ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-71632-00
DATE: 2012-06-01

B E T W E E N:

SHAMIZA JAGDEO

S. Jagdeo, in Person

Applicant

• and -

DERRICK PARMANAND JAGDEO

D. Jagdeo, in Person

Respondent

HEARD: February 13,14 and May 22, 2012

REASONS FOR JUDGMENT

SPROAT J.

INTRODUCTION

[ 1 ] The parties were able to settle matters related to custody and access. The issues addressed at trial were, therefore, all financial in nature. The issues were as follows.

INCOME OF MR. JAGDEO – CHILD SUPPORT

[ 2 ] Mr. Jagdeo works with his brother installing drywall. He belongs to a union and most of the work is performed in his unionized capacity. He does, however, take on some private work. The position of Ms. Jagdeo is that an income of $60,000 per annum should be imputed to him. Mr. Jagdeo’s position is that his 2008 - 2010 tax returns are a fairly accurate indication of his income. He testified that in 2011 he did only one private job. Payment was $6,000 which he split with his brother.

[ 3 ] Mr. Jagdeo’s tax returns indicate the following gross business income:

2008 - $49,502

2009 - $40,211

2010 - $57,947

[ 4 ] The tax returns for these years took substantial reductions for motor vehicle expenses and capital cost allowance or depreciation on a $40,000 Dodge Caravan minivan. Mr. Jagdeo, however, acknowledged that this minivan was used 90% of the time by Ms. Jagdeo. In 2008 – 2009, he and his brother drove to work in a 1994 Honda having minimal value. Other deductions were much smaller and relate to a partial write off of what would ordinarily be household expenses.

[ 5 ] For support purposes, looking only at the income tax returns, I would use the gross numbers for child support purposes.

[ 6 ] Ms. Jagdeo testified that, when they purchased a home in 2007, Mr. Jagdeo told her that his total income was $80,000 which included $20,000 in cash receipts.

[ 7 ] Ms. Jagdeo also took a logical approach to demonstrating Mr. Jagdeo’s true level of income. In Exhibit 1, Schedule ‘E’, she itemized what she said were the monthly expenses being paid by Mr. Jagdeo as of the date they left the matrimonial home. These expenses totalled $52,464 per annum. Expenses are obviously paid after tax and this would, therefore, logically support a gross income of more than $60,000.

[ 8 ] Mr. Jagdeo acknowledged that these were expenses which he generally paid by himself.

[ 9 ] It is obviously improper to not report income. It is also improper to take expenses that are not proper. Mr. Jagdeo also acknowledged while the parties were still living under the same roof to having taken out a line of credit and concealed that fact from Ms. Jagdeo. These factors must all necessarily affect his credibility and reliability. I would, therefore, accept the evidence of Ms. Jagdeo to that of Mr. Jagdeo where there is a conflict.

[ 10 ] I, therefore, impute an annual income to Mr. Jagdeo of $60,000 per annum. The parties were married for 17 years and have four children. The Child Support Guidelines provide for $1,403 per month in child support based on $60,000 per annum of income.

[ 11 ] Mr. Jagdeo shall, therefore, pay in child support:

(a) arrears of child support for the period September 2011 – May 2012 in the amount of $3,501 (actually paid $1,014 per month based on income of $44,000 – should have paid $1,403 per month based upon income of $60,000 per annum); and

(b) commencing June 1, 2012 child support of $1,403 per month based upon income of $60,000.

[ 12 ] Ms. Jagdeo spends $50 a month for the bus for one child to go to school. The other claimed section 7 expense is for one daughter to take a driver’s licence course at a cost of approximately $450.

[ 13 ] These are properly section 7 expenses and should be shared pro rata according to income. For this purpose, as set out in her financial statement, Ms. Jagdeo’s income is $35,111. As such, Mr. Jagdeo shall pay 63% and Ms. Jagdeo shall pay 37% of such expenses.

[ 14 ] A Support Deduction Order shall issue.

SPOUSAL SUPPORT

[ 15 ] Given the child support payable by Mr. Jagdeo, the Spousal Support Advisory Guidelines would not provide that any additional amount is payable on account of spousal support. I agree that there is no justification for an award of spousal support in addition to child support given the relative incomes of the parties.

EQUALIZATION

Introduction

[ 16 ] Neither party had properly filled out a financial statement related to property claims and equalization. They were, however, in agreement that there were only three items to be addressed, being the matrimonial home, Mr. Jagdeo’s pension and his claim to the value of basketball card-coin collection.

