COURT FILE NO.: FS-08-339507

DATE: 20120621

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HUSSEIN NOORMOHAMED DADA

Benjamin Salsberg, for the Applicant and the added parties

Applicant

• and -

KHATOON SHERALI KASSAM JIVRAJ also known as KHATOON DADA

Ainaz Jiwa, for the Respondent

Respondent

MOHAMMED HUSSEIN DADA AND NAUSHAD HUSSEIN DADA, added parties

HEARD: May 28, 29, 30, and June 1, 2012

MESBUR J.

Introduction:

[1] The parties are husband and wife. They separated in the fall of 2006 after a seven year marriage. It was a second marriage for each of them. The applicant husband is now 86. The respondent wife is 73. The added parties are two of the husband’s sons.

[2] The husband started this case by simply claiming a divorce and no other relief. The wife then delivered an Answer. In it she asks the court to set aside the parties’ marriage contract, and award her an equalization of net family property, spousal support and tort damages.

[3] The primary issue in this case is whether the marriage contract the parties signed shortly before their marriage is valid. The husband takes the position it is; the wife says it is not. If the marriage contract is set aside, then the court must determine the net family property of each party and the appropriate equalization payment. An issue that bears on the question of equalization is whether, as the wife suggests, two of the husband’s sons hold or held title to the former matrimonial home in trust for their father. If the marriage contract is set aside, there is also an issue of whether the wife is entitled to spousal support, and if so, in what amount. Last, the wife claims damages for the husband’s treatment of her, primarily relating to what she characterizes as the husband’s unreasonable sexual demands.

The facts as I find them:

The parties’ backgrounds

[4] The husband, Mr. Dada, was born in Kenya in 1925. He attended elementary school until grade six or seven, and then entered the work force. First, he worked for a small supermarket. After that he joined a bakery company where he worked in the accounting department. He described himself as becoming a “semi-accountant.” From there, he began to work for a bookmaker (a legitimate business in Kenya), eventually starting his own bookmaking business in 1963 with some partners. He worked there until his retirement in 1991. On his retirement his partners purchased his shares in the business. Along the way, Mr. Dada had married, and he and his wife had five children: a daughter and four sons.

[5] After retiring, Mr. Dada sold all his assets in Kenya and moved to North America where all his children had relocated. His daughter was living in Texas, three of his sons were in New Jersey and one son was in Calgary. He and his wife moved to New Jersey to be closer to their children. They bought a small condominium there.

[6] Sometime in the early 1990s Mr. Dada’s wife fell ill. They decided to relocate to Calgary where they felt she could obtain better medical treatment. They lived with their son Naushad in Calgary, in his rented apartment. They stayed there until Mr. Dada’s wife died in 1996. After her death, Mr. Dada continued to live in Calgary with his son.

[7] In about 1998 or so, Mr. Dada decided to move to Toronto in order to make it easier for his New Jersey sons to visit him. He put a deposit on a Richmond Hill town house that was under construction. When the town house was finished, Mr. Dada completed the purchase. He became the registered owner of the property when the deal closed in March of 1999.

[8] The respondent wife was also born in Kenya. She was born in 1938. The parties and their counsel referred to her as “Khatoon”, as will I. Khatoon is now nearly 74. She married in Kenya, and she and her husband had two children, a son and a daughter. After 35 years of marriage, her marriage broke down. She was divorced in Kenya in the late 1990s.

[9] Khatoon has about a grade 7 education from Kenya. She has never worked outside the home for wages, other than occasionally helping her ex-husband in his business.

[10] Because Khatoon’s sister lives in Toronto, their mother relocated here as well. This meant Khatoon had some close family in Canada. As a result, Khatoon became a frequent visitor to Canada, particularly after her mother became ill. In 1998 on a visit to Canada, Khatoon spent some of her time with friends and family on the west coast, as well as in Edmonton. It was while Khatoon was in Edmonton that the parties had their first contact with one another.

The parties meet

[11] Mr. Dada testified that after his wife’s death he was not interested in forming a new relationship, but while he was visiting his sons in New Jersey, he had a call from an old friend from Nairobi. This gentleman was Khatoon's uncle, who was then living in Vancouver. According to Mr. Dada, the uncle told him about his niece, who was recently divorced. He asked Mr. Dada how long he intended to stay alone, and told him he needed to be with someone. Mr. Dada told the uncle he was not ready for a new relationship, but would call him when he returned to Calgary.

[12] After he returned to Calgary, Mr. Dada did not call the uncle. The uncle began to call Mr. Dada’s sons, asking why their father had not called him. Eventually, Mr. Dada called the uncle. The uncle told him his niece Khatoon was staying with someone in Edmonton, and Mr. Dada should call her. The uncle gave Mr. Dada Khatoon’s telephone number.

[13] Mr. Dada testified that he had known Khatoon's former husband from playing cards with him in Nairobi, so he had a sense of who she was. Mr. Dada then telephoned Khatoon in Edmonton.

