Khalid Janjua v. Shahnaz Khan, 2013 ONSC 44

Newmarket COURT FILE NO.: FC-09-33706

DATE: 2013-01-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN

Khalid Janjua

(also known as Raja Khalid Mahmood Janjua and Khalid Mehmood Janjua)

Applicant

— and —

Shahnaz Khan

Respondent

COUNSEL:

Alexandra Abramian for the Applicant

Shahnaz Khan acting in person

HEARD: May 22, 23, 24, 25, 28, 29, 30, 31, 2012, June 1, and 4, 2012.

Hughes J.

REASONS FOR JUDGMENT

Background

1The parties met through a personal newspaper advertisement in or about October 1997. Mr. Janjua had immigrated to Canada in 1995, leaving a wife and child in his homeland of Pakistan. Ms. Khan had immigrated to Canada from India in approximately 1971, she had been previously married, was now divorced, and her children were all young adults.

2The parties shared the Muslim faith pursuant to which Mr. Janjua was permitted to have more than one wife. With full knowledge that Mr. Janjua was not yet divorced from his wife in Pakistan, Ms. Khan celebrated a religious marriage ceremony with Mr. Janjua here in Canada on April 3, 1998. Following this religious service the parties immediately commenced cohabitation at Ms. Khan’s condominium residence at 326 Major Mackenzie Dr. East, Unit 230, Richmond Hill, Ontario. From that date onward the parties held themselves out as husband and wife to their community in Ontario, Canada.

3In approximately January of 2002, and while the parties were living together, Mr. Janjua commenced proceedings in Pakistan to obtain a divorce from his first wife, Nayyar Firdaus (also spelled Nayyar Firdous and Nayyar Firdoss).

4Mr. Janjua subsequently produced a certificate of divorce purportedly from Pakistan. Together the parties attended at an Ontario lawyer’s office and obtained a legal opinion that Mr. Janjua’s foreign divorce was recognized in Ontario, and he was legally entitled to apply for a marriage licence in this province.

5The parties applied for their marriage licence, and were married on October 17, 2003 in Toronto, Ontario.

6On April 3, 2009, Ms. Khan attended a local police station and while she was there giving a statement to police, Mr. Janjua was arrested and removed from the family home at 326 Major Mackenzie Dr., E., Unit 230, Richmond Hill, Ontario. The parties have remained separated since that time and have had no contact with each other except through legal counsel and in the course of these proceedings. The charges laid by the police relate to allegations made by Ms. Khan against Mr. Janjua, but are irrelevant to the issues before the court in this action.

7Following the trial on January 8, 2010, Mr. Janjua was acquitted of the criminal charges laid by the police and he entered into a peace bond for a period of 12 months.

Position of the Applicant

8Mr. Janjua commenced an application on June 29, 2009 seeking, among other things, a divorce, an equalization of net family property, and spousal support. On October 14, 2011, Mr. Janjua withdrew his claim to spousal support, thereby eliminating the question of his entitlement to spousal support as an issue for this trial.

9Included in Mr. Janjua’s claim to an equalization of net family property is the value of the matrimonial home at 326 Major Mackenzie Dr., E., Unit 230, Richmond Hill, Ontario; this property was owned by the respondent, Ms. Khan, prior to the parties’ religious marriage on April 3, 1998, and remained their family home to their date of separation on April 3, 2009. At the time the parties commenced cohabitation on April 3, 1998, Ms. Khan owed approximately $30,000.00 on the outstanding mortgage, but by the time the parties married on October 17, 2003, the balance remaining on the mortgage had been paid off in full.

Position of the Respondent

10On July 27, 2009, Ms. Khan filed her answer, and in it sought the following relief from the court:

(a) A restraining order;

(b) Talaqnama – written Bill of Divorcement [Muslim divorce] and a removal of the bars to remarriage by the applicant giving her a Talaq — to be set free [Islamic Law to divorce];

(c) A declaration that the marriage was void ab initio due to the fact that the applicant continued to be married to his first wife;

(d) A declaration that the applicant has no entitlement to any of the property in the respondent’s name; and

(e) The applicant repays the funds he took from the respondent.

11In her final submissions, Ms. Khan urged the court to find that the applicant had engaged in a premeditated plan to dupe her out of her assets. She claimed that:

[T]he whole marriage with me [Ms. Khan] was a misrepresentation and set up. He [Mr. Janjua] entered into the marriage fraudulently and knowingly when he had no legal capacity to marry me. He misled me and made me believe he was divorced and married me in bad faith. He entered into marriage for his own personal growth and to get enriched with my assets.

12In perfecting this plan, Ms. Khan alleges that Mr. Janjua obtained a fraudulent certificate of divorce from his first wife in Pakistan in order to obtain a marriage licence in Ontario, pressured her into marriage, and prevented her from obtaining a prenuptial agreement by swearing on the Holy Quran that he would never touch her money or her property. In summary, the respondent’s position is that the applicant is not divorced from his first wife, Nayyar Firdaus, that the certificate of divorce is a forgery and, therefore, the parties’ marriage is not valid.

13In the alternative, Ms. Khan requested that in the event the court determined that a valid certificate of divorce was issued in 2002, such that the marriage between the parties was valid, then the court should order an unequal division of the matrimonial assets in her favour, taking into account the short duration of the marriage, the unequal contributions by the parties during the marriage, and the applicant’s dissipation of assets during the marriage.

14Ms. Abramian, counsel for Mr. Janjua, objected strenuously to the court’s consideration of such a late request for an amendment to the respondent’s pleadings for an unequal division of matrimonial assets in her favour. Ms. Abramian stated that it had never previously been pleaded and that it would cause great prejudice to the applicant to permit the claim to be raised by the respondent in final submissions. Counsel argued it would be unfair to the applicant because the evidence had not been adduced based on such a claim, and in preparing her book of authorities she had not produced the cases that would refute the argument that this was a proper case for such a remedy.

