Ariyaratne v. Ariyaratne, 2012 ONSC 1487

COURT FILE NO.: 44849-10

DATE: 2012-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Sirikkaththuge Anura Nandadeva Ariyaratne

Applicant

– and –

Divadalage Priyani Ariyaratne

Respondent

Applicant, in person

G. Schaffer, for the respondent

HEARD: February 7 and 8, 2012

The Honourable Mr. Justice G. E. Taylor

Introduction

[1] The parties were married on December 24, 1990 in Sri Lanka. The applicant husband is currently 55 years old having been born on July 18, 1956. The respondent wife is 51 years of age having been born on January 8, 1961. There are two sons of the marriage, Achale who was born on March 29, 1992 and Mahima who was born on June 5, 1998. The family immigrated to Canada in 1997. They initially lived in Alberta and moved to Ottawa, Ontario in approximately 2005. In 2010 they moved to Kitchener, Ontario so that Achale could attend the University of Waterloo. He is in his second year studying mathematics. Mahima is in grade 8. The parties separated on December 15, 2010. There has been no reconciliation since the date of separation and there is no reasonable prospect of a resumption of cohabitation.

[2] The contentious issues to be decided are:

a) the income of the applicant for support purposes;

b) the amount of child support be paid by the applicant including the appropriate contribution to the section 7 expenses of the children;

c) the amount, if any, of spousal support to be paid by the applicant to the respondent;

d) equalization of net family property;

e) exclusive possession of the matrimonial home.

[3] Before dealing with the contentious issues, there are some general observations which are appropriate. There was significant disagreement between the parties with respect to their respective contributions to the marriage prior to the separation. According to the applicant, he was a devoted husband and father. He worked hard to provide for his family throughout the course of the marriage. The various moves between cities were as a result of his desire to provide for his family financially. The acrimony in the relationship was largely as result of the attitude of the respondent. By contrast, according to the respondent, the applicant failed miserably as a father and financial provider to his family. He was selfish and was only concerned about himself. He provided little assistance with respect to child care and household responsibilities. He was controlling of the respondent and would not support her efforts to become financially independent.

[4] Unfortunately, it appears to me that the parties were more focused on directing criticism towards the inadequacies of the other spouse than they were on providing evidence to assist the court in deciding the issues which are in dispute. In many aspects I found the evidence to be unsatisfactory. I therefore must do the best I can with the evidence which was presented.

Custody

[5] The applicant has not had direct contact with his sons since the date of the separation. This is an unfortunate and unsatisfactory situation but in light of the ages of the children it will be their decision as to what, if any, relationship they will have with their father in the future. Although the applicant sought an order for joint custody in his Application for Divorce it was not seriously pursued at trial. Rather the applicant professes a wish to reestablish his relationship with his sons once he has secured remunerative employment. I hope that occurs.

[6] In the meantime, there will be an order that the respondent have custody of Mahima with access in accordance with his wishes. I do not think it necessary or appropriate to make a custody order in favor of Achale.

Income of the Applicant

[7] The applicant has always been employed in the field of information technology. The evidence is however that he last worked full-time in March or April 2011 when a contract position expired. The evidence about the applicant's income in the recent past and his anticipated future income is vague. In my view, the applicant was not forthcoming and truthful about his past income and future prospects. He did, however, stress on several occasions that he is confident he will secure a "good job" in the future which will allow him to fulfill his support obligations.

[8] The applicant produced a T4 for 2011 from ANU IT Services Inc. indicating that he received employment income of $12,500. He also produced pay stubs from Wal-Mart Canada Corp. indicating that he earned $3000 in 2011 and from Spherion indicating that he earned $82 in 2011. He testified that his total income for 2011 was $16,000. In cross examination, the applicant agreed that his contract position which continued until March or April 2011 paid him $35 an hour for a 37 1/2 hour week. He agreed with the suggestion that he would have earned approximately $22,000 from that source in 2011. As pointed out by counsel for the respondent, had he continued working and earning income at the contracted rate, his income for 2011 would have approximated $65,000 or more.

