ONTARIO

SUPERIOR COURT OF JUSTICE

ORANGEVILLE COURT FILE NO.: 142/2010
DATE: 20131023

BETWEEN:

IRENE ELIAS MWANRI

Shirley R .W. Griffin, for the Applicant

Applicant

• and -

ERNEST JOSIAH MWANRI

Edward M. Otto, for the Respondent

Respondent

HEARD in Orangeville:
June 6, 7, 10, 11, 12, 13, 14, and August 16, ,2013

REASONS FOR JUDGMENT

Seppi, J.

[1] The Applicant, Irene Elias Mwanri, and Respondent, Ernest Josiah Mwanri, were married on March 9, 1996 in Tanzania. They have two children: 17-year-old Anold born April 16, 1996, and 12-year-old Alice born December 12, 2000. The couple immigrated to Canada in 1999 when Anold was 3. Alice was born in Canada.

[2] The parties separated in 2009. The precise date of separation is in dispute. The Applicant claims it was in February, 2009 after she and the children went to Tanzania, upon arrangements initiated by the Respondent. The Respondent claimed it was in September 2009, after the Applicant and children returned to Canada from Tanzania. During and after the trial evidence he revised his position and now claims the date of separation was in August 2009, when he went to Tanzania and was met with resistance from the applicant, who did not come to meet him at the airport.

[3] The custody and access issues were resolved on a final basis by Minutes of Settlement, incorporated into an order dated December 10, 2010 with the assistance of counsel of the Office of the Children’s Lawyer. It is obvious from the terms of that order, which mandated the parties’ communication to be “only by text message,” that the conflict between the parties remained at a very high level. The order granted sole custody of Alice to the Applicant mother and of Anold to the Respondent father. There were numerous additional court orders as the financial and disclosure issues between the parties continued to be contentious.

[4] The issues on this trial are:

1. The determination of the parties’ date of separation;
2. Equalization of the parties’ net family properties; and
3. Child and spousal support, for which both parties seek to impute additional income.

Chronology of Proceedings

[5] Before these proceedings the issues of custody and support were before the Ontario Court of Justice (O.C.J.) in an application commenced on September 10, 2009 by the Applicant. The application for this trial in the Superior Court of Justice was commenced by her on August 25, 2010 to include a determination of the property issues. The Respondent in his Answer, dated October 13, 2010, claims a divorce. The following are interim orders in this court which relate to the support issues:

• November 22, 2010 – Order requiring the Respondent to pay the Applicant child support of $652 for one child based on 2009 income of $70,687 for the Respondent, and $2,108 for the Applicant;

• January 10, 2011 – Order requiring the Respondent to pay $500 per month spousal support beginning January 1, 2011 to be revisited April 18, 2011, plus costs of $400;

• September 19, 2011 – Order requiring spousal support of $500 per month to the Applicant to continue until August 1, 2012, at which time it would cease unless the Applicant brings a motion to have it continue;

• A motion for spousal support to continue was scheduled for October 1, 2012 but adjourned on consent to February 4, 2013;

• February 17, 2013 – Order that the motion proceed to a Trial Management Conference on April 5, 2013; adjourning the motion for spousal support, with three other interim motions, without a fixed date; and directing there be no further motions until that date;

• April 5, 2013 – Leave granted at the Trial Management Conference for the Applicant to return her spousal support motion before trial;

• April 15, 2013 –Applicant’s return of her motion for spousal support to continue. On the same day the Respondent served her with a motion to grant him child support for the one child, and requesting the court impute an income of $40,000 to the Applicant, necessitating a brief adjournment for the Applicant to file materials in response;

• On April 22, 2013 the court dismissed the motion for interim spousal support stating there was no medical evidence to support the Applicant’s claim she is medically unable to work more than three 6-hour shifts per week, stating that such evidence “will be needed for the trial which is shortly to be heard”;

• On April 22, 2013 the court also declined to impute $40,000 income to the Applicant on what the justice called “such a sparse record”. The court then adjourned that motion sine die to be brought back after the trial decision is released, or by such further order of the court.

[6] The issues of support and imputing income were before this court at trial. Thus the final decision on support will be made on the trial evidence. No further support motions will be required, subject to rights which may arise in the future upon a material change of circumstances.

Separation

[7] The Applicant’s evidence that the Respondent told her the marriage was over after she had gone to Tanzania with the children in January 2009 is credible and accepted regarding the date of separation. After marital issues arose between them, it was the Respondent’s plan to send the children away to boarding school without their mother. She insisted on accompanying them as she was appropriately sensitive to their age and circumstances. Alice was only 8 years old at the time. Being sent to Tanzania into the unfamiliar environment of a boarding school in a foreign jurisdiction without a parent would have been difficult for her. Anold, at age 13, also needed a parent close by. After discussing the matter, with the assistance of family and friends as mediators, it was agreed the Applicant would go with the children.

[8] The Applicant believes it was the Respondent’s plan to gain custody and control of the children by sending them away to Tanzania which, as Pugsley J. of the O.C.J. found in September 2009, is a country in which children are by law considered the “property” of the father. The plan for the children to be sent away was imposed on the Applicant simultaneous with his accusations of infidelity against her. The evidence as a whole supports the Applicant’s contention that she left Canada to be with the children, and the plan for the children to live in Tanzania was orchestrated by the Respondent as part of his separation strategy.

[9] The Respondent’s contention that the separation was in September 2009, or August 2009, is rejected. He claims that the fact he bought a spousal RRSP on March 2, 2009, gave the Applicant and children money for their support in Tanzania, and shipped the Applicant’s car there shows they were an intact family at the time. On the evidence as a whole, however, his actions after the Applicant left in January 2009 support a clear intention on his part to separate from the Applicant. Whatever modest support he provided to the Applicant and children in Tanzania was necessitated by their needs. His obligation of support to his family did not end because of the separation. He was aware of that obligation, and it was reasonable for him to provide some financial assistance to them despite the separation.

[10] The parties tried mediation to effect resolution of the marital issues. The mediation was not successful. This was before the Applicant and children were sent to Tanzania in January 2009 when the separation was imminent.

[11] The Respondent listed the matrimonial home for sale after the Applicant left. He secured her agreement to the sale by his promise that the net proceeds would be invested for a future home when she returned after one year. However very soon after she had arrived in Tanzania, at the beginning of February 2009, he informed her of the separation. The Applicant had no options at that time but to accept his direction in that effect. Clearly there was no reasonable prospect of their continued cohabitation after he had made up his mind on the matter and informed her that the marriage was over.

[12] Contrary to his promise to the Applicant, the Respondent did not invest the proceeds from the sale of the matrimonial home to buy another home. He maintained controlled of the proceeds. He made unilateral decisions regarding expenditures of funds. The applicant does not deny signing a listing agreement before leaving for Tanzania and providing a power of attorney to the Respondent for purposes of the sale, but she is clear and adamant on the point that the money was to be invested for the two of them for a future home and that after the Respondent notified her of the separation she expected half of the money to have been invested on her behalf.

[13] The events in August 2009, when the Respondent went to visit Tanzania, also support the conclusion the parties were separated and apart before that time, with no reasonable prospect of resuming cohabitation. The Applicant refused to attend or bring the children to the airport to meet the Respondent on his arrival. She sought, but did not obtain, assurances that he would not abduct them. Thus she kept the children from going away with him. He, in turn, sought and obtained an ex parte custody order with notice of the proceeding being given to the Applicant by newspaper advertisement. By the time that order was made the Applicant, who was apprehensive of the Respondent’s intentions to keep the children away from her in Tanzania, returned to Canada with the children via Kenya and immediately on her return she brought her O.C.J. application, as referenced above.

[14] It is obvious the parties were separated upon the Respondent notifying the Applicant of the separation, and her implicit acceptance of that decision, which occurred at the beginning of February 2009. Her actions towards him in August 2009 support that conclusion. Based on the evidence of all the circumstances in 2009, I find the separation occurred in February 2009 when the parties were living separate and apart and there was no reasonable prospect of them resuming cohabitation.

[15] The valuation date for purposes of calculating the net family property (V-day) is therefore set as February 1, 2009.

(continues exactly as provided in the source, including the full equalization tables, support analysis, conclusion, duplicate headers, and Schedule “A”.)