[14] According to Mr. Dada, he explained to Khatoon that her uncle had given him her telephone number. Mr. Dada says that Khatoon told him she wanted to settle down, to which he replied because of the difference in their ages (he was about 73 at the time and she was 60), if they did get married there must be an agreement between them. He testified that he did not know at the time what such an agreement was called, but he now knows it to be a prenuptial agreement. He says his friends had told him that these kind of agreements were important in a second marriage in case something went wrong. Mr. Dada testified that a marriage contract was critical to him. He says he raised it in their first discussion. I find this very hard to believe if Mr. Dada was truly uninterested in forming a new relationship at this time. Khatoon has no recollection of any discussion of a contract in this initial conversation.

[15] Mr. Dada explained that he understood Khatoon’s visa was expiring soon and she would be returning to Toronto before going back to Kenya. He told her of his plan to relocate to Toronto and that he had purchased a home here. He says he suggested that they meet in Toronto.

[16] Khatoon confirmed this first call in many respects. She explained that her mother had moved to Toronto, and fell ill in about 1996. Between 1996 and 1998 Khatoon frequently travelled back and forth between Toronto and Nairobi. She would obtain a six-month visa, come to Canada for six months to care for her mother and then return to Kenya and apply for another visitor’s visa. As soon as she obtained it, she would come back to Canada again.

[17] Khatoon confirmed that she was in Edmonton when she first received a telephone call from Mr. Dada. She testified that he explained he had obtained her number from her uncle. She says Mr. Dada told her he was interested in her and wanted to meet her. He suggested that she try to come and see him in Calgary when she left Edmonton. As she explained, she did not have time to do so, since she needed to go directly to Toronto to see her mother and then return to Kenya. She did not remember any discussion about a contract. Although each parties denies being interested in a new relationship at the time Mr. Dada first called Khatoon, I am satisfied that each was open to the idea, and welcomed the opportunity to meet someone who might be suitable.

[18] As I understand it, shortly after her return to Kenya Khatoon received what she called an “SOS” call, advising her that her mother had taken a turn for the worse and was hospitalized. She immediately returned to Canada, where she kept a vigil at her mother’s hospital bedside until the mother’s death some ten days later.

[19] Khatoon says that after her mother’s funeral, she and Mr. Dada met briefly in their mosque and said hello. She did not want to speak to him there, since she felt it was inappropriate for her to speak to a man who was not her husband or a relative in the mosque. They made arrangements to meet at the Don Mills Plaza for lunch. Khatoon says they had lunch and talked for about an hour and a half. During that time, she said, Mr. Dada held her hand. Mr. Dada says he raised the issue of a marriage contract again, and explained it was a condition of his getting married.

[20] Khatoon explained that during their meeting at the Don Mills Plaza, Mr. Dada had told her about his house in Toronto, that it was newly built, and that when he had moved in he would come to Kenya. Khatoon was planning to return to Kenya as well. She testified that Mr. Dada told her he liked her and they would “decide” when he came to Kenya. For her part, Khatoon testified that she needed to discuss matters with her children in order to “decide”. From each party’s description of their discussions, it seems likely they were each going to decide about whether to pursue a relationship with one another. I am not persuaded, however, the parties had any meaningful discussions about a marriage contract up to this time. Khatoon remembers Mr. Dada telling her about his home. Mr. Dada remembers telling he would require a marriage contract in order to get married again. Each remembers what was important to him or her.

[21] Khatoon returned to Kenya as planned. While she was there, Mr. Dada telephoned her a couple of times. Mr. Dada’s house closed in March of 1999. He was registered on title as the sole owner. After he moved into the home, he followed through with his plan, and travelled to Kenya.

[22] When Mr. Dada arrived in Nairobi, he called Khatoon at her son’s home. He then arrived at the house, unannounced. Khatoon said this surprised her. She testified that when Mr. Dada arrived, he wanted to know if there was a private room where they could meet to discuss matters. She says that they went to a private room, where they “did it”. By this she meant they had sexual relations. Then he left with his driver and car.

[23] Khatoon testified that after this encounter Mr. Dada sent his car and driver for her on several occasions. The driver would bring her to Mr. Dada’s son’s home, where they would have sexual relations. It was around this time Khatoon says Mr. Dada proposed to her.

[24] The parties then went on a week’s holiday together in Mombasa. Although Mr. Dada had obtained two hotel rooms for them for the sake of appearances, they occupied only one room for the duration of their vacation. It was during this time they apparently made the decision to marry. After the holiday, Khatoon began to organize her life in order to move to Canada.

[25] Khatoon also testified that Mr. Dada told her she would have a happy life in Canada after the marriage. He told her not to worry – she would be secure.

[26] After the Mombasa holiday, the parties returned to Nairobi. It was there Mr. Dada told Khatoon he had purchased a diamond ring for her. Khatoon then obtained a visitor’s visa to come to Canada and arrived in Toronto on September 18, 1999. Mr. Dada sent her a one way airline ticket for her trip from Nairobi to Toronto. Mr. Dada met her at the Toronto airport with a red rose for her. They went to his home, where they stayed both before and after their marriage. Khatoon testified that Mr. Dada’s sister was very kind, preparing meals for them because Mr. Dada did not yet have the necessary equipment in his house for her to have a fully functioning kitchen.

[27] After the marriage, Mr. Dada applied for landed immigrant status for Khatoon. She obtained her landed papers within about six months of the application. Mr. Dada paid all the costs relating to the application. He testified that he recalled spending about $10,000 to complete the application.

