Endorsement

Ontario Court of Justice

Justice L.S. Parent

Parties and Counsel

Applicant: Gurinder Kaur Randhawa (Present)

Counsel for Applicant: Archana Medhekar (Present)

Respondent: Iqbal Singh Randhawa (Present)

Counsel for Respondent: Murray Teitel (Present)

Proceeding Before the Court

[1] On February 19th, 2019, a motion brought by the Applicant, Ms. Gurinder Randhawa was heard seeking the following relief:

a) lifting the stay of the proceedings in the Ontario Court of Justice pursuant to section 36 of the Family Law Act, R.S.O. 1990, c.F.3, as am. 9 (hereinafter referred to as the "FLA") given the filing of an Application in the Superior Court of Justice in Brampton, ON by the Respondent on August 21st, 2018 seeking a divorce and claims for corollary relief; and, if granted;

b) an order for temporary spousal support.

[2] This is my decision, which was reserved, following the hearing of submissions on behalf of both parties.

Position of the Parties

Applicant's Position

[3] Counsel on behalf of Ms. Randhawa seeks an order lifting the stay of the proceeding in the Ontario Court of Justice and if granted, an order awarding her client spousal support of $637.00 based on an annual income of $129,288.00 imputed to Mr. Randhawa.

[4] Counsel submits that the stay of proceedings should be lifted, as allowing the stay to continue would be prejudicial to her client and that Mr. Randhawa, in pursuing an application for divorce the Superior Court of Justice, has acted in bad faith.

[5] In support of her position, Ms. Randhawa relies on the following documents:

a) a Notice of Motion, located at Tab 1, Volume 3 of the Continuing Record;

b) an affidavit sworn November 10th, 2018, located at Tab 2, Volume 3 of the Continuing Record;

c) a Financial Statement sworn November 10th, 2018, located at Tab 3, Volume 3 of the Continuing Record;

d) an affidavit sworn November 20th, 2018, located at Tab 1, Volume 4 of the Continuing Record;

e) an affidavit sworn January 14th, 2019, located at Tab 11, Volume 4 of the Continuing Record;

f) a Factum and Book of Authorities; and

g) a Supplementary Factum and caselaw.

Respondent's Position

[6] Counsel on behalf of Mr. Randhawa opposes the request to lift the stay of proceedings resulting in all issues between the parties to be dealt within the Superior Court of Justice proceeding.

[7] Counsel submits that Mr. Randhawa initiated the divorce application in the Superior Court of Justice in order to avail his client of protection given Ms. Randhawa's false allegations of abuse during their relationship and her motives in entering the marriage which Mr. Randhawa submits were fraudulent in order to gain immigration status in Canada.

[8] Counsel submits that the commencement of the divorce proceeding is not a stalling or delay tactic by Mr. Randhawa, but rather, has been initiated to protect his rights. Counsel submits that the divorce proceeding will also result in only one level of court determining whether or not Ms. Randhawa's intent and behaviour in entering the marriage was fraudulent.

[9] Counsel for Mr. Randhawa further submits that Ms. Randhawa is not entitled to the relief she seeks, namely, that the stay of proceedings be lifted. He submits that this relief is not open to her as she is requesting an order for equitable relief. Such a request, counsel submits, can only be sought by a party who comes before the court with "clean hands." Counsel submits that Ms. Randhawa does not meet this requirement as she has acted fraudulently.

[10] In support of his position, Mr. Randhawa relies on the following documents:

a) an affidavit sworn November 15th, 2018, located at Tab 2, Volume 4 of the Continuing Record;

b) a Financial Statement sworn November 15th, 2018, located at Tab 8, Volume 4 of the Continuing Record;

c) affidavits from six (6) deponents sworn between the period of November 8th, 2018 to November 15th, 2018, located at Tabs 3 to 7 and 9, Volume 4 of the Continuing Record;

d) an affidavit sworn December 13th, 2018, located at Tab 10, Volume 4 of the Continuing Record;

e) an affidavit sworn February 1st, 2019, located at Tab 1, Volume 5 of the Continuing Record;

f) affidavits from seven (7) deponents sworn between the period of January 28th, 2019 to February 4th, 2019, located at Tabs 2 to 8, Volume 5 of the Continuing Record;

g) a Factum and Book of Authorities; and

h) a Supplementary Factum and a Supplementary Book of Authorities.

