ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-08-30262
DATE: 20130610
BETWEEN:
Neelam Kumar
Applicant
– and –
Raman Kumar
Respondent
Self-Represented
Dheeraj Sindhwani, Counsel for the Respondent
HEARD: January 15, 2013
REASONS FOR DECISION
mullins j.
Introduction
[1] These proceedings were initiated by an application dated June 27, 2008. By order of July 21, 2010 the applicant's pleadings were struck. The endorsement indicates that this was because the applicant had persistently failed to comply with disclosure obligations and orders in circumstances where the disclosure was extremely important to the issues in dispute. Wherefore, this hearing proceeded on an uncontested basis and relates primarily to the claims the respondent made in his Answer.
[2] The applicant and respondent were married on April 4, 1988. They separated on June 8, 2008. As of their separation, the respondent had turned forty-nine years old and the applicant would do so in August of that year. The parties had two children, a daughter, Ruchi Kumar, who was born May 15, 1989 and a son Ravi Kumar, born May 11, 1992. The two children are estranged from their father, wherefore there has been little to no direct communication between him and them. As best he can surmise, they continue to live with their mother in the matrimonial home.
[3] The somewhat lengthy and troubled history of the litigation between the parties is described in paragraphs 4 through 25 of the respondent’s affidavit of April 11, 2012. It will not be repeated here. There are two orders whose legacy is, in my view, very important to the relief sought by the respondent. These are the orders of Justice Healey, dated September 29, 2009 and that of Justice McGee of December 9, 2009.
[4] The respondent gave viva voce evidence at the hearing and relied upon his sworn affidavits of April 11, 2012 and May 29, 2012. Appended to his affidavit of April 11, 2012 were voluminous documents marked as exhibits. These included correspondence, medical documentation relating to both parties, the applicant's disclosure briefs, income tax documentation for the applicant for the years 2007 through 2009 and for the respondent for the years 2007 through 2010, the sworn financial statements of the applicant dated October 18, 2012 and of the respondent dated April 11, 2012, and a net family property statement prepared by the respondent dated April 11, 2012. Attached, as well, were many pages relating to financial transactions, some of which helped establish the debts of the parties.
[5] The respondent seeks eleven heads of relief. These are:
a divorce;
final orders with respect to child support, specifically that the order for child support reconcile the amount he should pay to the income reflected in his 2009, 2010, 2011 and 2012 income tax reports;
spousal support for the sum of one dollar per year on the basis that the respondent may not be able to return to work or earn sufficient income following a motor vehicle accident of May 14, 2009;
an order rescinding the spousal support of the applicant and forgiveness of any arrears;
equalization of net family property;
a set-off of any arrears owing for child or spousal support as against the equalization payment the respondent says is owing from the applicant to him;
an order requiring the applicant to designate the respondent as an irrevocable beneficiary (in trust) of any life insurance for the younger child;
a restraining order; and
an order compelling the applicant to comply with the order of Mme. Justice Healey dated September 19, 2009 regarding the sale or a buy-out of the matrimonial home and costs.
Divorce
[6] The respondent deposes that he and the applicant have been separated for more than one year with no prospect of reconciliation. Other than this, his evidence is silent insofar as the other requirements that form the basis for the granting of a divorce. There is no reference to the marriage certificate, nor is there the requisite evidence denying collusion. Wherefore, this aspect of the relief claimed is dismissed, without prejudice to a further motion on better evidence. That motion need not be before me.
Support
The Respondent’s Income
[7] The respondent obtained his Bachelor of Pharmacy in 1981. He was licensed as a pharmacist in 1989. For a number of years he operated a pharmacy business. Beginning in 2007 he worked for various pharmacies including Shoppers Drug Mart. He was engaged as an employee and on a self-employed basis.
[8] The income reported by the respondent to Revenue Canada is as follows:
2007 - $108,531.00
2008 - $170,528.00 (date of separation June 08)
2009 - $ 41,354.00
2010 - $ 21,519.00 (this last year consisting of withdrawals from RRSP).
[9] When the parties separated, the respondent deposes, he was working modified hours due to physical and psychological problems relating to a slip and fall that occurred in 2008.
[10] The respondent has sworn that, since May 14, 2009, he has been unable to work due to a motor vehicle accident. As a result, he has not returned to gainful employment. He says his restraint from work is in accordance with the recommendations of his treating physicians. He continues to be under medical care.
Medical “Evidence”
[11] The respondent has appended a number of documents to his affidavit as exhibits that appear to have been authored by members of the health professions. There were medical records tendered by the respondent in support of his assertion that he is unable to work. (There were no medical-legal reports per se).
[12] The records include a note from a Dr. Kaplan dated August 18, 2008. It is addressed “to whom it may concern”. It says that the respondent is ill and needed to be off work for the next 3 to 4 weeks at least to convalesce. There are other notes from the same medical practice, from another physician, indicating the need for a few weeks absence from work.
[13] One of the medical reports attached as an exhibit is a report dated December 21, 2011 of Dr. George D'Onofrio. This report says as follows:
I have assessed this patient today in follow-up for his motor vehicle accident of May 14, 2009. He is under medical treatment and rehabilitation. His prognosis is guarded and he is unable to work due to the nature of his injuries and demands of his job. If you require further information please call me.
[14] There is no explanation given by this physician as to what assessment he performed, nor what treatment and rehabilitation was being administered. There is no reflection in the report as to what the physician’s understanding is of the respondent’s job demands and in what way his condition fetters his ability to work.
[15] A doctor of chiropractics wrote on April 27, 2010 that Mr. Kumar was a patient who was undergoing therapy twice per week. She says he is unable to work due to the physical demands of lifting, carrying and prolonged standing. One Dr. Elsawi investigated the respondent, who was complaining of back and neck problems and shoulder discomfort, as well as anxiety attacks and depression. He thought Mr. Kumar’s atypical pains were likely musculoskeletal and aggravated by anxiety.
[16] An orthopaedic consultant’s report also forms part of the record. It describes significant physical difficulties and medication use by the respondent. That there appears to be a significant psychological and emotional aspect to the respondent’s level of disability is noted in this professional’s report.
[17] The respondent testified that his injuries interfere with his ability to work. He says he must be 100 percent to work. He has pain in his coccyx, difficulty bending, and lifting his right leg. He complains of migraine headaches, sleeplessness at night, and post-traumatic stress. His immune system is weakened. His stomach has been adversely affected, and he must take antacids. His is distressed by all that is going on in his life. He is trying his best, he says, and is heartbroken by what has happened. He has panic attacks and dreams that disturb his sleep.
Insurance Benefits
[18] The respondent explained that he received income replacement benefits from his automobile insurer in the amount of $800.00 bi-weekly from May 21, 2009 to February 12, 2010.
[19] The entitlement to income replacement benefits are governed, it may be noted, by the provisions of the Insurance Act and the regulations thereunder. There is no explanation offered in the evidence as to why the respondent did not continue to receive accident benefits, if as he claims, he is unable to work due to the collision, in accordance with the prescribed entitlements of automobile insurance.
[20] The respondent says he made application for long-term disability benefits through Blue Cross on September 30, 2009. Litigation was instigated, he says, presumably to enforce any legal entitlement he felt he had been denied. The respondent says the claim was settled. He has a claim pending against tort feasor regarding his motor vehicle collision, according to the evidence. There is no evidence as to what sum the respondent has thus far received from his disability insurance or personal injury claims.
[21] According to the last available financial statement, that sworn by the respondent on April 11, 2010, he is not employed and is earning no income. The income for the previous year is said therein to have been $21,590.00.
Child Support
[22] A support deduction order of Mme. Justice Wildman was made July 16, 2008. Pursuant to this the respondent was to pay the sum of $1,404.00 per month commencing July 1, 2008 for support of the two children. The next child support related order was that of Mme. Justice Healey dated September 29, 2009 wherein child support was to be paid, on consent, based on the respondent having imputed income for such purposes in the amount of $100,000.00. The support payable was to be on a without prejudice basis and to be adjusted if the court made a determination of a different number. Justice Healey’s order was temporarily suspended by that of Mme. Justice McGee on December 9, 2009 such that the child support was reduced for the period June 1, 2009 to September 30 2009 to $389.00 per month pending the respondent’s qualification for and receipt of long-term disability benefits.
[23] Although this is not clear from the face of the orders governing child support, there is a support deduction order that confirms that the child support payable was for both children. The premise of Justice McGee’s order reducing the support payable for four months was so as to allow the respondent to crystallize his disability entitlement. The quantum to which support was reduced appears to have been based on the respondent’s IRB benefit of $800.00 bi-weekly. Whether the IRB the respondent had received was grossed up to recognize its tax-free nature is not entirely clear. Reference is made in the reasons of McGee, J. to them being ‘net of tax’. In my view, Justice McGee’s order leaves the onus upon the respondent to deliver the evidence as to what his disability benefit was, so that support could be appropriately adjusted.
[24] The respondent has not presented any evidence which explains the amount his disability entitlement was, nor what he accepted in settlement and why he compromised his continuing entitlements, if he did. I infer that the settlement of the respondent’s benefits claims were not taxable as there appears to be no report of any such sums received as income.
Circumstances of the Children
[25] The eldest child completed her degree as a pharmacist in May of 2012. There was no claim for section 7 expenses for either child. The children have lived with their mother in the matrimonial home. According to the evidence of the respondent, the eldest child received scholarships in 2007 of $5000.00; 2008 of $5000.00; and 2009 of $6200.00. She reportedly borrowed funds from the Ontario Student Assistance Plan. During her second year as a student she was employed at Shoppers Drug Mart earning $10.00 an hour.
[26] The younger child was attending McMaster University as of September, 2010. I infer that he continues to do so. Like his sister, this young adult has been employed and earned wages while attending school.
[27] The respondent made inquiries of his children as to their post-secondary education expenses, but received no response.
Order as to Child Support
[28] Based on the available evidence, I find that child support for the eldest child, Ruchi Kumar (date of birth May 15, 1989) shall terminate effective May 1, 2012.
[29] The younger child is still in school, I infer from the limited evidence. It is reasonable to infer, I consider, that, like his sister before him, he has been resourceful in finding funds to pay for school.
[30] The respondent’s obligation to support his son is not yet discharged. The notes from the medical professionals are dated, perfunctory and fail to explain in any meaningful way why, despite the injuries the respondent may have sustained in his fall or the motor vehicle collision, he cannot work at least to some extent. Clearly, until the year following separation he had an excellent earning capacity. The medical “evidence”, if it is to be treated as such, falls well short of establishing that the respondent is totally disabled from his occupation as a pharmacist.
[31] The best evidence as to what the respondent’s income should be remains, in my view, the sum he agreed it was for the purposes of child and spousal support when the order of Healey, J. was made on consent, which is $100.000.00.
[32] In the absence of any evidence as to what sums the respondent received to settle his disability claim and given the complete lack of detail as to the amounts he says he has borrowed, I see no reason to make an order different from that of Healey, J, as varied by McGee J, save for the fact that the amount payable shall from June 1, 2012 onward shall be for one child, not two.
[33] Thus the respondent shall pay child support to Neelam Kumar in the amount of $877.00 per month for the support of Ravi Kumar, born May 11, 1992, based on an imputed income to the respondent of $100,000.00 per year. An SDO shall issue. The arrears of child support shall be recalculated in accordance with this order.
Spousal Support
[34] The respondent was ordered to pay spousal support to the applicant by Justice Healey on September 29, 2009 in the amount of $1,796.00 per month effective March 1, 2009, based on income imputed to the applicant of $30,000.00 per year. (The income imputation to the respondent of $100,000.00 was not explicitly referenced in the provision for spousal support – only that for child support).
[35] The spousal support order of Healey, J. was made without prejudice and subject to an adjustment should the court so determine.
[36] As explained above, the order of Mme. Justice McGee suspended the support obligation for the period from June 1, 2009 to September 30, 2009. Spousal support, like child support, was suspended to allow the respondent to address his entitlement to disability benefits and in anticipation that support would be re-set to accord with those benefits.
[37] The respondent has failed to present any evidence of what benefits he received and to explain why he does not receive continuing benefits. Given this, and the absence of any explanation as to the sums he received in insurance benefits, there is little evidentiary basis upon which to understand his need.
[38] At the time she was questioned on October 14, 2009, the applicant was employed as a part-time project coordinator. She worked between 10 and 15 hours per week. She was also employed in an administrative position for 10 to 15 hours per week.
[39] Before separation, the applicant had incorporated a business for the purpose of importing costume jewellery and clothing from India, for retail sale in North America. The respondent says that the applicant was not forthcoming with her business dealings wherefore he knows little about them.
[40] According to the respondent’s summary of the applicant's productions, the applicant earned:
$69,855.00 in 2007
$29,974.00 in 2008
$15,155.00 in 2009
[41] The applicant’s reported annual household expenses grossly exceed her reported income, observes the respondent. He suggests that this should be interpreted to mean that her income is higher than she claims.
[42] According to the financial statements sworn by the parties, the applicant and her company entered into loan agreements with the respondent’s. These loan agreements might be accepted as prima facie evidence of substantial debts of the applicant, or more accurately, her business. These are debts the respondent does not expect to collect, he deposes, wherefore he assigns no value to them for equalization purposes. He claims to have made other “advances” to the applicant, though he does not say how much. The respondent attests that the applicant has fallen in arrears of meeting the expenses to carry the matrimonial home. Thus the respondent’s own evidence supports an inference that the applicant’s business was dependent upon his for financing and her income has likely not been sufficient to meet the carrying costs of the matrimonial home since separation.
[43] In the materials tendered by the respondent there are medical records that relate to the applicant too. Dr. Victoria Manfredi says that the applicant has been suffering from sciatica pain in her lower back since January, 2010. This has caused her severe pain radiating down her right leg. She has been experiencing some nerve impingement. The applicant has difficulty sitting, standing and walking. She's receiving anti-inflammatory medications and taking painkillers.
[44] There is a report from a consultant in physical medicine and rehabilitation concerning the applicant, dated May 13, 2010. This relates to a motor vehicle accident in which the applicant was involved on July 5, 2009. This physician concluded that the applicant presented with strange symptoms affecting her neck, upper back, lower back, and right shoulder. She had objective signs of neurologic impairment. A history of sciatica was reported.
[45] If the evidence proffered by the respondent is to be accepted, each of the applicant and the respondent might be found to be in need of support from the other having regard to their age, the length of the marriage, their work experience, their education and their health.
[46] Given that the applicant’s claim for spousal support is not before this court, her pleading having been dismissed, the respondent’s obligation to pay spousal support shall terminate effective August 1, 2010, this being the first day of the first month following the order striking her pleadings.
[47] I am not satisfied on the evidence, however, that the applicant has any ability to pay spousal support nor that the respondent truly lacks an ability to support himself.
Net Equalization of Family Property
[48] The respondent relies upon the sworn financial statements of himself (sworn April 11, 2012) and the applicant (sworn October 18, 2010) to calculate that he is entitled to an equalization payment from the applicant. The respondent claims to have used the applicant’s figures to calculate net family property as well as his own. This is not entirely true. He appears to have co-opted the Applicants assets values on separation and disregarded the deductions and or exclusions she identified. The figures used in the Respondent’s NFP calculations were not collated with the documents appended to his affidavit. There was virtually no viva voce evidence on the subject of net equalization.
[49] The respondent did roust himself to claim that the applicant retained an inventory of a value of $200,000.00 from her business. There was, I find, no evidence in support of this other than his bald assertion. That the company would have an asset of such value seems unlikely given the bad debts of that company he says he holds.
[50] I do not accept the respondent’s evidence that the applicant has an asset in the nature of inventory owned by her business. Even if she did, this presumably would be an asset of the company and would be considered as part of a valuation of her shares in the company.
[51] There was no independent valuation evidence tendered in relation to any of the assets of the parties, other than their own, as found in the financial statements.
[52] I am left to infer from municipal tax documents and the parties’ claim to each having a 50 percent interest, that the matrimonial home is jointly owned.
[53] Under the circumstances, I find that the sworn financial statements of the parties (as identified above) and forming part of the trial record put before this court by the respondent, offers the best available evidence as to the value of the assets and debts of each on the date of marriage and valuation date. I have allowed each of the parties the values they claim, respectively, for their assets and debts in accordance with these documents.
[54] I calculate the net equalization, accordingly, to be as follows: (see following page)
(Complete Net Family Property Statement tables reproduced verbatim above.)
[55] The respondent shall have judgment accordingly, such that the applicant shall pay an equalization of $54,002.08. Once the adjustments to spousal and child support ordered herein are factored, the respondent may set off, as he requests, the arrears of support, if any, as against the equalization payment to which he is entitled. An order shall issue to address this with FRO as necessary.
Life Insurance
[56] The parties are, according to the financial statement of the applicant, jointly insured under a policy of insurance with Sunlife having a benefit value of $100,000.00. As such, in the absence of other evidence, I find that the parties have insurance to the benefit of both. There is another policy identified as providing a benefit of $250,000.00 to each of the children. The children are both of the age of majority. Under these circumstances, there shall be no order as requested by the respondent to alter the designation of any policies.
Compliance with Order of Healey J.
[57] The provisions of the order of Healey J governing the sale or buy out of the home are now stale. Apparently, the mortgage has been renewed without the respondent’s involvement. Given the practicalities dictated by the applicant continuing to live in the home and the hardship that may be brought to bear, the terms under which the home might be compelled to be sold should be addressed on notice to the applicant through a fresh motion.
Restraining Order
[58] There was no evidence that a restraining order is currently required.
Costs
[59] The respondent has submitted a bill of costs calculating an entitlement to costs on a partial indemnity basis of $102,673.04 and on a full indemnity basis of $137,078.15. Of the sums particularized, that for the preparation of this trial is said to have been 29.8 hours for work performed by Dheeraj Sindhwani at a rate of $200.00 per hour. The value for this portion of the litigation, on a partial indemnity basis, is $4,768.00 and full indemnity, $5,960.00.
[60] Under Rule 24, the judge shall decide, in a summary manner, to whom costs may be awarded and set the amount of costs. The factors governing the exercise of the court’s discretion are described in subsection 11. The issues in this proceeding, though protracted, were not complex, difficult nor important, though clearly considerable time and fees were expended in connection with the extraction of documents, notably from the applicant. There was, according to the bill of costs of the Respondent, considerable time and fees incurred in relation to a number of aspects of the litigation including questioning @ 40 hours and meeting with the client @ 60 hours. A significant number of the hours expended were in relation to motions. I was not provided with any direction from counsel as to which, if any, of the orders made before trial reserved costs to the trial. I do not therefore award costs for the time noted in the bill in connection with motions. Disbursements of $13,518.30 for photocopies, courier, transcripts, research fees, mileage and parking are claimed, without particulars. There were no transcripts used at the trial. The materials were voluminous, but with few exceptions, virtually none were referred to during the hearing and most seem to have been indiscriminately appended.
[61] I was not made aware of any offer to settle by the respondent or applicant.
[62] The net family property figures of the parties were not insubstantial, but were based on the face value of investments for the most part and an uncontested value for the matrimonial home. Under the circumstances, a proportionate costs award in keeping with the factors outlined in the rules and having regard to reasonable expectations is $25,000.00 plus disbursements of $4,000.00. The respondent shall have costs on a partial indemnity basis for those sums.
Justice A. Mullins
Date: June 10, 2013