ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-10-70456-00

DATE: 2013-06-05

BETWEEN:

Manish Mohanlal Patel

Self-Represented

Applicant

– and –

Kirti Patel a.k.a. Kirtiben Patel a.k.a. Kirti Keshubhai Bharodia

Self-Represented

Respondent

HEARD: February 26,27,28, &
March 1, 2013

REASONS FOR JUDGMENT

M.J. Donohue, J.

ISSUES

[1] Manish and Kirti Patel were married in India on February 10, 1996, but separated in August 2010. They have one son, Deval Patel, born January 12, 2000, who is now 13 years of age.

[2] The issues to be adjudicated are as follows:

(a) Who should have custody of Deval?

(b) What access arrangements should be made?

(c) Should Mr. Patel pay spousal support and if so, in what amount?

(d) What equalization payment is owed?

BACKGROUND

[3] The parties met and married in India in 1996. They moved to Canada in 2000 and became citizens in 2004. They lived in Mississauga. Mr. Patel was self-employed doing I.T. work. He had an opportunity to work in the United States where his in-laws lived in Georgia. He obtained a temporary work visa and moved his family to Georgia. Ms. Patel has had difficulty with psychiatric problems for a number of years. In 2010, the family built and moved into a new house. Ms. Patel had a breakdown in August of 2010. Mr. Patel took their son Deval and returned to Mississauga where he has remained.

CUSTODY

[4] Mr. Patel’s reason from removing Deval from the home was his wife’s mental health and an outburst that she had in August 2010.

[5] Mr. Patel’s evidence is that his wife has had a mental disorder for ten years or more.

[6] Mr. Patel testified that Ms. Patel attempted suicide in 2003 and was admitted the North York General Hospital.

[7] He produced evidence of prescription drugs of anti-psychotic medication prescribed by Indian and American doctors for emotional and mood disorders. A medication in 2008 was prescribed by Dr. Yogesh Patel, consultant psychiatrist at the Crisis Intervention Centre. Another medication in 2008 was prescribed by Dr. Vikas Ponda, neuro-psychiatrist and specialist in Epilepsy & Sexual Disorders. These two doctors were in India.

[8] Mr. Patel feels her condition worsened with time.

[9] His evidence is that he had a good full time position in 2004-2005 with the Ontario Government in the Ministry of Finance. He had a pension and he enjoyed the job. He chose to leave that job and move to Georgia near Ms. Patel’s parents because of her poor emotional health. He obtained a temporary work visa and he began to work in Georgia. He sent his wife to India for treatment but she refused to take the medications prescribed.

[10] They moved into the new house that they had built in the spring of 2010. Mr. Patel described unusual behaviour by Ms. Patel. She was complaining of skin allergies and the specialists found nothing wrong. She complained of bad smells. If someone touched her shirt when she was out she would take it off at home and leave it in a pile. Photographs of their home showed small piles of clothing throughout the living areas of the home. Mr. Patel described her sniffing the faucet after he or Deval washed their hands. Ms. Patel would then tie a bag around the faucet. Ms. Patel would wash such things as bunches of pencils and bunches of hangers. Although she had a new washer and dryer she washed everything by hand and hung clothes to dry.

[11] Photographic evidence was provided of these behaviours. Mr. Patel was not cross-examined on this evidence nor did Ms. Patel advise any contrary evidence.

[12] On August 21, 2010, Mr. Patel testified that Ms. Patel had a violent outburst. She was throwing things out of the house such as tables and sofas complaining that they smelled. She “beat” Mr. Patel and kicked their son. He called 911. The police report from Alpharetta Police Department was produced indicating they were involved but it does not provide any of their observations.

[13] Ms. Patel denies throwing tables or hitting her husband and son.

[14] She admits that she ran that day from the police as she was afraid of going to jail.

[15] Following this event Mr. Patel decided to remove Deval from the home. He came to Mississauga. Ms. Patel sought access with her son.

[16] In February 2011, Justice Messacca ordered access to occur through the supervised access centre on alternate weekends.

[17] There is evidence that Mr. Patel cooperated in getting access arranged. He wrote to the access centre. He completed the forms he was to do for the program.

[18] The Peel Supervised Access Program however rejected her application. Their letter dated April 9, 2011 explains, “During the intake process it became clear that you are not in agreement with the terms of service. You told the program coordinator that you would not speak English during visits. Furthermore, your intake was not completed due to your unwillingness to sign the necessary forms. You refused to provide the centre with an address to mail documents to. You refused to sign documents that were required to proceed with the file. The Peel Supervised Access Program does not have the resources necessary to support service in this case.”

