COURT OF APPEAL FOR ONTARIO
CITATION: Qaraan v. Qaraan, 2014 ONCA 401
DATE: 20140515
DOCKET: C56483
Doherty, Epstein and Benotto JJ.A.
BETWEEN
Amneh Qaraan
Applicant (Respondent)
and
Abdelaziz Qaraan (also known as Aziz Qaraan)
Respondent (Appellant)
Norman A. Pizzale, for the appellant
Monique Rae Bennett, for the respondent
Heard: May 12, 2014
On appeal from the order of Justice Victor Mitrow of the Superior Court of Justice, dated December 13, 2012, with reasons reported at 2012 ONSC 6017, [2012] O.J. No. 5938.
ENDORSEMENT
[1] The appellant appeals the trial judge’s findings that:
- Disallowed a deduction for property in Al Taibeh, Jordan owned at the date of marriage;
- Fixed the value of date of marriage investments at $75,000 instead of the $215,000 claimed by the appellant;
- Imputed income to the appellant for child support and made orders pursuant to the Child Support Guidelines, SOR//97-175 including an order for the oldest child, Fatima, who was born in 1992;
- Awarded the respondent spousal support.
[2] For the reasons that follow, the appeal is dismissed.
BRIEF BACKGROUND
[3] The parties were married on September 27, 1990, and separated on February 28, 2007. The parties have three children who were ages 20, 19 and 7 at the time of trial.
[4] The appellant’s income was derived from ownership and rental of apartment buildings. Some of these buildings were owned by the appellant’s corporation, however, all rental income from apartments owned by the corporation was treated as the appellant’s personal income. Likewise, sales of apartments owned by the corporation were reported on the appellant’s personal income tax returns.
[5] During the marriage, the respondent did not work outside of the home.
THE APPEAL
Date of Marriage Deductions:
[6] Section 4(3) of the Family Law Act R.S.O. 1990, CHAPTER F. 3, provides that the onus of proving a deduction under the definition of “net family property” rests with the person claiming it. The trial judge did not accept the appellant’s evidence with respect to either the property in Jordan or the value of the investments. He allowed no deduction for the former and reduced the amount claimed for the latter.
[7] The appellant testified that an approximate 28 percent interest in the Jordan property had been given to him by his grandmother prior to the date of marriage. He did not produce evidence to corroborate what percentage of the land was owned by him at the date of marriage and did not obtain a proper valuation of the property. Absent documentation or corroboration, the trial judge held that the onus had not been discharged.
[8] The appellant’s claim to a deduction of $215,000 for investments at the date of marriage was based on benefits received as a result of the death of his first wife, and to the appellant’s inheriting their joint investments. Again, the appellant did not produce documentation to support his claim. However, the trial judge determined that his interest income could be used to substantiate the value of the investment. The trial judge accepted the appellant’s evidence that he earned 13 percent interest on his investments in the year of marriage. Using the analysis provided by the appellant's accountant, the trial judge found, at para. 150, that this “translates to a capital investment of $77,346”. The amount of $75,000 was allowed as a deduction.
[9] At para. 146, the trial judge explains why he rejected the appellant’s testimony that the amount of the investment was larger than that awarded. Key reasons included: the trial judge did not accept the appellant’s evidence that he did not spend any of the amount received; most of the amounts received would have been invested for almost the entire year and there was no evidence that the appellant “must have” invested the money in a one year guaranteed certificate.
[10] We agree with the trial judge that the appellant failed to discharge the onus required to obtain deductions claimed in his net family property. The appellant did not provide sufficient documentation to justify these deductions. In these circumstances, the limited deduction allowed by the trial judge was appropriate.
Income for Child Support:
[11] The trial judge imputed income to the appellant for several of the years after separation. The most significant amount in issue is the year 2007 when the trial judge found that the appellant’s income for child support purposes was 1.3 million dollars. This raised two issues: the amount of income determined by the trial judge and whether using the table amount to calculate support was inappropriate.
[12] The appellant’s line 150 income was $592,125. The trial judge added to that figure the non-taxable capital gain received in the year. Section 19(1) (h) of the Child Support Guidelines provides that these capital gains may be imputed as income. The trial judge was correct to do so.
[13] The appellant argues that the table amount of the Guidelines should not have been awarded on this income since the amount is too high. The trial judge addressed s. 4 of the Guidelines and found that, despite the high amount of the child support award, the table amount was not inappropriate in all the circumstances: see Francis v. Baker 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250. We see no reason to interfere.
[14] With respect to the years 2010-2012 the trial judge imputed income to the appellant in the amount of $75,000 for 2010 and $100,000 for each of 2011 and 2012. The appellant submits that, for each of these years, the income should be limited to his pension income of $40,000. In rejecting this submission, the trial judge made specific findings that the appellant’s income tax returns for these years did not reflect his true income, that he was not living only on capital, and that he had not explained how he was covering his deficit. The Guidelines provide wide discretion to the trial judge to impute income as is appropriate in the circumstances. It was open to the trial judge to make these findings.
[15] The trial judge awarded child support for Fatima, having found that up until March 1, 2012 she was a child of marriage because she was attending school. This finding was open to him on the evidence.
Spousal Support:
[16] The trial judge found that the respondent was entitled to spousal support on a compensatory basis and a non-compensatory basis. The appellant argues that she should be entitled to neither. She left the marriage with a significant equalization payment and has now remarried.
[17] The trial judge concluded that compensatory support was warranted based on the respondent’s economic disadvantage as a result of childcare obligations but that the amount to which she was entitled was “not large”. In dealing with non-compensatory support, the trial judge, focusing on the fact that the respondent not only remarried but also failed to disclose her new husband’s financial circumstances, concluded that the spousal support award should primarily be based on her entitlement to limited compensatory support.
[18] The trial judge summarized his assessment of the respondent’s entitlement to support at para. 369, as follows:
Given that the primary component of [the respondent’s] support entitlement is non-compensatory and, given [her] non-disclosure regarding her husband’s income, financial circumstances and contribution to household expenses, I find that the support obligation should be reflective primarily of the compensatory portion of [her] spousal support entitlement…
[19] The trial judge then awarded the relatively modest amount of $500 per month for 2011 and $400 per month for 2012. These amounts were a mere fraction of the amounts suggested by the Spousal Support Advisory Guidelines and reflect a significant discount as a result of the issues raised by the appellant.
[20] The determination of spousal support is highly individual and discretionary. On the basis of the evidence and the trial judge’s analysis, we see no reason to interfere with the exercise of his discretion in this regard.
DISPOSITION
[21] The appeal is dismissed with costs to the respondent fixed at $15,000 inclusive of all applicable taxes and interest.
“Doherty J.A.”
“Gloria Epstein J.A.”
“M.L. Benotto J.A.”