SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FS-07-059899-00
DATE: 20140709
RE: HARBIR SINGH SIDHU and KANWALJIT SIDHU
BEFORE: JUSTICE VAN MELLE
COUNSEL:
P. VERBEEK, for the Applicant
Respondent in person
MOTION HEARD: June 6, 2014 and July 9, 2014
ENDORSEMENT
[1] On February 24, 2014 I heard a motion wherein Harbir moved for an Order that an arbitration award be enforced and that child and spousal support be varied. Kanwaljit (Kam) sought clarification in completion of the arbitration award, enforcement of a separation agreement dated March 24, 2011 and arrears of child and spousal support.
[2] On March 13, 2014 I held that the award of the arbitrator Mr. Kominar was upheld and that Kam was to pay Harbir $97,942.37 for his interest in the matrimonial home. This payment took into account all equalization issues as well.
[3] I further held that spousal and child support were to continue pursuant to an agreement of the parties dated March 24, 2011. Pursuant to that consent agreement Harbir was to pay $877 per month as child support for Raya and $621 per month as spousal support for Kam. This was based on Harbir’s income of $100,099 and Kam’s income of $34,000.
[4] I set out in my endorsement that Mr. Kominar had seized himself of the spousal support issue but that I accepted the evidence of the parties that he refused to speak to them or return their phone calls (with one exception that did not relate to spousal support) after he released the award.
[5] However, in Mr. Kominar’s arbitration award he did set out documentation and evidence that he felt would be helpful for him in determining the spousal support issue. I therefore adjourned the spousal support motion to allow Kam to adduce further evidence. Just before I was able to release my decision regarding support, Kam contacted my assistant to arrange a re-attendance before me for the purposes of adducing additional evidence.
[6] Kam provided to the Court documentation indicating that Habir had registered a company in his name. She provided a Corporation Profile Report. When I asked her what she hoped to achieve by providing this document she replied that she wanted to show the Court that Habir was misrepresenting his situation.
[7] Habir provided an affidavit in response. He acknowledged registering a corporation. He said that he had done so at the request of his daughter Saveera’s future in-laws. They are involved in a tutoring enterprise and were offering to involve him in that enterprise as well. He deposed that as a result of his ill-health he has not been able to work at that business and continues to live off money borrowed from family and friends.
[8] There is no question that Habir should have disclosed this corporate registration. It is for this reason that I am not awarding any costs in his favour for today’s appearance in Court which did not affect the outcome of the support motion in any way.
[9] At the hearing in February, Kam produced her disability file pursuant to which she has been receiving CPP payments. She also produced an up to date letter from her psychiatrist Dr. Mech which confirms that she continues to suffer from chronic major depression and continues on medication for the depression. Dr. Mech stated in the letter: “Ms. Sidhu is chronically ill, and given the duration of her problem and current physical status unlikely to be able to handle even least demanding employment.”
[10] The issue of spousal support is complicated by the fact that Mr. Sidhu lost his employment. As I set out in my previous endorsement on December 14, 2011, Harbir who was a Corrections Officer with the Government of Ontario, was accused of slapping an inmate and was suspended with pay. On July 24, 2012 he was fired. He grieved his firing but the firing was upheld. He has not been employed since that time.
[11] In support of his claim to reduce or indeed discontinue paying spousal support Habir too has a letter from his psychiatrist Dr. Mech. Harbir includes in his affidavit evidence a letter from Dr. Mech dated June 2, 2014 in which Dr. Mech states: “There is no change in his emotional status or employability and in this sense he should be seen as indefinitely disabled.” In respect of Harbir, Kam submits that his inability to work is as a result of his own behaviour. I agree with this submission. I agree that it was Harbir’s own actions that caused him to lose his employment. I note as well that Kam’s ongoing disability is supported by the CPP documentation that she filed on this motion.
[12] To this day Harbir maintains that he did not engage in the action for which he was dismissed. Despite the fact that he was a Corrections Officer, he has been completely unable to find other employment. I have trouble accepting this. On this motion he did not file any evidence regarding his attempts to find employment. I am satisfied that Harbir’s lack of employment is his own doing and that he still has a spousal support obligation.
[13] Given however that Harbir does not receive much by way of a monthly income, this is an appropriate situation for a lump sum. The lump sum can be credited against the payment that Kam owes to Harbir for his interest in the matrimonial home.
[14] I agree with Kam that it is appropriate to use the income that Harbir was able to earn when he was working fulltime. This income appears to have included some overtime income and was approximately $70,000.
[15] In calculating the spousal support lump sum payment I have imputed employment income to Harbir of $70,000 and income to Kam of $36,000. In all the circumstances, I am prepared to award Kam a lump sum based on the high end of the spousal support guidelines. I accept that there have been issues with retroactive child support. I have already said that I am not prepared to revisit that issue, however that is a consideration in determining where on the scale to award spousal support. The spousal support lump sum payment is therefore $87,712. Raya still resides with Kam. Raya, born February 19, 1992 is 22. For Raya a lump sum for ongoing support would be at least $10,250.
[16] The total of these two amounts exceeds the amount that I have ordered Kam to pay to Harbir for his interest in the matrimonial home after consideration of all equalization issues.
[17] The end result is that Kam will retain the matrimonial home. She does not have to pay Harbir any more money and he does not have to pay her any more money.
[18] I indicated that I will deal with the issue of costs when dealing with the spousal support issue. Given the divided success on this motion, each party is responsible for payment of his or her own costs.
[19] At the appearance before me today I learned that the parties, despite being separated since 2004, are not divorced. I am satisfied that a divorce should issue today and I so order.
[20] I indicated to the parties today that this litigation has been going on for a long time. It would be to the benefit of both parties to bring this matter to a close. I am hoping that this decision will allow the parties to get on with their lives free from ongoing conflict with each other.
Van Melle J.
DATE: July 9, 2014
COURT FILE NO.: FS-07-059899-00
DATE: 20140709
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HARBIR SINGH SIDHU and KANWALJIT SIDHU
BEFORE: JUSTICE VAN MELLE
COUNSEL: P. VERBEEK, for the Applicant
Respondent in person
ENDORSEMENT
Van Melle J.
DATE: July 9, 2014