[19] It is disturbing to the court that Ms. Patel did not cooperate with the access centre so that it could proceed.

[20] Mr. Patel testified that he had to make a report to the police on April 14, 2011, in Mississauga due to Ms. Patel phoning and texting repeatedly and using profane language.

[21] This evidence raises a concern about Ms. Patel’s mental health and her ability to safely parent a child on a full time basis.

[22] Ms. Patel provided various doctors notes.

[23] Dr. Cheema provided a note March 7, 2011, saying Ms. Patel is a new patient. He concluded that on the two visits and her past medical history his assessment is that she is not suffering from any mental health issues. There is no evidence what medical history he was given. He wrote again on April 11, 2011, that Ms. Patel is mentally competent to live an independent life and take care of her son.

[24] The psychiatrist’s report is by Dr. J. S. Dhaliwal dated December 20, 2011. He confirms that “at this time” she has “no psychotic symptoms, no mania and no hypomania. She is alert and oriented. I did not elicit any hallucinations. She says she is not depressed, she is not suicidal, and she is eating well, sleeping well.”

[25] Dr. Dhaliwal did not have any treatment for her from a medication point of view. He states that regarding the circumstances that led to separation he only has her side of the story. He does not say what history she gave. He noted she was stressed and anxious but was not presenting with any delusions, psychosis or paranoid behaviour.

[26] The most recent note is hand written by Dr. R. Vijayaraghavan dated February 4, 2013. There is no analysis or history taken apart from noting that she had seen Dr. Dhaliwal and Dr. Cheema and they concluded she does not have any psychiatric symptoms or signs. Dr. Vijayaraghavan states that he concurs “that she does not currently have psychiatric illness.”

[27] The medical evidence provided by Ms. Patel states that she is psychiatrically well. The doctors did not testify and their clinical notes were not produced. It is unknown what medical history they were provided with by Ms. Patel. I consider this evidence to be weak in giving the court comfort in Ms. Patel’s mental wellness.

[28] Mr. Patel testified that at an access visit in October 2012, Ms. Patel became angry that there was a woman in his car such that she began screaming, swearing and banging on the car window. Mr. Patel called the police and Ms. Patel ran from the scene. Mr. Patel cross-examined her on this incident. She gave no denial but commented that another woman should not be there on access visits.

[29] The concern from the court’s perspective is such a violent outburst occurred in front of the child.

[30] Although in receipt of spousal support since September 2011, Ms. Patel has not established a home in Mississauga and has spent time in motels. She testified that she has moved here and there. She said she has difficulty finding a place to rent. She has not been employed since separation. She has no plan for where she would live, where Deval would go to school and what work she would do.

[31] Deval has been in the custody of his father for the last three years. Mr. Patel produced evidence of his son’s report cards showing that Deval is an A student with good work habits. Photographic evidence was introduced showing the healthy and active lifestyle Deval enjoys with his father. He has additional health care insurance for Deval and has taken him for the flu shot. Deval is active in cultural events and large family gatherings. His father has him taking guitar lessons and tennis lessons.

[32] Ms. Patel did not cross-examine Mr. Patel on this evidence or given any contrary evidence to indicate that Deval is not thriving in his father’s custody.

[33] The courts obligation is to consider the best interest of the child. In the case of Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 the Supreme Court of Canada stated that the best interest of the children are the ultimate and only relevant issue in determining custody.

[34] Mr. Patel has created a healthy life for Deval. To order custody to Ms. Patel would be to severely disrupt the child’s life at this time. I order sole custody of the child to Mr. Patel.

ACCESS

[35] It is evident that Ms. Patel loves her child and wishes to spend time with him. It is recognized that a child needs a relationship with both parents.

[36] Mr. Patel acknowledged that Deval misses his mother and that he keeps the child busy with many healthy activities to minimize this loss.

[37] Mr. Patel has himself supervised the access at a Tim Hortons as Ms. Patel did not cooperate with the Peel Supervised Access for the last two years.

[38] He is no longer willing to supervise the access.

[39] I note that Deval is now 13 years of age. His is entering Grade 8 this fall.

[40] His Grade 7 teacher grades Deval’s learning skills and work habits as “Excellent” for Responsibility; Independent Work; Initiative; Organization; Collaboration and Self-Regulation.

[41] There was no evidence presented at trial that at the present time Deval would be unsafe with his mother. There was no evidence demonstrating the need for supervision apart from the incident in October 2012, when Ms. Patel behaved badly.

