ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-12-74448-00
DATE: 2014-07-03

B E T W E E N:

Siva Kumar Nadendla

Chaitali Desai, for the Applicant

Applicant

and -

Padma Rani Nadendla

Kavita Bhagat, for the Respondent

Respondent

HEARD: June 5, 9–12, 2014

REASONS FOR JUDGMENT

SPROAT, J.

INTRODUCTION

[1] The parties married on December 8, 1993, and separated on August 5, 2011, although they continued to live in the matrimonial home. They have two children Akhil age 13 and Anish 8. The parties identified a number of issues that needed to be decided at trial. These reasons address those issues.

OWNERSHIP OF APARTMENT IN INDIA

[2] At trial the Applicant’s evidence was that after his father’s death in 2007 in India he, and his brother who resides in New York, decided to purchase an apartment in India for their mother. The Applicant transferred Rupees 22 lakhs to his mother. He testified that his brother also contributed Rupees 7 lakhs and that his mother paid the builder.

[3] The Applicant testified that the Respondent was always fully aware of financial matters. He discussed making this gift to his mother with the Respondent in 2008 and she was in agreement. The intent upon completion of construction was that this would be his mother’s home.

[4] The Respondent testified that she was aware of the purchase of the apartment in India but understood that this was a real estate investment and that the parties would use the apartment when they went to India on family trips.

[5] In December 2009, the family did go to India and the Respondent stayed at the apartment for one week. The Respondent described it as having three bedrooms, being completely furnished and luxurious. She further testified that the Applicant’s mother was not living there at the time.

[6] The parties have agreed that at the valuation date the apartment had a value of $70,000. The Applicant’s position was that he had a 66.6% ownership interest in the apartment. The position of the Respondent was that he was the 100% owner.

[7] I find as a fact that the Applicant was the 100% beneficial owner of the apartment as of the valuation date having regard to the following:

(a) an August 2011, travel consent prepared by or on behalf of the Applicant listed his mother’s address as being at the traditional family home she occupied for many years and not at the apartment;

(b) a December 2011, settlement deed also listed his mother at the same traditional family home address;

(c) the Applicant testified that in December 2011, he transferred his “interest” in the apartment to his mother because persons in India had questioned his mother’s right to the apartment. This transfer was for natural love and affection. If this was an outright gift to his mother in 2008 then he had no “interest” to transfer in 2011;

(d) further, the Applicant’s March 20, 2012, affidavit states at paragraph 24 that he made a gift of his “share” in the property to his mother. This is inconsistent with his trial testimony that he had made a gift of cash to her in 2008, and that she had purchased the apartment herself;

(e) the fact that the Applicant’s brother also contributed to the purchase of the apartment was first mentioned at trial and not in any pre-trial affidavit. The brother resides in New York, however, there was no evidence from him or even documentation produced to corroborate his investment;

(f) the Applicant’s position at trial that the equalization should proceed on the basis of him owning 66.6%, and not 100%, of the apartment is also inconsistent with his testimony that with the agreement of the Respondent he made a cash gift in 2008; and

(g) given the factors just described, I accept the evidence of the Respondent that the parties’ funds were used to purchase this apartment, in the name of the Applicant, as a real estate investment.

JEWELLERY

[8] In her testimony the Respondent expressed a somewhat unusual interest in, and enthusiasm for, jewellery and in particular gold. She said that she loved it and it made her happy. She seemed sincere in expressing these sentiments.

[9] The Applicant acknowledges having possession of a few items of jewellery, pictures of which are in Exhibit 1A, at tab G. The Applicant indicated he is content to return these items of jewellery to the Respondent. There was no evidence as to the value of these pieces of jewellery. Further, some of them were gifted to the Respondent prior to or at the time of marriage. I cannot, therefore, attribute any value to them for equalization purposes. They shall, however, be returned to the Respondent.

[10] The parties agree that the Respondent had a substantial amount of valuable jewellery. A 2008 appraisal listed items of jewellery having a total value of $14,210. The Respondent at Exhibit 8A, tab 35 has provided a detailed listing of additional items she owned having a gold content totalling approximately 500 grams or approximately 17.6 ounces. The parties agreed that I could take the price of gold from the website goldprice.org. As of August 31, 2011 (the end of the month following the valuation date) the price of gold was $1,828 per ounce so that 17.6 ounces would be worth $32,173. Given that the appraisal was in 2008 and the jewellery probably has some value beyond the gold content, I accept the Respondent’s evidence and find that the jewellery had a total value of $50,000 at the valuation date.

[11] The difficult issue is what has become of this jewellery.

[12] The Applicant’s evidence is that the Respondent generally had possession of the jewellery and that she removed it from the matrimonial home. The Respondent’s evidence was that in the latter stages of the marriage the jewellery was kept under lock and key by the Applicant and she would ask for the jewellery when she wanted to wear it. Her evidence is that the Applicant had possession of the jewellery.

[13] While there can be no certainty, in my opinion the probabilities point to the Applicant as having last been in possession of the jewellery. I so find, having regard to the following:

(a) for the reasons discussed I rejected the Applicant’s evidence in relation to the apartment in India and I generally find the Respondent to be a more credible and reliable witness;

(b) the Respondent had a genuine connection to the jewellery and I think it unlikely that she would have disposed of all of it. Nor do I think she has simply hidden it away and then come to court to lie about it; and

(c) the Applicant advanced various small claims for contribution to property taxes and utilities. It does not make sense to me that if he really believed that the Respondent had converted jewellery acquired after marriage, which should have been equalized, that he would not have pursued that claim at trial.

