COURT FILE NO. FS-12-376267
DATE: 20120809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: AZAR EBRAHIMI KKABBAZY (Applicant)
AND: ALI REZA SADEGHI NEJAD ESFAHANI (Respondent)
BEFORE: M.A. SANDERSON J.
COUNSEL: Ms. Dana Cohen for the Applicant Wife
Ms. Donna A. Wowk for the Respondent Husband
E N D O R S E M E N T
[1] Azar Ebrahimi Kkabbazy, hereinafter the Wife, seeks spousal support.
[2] Ali Reza Sadeghi Nejad Esfahani, hereinafter the Husband, seeks an Order setting aside the Preservation of Assets Order granted by Paisley J. ex parte dated February 23, 2012.
Facts
[3] The parties met in Iran in early 2009. At that time, the Wife was residing there and had always done so. The Husband, a Canadian citizen and resident, was visiting his family in Iran.
[4] The parties were married in Iran on March 14, 2009.
[5] The Husband sponsored the Wife to come to Canada and undertook to support her for three years from the date that she became a permanent resident. Sponsors provide an Undertaking under s. 135 of the Regulations of the Immigration and Refugee Protection Act, S.C. 2001, c 27, Citizenship and Immigration Canada “Application to Sponsor and Undertaking,” including the following:
I promise to provide food, clothing, shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care, eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.
I promise that the sponsored person and his or her family members will not need to apply for social assistance.
…I understand that the sponsored person and his or her family members will be admitted solely on the basis of their relationship to me (as sponsor) and that they do not need to have the financial means to become established in Canada.
If the sponsored person is my spouse…on the last day of the period of 3 years following the day on which they become a permanent resident;
I understand that the undertaking remains in effect no matter what change in my life.
[Emphasis added.]
[6] She came to Canada in November 2009.
[7] The Husband's parents reside in Canada for about half the year. They travel back and forth to their native Iran two-three times per year.
[8] Apart from her brother, who is presently in Canada, all of the Wife's family, including her parents and other siblings, still live in Iran.
[9] In 2011, so that the Wife’s parents could visit Canada, the Husband provided a letter to Immigration Canada “To Whom it May Concern” from Sandra Costa at Lakeview Millwork Limited, dated May 9, 2011:
This letter is to confirm that Ali Reza Sadeghi Nejad Esfahani is working in our company since Feb 2011 on a Full time basis as a Project Manager. His gross salary is $58,500 per annum. Should you have any question, please do not hesitate to contact me.
[10] Since coming to Canada, the Wife has studied English but she is not yet entirely proficient in the language. Although she was trained as an optometrist in Iran, she has never worked in Canada and has not yet qualified to work in her profession here.
[11] The facts in this case are hotly contested. The parties disagree on who wanted to end the marriage. They dispute what happened in Iran. They dispute what they earn and what they own.
[12] The Wife alleges that early this year, the Husband, having soured on the marriage, with the assistance of his family, formulated and executed a plan to trap her in Iran so that she would not be able to sue the Husband in Canada to protect her rights, including enforcing their Meher Agreement (Muslim marriage contract) under which, at the time of their marriage, he had agreed to pay her the equivalent of approximately Cdn$540,000, inter alia, in the event of separation.
[13] The Wife submits that the Meher is a legally enforceable contract in Canada. She claims entitlements under the Meher and Canadian family law.
[14] She alleges that when they were in Iran, the Husband informed her that she must annul the Meher, or else he would leave her there and return to Canada without her. He did so. She further alleges that the Husband did not and would not commence divorce proceedings in Iran because if he had, the Meher would have been enforced there.
[15] The Husband alleges the Meher was not intended to function as a marriage contract. He takes the position the Meher is not legally enforceable in Canada. There are “significant questions” regarding the enforceability of the Meher in the circumstances of this case. He claims the Wife has attempted to construe it in a manner that would benefit her financially from their brief marriage to an extent that would be “unconscionable”. He alleges she has "wrongfully characterized the nature, significance, and enforceability of the Meher."
[16] It is uncontested that when they were both in Iran, he advised the Iranian government that he was revoking his consent for her to travel out of Iran [In Iran a wife cannot travel out of the country without her husband’s consent.] The Wife alleges he would not have sued for divorce there. Presumably, he would simply have abandoned her there, and returned to Canada, as he did.