The marriage contract

[28] Prior to the marriage the parties entered into a marriage contract. Although it is dated September 16, 1999, it appears from the solicitors’ certificates that it was not signed until September 27. Mr. Dada said he relied on his lawyer and his niece to make sure a marriage contract protected him. As I understand it, his wish was to protect his assets for his five children. He testified, however, that he understood that it was his responsibility to take care of Khatoon while she was his wife.

[29] Shortly before the marriage contract was signed, Mr. Dada transferred his house into the names of two of his sons (the added parties), reserving a life interest in the property to himself. The Land Transfer Tax Affidavit says the transfer is made for natural love and affection.

[30] Mr. Dada’s son Naushad testified that it had been his mother’s wish that Mr. Dada’s home be left to him and one of his brothers. As both he and Mr. Dada explained, these two of the five children were not as well off as their other siblings, and the late mother and Mr. Dada had agreed to make this additional financial provision for them. Mr. Dada testified that after transferring the house to his sons, it no longer belonged to him; he has what he calls a “lifetime” interest in it. Both Naushad and Mr. Dada confirmed it was intended and understood the home was to be gifted to Naushad and his brother.

[31] Mr. Dada explained that he wanted to make sure that the assets he had worked sixty years to acquire would go to his children. This is why, he said, he wanted a marriage contract. He said, however, that he knew it was his responsibility to take care of Khatoon while she was his wife. He said his assets were earning about a 5% rate of return, and this, together with his Old Age Security (OAS) was enough for them to live on. His goal, however, was to preserve his capital. He testified that when interest rates declined, he began to have some difficulty since his income had declined a lot as a result.

Preparing the marriage contract

[32] Mr. Dada explained that his lawyer Mr. Hartley and his niece Nazneen Dhalla (Naz) effectively prepared the marriage contract. Naz testified that she referred Mr. Dada to her own divorce lawyer, Mr.Hartley, to assist Mr. Dada with the marriage contract. She said that she and her cousin (Mr. Dada’s son) prepared the various disclosure schedules that are attached to the marriage contract. These show Mr. Dada’s having cash and investments totalling $140,523.91 CAD and $US 254,667.79. Mr. Dada did not disclose a life insurance policy worth in excess of £ 94,000. This was a whole life policy he had purchased in the early 1960s from a South African Company. During his wife’s lifetime, she was the beneficiary of the policy. After her death, Mr. Dada’s five children were named the beneficiaries.

[33] Sometime after Mr. Dada and Khatoon separated, the insurance company demutualized, and Mr. Dada received a lump sum of about £ 94,000. He testified that he had completely forgotten about this whole life policy when he disclosed his assets in the marriage contract. I believe Mr. Dada when he says he forgot; nevertheless, it was a significant omission.

[34] Essentially, under the terms of the contract, the parties opted out of the provisions of the Family Law Act. They agreed there would be no division of property between them.

[35] The contract also stated:

The Husband and Wife will reside at 40 Callowhill Avenue, Richmond Hill, Ontario L4B 3T7 which is owned by the Husband’s children and in which he has a right to occupy for his life time.

[36] The contract goes on to provide that as long as the parties are married the husband shall be responsible for paying all common living expenses and all maintenance costs of their home. The contract gives the wife a right to live in the home after the husband’s death if she wishes. For one year following his death the husband’s estate is responsible for paying $700 per month on account of carrying costs on the home. After that the wife is responsible for these costs.

[37] As to spousal support, the contract sets out Mr. Dada’s obligations to support Khatoon. These are limited to $400 per month, to a maximum of five years if the parties have lived together for five years or more. The contract obliges Mr. Dada to pay this sum regardless of whether he can afford to or not.

Signing the marriage contract

[38] Khatoon testified that she had no idea what she was signing when she went to sign the marriage contract. She said that Mr. Dada told her it was simply “a formality”, and something that had to be signed when couples got married in Canada. She says that Mr. Dada and Naz took her to meet Mr. Watkin, a solicitor, and that the two of them were with her in Mr. Watkin’s office when she went to sign. She says she had never met Mr. Watkin before this date. I believe her. Mr. Dada confirmed that he decided to get Khatoon her own attorney to explain to her what she was signing. He, with the assistance of his niece, made the arrangements for Khatoon to see Mr. Watkin.

[39] Both Mr. Dada and Naz deny being in the office while Mr. Watkin met with Khatoom. Naz testified that on arriving at the Hillcrest Mall where Mr. Watkin’s office was located, she took Khatoon up to the office, and then waited in the reception area while Khatoon met privately with Mr. Watkin. Mr. Dada says that he waited downstairs in the retail area of the mall while Naz took Khatoon up to Mr. Watkin’s office. He denies ever entering Mr. Watkin’s office.

[40] On balance, I find Mr. Dada’s and Naz’ evidence more credible. Mr. Watkin’s solicitor’s certificate states that he acted for Khatoon, alone. I cannot see that he could have certified this had Mr. Dada or his niece been present during the meeting. I accept Mr. Dada’s evidence that he and Naz drove Khatoon to the meeting with Mr. Watkin. I believe him when he says that he stayed in the retail area of the mall, while Naz took Khatoon upstairs to the professional offices to meet with Mr. Watkin. I believe Naz’s evidence that she remained in the waiting room while Mr. Watkin met with Khatoon.

