S.S. v. S.K.S., 2014 ONSC 2920

COURT FILE NO.: FS-11-71276-00

DATE: 20140718

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

S.S.

Applicant

– and –

S.K.S.

Respondent

G. Cook, for the Applicant

In Person

HEARD: April 14 and 15, 2014

REASONS FOR JUDGMENT

ANDRE J.

1The applicant mother seeks retroactive child support and s.7 expenses from April 1, 2010, based upon an imputed income of $50,000 per annum to the respondent father; a fifty percent share of the net proceeds of sale of properties in Canada and in India; financial disclosure; and a restraining order against the respondent.

2The respondent father opposes the application on the grounds that his income has decreased dramatically since separation and that he lacks the financial wherewithal to pay child support and s.7 expenses based on the imputed income suggested by the applicant.

3This trial therefore raises the following issues:

1. Should the respondent be ordered to pay child support retroactive to the date of separation?

2. Should an income of $50,000 annually be imputed to the respondent for the purpose of calculating child support and s.7 expenses payable to the applicant?

3. Should the investment property jointly owned by the applicant and respondent be listed for sale to enable the applicant to get her share of the net proceeds of sale of the property?

4. Is the applicant entitled to receive a share of the new proceeds of a property owned by the respondent in India?

5. Should the court issue an order restraining the respondent from molesting, annoying or harassing the applicant or preventing him from attending her residence or place of work except for the purposes of exercising access to the children of the marriage?

OVERVIEW:

4The parties had an arranged marriage on February 6, 1998. They started living together in the City of Brampton on October 31, 1998.

5The parties have two children, J.S.S., date of birth […], 2002 and K.S., date of birth […], 2005.

6In the early years of the marriage, the respondent worked at a gas station where he was paid $8 to $11 an hour. He later did a course in home inspection. He incorporated a company and worked five to seven days weekly, inspecting homes.

7The applicant testified that much of the income earned by the respondent during the course of the marriage was cash payments. She testified that he earned approximately five to seven thousand dollars a month, much of which he deposited in bank accounts which he subsequently used to purchase properties. The respondent disputes this and testified that his company grossed between $25,000 to $30,000 annually, while his own income ranged from $15,000 to $20,000 annually.

8The parties owned three houses during the course of their marriage. They purchased the first property in September 2003 for $196,000 and sold it in January 2008 for approximately $256,000. Upon the sale of the first property, they realized a profit of approximately $60,000.

9In August 2008, the respondent purchased a property located at C[…] Crescent in Brampton. He made a down payment of $130,000 from the couple’s savings. The mortgage on this property was $301,000, with the bi-weekly payments being $685.

10On March 28, 2009, the respondent bought a third property located at D[…] Court in Brampton for $218,000. He made a down payment on the property of $74,500 from his savings.

11The applicant started working with the CIBC sometime in 2004. She earned $10 an hour. She gave her wages to the respondent. After the birth of the couple’s second child, she started studying real estate. She has been a real estate law clerk since 2007 and currently earns approximately $50,000 annually.

12The parties enjoyed a comfortable lifestyle in the years preceding their separation in March 2010. The respondent purchased a brand new Dodge Caravan van. Their two children went to private schools at a cost of $10,000 per annum. They owned two vehicles.

13The parties’ marriage started to disintegrate after the applicant commenced work at a local law firm. The applicant testified that the respondent tried to stop her from working at the firm and repeatedly accused her of marital infidelity. He regularly attended at her workplace and verbally abused her.

14The parties separated on March 10, 2010 after the police charged the respondent with a number of sexual assault charges. He ultimately pled guilty in September 2012 to one or more of the charges and received a conditional sentence of one year followed by one year’s probation.

15The applicant resides in an apartment where she pays rent in the amount of $1100 monthly. The respondent continues to reside at D[…] Court where he pays mortgage payments of $354 bi-weekly. The respondent had a tenant in the home from March 2012 to December 2012. She paid him $650 a month for the first six months and $800 for the last three months.

16The respondent testified that he sold his lot in India for $8,000 to $10,000. He denied that he sold it for $20,000 as claimed by the applicant.

17The respondent denied that he sexually assaulted the applicant and maintained that on the contrary, she physically assaulted him on numerous occasions. He also testified that during the marriage the applicant used $48,000 to help her mother in India purchase some property. The applicant claimed that this money was given to her brother with the respondent’s consent.