The Facts

[11] The following facts emerge from the motion materials and the file:

i. The parties were married in India on December 28th, 2014;

ii. The marriage was arranged;

iii. At the time of the parties' marriage, Ms. Randhawa was living in India and Mr. Randhawa was living in Canada;

iv. Mr. Randhawa remained in India after the marriage until February 14th, 2015;

v. Mr. Randhawa returned to India in March 2016 and returned to Canada on April 23rd, 2016;

vi. Mr. Randhawa sponsored Ms. Randhawa in order to permit her to come to Canada. This sponsorship agreement required Mr. Randhawa to be financially responsible for his wife for a period of three (3) years with an expiration date of July 6th, 2019;

vii. Ms. Randhawa arrived in Canada on July 6th, 2016;

viii. The parties separated on October 15th, 2016;

ix. On June 27th, 2017, Ms. Randhawa filed an Application in the Ontario Court of Justice seeking spousal support and a restraining order under the "FLA";

x. The first appearance regarding the Application occurred on September 7th, 2017;

xi. Counsel for both parties attended at the first appearance date on September 7th, 2017 and agreed to a case conference being scheduled on October 18th, 2017;

xii. On September 7th, 2017, counsel further agreed, on behalf of their respective clients, to an extension of time for Mr. Randhawa to serve and file his Answer and supporting documents by September 22nd, 2017;

xiii. On October 16th, 2017, Mr. Randhawa filed his Answer and Financial Statement. These documents were permitted to be filed on consent of counsel for Ms. Randhawa. The consent, however, permitted filing by October 13th, 2017;

xiv. At the initial case conference on October 18th, 2017, the parties, with the assistance of counsel, consented to a temporary order regarding disclosure.

xv. At the initial case conference, Mr. Randhawa was permitted to withdraw his claim for divorce and the return of personal property and Ms. Randhawa was permitted to withdraw her claim for medical and life insurance coverage. The parties were permitted to withdraw these claims without costs;

xvi. The matter was adjourned for a further case conference on January 22nd, 2018;

xvii. On January 22nd, 2018, the parties, with the assistance of their counsel, agreed to a temporary order regarding disclosure and costs. The matter was thereafter scheduled to proceed to a motion brought by Ms. Randhawa for temporary spousal support and disclosure to be heard on April 13th, 2018;

xviii. On April 13th, 2018, an adjournment was requested by counsel for Mr. Randhawa and consented to by counsel for Ms. Randhawa. The motion was adjourned to proceed on June 18th, 2018. Also, an extension of time was given to Mr. Randhawa to serve and file his materials in response to the motion;

xix. On June 18th, 2018, the parties consented to the issues of duration and quantum of spousal support, both on a retroactive and go forward basis, be adjourned to a focused hearing on September 18th, 2018. Filing deadlines of trial affidavits by the parties was also consented to;

xx. The parties also consented to a final order on the issues of (a) Ms. Randhawa's entitlement to spousal support on a contractual basis, (b) a non-communication order between the parties and (c) three (3) payments of $292.00 of spousal support to be paid by Mr. Randhawa to Ms. Randhawa for the period between the June 18th, 2018 appearance and the focused hearing date;

xxi. On September 18th, 2018, the parties and counsel attended court. Counsel for Mr. Randhawa advised the court that a divorce application seeking corollary relief had been filed by his client in the Superior Court of Justice on August 21st, 2018;

xxii. The impact of the filing of the Application by Mr. Randhawa triggered an automatic stay of the proceedings before the Ontario Court of Justice pursuant to section 36(1) FLA;

xxiii. Counsel for Ms. Randhawa confirmed her instructions to proceed with a motion to lift the stay of proceedings and an order for temporary spousal support;

xxiv. The motion was scheduled to proceed on November 30th, 2018. Filing deadlines for each party's respective affidavits only, Financial Statements and Factum and Book of Authorities were also ordered on consent;

xxv. On November 30th, 2018, counsel, on behalf of Mr. Randhawa sought an adjournement as he was seeking leave to file additional affidavits by non-parties which he submitted addressed both requests of Ms. Randhawa. Counsel for Ms. Randhawa opposed the request for the adjournment;

xxvi. My endorsement of November 30th, 2018 grants the adjournment, however, notes on the basis that there is insufficient time to hear the spousal support motion given that submissions on the adjournment request began at 2:15 p.m. and ended at 3:50 p.m.;

xxvii. The motion was thereafter scheduled to proceed on February 19th, 2019 for one-half day. Also on consent, Mr. Randhawa was given leave to file the additional evidence by non-parties; and

xxviii. The motion proceeded as scheduled on February 19th, 2019.

[12] It is not disputed between the parties that:

(a) the Application filed by Mr. Randhawa on August 21st, 2018 in the Superior Court of Justice seeks a divorce and the following corollary relief, namely (a) "the sum of $68,000.00 for jewellery taken from the Applicant's [Mr. Randhawa] family in the perpetuated the marriage fraud" and (b) "an order preventing the Respondent [Ms. Randhawa] from seeking financial support from the government (federal or provincial)" and costs; and

(b) on consent, Ms. Randhawa has not filed an Answer in the Superior Court of Justice's proceedings.