[41] Khatoon testified that Mr. Dada told her it was necessary for her to sign some papers as a formality for the marriage, and he was taking her to a lawyer so she could do so. She confirmed that he told her if she did not sign the papers, there would be no marriage.

[42] Khatoon says that Mr. Watkin told her she needed to read the agreement before she signed it. She says she did not, and explained to Mr. Watkin that she trusted Mr. Dada. She said that her English was weak, she did not understand Canadian law, and effectively there was no point in her reading the document before signing. Khatoon testified that she never thought that Mr. Dada would kick her out of the house; she says she assumed she would live with him until she died.

[43] Mr. Dada could not remember if he signed the agreement before Khatoon did or not. He says he did not read it before he signed it, and really had no idea what it said. He relied on his lawyer to protect him.

[44] Neither lawyer testified. Mr. Watkin, who represented Khatoon, has retired. Although Khatoon’s counsel attempted to contact him to have him testify at trial, he could not locate Mr. Watkin. Mr. Watkin did, however, write two letters earlier on in the parties’ separation, in the fall of 2007. The parties agreed to admit the letters as to the truth of their contents. The letters are dated September 21, 2007 and October 16, 2007. They are addressed to Khatoon’s previous lawyer. The first reads:

Further to your correspondence of September 19, 2007, I advise that I have been unable to retrieve my file. It has been either lost or misplaced. I do recall the client and have no difficulty recalling my advice to same. Should you wish such information I shall provide same.

[45] The second reads:

Further to your correspondence of October 16, 2007, I advise that I do recall meeting with wish [sic] Ms. Dada and further of advising her that a court could override any provision for support set out in a domestic agreement. I advised her that the particulars of each party’s circumstance would be considered as at the time of separation not at the date of entering into the agreement. it was Ms. Dada’s partner that insisted on having the agreement sign [sic] and the agreement was prepared by his solicitor with no input from Ms. Dada.

I recall nothing else.

[46] Mr. Watkin executed a certificate, which is attached to the marriage contract. The certificate reads:

I, GORDON E. WATKIN, of the Town of Richmond Hill, on [sic] the Province of Ontario, certify that:

1. I am the solicitor for Zorakhatun Badrudin Jamal (Khatoon Sherali Kassam Jivraj) who is a party to this marriage contract;

2. I saw this party sign the contract in my presence and I subscribed my name as a witness of the party’s signature.

3. I believe the party understands the nature and consequences of this contract.

4. I believe the party signed the contract voluntarily.

[47] What is notable about the certificate is that it does not suggest Mr. Watkin gave Khatoon any legal advice about the contract. In the certificate he says he was acting only for her, he saw her sign it, and he believes she understood it and was signing it voluntarily. I have no idea on what facts he based his belief that she understood the contract. That said, the contract itself contains the following provision in the section headed “Solicitor’s Attestation”:

Each solicitor signing this agreement not only in his or her capacity as a witness but also to attest that he or she:

a) Explained to the client the meaning and implications at law of each provision of this agreement, and

b) Is convinced that his or her client is signing this agreement without duress and with full mental capacity.

[48] The contract also contains a section headed “Independent Legal Advice and Financial Disclosure”. In it, each party acknowledges, among other things, that he or she:

a) Has had independent legal advice by the solicitors signing as witnesses to this agreement beside their names;

b) Has read the agreement in its entirety and has full knowledge of the contents;

c) Understands his or her respective rights and obligations under this agreement, the nature of this agreement and the consequences of this agreement.

[49] Khatoon testified that she did not see a copy of the marriage contract before she met with Mr. Dada. Mr. Dada admitted that he had not had a copy sent to her before this time.

[50] Khatoon also said she never read the contract before she signed it. She relied on Mr. Dada that it was just a formality of the marriage. When she was asked whether Mr. Watkin explained the contract to her, Khatoon could not remember, and said she could not really understand what Mr. Watkin might have told her. She said he might have given her advice on the contract, but she cannot really remember.

[51] In any case, Khatoon’s meeting with Mr. Watkin took somewhere between fifteen minutes (her estimate) and half an hour (Mr. Dada’s and Naz’ estimates). Regardless of which estimate is correct, it was clearly a very brief meeting. Khatoon was not given a copy of the agreement either when she left Mr. Watkin’s office, or later. Mr. Dada paid Mr. Watkin’s bill of $125. No one was able to produce a copy of the statement of account or any reporting letter, if indeed there were any.

[52] Mr. Dada seems to have signed the agreement a day or so after Khatoon did, although the evidence is by no means clear on the timing. After the agreement was signed, the parties first went through a civil marriage ceremony at Markham Town Hall on October 9, 1999. This was followed by a religious ceremony at the mosque. The parties then settled down into married life together.

The marriage

[53] Khatoon testified that the first three years of the marriage were happy. Mr. Dada said much the same thing. He suggests, however, that as soon as Khatoon obtained her Canadian citizenship about three years into the marriage, things began to sour between them. He says he began to feel that she had only married him in order to obtain Canadian citizenship.