[42] Ms. Patel sought an access order that would allow her to do an activity with Deval on Sunday afternoons.

[43] In the best interest of the child a three hour access visit on alternate Sundays is to commence on the first Sunday after this judgment between noon and 3:00 p.m.

[44] After three months the parties may return to the court to review extending the access.

[45] Ms. Patel requests an order for Skype access. Mr. Patel is content with access by Skype for on non-access Sundays. This allows Ms. Patel to meet with Deval whether she is living here or in Georgia or in India. An hour visit by Skype on non-access Sundays and on Sundays when Ms. Patel is out of the country a reasonable way for contact between mother and son.

[46] Ms. Patel wished to talk with her son five times on week nights for two minutes by phone. This is a reasonable way to encourage contact between them. I order Mr. Patel to facilitate arrangements for Deval to phone his mother each week night evening. This can be arranged around Deval’s homework and activities.

[47] Ms. Patel asked that Deval spend two months of the summer with her. If Mr. Patel remarries she asked that Deval be in her custody.

[48] Ms. Patel asked that for family occasions Deval be allowed to come to see his relatives.

[49] I will review access in three months time to consider limiting or expanding the access provided.

[50] Ms. Patel asked that she be able to see school report cards. Mr. Patel consented to an order for production of the report cards. I order Mr. Patel to produce the school report cards to Ms. Patel within 14 days of receiving them. (on consent).

[51] Mr. Patel consented to an order to provide his address within 30 days of any move. I so order.

SPOUSAL SUPPORT

Mr. Patel’s Ability to Pay Support

[52] Mr. Patel is self-employed as a soft-ware programmer.

[53] Initially Mr. Patel was paying support of $3,000 as of August 1, 2011, pursuant to the court order of Justice Snowie of September 2, 2011, on an imputed income of $120,000.

[54] He has been paying $1,377 in spousal support since October 16, 2012, on an imputed income of $82,850 as ordered by Justice Price. In Justice Price’s order Ms. Patel was advised to actively seek employment or to provide up to date medical documentation supporting that she is incapable of maintaining employment.

[55] Mr. Patel’s income had been higher when he lived in the United States where he earned $149,070 in 2007; $103,186 in 2008; $175,416 in 2009; and $191,748 in 2010. Ms. Patel submitted that support should be paid on an average of those three years income.

[56] Imputing such income to Mr. Patel during a time that he was on a temporary work visa in the United States would not be fair and would not reflect the reality of his earnings in Canada where all the family are citizens.

[57] His income history in Canada was as follows:

INCOME
YEAR

$ 17,381
2000

$ 30,731
2001

$ 56,300
2002

$ 49,130
2003

$ 49,600
2004

$ 43,148
2005

$ 80,228
2006

[58] The evidence was that he was income splitting with his wife in some of those years being:

INCOME
YEAR

$5,000
2001

$10,000
2004

$3,100
2005

[59] Mr. Patel’s T4 income for each of 2011 and 2012 was $82,850 paid to him by his company Axella Compusoft Inc. The 2012 Notices of Assessment for Axella show a total sales of $106,622 on which he remitted GST/HST to Revenue Canada.

[60] The financial statement of Axella for 2011 shows that he was paid a salary of $73,743 plus management fees of $2,000 plus meals and entertainment of $2,006. His income was therefore at least closer to $77,749. The vehicle he expensed is dedicated to the business and is not used personally.

[61] A review of the business expenses and Mr. Patel’s evidence shows a reasonable amount is written off against revenues.

[62] Mr. Patel submitted that his income should be imputed to be $82,850 as shown on his 2012 tax return. I find this to be reasonable. I impute income to Mr. Patel of $82,850.

[63] Mr. Patel felt that with his debt load he could not afford to pay spousal support. He did not file a Financial Statement with the court but he did provide evidence that he is obligated to pay significant debts to Suntrust, Canada Revenue Agency and Marfatia Stock Brokers. Those debts amount to $64,527.

[64] Mr. Patel entered into evidence that his Scotia line Visa card has a balance owing of $16,597.21 and his MBNA card has a balance owing of $7,630.

[65] It is apparent that he is carrying a significant debt load, the bulk of it being the mortgage on the matrimonial home which was sold at a loss. Only Mr. Patel is paying the mortgage debt.

[66] In consideration of these debts I assess any spousal support payment at the low end of the range provided in the guidelines.

