COURT FILE NO.: 36727/14
DATE: 2014 08 19
Amended: 2014 11 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MIKE MUKESH SHARMA – and – REENA SHARMA
BEFORE: EMERY J.
COUNSEL: Thomas Marshall, for the Applicant Fareen L. Jamal, for the Respondent
HEARD: August 7, 2014 in Milton, Ontario
ENDORSEMENT
(Amendment to paragraph [35]6 on page 16)
[1] On this motion, a momentous decision by a father caused a momentous change in the life of his family.
[2] The respondent mother, Rena Sharma, seeks a temporary order giving her exclusive possession of the matrimonial home and all of its household contents. She seeks this order because the applicant father, Mike Mukesh Sharma continues to reside in the home with her and the children of the marriage even though he unilaterally declared that the marriage was at an end on March 22, 2013.
[3] Ms. Sharma also seeks a temporary order for the parenting of the two children of the marriage, Sarina Sharma born on October 21, 2002 and Jaiman Sharma, born October 7, 2005. Ms. Sharma seeks an order for $3,000 a month in interim support without categorizing it between child support and spousal support at this time. She asks the court order that Mr. Sharma pay that support in addition to the household expenses of approximately $1,500 a month he currently pays until Mr. Sharma provides proper disclosure to her. This disclosure is required for the court to determine the appropriate amount of child and spousal support he should be paying.
[4] I am granting an order giving Mrs. Sharma exclusive possession of the matrimonial home on an interim basis for reasons that I will explain in this endorsement. Those reasons should make it clear that this result was not only supported by the evidence, but is also the logical solution to the current situation. I am also making a temporary order for shared parenting between the parents, and granting an order for interim support in the amount of $2,000 a month without characterization between spousal or child support.
[5] Mr. Sharma is also ordered to provide an updated financial statement for property and support claims, along with supporting documents to comply with the disclosure requirements of the Family Law Act and the Family Law Rules.
Background
[6] The parties married on July 8, 2001. Their daughter Sarina, is now 11 years old. She is going into grade 7 in September. Their son Jaiman, is now eight. He will be going into grade 4 in September.
[7] Mr. Sharma announced to Mrs. Sharma that he no longer had feelings for her on March 22, 2013, and suggested they separate. Despite efforts to reconcile through marriage counseling, both parties acknowledge that the relationship was at an end when marriage counseling failed in December 2013. Mr. Sharma’s lawyers confirmed the end of the relationship through correspondence in January 2014.
[8] Mr. Sharma travels for his work. When he is not traveling, Mr. Sharma has continued to reside in the matrimonial home with Mrs. Sharma and the children.
[9] In her affidavit, Ms. Sharma describes the acrimony between Mr. Sharma and herself while both remain in the matrimonial home. She deposes that the tension in the home increases when Mr. Sharma is present, causing stress for the entire family. The exchanges between the parties are ripe with conflict and hostility. These exchanges, and the tension in the home caused by them, is upsetting to the children.
[10] Mr. Sharma agrees in his affidavit that the tension in the home is great, but states that many of the comments about him are exaggerated. He submits that such comments show a pattern of Ms. Sharma’s attempts to challenge his character.
[11] On November 12, 2013, Mr. Sharma texted Mrs. Sharma to advise he would be moving to his parents. He stated in that message that “I’ll touch base hopefully we can minimize any impact to the children by having you stay in the house and me going to stay with my parents and somehow come to an agreement with the kids.” In paragraph 19 in his affidavit, Mr. Sharma deposed that he offered to buy out Mrs. Sharma’s share of the matrimonial home so the children can stay in their school neighborhood.
[12] Mr. Sharma’s parents live a short walk approximately 5 minutes away. He has a president also lives in the neighborhood.
[13] June 17, 2014, the parties attended a case conference before Justice Edwards. Justice Edwards at that time requested the office of the children’s lawyer to become involved on behalf of the children. At that time, Justice Edwards ordered that Mr. Sharma shall continue to pay all the household expenses relating to the matrimonial home. I understand that these household expenses may range from $1,500-$2,600 a month.
Issues
[14] I propose to deal first with my reasons for awarding Ms. Sharma exclusive possession of the matrimonial home, followed by temporary orders regarding parenting and access to the children, interim support and disclosure requirements from Mr. Sharma.
Exclusive possession
[15] This court is given the authority to order exclusive possession of the matrimonial home to a party on a temporary or interim basis by section 24 of the Family Law Act. Section 24 (3) sets out the factors the court must consider when making an order for exclusive possession. These factors include the best interests of the children affected, the financial position of both parties, the availability of other suitable and affordable accommodation, and any violence committed by a spouse against the other spouse or the children. Section 24 (4) further expands the courts mandate to determine the best interests of the children by requiring the court to consider the possible disruptive effects on the child of a move to other accommodations, and the children’s views and preferences, if they can reasonably be ascertained.