Issues for Determination

Issue #1 - Order Lifting the Stay of Proceedings

The Law

[13] Counsel have both referred to the legislative framework to be considered in determining whether or not a stay of proceedings should be lifted pursuant to section 36 of the "FLA".

[14] There is no dispute between the parties that the effect of the filing of the Divorce Application by Mr. Randhawa triggers a stay of these proceedings pursuant to this section. There is a further agreement between counsel that this Court, however, retains discretion to lift the stay with the burden on the moving party.

[15] Counsel have each provided Factums and Books of Authorities which they each rely upon in support of their parties' respective positions. I have reviewed these cases.

[16] Justice Ellen Murray, in her decision in Abdul-Razak v. Ghawi, 2012 ONCJ 180, provides a clear pathway as to the considerations the court should consider in deciding whether or not a stay of proceedings should be lifted.

[17] Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as am. (hereinafter referred to as the "CJA") sets out the objective that the multiplicity of proceedings before the courts should be prevented.

[18] Justice Murray refers to the decision of Justice Kirkland in Lepper v. Lepper, 1986 CarswellOnt 1615 (Ont. Fam. Ct.) in support of the statement that the objective set out in section 138 of the "CJA", namely the avoidance of a multiplicity of proceedings before the court, is the dominant principle to consider when considering to lift a stay.

[19] Justice Murray, however, highlights two secondary factors which must also be considered by the Court. These are prejudice and bad faith. Justice Murray writes:

"Prejudice. Will a party or a child involved in a case be prejudiced by a failure to lift a stay? The commencement of a divorce proceeding and the consequent automatic stay of a prior CLRA or FLA case usually involves some delay in dealing with the issues in a prior case. Is the delay unreasonable, considering the circumstances of the case? Where children are involved, is that an emergency that requires and immediate decision that can be made more quickly in the prior case….

Bad faith. Has the party bringing the divorce application raised other issues in that application that can only be determined in a superior court? Is he/she bona fide in raising these issues, or does he/she have no real chance of success? Is she/he simply seeking to relitigate issues that are being dealt with in the prior proceeding, or manoeuvring to obtain an unfair tactical advantage?"

[20] In making these comments, Justice Murray cites the numerous cases in support of her summary of the questions to be considered by the court in dealing with a lifting motion.

[21] Justice Sheilagh O'Connell in Sadowski v. Sadowski, 2011 ONCJ 403, confirms that the concepts of "prejudice" and "bad faith" must be addressed by the Court in considering a motion to lift a stay of proceedings.

[22] Justice O'Connell provides further caselaw to support the proposition that the existence of "prejudice" and/or "bad faith" may constitute sufficient grounds for the lifting of the automatic stay.

[23] I find that the approach adopted by Justice Murray in Abdul-Razak and Justice O'Connell in Sadowski is appropriate in this case. I further find that this approach is the one adopted by counsel in their submissions and in the cases referenced by counsel.

Analysis

Multiplicity of Proceedings

[24] Counsel for Ms. Randhawa has submitted that the filing of the Application in the Superior Court of Justice by Mr. Randhawa has created a multiplicity of proceedings. Counsel submits that this has occurred given the corollary relief sought in that Application are distinct from the claims raised in the pleadings before the Ontario Court of Justice.

[25] Counsel for Ms. Randhawa submits that the granting of the lifting order is, therefore, the only factor preventing the court from determining the issue of spousal support. Simply put, she submits that if the stay is lifted, only the Ontario Court of Justice will determine the issue of spousal support as it is only in this court that this claim has been raised.

[26] Counsel submits therefore that multiplicity of proceedings should not prevent the court from exercising its discretion to lift the automatic stay of proceedings.

[27] Counsel on behalf of Mr. Randhawa submits that the Court should be concerned with the issue of multiplicity of proceedings given the fraudulent behaviour of Ms. Randhawa.

[28] Counsel submits that two levels of court will be required to determine whether or not Ms. Randhawa's behaviour and intent in entering the marriage was fraudulent given the claims raised in the proceedings filed in both levels of court.

[29] Counsel submits that the "CJA" requires such a situation be avoided.

[30] It is clear that the "CJA" seeks to avoid a multiplicity of proceedings. However, the statute seeks that it is to be prevented. I find that such language does not rule out the possibility that multiple proceedings may be found to support that a lift of the automatic stay should be granted.

[31] The proceedings filed by the parties in the Superior Court of Justice and the Ontario Court of Justice do not overlap. In other words, neither party, at present, has filed a claim which is equally within the authority of both courts to determine. There is therefore no competing authority between the two level of Courts.

[32] It is clear that Mr. Randhawa is raising, in support of his claims for corollary relief, an allegation of fraudulent behaviour and intent by Ms. Randhawa. However, I find that the mere raising of such an allegation in two levels of court does not satisfy me that the multiplicity of these proceedings denies further consideration of the request by Ms. Randhawa for an order lifting the stay of proceedings in the Ontario Court of Justice.

