COURT OF APPEAL FOR ONTARIO

CITATION: Sharma v. Sharma, 2016 ONCA 329

DATE: 20160503

DOCKET: C59404

Laskin, Pepall and Brown JJ.A.

BETWEEN

Jyotsna Sharma

Applicant (Respondent)

and

Tarun Sharma

Respondent (Appellant)

Geoffrey Wells and Ryan Kniznik, for the appellant

S. Giannandrea, for the respondent

Richard Startek, for Pawan Sharma

Heard and released orally: April 26, 2016

On appeal from the judgment of Justice Randolph Mazza of the Superior Court of Justice, dated August 22, 2014.

ENDORSEMENT

[1] At the beginning of the appeal we added the appellant’s brother Pawan Sharma as a party to the appeal. He has an interest in the appeal and his claim was adversely affected by the judgment at trial. Our intervention order, however, was on the following terms: (1) Pawan Sharma must accept the trial record; (2) the appeal would not be adjourned; and (3) his counsel would have 20 minutes for oral argument.

[2] On the appeal itself Mr. Sharma makes three main submissions:

(1) The trial judge erred by failing to find that Mr. Sharma had a debt to his brother of $265,000 arising from their joint real estate investments;

(2) The order for spousal support should be set aside and the issue should be sent back for trial because the trial judge erred in determining Mr. Sharma’s income; and

(3) The trial judge erred in making vesting orders in favour of Mrs. Sharma for two of the three properties in issue in these proceedings – the two Kitchener condominiums. Mr. Sharma also emphasizes that the matrimonial home should not be vested in Mrs. Sharma, but should be sold, as otherwise he is prejudiced because he will be deprived of any increase in the home’s value.

[3] Pawan Sharma submits that because the trial judge erred in his entire approach to the ownership of the properties and the calculation of an equalization payment, the only just result is to order a new trial.

[4] Dealing first with Mr. Pawan Sharma’s submission, we do not think a new trial is either necessary or desirable. In the light of the trial judge’s findings of fact and Mr. and Mrs. Sharma’s agreement on the values of the properties, we are in a position to correct any errors made by the trial judge.

(1) Alleged debt to Pawan Sharma

[5] As Mr. Wells candidly acknowledged in oral argument, this is a difficult appeal for Mr. Sharma because the trial judge rejected his principal claim that he owed his brother a $265,000 debt arising out of their real estate investments as “not plausible”. The trial judge’s finding was amply supported in the record. The debt was alleged to have arisen largely in connection with a $20,000 advance by Pawan Sharma to help his brother and sister-in-law purchase their first home at 19 Jacqueline Boulevard. The brothers alleged before the trial judge that Pawan Sharma’s $20,000 was for a half-interest in the home, that the $20,000 was never repaid and that Pawan’s half-interest escalated in value because of the increases in values of the parties’ later real estate purchases.

[6] However, the trust agreement and later transfer signed by Pawan Sharma evidenced that he had no beneficial interest in the Jacqueline property. Moreover, the trial judge reasonably inferred that his $20,000 was repaid when Pawan Sharma signed a transfer of the Jacqueline property and put a $23,000 down payment on his own home.

[7] Additionally, Pawan Sharma claimed that he had made ongoing cash contributions to the upkeep of the properties. There was no contemporaneous documentation that supported this claim. The only support for the claim was his and his brother’s evidence, which was rejected by the trial judge. Thus, Mr. Sharma’s first submission must fail.

[8] Once we disregard the alleged debt owed to Pawan Sharma, the parties agree on the equalization payment Mr. Sharma owes to Mrs. Sharma – it is $217,058.

(2) Spousal Support

[9] The trial judge imputed yearly income to Mr. Sharma of $197,000 and based on that amount ordered lump sum spousal support of $106,018. Mr. Sharma submits that the trial judge erred in the determination of his income for the purpose of spousal support. We disagree.

[10] Mr. Sharma’s application for a line of credit at TD Bank stated his annual income was $137,000. The trial judge’s bump up to $197,000 was justified in the light of Mr. Sharma’s more than comfortable lifestyle, which included ownership of three cars and rather expensive vacations. And even if the bump up was not entirely justified, the trial judge’s support order, if anything, was low. Thus, we decline to give effect to Mr. Sharma’s submission on spousal support.

(3) Vesting orders

[11] On the numbers the parties have agreed to, or have been ordered to pay by the trial judge, Mr. Sharma owes Mrs. Sharma $375,864 broken down as follows:

• Equalization payment - $217,058

• Spousal support - $106,018

• Trial costs - $55,000

• Less lump sum child support - $2,212

[12] In his October order, as security for the payment of this amount, the trial judge vested the two Kitchener condominiums in Mrs. Sharma. In our view, he was entitled to make that vesting order under s. 100 of the Courts of Justice Act, and s. 9(1) of the Family Law Act.

[13] On Mrs. Sharma’s net family property summary statement, version one, the two Kitchener condominiums are valued at $240,000 ($135,000 for one and $105,000 for the other). Deducting this amount from the amount owed by Mr. Sharma leaves a balance of $135,864. Also on the net family property summary statement, version one, Mr. Sharma’s half interest in the matrimonial home is $133,843 taking account of the line of credit against the property, but not any disposition costs, real or notional. Thus, Mr. Sharma’s equity in the three properties closely approximates the amount he owes to Mrs. Sharma.

[14] In his judgment after the trial, the trial judge vested the matrimonial home in Mrs. Sharma as security for the money owing to her. But in his later October order, the trial judge vacated this vesting order. We think he was right to do so.

[15] Mr. Sharma and the parties’ daughter are currently living in the home. Mr. Sharma has asked not to vacate the home for 90 days from today’s date. That is a reasonable request. Within 90 days, the home should be listed and then sold, largely in accordance with paragraph 108(d) of Mrs. Sharma’s factum. The conditions of sale are as follows:

(a) Mrs. Sharma shall have control of the listing and sale process;

(b) Mrs. Sharma shall list the home for sale within 90 days after Mr. Sharma and his daughter have vacated the home;

(c) Mrs. Sharma, through her counsel, shall inform Mr. Sharma of the listing agreement and the closing of the sale;

(d) Mr. Sharma shall be responsible for any increase in the line of credit from today’s date to the date of sale;

(e) Mr. Sharma’s net proceeds of sale shall be used to pay the balance owing to Mrs. Sharma under this order.

[16] We were advised by her counsel that Mrs. Sharma intends to sell the two Kitchener condominiums. If, after calculating the net proceeds of sale of all three properties, the total amount is less than the amount owing to Mrs. Sharma, Mr. Sharma shall remain liable for the deficiency. Conversely, if the net proceeds of sale of the three properties exceed the amount owing to Mrs. Sharma, she shall pay the excess to Mr. Sharma. To give effect to this provision, Mrs. Sharma, through her counsel shall advise Mr. Sharma of the listing agreements and closings of the sales on the two Kitchener properties, as well as on the matrimonial home.

[17] And finally, if any issue arises pending the sale, or in connection with the completion of the sale of any of the three properties, the parties may return to the trial judge for directions.

[18] In the light of these reasons, the appeal is dismissed. The respondent is entitled to her costs of the appeal, fixed in the amount of $35,000, inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“S.E. Pepall J.A.”

“David Brown J.A.”