Harbir Singh Sidhu v. Kanwaljit Sidhu, 2014 ONSC 1655

SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: FS-07-059899-00
DATE: 20140313

RE: HARBIR SINGH SIDHU and KANWALJIT SIDHU

BEFORE: JUSTICE VAN MELLE

COUNSEL:
P. VERBEEK, for the Applicant
Respondent in person

MOTION HEARD: February 24, 2014

E N D O R S E M E N T

1Harbir Sidhu moves for an order that an Arbitration Award be enforced; and that child and spousal support be varied.

2Kanwaljit (“Kam”) seeks clarification and completion of the Arbitration Award; enforcement of a Separation Agreement dated March 24, 2011; and arrears of child and spousal support.

3The parties were married March 11, 1986 and separated in 2004. There is disagreement as to the date of separation, but that disagreement has no impact on this motion. There are two children: Saveera, born July 26, 1987 and Raya, born February 19, 1992.

4The parties agreed on binding arbitration which was heard on January 6 and 7, 2012. A Final Arbitration Award (the “Award”) and Final Arbitration Order (the “Order”) were made by Robert Kominar on March 28, 2013.

5Harbir asks that the Award be enforced and that Kam pay him $106,942.37 as he alleges was ordered by Mr. Kominar.

6Kam takes the position that the arbitration was never finalized.

7I attach to this endorsement the Award as Schedule “A” and the Order as Schedule “B”.

8On consent of the parties Kam provided me with a recording of a conversation that she and Habir had with Mr. Kominar. Kam states that the recording shows that the arbitration was not complete. Habir says that it shows that the arbitration was in fact complete. I accept Habir’s interpretation of the recording. Mr. Kominar states in the recording that he has finished the arbitration on the equalization payment but that the issue of spousal support remains outstanding.

Is Mr. Kominar’s Award a Final Order?

9There is no question that the Award and Order of Mr. Kominar should have been explained and more clearly set out. In paragraph 7 of the Order, Mr. Kominar said:

The matrimonial home of the parties located at 98 Weathervane Lane, Brampton, Ontario shall be deemed to have had the value of $310,000.00 on the valuation date. Taking into account the outstanding mortgage owing on the property, notional real estate commission and legal fees, the equity in the property on the valuation date is set at $219,735.51. Each party is therefore entitled to a credit of $109,866.25 for equalization purposes.

10Kam attaches to her affidavit evidence in support of this motion, a Net Family Property statement prepared by her former lawyer. She takes the position that the value of the matrimonial home, as established by Mr. Kominar, should be inserted into the Net Family Property statement and she includes other assets and liabilities as at the date of separation.

11However in the Order, Mr. Kominar addresses the equalization issues and dismisses the following:

• Harbir’s claim for occupation rent;

• Kam’s claim that Harbir should add into his Net Family Property statement, an amount reflective of losses for day trading;

• Kam’s claim for an unequal division of Net Family Property; and

• Kam’s claim that Harbir should have included an amount for the value of his Ameritrade account.

12Mr. Kominar had the benefit of Net Family Property statements from each party, their respective testimony and submissions. There is no equalization issue left to be addressed by him.

13This position is confirmed by Mr. Kominar’s Award document. At paragraph 10, under sub-heading “Equalization” Mr. Kominar writes:

The parties have prepared Net Family Property statements which have been filed in this arbitration. They disagree on a number of issues related to the equalization calculations; the equity in the matrimonial home; unexplained transfers of funds by Harbir close to the date of separation; investments made by Harbir through his BMO Investorline account; an Ameritrade account; Kam’s settlement arising out of a human rights claim; and transactions related to a residential property at 38 Rocky Mountain Road, Brampton, Ontario.

14It was obviously the intention of the parties that Kam retain the matrimonial home and, in order to do so, she must pay Harbir $109,866.25 for his interest less $2,923.88, pursuant to paragraph 13 of the Order. Pursuant to paragraph 15 of the Order, she is also entitled to exclude $18,000 from equalization, which would involve a further credit to her of $9,000 against the amount she owes Harbir. The result is that she owes an equalization payment to Harbir of $97,942.37. It would have been enormously helpful if Mr. Kominar had made this calculation himself, although the fact that he did not do so does not nullify the Award.