Prejudice

[33] Counsel for Ms. Randhawa submits that the lifting of the stay should be granted as the refusal of such an order would cause great prejudice to her client.

[34] Counsel submits that the issue of Ms. Randhawa's entitlement to spousal support has been determined on a final basis and on consent of the parties. Counsel referenced the final order granted on June 18th, 2018.

[35] Counsel further submits that, should the stay not be lifted, a significant delay will result and prejudice her client as the issue of spousal support has not been raised in the Superior Court of Justice proceedings.

[36] Counsel submits that her client would need to make the claim for support in her Answer following which, Mr. Randhawa would have a right of reply. Thereafter, the proceedings would follow the pathway provided for under the Family Law Rules for determination, including that a case conference be held prior to a motion.

[37] Counsel submits that the issues of entitlement to, duration of and amount of support would therefore need need to be determined within proceedings in the Superior Court of Justice.

[38] Counsel submits that the remaining issues surrounding her claim for spousal support in the Ontario Court of Justice, namely duration and amount, were scheduled to proceed to a final resolution, on consent of the parties, by way of a focused hearing on September 18th, 2018. Counsel submits that this final resolution of the remaining issues was halted by the unilateral actions of Mr. Randhawa thereby causing significant prejudice to her client.

[39] Counsel for Mr. Randhawa submits that there is an absence of evidence supporting the position that prejudice to either party will be created if the stay is not lifted.

[40] Counsel submits that if any prejudice can be found, it is due to Ms. Randhawa actions and not those of his client. Specifically, counsel submits that:

a) Ms. Randhawa evaded service of the Application for Divorce resulting in service only being effective at an appearance involving this proceeding;

b) There is no urgency before the court given that Ms. Randhawa only initiated legal proceeding ten (10) months after separation;

c) Ms. Randhawa has not yet filed an Answer in the Application before the Superior Court of Justice; and

d) Ms. Randhawa has proceeded with the scheduling and hearing of this motion, rather than proceeding with the matter in the Superior Court of Justice.

[41] After a careful consideration of the materials filed and submissions, I find that Ms. Randhawa has met the burden of establishing that she will suffer a prejudice which is unreasonable considering the circumstances of this case.

[42] In making this determination, I am mindful of the following evidence:

a) Mr. Randhawa consented to Ms. Randhawa's entitlement to spousal support. This consent led to the granting of a final order on this issue on June 18th, 2018;

b) Mr. Randhawa is not required, at this time, to provide support payments to Ms. Randhawa given that the existing order, dated June 18th, 2018 required him to make payments only for the months of July, August and September, 2018; and

c) Mr. Randhawa has not, despite conceding the issue of entitlement, plead the claim of spousal support in his application before the Superior Court of Justice thereby leaving this claim to only be raised by Ms. Randhawa in her Answer.

[43] I further do not find that Ms. Randhawa has been responsible for creating any prejudice.

[44] I accept that it is reasonable for her not to have filed an Answer in the Application before the Superior Court of Justice given her Application in the Ontario Court of Justice and the fact that the focused hearing, scheduled on consent of the parties, was stayed due to Mr. Randhawa filing his Application in the Superior Court of Ontario.

Bad Faith

[45] Counsel for Ms. Randhawa submits that Mr. Randhawa has demonstrated bad faith in commencing the application in the Superior Court of Justice.

[46] Counsel submits that Mr. Randhawa only began his application in the Superior Court of Justice after he consented, when represented by counsel, to the issues of duration and amount of spousal support being scheduled to proceed to a final determination by way of a focused hearing.

[47] Counsel submits that Mr. Randhawa was free to initiate any legal proceedings following the parties' separation on October 15th, 2016 and/or after being served on July 11th, 2017 with Ms. Randhawa's Application in the Ontario Court of Justice. Counsel references that Mr. Randhawa chose to file an Answer in the Ontario Court of Justice proceedings on October 16th, 2017 and file the proceedings in the Superior Court of Justice on August 21st, 2018.

[48] Counsel submits that Mr. Randhawa has engaged in an unfair tactic by initiating the application for divorce as he is trying to circumvent his obligation to pay spousal support. Counsel highlights that Mr. Randhawa is currently not paying any spousal support despite consenting to the fact that Ms. Randhawa is entitled to such support.

[49] Counsel further submits that Mr. Randhawa has not complied with existing orders within this proceeding regarding disclosure. Counsel submits that the filing of the Application in the Superior Court of Justice will result in further delays until the disclosure is provided. Counsel submits that such an approach is not in accordance with the Family Law Rules and the caselaw which requires early and complete financial disclosure to be provided in family matters.

[50] Counsel submits that the claims, other than the divorce, raised by Mr. Randhawa are not likely to succeed.

