COURT FILE NO.: 559/08
DATE: 20090514
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, LEDERMAN AND SWINTON JJ.
B E T W E E N:
LOKESH ASHOKBHAI HINDOCHA
Appellant
- and -
NAMITA SURESHBHAI PATEL
Respondent
Erin L. Reid, for the Appellant
In Person (via telephone)
HEARD at Toronto: May 8, 2009
pardu J.,
[1] The husband, Lokesh Ashobhai Hindocha appeals from the judgment of Backhouse J., ordering him to pay lump sum spousal support to his former wife, Namita Suresbhai Patel, and ordering him to return property to her.
Nature of the Trial
[2] Although the order does not appear in the record before us, the husband submits that Czutrin J. ordered that the trial proceed on affidavit evidence and on written submissions, and that the husband acquiesced in this procedure for economic reasons. The judgment indicates in the preamble that on the consent of the parties, the matter was decided on the basis of the written record, including the affidavit evidence of both parties. There were no cross examinations on the affidavits. As difficult as it is to access credibility in these circumstances, the husband, who was represented by counsel, acquiesced in this process, which was proportional to the amounts in issue. The husband now complains that he did not have the opportunity to challenge the wife’s evidence, and the evidence of her treating physicians. However it was clear to all that the trial judge was to make her decision based on the written record. The husband did not challenge the admissibility of the medical evidence proffered by the wife.
Spousal Support
[3] The Divorce Act provides that “a court of competent jurisdiction may make an order…the court thinks reasonable for the support of the other spouse.” (s.15.2(1)). Section 15.2(6) provides that an order for support of a spouse should:
(a) Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) Insofar as practicable, promote the economic self sufficiency of each spouse within a reasonable period of time.
[4] Although the husband returned to Canada nine days after the marriage in India, and there was no cohabitation after that point, and although the parties did not enter into a relationship of economic interdependence, it was open to the trial judge to accept the wife’s evidence, supported to some extent by her general practitioner and psychiatrist, and the evidence of her parents, that the wife was emotionally devastated by the failure of the marriage and was unable to work because of depression. The trial judge made no palpable and overriding error in concluding that the wife had suffered economic hardship arising out of the breakdown of the marriage. The trial judge concluded, “The applicant should be required to contribute to the respondent’s support for a reasonable time period to enable her to get back on her feet and return to the work force. In my view, given the short duration of the marriage, it is appropriate to award a lump sum of support. The respondent shall be entitled to a lump sum of support of $12,000.00.”
[5] The trial judge did not indicate how she arrived at the sum of $12,000.00. In our view, she erred in failing to relate the amount of the lump sum to the wife’s actual needs. When the wife was working, she earned just under $400.00 per month when working in her chosen profession in India.
[6] The psychiatrist indicated that she would probably recover within 3 to 6 months. Under these circumstances, given the brevity of the marriage and the limited relationship, no more than the equivalent of one year’s employment earnings would have been appropriate, having regard to the husband’s income and resources. A lump sum was appropriate to effect a clean break between the parties. Having regard to all of the circumstances, we would reduce the lump sum spousal support award to $4,800.00.
Order for Delivery of Property
[7] The wife deposed that her parents, relatives and well wishers had given as “bride’s property” gold, silver, diamonds and pearl ornaments, clothes and utensils in India which were in the possession of the applicant at his parents’ home, and further that her parents had paid for the marriage and a dowry. The husband expressly denied that he or his parents had any of these possessions. The wife did not make any claim for the return of this property in her answer, and on this basis, the husband did not address this issue in his trial submissions. Under these circumstances, the trial judge erred in ordering the return of property. The only property related claim was a claim for equalization of net family property, which was dismissed on the basis that there had been no increase in the value of the net family property during this very brief marriage.
Conclusion
[8] The appeal is therefore allowed, and the order of the trial judge dated September 16, 2008 is varied as follows:
Paragraph 1 is amended to reduce the lump sum spousal support to $4,800.00
Paragraph 2 is deleted.
[9] The husband was substantially successful in his appeal, and is awarded costs fixed at $1,000.00 which may be set off against the lump sum spousal support. Order to issue dispensing with the necessity for approval as to form of this order by the wife.
___________________________
PARDU J.
___________________________
LEDERMAN J.
___________________________
SWINTON J.
Date of Reasons for Judgment: May 8, 2009
Date of Release: May 14, 2009
COURT FILE NO.: 559/08
DATE: 20090508
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, LEDERMAN AND SWINTON JJ.
B E T W E E N:
LOKESH ASHOKBHAI HINDOCHA
Appellant
- and -
NAMITA SURESHBHAI PATEL
Respondent
REASONS FOR JUDGMENT
PARDU J.
Date of Reasons for Judgment: May 8, 2009
Date of Release: May 14, 2009