PRIOR COURT ORDERS:

18On November 21, 2011, Dunn J. made an order on consent which provided that:

1. The respondent should pay interim child support for the two children of the marriage in the amount of $300 per month, commencing June 1, 2011.

2. For as long as child support was to be paid, the payor and recipient must provide updated income disclosure to the other party each year, within 30 days of the anniversary of the order, in accordance with Section 24.1 of the Child Support Guidelines.

ISSUE ONE: Should the respondent be ordered to pay child support retroactive to the date of separation?

LEGISLATION:

19Section 17(1) of the Divorce Act provides that:

17(1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

a) A support order or any provision thereof on application by either or both former spouses.

ANALYSIS:

20Child support is the right of a child of the marriage. Such support should provide the child or children with the same standard of living they enjoyed during the currency of their parent’s marriage. DBS v. SRG, [2006] SCC 37 at para.38.

21Parents are obliged to support their children to an extent that is commensurate with their income. The failure to increase child support payments to correspond with a payor’s increase in income amounts to a dereliction of the payor’s duty to support their children. DBS, at paras 48 and 54.

22A court may make an order for retroactive child support where there has been a court order for support which, however, does not adequately correspond with the payor’s income. DBS at para 62.

23A court should consider the following factors in deciding whether or not to exercise its discretion to award retroactive child support: DBS at para. 62.

1. The reasonableness of the explanation as to why the additional child support was not sought earlier;

2. Conduct of the payor parent;

3. Circumstances of the child or children;

4. Any hardship to be occasioned by a retroactive award.

REASONABLE EXCUSE WHY SUPPORT WAS NOT SOUGHT EARLIER:

24While unreasonable delay by a parent in petitioning a court for support is a factor to consider in the court’s exercise of its discretion to award retroactive child support, it does not relieve the payor of his or her responsibility to pay child support. DBS at para. 104.

DELAY IN SEEKING CHILD SUPPORT:

25In this case, the applicant brought a motion in June 2011 for a court order regarding child support. In November 2011, the court ordered the respondent to pay interim child support in the amount of $300 per month. The court also ordered the parties to provide updated financial disclosure every year within thirty days of the anniversary of the order.

26The respondent has not complied with this component of the November 2011 order. To date, he has not provided any disclosure regarding his company’s financial statements or his own financial statement for 2012 and 2013.

27The applicant has been diligent in taking steps to obtain the respondent’s financial information but the latter has been less than cooperative in providing this information. On the contrary, he has not complied with court orders to provide updated financial information to the applicant. Indeed, he never responded to the Request to Admit which the applicant’s counsel sent to him on February 14, 2014, neither did he submit an updated financial statement.

CONDUCT OF THE PAYOR PARENT:

28The respondent has not provided any updated information about his current income. His failure to do so is clearly inimical to his children’s right to receive an appropriate amount of child support. DBS at para. 106.

29The respondent should not be allowed to profit from his failure to provide adequate financial disclosure on which a proper assessment of his child support obligations can be made.

CIRCUMSTANCES OF THE CHILDREN:

30In determining whether a retroactive child support order is justified, a court must consider the present and past circumstances of the children of the marriage. During the marriage the children enjoyed a comfortable lifestyle on account of the combined income of both parents. They lived in a detached home and attended private schools. While they continue to attend private schools, they currently live in an apartment with their mother who has singlehandedly, since separation, borne the expenses of sending them to a private school.

31Courts have recognized that retroactive support awards can be made to compensate for “hardships endured as a result of increased maintenance not being paid when it was due and needed”. LL v. GB, [2008] ABQB 536, at para. 176.

HARDSHIP OCCASIONED BY A RETROACTIVE AWARD:

a. The respondent maintained that a retroactive child support and s.7 orders would create much hardship on him given his precarious financial situation. However, the respondent has not provided updated information to confirm his present financial situation. Furthermore, his lawyer is holding $23,000 in trust which represents his share of the net proceeds of the sale of the former matrimonial home. Additionally, the respondent has approximately $106,000 equity in the home where he presently resides.

b. Based on the above factors, this is indeed an appropriate case where the respondent should be required to pay child support and s.7 expenses retroactive to the date of separation. The respondent’s failure to provide up to date financial disclosure; the diligence with which the applicant has pursued the matter; the present circumstances of the children; and the absence of any significant hardship which could result from an order to pay retroactive child support and s.7 expenses, cumulatively justify such an order.

ISSUE TWO: Should an income of $50,000 annually be imputed to the respondent for the purpose of calculating child support payments and s.7 expenses payable to the applicant?