[51] Counsel submits that the corollary relief is not properly plead as the Application only seeks (1) a limited order regarding property, namely jewellery, and not the equalization of the parties' net family property, and (2) a prohibition order affecting Ms. Randhawa's ability to receive financial assistance from the government.

[52] Given these circumstances, counsel submits that Mr. Randhawa's behaviour demonstrates his true objective, namely to delay the adjudication of the issues of duration and amount of spousal support he should pay and re-open the issue of entitlement.

[53] Counsel submits that this position is strengthened by the fact that Ms. Randhawa's entitlement for support is partially based on a contractual basis, namely the sponsorship agreement, which is set to expire in July, 2019.

[54] Counsel on behalf of Mr. Randhawa submits that it is Ms. Randhawa who has engaged in bad faith.

[55] Counsel submits that this bad faith disentitles Ms. Randhawa from obtaining an order lifting the stay of proceedings as she is seeking equitable relief which cannot be granted as she is before the court without "clean hands".

[56] Counsel submits that Ms. Randhawa's intention in marrying Mr. Randhawa was only to enhance her immigration application to Canada. Furthermore, counsel submits that Ms. Randhawa has lied in alleging that she suffered abuse at the hands of Mr. Randhawa and other members of the paternal family during her marriage. Counsel submits that the affidavits from the deponents, other than Mr. Randhawa, clearly establish the fraudulent behaviour of Ms. Randhawa.

[57] Ms. Randhawa in her written materials and through counsel's submissions has set out her position that she suffered abuse by the actions of Mr. Randhawa and members of his family throughout her relationship with them. Mr. Randhawa, in his materials and through submissions on his behalf by his counsel denies these allegations.

[58] Mr. Randhawa in his written materials and through counsel's submissions has set out his belief that Ms. Randhawa entered into their marriage merely to advance her and her family's goal that she be permitted to live in Canada. Ms. Randhawa, in her materials and through submissions on her behalf by her counsel denies these allegations.

[59] After a careful review of all of the affidavits submitted, I am not prepared to make, on affidavit evidence only and without the benefit of cross-examination, a determination of credibility on the issue of the nature of the parties' relationship and their intent they entered into their marriage and thereafter.

[60] Submissions made and evidence filed on behalf of Mr. Randhawa sets out in detail the reasons why he believes that Ms. Randhawa has engaged in fraudulent behaviour by marrying him. This position raises concerns of bad faith.

[61] I cannot ignore the fact that the Application filed by Mr. Randhawa in the Superior Court of Justice seeks a divorce. This relief is sought as a primary claim and not in the alternative to an order declaring the marriage to be void or voidable.

[62] In order for that court to issue a divorce, the court must be satisfied that the marriage entered into by the parties is a valid one as without this, a divorce cannot be granted.

[63] In order for the stay of proceedings to arise, section 36(1) of the Family Law Act requires that an application seeking a divorce is commenced under the Divorce Act. In other words, the application must seek a divorce.

[64] I am also concerned that Mr. Randhawa only initiated this divorce application ten months after he withdrew the claim for divorce and property that was mistakenly sought within the Ontario Court of Justice proceedings within his Answer. I find that had Mr. Randhawa been sincere in seeking a divorce, such a claim would have been brought sooner.

[65] Given Mr. Randhawa's evidence to support his unequivocal belief that his marriage to Ms. Randhawa is fraudulent, I cannot but conclude that his application in the Superior Court of Justice was filed with the sole purpose of triggering the stay of proceedings in the Ontario Court of Justice; and therefore, delaying the determination of his obligation to pay spousal support and/or re-litigate the issue of Ms. Randhawa's entitlement.

[66] I find the deliberate decision by Mr. Randhawa to not raise the issue of spousal support in the Application before the Superior of Court of Justice knowing that he had consented to the issue of entitlement of Ms. Randhawa being resolved on a final basis concerning. Such a decision cannot be interpreted other than to delay any support obligation he may have towards Ms. Randhawa, be it on a contractual, compensatory and/or non-compensatory basis.

[67] Given this determination I find that Ms. Randhawa has met the burden of establishing that Mr. Randhawa has acted in bad faith.

Determination

[68] After careful consideration and for the reasons outlined above, I am satisfied that Ms. Randhawa has established, on a balance of probabilities, that the continuation of the stay of proceedings would cause significant prejudice to her in that a delay in the determination of the duration and amount of spousal support she is to receive is likely to occur.

[69] I am further satisfied that Mr. Randhawa, in commencing the Application for Divorce and corollary relief in the Superior Court of Justice on August 21st, 2018, namely twenty-eight days prior to the issues of duration and amount of spousal support being determined by a focused hearing in the Ontario Court of Justice, for the reasons stated above, amounts to bad faith.