[54] Khatoon sees things differently. She denies the decline in the relationship has anything to do with her becoming a Canadian citizen. She described Mr. Dada’s constant sexual demands as creating difficulties between them. She says he insisted on having sexual relations at least once a day, if not more. As a post-menopausal woman, she found this difficult, and said she would suffer irritation and rashes as a result of this frequent sexual activity. If Khatoon did not consent to intercourse, Mr. Dada would insist that she masturbate him.

[55] Khatoon testified that Mr. Dada constantly watched “blue” movies on television, and would ask her to watch with him and “do it” while they watched. She was uncomfortable with this. At no time, however, did Mr. Dada force her to have relations without her consent. As I understand it, she consented, but did not enjoy it.

[56] Khatoon also complains that Mr. Dada would withhold money from her if she declined to have sex with him. He denies this, and says he paid for everything. As interest rates declined with a similar reduction in Mr. Dada’s income, I have no doubt he gave Khatoon less money. He provided her with about $200 a month for spending money. This would not go very far, particularly after Khatoon had a slip and fall accident in the parking lot of the mosque, and required physiotherapy to assist with her recovery. Physiotherapy was not inexpensive. Because Khatoon also suffered from osteoarthritis and osteoporosis, her doctor recommended exercise for her. Her swimming and exercise were added expenses.

[57] Khatoon made some complaints about her marriage to her family physician Dr. Ophelia Wong. Dr. Wong testified. She confirmed that Khatoon had come to see her on various occasions complaining about painful sex. The first time she did so was in November of 2002, about three years after the marriage. After that, Dr. Wong’s records show occasional complaints, but nothing serious enough to cause the doctor sufficient concern to send Khatoon for counselling or for other professional assistance.

[58] Dr. Wong testified that her clinical notes do show Khatoon told her on some occasions that her husband was “mentally abusive”. Again, the doctor was not concerned enough about these reports to make any further referrals. She said her notes in this regard simply disclose what the patient told her rather than any objective evidence of these particular complaints.

[59] Many of Khatoon’s visits to Dr. Wong were unrelated to complaints about her marriage. She sought Dr. Wong’s advice about osteoarthritis and osteoporosis, heartburn and pain following her slip and fall accident. Khatoon had regular annual checkups, at which Dr. Wong would follow and monitor Khatoon’s heart and bone health, among other things. Khatoon seems to rely on Dr. Wong’s evidence to support her position that her marital situation was intolerable because of Mr. Dada’s behavior. Although Dr. Wong’s evidence corroborates Khatoon’s complaints that Mr. Dada withheld money from her, and had what Khatoon viewed as unreasonable sexual demands, Dr. Wong’s evidence is really only hearsay, and cannot confirm the truth of what her patient told her.

[60] Dr. Wong ceased being Khatoon’s family doctor sometime in 2007, although she continues to treat Mr. Dada. Dr. Wong testified that Khatoon dropped by her office some time in 2008. They had a brief chat in which Khatoon reported she was doing well, and had met someone new.

The separation

[61] Khatoon says after the first three years with Mr. Dada she was becoming increasingly unhappy in the marriage. She says her health was suffering, and Mr. Dada continued to be sexually demanding, and mean and miserly. As I have said, she complained about these issues to Dr. Wong from time to time. At some point in 2005 Mr. Dada apparently filed for arbitration for divorce. Khatoon reported to her doctor that after this occurred, she began to feel less stressed in the marriage. I assume she was referring to some kind of religious proceeding, since this application for divorce was not begun until after the parties had actually separated.

[62] In October of 2006 something happened that precipitated the separation. Khatoon says she did not wish to separate at all, but the separation was essentially forced upon her. Mr. Dada seemed equally surprised by the separation. He says that on the day he and Khatoon separated, he had gone for a haircut, and on his return, went to the basement to do his exercises. He says the doorbell rang, and when he went upstairs he found Khatoon’s sister had arrived. He claims she yelled at him, accusing him of abusing Khatoon. He testified Khatoon’s sister then took Khatoon away.

[63] Khatoon’s sister Izzat testified that on the morning in question she received a telephone call from Khatoon. She described Khatoon as crying hysterically. She could not make out what Khatoon was saying, so she came to the house. Izzat says that when she arrived, her sister looked extremely unwell so she suggested Khatoon collect a few things and come and stay with her temporarily. She says she told Mr. Dada she would take Khatoon home with her for a few days, and Khatoon would return when she felt better. Izzat testified that Mr. Dada announced that if Khatoon left, she could never return. Mr. Dada confirmed this. He testified that he said “once you leave this front door you will never come back.” From this point onwards, the parties have never lived together.

[64] Khatoon testified that on the morning of the separation she began to read the paper in front of Mr. Dada during breakfast. She says he told her not to read a paper in front of him. He apparently viewed this as disrespectful to him. Khatoon says that later in the morning she asked Mr. Dada for money for her swimming and physiotherapy. She says he told her he did not have any money, and she should stop going for exercise and physio. When she told him it was necessary for her medical needs, he refused to let her take the car, and went to the basement to do his exercises.

[65] Khatoon says she began to feel unwell, with vertigo. She called her sister to come. When her sister came and told Mr. Dada she would take Khatoon for a short while and then bring her back, Mr. Dada said she couldn't take Khatoon, and if she did, he would double lock the door so she could not return. They left.