[16] Mrs. Sharma is seeking an order granting her exclusive possession the matrimonial home as a first option. She states that if she is not granted this order, she seeks an order in the alternative granting her interim custody of the children and permission of the court to move with the children to her brother’s home in Woodbridge, Ontario. This would mean that the children would be enrolled at school in Woodbridge, Ontario in September.
[17] I am satisfied on the evidence give to date that Ms. Sharma is, and always has been the primary caregiver for the children. I am equally satisfied on the evidence that Mr. Sharma has been a good provider for the family. However, when looking at the issue of exclusive possession and having regard to the factors set out in section 24 (3) of the Family Law Act, I am persuaded on the evidence to award Mrs. Sharma exclusive possession of the matrimonial home. It is clear to me that acrimony that exists between the parties while residing together in the matrimonial home is causing stress to every member of the family, and this stress is not in the best interests of the children.
[18] I am assisted in making this determination by decisions of this court in Poirier v. Cassandra 2001 CarswellON 599 (SCJ), and Liao v. Liao, 2003 167 (SCJ). In Poirier, Justice Sheffield granted the applicant mother exclusive possession of the matrimonial home where the parties had descended into a volatile personal relationship in the course of their separation. There was some evidence in that case that the respondent husband grabbed the applicant aggressively on one occasion and that the applicant and her children had sought to refuge at her own mother’s home on more than one occasion in the past. Justice Sheffield also considered the applicant to be in a stronger financial position to find alternate accommodation.
[19] In Liao, Justice Wood gave exclusive possession of the matrimonial home to the applicant mother upon finding a high stress environment in the matrimonial home caused by the acrimony between the applicant wife and respondent husband, despite the many cross allegations between the parties on the material before him. If the applicant were to leave with the children, they would have been forced to live in hastily acquired temporary accommodation. The court found that those circumstances would be disruptive to the eldest child’s ability to attend her final year of high school, and disruptive to the other child. The applicant mother wished to remain in that home long enough to locate and acquire alternate accommodation for herself and the two children in a reasonable time. Justice Wood found this request to be reasonable, and to be the best interest of the children. Accordingly, he awarded a temporary, time-limited order for possession of the home to ensure that the separation between the parties occurred with a minimum disruption to their children.
[20] In the case before me, there is no evidence of physical violence on the part of either party. However, it is clear from the affidavits filed by both parties that the Sharma household is currently an extremely unpleasant and unhappy place to live. It is a home under siege. I find that it is not in the best interests of either child to be exposed to the hostility, unpleasantness and negativity that occurs while the parties live under one roof. It is clear to me that the time has come for one of the parents to leave the matrimonial home and for the other to have exclusive possession.
[21] Since Mrs. Sharma has clearly been the primary caregiver of the children over their lives, I find that she should be the parent to remain in the matrimonial home. Her alternative plan to move herself and the children to her brother’s home in Woodbridge is not consistent with the best interests of the children because they already have an established network of friends and services in Oakville.
[22] In reaching this conclusion, I have applied the factors under section 24 (3) of the Family Law Act. In addition to being in the best interests of the children, giving Ms. Sharma exclusive possession of the matrimonial home would be least disruptive to their lives. Mr. Sharma has alternate accommodations available to him at his parent’s home or at his brother’s house. I find he has the greater of the financial resources to secure another place to live. I also rely upon the guiding principles set out in Poirier and Liao decisions in reaching this result.
[23] It is in my view that Mr. Sharma’s departure from the matrimonial home is logical and inevitable solution to the immediate situation. I have taken into account Mr. Sharma’s statement in his affidavit that he desires the children to remain in Oakville and be accessible to him. Ms. Sharma has deposed that she requires exclusive possession of the matrimonial home pending the decision of the office of the children’s lawyer to be involved, and pending further and proper financial disclosure from Mr. Sharma. This disclosure will provide her with the information necessary to determine her ability to purchase Mr. Sharma’s interest in the home, or to decide if the matrimonial home should be sold. If Mr. Sharma wishes his children to remain in Oakville and continue going to school in the current neighborhood, it is only logical that he should move to either his parent’s home or to his brother’s home or to arrange for alternative accommodation of his own so that he is close enough to the children to exercise continuous access to them. This would be much better than the order Ms. Sharma seeks in the alternative to allow her to move the children to Woodbridge. Once they start school there, they will likely stay there. That would not be something that Mr. Sharma would likely be happy to see.
[24] I am told by counsel that counsel appointed by the Office of the Children’s Lawyer should have a position formulated within 90 days. I also expect that Mr. Sharma will serve full and proper disclosure on counsel for Ms. Sharma within that same timeframe according to any order I make. I am therefore granting exclusive possession of the matrimonial home to Ms. Sharma to reside there with the children in order that they might continue in school in Oakville, effective immediately.
Parenting
[25] I have evidence before me that Mr. Sharma frequently travels to Toronto, Texas, Chicago and the Netherlands for business. Even when he is back in Oakville, his absences are frequent and he often returns late when the children are already in bed. I do not suppose that Mr. Sharma will be in a position to alter his business practices should he be given any greater responsibility for caring for the children. However, it would appear that both parties are agreeable to shared parenting, which implies that each of them acknowledged that the other is a good and fit parent.