15There are cases in Ontario where the court has refused to permit an amendment to pleadings at such a late stage of the proceedings. In Sheikh v. Sheikh, the court held that it was too late for the husband to amend his claim at the reply submission stage to seek an unequal division.¹ And in Taylor v. Taylor, it was held that an un-pleaded claim for relief as significant as an unequal division of the net family properties of the parties cannot be argued at trial.²

16However, I find the case before me to be distinguishable on its facts. In a 14B motion brought by Ms. Khan dated April 24, 2012, she sought at paragraph 3:

A declaration that the Applicant has no entitlement to any of the property in the Respondent’s name since the sole issue in these proceedings is validity of marriage or alternatively unequal distribution of matrimonial assets due to the short term of the marriage of the parties and that there was unequal contribution of the assets made and brought into the marriage by both the Respondent and the Applicant. It would be highly unfair to make an equal disbribution (sic) of the Matrimonial assets between the parties;

17Justice Kaufman, in considering the 14B motion, did not perceive it to be a new claim requiring an amendment to Ms. Khan’s pleadings and dismissed the motion. Quite reasonably, His Honour accepted the argument of Ms. Abramian, counsel for the applicant, that the relief sought was more in the nature of a summary judgment motion and not properly brought by 14B. Ms. Khan was unrepresented at this motion and, as a result, it appears that the need to amend her pleadings to reflect this claim was not addressed, as it should have been, with the case management judge.

18Although Ms. Abramian’s submission is technically correct that the issue of an unequal division of matrimonial property had never been specifically raised in the pleadings, I find that it had, in fact, clearly been raised as an issue in this action by the respondent prior to trial. Further, at paragraph 22 of the affidavit of Brigitta Tseitlin, an associate of Ms. Abramian’s, sworn April 25, 2012, and filed in response to Ms. Khan’s 14B motion, in which she specifically raised the issue of an “unequal division of matrimonial assets” it states:

[T]he Applicant has provided absolutely all of the relevant financial disclosure and this matter has been trial ready since the fall of 2011. There is sufficient disclosure for a Trial Judge to be in a position to determine the issue of the validity of the parties’ marriage and equalization. The Respondent’s innumerable disclosure requests that remain outstanding cannot be satisfied as they are either irrelevant and/or the statements requested are for accounts that were closed several years prior to separation or the statements that the Respondent is requesting date back more than 10 years and are, therefore, not retained by the bank.

19Paragraph 23 of the same affidavit states:

The Applicant is prepared to accept any adverse inference, if any, the Trial Judge may wish to make as a result of the Applicant’s inability to satisfy some of the Respondent’s disclosure requests.

20Nowhere in the applicant’s material filed in response to this motion is there an objection raised on the basis that such a remedy, i.e. an unequal division of matrimonial assets, had never been pled.

21The law as it relates to the amendment of pleadings in family court cases is governed by rule 11 of the Family Law Rules, Amending an Application, Answer or Reply.³ The amendment of an answer where the opposing party does not consent, as in this case, is governed by subrule 11(3) which reads:

Amending Application or Answer with Court’s Permission —

On motion, the court shall give permission to a party to amend an application, answer or reply, unless the amendment would disadvantage another party in a way for which costs or an adjournment could not compensate.

22This rule is mandatory unless the court determines that permitting the amendment would disadvantage another party. I find no disadvantage or prejudice to the applicant by permitting the amendment requested by the respondent in this case, even at this late date. Based on my review of the respondent’s 14B motion, Ms. Khan’s request that the court consider an unequal distribution of matrimonial assets, based on the evidence before the court, was not a surprise to Ms. Abramian, or to her client, nor was it suggested by Ms. Abramian that the request for such consideration was motivated by bad faith. I also find that there was ample evidence adduced at trial to permit the court to properly adjudicate this amended claim for relief. Consequently, there is no need for the court to proceed to the next step stipulated in the rule, which is to consider the granting of costs or an adjournment as a means of alleviating any disadvantage so found.

23I therefore allow the respondent’s oral motion and permit her to amend her pleadings to include, in the alternative, a claim to an unequal division of the matrimonial assets in the respondent’s favour based on the evidence before the court.

First Issue before the Court — Was the Certificate of Divorce relied on by the applicant, Mr. Janjua, to obtain his marriage licence in Ontario a fake as claimed by the respondent, Ms. Khan?

24In this action, Mr. Janjua is seeking an equalization of net family properties pursuant to Part I of the Family Law Act.⁴ If he successfully proves his claim, Ms. Khan will have to pay to Mr. Janjua approximately $148,000.00, as an equalization payment.⁵ In order to be successful in this claim, he must qualify as Ms. Khan’s spouse pursuant to the legislation. A “spouse” is defined in section 1 of the FLA, as:

“spouse” means either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.

25If, as claimed by Ms. Khan, Mr. Janjua knowingly obtained a fake certificate of divorce from Pakistan in order to marry her in Ontario, then his prior marriage was still in existence when the parties married on October 17, 2003. Such intentional non-compliance with Ontario law and, in particular, with the requirements of the Marriage Act, would constitute bad faith on his part.⁶ If Mr. Janjua did not enter into the marriage in “good faith” he would not fit within the definition of “spouse” as set out in subsection 1(1) clause (b) of the FLA and would not be entitled to an equalization of net family properties as specified in the legislation.