[66] A few days later, Khatoon or her sister called Mr. Dada to say Khatoon needed to come back to the house to pick up her medicine. They tried to make arrangements to do this, but Mr. Dada hung up the phone. Later, Khatoon and her sister came to the house and rang the bell. Mr. Dada did not answer. They found the locks changed. They called him with the sister’s cell phone, and he came to the door and let them in. Khatoon was able to pick up her medicine and a few other things. They wished to take all of Khatoon’s possessions at that time, but Mr. Dada was not comfortable with them in the house, and suggested they return on a Saturday. They did. This time, Mr. Dada’s niece Naz was at the house. She wanted Khatoon to sign some papers. Khatoon did not. Khatoon wanted to get her documents, including her passport. Eventually, she returned with two police officers, who facilitated her getting her documents. This was accomplished without any incident.

[67] Since then, the parties have lived apart. Although the marriage contract required Mr. Dada to pay Khatoon $400 per month in spousal support for a period of five years, the support has been paid into a trust account. I have no idea why Mr. Dada did not make the payments directly to Khatoon, or, if he tried to and she refused to accept the money.

[68] Mr. Dada remained in the matrimonial home until about a year ago. He was finding the stairs a problem, and wished to move into a condominium. The property was sold, and a condominium acquired with part of the net proceeds. The condominium, as was the matrimonial home, is registered in the names of Mr. Dada’s two sons, with a life interest to him. The excess proceeds are in a bank account in the name of the two sons. Mr. Dada and his son Nashoud testified this is because the townhouse belonged to the sons, and therefore all the proceeds belonged to them as well.

[69] Mr. Dada has borrowed some money from his sons to meet his living expenses. He currently owes them between $15,000 and $25,000. I am not clear why Mr. Dada would borrow from his sons rather than use his own considerable capital to meet his shortfall. That said, I have no doubt he has borrowed from his sons.

[70] Khatoon is now living in a subsidized seniors’ residence. Her rent for her apartment is about $487 per month. She lives a very modest life, because she cannot afford to do more. She has not visited her daughter since 2008. She went to India to have some major dental work done because it was significantly cheaper there than in Canada. Her son paid the cost. Khatoon’s only income is from OAS and GST refunds.

[71] Mr. Dada’s only income is from OAS and very minimal interest from his investments. Essentially, his investments are in cash, and kept in the bank earning little or no interest. He lives in the condominium owned by his sons, in which he has a life interest. He pays the taxes and common expenses on the condo.

The issues:

[72] This case requires me to decide first, whether the parties are entitled to a divorce and second whether the marriage contract is valid or not. If I decide the marriage contract is not valid, then I must address Khatoon’s claims for equalization and spousal support. In deciding equalization of net family property, I must consider whether Mr. Dada has only a life interest in the former matrimonial home, or whether his two sons hold the property in trust for him.

[73] Whether the contract is valid or not, I must also determine whether Khatoon is entitled to damages of any sort.

Discussion:

Divorce

[74] The parties were married on October 9, 1999. They separated in October of 2006 and have not lived together since then. Each of them confirmed there is no reasonable prospect of their resuming cohabitation. Under these circumstances, grounds for divorce have been established, namely a breakdown of the marriage evidenced by the fact that the parties have been living separate and apart for more than one year.

[75] Accordingly, a divorce order will issue, effective on the thirty-first day following the date of these reasons.

The marriage contract

[76] The validity of the marriage contract is the fundamental issue in this case. Khatoon says she did not understand what she was signing when she signed the contract, notwithstanding the statements in the contract to the contrary. She essentially takes the position she did not have effective independent legal advice in relation to the agreement.

[77] I did not hear from Mr. Watkin, who met with Khatoon and gave her some kind of advice. I accept that whatever advice he gave her, he gave to her alone, and not in the presence of either Mr. Dada or his niece Naz.

[78] Section 56(4)(b) of the Family Law Act permits the court to set aside a domestic contract or a provision in it “if a party did not understand the nature or consequences of the domestic contract.” I am not persuaded Khatoon had any real understanding of her rights and obligations under Ontario family law, or what rights she was being asked to give up under the contract. I say this for a number of reasons.

[79] Mr. Watkin’s certificate does not specifically state that he provided any legal advice to Khatoon. It does not say that he explained the nature and consequences of the document to her although I recognize the body of the contract makes reference to this. I am surprised these provisions were not in the solicitor’s certificate itself which the solicitors signed. I have no idea if she understood the concept of equalization of net family property, or what a waiver of her equalization rights meant. I believe Khatoon when she says she thought she was signing the document as some kind of formality, in much the same way as she signed the application for the marriage licence, and statement of responsibility in relation to the validity of her Kenyan divorce.

[80] The contract was not negotiated in any way. Mr. Dada insisted on the contract, and insisted on it on his terms alone. Khatoon, who had arrived in Canada only a few days before the contract was signed, had no opportunity to read it, discuss it and understand it before she met with her lawyer.

[81] I am satisfied Khatoon had no independent legal advice in relation to the contract that she actually understood. I have no doubt Mr. Watkin reviewed the agreement with her in some fashion, and likely tried to explain it to her. I also have o doubt Khatoon had no real understanding of its nature or consequences. I would set the contract aside on this basis alone.