Proceeds of Matrimonial Home

[ 17 ] My belief at the end of the first two days of trial was that there might be an equalization issue related to the matrimonial home as I noticed that the parties had been paid different amounts from the net proceeds of sale. As explained below, however, it appears that this resulted from an agreement between the parties so that there is no equalization issue related to the matrimonial home.

[ 18 ] During the trial, I asked why Ms. Jagdeo had received a greater payment out of the proceeds of the matrimonial home. A September 6, 2011 Direction indicates that Mr. Jagdeo received $42,323 while Ms. Jagdeo received $78,913. She testified the explanation was that Mr. Jagdeo had taken out a $20,000 line of credit, of which she was unaware, and spent $20,000 which he had not accounted for.

[ 19 ] Given that the trial had to be adjourned to deal with the pension valuation issue, I indicated I would permit Mr. Jagdeo to obtain documentation as to what the line of credit was used for. When the trial resumed, Mr. Jagdeo indicated that he had not obtained any additional documentation and so had no additional evidence to provide regarding what the line of credit was spent on.

[ 20 ] Further, and perhaps most importantly, when the trial resumed on May 22, 2012 and I was reviewing these issues with the parties, I was provided with an August 26, 2011 agreement entered into by the parties which provided in great detail who was to be responsible for what expenses. It appears that it was this agreement which resulted in the unequal amounts paid to the parties pursuant to the September 6, 2011 direction. In other words, the parties agreed they were each entitled to a 50% share of the matrimonial home but the funds were paid out in unequal amounts as the result of an agreement prior to trial. There is no reason for me to revisit that agreement.

[ 21 ] For the sake of completeness, however, I will mention that the parties indicated that, contrary to what the direction stated, in fact Mr. Jagdeo received $47,323 of the net proceeds while Ms. Jagdeo received $73,913. In other words, Mr. Jagdeo received an additional $5,000. The result is that Ms. Jagdeo received approximately $25,000 more than Mr. Jagdeo. This is accounted for, in broad terms, by the fact that he was responsible for the $20,000 line of credit and also for at least a portion of a credit card debt on a card which he had activated without the knowledge of Ms. Jagdeo.

Pension Valuation

[ 22 ] Ms. Jagdeo obtained a Statement of Family Law Value for Mr. Jagdeo’s pension plan. Mr. Jagdeo does not take issue with the fact that Ms. Jagdeo is entitled to 50% of the pension.

[ 23 ] I accept and determine that the Family Law Value of Mr. Jagdeo’s Drywall, Acoustic, Lathing and Insulation Local 675 Pension Trust Fund (Pension Plan Registration Number 0586263) is as set out in the FSCO Family Law Form B completed by Claire Gill and dated April 11, 2012. As such, the Family Law Value is $83,055.28 and Shamiza Jagdeo is entitled to 50% of the Family Law Value.

[ 24 ] On December 6, 2011, Seppi J. ordered that Mr. Jagdeo provide the valuation of his pension. He did not do so. Ms. Jagdeo obtained the valuation at a cost of $600. He has paid Ms. Jagdeo $200. As such he is required to pay her the balance of $400.

Basketball Card – Coin Collection

[ 25 ] The evidence of Mr. Jagdeo was that, at some time he could not identify with precision, but while they were living separate and apart under the same roof, Ms. Jagdeo took a box containing these collections which he values in the thousands of dollars. Ms. Jagdeo’s testimony was that she did not take the box containing these collections and that she moved out of the matrimonial home before Mr. Jagdeo. I have indicated earlier why I prefer her evidence as to matters in conflict. I am not, therefore, satisfied that she has taken this collection. It is probable that it remained in Mr. Jagdeo’s possession or under his control after separation.

[ 26 ] Ms. Jagdeo is not claiming compensation on account of the collection so I exclude it from my consideration.

CONCLUSION

[ 27 ] Ms. Jagdeo wishes to apply to transfer her portion of the Family Law Value. A court order is required although Ms. Jagdeo was unaware of the precise form of the order that the Plan Administrator requires. She should provide the Plan Administrator with a copy of these Reasons and inquire as to the precise content of the required order. I will remain seized and will sign any orders required to implement this judgment.

SPROAT J.

Released: June 1, 2012

Duplicate Release Block

COURT FILE NO.: FS-11-71632-00

DATE: 2012-06-01

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SHAMIZA JAGDEO Applicant - and - DERRICK PARMANAND JAGDEO Respondent REASONS FOR JUDGMENT SPROAT J.

Released: June 1, 2012