[70] This determination is made on the evidence before me which includes the following:

a) the proceeding in the Ontario Court of Justice had been initiated on June 27th, 2017 with Mr. Randhawa filing an Answer and supporting documents on October 16th, 2017;

b) Mr. Randhawa, on June 18th, 2018, consented, when represented by counsel, to a final order on the issue of entitlement;

c) Mr. Randhawa, on June 18th, 2018, consented to the issues of duration and amount of spousal support that Ms. Randhawa is entitled to be determined on a final basis by a focused hearing;

d) Mr. Randhawa did not include the issue of spousal support in his corollary relief in the Application filed in the Superior Court of Justice; and

e) Mr. Randhawa has led evidence in support of his position that Ms. Randhawa entered into their marriage on a fraudulent basis yet his Application in the Superior Court of Justice seeks a divorce, which if granted dissolves a valid marriage.

[71] Accordingly, an order will go lifting the stay of proceedings triggered pursuant to section 36(1) of the FLA.

Issue #2 - Temporary Spousal Support

[72] There is no dispute between the parties that this Court has the authority, pursuant to sections 33 and 34 of the "FLA" to make a temporary order for spousal support given my decision to lift the stay of proceedings.

Position of the Parties

Ms. Randhawa

[73] Counsel for Ms. Randhawa seeks spousal support in the amount of $637.00 per month based on an imputed income to Mr. Randhawa of $129,288.00 per year.

[74] Counsel seeks to impute income to Mr. Randhawa at that level on the basis that:

a) Mr. Randhawa has failed to comply with the orders dated October 18th, 2017 and January 22nd, 2018 which required him to satisfy disclosure obligations within thirty days; and

b) The limited disclosure provided confirms deposits made to Mr. Randhawa's TD bank account in 2017 in the amount of $129,288.00.

[75] Counsel for Ms. Randhawa submits that given the absence of complete disclosure by Mr. Randhawa for the years 2016 to present, it is appropriate and reasonable for his income to be determined on the basis of information derived from the bank statements provided Mr. Randhawa for the year 2017.

[76] Counsel submits that Ms. Randhawa believes that Mr. Randhawa is intentionally hiding his income. Counsel submits that this position should be accepted by the Court given that Mr. Randhawa has not provided full disclosure from all sources, which include several family owned businesses which have been transferred between paternal members of the family during the parties' relationship and following their separation.

[77] Counsel has submitted authorities to support that the factors contained in section 19(1) of the Child Support Guidelines "CSG" can be relied upon in imputing income in cases limited to cases of spousal support.

[78] In seeking the amount of $637.00, counsel has provided a Divorcemate calculation, using an annual income of $129,288.00 for Mr. Randhawa, and annual revenue of $13,260.00 from employment while also recognizing that Ms. Randhawa receives the sum of $15,852.00 from social assistance.

[79] This calculation provides a "without child support" range of $178.00 as low, $207.00 as mid and $237.00 as the high amounts of support payable.

[80] Counsel submits, however, that the particular circumstances in this case, namely that Ms. Randhawa's entitlement to spousal support has been established on a contractual basis, namely a sponsorship agreement, permits the Court to consider awarding spousal support, even on a temporary basis, outside of the range provided by Spousal Support Advisory Guidelines.

[81] Counsel on behalf of Ms. Randhawa submits that the contractual liability of Mr. Randhawa, as a result of his sponsoring Ms. Randhawa, requires him to ensure that Ms. Randhawa's needs are met through his financial assistance.

[82] Counsel submits that Ms. Randhawa left her native country, where she had family support and a career, to join Mr. Randhawa in Canada. Counsel submits that the evidence supports a determination that Ms. Randhawa was financially reliant on Mr. Randhawa throughout their relationship. Furthermore, counsel submits that since their separation, Ms. Randhawa has had to rely on social assistance to assist in meeting her basic needs.

[83] Counsel submits that Ms. Randhawa recognizes her financial obligation to contribute to her own needs. Counsel references the evidence that Ms. Randhawa is currently attending college and works on a part-time basis. Counsel submits Ms. Randhawa is pursuing a diploma in order to achieve better financial stability.

[84] Counsel further submits that the amount of $637.00 per month, if awarded, would provide Ms. Randhawa with 10% of the parties total net disposable income.

[85] This position is advanced on the basis that the amount of $637.00 per month is reasonable in the circumstances should the Court accept submissions to impute to Mr. Randhawa an income of $129,288.00 and the actual revenue of Ms. Randhawa.

Mr. Randhawa

[86] Counsel on behalf of Mr. Randhawa submits that the request for spousal support should be dismissed.

[87] In his submissions, counsel acknowledges that Mr. Randhawa's disclosure was incomplete as of October 2018, however, since that time his client has "overdisclosed". Counsel submits that the evidence before the Court does not support submissions made to have income imputed to his client.

[88] Counsel submits that the evidence is clear that Mr. Randhawa is not receiving any income from any of the family businesses. Counsel on behalf of Mr. Randhawa submits that his client's annual income is $42,000.00.

