Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230808 DOCKET: C70839

Feldman, Benotto and Roberts JJ.A.

BETWEEN

Wenwen Numair Applicant (Appellant in Appeal)

and

Muhammad Numair Respondent (Respondent in Appeal)

Wenwen Numair, acting in person Muhammad Numair, acting in person

Heard: July 5, 2023

On appeal from the order of Justice Andrea Himel of the Superior Court of Justice, dated June 13, 2022.

Reasons for Decision

[1] Since their separation in 2019 the parties have been embroiled in what can only be described as high-conflict litigation. This, despite the fact that the issues to be resolved were not complex. Indeed, the trial judge commented on the lack of proportionality.

[2] Following an 11-day trial, in a 49-page decision, the trial judge made detailed determinations with respect to equalization and child and spousal support. The wife now appeals alleging errors in law. In doing so, she revives submissions made to the trial judge.

[3] The primary errors alleged by the wife are:

1. The trial judge used the wrong gross-up rate for taxes. We do not agree. The evidence at trial set out various gross-up rates for income tax. It was open to the trial judge to determine the appropriate rate. We see no error.

2. The trial judge erred by deducting the renovation loan from the husband’s business value. The husband ran a Pizza Pizza franchise and was required to take out the loan. The trial judge addressed the loan and determined – in our view correctly – that it should be deducted from the value of the business. She made no error by deducting it.

3. The trial judge erred in calculating the value of the franchise by deducting the book value from the fair market value. There was extensive expert evidence at trial as to the proper calculation of the value of the franchise. The trial judge accepted the expert evidence of the business valuator. It was open to her to do so.

4. The calculation of the wife’s income should have been $20,000, not $34,000, because the trial judge should have deducted the CERB payment as she did for the husband. The trial judge explained that the husband received a one-time payment from CERB and so did not include it in his income. When she considered the wife’s income, the trial judge explained that it was fixed at $34,000 for two reasons: (i) it was approximately minimum wage, and the trial judge would “not go lower”; and (ii) that is the amount that the wife proposed and declared on her taxes. There was no error in this determination.

5. The Pizza Pizza business account should have been included in the husband’s net family property. The trial judge correctly rejected this submission. It formed part of the business value.

[4] The wife also raised minor errors in the judgment. Immediately following release of the judgment, the wife brought a motion under r. 25(19) to correct errors. The errors were corrected within 24 hours. The additional errors she now points to should have been dealt with at that time. In any event, the alleged errors are minor and of no significance.

[5] The appeal is dismissed with costs payable to the husband in the amount of $11,000 inclusive of disbursements and HST.

“K. Feldman J.A.”

“M.L. Benotto J.A.”

“L.B. Roberts J.A.”