[82] Khatoon also attacks the contract on the basis of Mr. Dada’s failure to disclose his significant asset, namely the £ 94,000 investment in a whole life life insurance policy. Mr. Dada purchased the whole life policy sometime in the 1960s. When the company was de-mutualised many years later, Mr. Dada received the sum of £ 94,000 as the value of this policy. As a whole life policy, with no borrowings against it, the policy likely had a similar value at the time the marriage contract was executed.

[83] As Mr. Dada explained it, his late wife was always the beneficiary of this policy, and after her death, the beneficiary designation was changed to his five children. Mr. Dada testified that the policy was never for his own benefit, and therefore he did not view it as his own asset, even though it had significant cash value which was always available to him. Because Mr. Dada did not consider it his own assets, he therefore did not think to disclose it in the contract as part of his net worth, although at the time of the contract it had significant cash surrender value. Mr. Dada says he simply forgot about it. He disclosed it in the context of these proceedings. I believe Mr. Dada when he says he forgot about the policy.

[84] Nevertheless, this was a significant omission, whether it was deliberate or not. This pre-marital asset has a significant effect on the calculation of Mr. Dada’s net family property. It seems to me that had Khatoon actually understood what she was signing, this omission could have had an effect on her decision to sign or not. Had I not already decided to set aside the contract on other grounds, I would have considered this omission a vitiating element.

[85] The marriage contract is therefore set aside. Since I have set aside the contract, I must address the issues of equalization of net family property and spousal support, as well as Khatoon’s claim for damages.

Equalization of net family property

[86] The parties have agreed on all the figures making up their respective net family properties, using two scenarios. They agree that if Mr. Dada has only a life interest in the former matrimonial home, then he would owe Khatoon an equalization payment of $20,373.76

[87] If, however, I decide that the two sons hold or held the property in trust for their father, then the equalization payment would be $154,261.67.

[88] Khatoon argues that the principles of promissory estoppel and resulting trust apply in relation to Mr. Dada’s placing title to the former matrimonial home in the names of his two sons. She says that the sons therefore held the property in trust for their father at the date of separation, and its full value should be included in the calculation of Mr. Dada’s net family property.

[89] If I understand Khatoon’s position, she suggests that the fact Mr. Dada told her in Kenya that he owned a home operates as some sort of promissory estoppel. To prove promissory estoppel, Khatoon must satisfy me that first, there was an unambiguous representation to her; second, that Mr. Dada intended her to rely on this representation and third, that she altered her position as a result of this representation.[^1]

[90] In my view, this argument must fail. I heard no evidence from Khatoon that she would not have come to Canada had she known that Mr. Dada intended to transfer the house to his children before she and Mr. Dada were married. I have no evidence that she altered her position by coming to Canada as a result of any representation that Mr. Dada owned his own home. As I understand the evidence, she simply relied on Mr. Dada’s promise that he would take care of her. He says that he told her they would have a home in Canada. They did. I cannot see that promissory estoppel applies.

[91] Khatoon next argues that the doctrine of resulting trust applies. A resulting trust arises by operation of law. The law presumes that where property is transferred into a party’s name for no consideration, the transferee holds the property in trust for the transferor, unless the transferee can show the transferor intended to make a gift of the property to the transferee.

[92] Here, the evidence clearly shows that Mr. Dada intended to gift the property to his sons. He was very clear that he intended to part with beneficial ownership of the property. I believe him. There is also no question the sons intended to receive the gift. Again, I accept their evidence in this regard. I am satisfied Mr. Dada as transferor, intended to gift the home to his sons. They have met their evidentiary burden. As a result, the argument regarding a resulting trust must fail as well.

[93] As to the question of whether the transfer to the sons was a “fraudulent” conveyance of some sort, I note first that Khatoon has not pleaded the Fraudulent Conveyances Act. More importantly, it seems to me that at the time the transfer was made, Mr. Dada owed no duty of any kind to Khatoon. At best they were engaged to be married. They had not yet executed the marriage contract. Khatoon was not a creditor of Mr. Dada. I cannot find that Mr. Dada’s comments to Khatoon that he had a house and they would live in it created any representation that he was the sole owner of a property.

[94] Khatoon was concerned about security. Mr. Dada’s right to live in the property during his lifetime, a right she would share equally on their marriage, provided this security. As a result, I cannot find the conveyance can be set aside on the basis of fraud, or any other basis.

[95] Since I have determined that only the value of Mr. Dada’s life interest in the property forms part of his net family property, Khatoon is entitled to an equalization payment of $20,373.67.

[96] This brings me to the question of spousal support.

Spousal support

[97] Khatoon has never worked at a job for someone else either in Canada or in Kenya. She is now 73 years old. She has no ability to work in order to contribute to her own support.

[98] Khatoon was very clear that she understood Mr. Dada would take care of her. In fact, Mr. Dada confirmed that he understood he had that obligation. The question, then, is what is the appropriate level of support. That question must be answered having regard to the means, needs and other circumstances of the parties, the criteria set out in the Divorce Act and the Spousal Support Advisory Guidelines (SSAGs ).

[99] Khatoon has income of just over $15,000 from OAS and GST refunds. She will soon have an equalization payment of about $20,000, which together with prejudgment interest on this sum will give her a small financial cushion. Her stated expenses are modest: she lives in a subsidized seniors’ apartment, does not own or operate a car, and has not even budgeted for any type of vacation or holiday.

[100] Mr. Dada takes the position that his income is less than $9,000 a year. He shows OAS and minimal interest income as the sources of his income. He suggests that his investments of $433,000 are simply held as bank deposits, earning no interest. He says he wants to preserve all his capital for his children.

[101] I understand that Mr. Dada wishes to benefit his children on his death. He does not, however, have a legal obligation to do this. In contrast, he does have a legal obligation to support his wife. When I look at Mr. Dada’s “means, needs and other circumstances” it seems to me reasonable to attribute a higher rate of return to these investments. While I recognize Mr. Dada need not necessarily encroach on capital in order to fulfil any support obligations, he does have an obligation to maximize the income his investments yield.

[102] I would attribute at least a 3% rate of return to Mr. Dada’s investments. This alone would yield just under $13,000 a year. This, together with his OAS of $7,260 and tiny annuity of $100 per year bring his income to just over $20,000. In attributing this income to Mr. Dada I consider that his sworn financial statement shows he currently spends $3,200 per month, including an expenditure of $600 per month for religious dues. This suggests to me he has the means to meet those needs. If he has those means, then he has the means to contribute a modest amount to Khatoon’s support.

[103] Having regard primarily to the means, needs and other circumstances of the parties, I find that a spousal support award of $200 per month is appropriate here. Although the parties did not provide me with SSAGs calculations, I have reviewed the SSAGs at the incomes I have found. The SSAGs are not particularly helpful, since they have a cautionary note that at incomes between $20,000 to $30,000 the SSAGs may not apply.

[104] In coming to my conclusion on spousal support, I also consider that under the terms of the marriage contract Mr. Dada was prepared to provide spousal support of $400 per month for up to five years following any separation, regardless of his financial means. In fact, he has placed this money in a trust account each month ever since the parties separated. I do not know why the payments were not made to Khatoon. Nevertheless, this money is available to fulfil his support obligation.

[105] As to the commencement date for support, Mr. Dada always understood his obligation began as of the separation. He has put the money aside for this purpose. A retroactive award will therefore not cause him any hardship. Under the circumstances however, and absent any motion for temporary support, or payment out of the money Mr. Dada put aside, this is not a case for any pre-judgment interest on the retroactive portion of support.

[106] Therefore, Mr. Dada’s spousal support obligation commenced November 1, 2006 at $200 per month. Arrears to June 30, 2012 are fixed at $13,600 and will be paid forthwith. Interest will accrue on this sum from July 1, 2012 onward.

[107] On a prospective basis, commencing July 1, 2012, Mr. Dada will pay Khatoon spousal support of $200 per month. This payment will bind his estate.

Damages

[108] Khatoon claims damages of $20,000. He counsel says the claim is for “emotional stress” and locking her out of the matrimonial home. From her pleading and her counsel’s argument at trial, it is unclear to me what particular tort Khatoon alleges Mr. Dada commited that would give rise to an award of damages in her favour. While I have no doubt Khatoon experienced emotional stress in the marriage, and was unhappy with the nature and frequency of Mr. Dada’s sexual demands, emotional stress and unhappiness in and of themselves do not create a right to damages. In order to be actionable, Khatoon must have suffered stress as a result of Mr. Dada’s breaching a duty to her. I have no evidence of Mr. Dada’s committing any tort that results in actionable damages.

[109] The claim for damages is therefore dismissed.

Disposition:

[110] For all these reasons, a final order will issue on the following terms:

a) Granting a divorce to the parties, effective on the 31^st day following the date of these reasons;

b) Setting aside the marriage contract between the parties;

c) Requiring the applicant to pay the respondent an equalization payment of $20,373.67, together with prejudgment interest on that sum;

d) Requiring the applicant to pay the respondent arrears of spousal support to June 30, 2012 in the amount of $13,600. Interest will accrue on this sum only from July 1, 2012;

e) Requiring the applicant to pay the respondent spousal support of $200 per month commencing July 1, 2012. These payments bind the applicant’s estate.

f) Dismissing the claims against the added parties;

g) Dismissing the respondent’s claim for damages;

h) Issuing a Support Deduction Order.

[111] If the parties cannot agree on costs, they may make brief written submissions to me. The applicant will deliver his submissions within two weeks of the release of these reasons. The respondent will deliver hers within two weeks after that. Submissions must contain details of each lawyer’s year of call, his actual billing rate to his client, and details of any offers that might bear on the issue of costs.

MESBUR J.

Released: 20120621

COURT FILE NO.: FS-08-339507

DATE: 20120621

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hussein Noormohamed Dada

Applicant

• and -

Khatoon Sherali Kassam Jivraj also known as Khatoon Dada

Respondent

MOHAMMED HUSSEIN DADA AND NAUSHAD HUSSEIN DADA, added parties

REASONS FOR JUDGMENT

Mesbur J.

Released: June 21, 2012

[^1]: See, for example, Hayward v Bennet [2011] BCJ No. 1436 (BCSC)