[9] According to the Notices of Assessment which were made exhibits at trial, the applicant earned $83,328 in 2008, $79,287 in 2009 and $24,545 in 2010. From this evidence I conclude that the applicant has the ability to earn significantly more than his stated income for 2011. Indeed I do not accept that the applicant only earned $16,000 in 2011. During the course of submissions, the applicant suggested that he should be able to find employment earning at least $45,000 annually although he was reluctant to agree to a time within which he could reasonably expect to commence such employment.

[10] In determining an amount of income to impute to the applicant, I take into consideration the evidence that he has on at least two occasions while in Canada been laid off from employment and has had to relocate to a new city. I have also reviewed the evidence presented by the applicant relating to his job search efforts which I find to be modest.

[11] Based on all of the evidence, I find that a reasonable income to be imputed to the applicant for the purpose of determining his support obligations is $50,000 per year. The applicant will be required to immediately advise the respondent of any and all employment offers that he receives together with details about his income and benefits.

Child Support

[12] I am satisfied that the applicant should be paying child support for two children. Achale, although he is of the age of majority, continues to reside with the respondent and is attending the University of Waterloo on a full-time basis. With respect to the younger child, Mahima, there is no dispute that he is residing with the respondent and is in grade 8. Sadly, at the present time, the boys have no relationship with their father and have no interest in spending time with him. Perhaps at the conclusion of these proceedings and when that the applicant begins to fulfill his financial responsibility to his children, that situation will change.

[13] Subsequent to the date of separation, the applicant made three monthly payments of $642 to the respondent on account of child and spousal support. Since March, 2011 he has made payments to the applicant of $574 in August, $281 in each of November and December and $253 in January 2012.

[14] According to the Child Support Guidelines in place for 2011, based on the imputed income of $50,000, the applicant should have been paying base child support of $753 per month for two children. This totals $9036 for the year. The applicant will receive credit for the payments made in 2011 which total $3062. According to the updated Child Support Guidelines in effect starting January 1, 2012, the applicant's base child support obligation is $743 per month for two children. Therefore, he should have paid $1486 for the months of January and February 2012. In fact he paid $253 for which he will receive credit. I therefore calculate the amount of base child support arrears to the end of February 2012 to be $7207.

[15] I accept that Achale’s university tuition is a section 7 expense. The applicant paid Achale’s tuition in January 2011 in the amount of $3698. The respondent has paid Achale’s tuition in September 2011 and February 2012 in the total amount of $7344. Achale’s total tuition from the date of separation until the present date amounts to $11,042. The evidence is that Achale has applied for and received student loans and grants which cover his books and other incidental expenses. In my view, it is appropriate for the parties to share Achale’s tuition expenses equally. Therefore, the applicant owes to the respondent the sum of $1823 as his remaining share of Achale’s tuition expense to date. The parties will also be required to contribute equally to Achale’s ongoing tuition costs subject to any appropriate adjustments based on Achale’s income and any change in income of the parties.

[16] Achale has recently undergone back surgery. As a result of his condition, it has been necessary for him to take taxis to and from school. To date that expense is being borne solely by the respondent. In my view, it is appropriate for the applicant to contribute equally to this expense. According to the evidence, the total cost of taxis to date is $1896. The applicant share of this expense is therefore $948.

[17] In summary, the applicant owes to the respondent as arrears of child support, the following:

base support to February 2012 $7207

tuition $1823

taxis $948

Total $9978

[18] On an ongoing basis, the applicant will be required to pay child support to the respondent for two children in the amount of $743 per month based on an income of $50,000 per year plus 50% of the expenses for Achale’s tuition and taxi fares required to transport him to school because of his medical condition.