[17] However, she alleges that because she was able to obtain a Court Order on a one time basis permitting her to return to Canada, she may be able to foil his plan.
[18] The parties also dispute what the Husband earns and what the Husband owns.
[19] It is quite clear he is from a wealthy family. The Wife has deposed that the Husband has assets in Canada worth in excess of $1 million in his own name, including a matrimonial home now listed for sale at $949,000.
[20] The ownership issues are complex because he now asserts that even assets held entirely in his own name belong to other family members.
[21] There are numerous family companies in Iran. Given how the family structures and comingles their assets, the Wife believes that the Husband is wealthier than he claims, and that he has shareholdings and/or ownership interests in the family companies in Iran and perhaps in Canada.
[22] She has deposed that in the two years prior to their separation, the Husband undertook significant renovations to the matrimonial home, the worth of which she has estimated to be in excess of $150,000.
[23] On the Wife’s application for spousal support, the Husband has deposed that he is "self-employed as a Pilot Examiner. In 2011, [he] earned approximately $26,071.85. [He is] hopeful that this venture will continue to grow in the future. As of right now, the business is very much a 'start-up.'"
[24] The Wife has asserted that their lifestyle was far more lavish than that of a pilot with the earnings he claims to have had.
[25] Their housing expenses alone were approximately $8,000 per month. Every month up to the month that the Wife obtained the Preservation Order in this proceeding, the Husband maintained all of the expenses on the home without incurring any debt. All or most of these expenses were paid from a Bank of Montreal account in the Husband’s name alone.
[26] She deposed that during the two years that they lived together after marriage, they travelled extensively, including to Cuba, Mexico, Vancouver, and to Iran on four occasions.
[27] He owns numerous luxury vehicles, including a Mercedes, a Lexus, and a Honda Odyssey.
[28] The Wife noted that when he purchased the matrimonial home, he somehow qualified for a $600,000 mortgage.
[29] His sworn Financial Statement discloses a net budget of $110,000 per annum. She alleges that this budget is understated, as he spends more for clothing, travel, home renovation and other luxuries than was set out there.
[30] Despite his letter to Canada Immigration dated May 9, 2011, declaring income from Lakeview Millworks of $58,500 per annum, the Husband now denies that he made any income at Lakeview Millworks, a company then apparently owned by his brother. Towards the end of 2010, the Husband has admitted he briefly worked at Lakeview Millworks. He has deposed that his brother tried to pay him for the work he did, but he “was not comfortable cashing the cheques" provided to him and never did so. The Husband’s brother sold Lakeview Millworks in September 2011 after he decided to relocate to Iran on a full time basis.
[31] The Husband deposed that he does not own five vehicles. While he is the registered owner of all five, he only makes personal use of three. He placed all the vehicles in his name at the request of his father, who pays for the insurance on all five vehicles. The Husband’s father structured it this way, as it is much cheaper for him to remit payment for multiple secondary or occasional drivers.
[32] The Wife alleges that while she was still in Iran, the Husband, who was back in Canada, advised her brother who was living in the matrimonial home in Canada that he was selling the matrimonial home.
[33] Although he had purchased that home after the marriage, he had sworn on the deed, "I am not a spouse." He said that that was because he had been advised by his real estate lawyer that the marriage didn't count until she had been accepted for sponsorship.
[34] Counsel for the Husband submitted he is not a wealthy man. He earns a modest income. He is a self employed Private Pilot Examiner, with annual income last year of $26,000.00. He has deposed his only source of income is what he earns in the regular course of business as a flight examiner. It is simply not true that he has sizeable financial means. He has no other business interests in either Canada or Iran.
[35] Counsel for the Husband submitted his budget included one-time renovation expenses and would be lower on an ongoing basis.
[36] Title to the matrimonial home is in the Husband’s name alone. The Husband alleges that the Wife made no contribution to its acquisition, renovation, furnishing, or maintenance.
[37] He does not deny that he revoked his consent for her to travel from Iran. While he admits that he attended the Passport Office in Tehran to revoke his consent for her to travel, he alleges did not do so for the reasons alleged by the Wife. He deposed he had real concerns about her health and state of mind and he felt strongly that she should spend some time with her family in Iran. In the context of the parties’ culture, there was nothing inappropriate about this and, by any standard, there was certainly nothing nefarious about it.