[26] The parties shall share parenting on an interim basis with the primary residence of the children to Ms. Sharma provided she continues to reside in the matrimonial home in Oakville, or until further order of the court. Mr. Sharma will presumably have made living arrangements close to the children and shall have access to the children on alternate weekends from 4:00 p.m. after school on Friday to 6:00 p.m. on Sunday evening commencing Friday, August 22, 2014, and one evening a week after school until 8:00 p.m.
[27] Although Mr. and Mrs. Sharma shall consult with each other about major decisions relating to the children, Ms. Sharma shall have primary care responsibilities and final decision-making authority with respect to the children.
Interim Support
[28] The affidavit material filed on the motion shows that Ms. Sharma was employed at ING Bank and earned $70,000 a year plus bonus up until 2009. In 2009, the parties agreed as a family that Ms. Sharma would leave the workforce and provide a loving home as a homemaker and caregiver to the children on a full-time basis. Further, Ms. Sharma encroached on her RRSPs at a time when Mr. Sharma was taking his MPA degree that was intended to further the economic circumstances of the family. Therefore, Ms. Sharma deferred her own career in favour of the family in addition to expanding her own resources for Mr. Sharma’s advancement.
[29] Balanced against this history and Mr. Sharma’s income on the current evidence that he earns at least $107,000, Mr. Sharma continues to make all household payments relating to the matrimonial home. Although Justice Edwards made an endorsement at that case conference to this effect, for greater certainty I am making an order on this motion under section 24 (1) for Mr. Sharma to pay all household expenses for the maintenance of the matrimonial home. These payments shall include any mortgage payments, taxes and utilities, as well as all insurance premiums relating to the matrimonial home.
[30] Until there is further and better evidence as to his income from employment, I am not in a position to base an order for support requested by Ms. Sharma on any amount of actual or imputed income to Mr. Sharma in excess of $107,000. The table support amount under the Federal Child Support Guidelines for two children based on this income requires a payment in the amount of $1,507 a month. As I have ordered Mr. Sharma to pay all household expenses which I understand that range from $1,500-$2,600 a month, I am fixing interim support at $2,000 a month to be characterized at a later date on motion or at trial as either child support or spousal support, provided that he be given credit for making interim child support payments for at least $1,507 a month at that time. This interim support shall be in addition to the household expenses Mr. Sharma has been ordered to pay.
Disclosure
[31] Ms. Sharma seeks an order that Mr. Sharma make further better disclosure of documents and financial information. This request is essentially a motion to enforce the obligations of the respondent to make disclosure of every document that is relevant to any issue in the case that is in his control or available to him on request under Family Law Rule 19.
[32] Mr. Sharma admits in his affidavit that his first financial statement sworn on April 25, 2014 did not include nonregistered mutual funds and Canada Savings Bonds. He states that his lawyer has provided for the disclosure to Ms. Sharma’s lawyer and that before his next court appearance he will update his financial statement. He also states that Ms. Sharma is aware that he started to value his HOOP pension in June 2013.
[33] Mr. Sharma also states that Ms. Sharma has not provided complete disclosure of gold assets held in a safety deposit box in Canada Trust. Even though he has brought no cross-motion for Ms. Sharma to update her disclosure of assets to him, I would encourage her to do so even though I am making no order at this time.
[34] Mr. Sharma has not provided any material in response to Ms. Sharma’s request for an order seeking updated financial information from him other than as noted above. I have only Ms. Sharma’s affidavit evidence that she requires updated document disclosure from him. I therefore make in order for Mr. Sharma to provide an updated financial statement as to property and support by September 30, 2014. This new financial statement shall include, but not be limited to the following documents requested in the letter for Ms. Sharma’s lawyer to counsel for Mr. Sharma dated June 30, 2014 attached to the notice of motion. The particulars of the required disclosure is as follows:
A copy of every personal tax return, all schedules, attachments and information slips filed by the by Mr. Sharma with Canada Revenue Agency or in any country, for 2011, 2012 and 2013.
A copy of every notice of assessment or reassessment received from Canada Revenue Agency or the equivalent from other countries, for 2011, 2012 and 2013.
A copy of all income slips (T4s, T4A’s, T5, et cetera) received for any of the three most recent taxation years for which a tax return has not been filed.
A copy of his employment contracts for all employment in the last 24 months.
A copy of any application made by Mr. Sharma within the last three years for a loan, line of credit, credit card or mortgage, including a statement of income or net worth provided by or for Mr. Sharma.
A copy of his most recent pay stub or statement with year to date income for the current calendar year.
A copy of all benefit information circulars or benefit booklets outlining all employee benefits for health care, dental care, prescriptions and life insurance. If no circular or booklet is available, a detailed statement from the employer or the group plan insurer outlining these benefits.
A letter from each income source setting up Mr. Sharma’s total annual income and how his income is calculated for the last 24 months.
A copy of all his bank, investment, and credit card statements for the last 24 months, for all accounts in which Mr. