ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-00378434-0000
DATE: 2013/06/28
B E T W E E N:
Apollonia (Lot) Chand
Applicant
- and -
Rabindar Chand
Respondent
Ken Nathens, for the Applicant
Rabindar Chand, in person
HEARD: May 21-23, 2013
Herman J.
[1] The applicant wife, Ms. Apollonia Chand, and the respondent husband, Rabindar Chand, separated on May 1, 2012, after almost 41 years of marriage. Each now seeks an equalization payment from the other.
[2] The wife seeks: an equalization payment of $73,678.50; the payment of $60,000, which Mr. Chand paid for her interest in the cottage and is currently being held in trust; the return and division of various personal and household items; security for costs and the equalization payment; and a divorce.
[3] The husband seeks: an equalization payment of $80,000; and the return of artwork. He does not object to the granting of a divorce.
Background
[4] The parties married on September 13, 1971 and separated on May 1, 2012.
[5] They have three adult children.
[6] The husband purchased the wife’s interest in the matrimonial home and their cottage for $250,000 and $60,000, respectively. The wife has received the $250,000. The $60,000 was paid into the trust account of the real estate lawyer and remains there, pending court order.
[7] The husband resides in the matrimonial home (although he was temporarily residing with his daughter at the time of the trial).
[8] By order of Paisley J., dated January 16, 2013, the husband was ordered to pay costs to the wife of $4,908 within thirty days. Those costs have not been paid. They have been secured against the cottage and the matrimonial home by order of Czutrin J., dated April 2, 2013.
[9] On May 15, 2013, Kiteley J. ordered the husband to pay costs of $2,000 by May 24, 2013. These costs had not been paid as of May 23.
General comments on credibility
[10] I have significant concerns with the husband’s credibility.
[11] There is no doubt that the husband did not tell the truth when he stated, at his questioning on October 15, 2012, that he and his sister never e-mailed each other, his sister did not have an e-mail account and she did not have a computer.
[12] The questions related to a central issue in dispute, that is, the husband’s claim that funds in two of his bank accounts at the time of separation belonged to his sister. The husband did not disclose the existence of these funds until they were discovered by the wife.
[13] The husband’s position is that he did not have to tell the truth about the existence of e-mails because he believed the wife had improperly obtained copies of the e-mails from his computer.
[14] This matter was pursued at trial. The following interchange took place during the husband’s cross-examination:
Q: Did you take that oath [to tell the truth at the questioning] seriously?
A: No.
Q: And you didn’t take that oath seriously?
A: No.
Q: You don’t take oaths to tell the truth seriously?
A: I do, I do, but it is when the truth has to come out. But when the truth doesn’t have to come out, when it’s stolen property. I’ve, I’ve, with your questioning, I found out that the property was hacked from my computer. I wanted you to bring evidence here so I said no. …
[15] The husband appears to believe that an oath to tell the truth is qualified: it only applies if he feels “the truth has to come out”. Given the husband’s view of the meaning of an oath, it is difficult to accept his testimony at trial, where that testimony is not corroborated.
[16] I do not have similar concerns with the wife’s testimony. I found her testimony to be forthright and consistent with other evidence. To the extent that the husband’s and wife’s evidence differs and the husband’s testimony is uncorroborated, I prefer the wife’s evidence.
Equalization of Net Family Property
[17] The wife claims an equalization payment of $73,678.50; the husband claims an equalization payment of $80,000.
[18] The valuation date is May 1, 2012, the date of the parties’ separation
[19] There are two main issues in dispute: (i) funds in two of the husband’s bank accounts, amounting to about $74,000 at the time of separation, which the husband claims belonged to his sister; and (ii) artwork created by the wife’s mother, which the wife claims she received either as a gift or an inheritance and is of little monetary value, and which the husband claims was a gift to both of them and is worth about $75,000.
[20] The wife’s equalization claim is reflected in her Net Family Property Statement (“NFP”), dated May 20, 2013 (attached as Appendix A). There is one minor change to that NFP resulting in a reduction of less than $200.
[21] The husband did not present a calculation to explain how he arrived at his claim of $80,000. He prepared an NFP, dated January 14, 2013. However, the values in that NFP appear to be based on a valuation date of January 13, 2013, nine months after the parties’ separation date.
[22] The husband’s most recent Financial Statement, dated March 18, 2013, states that the valuation date is March 18, 2013 and has identical values for “valuation date” and “today”. He agreed, on cross-examination, that this was incorrect.
Admissibility of e-mails
[23] Before determining whether the funds in two of the husbands’ bank accounts are subject to equalization, I first have to determine the admissibility of four e-mails between the husband and his sister, Ms. Rita Singh. I permitted examination on the e-mails during the trial but reserved my decision on their admissibility.
[24] The husband submits that the e-mails are inadmissible because the wife stole them from his computer.
[25] The wife points out that there is no proof that she stole the e-mails. She submits that the e-mails should, in any case, be admissible.
[26] A similar situation arose in the case of Grassie v. Grassie, 2013 ONSC 1198 (S.C.J.). In that case, the husband had accessed the wife’s e-mails without her consent. The wife sought to remove the e-mails from the Continuing Record. Trousdale J. found that the wife had a reasonable expectation that her private e-mails would be confidential. In deciding that the e-mails should be removed, the judge considered the following three factors: (i) whether the evidence was relevant to the issue and whether it was available by other means; (ii) whether the person seeking to introduce the e-mails did anything improper to obtain them; and (iii) whether the probative value outweighed the prejudicial effect of admitting the e-mails.
[27] In view of the circumstances of this case, it is my opinion that it is appropriate to admit the four e-mails as evidence. The e-mails are clearly relevant to a central issue in this case, that is, the source, purpose and ownership of the funds in the husband’s bank accounts. The evidence is not available through other means.
[28] While I do not condone someone accessing another person’s computer without their permission, if that is what happened, the husband does not have clean hands. The wife attempted to obtain copies of the e-mails through the legitimate process of questioning. The e-mails were compellable evidence. The husband denied their existence and lied under oath. In these circumstances, he should not be able to benefit from their exclusion.
The husband’s bank accounts
[29] The amounts in the husband’s bank accounts at the valuation date that are set out in the wife’s NFP are accepted by the husband with the exception of: two bank accounts in which the husband had $32,652.81 and $41,543.06 at the valuation date, which he says belonged to his sister; a bank account with the proceeds of sale of a Florida property; and one minor undisputed change to the bank account he holds jointly with his mother.
[30] The husband claims that the money in the two bank accounts belonged to his sister, Ms. Singh, who lives in India. The money was intended for their mother’s care when she was in Canada. When the mother returned to India, he had to return to money to his sister.
[31] The wife does not accept the husband’s explanation. According to her, the husband’s sister never sent any money to look after the mother. The wife believes the funds in the two accounts were the husband’s money, and came either from the sale of a property in India or another unknown source. She believes the husband transferred the money out of his accounts shortly after being served with her divorce application, in order to avoid it from being equalized.
[32] The husband did not disclose the existence of these accounts in his Financial Statement of July 10, 2012. When the husband was asked about the nondisclosure at trial, he said he did not have to disclose the accounts because they were someone else’s money.
[33] The wife discovered the existence of the accounts in about September 2012, when she found some bank slips.
[34] The funds were then disclosed in the husband’s NFP, dated January 13, 2013, as: “Gifted Money from sister (returned Oct 10th 2012)”.
[35] According to the bank statements, significant funds were deposited into the two accounts in May and June 2011. The husband’s mother came to Canada in October 2011 and left Canada on January 13, 2012. The accounts were closed on June 4, 2012. The divorce application was served on May 27, 2012.
[36] There is documentary evidence that the money was returned to India, to the account of the sister’s son, in October 2012. According to the husband, he tried to return the money in June 2012, but there was a problem and the money was eventually sent in October.
[37] The sister testified that the money was returned in August or September 2012. She said the money was deposited into her son’s account because she had tax problems.
[38] The bank statements show debits both before and after the mother’s stay in Canada. The husband acknowledged that he continued to use money from the two accounts after his mother left Canada to pay some bills and for his living expenses.