Support Issues

15Unfortunately the matter does not end there. In the Award document, Mr. Kominar stated, at paragraph 1:

At the commencement of the arbitration hearing legal counsel for the parties advised Mr. Kominar that they have resolved all issues related to arrears of child support and that they have further agreed that ongoing child support will be paid by Harbir based on the Federal Child Support Guidelines.

16That takes care of the issue of arrears. The fact that the submissions of counsel refer to a different agreement regarding arrears does not change this finding.

17Harbir has been paying child support based on two consent orders. The first order is dated January 8, 2008, wherein he agreed to pay $406 per month for Raya. This was calculated based on his annual income of $87,722. The Child Support Guidelines amount would have been $782 per month, but as the older child Saveera resided with him, he received a set-off of $274 per month based on Kam’s annual income of $32,477.

18On March 24, 2011, another consent was arrived at. Saveera was finished school and no longer entitled to support. Habir commenced paying $877 per month for Raya and $621 per month as spousal support based on his income of $100,099 and Kam’s income of $34,000.

19On December 14, 2011, Habir, who was a Corrections Officer with the Government of Ontario, was accused of slapping an inmate and was suspended with pay – his base pay of $56,000 annually. On July 24, 2012, he was fired. He grieved his firing but it was upheld. He has not been employed since that time.

20As a result, he claims repayment of an “overpayment” in the amount of $15,499.20, which consists of $4,000.62 for 2012 and $11,498.58 for 2013.

21Habir claims a variation of spousal support to take into account the fact that he is not employed. Kam claims spousal support and arrears.

22Mr. Kominar said, at paragraph 35 of the Award document:

The dispute, as it relates to spousal support, involves fixing an ongoing quantum of support along with a determination as to how long spousal support should continue.

23Mr. Kominar felt however that evidence at the arbitration was lacking as it related to Kam’s ability to work in any meaningful capacity. He said, at paragraph 39 of the Award document, that he would have expected her CPP file to have been produced in the arbitration: “Had this file been available to me it would likely have provided some objective basis for determining how extensive Kam’s disability is as it relates to her employability, which is the only relevant question for me. This file would have likely revealed CPP’s evidence that supported their findings as related to entitlement to disability benefits.”

24He felt as well that he had not been given a complete picture of what Kam could do to contribute to her own support. He felt that a functional assessment relating to Kam’s ability to work in some capacity was not only “desirable” but “essential.” He held that as a condition of ongoing spousal support, Kam must provide Harbir with a report from a mutually agreed upon psycho-vocational expert within one year of the date of the Award, evaluating her future employment capacities, challenges and market opportunities. The parties were to share equally the cost of obtaining such a report. As far as I can tell from the evidence in support of this motion, such a report has not been obtained.

25Mr. Kominar seized himself of the spousal support issue, but I accept the evidence of the parties that he now refuses to speak to them or return their phone calls and attempts to contact him (except for the phone call that was the subject of the recording) after he released the Award.

26I find it surprising that given Mr. Kominar’s comments regarding spousal support, Kam did not produce the documentation and evidence for this court that Mr. Kominar felt was lacking at the arbitration hearing. While I do not disagree that Habir lost his employment as a result of his own actions, without proper evidence as to Kam’s ability to support herself, I am at a loss as to what should be awarded by way of spousal support. Kam seeks a lump sum in order, I believe, to reduce the amount of money that she has to pay to Habir. That may well be appropriate but I do not know the basis upon which she wishes me to calculate quantum.

27I am therefore going to adjourn the part of the motion dealing with spousal support for further and better evidence. It would be helpful for the parties to provide Spousal Support Guideline calculations as well.

28In the result, an order will issue upholding the Award of Mr. Kominar. Kam owes Habir $97,942.37 for his interest in the matrimonial home.

29Spousal and child support will continue pursuant to the agreement of the parties dated March 24, 2011. Kam does not have to make monthly payments; any amounts found to be owing will be set-off against the payment that Kam has to make to Habir.

30The spousal support motion will be adjourned for 30 days to allow Kam to adduce further evidence. If she fails to do so, I will make an order based on the evidence before me. I will also deal with the issue of costs when I deal with the spousal support issue. The parties are to contact my assistant Aimee Wilson to arrange a mutually agreeable date for the return of the motion dealing with spousal support.

Van Melle J.