[89] Furthermore, counsel submits that an income of $33,280.00 per year should be imputed to Ms. Randhawa given that she left her full-time employment, which could have resulted in this level of salary, in order to pursue a diploma.

[90] Counsel submits that Ms. Randhawa has failed to provide disclosure supporting that she is enrolled in school as she claims.

[91] Counsel submits that if support is to be ordered it should be in accordance with the SSAG calculations based on an income of $42,000.00 to his client and $33,000.00 to Ms. Randhawa. Counsel submits that the high end of the range of $15.00 per month is appropriate given the parties' incomes and twenty-one month old marriage which saw them cohabit for only six months.

Analysis

[92] There is no dispute that spousal support should be paid by Mr. Randhawa to Ms. Randhawa, given that entitlement was consented to by the parties. At this stage of the proceedings, the issue is limited to the amount.

[93] Each party asks for income to be attributed to the other at an amount which is higher than they each self-declare so as to support their respective position as to what amount of spousal support should be ordered.

[94] There is also no dispute between the parties that, even in the absence of an issue of child support, the Child Support Guidelines ("CSG"), are relevant to the issue of determining incomes and the appropriate amount of support payable. In fact, submissions made on behalf of both parties rely on the CSG.

[95] Counsel for Ms. Randhawa has also provided the decisions of Rilli v. Rilli, Poirier v. Poirier, 2010 ONSC 920, Murray v. Murray, 2010 ONSC 4278 and Brophy v. Brophy (2002), 32 R.F.L. (5th) 1, O.J. No. 3658 (S.C.J), aff'd. where the Court in these cases recognized the application of the CSG in cases where spousal support is the only issue for determination.

[96] I accept that the CSG can be used as an aid to determine income for spousal support purposes in the absence of a claim for child support.

[97] The Court's decision in Obodoechina v. Ayetor, 2013 ONCJ 738, established that the purpose of the CSG is to establish a fair standard of support that ensures that children continue to benefit from the financial means of both spouses after separation, using a methodology that strives to achieve objectivity, efficiency and consistency.

[98] I find that approach set out in Obodoechina equally applies to the determination of spousal support.

[99] Section 19 of the CSG permits a Court to impute income to either party.

[100] Counsel on behalf of Ms. Randhawa seeks to impute income to Mr. Randhawa on the basis of the disclosure provided, which she submits is incomplete and not in compliance with court orders. Counsel submits that given this non-compliance the most accurate information assisting the Court in determining Mr. Randhawa's income are his bank statements which, in 2017, showed deposits totalling $129,288.00.

[101] A review of the evidence does indicate that Mr. Randhawa's family has a business which has multiple locations. There is contradictory evidence regarding Mr. Randhawa's role, title and compensation arrangements within the family business.

[102] Mr. Randhawa's own evidence indicates a blending of personal and business expenses and revenue. Mr. Randhawa further acknowledges in his materials that the disclosure ordered has not been provided; however, he adds that some documents agreed upon cannot be produced given that they do not exist and/or he is still compiling the information.

[103] Mr. Randhawa seeks to impute income to Ms. Randhawa on the basis of intentional underemployment and/or unemployment, given that she has voluntarily left full-time employment in order to pursue full-time educational studies.

[104] In Drygala v. Pauli (2002), 61 O.R. (3d) 711, the Court of Appeal indicated the Court must consider the following three questions when income is sought to be imputed due to intentional underemployment and/or unemployment:

a) Is a spouse intentionally underemployed or unemployed?

b) If so, is the intentional underemployment or unemployment required by virtue of his reasonable educational needs?

c) If the answer to question number two is negative what income is appropriately imputed in the circumstances?

[105] The evidence provided indicates that Ms. Randhawa, since September 2018, has been enrolled full-time in a one year program studying to become a dental assistant. The evidence is that she hopes to graduate in July 2019. In addition, she continues to work, on an "on call basis" as a customer service representative at the Call Centre.

[106] Ms. Randhawa's current plan is detailed in terms of how her career will develop, the timing of it, and her expectation as to when she will be in a position to earn income.

[107] The Court must have a rational and solid evidentiary basis to justify an imputation of income on a party. The onus is on the person requesting an imputation of income to establish this evidentiary basis (see: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17).

[108] The party against whom the imputation of income is sought must make full and complete financial disclosure to ensure that the information required to make a decision on the issue is before the Court (see: Mansoor v. Mansoor, 2012 BCSC 602; Szitas v. Szitas, 2012 ONSC 1548).

[109] Once a party seeking the imputation of income presents the evidentiary basis suggesting a prima facie case, the onus shifts to the individual seeking to defend the income position he or she submitting to the court (see: Lo v. Lo, 2011 ONSC 7663, 15 R.F.L. (7th) 344).