[38] If the Husband had wanted to ensure the Wife remained in Iran indefinitely, to ‘trap’ her there as she alleges, all he would have had to do was commence divorce proceedings there. Had he done so, the Wife’s right to travel in and out of the country would have been irreversibly revoked pending the resolution of the proceedings or a settlement between the parties. [She alleges he would have been aware that he could not commence any sort of divorce proceeding in Iran, because if he had, he would have been automatically liable to pay all amounts owing under the Meher. It is a crime in Iran, under penalty of jail, not to pay Meher obligations.]
[39] He alleges that after the Wife returned to Canada on February 11, 2012, neither she nor her counsel made any effort to communicate with him to inform him that she had decided to end their marriage or to try and discuss any issues related to their separation. He alleges he learned of her decision to end the marriage only when he received a copy of the Orders, including a restraining order, she had obtained much earlier that day [February 23, 2012] on an ex parte basis.
[40] He alleges she orchestrated events in a manner intended to evict him from his home without allowing him any opportunity to make submissions before the Court. There was no urgency or other circumstances that required her to move before the court on February 23, 2012 on an ex parte basis.
[41] His entire jewellery box has been removed, along with many of his financial documents making it difficult for him to respond to her allegations and to complete his financial statement.
[42] The Husband alleges that the Wife did not give a full, candid and complete account when she brought her motion for a Preservation Order. She willfully misrepresented material facts and relied on others that were untrue.
[43] He claims that he and members of his family have been seriously prejudiced by the ex parte Preservation Order. He has joint bank accounts with his parents and brother. The funds in those accounts belong 100% to them, not to him. He was named on those accounts so he would be able to access funds on their behalf when they travel abroad, including to Iran for lengthy periods. They are both there now.
[44] In his affidavit sworn March 7, 2012, he deposed at paragraphs 96 and 97 as follows:
My father assists me financially from time to time. He gives me money on an "as needed" basis. My father typically provides me with approximately $2699 per month, which I use to make the mortgage payments on the matrimonial home. The money comes from the joint bank account I have with my parents at Bank of Montreal and is deposited into my personal account at Bank of Montreal. While this money is usually deposited into my account, there are some months where it is not. The money is typically deposited if there are sufficient funds in my father's account to do so, or else I assume the mortgage payment on my own.
While my father is both willing and able to assist me financially, it is not often that I ask him for money. I try to be as self-sufficient as possible.
Re Husband's Assets
[45] The factum filed on his behalf on his motion to set aside the remaining terms of the Preservation Order contains the following:
At paragraph 38. The Husband’s father, Hossein Sadeghi, is a successful businessman in Iran. He has been retired for the past 15 years and has no business interests in Canada. The majority of the Husband father’s assets remain in Iran in various investments, including real estate and other land interests. Hossein hopes to ultimate transfer his wealth to Canada, but is not permitted to do so by the Iranian government. He is only permitted to transfer a percentage of his holdings each year. The Husband’s father travels often to Iran to manage his assets and arrange for their transfer out of the country.
At paragraph 39. The Husband and his family’s finances are structured in an unconventional way. His family relies on him to administer their finances, during periods they are out of the country which can be for weeks, and sometimes months, at a time. To that end, the Husband has joint back accounts with his parents as well as with his brother. He does not deposit any of his funds into these accounts and does not make any withdrawals from the accounts without direct authorizations from the parents or brother, as the case may be. He does not have any joint accounts with his sister, as she is living in Canada on a full time basis.
[46] I note that paragraph 73 of his affidavit sworn March 7, 2012,that the factum references in making that assertion, he does not say that he does not make withdrawals without direct authorizations from the parents or brother:
At paragraph 40. The Husband does not contribute any monies to the joint accounts to which he is a party to. The money in those accounts does not belong to him. It belongs to the other family member named on the account. The Wife has always known that his family’s finances are structured in this manner. She has tried to suggest otherwise to make it seem as if the Husband is in possession of more money than he actually has.
The Wife has also alleged that the Husband transferred all of his money out of his BMO account number 395-13870 in November 2011 in an attempt to deplete his assets, and defeat her family law claims while, at the same time, alleging he trapped her in Iran so she could not return to Canada to make those same claims. None of this is true.
The BMO investment account 395-13870, while in the Husband’s name, belongs entirely to his father. Hossein transferred ownership of this account to the Husband on January 29, 2009 at which time the account had a balance of $372,782.00. The proceeds of this account, approximately $200,782.00, was transferred into a smart saver BMO account number 8979-610 on November 8, 2011. Account 8979-610 is also in the Husband’s name. Previously, when the money was in an investment account, transfers could only take place upon the maturity date, at the end of each month. The Husband’s father requested that the money be transferred from an investment to a savings account to allow for easier access and transfers of the funds. The only time the Husband accesses this account is to transfer money into his parents’ chequing account (one of the joint accounts previously discussed). .
[47] Contrary to what is asserted in the factum, I note that paragraph 80 of the Husband's affidavit does not say that the Husband's father requested that the money be transferred for easier access. It says, "The only time I have accessed either of these accounts is to transfer money into my parents' chequing account (jointly held by me) so that my brother's, sister's and my mortgage can be paid. The current balance in this Bank of Montreal savings account is approximately $180,755.80."
At para 43. The Husband has disclosed all of his bank accounts. He has sworn a financial statement which truthfully and accurately sets out all his bank accounts and the accounts where his name is on the account jointly with his parents or his brother.
[48] At paragraph 82 of his affidavit the Husband deposed, "I administer them [those accounts] only for the purposes of paying my family members' bills and expenses [including the Husband's] as they come due."
[49] I note that at paragraph 85 of his affidavit, he disclosed a number of bank accounts in his name alone.
The Preservation Order
[50] Section 12 of the Family Law Act gives the Court jurisdiction to make interim restraining and preservation orders:
In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse’s interests under this Part, the court may make an interim or final order,
Restraining the depletion of a spouse’s property; and
For the possession, delivering up, safekeeping and preservation of the property
Family Law Act, R.S.O. 1990, c. F.3. as amended at s. 12
[51] Section 40.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 provides that an interlocutory injunction or mandatory order under Section 101 or 102 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 may be obtained on a motion to a judge.
[52] Under the Rules of Civil Procedure, the three part test to obtain an injunction is as follows:
(1) Is there a serious question to be tried? Under the Rules of Civil Procedure, part 1 of the test is to be determined on the basis of common sense and an extremely limited merits review. Counsel for the Wife submitted there is a serious issue to be tried. Outside of the equalization payment owing to the Wife, counsel for the Wife submitted that the Husband also owes the Wife a payment of approximately $540,000 pursuant to their Meher Agreement. Counsel for the Husband submitted that the enforceability of that agreement cannot be determined without the benefit of expert evidence. It would not be fair to the Husband for the ex parte Order to remain in place indefinitely before this issue is adjudicated.
(2) Will the Wife suffer irreparable harm if the injunction is not granted? Counsel for the Wife submitted the Wife will suffer irreparable harm. This Court should order the Preservation Order to remain in place as the Husband has demonstrated that he will go to great lengths to ensure that he will not have to pay the $540,000 under the Meher agreement. In addition, the Husband will owe her an equalization payment by reason of his ownership of the matrimonial home and various investments and bank accounts. The Husband will not suffer any irreparable harm if this Court grants a Preservation Order, as he is wealthy, his parents live in Mississauga and he resides with them. If the Husband divests himself of his assets, and becomes “judgment proof,” the Wife will suffer irreparable harm. She does not have a job, and she is not currently employable as an optometrist, the profession for which she was trained in Iran. She does not have a bank account or access to any finances. She cannot return to Iran, because if she does, she may not be able to leave. The Husband has revoked his consent for her to travel. The Iranian Court Order allowed her to leave Iran on a one-time basis.
(3) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits? Counsel for the Wife submitted the Wife would suffer greater harm if the Preservation Order were lifted than the Husband would suffer if it were continued. If the Husband divests himself of his assets, she will not be able to enforce any judgment she obtains.
[53] Counsel for the Husband submitted the Preservation Order seriously prejudices persons who are not parties to this case, namely, his parents and his brother who are unable to access their funds. As a result of the Order made on February 23, 2012, the Husband’s parents are incurring debt in order to pay their bills and assist the Husband financially. There is no evidence to suggest that the Husband will attempt to deplete his assets in order to deprive the Wife of that to which she may ultimately be entitled.
[54] Counsel for the Husband cited Ali v. Ibrahim, [2011] O.J. No. 4450, at para. 12 as authority for the proposition that there is a very high duty of full, candid and complete disclosure resting upon a party moving for an order without notice. Failure to set out a salient fact is in itself a sufficient ground for setting aside an order. The Wife failed to meet this requirement. Her affidavit material was incomplete and intentionally misleading. Drayton v. Drayton, [1995] O.J. No. , at para. 13-19; Bursey v. Bursey, [1991] O.J. No. 385; Browne v. McLaughlin, [1988] O.J. No. 1066. Vogelsang J.’s comments at para. 13-15 in Ali v. Ibrahim are applicable on the facts of this case. Her material for the ex parte motion was not honest about the circumstances leading to her departure from Iran. The Wife has failed to produce any evidence that corroborates her story. Like Ali, the Husband’s material demonstrates that the Wife “initiated and continued a deception in obtaining ex parte relief.” The Order of Paisley J. would not have been made had the Wife responded to her duty of absolutely frank and candid disclosure. Instead she chose to mislead the Court.
[55] When faced with conflicting, complicated evidence on a motion, the Court should defer determination of the issues to a trial judge.
[56] In Schnarr v. Schnarr, [2006] O.J. No. 53 at para 2 (C.A.), the Court of Appeal noted that complicated matters where there is conflicting evidence should be decided at trial:
In our view, the matter could not properly be determined on a motion. It involved diametrically conflicting evidence on the “purpose” of the cohabitation and required findings of credibility. That conflicting evidence could only be resolved after a trial of the issues on viva voce evidence.
See also Ierullo v. Ierullo 2006 33301 (ON CA), [2006] O.J. No. 3912 at paras 16-18 (C.A.)
[57] In Sypher v. Sypher, 1986 6337 (ON CA), [1986] O.J. No. 536 at para 2 (C.A.) the Court set out the general principle that difficult issues should be determined at trial and not on a motion. Zuber JA wrote:
Interim orders are more susceptible of error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.
[58] In Bronfman v. Bronfman, 2000 CarswellOnt 4622 (S.C.J.), Sachs J. noted that the threshold for obtaining a preservation order under the Family Law Act is much lower than the test for a Mareva injunction under the Rules of Civil Procedure. Under the Family Law Act, the Court considers the following factors:
(a) The relative strength of the Wife’s case. Counsel for the Wife submitted that in the present case, the strength of the Wife’s case is demonstrated through her Net Family Property Statement as well as through her Meher Agreement.
(b) The balance of convenience (or inconvenience). In determining the balance of convenience, the Court must take into consideration the financial circumstances of the parties. Counsel for the Wife submitted that in the present case, the Wife has no income , no bank account, no job); and
(c) Irreparable harm. Counsel for the Wife submitted the Wife will suffer irreparable harm if the Husband divests himself of his assets. She has no way of supporting herself in Canada, and will not be able to return to Canada if she returns to Iran.
[59] Counsel for the Husband’s father appeared at the hearing, submitting that he is the real owner of assets subject to the Preservation Order, and that he should not be prejudiced by it.
[60] Counsel for the father submitted he was the original source of at least some of the funds in the bank accounts. He notably did not submit that those funds were unavailable for the use of his son, "as needed," in his son's discretion.
Conclusion on Preservation Order
[61] There is a serious issue to be tried with respect to the enforceability of the Meher agreement. A copy signed by both parties is included in the materials before the Court. On its face, there is nothing that clearly indicates it would be unenforceable in this jurisdiction. However, that issue is clearly contentious.
[62] While the matter of ownership of the funds, intent to gift, will be more fully explored at the trial, I am satisfied that the Wife has satisfied the test under s. 12 of the Family Law Act and the more rigorous injunction test, and that the Preservation Order of Paisley J. should be upheld with a minor amendment that I shall set out later.
[63] The Husband has not filed an Answer in this proceeding. He has not moved to set aside the Meher agreement or set out the reasons why he says the agreement is unenforceable.
[64] The enforceability of the Meher agreement, the amount of equalization payment owing and spousal support are serious issues to be tried.
[65] If the Order were lifted, the Husband would be in a position to divest himself of his assets in Canada. He is taking the position that it would be "unconscionable" were she to succeed in that claim.
[66] In my view, in all the circumstances here, I am satisfied that the Wife would suffer irreparable harm if the Preservation Order were not continued. She would not be able to enforce any order made for an equalization payment or future spousal support. While the facts are contested, it seems clear that if it is enforceable in Canada, then the continuation of the Order is necessary for the Wife to be able to enforce payment of approximately $540,000 under the Meher agreement so that the Husband cannot divest himself of his Canadian assets in the meantime.
[67] It is also clear that at the time the Husband sponsored the Wife to come to Canada, he undertook to pay her expenses for three years. He has clearly been seeking to evade taking responsibility for fulfilling that undertaking.
[68] In the next section, I shall set out why he must pay her interim spousal support pending trial. A Preservation Order is necessary to protect the Wife's interest in that regard.
[69] I have considered the submissions made by counsel for the Husband's father that he is the real owner of many of the funds subject to the Preservation Order and that the Order should be lifted for that reason.
[70] The father is clearly not an unsophisticated innocent. The parents and brother obviously have access to legal advice and must be assumed to have understood the legal ramifications of putting bank accounts and other investments in the Husband's name alone or of holding them jointly with him. Whatever their reasons for doing so, by placing them in his name alone or directing that they be held jointly with him, they have left themselves open to being affected by a Preservation Order such as the one in this case.
[71] The parents are willing to subsidize the Husband's expenses on an "as needed" basis and have apparently given him discretion to direct the disposition of the funds in the bank accounts to which the Preservation Order applies. I am not persuaded that the parents and the brother will be unfairly prejudiced if the Order continues.
[72] If the Court ultimately accepts the trust agreements between the parents and the brother, upon which they rely, then the disposition of the monies that are subject to the trust agreements will be presumably made in accordance with those agreements.
[73] As I indicated to counsel at the end of the hearing, I am of the view that given the disparate versions of the "facts" presented in the affidavits filed on these motions, a trial is necessary, and I have set a trial date for the weeks of February 4 and February 11, 2013.
[74] Bank of Montreal account number 8979-610, in the Husband's name alone, currently has a balance of about $180,000. It appears from the wording of the Husband's affidavits as a whole that the Husband [not his parents or his brother] controls the funds. I vary the Preservation Order with respect to it to allow payment of the arrears owing on the mortgage on the matrimonial home on the condition that making payments of the arrears owing will have the effect of putting the power of sale proceedings into abeyance.
Spousal Support
[75] The Wife relies on section 15.2 of the Divorce Act with respect to her claim for temporary spousal support.
[76] Interim support is to reflect the amount of income required by a spouse pending trial in order to allow him or her to maintain a reasonable standard of living having regard to the income and means of both parties: Cafik v. Cafik, 1993 CarswellOnt 321 (Ct. J.(Gen. Div.)) at para. 10.
[77] Counsel for the Wife submitted that the Husband’s income for the purpose of determining the quantum of interim spousal support should include all of the funds that the Husband typically received in the year before the calculation, grossed up for income tax - estimated $200,000.
[78] In Lo v. Mang, 2011 CarswellOnt 411 (S.C.J.), where a husband received regular contributions to his personal bank account from his parents, but claimed that they were a monthly “gift” and should not form part of his income for support purposes (paras. 97 and 102), Grace J. held that the parental contributions should be included in the husband's income for the purpose of determining his support obligations. He considered that the contributions were ongoing, not of short duration, and were drawn by the husband and his sister from the parents' accounts without any indication from the parents that the adult children needed or received the parents' permission (para. 103.) Grace J. held the total payments received by the husband from the parents should be included in his income and grossed up for income tax (para. 104.)
[79] The Wife submits that if the Court finds that the funds received into the Husband’s account are not on account of employment income, the funds should still be imputed to the Husband for calculation of support purposes based on the Husband’s budget in his Financial Statement. In Cumming v. Liu, 2012 CarswellOnt 6614 (S.C.J.), the parties cohabitated for a year and had a child. To determine the proper amount of income to impute to the husband, the Court reviewed his sworn Financial Statement. The Court considered his budget showing monthly expenses of $3,859 ($46,308 per year), which had been covered by his parents (para. 45) during their relationship.
[80] In this case, where the Husband had a “primary chequing account” at the Bank of Montreal in his name alone, funded from deposits from other Bank of Montreal accounts in his name or from others, where he has deposed that he received his father's assistance "as needed," that his father "typically" pays the monthly mortgage payments on the matrimonial home and where it appears that the Husband also pays his credit card balances using funds from this account, where he qualified for a $600,000 mortgage, where he showed yearly expenses of $110,994.60 and claimed income of $29,418.96 per year in his financial statement of March 14, 2012, his asserted income level is in doubt.
[81] In this case, there are copies of uncashed cheques in addition to the income he is claiming and a representation to the Government of Canada of earnings of $58,500.
[82] I do not accept that the Husband’s means are as limited as he alleges.
[83] Like Grace J. in Lo v. Mang, in determining the appropriate amount of spousal support pending trial now scheduled for February 2013, I am left to do the best I can with the evidence I have.
[84] In Cumming, based on the husband's budget set out in his Financial Statement, Miller J. found that the husband had received $46,308 from his parents, tax free. In part, due to the lifestyle demonstrated during the relationship with the wife, the Court held it was appropriate to impute $46,308 to the husband for support calculation purposes and to gross up that amount to $61,831 annually (para. 49).
[85] Here, counsel for the Husband denied that his income should be imputed at $200,000 per annum. Even if it were, assuming she earned nothing, he submitted that according to the spousal support guidelines, the amount payable to the Wife would be $700-$933 per month.
[86] In my view, there is ample evidence that spousal support should be calculated on an income of far more than $26,000 or $45,000 per year. It is clear from the Husband's own affidavits that he "typically" received and expected to receive funds "as needed" to support his lifestyle from his family, a lifestyle and a source of means that he shared with his Wife during the marriage.
[87] In my view, his budget and statements in his own affidavits support a conclusion that he had a before-tax stream of revenue, available at his discretion of at least $200,000 per year.
[88] On that basis, under the Spousal Support Guidelines, a payment of spousal support of $933 per month would be justified.
[89] In my view, even on an interim basis, that amount would be insufficient in all the circumstances here. The Court must have regard to the means of both parties.
[90] By sponsoring her and bringing her to Canada as a permanent resident the Husband has promised to help her become a Canadian citizen. The Wife has no bank account here and no ability to work in Canada in the profession for which she was trained in Iran. She is developing her English language skills. If she were to return to Iran, her right to return to Canada might be revoked.
[91] The Husband owns a home presently listed for sale for $949,000. Once the matrimonial home is sold, or even before, she will have no place to live.
[92] The Wife as a resident of Canada is entitled to pursue her rights in Canada. Pending the trial, the Wife needs to live. The Husband asked her to leave Iran, and she did. He made an undertaking to the Canadian government when he brought her to Canada to provide for her until December 2012.
[93] With the exception of a one-time payment of $5,000 pursuant to Court Order, he has apparently failed to provide her with any funds for the past six months.
[94] I am satisfied that pending the trial, he must pay her a reasonable amount to live, having regard to their respective incomes and means.
[95] For all the reasons set out above, even based on an imputed income of $200,000 per year, I am of the view that the amounts set out in the spousal support guidelines would be insufficient to provide her with a reasonable standard of living given all of the unusual circumstances here. The guideline amounts must be increased to provide her a reasonable standard of living, having regard to their respective means and to the standards they reasonably expected to enjoy together at the time she relocated to Canada [and actually enjoyed during the time they lived together]. The Husband asked her to come to Canada and brought her here. He promised to provide for her and has the means to do so pending the determination of the issues between them.
[96] I order him to provide her with a gross monthly amount that will leave her with a net monthly disposable income of $3,250.
[97] This is to tide her over until trial. Interim support is necessary to sustain her at least through to the trial now set for ten days during the weeks of February 4 and February 11, 2013.
[98] In the result, the Preservation Order shall continue except as varied to allow payment of the arrears on the mortgage out of the Bank of Montreal account #8979-610 on the condition that such payment will have the effect of putting the mortgage back into good standing.
[99] The parties may make written submissions on costs on or before August 24, 2012.
M.A. SANDERSON J.
Released: August 9, 2012