[67] I am also considering that Mr. Patel is also trying to save for his son’s post-secondary education costs.

Ms. Patel’s Need for Spousal Support

[68] It is agreed that Ms. Patel was largely a full time homemaker and mother to Deval until separation.

[69] Ms. Patel’s tax return summary shows T4 income of $9,000 in 2001; $12,000 in 2002; $13,374 in 2003; $12,000 in 2004; and $4,000 in 2005. While they lived in the United States Ms. Patel did not have a work visa and the parties agree that she was not able to work there.

[70] She obtained a degree in science from India in 1992 and a certificate in Computer work for DOS, Windows, FoxPro and Power Point in India in 1997. She has had modest work experience in this country. Her English is not polished. She is a tiny woman. I anticipate that at best she could do light manual labour part time similar to her past income. Twenty hours a week at minimum wage of $10.25/hour amounts to $10,660.

[71] Ms. Patel’s evidence was that she could work and she planned to work. She emphasized her ability to work in connection with her fitness to be the custodial parent. I am not confident that her desire for employment is sincere or her ability to find and sustain full time employment is realistic.

[72] Mr. Patel submitted to the court that part time income of $10,000 should be imputed to Ms. Patel for support purposes. In the circumstances of her employment history, her evidence that she planned to work, the medical letters of her medical fitness, I find it reasonable to impute income to Ms. Patel at $10,000.

[73] Mr. Patel asked the court to order that Ms. Patel’s support be lowered if she moved to India or to the United States where her family lived as he considered her expenses would be lower. He provided me with no evidence that her needs would be less. The Spousal Support guidelines are an appropriate guide.

[74] The Guidelines on the imputed income levels I have determined for the parties, $82,850 for Mr. Patel and $10,000 for Ms. Patel, after a 14 year marriage provide for the low range of support in the amount of $1,010 per month.

[75] Mr. Patel has been paying support since October 2012, for a year and a half. The duration of support under the guidelines is between 7 to 14 years. The evidence is that Ms. Patel has been very dependent on Mr. Patel in the past. Her path to economic self-sufficiency is likely to take some time.

[76] I find that spousal support is to be paid for a period of seven years of which a year and a half has been paid. Support is to terminate on January 2019.

EQUALIZATION PAYMENT

[77] The parties worked over several different Net Family Property Statements but finalized their positions by the end of trial. There was some agreement. The parties agreed that the conversion from Rupees to Dollars was to divide the Rupee figures by 54 to determine their Canadian value. Pennies have been rounded to the nearest dollar.

[78] Ms. Patel argued that Mr. Patel had withdrawn suspicious amounts of money in the three years before separation in anticipation of their separation and divorce. Mr. Patel gave evidence that he had paid for several trips for his wife and son to India. He paid the tuition for his son’s school in India. He paid for a trip to Paris in June 2010, for the three of them as a family. He paid for the house that they built in Georgia with the upgrades desired by Ms. Patel. Ms. Patel acknowledged these payments. I find such payments to be reasonable family expenses and not an indication of Mr. Patel dissipating the assets in a plan to separate.

[79] Ms. Patel entered into evidence bank statements and RRSP information from many years prior to separation. Evidence was provided that the RRSP was closed long before separation. For the evidence of assets at the valuation date I have used the bank balances for the closest date to August 28, 2010.

[80] Ms. Patel argued that a life insurance policy was an asset of Mr. Patel’s. The evidence however showed it was simply a term life policy with no cash surrender value.

[81] Although the parties had purchased a new house in the year of their separation for $224,520, it sold the next year for $131,900, much less than the mortgage of $170,616, leaving a debt for Mr. Patel of $44,798. Neither party allocated a value to the house at the valuation date. As the property sold for $131,900 following separation I consider that to be the value at valuation date.

Table 1 - Value of Assets owned on Valuation Date August 28, 2010

Assets of Mr. Patel:

Citibank - 683,948.27 rupees
$12,665

Bank of America - joint $2,805.63
$1,402

HDFC Bank - joint 278,264.44 rupees
$2,577

Wachovia Bank - joint $1,112
$556

Scotia bank joint - no evidence of balance at August 28, 2010
0

Suntrust - agreed but no documentation
$3,500

DCU account
$2,402

Marfatia Investments 862,735 rupees
$15,977

Corolla 1999 - fair blue book value
$727

Camry 2006 - fair blue book value
$3,927

ABN - account 25,000 rupees
$463

HDFC Securities
$290

E-Trade
$5,106

House ($131,900 divided by 2)
$65,950

Total Assets
$115,542.00

Assets of Ms. Patel:

Regions Bank
$2,96

Bank of America - joint $2,805.63
$1,402

HDFC Bank - joint 278,364.44 rupees
$2,577

Wachovia Bank - joint $1,112
$556

Scotia bank joint - no evidence of balance at August 28, 2010
0

Bank of Montreal - agreed
$24,000

HDFC Fixed Deposit - agreed
$4,629

House ($131,900 divided by 2)
$65,950

Total Assets
$102,082

Table 2 - Value of Debts and Liabilities on Valuation Date August 28, 2010

Liabilities of Mr. Patel

Mortgage on matrimonial home ($170,616 divided by 2)
$85,308

Marfatia Stock Broker - 862,735 rupees
$15,977

Canada Revenue Authority
$3,752

Bhavesh Patel - withdrawn by Mr. Patel
0

Jitendra Jaiswal - withdrawn by Mr. Patel
0

Total Liabilities
$105,037

Liabilities of Ms. Patel

Mortgage on matrimonial home ($170,616 divided by 2)
$85,308

Total Liabilities of Ms. Patel
$85,308

Table 3 - Value of Property at date of marriage

[82] Mr. Patel initially claimed $10,000 in the Pragati Bank. He withdrew this in the trial. Ms. Patel did not claim any assets owned at the date of marriage.

Table 4 - Value of Excluded Property

[83] Neither party claimed any excluded property.

Net Family Property

[84] At the date of separation Mr. Patel had assets totalling $115,542. Ms. Patel had assets totalling $102,082.

[85] Mr. Patel’s liabilities totalled $105,037. Ms. Patel’s liabilities were $85,308.

[86] Mr. Patel’s net family property at separation was $10,505. Ms. Patel’s net family property was $16,774.

[87] The difference is $6,269. Half the difference is $3,134.50. Ms. Patel shall pay an equalization payment to Mr. Patel of $3,134.50.

[88] I order this to be paid to Mr. Patel by monthly payments of $31 to be deducted from her monthly spousal support.

CONCLUSION

[89] Accordingly, I order that;

(a) Sole custody of the child of the marriage, Deval Patel, is ordered to be with his father, Mr. Patel.

(b) Access is to commence unsupervised on alternate Sundays between noon and 3:00 p.m. Mr. Patel is to facilitate evening week day phone calls of two minutes for Deval to phone his mother. On non-access weekends Mr. Patel is to facilitate Skype visits for one hour between Deval and his mother. In the event that Ms. Patel is away in India or in the United States the Skype visit for one hour is to replace the afternoon unsupervised access visit.

(c) After three months of unsupervised access visits the parties are to return to court to review the access with a view to expanding or restricting access. The court remains seized of this matter and the review date before me shall be on August 15 at 9:30 a.m. or at such other time as agreed to by the parties or as otherwise ordered by the court. It is ordered that seven days prior to that time, each of the parties shall file affidavits relative to the events which have transpired since the making of this Order, and which will be relied upon by the parties in any submissions made relevant to its variation or extension of access.

(d) If either party moves residence they are to advise the other party within 30 days.

(e) Mr. Patel is to share school records with Ms. Patel within 14 days of receipt.

(f) Mr. Patel is to pay spousal support of $1,010 per month (less $31 per month equalization payment for a net amount of $979) on an imputed income of $82,850 and an imputed income to Ms. Patel of $10,000 until January 2019.

(g) The parties are to provide each other with their tax returns as of July 1of each year.

(h) Ms. Patel is to pay an equalization payment to Mr. Patel of $3,134.50.

[90] In final submissions Mr. Patel requested a restraining order for non-harassment by Ms. Patel of Mr. Patel and Deval and not to come near his house or to phone. Apart from the evidence of the harassing phone calls in April 2011, he did not provide any basis for a restraining order. I decline to so order.

COSTS

[91] It appears that success is divided.

[92] Neither party had representation at trial. If the parties wish to seek a cost award from the court they are to submit written submissions of three pages or less plus any offers to settle within 14 days of this judgment.

M.J. Donohue, J.

Released: June 05, 2013

COURT FILE NO.: FS-10-70456-00

DATE: 2013-06-05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Manish Mohanlal Patel

Applicant

– and –

Kirti Patel a.k.a. Kirtiben Patel a.k.a. Kirti Keshubhai Bharodia

Respondent

REASONS FOR JUDGMENT

M.J. Donohue, J.

Released: June 05, 2013