[14] I accept the respondent’s estimate that 40% of her jewellery was excluded property and so 60% of the value would be subject to equalization. The Applicant must, therefore, pay to the Respondent:

(a) $20,000 (40% x $50,000) for the excluded jewellery; and

(b) $15,000 (30% x $50,000) for her share of the jewellery subject to equalization.

THE APPLICANT’S PENSION

[15] The parties agree the Family Law Value of the Applicant’s pension is $271,887. The Applicant submits that the pension should be divided at source. The Respondent submits that the pension should not be divided and the Applicant should simply pay her the cash equalization payment required.

[16] The Applicant’s evidence, which I accept, is that he has a line of credit debt of approximately $22,000 and credit card debt of approximately $5,000. This is despite the fact that he has drastically reduced the lifestyle that he enjoyed during marriage.

[17] Section 10.1(4) of the Family Law Act, R.S.O. 1990, c F.3 provides:

(4) In determining whether to order the immediate transfer of a lump sum out of a pension plan and in determining the amount to be transferred, the court may consider the following matters and such other matters as the court considers appropriate:

The nature of the assets available to each spouse at the time of the hearing.
The proportion of a spouse’s net family property that consists of the imputed value, for family law purposes, of his or her interest in the pension plan.
The liquidity of the lump sum in the hands of the spouse to whom it would be transferred.
Any contingent tax liabilities in respect of the lump sum that would be transferred.
The resources available to each spouse to meet his or her needs in retirement and the desirability of maintaining those resources.

[18] With respect to factors 1. and 2. the pension constitutes greater than 50% of the Applicant’s assets. If the pension is not divided at source, the Applicant will have to deplete virtually all his liquid assets. In the result, his assets will be tied up in the pension while all of the Respondent’s assets will be liquid. In contrast if the pension is divided at source both the parties will have a reasonable balance between liquid assets and savings for retirement.

[19] With respect to factor 3. the funds would be transferred to a Locked In Retirement Account (“LIRA”) in the name of the Respondent.

[20] With respect to factor 4. I was not advised of any contingent tax liabilities. In any event, any such liabilities would equally affect the Applicant.

[21] With respect to factor 5. the Respondent has only modest savings. In this case, and in virtually all cases, it is desirable that the Respondent have resources to provide for her in retirement.

[22] These factors strongly favour division of the pension at source and I so order. As such 50% of the Family Law Value of the pension shall be transferred to the Respondent plus applicable interest, if any. The Applicant shall forthwith complete all required forms to effect this transfer.

TWO VEHICLES

[23] In argument the parties agreed that the Toyota Corolla had a value of $600.

[24] The Applicant initially valued the Toyota Highlander at $8,000 but later reduced that to $5,000. I find the value is $5,000 given that the vehicle sold for only $2,200, two years following the valuation date.

RESP

[25] Given the academic accomplishments of the parties, I have no doubt the RESP money can and will be spent on Akhil and Anish. Both parties shall be required signing authorities on the RESP accounts such that any transfers require both their approval and that both have access to the RESP statements annually. In the unlikely event that any money remains in the RESPs that cannot be used to assist Akhil and Anish, the remaining amount shall be divided equally between the parties.

MORTGAGE, TAXES, UTILITIES, INSURANCE, SUPPORT, LOCKSMITH, CLEANING, OCCUPATION RENT

[26] In general terms, the position of the Applicant is that the Respondent should be required to contribute to matrimonial home related expenses. The position of the Respondent is that the August 23, 2012, consent order of Lemon J. reflects the fact that it was agreed that child support would be approximately $623 less than the table amount because the Applicant was paying for the “full maintenance cost of the house”. As such, the Respondent submits that if she has to contribute to the house related expenses she should be paid retroactive child support and that the Applicant should pay occupation rent for the time he lived alone in the matrimonial home. The Respondent also points out that the Applicant concedes he got the benefit of her $1,563 pay cheque deposited to the joint account after separation and he withdrew $1,800 from the TD joint bank account after separation.

[27] I am in general agreement with the Respondent’s written submission, Tabs C and D, that when you factor in both parties claims there is a negligible amount owing. I, therefore, find that there should be no adjusting payment one way or the other with respect to these matters.

HOUSEHOLD CONTENTS

[28] The parties agreed on the value in the course of the trial.

HIDDEN ASSETS

[29] The Respondent believes that the Applicant has hidden funds in India or elsewhere. There is, however, little or no evidence to substantiate this. My finding is that there are no additional assets that the Applicant need account for.

LOAN TO APPLICANT’S MOTHER

[30] The Applicant admits he loaned $11,483 to his mother on January 4, 2010 and this was repaid to him after the valuation date. This was, therefore, an asset of his on the valuation date.

CONCLUSION

[31] I leave it to the parties to prepare a draft order reflecting these reasons. Given the cash available, the equalization payment shall be made in a lump sum. If the parties believe that there are any outstanding issues, or if there are issues as to the proper form of the order, the parties may make an appointment to speak to me through the trial office or write to me directly.

[32] The Respondent shall make written cost submissions by July 17; the Applicant shall respond by July 30; and reply, if any, by August 8, 2014.

Sproat, J.

Released: July 03, 2014