CITATION AND FILE INFORMATION

CITATIO N : Osanlo v. Onghaei, 2012 ONSC 2158
COURT FILE NO: FC-11-038088-00
DATE: 2012-04-05

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Donya Masooni Osanlo, Applicant

AND:

Alireza Onghaei, Respondent

BEFORE: McGee J.

COUNSEL: Elham Moaveni, Counsel for the Applicant

Rahul Kesarwani, Counsel for the Respondent

HEARD: April 4, 2012

endorsement

[ 1 ] This is the applicant wife’s Motion dated January 26, 2012 for:

1. An order for spousal support based on imputed income of $500,000 payable on the 1 st of each month, commencing January 1, 2012;

2. An order that the respondent provide documents relating to all of the respondent’s business (ONG Inc.) and personal bank accounts and all supporting documents for his recently filed Financial Statement; and

3. Reimbursement of costs associated with the cost of storage and moving of the household items being the sum of $5,700.

[ 2 ] The motion was originally scheduled to be heard on February 1, 2012. The respondent husband sought an adjournment which was granted on terms that he pay $3,000 on February 3, 2012; and $3,000 again on March 1, 2012 in addition to the $1,000 monthly payment of spousal support consented to on July 8, 2011.

Background

[ 3 ] The parties were married in Iran in 1999 [1] and are the parents of two children: Sobhan born July 21, 2001 and Sana Onghaei born November 11, 2004.

[ 4 ] While living in Iran in 2007, they purchased 7 Amanda Court in Richmond Hill for $882,300. Although the wife may have believed otherwise, title was held in the husband’s name alone.

[ 5 ] The couple successfully applied for landing in Canada. They arrived in May of 2008 and took up residence at 7 Amanda Court, Richmond Hill. On July 22, 2008 the husband purchased 30 Spadina Road in Richmond Hill for $860,000.

[ 6 ] The husband operates ONG Currency Exchange Inc. Little, if any information has been placed before the court with respect to this company. The company is wholly controlled and directed by the husband.

[ 7 ] The husband acknowledges that upon the family establishing itself in Canada, two luxury vehicles were purchased and funded through ONG Currency Exchange Inc.

[ 8 ] But for the vehicles, the husband deposes that the family’s only source of income has been his T4 earnings from ONG Currency Exchange Inc. According to his Notices of Assessment that income has been:

2008: $7,500

2009: $39,625

2010: $62,500

[ 9 ] This is quite an incredible statement given the lifestyle enjoyed by the family. The husband states in his Answer that at all times he paid the mortgage [2] , realty taxes and utilities for both Richmond Hill properties. It is not disputed that the matrimonial home was beautifully furnished; the family dressed well, ate out frequently, and travelled overseas during the period of 2008 to 2010.

[ 10 ] It is also not disputed that at some point during this period the wife was required to accommodate family life with a second wife [3] named Mariam Alimardani. The husband would alternate nights between the family home and Ms. Alimardani’s home. He and Ms. Alimardani have a child, Maral Onghaei, born September 9, 2009.

[ 11 ] There is no evidence to date as to who funded Ms. Alimardani’s and young Maral’s expenses. The husband’s December 15, 2011 Financial Statement deposes that Ms. Alimardani does not work outside the home.

[ 12 ] The husband states that he met Ms. Alimardani in Iran in 2007 during a period of separation from the applicant. The applicant wife denies that the parties were previously separated. The court notes that in 2007 the applicant wife and the husband were in the process of applying to Canada as a married couple.

[ 13 ] The applicant wife does not work outside the home. She has always been the children’s primary caregiver. She owns no property and has no independent source of income. She has no source of transportation and does not hold a driver’s licence. She has limited English skills. She did not believe that she had the ability to separate from the husband.

[ 14 ] On March 10, 2011 the parties returned to Iran to celebrate the Iranian New Year. While in Iran, all of the wife’s identification: her birth certificate, her passport, permanent residence card and Canadian identification, went missing. On March 19, 2010 the husband left for Canada with their two young children. Upon realizing that he and the children had left, she discovered that the husband had barred her exit from Iran through the Islamic Airport Control and Court Officials. Under Islamic law a wife cannot leave Iran without her husband’s permission.