26Accordingly, the first question for this court’s determination is whether the certificate of divorce relied on by the applicant, Mr. Janjua, to obtain his marriage licence in Ontario was a fake, as claimed by Ms. Khan.

27I find the answer to that question to be no, it was not a fake. It was a valid certificate of divorce issued by the Chairman of the Arbitration Council having jurisdiction in Islamabad and attested to by the Ministry of Foreign Affairs for Pakistan. In reaching that finding I have relied primarily on the evidence adduced at this trial by the respondent herself, Ms. Khan.

28Upon the filing of her answer in this proceeding on July 27, 2009, Ms. Khan attached as Schedule “B” a copy of the certificate of divorce, which she claimed was the fake document used by Mr. Khan to obtain a legal opinion in Ontario that his divorce in Pakistan was valid, and thereby obtained their licence to marry in Ontario. Ms. Khan gave evidence at trial that she had found this document at the parties’ home and provided it to her counsel. A copy of the document attached at Schedule “B” to the answer of Ms. Khan was provided at trial and is reproduced below.

29This document purports to be certified by the Chairman of the Arbitration Council, Islamabad and by the Ministry of Foreign Affairs for Pakistan. Of particular significance is the “Issued Date” on that certificate, being “16.6.2002”.⁷

30In support of her case, Ms. Khan called Dr. Tariq Mahmood who is the brother of Mr. Janjua’s first wife, Nayyar Firdaus. Ms. Khan gave evidence that she had also sent a copy of this certificate of divorce to Dr. Tariq Mahmood for verification. Dr. Mahmood gave his evidence from Pakistan via video conference. In the course of Dr. Mahmood’s examination and cross-examination, he acknowledged that on May 19, 2009, he sent a letter of enquiry to the Arbitration Council in Islamabad and he had enclosed in that correspondence a copy of the divorce certificate he had been sent from Canada by Ms. Khan. In his correspondence to the Council he suggested that the certificate was fake and he requested clarification from the Council.

31Dr. Mahmood acknowledged before this court that in the month of August 2009 he received correspondence from the Chairman of the Arbitration Council in Islamabad dated August 19, 2009, which was in response to Dr. Mahmood’s letter dated May 19, 2009, and is reproduced below.

32This letter sets out a series of events that took place in 2002. The occurrence of the following events, as recited in this letter, are not in dispute in this action. To paraphrase:

1. March 4, 2002, a notice of divorce commenced by Mr. Janjua (the applicant in the current case before the court in Ontario) was received in the office of the Arbitration Council in Islamabad, Pakistan;

2. March 28, 2002, Mr. Janjua’s representative in Pakistan appeared before the Arbitration Council and stated that there is no chance of compromise and Mr. Janjua’s decision to divorce is final;

3. May 16, 2002, Dr. Tariq Mahmood, brother and representative of Mr. Janjua’s first wife, Nayyar Firdaus, appeared before the Arbitration Council and stated that there is no chance of compromise and the certificate for effectiveness of divorce may be issued;

4. June 6, 2002, Mr. Janjua himself, along with his representative appeared and stated that he has withdrawn his notice of divorce. However, Dr. Tariq Mahmood appeared on the same date and on behalf of Nayyar Firdaus, stated that maintenance allowance at Rs. 20,000 per month, may be granted for iddet period (three months);

5. The parties were directed to appear on June 13, 2002; and

6. June 13, 2002, the orders were passed about the withdrawal of the notice of divorce.

33This correspondence from the Chairman of the Arbitration Council goes on to explain that the notice of divorce that was registered in the office on March 4, 2002, stipulated a period of 90 days, which expired on June 2, 2002 and that the revocation deed was not received in that office until June 6, 2002, which was after the expiry of the 90 days.

34Of critical importance to the issue before this court is that in this correspondence dated August 19, 2009, directed to Dr. Tariq Mahmood, the Chairman of the Arbitration Council specifically states,

… [A] certificate of effectiveness of divorce dated 16.06.2002 [16 June 2002] is available in the office file.

35In other words, the divorce had already taken effect and the steps necessary to revoke it had not been taken in time. It had taken effect when the 90 days expired on June 2, 2002. The applicant’s withdrawal of his notice of divorce on June 6, 2002 and the orders passed about the withdrawal of the notice of divorce on June 13, 2002, could be of no effect because these actions were taken too late. A certificate of divorce was subsequently issued on June 16, 2002. This finding is completely consistent with what is specifically recited on the face of the certificate of divorce (reproduced at paragraph [28] herein), which reads,

During the proceedings, no compromise between the both the [sic] parties within the time limit of 90 days as required under the MFL/Ord/Rules 1961. Certificate of Divorce is hereby issued to the Parties.

No. 2002 – 38

Issued Date: 16.6.2002

36Although, neither party provided me with a copy of MFL/Ord/Rules 1961 for my consideration, I am supported in my conclusion that there was a valid certificate of divorce issued to the parties (Mr. Janjua and his first wife, Nayyar Firdous) in Pakistan on June 16, 2002, by Justice Ambreen Qureshi of the Chakwal Family Court in Pakistan, who made the same finding based on the same documentary evidence in her decision rendered on May 3, 2011.⁸ It is clear from a reading of Justice Qureshi’s decision that she placed the onus squarely on the defendant in that action (Mr. Janjua) to establish that he had been legally divorced from the plaintiff, Nayyar Firdous (Mr. Janjua’s first wife) and he discharged that onus in accordance with the laws of Pakistan. There was no evidence led to suggest that the decision of Justice Qureshi has been appealed.