32A parent is intentionally under employed or unemployed if he or she chooses to earn less than he or she is capable of earning. Drygala v. Pauli (2002), 2002 41868 (ON CA), 29 R.F.L. (5th) 293 (Ont. C.A.), at paras 28 and 36.

33The onus is on the person requesting an imputation of income to establish an evidentiary basis for such a finding. Homsi v. Zaya (2009), 2009 ONCA 457, 65 R.F.L. 26 (Ont. C.A.) at paras. 28 to 30.

34In my view, the applicant has met the onus for the imputation of the respondent’s income for the following reasons :

1. First, there is a fundamental disconnect between the income the respondent declared to the Canada Revenue Agency in the years 2008 to 2011 and his own evidence regarding his investments during the period. The Canada Revenue Agency reported the following income for the respondent between 2008 and 2011:

a. 2008 $10,199 (total income)

b. 2009 $ 9,000 (total income)

c. 2010 $12,900 (total income)

d. 2011 $24,600 (total income)

Both the applicant and the respondent testified that the latter was paid by cash while he worked as a home inspector. The applicant testified that the respondent earned between $5,000 to $7,000 monthly. The respondent disputed this and claimed that he earned approximately $15,000 to $20,000 annually.

The respondent conceded however, that he paid a down payment of $135,000, of which approximately $70,000 was from savings, to purchases the house located at C[…] Crescent, while eight months later, he used another $74,500 of savings as a down payment on the house located at D[…] court. It is simply inconceivable that on an income of $10,199 in 2008 and $9,000 in 2009, he was able to save such a large sum of money to purchase these homes.

2. Second, the respondent’s financial statement for 2011 showed an income of $24,600 and annual expenses of $31,153. And yet, the respondent admitted in cross-examination that his debts did not increase in ensuing years. The only logical inference to be drawn from this evidence is that the respondent continues to earn cash income which he uses to pay off his expenses.

3. Third, Ralini Chauhon, the respondent’s tenant between March 2012 to December 2012, testified that she paid the respondent $6,300 rent. The respondent confirmed that he received this amount but claimed that he deposited it into his mortgage account.

More significantly, Ms. Chauhon testified that while cleaning the residence, she located a bag under a table which had a stack of $100 bills. She estimated that the bag contained between $5,000 to $6,000. She gave the bag to the respondent. The evidence clearly supports the applicant’s contention that the respondent has a tendency not to disclose his true income.

4. Fourth, the respondent virtually admitted while testifying in the trial, that he has chosen to earn less than he is capable of earning. He testified in cross-examination that he was getting lazy every day because there was no incentive to earn the money he used to earn.

35While it is not necessary for this court to find that the respondent is under-employed in an obvious attempt to avoid paying child support, I am prepared to find as a fact that this is indeed the case.

36However, I accept the respondent’s testimony that he has experienced some heart problems in recent years, which has caused him to reduce his work schedule.

37He testified that he had an angioplasty in February 2013. While he did not present any medical confirmation of this, he was not contradicted on this part of his testimony. Accordingly, I am only inclined to impute an income of $40,000 to the respondent, rather than the $50,000 sought by the applicant.

ISSUE THREE: Should the investment property located at D[…] Court, Brampton, jointly owned by the parties, be listed for sale to enable the applicant to get her share of the net proceeds of sale of the property?

38In my view, it should. The respondent has had four years since separation to provide the applicant with her share of the residence. He has benefitted from the rental of the property. The house has an appraised value of approximately $340,000 and an outstanding mortgage of approximately $118,000. The applicant is not opposed to the respondent purchasing her interest in the home while the latter would be willing, if given some time, to raise the necessary funding to purchase the applicant’s interest in the home.

ISSUE FOUR: Is the applicant entitled to a share of the net proceeds of the sale of the property owned by the respondent in India?

39The applicant maintained that the respondent received approximately $20,000 for the property and that she is entitled to fifty percent or $10,000 of the proceeds of sale.

40The respondent testified that his friend gave the applicant a cheque in the amount of $5,000 from the proceeds of sale but the applicant denied that she received this cheque. The respondent did not have a copy of the cheque confirming this payment. To that extent, I do not accept his testimony that he indirectly gave the applicant $5,000 from the proceeds of sale of his property in India.

41On the other hand, the financial statement filed by the respondent in 2011 indicates that “we deposited $5,000 in our joint bank account in TD Canada Trust.” It stated that the rest of the money was spent by the respondent on daily living expenses.