[ 15 ] The wife was left in Iran with no money, no identification, no personal possessions and only her travel clothes. Her communication with the children was blocked until June 9, 2011.

[ 16 ] While trapped in Iran the wife learned that the husband was in the process of selling both Richmond Hill properties. Although unable to leave the country, she was able to instruct Ontario counsel to obtain an emergency order with respect to the sale proceeds of the properties, and obtained an order that the husband not remove the children from Ontario. By court order the children’s passports are being held by counsel.

[ 17 ] The net sale proceeds: $342,269 for 7 Amanda Court and $300,737.51 for 30 Spadina Ave., are currently held in trust.

[ 18 ] In his affidavit sworn June 8, 2011 the husband deposes that the parties’ joint purpose of travelling to Iran in March of 2011 was to separate. He states that while he was in Iran he commenced Divorce proceedings. He does not contest that when he returned to Canada he listed and sold the matrimonial home and 30 Spadina Ave., without the wife’s consent. He states that the wife did not want to return to Canada and that he was never requested to sign documents that would allow her to leave Iran. [4]

[ 19 ] The wife was finally able to return to Canada in June of 2011. She deposes that over $16,000 was paid on her behalf to obtain a replacement birth certificate, a new Iranian passport, a military national card and a Visa to travel to Canada.

[ 20 ] She arrived to learn that she had in effect been replaced by Ms. Alimardani, who now cares for her children. She has been unable to establish herself sufficiently to provide a home for the children, but she does see them regularly. For the first period after her return to Canada she resided in a modest local motel.

[ 21 ] The husband’s Answer at paragraphs 30 to 38 expresses no concerns with his new partner providing all of the children’s necessary care. He describes the children’s affection for their mother to have “naturally declined.”

Claim for Spousal Support

Income for Support Purposes

[ 22 ] Entitlement to spousal support is not in issue. Neither is it disputed that the wife has no source of income.

[ 23 ] The wife believes that the husband is a wealthy man worth in excess of 25 million. The husband’s submission is that he is in effect a pauper – he has no income and no assets - but for the sale proceeds of the Richmond Hill properties held in trust.

[ 24 ] The husband states that his current income for support purposes is “nil.” Both his Answer and his Affidavit sworn March 23, 2012 set out in great detail the decline of his industry, i.e. currency exchange, as a result of recent political turmoil. He states that he is in the process of closing his company office in Toronto and returning the leased vehicles.

[ 25 ] The husband states in his Answer that land values have dramatically decreased in Dubai and that he has lost in excess of 25 million dollars. In his only Financial Statement sworn December 15, 2011 he does not list ownership of any lands in Dubai; or any related debts.

[ 26 ] Within her evidence for today’s motion the wife submitted a pleading within the parties’ divorce before the Islamic Republic of Iran, Ministry of Justice dated October 10, 2011. In that pleading there are references to two properties held by the husband in Iran which are also not listed in his December 15, 2011 sworn Financial Statement.

[ 27 ] What does appear in his December 15, 2011 Financial Statement are business loan guarantees of 9.5 million in Dubai and 8.45 million in Germany. No details are provided.

[ 28 ] The husband has made a mystery of the true state of his financial affairs. There is no manner in which the court can assess the husband’s assertion that he is impecunious. He has not disclosed Financial Statements for ONG Currency Exchange Inc., Corporate Tax Returns, company or personal bank accounts. He has not provided details of any assets or debts within his Financial Statement.

[ 29 ] What the court can observe are the many inconsistencies within the husband’s pleadings, affidavit materials and submissions during this motion. His Line 150 income both during and after marriage is completely at odds with his personal and the family’s lifestyle. His admitted loan guarantees are proposed to exist without collateral security. The alleged collapse in his income over the past year (parallel to the wife’s claim for support) is not at all reflected in his current lifestyle.