37June 16, 2002 is the same date as that on the certificate of divorce, which the respondent attached to her answer and that was made an exhibit in these proceedings. I find that there is no coincidence here, and that the applicant was able to secure a legitimate copy of that divorce order to rely on, when he applied for his marriage licence in Ontario, sometime in mid 2003. Therefore, it follows that the applicant’s marriage to the respondent on October 17, 2003, was a valid marriage.

38When questioned as to why he issued the notice of divorce to his first wife, Mr. Janjua explained that he was very fond of Ms. Khan and that she was anxious for him to be divorced so that they could be both religiously and legally married in Ontario. This evidence is consistent with the statements made by Ms. Khan to the police following the separation of the parties, and will be reviewed in greater detail later in these reasons for judgment.

39When questioned as to why he subsequently sought to withdraw his notice of divorce, Mr. Janjua explained that when he attended Pakistan to finalize the terms of the divorce, his family put tremendous pressure on him to reconsider, as did his first wife’s family. He stated that he felt great pity for his young daughter and so he gave in to their pressure. Mr. Janjua advised that when he discovered that it was too late for his notice of divorce to be withdrawn, he returned to Canada and after a number of months, he married Ms. Khan. I accept this evidence as a reasonable explanation for his conduct.

40Given the legitimacy of the certificate of divorce, it follows that Mr. Janjua would have had no difficulties obtaining a certified copy of the divorce certificate when he applied for it from the Arbitration Council in May of 2009, prior to issuing his application in this action. I accept that Mr. Janjua had no access to his documents at the matrimonial home following his arrest on April 3, 2009, and, in any event, the position of the respondent was that the certificate of divorce he had produced in order for them to legally marry in 2003 was a forgery. This necessitated him taking steps to obtain a certified copy in May 2009.

41Ms. Khan suggested in her testimony that the fact that the certificate of divorce relied on by the applicant to obtain their marriage licence was in English, and not in Urdu, was evidence that it was a fake. However, Ms. Khan did not challenge the testimony of Mr. Haroon Janjua, a lawyer practising family law in Pakistan and unrelated to the applicant, that where a certificate of divorce is required for marriage in another country, as it was in this case, it may be issued by the Arbitration Council in English. This was also consistent with the evidence of Mr. Waseem Qureshi, a lawyer retained by Ms. Khan to investigate these matters in Pakistan on her behalf.

42It appears that after August 2009, Dr. Tariq Mahmood was able to influence the Arbitration Council to alter their position that a certificate of divorce dated June 16, 2002, was available in their office file. This is confirmed in correspondence from the Chairman of the Arbitration Council, Islamabad to Dr. Tariq Mahmood dated October 16, 2009, wherein it reads:

According to the record of this office the certificate mentioned in your application was not issued by this office because Mr. Khalid Mehmood (the applicant) personally appeared before this forum and got his statement regarding withdrawal of divorce notice recorded. Since he has withdrawn the notice of divorce, hence the issuance of divorce certificate does not arise.

43When Dr. Mahmood was cross-examined on the details of the correspondence from the Chairman of the Arbitration Council dated August 19, 2009 and addressed to Dr. Mahmood directly, he candidly admitted that he did not agree with the position taken by the Council and he acknowledged that he continued to challenge their position until he received their correspondence dated October 16, 2009.

44This change in position may have been the result of intimidation. Dr. Tariq Mahmood acknowledged assisting his sister, Nayyar Firdous, in her court action commenced against the Chairman of the Arbitration Council, Islamabad and the applicant in this case, Mr. Janjua, for collusion and connivance, and alleging that the Chairman issued a forged and fabricated divorce certificate. Ms. Khan produced a copy of an order in that action issued out of the Lahore High Court in Pakistan dated April 19, 2010 which purports to confirm the Chairman’s attendance before that court and his statement to the court that the,

…[I]mpugned certificate of divorce dated 04.03.2002 is never issued by the office of Arbitration Council Islamabad and apparently it seems to be a fake document might be prepared by Khalid Mehmood respondent [the applicant herein].⁹

In light of this statement by the Chairman, Nayyar Firdous consented to the dismissal of the action against the Chairman of the Arbitration Council. I note that the issue was never adjudicated by the Lahore High Court in Pakistan.

45It is important to point out that the certificate of divorce being challenged before this court is one dated June 16, 2002 and not March 4, 2002, as stated by the Chairman. I find as fact, based on the evidence adduced at the trial before me, that the Chairman of the Arbitration Council of Islamabad has never denied that a certificate of divorce was issued June 16, 2002 to the parties, Raja Khalid Mehmood Janjua [the applicant in this case) and Nayyar Firdous [the applicant’s first wife].

46Ms. Khan failed to call anyone as a witness from the Arbitration Council to explain the apparent inconsistency between their correspondence to Dr. Mahmood, one dated August 19, 2009, which stated that, “a certificate of effectiveness of divorce dated 16.06.2002 is available in the office file …” — which presumably had been available from the date of its effectiveness — and the other dated October 16, 2009, which stated that the certificate was not issued by their office because Mr. Janjua had withdrawn the notice of divorce. She also failed to provide copies of the correspondence forwarded by the Chairman of the Arbitration Council in August 2009, which stated that a certificate of effectiveness of divorce issued on June 16, 2002 was available in the office file, to either Mr. Waseem Ahmad Qureshi, the lawyer she hired in Pakistan to assist her, or to Sahebzada A. Khan, Consul General of Pakistan in Toronto, whose assistance she also sought. When cross-examined as to why she did not provide a copy of that correspondence to either gentleman, Ms. Khan stated she was more focused on the different certificates and did not think she had to provide them with the letter from the Arbitration Council setting out the background. This is not a reasonable explanation. By making that omission, I find that Ms. Khan had lost sight of getting to the truth of what had transpired and had become set on marshalling as much evidence as possible to support her version of events.