Spousal Support

[19] The respondent was qualified as a civil engineer in Sri Lanka. Since coming to Canada she has not worked as a civil engineer. According to the respondent, the reason for that is because the applicant would not provide her with the necessary funds to qualify to work as a civil engineer in Canada. Unfortunately, no evidence was presented about the requirements to qualify as a civil engineer in Canada nor the cost to obtain such qualification. Although the respondent is very critical of her husband and his controlling ways, it appears to me that she was very resourceful over the years in establishing a successful child care business in Calgary and obtaining various jobs in Ottawa and the Region of Waterloo. She testified about having to take three buses to employment at the Frederick mall in Kitchener. The respondent took a French language course in Ottawa and apparently became fluent in that language. It is not clear to me that the respondent cannot qualify to practice as a civil engineer in Ontario.

[20] That said, I am also satisfied that this was a traditional marriage in which the applicant worked outside of the home and provided the majority of the financial needs of the family while the respondent remained in the home and cared for the children. The evidence is that the respondent earned $18,309 and 2008, $30,519 in 2009, $33,738 in 2010 and $22,530 in 2011. The respondent explained that in 2011 she only worked one job because of the time she spent with Achale during his surgery and recovery.

[21] The applicant was able to pursue his career throughout the period of time that the family has lived in Canada. The respondent has not advanced her career because of her assumption of child care and homemaking responsibilities. Accordingly, in my view, it is appropriate for the applicant to pay spousal support. Based on an imputed income to the applicant of $50,000, I find that a reasonable amount of spousal support would be $500 per month.

[22] The respondent requested spousal support in her answer dated January at 11 2011. In my view, the applicant should have paid spousal support commencing in January 2011. I therefore calculate the amount owing for spousal support to the end of February, 2012 to be $7000. The applicant will also be ordered to pay ongoing spousal support of $500 per month commencing March 1, 2012.

Exclusive Possession of the Matrimonial Home

[23] The position of the respondent is that she should not be required to move the children, particularly Mahima, from the home where they are currently residing and the neighborhood where they have established friendships. I am not convinced that an order for exclusive possession is justified on this basis due to the ages of the boys. However, I am concerned about the applicant not fulfilling his support obligations pursuant to my order. For that reason, I will make an order that the respondent have exclusive possession of the matrimonial home and its contents. It would not be right for the respondent to receive his share of the equity in the matrimonial home and then not honour his support obligations. On the other hand, if he is true to his word and secures appropriate employment and establishes that he will support his wife and children, he will be entitled to realize on his equity. If he does not honour his support obligations, the accumulated arrears can be a charge against his equity in the matrimonial home.

[24] There will therefore be an order that the respondent have exclusive possession of the matrimonial home located at 1267 Country Stone Drive, Kitchener together with all of its contents until June 30, 2015 following which date the applicant may seek an order for partition and sale.

Equalization of Net Family Property

[25] The parties are in agreement about many of the components of the net family property calculation. I propose to only deal with the areas of disagreement.

[26] The respondent maintains that the applicant owns property in Sri Lanka which she values at $50,000. The applicant acknowledges that he is the registered owner of a home in Sri Lanka where his parents currently reside but he maintains that the property was gifted to him by his parents after the date of the marriage. He therefore claims that it is excluded property.

[27] Both parties acknowledge that theirs was an arranged marriage. The respondent testified that part of the arrangement between the families was that the applicant would provide a house where the parties would reside. She testified that her part of the arrangement was to provide a dowry. No documentation was presented with respect to the alleged financial arrangement. The applicant was not questioned in cross examination about the financial terms associated with the arranged marriage.

[28] The respondent presented evidence of a deed for the transfer of property in Sri Lanka to the applicant. According to the translation of that deed, the transfer of the property to the applicant took place in 1992. This evidence would support the conclusion that the property was a gift to the applicant by a third-party after the date of the marriage.

[29] In answer to pretrial questioning by the respondent's lawyer, the applicant denied owning or ever owning any property in Sri Lanka. He also did not disclose the existence of the property in either of his financial statements filed in this proceeding. He explains his answer during questioning and his failure to disclose the existence of the Sri Lankan property in his financial statements on the basis that he simply did not pay any attention to the property in Sri Lanka registered in his name. I do not accept this explanation. I find that the applicant deliberately attempted to hide from his wife and the court his interest in this property. However, I am unable to make a finding based on the applicant's deceitfulness that the value of this property should be included in his net family property. The evidence is to the contrary.

[30] Even if I were to have come to the conclusion that the property in Sri Lanka registered in the name of the applicant should be included in his net family property, no evidence was presented as to the value of that property at the date of separation.

[31] Accordingly, there will not be included in the net family property of the applicant any amount in relation to the Sri Lankan property.

[32] The position of the applicant is that he did not remove any of the contents from the matrimonial home at the date of, or subsequent to, the date of separation. The applicant says that value of the contents of the matrimonial home which remained in the possession of the respondent is $4000. No evidence was presented on this point. The respondent's position is that the contents of the matrimonial home are practically worthless but in any event the applicant is entitled to any item of the contents of the matrimonial home that he wants. In these circumstances, I do not think it appropriate to include in the net family property of the respondent an amount for the value of the contents of the matrimonial home left behind by the applicant.

[33] The applicant testified that he incorporated ANU IT Services Inc. to permit him to do contract work in the field of information technology. No financial information regarding ANU IT Services was presented in evidence other than a business account statement for the period December 2, 2010 to January 4, 2011. It appears that both parties are content to treat ANU IT Services as though it is nothing more than a bank account of the applicant. The applicant says that the balance in the business account at the date of the separation was $1607 whereas the respondent takes the position that the balance of the account was $7130. According to the account statement, the balance in the account on December 7, 2010 was $1120. There was a deposit into the account on December 20, 2010 in the amount of $3164 and a further deposit of $2848 on December 24, 2010. On the same day a cheque was written on the account in the amount of $2000. The only evidence was that the deposit on December 20 was for an invoice which had been issued sometime in November 2010 but which included an amount for taxes. The invoice itself was not presented.

[34] In my view, it is appropriate to treat the deposit of the December 20, 2010 as an asset of the applicant at the date of separation. In the absence of evidence with respect to the nature of the deposit on December 24, 2010 I do not think it appropriate to include that amount in the applicant's net family property. In the absence of any evidence as to the tax component of the deposit of $3164 I propose to include the full amount in the net family property of the applicant. Therefore, I conclude that as at the date of the separation the balance in the account of ANU IT Services was $4284.

[35] The respondent includes in the net family property of the applicant the sum of $350 being the balance in a PayPal account. The applicant does not show a PayPal account in his net family property statement or financial statements. In the absence of any evidence as to the balance of this account, if there is such an account, I will not include this as an asset of the applicant.

[36] The respondent has a life insurance policy with RBC Insurance which has a cash surrender value. According to a policy statement for the period December 18, 2008 to December 17, 2009 the cash surrender value of the policy on December 17, 2009 was $5175. The respondent testified that she requested a further statement from RBC Insurance to cover the period from December 17, 2009 to a date shortly after the separation. What she received was a statement covering the period January 1, 2009 to January 15, 2010. That statement shows the cash surrender value as at January 15, 2010 to be $5283, an increase of $108. It is reasonable to conclude that the cash surrender value would increase by a like amount each month up to and including December 15, 2010. I therefore find the cash surrender value of the respondent's life insurance policy to be $6471 as at the date of the separation.

[37] According to the RBC Insurance statements, the “total investment value” of the policy was $7205 on December 17, 2009 and $7314 on January 15, 2010. No evidence was presented as to whether this is an asset over and above the cash surrender value of the policy, whether it includes the cash surrender value or is not an asset at all. Therefore the only amount included in the net family property of the respondent is the cash surrender value.

[38] Although the parties are in agreement that the value of the jointly owned matrimonial home is $330,000, they are not in agreement as to the amount, if any, that should be allowed for costs of disposition. The position of the respondent is that she would like to continue to reside in the matrimonial home into the indefinite future. The applicant wishes the property to be sold immediately so that he can realize on his equity in the property. In light of the conclusion I have reached on the issue of exclusive possession of the matrimonial home together with the uncertainty about whether the applicant will honour his support obligations, I conclude that the matrimonial home will not be sold in the immediate future but it may not remain in the possession of the respondent indefinitely. Therefore, in my view, and in an effort to achieve a level of fairness to both parties, I think it appropriate to reduce the agreed value of the matrimonial home by $10,000 to take into consideration disposition costs which are likely to be incurred at some date in the future which is not imminent.