42I am prepared to accept the respondent’s testimony that he used some of the net proceeds of sale from the property on his family’s living expenses rather than on himself. To that extent, the applicant would have indirectly benefitted from this money.

43I am not inclined to grant the applicant’s request for $10,000 of the net proceeds of the sale of this property for an added reason:

44The respondent testified that the applicant has retained all the gold which they received when they got married. He claimed that the gold amounted to approximately 1,000 grams with a value of $43,293. The applicant disputes the amount and testified that her mother also gave the respondent gold when they were married.

45While I am not prepared, without further proof, to find that the gold in the possession of the applicant has a value of $43,300, I am prepared to conclude that she retained most of the gold the couple received from family and friends when they were married. The value of this gold which is due to the respondent likely offsets what the applicant would have been entitled to receive from the proceeds of sale of the respondent’s property in India.

ISSUE FIVE: Should the court issue a restraining order against the respondent to prevent him from molesting, annoying or harassing the applicant?

46The evidence before me justifies this order. The respondent was convicted of assaulting the applicant. The latter has testified that the respondent has continued to make derogatory comments about her and to attend in the vicinity of her workplace where he has continued to denigrate her.

47The respondent clearly harbours a great deal of hostility towards the applicant. During his testimony, he accused her of being manipulative, untruthful, and being only concerned about money. He repeatedly accused her of marital infidelity.

48Given the respondent’s antipathy towards the applicant, a restraining order is warranted in this case.

COSTS:

49The applicant seeks costs of $7,000 on a partial indemnity basis. The respondent made no submissions on costs except to say that he lacks the financial means to pay the costs sought by the applicant.

50In deciding what quantum of costs would be fair and reasonable in this case, I consider the following factors:

1. The applicant was substantially successful in this trial.

2. While this matter was not complex, it was very important to both parties.

3. The respondent’s failure to comply with court orders regarding disclosure of financial information unnecessarily prolonged the matter.

4. Given the amounts claimed by the applicant, the quantum of costs claimed is not unreasonable.

5. The respondent has achieved a modest degree of success in the trial.

51In all the circumstances, costs of $5,000, inclusive, are fair and reasonable in this matter.

CONCLUSION:

52Based on the above, I order that:

1. The respondent, S.K.S., shall pay child support for the children, J.S.S., date of birth […], 2002, and K.S., date of birth […], 2005, to the applicant, S.S., in the sum of $579 monthly, retroactive to April 1, 2010. Any arrears shall be paid from the net proceeds of the sale of the house located at C[…] Crescent, Brampton, being held in trust by the respondent’s former lawyer, Ms. Karen Dosanj.

2. Arrears of special or extraordinary children’s expenses incurred by the applicant will be reimbursed in the amount $15,731.40 to be paid from the trust funds held by Ms. Karen Dosanj, or from the sale of the house located at C[…] Crescent, Brampton.

3. The parties shall share ongoing section 7 and extraordinary expenses of the children in proportion to their incomes.

4. Both parties must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s.24.1 of the Child Support Guidelines.

5. Ms. Amandeep Walia, the applicant’s real estate lawyer, is directed to give the applicant her share of the proceeds of sale of the house located at C[…] Crescent, Brampton, forthwith.

6. The respondent may purchase the applicant’s interest in D[…] Court, Brampton, within ninety (90) days of the date of this decision, subject to obtaining financing to discharge the current mortgage, and upon paying half of the latest appraised value of the matrimonial home, plus any arrears of child support still owing to the applicant.

7. To facilitate the sale of D[…] Court, Brampton, the property must be appraised by a mutually agreed upon qualified appraiser who shall be paid by both parties. If the respondent does not obtain refinancing within 90 days, the property shall be listed and sold forthwith. The respondent shall agree to fully cooperate in listing the said property in accordance with the above and showing of the property to potential buyers. Absent such cooperation, the applicant may bring a motion on notice for a writ of possession of the property.

8. The net proceeds of sale shall be shared equally by the parties, subject to:

a. Any arrears of child support owed by the father to mother, in which such arrears shall be paid from the father’s portion, or

b. The costs payable by the respondent to the applicant.

9. The respondent is restrained from contacting or communicating directly or indirectly with the applicant except to arrange access to the children and should not come within 50 metres of her home or place of employment.

10. The respondent shall pay costs in the amount of $5,000 inclusive, to the applicant. This amount shall be paid out of the respondent’s portion of the net proceeds of sale of D[…] Court, Brampton.

11. This order shall be enforced by the Family Responsibility Office.

Andre J.