[110] In order to impute income to a party pursuant to section 19 of the Guidelines, the Court must exercise a test of reasonableness. The Court must have regard to the party's capacity to earn in light of his employment history, age, education, skills, health, available employment opportunities, and the standard of living enjoyed during the marriage (see: Algner v. Algner, 2008 SKQB 132; Molnar v. Bruton, 2013 SKQB 301, 428 Sask. R. 136).

[111] After a review of the evidence, I find that Ms. Randhawa did leave her full-time employment, initially at a fast-food business in September 2017 and subsequently as a customer service representative at a Call Centre in September 2018, voluntarily. However, I accept her evidence that she did so as to accelerate the completion of the educational pathway she requires in order to become marketable in the Canadian employment field and not for the purpose of being intentionally underemployed.

[112] After a review of the evidence, I find that income should be imputed to Mr. Randhawa given the absence of complete financial disclosure and the evidence regarding his family business and his role within this organization.

[113] The matter before me for determination is a motion seeking a temporary order. By its very nature, such an order is intended to carry the parties' through to when the matter is to be considered at a trial. At this stage of the proceedings there has not been the testing of each party's credibility and evidence in support of their respective positions on the issue of income determination.

[114] Neither party chose to conduct questioning.

[115] Given the evidence before me, I am not satisfied that the evidence supports an imputation of income to either party at the level submitted by each counsel.

[116] Given these determinations and for the reasons stated above, I find that an amount of $550.00 per month as spousal support is reasonable for Ms. Randhawa to receive from Mr. Randhawa on a temporary basis.

[117] The following reasons specifically support the amount I have determined as reasonable:

a) Ms. Randhawa's needs, as outlined in her financial statement sworn October 11th, 2018, located at Tab 3, Volume 3 of the Continuing Record, show monthly expenses of approximately $1,200.00 per month (after deducting the car loan payment which indicates is not being paid) and does not indicate the financial aid she is receiving from social assistance;

b) Ms. Randhawa's ability to continue employment during her studies thereby generating some income which can be used to meet her daily needs;

c) Both parties' evidence regarding Mr. Randhawa's involvement in his family business;

d) Mr. Randhawa's evidence in his financial statement, sworn November 15th, 2018, located at Tab 8, Volume 4 of the Continuing Record which indicates his annual income of $42,000.00, yearly expenses of $33,841.00, and savings of only $2,257.00 despite his income exceeding expenses by $8,159.00 or approximately $680.00 per month;

e) Mr. Randhawa's evidence that he blends personal and business expenses and revenue in his bank accounts; and

f) Mr. Randhawa's admission that he has not provided complete financial disclosure.

[118] I further find that Mr. Randhawa's support obligation is to begin as of October 1st, 2018.

[119] The commencement date of October 1st, 2018 is appropriate given that:

a) On June 18th, 2018, the parties consented to the payment of spousal support to continue for the months of July, August and September, 2018 in anticipation of the focused hearing on the issue of amount and duration of spousal support to proceed on September 18th, 2018;

b) No spousal support has been paid since September, 2018; and

c) The focused hearing did not proceed as anticipated given the filing of a Divorce Application in the Superior Court of Justice by Mr. Randhawa which resulted in a stay of these proceedings.

Order

[120] For these reasons:

1) The Applicant, Ms. Gurinder Kaur Randhawa's, motion:

a) for the lifting of the stay of proceedings pursuant to section 36 of the Family Law Act, R.S.O. 1990, c.F.3 is granted; and

b) for temporary spousal support is granted, however, on the determination that Mr. Randhawa shall pay spousal support in the amount of $550.00 per month commencing October 1st, 2018 and on the 1st day of each month thereafter until further order of the court;

2) The Support Deduction order is to issue; and

[121] Counsel are encouraged to discuss the issue of costs for this motion and the appearance on November 30th, 2018.

[122] I further find that Ms. Randhawa was the more successful party given my decision lifting the stay of proceedings and granting an order for temporary spousal support.

[123] Failing agreement on the issue of costs, I will receive written submission, as follows:

1. On behalf of Ms. Randhawa, not to exceed three pages double-spaced plus attached bills of costs and any offers to settle the motion by May 14th, 2019;

2. On behalf of Mr. Randhawa, not to exceed three pages double-spaced plus attached bills of costs and any offers to settle the motion by May 28th, 2019; and

3. Any reply on behalf of Ms. Randhawa, not to exceed one page double-spaced by June 4th, 2019.

[124] Costs submissions should be exchanged between the parties through counsel and delivered to my assistant.

[125] The matter is currently scheduled to return before the Court on June 3, 2019 for a case conference, following the release of this decision, at 10:00 a.m. in Courtroom #202. Should counsel feel that the issue of costs must be determined prior to a further case conference occurring, a 14B motion seeking an adjournment on consent may be filed.

Justice L.S. Parent