[39] The sister provided an affidavit, dated September 6, 2012. In that affidavit, she stated that her mother was going to reside permanently in Canada with her brother starting in October 2011. Her mother did not have any health insurance coverage or a health card in the first few months. The sister offered the money for the upkeep of their elderly mother. It was a mutual understanding between her and her brother that they would share the costs of upkeep for their mother. She transferred $90,0000 to her brother from her sale of property. The mother was forced to return to India in January 2012. After her return, “my brother returned back the money which did not belong to him”.
[40] At the husband’s questioning, his counsel made the following undertakings: to advise if Respondent’s counsel or her office has had any contact with Respondent’s sister with respect to the Affidavit; to advise who prepared the Respondent’s sister’s Affidavit; and to advise what information was provided to the Respondent’s sister to assist her in the preparation of the Affidavit. These undertakings were not complied with.
[41] At the trial, the sister testified that she sent her brother the money because their mother was coming to Canada. Her mother did not have medical benefits and her brother wanted to renovate the cottage for their mother. When the mother returned to India, there was no reason to leave the money with her brother and it was returned.
[42] The sister said she got the money from the sale of a property in India. She said she was the sole owner of a shop in a complex. The deed to the property shows the sister as the sole owner.
[43] The sister testified that the agreement of sale for the property was entered into in March 2011 but it did not close until June 2011. She received the money from the sale between March and June 2011.
[44] While the sister and the husband both testified that the husband did not have any interest in the property, the wife testified that when she and the husband were in India, he pointed out a property that belonged to him.
[45] The sister testified that she began to transfer money to her brother for their mother’s care in July or August 2011, in preparation for the mother’s arrival in October and to give her brother funds to fix up the cottage for her.
[46] In an e-mail dated August 28, 2012, the husband wrote his sister: “Rita the shop in Mumbai was never on my name. It always belonged to u didnt it.Let me know as per her the shop was on both our names.Thats what she told her lawyer”.
[47] A second e-mail, dated September 26, 2012, is from the sister to the husband: “hi roby I was just thinking that manu [her son] has an account in bank of india in case u want please find out from icici bank if u can transfer your money in his account in bank of india…”.
[48] It is likely that there was other e-mail correspondence between the sister and the husband, which might have shed further light on this issue. There are excerpts from five e-mails at the side of the first e-mail. The sister testified that she e-mailed her brother once or twice. When she was shown the e-mails, with excerpts from five e-mails, she agreed that there could have been more than five e-mails. The husband said there were lots of e-mails but he deleted them all because the wife went into his computer.
[49] I find that the money in these two accounts belonged to the husband and is not excluded property. In making this finding, I rely primarily on the following: the husband did not disclose the existence of the accounts until they were discovered by the wife; after the accounts were discovered, the husband referred to the funds as “Gifted Money” in his NFP, not as his sister’s money; the husband lied about the existence of e-mails between him and his sister; the husband did not comply with the undertakings concerning correspondence with the sister; the sister testified that the money was sent in July or August 2012, several months after the funds appeared in the husband’s accounts; the funds were deposited into the husband’s accounts long before the mother’s arrival in Canada and stayed in the accounts long after her departure; the husband used money from the accounts prior to and after the mother’s stay in Canada; the husband admitted he used funds from the accounts for personal reasons unrelated to the care of the mother; the sister referred to “your [the husband’s] money” in the e-mail; and the accounts were closed one week after the husband was served with the wife’s application in this proceeding.
[50] The husband also challenges the inclusion of an account which contains his share of the proceeds of sale of a property in Florida. The account has about $28,500 (U.S.) in it. The property was sold in 2003. The parties each put their half-share of the proceeds into their own bank account. The funds do not qualify as excluded property within the meaning of s. 4(2) of the Family Law Act, R.S.O. 1990, c.F.3. They should therefore be included in the calculation of the equalization payment.
(continues exactly as in the original decision)
Herman J.
Released: June 28, 2013
COURT FILE NO.: FS-12-00378434-0000
DATE: 2013/06/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Apollonia (Lot) Chand
Applicant
- and -
Rabindar Chand
Respondent
REASONS FOR JUDGMENT
Herman J.
Released: June 28, 2013