[39] The respondent claims that she owned household contents, a vehicle, and jewelry at the date of the marriage. She also says that she had $6000 in the bank at the date of the marriage. The applicant's position is that neither party owned any significant assets at the date of the marriage. They agreed that there was a Mitsubishi Lancer automobile in existence at the date of the marriage but both claim ownership. No evidence was presented as to the value of household contents at the date of the marriage or what such contents were. No evidence of any bank balance was presented. The respondent introduced some documentation which was not translated into English but which would seem to suggest that she owned some jewelry at the date of the marriage. No evidence of any conversion rate was presented. The respondent also presented documentation which she testified was in relation to the sale of her jewelry in Sri Lanka in 2004 and 2009. Again this documentation was not translated into English. The amount for which the jewelry was sold is not apparent to me from such documentation. Nevertheless, I am prepared to conclude that the respondent owned some jewelry at the date of the marriage the value of which I arbitrarily fix at $2500 in the absence of any more satisfactory evidence on the point. The respondent will not be given credit for the value of any other assets which she says she owned the date of the marriage due to an absence of proof.

[40] The calculation of net family property and the equalization payment based on the above resolutions of the areas of disagreement and including the items on which there was agreement is attached as Schedule A. Accordingly, the respondent is entitled to an equalization payment of $12,893.

Divorce

[41] The parties having been separated for a period in excess of one year without reconciliation, a divorce order will issue.

Summary

[42] For the foregoing reasons, order will issue on the following terms:

a) the respondent will have custody of Mahima subject to the respondent's access in accordance with the child's wishes;

b) the applicant will pay to the respondent as support for Achale and Mahima base child support of $753 per month commencing January 1, 2011 and continuing until December 31, 2011 based on an imputed income of $50,000 per annum;

c) the applicant will pay to the respondent as support for Achale and Mahima base child support of $743 per month commencing January 1, 2012 and monthly thereafter based on an imputed income of $50,000 per annum;

d) the applicant will pay to the respondent 50% of the tuition and tax expense for Achale commencing January 1, 2011;

e) the applicant will pay to the respondent as spousal support the sum of $500 per month commencing January 1, 2011 and monthly thereafter;

f) the applicant is required to forthwith notify the respondent of any employment offers that he receives together with particulars of his salary or wage and benefits;

g) the parties are also required to exchange their respective income tax returns, together with all attachments, no later than May 15 of each year and to exchange Notices of Assessment within 10 days of receipt of same;

h) the arrears owing by the applicant to the respondent for child support and spousal support are fixed at $16,978 which are to be offset against the applicants equity in the matrimonial home;

i) the respondent is to have exclusive possession of the matrimonial home located at 1267 Countrystone Drive, Kitchener, together with all of its contents until June 30, 2015 after which stated the applicant may apply for an order for partition and sale;

j) any arrears of child and/or spousal support that accumulates pursuant to this order are to be a charge against and offset against the equalization payment in favour of the applicant and the applicant's equity in the matrimonial home;

k) the respondent is entitled to an equalization payment of $12,893 to be offset against the applicant’s equity in the matrimonial home;

l) the parties are divorced to take effect 31 days hence.

[43] If either party feels that there are calculation errors, they may make arrangements through the trial coordinator to re-attend before me to make submissions.

Costs

[44] Although I am not aware of offers that might have been exchanged, my present view is that the respondent achieved a greater measure of success than the applicant. Therefore, if the respondent is seeking costs she may make written submissions, through her counsel, within 14 days of the release of these Reasons. The costs submissions are not to exceed three pages in length in addition to a Costs Outline and any Offers to Settle. The applicant is to submit his written submissions within 28 days of the release of these Reasons not to exceed three pages in length in addition to any Offers to Settle.

G. E. Taylor J.

Released: March 5, 2012

Ariyaratne v. Ariyaratne, 2012 ONSC 1055