[ 30 ] At the same time, it is possible that the husband never was a well secured financier, and rather, sought equity in the margins of heavily financed ventures. Perhaps the impetus for a quick sale of the Canadian properties was a response to debt collection rather than a failed marriage. Both explanations are equally plausible on the scant record placed before me.

Analysis

[ 31 ] In Kowalski v. Grant , 2007 MBQB 235 , 2007 MBQB 235, 219 Man. R. (2d) 260, 43 R.F.L. (6th) 344, [2007] M.J. No. 386, 2007 Cars­well­Man 422 (Man. Q.B., Fam. Div), the court set out the following principles in dealing with temporary spousal support motions:

1. Interim support is to provide income for dependant spouses from the time the proceedings are instituted until trial.

2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.

3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.

4. Interim support is to be based on the parties’ means and needs assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

[ 32 ] In Robles v. Kuhn , 2009 BCSC 1163 , 2009 BCSC 1163, [2010] B.C.W.L.D. 1935, [2010] W.D.F.L. 1330, [2009] B.C.J. No. 1699, 2009 Cars­well­BC 2239 (B.C.S.C.), the court added the following considerations:

1. On interim support motions, needs and ability take on greater significance.

2. On interim motions, the need to achieve self-sufficiency is of less importance.

3. Interim support should be ordered within the SSAG ( Spousal Support Advisory Guidelines ) range unless exceptional circumstances dictate otherwise.

4. Interim support should only be ordered where a prima facie case for entitlement has been set out.

[ 33 ] On this record the court cannot conduct a complete inquiry into all aspects and details of either the husband’s financial affairs, or the wife’s economic disadvantage resulting from the end of the marriage. The wife has failed to place a Financial Statement before the court in this proceeding. Although this failure is not fatal to the wife’s motion, it does remove important evidence from the court’s consideration of her need for spousal support.

[ 34 ] The record before me contains gaps, discrepancies and inconsistencies on the part of both parties that can only be determined at trial. Until trial, a decision on spousal support must be made on the available record.

[ 35 ] It is clear from the affidavit evidence that the wife is without any savings, financial means or ability to earn income in Canada. Her children reside here and she wishes to be close to them. She wishes to improve her position so that she can care for them. Her experience of the separation has been catastrophic.

[ 36 ] The husband’s December 15, 2011 Financial Statement and his March 23, 2012 Affidavit is the best evidence that I have with respect to his income for support purposes. I note that he has had notice of this Motion since the end of January 2012. He has chosen not to update his Financial Statement. He deposes in that Financial Statement that his income is $62,500 per annum.

[ 37 ] His affidavit material speaks to a “70%” decline in his income in September 2011. But that decline is in no manner whatsoever evidenced. The husband is the only person in control of his financial disclosure and he has chosen not to provide any credible documentation evidencing a decline in his income.

[ 38 ] The December 15, 2011 Financial Statement shows the husband’s annual expenses as $89,763.96. Although two expenses within his budget might have tax relief: spousal support of $1,000 and tutoring for a child; no tax adjustments are identified within his budget, leaving the whole amount of $89,763.96 in pay.

[ 39 ] The Statement does not show that any of the running expenses are being paid from debt. Rather, the husband shows $5,000 in current savings and no debt acquired since the date of separation. The savings have reduced from date of separation, but there is no evidence that the savings have been used to offset budget deficiencies.

[ 40 ] The Statement also shows no source deductions, or payments of income tax from the husband’s T4 income of $62,500.

[ 41 ] I accept the father’s expenses as the best indication of his income for support purposes, but not as a complete record. The expenses are rounded and appear understated. For example, on a rental property of $4000 per month the husband states that his utilities are limited to $225 per month. By his own admission the Statement does not reflect the fact that the company pays for vehicle expenses.

[ 42 ] Neither [5] can I accept the husband’s statement in the Financial Statement that Ms. Alimardani earns $2,500 per month and pays one half of the $4,000 a month rent, when the same document states that she does not work outside of the home.

[ 43 ] I find that expenses for the husband’s current lifestyle are in the range of $120,000. This finding reflects the full rent of $4,000 per month, not the $2,000 alleged to be the husband’s portion. This adds $24,000 in after tax expenses to his annual budget. I have also added back a modest amount for vehicle expenses.

[ 44 ] The expenses are being met without resulting debt accumulation, and so I find that the husband’s income for support purposes it that of his expenses: $120,000. Within this amount, I will treat $62,500 as taxable income and the balance as non-taxable income to be grossed up.

Application of the Spousal Support Advisoru Guidelines (SSAG)

[ 45 ] The Court of Appeal in Fisher v. Fisher , 2008 ONCA 11 , 2008 Cars­well­Ont 43 (Ont. C.A.), states that the SSAG, although only advisory, are a useful starting point to assess the quantum of spousal support, once entitlement is established. They have been endorsed as ideal for use on temporary support motions. See D.R.M. v. R.B.M. , 2006 BCSC 1921 , 2006 BCSC 1921, 63 B.C.L.R. (4th) 331, [2006] B.C.J. No. 3299, 2006 Cars­well­BC 3177 (B.C.S.C.). If the court is to depart from the SSAG ranges, reasons must follow.

[ 46 ] The SSAG ranges are $1,803 per month in the low-range, $2,103 in the middle range and $2,404 per month in the high range. As the custodial parent as payor model is engaged, the respective net family properties are in the range of a 80/20 split, with the high range only allowing the wife 21.1 % of net disposable income.

[ 47 ] I find that this is an appropriate case, and a rare case, in which the court ought to depart from the SSAG ranges. The inequality of household funding within the custodial payor formula is intended to recognize the financial responsibility for children in a payor’s care. At the same time, a status quo in primary parenting cannot be achieved through high handedness, misadventure or fraud.

[ 48 ] I find on a prima facie basis that the mother never intended to be separated from her children. Nothing in the events of March 2011, as related by either party speaks to an intended or needed change to the mother’s role as primary care taker for the children. She took steps immediately upon becoming trapped in Iran to secure her children’s residence in Ontario. Even today, it is not the father who is the children’s primary caregiver. By his own admissions within his Answer it is his new partner, or as understood by the applicant – his second wife, who has taken this role.

[ 49 ] I see no basis to award an amount limited to the custodial payor range of the SSAG in the face of a course of dealing which was never on its merits indicative of a change in primary care. To limit the award of spousal support to the high range of the custodial formula would in my view frustrate the intention of the Guidelines : to financially support the role of a primary care parent.

[ 50 ] The mother should have an equal opportunity to settle into accommodations suitable for the children. For that reason, I am prepared to make an award outside the operation of the SSAG custodial framework and rather look to a more equitable sharing of net family income.

[ 51 ] I find a reasonable holding amount on a temporary basis, in light of the parties’ respective financial circumstances at this time to be an award of 35% of the parties’ net disposable income to the wife. On the income set out in paragraph 44 above, 35% of net disposable income results in a taxable payment of $4,260 to the wife. With this payment her after tax income is $3,440 and the husband’s is $6,389.

[ 52 ] Without a Financial Statement from the wife, I am left with a general approach to assess the wife’s needs, while balancing the funding of the children within the husband’s home to whom she cannot contribute. I also recognize that there is a third dependent child in that home.

[ 53 ] The spousal support order can be adjusted at trial upon the father providing fulsome financial disclosure, the mother providing a budget and plan for entry into the workforce and any changes to the children pattern of time between their parent’s households.

[ 54 ] Order to go that the husband shall pay spousal support of $4,260 to the wife commencing January 1, 2012 with credit for the monthly amounts of $1,000 already paid. Support deduction Order to issue accordingly.

Disclosure

[ 55 ] The applicant also seeks an order for disclosure. Order to go that the respondent husband shall provide the following disclosure on or before May 15, 2011. The husband may not take any further steps in the proceeding until such time as the asterisked items are produced.

(i) Monthly bank statements for 7272022 Canada Inc. operating as ONG Currency Exchange for the period of January 1, 2010 to April 1, 2012. *

(ii) 2010 and 2011 Corporate Tax Returns for 7272022 Canada Inc. operating as ONG Currency Exchange. *

(iii) Monthly bank statements for any company in which the respondent husband has an interest, both in Canada, in Iran and any other jurisdiction, from January 1, 2010 to present.

(iv) All personal bank statements of the respondent held in Canada, in Iran and any other jurisdiction from January 1, 2010 to present.*

(v) Copy of the husband’s current Equifax report.

(vi) The Husband Income Tax Return with attachments and schedules for the taxation years of 2009, 2010 and 2011. *

(vii) Copy of all leases related to the respondent’s current residence, 24 Dunloe Rd, Richmond Hill, Ontario. *

(viii) Copy of vehicle leases for any vehicle driven by the respondent in 2010, 2011 and 2012. Copy of applications for vehicles lease(s.)*

(ix) A copy of the respondent’s passport(s) valid for the period of January 1, 2010 to present notarized by counsel.*

(x) A copy of the respondent’s birth certificate(s.)

(xi) A copy of the respondent’s Landing papers to Canada and custom declaration with Border Services Canada on Landing.*

(xii) A copy of the respondent’s application for immigration to Canada.*

(xiii) A copy of the Respondent’s credit card statements from January 1, 2010 to present.

(xiv) A copy of the respondent’s credit card statements for all business/corporations that the respondent has interest in, from January 1, 2010 to present.

(xv) An updated sworn Financial Statement.*

(xvi) All copies of deeds of Land held by the respondent in all jurisdictions; notarized by counsel; translated by counsel. *

(xvii) Proof of all payments made towards rent by the respondent’s common law spouse.

[ 56 ] Order to go that the applicant wife shall provide the following disclosure on or before May 15, 2011. The wife may not take any further steps in the proceeding until such time as the asterisked items are produced.

a. All personal bank statements of the respondent held in Canada, in Iran and any other jurisdiction from January 1, 2010 to present.*

b. A copy of the wife’s passport(s) valid for the period of January 1, 2010 to present, notarized by counsel.*

c. A copy of the wife’s birth certificate if in her possession.

d. A copy of the wife’s credit card statements from January 1, 2010 to present.

e. A sworn Financial Statement.*

Repayment of storage fees

[ 57 ] It is not disputed that last summer the husband required the wife to pay to him $5,700 in moving and storage fees in order to release to her, her own furniture and personal belongings, from the matrimonial home that he sold without her consent. The wife paid the monies from borrowed funds. At the time it appeared to her to be the most expeditious manner of obtaining her possessions. She now seeks a return of the $5,700.

[ 58 ] Within a broad reading of Section 24(1) of the Family Law Act, I am prepared to make this order. The husband shall immediately pay to the wife the amount of $5,700 from his share of the sale proceeds held in trust. This order shall be sufficient authority to release the funds from trust.

Costs

[ 59 ] Any submissions for costs are to be received within 20 days of release of this decision and are limited to three pages, exclusive of a Bill of Costs or Offer to Settle. Response may be filed 10 days later.

Justice H. McGee

Date Released: April 5, 2012

[1] The date of marriage varies amongst the various documents and must be corrected prior to trial. No issue turns on the date of marriage. The error may result from conversion to the Gregorian calendar.

[2] Husband’s Affidavit of June 8, 2011 states that the Amanda Street mortgage was $920,000 and the Spadina Street mortgage was $860,000.

[3] Counsel for the applicant refers to Ms. Alimardani as a second wife. The respondent’s counsel objects. It is unclear to the court what term to use. The husband’s Answer states that in 2009 he wanted to protect Ms. Alimardani from prosecution under Iranian law for having a child while unmarried, so he suggested immigration to her. Her legal status in Canada, time of entry and basis for landing is undisclosed.

[4] He does not answer the statement that he took steps to bar her exit from Iran.

[5] The husband’s counsel states that he has a copy of the lease and that it is in Ms. Alimardani’s name, but he has neither disclosed the lease agreement to Counsel, nor provided it to the court.