47The failure on the part of Ms. Khan to provide this important information to both Mr. Qureshi and to the Consul General in Toronto, makes it impossible for me to put any confidence in the results of their investigations, which were conducted after August 2009 and, therefore, after the Chairman of the Arbitration Council had changed his position on the issue. Accordingly, I can put no weight in the evidence Ms. Khan adduced from either of these two sources.

48It is of no relevance to this court that the Arbitration Council changed their position on the matter sometime after August 2009. What is central to the issue before the court is that from June 16, 2002 to at least August 19, 2009, a copy of a certificate of effectiveness of divorce issued on June 16, 2002 was available in their office file, as confirmed in the correspondence from the Chairman of the Arbitration Council dated August 19, 2009. The authenticity of that letter was confirmed by Dr. Tariq Mahmood, who was the recipient of that correspondence and called as a witness by Ms. Khan.

49In the face of an otherwise valid Ontario Marriage Certificate the onus of proving invalidity falls on the party claiming that the marriage is invalid. I find that the respondent, Ms. Khan, has failed to prove, on a balance of probabilities, that the certificate of divorce issued the “16.6.2002” relied on by the applicant, Mr. Janjua, to obtain his marriage licence in Ontario was a fake.¹⁰ I find that the applicant, Mr. Janjua, was legally divorced from his first wife, Nayyar Firdaus, and had the legal capacity to marry the respondent, Ms. Khan on October 17, 2003; their marriage in Ontario on that date was a valid marriage. As a consequence, Mr. Janjua falls within the definition of “spouse” as set out in subsection 1(1) of the FLA and has the legal capacity to make a claim to an equalization of the parties’ net family properties in these proceedings.

Second Issue before the Court — Is the respondent, Ms. Khan, entitled to an unequal division of net family property based on the evidence adduced at this trial?

50Subsection 5(1) of the FLA sets out the general rule for the sharing of property when a marriage ends, and it stipulates as follows:¹¹

Equalization of Net Family Properties —

When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

51Subsection 4(1) of the FLA defines “net family property” as follows:

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

Subsection (2) referred to in subsection 4(1) above of the FLA, describes “excluded property” as:

The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4. Proceeds or a right to proceeds of a policy of life insurance as defined under the Insurance Act, that are payable on the death of the life insured.

5. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

6. Unadjusted pensionable earnings under the Canada Pension Plan.

52It is unfortunate for Ms. Khan that the parties did not sell the condominium in Richmond Hill and move to Kingston, as they had once contemplated. If they had done so, Ms. Khan would have been entitled to deduct, from the calculation of her net family property, the value of that residence as at the date of marriage, which property she owned free and clear on that date. She would have been entitled to exclude from equalization with Mr. Janjua approximately $185,000.00.

53By virtue of subsection 4(1) of the FLA, the value of a residence owned by one of the spouses on the date of marriage cannot be deducted from the calculation of that spouse’s net family property if it is the matrimonial home on the date of separation. Put simply, a matrimonial home is the residence that was ordinarily occupied by the parties as their family residence at the time of separation.¹² In this case, Ms. Khan’s condominium became the matrimonial home when the parties married on October 17, 2003 — they had been cohabitating at this residence since April 3, 1998 — and it remained their matrimonial home to their date of separation on April 3, 2009.

54This result certainly appears unfair to Ms. Khan, but the legislation specifically limits any variation of the general rule set out in subsection 5(1) to situations where an equalization in accordance with the general rule would be unconscionable.

55Subsection 5(6) of the FLA sets out the very limited circumstances under which the court has discretion to depart from the general rule, and it stipulates as follows:

Variation of Share —

The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouses’ net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

56Ms. Khan relied on four principle arguments to support her claim that equalizing the net family properties of the parties in this case would be unconscionable:

1. The short duration of the marriage;

2. The unequal contribution of money and assets to the marriage;

3. Dissipation of assets/transfer of money to family abroad; and

4. The applicant’s premeditated plan to dupe the respondent out of her assets.

57I have considered these arguments in the same order as they are listed above.

1. Short Duration of the Marriage

58Ms. Khan asked the court to consider the short duration of the marriage as a justification to award an unequal division of the matrimonial property, such that she would receive a greater share and Mr. Janjua a lesser amount.

59The relevant section of the legislation, which speaks to the length of the relationship as a factor to be examined by the court, does not limit the courts’ consideration to the length of the marriage, as requested by Ms. Khan. Clause 5(6)(e) directs the court to consider relationships where the parties have cohabited for a period of less than five years as a factor in determining whether equalization would be unconscionable.¹³

60In Pope v. Pope, “cohabitation” for the purposes of clause 5(6)(e) was determined to include cohabitation prior to marriage.¹⁴ The court held that there was no reason to ascribe a meaning to the noun “cohabitation” as it appears in clause 5(6)(e), that differs from the definition of the verb “cohabit” in section 1. In the case before this court, the parties had commenced cohabitation on April 3, 1998 and separated on April 3, 2009, which amounts to a period of eleven years to the day. Their legal marriage, which had been celebrated on October 17, 2003, also exceeded the five-year period defined in the FLA by lasting five years, five months, and seventeen days.

61Given the provisions of clause 5(6)(e) of the FLA, I find that the length of the marriage between Ms. Khan and Mr. Janjua is not a factor that supports a variation of the general rule of the equalization of net family properties, as is specified at subsection 5(1) of the FLA.

2. Unequal Contribution of Money and Assets to the Marriage

62Ms. Khan asked the court to consider the parties’ unequal contribution of money and assets to the marriage as a justification to award an unequal division of the matrimonial property. Ms. Khan argued that she should receive a greater share of the matrimonial assets given that she had contributed more money and assets to the marriage, and Mr. Janjua, a much lesser amount.

63It is quite common for spouses to make unequal contributions of money and assets to their marriage. It is quite uncommon, however, for it to justify an unequal division of matrimonial property on the breakdown of their marriage. The legislation recognizes the complex nature of marriage, and that value can be brought to the relationship in other forms. Subsection 5(7) of the FLA sets out the purpose of section 5 of the FLA and it stipulates as follows:

Purpose — The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6).

64When we look at those equitable considerations, (supra at paragraph [55]), it cannot be said that Mr. Janjua failed to disclose to Ms. Khan his debts or other liabilities existing at the date of marriage. Ms. Khan was aware that Mr. Janjua had made a Consumer Proposal on October 3, 2001 — three and one-half years after the parties had commenced cohabiting — so had very few assets to bring into the marriage which occurred two years later. Ms. Khan was also well aware, prior to the marriage, that Mr. Janjua had a wife and family in Pakistan for whom he was financially responsible.

65I accept the evidence of Ms. Khan that Mr. Janjua did not routinely give her his paycheques and receive from her a small allowance as he claimed. His evidence in this regard was not substantiated by his banking statements or consistent with his acknowledgement that a significant amount of his income was going to support his family overseas.

66I reject the submissions of Mr. Janjua’s counsel that the substantial increase in Ms. Khan’s assets over the course of the marriage was a result of Mr. Janjua’s financial contribution to the household, as it was not supported by the evidence. The evidence showed that Mr. Janjua did not receive his certificate of full performance of his Consumer Proposal until January 12, 2004. Further, that not long thereafter, and only two years into the marriage, he became disabled as a result of a serious car accident in 2005, which made it impossible for him to continue his employment and as a result his annual income was drastically reduced. In addition, and despite these difficulties, he continued to support his family overseas, and had gone to the extent of providing his family members with a debit card they could use to access his accounts internationally.

67I find that the most significant factor affecting the increase in the value of Ms. Khan’s assets over the course of the marriage, other than capital appreciation over the normal course of time, was the occurrence of her disability in March 2004. Ms. Khan had prepaid disability insurance as a result of which her line of credit, credit cards, and her car loan were significantly reduced or paid off in full once the conclusion was made that she was disabled from her employment. As a result, and despite running an annual budget deficit over the course of the marriage, Ms. Khan admitted that on the date of separation her assets had increased in value and her debts had decreased.

68Be that as it may, the onus in this case is not on Mr. Janjua to prove he is entitled to an equalization of net family property. It is on Ms. Khan to prove he is not. To prove that he is not so entitled she must establish that for the court to award him an equal share of net family property would not just be “highly unfair,” as she stated in her 14B motion, but unconscionable. That is the test.

69The Ontario Court of Appeal has confirmed in Braaksma v. Braaksma,¹⁵ that by using the word “unconscionable” in subsection 5(6) of the FLA, rather than the word “inequitable” as in the Family Law Reform Act,¹⁶ the legislature intended a much stricter test than mere unfairness, harshness, or injustice. It has been held that “unconscionable” may be equated with the word “shocking”.¹⁷

70Although Ms. Khan provided a litany of complaints regarding Mr. Janjua’s behaviour in the latter part of the marriage, she did acknowledge that he paid for his own expenses and contributed, albeit not consistently throughout the marriage, toward groceries, his cell phone, telephone, cable, car insurance, and vacations. She also acknowledged that they purchased a number of items together including a computer and big screen television. Ms. Khan also permitted him the use of her credit cards; she stated that when the credit card bill came due, she would calculate what Mr. Janjua owed on the credit card invoice and he would reimburse her accordingly. It was her evidence that this was never a problem. Under cross-examination she stated that she was very well established and did not need his money. She also admitted, “I never asked him to pay for anything but his own expenses”.

71I agree with Ms. Khan’s submission that to equalize the net family property in this case is unfair given that she contributed a substantially greater share of money and assets, including the matrimonial home which was fully paid for on the date of marriage, but I cannot find that it is shocking and therefore unconscionable.

3. Dissipation of Assets – Transfer of Money to Family Abroad

72Ms. Khan asked the court to consider Mr. Janjua’s financial support of his family abroad throughout the marriage as a justification to award an unequal division of the matrimonial property, such that she would receive a greater share and Mr. Janjua a lesser amount.

73“A spouse’s intentional or reckless depletion of his or her net family property,” is a factor the court is directed to consider at clause 5(6)(d) of the FLA, when asked to award an unequal division of matrimonial property. Although, there is no question that Mr. Janjua’s ongoing support of his family overseas was intentional, I do not find that it was reckless or that it was unconscionable so as to justify an unequal division of the net family property.

74Ms. Khan complained that Mr. Janjua had sent in excess of $16,000.00 to his family overseas and she assembled evidence of money transfers and banking records to prove it. Mr. Janjua candidly acknowledged that he had probably sent more money to his family than that stated by Ms. Khan over the eleven years of their relationship; he admitted it was probably closer to twenty thousand. This amounts to approximately $1,800.00 per year. He stated that in the latter part of his marriage his father had been gravely ill and hospitalized in Pakistan. He gave evidence that he assisted financially with the hospital expenses to the extent he could and that he cashed out a Registered Retirement Savings Plan, which had been given to him by the respondent, in order to travel to Pakistan for his father’s funeral and to contribute toward his father’s funeral expenses.

75Ms. Khan was well aware prior to commencing cohabitation with Mr. Janjua in April of 1998 that he provided financial assistance to his family in Pakistan. She described how in the beginning he was having a very tough time. Ms. Khan produced the documentation which confirmed that Mr. Janjua had made a Consumer Proposal October 3, 2001, approximately three and one-half years after the parties had commenced cohabitation. He did not receive his certificate of full performance of the Consumer Proposal until January 12, 2004, several months following their marriage in 2003. She stated that she knew he had responsibilities back home and that she understood completely. She observed that he seemed religious, observant, and dedicated to his family.

76Ms. Khan was also aware that these financial obligations would continue following their marriage. This circumstance probably formed the basis of her stated expectation that he contribute no more than the cost of his own expenses toward household financial management. However, as time went on Ms. Khan became aware that Mr. Janjua’s generosity extended to his brothers and their families. Ms. Khan explained that this became a major source of conflict for the couple. She expressed her frustration that the applicant was not thinking of himself or their future as a couple. She urged him to stop spoon-feeding them and stated that it was time they stood on their own two feet. Ms. Khan described the evolution of her marriage as follows:

The first few years of my marriage were so good. I was getting what I never got in my life — respectful loving. But he became very greedy – I didn’t have problem with him supporting parents and daughter but not fair brothers and their children.

77It seems that what appeared to Ms. Khan to be virtues at the beginning of the relationship, ultimately became the source of great contention between the parties. It is clear from the testimony of Mr. Janjua that he had no intention of altering his financial commitment to his family overseas; a pattern of behaviour that I find was present and apparent to Ms. Khan from the commencement of her relationship with Mr. Janjua and long before the parties married.

78In the case of Balogh v. Balogh,¹⁸ the court was asked to make an unequal division of the matrimonial property in favour of the wife on the basis that over the course of the marriage the husband had sent $10,000.00 to his family overseas without the wife’s knowledge. Similar to the case before this court, there were no children of the marriage, and the relationship was not of short duration. The Court of Appeal for Ontario considered the matter and it was determined that an equal division was not unconscionable. Accordingly, even if Ms. Khan had not been aware that Mr. Janjua was supporting his family overseas, the overall circumstances of the relationship may not have justified a finding that an equal division of the matrimonial property was unconscionable.

4. The Applicant’s Premeditated Plan to Dupe the Respondent out of Her Assets

79Ms. Khan urged the court to find that the applicant premeditated a plan whereby he would marry the respondent and after sufficient time had elapsed leave her and take half of her assets. She stated that after five years of common law he realized that he could not make a claim so he pressured her into marriage and he married her in bad faith to enrich himself. Ms. Khan alleges that as part of this plan he prevented her from making a prenuptial agreement by vowing on the Koran, while they were on their pilgrimage to Mecca, that he would never make a claim against her money or seek an equalization. Although not specifically pled, it appears that the respondent was asking the court to take this plot into account as the basis for finding that an equalization of matrimonial property was unconscionable.

80There are a number of difficulties with this argument. Firstly, pursuant to documents produced by Ms. Khan, it appears that the parties did not make their pilgrimage to Mecca together until a number of years following their marriage in 2003. Therefore, although it is possible that Mr. Janjua made this verbal vow to Ms. Khan as she claims, (a fact he denied at trial), it is impossible for the court to find that it prevented her from negotiating a pre-marriage contract several years earlier. There is also no evidence before the court that suggests she ever consulted counsel for the purpose of preparing such an agreement.

81Secondly, Ms. Khan’s suggestion that Mr. Janjua pressured her into marriage so he could make a claim against her assets is also inconsistent with the video statement she gave to police, and with her evidence in cross-examination.

82Ms. Khan gave a video statement to the police on September 27, 2009 following the separation of the parties. The statement was given under oath and she was warned that it could be used as evidence in court. Ms. Khan confirmed to the police that she understood the criminal consequences of making a false statement to police. She also confirmed she understood the voluntary nature of the statement and acknowledged that no one was making her make the statement.

83In the video Ms. Khan states that she was after him (Mr. Janjua) to get a legal marriage here because they only had a religious marriage and the situation had been going on too long. Ms. Khan quoted Mr. Janjua as telling her to be patient.

84I find this prior inconsistent statement made by Ms. Khan to be relevant and reliable. If this was the only evidence for my consideration I would be inclined to find that, in fact, Ms. Khan was pressuring Mr. Janjua to legally marry. However, that is not the only evidence I have to consider. In the course of cross-examination Ms. Khan admitted that both of the parties wished to legally marry. This was consistent with the evidence of Mr. Janjua.

85Finally, Mr. Janjua did not leave Ms. Khan. He was forcibly removed from the matrimonial home by the police while she was at the police station making a statement. It was the evidence of Ms. Khan that it was not her intention that Mr. Janjua be arrested. She stated as well that she did not want the relationship to end. However, charges were laid by the police and the terms of Mr. Janjua’s release from custody included a no contact order.

Repayment of Funds Paid to Mr. Janjua by Ms. Khan

86In her answer, Ms. Khan sought from Mr. Janjua, the return of funds she claimed she had provided to him over the course of their eleven-year relationship. In support of her claim she produced a financial statement dated May 19, 2012, part 4 of which lists monies she states she paid to Mr. Janjua with a promise from him that he would return those monies. The list totals $49,525.00. In cross-examination she acknowledged that she assembled this list from memory, that she did not keep track or keep a ledger. Ms. Khan admitted that Mr. Janjua never signed anything acknowledging he received these monies, or that he would pay these amounts back. There was no evidence led as to the terms of repayment.

87When Ms. Khan was asked why, if she expected repayment, she never kept track, she simply answered that she had married Mr. Janjua in good faith.

88The onus is on Ms. Khan to prove on a balance of probabilities that these monies were advanced to Mr. Janjua as loans. I have no doubt that Ms. Khan was generous with Mr. Janjua over the course of their relationship. It was her evidence that in the beginning the money was not that big a deal for her; she wanted a companion, a life partner. She had helped him pay down his debt and had given him other monies as well. She admitted she gave him her credit cards knowing he could make cash advances. In her statement to police in 2009 Ms. Khan mentioned giving Mr. Janjua money but she never described these monies as loans to him.

89Mr. Janjua for his part acknowledged Ms. Khan’s generosity to him in the early years of their marriage, but denied that she made any loans to him.

90I am unable to find on the evidence before me that Ms. Khan made loans to Mr. Janjua over the course of their relationship, and, even if I found as such, the details of those loans and the terms of repayment are so vague as to be unenforceable.

Amount of Equalization

91Two final versions of a net family property statement were provided for the court’s assistance. Final Version 1 deducted from the value of Ms. Khan’s date of marriage property the total of all Ms. Khan’s date of marriage debt which effectively reduces her deduction for date of marriage property and, therefore, increases the equalization payment owed to Mr. Janjua. Final Version 2 shares Ms. Khan’s credit card debt as at the date of marriage between the parties, thereby increasing her deduction for date of marriage property and decreasing the equalization payment owed to Mr. Janjua. Otherwise, the values listed have been agreed to.

92Ms. Khan stated that as a result of Mr. Janjua’s proposal to creditors in October 2001 he was unable to have credit cards in his name. Further, it was the evidence of Ms. Khan that from the date of the parties’ religious marriage on April 3, 1998, Mr. Janjua routinely used her credit cards. Mr. Janjua did not dispute this evidence.

93As a result, Ms. Khan argues that one-half this credit card debt should be attributable to Mr. Janjua for purposes of calculating the net value of their respective property owned on the date of marriage.

94I find that Ms. Khan’s argument has merit. It is only fair and equitable that a calculation of Mr. Janjua’s net value of property owned on date of marriage take into account his share of the outstanding debt. After all, he did receive the privilege, convenience, and benefit of having access to those credit cards despite his difficult financial circumstances.

95Accordingly, I find Final Version 2 which is attached hereto as Schedule “A” to be the correct calculation of the parties’ net family property. Consequently, I find that the respondent, Ms. Khan owes to the applicant, Mr. Janjua, an equalization payment in the amount of $147,616.00.

Talaqnama

96In her answer Ms. Khan requested that this court grant to her a Talaqnama which is a Muslim divorce and a removal of the bars to remarriage. I can find no jurisdiction in this court to grant that relief.

Request for Restraining Order

97There was no evidence led at the hearing of this trial that would justify the granting of a restraining order.

Next Event

98Counsel for the applicant, Mr. Janjua, and the respondent, Ms. Khan, are hereby directed to obtain from the trial coordinator in Newmarket, a date to make oral submissions on the following outstanding issues:

(a) the manner in which the equalization payment is to be made, considering the Powers of the Court set out at section 9 of the FLA; and

(b) costs.

Footnotes

1. 1Sheikh v. Sheikh, 2005 ON SC 14151, [2005] 17 R.F.L. (6th) 303; [2005] O.J. No. 1712; 138 A.C.W.S. (3d) 1106 (Ont. S.C.J.).
2. 2Taylor v. Taylor, 2004 ON SC 42952, [2004] 10 R.F.L. (6th) 202; [2004] O.J. No. 4802; 135 A.C.W.S. (3d) 274 (Ont. S.C.J.).
3. 3Family Law Rules, O. Reg. 114/99.
4. 4Family Law Act, R.S.O. 1990, c. F-3. [FLA].
5. 5See Schedule “A” attached: Form 13B Net Family Property Statement, Version 2
6. 6Marriage Act, R.S.O. 1990, c. M.3, as am.
7. 7See paragraph [28].
8. 8Exhibit 10 at pages 2 and 3 – issue no. 5 and page 8 issue no. 5, at ¶ 11 found at tab 9 of the Applicant’s Brief of Documents.
9. 9Exhibit 35 found at tab 1 of the Respondent’s Brief of Documents.
10. 10See paragraph [28].
11. 11Family Law Act, R.S.O. 1990, c. F-3. [FLA].
12. 12See section 18 of the Family Law Act.
13. 13FLA — 5(6)(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
14. 14Pope v. Pope, 1999 ON CA 2278, [1999] 117 O.A.C. 275; 42 O.R. (3d) 514; 43 R.F.L. (4th) 209; O.J. No. 242; 170 D.L.R. (4th) 89 (Ont. C.A.).
15. 15Braaksma v. Braaksma, 1992 ON SC 8623, [1992] 41 R.F.L. (3d) 304; 94 D.L.R. (4th) 632; 1992 CarsellOnt 279; [1992] O.J. No. 1326 (Ont. U.F.C.), affirmed by Braaksma v. Braaksma, 1996 ON CA 904, [1996] 25 R.F.L. (4th) 307; 141 D.L.R. (4th) 190; 1996 CarswellOnt 4501; O.J. No. 4097 (Ont. C.A.).
16. 16Family Law Reform Act, R.S.O. 1980, c. 152 — s. 4(4).
17. 17Kelly v. Kelly, 1986 ON SC 6253, [1986] 50 R.F.L. (2d) 360; 37 A.C. W.S. (2d) 133, [1986] W.D.F.L. 1178; [1986] O.J. No. 296; 1986 CarswellOnt 338 (Ont. H.C.).
18. 18Balogh v. Balogh, 1996 ON CA 1386, [1996] 24 R.F.L. (4th) 181, 95 O.A.C. 170, 1996 CarswellOnt 4495 (Ont. C.A.).