the proceeds were paid to the wife. This was confirmed by income tax documents the wife filed at the relevant time.
[22] The trial judge did not accept fully the wife’s evidence as to the savings she brought to the marriage. She reduced those sums based on documentation that the wife produced that was close in time to the date of marriage. She accepted that the wife could not have acquired all the RRSPs and savings that she proved unless she held some of them at the date of marriage. These findings were clearly open to the trial judge on the record.
[23] The husband claimed that he brought a substantial amount of gold, totalling some $207,000, into the marriage. The trial judge found that his evidence “lacked any credibility”. In this regard, she observed that the husband’s evidence was not supported by any documentation. She further noted that the husband’s evidence as to the value of the gold did not conform with his prior sworn statements and seemed “to have been given for the first time at trial”. In the end, the trial judge concluded that the husband did not have any gold from his former jewellery business at the date of the marriage, that he gave none to the wife, and that he “concocted the story … to increase his property claim”.
[24] It was open to the trial judge to make those findings. While the husband complains that the wife did not produce bank records, which he says would have shown that she used monies from the sale of his gold to pay down an outstanding loan he had with the Laurentian Bank, the husband did not ask the trial judge to order production of the wife’s bank records.
[25] Given that the husband bore the onus of establishing the deduction, and bearing in mind the inadequacies of his evidence, his failure to seek production of the wife’s bank records, and the wife’s evidence on the subject, which the trial judge believed, we would not give effect to this argument.
[26] We find it unnecessary to address the remaining grounds of appeal as specified in the husband’s factum. They too are fact driven and we see no merit in any of them.
DISPOSITION
[27] For these reasons, the appeal is dismissed. The wife is awarded her costs of the appeal fixed in the amount of $7,500 inclusive of disbursements and applicable taxes.
Signed: “M. J. Moldaver J.A.”
“E.E. Gillese J.A.”
H. S. LaForme J.A. »
RELEASED: “EE” FEBRUARY 15, 2011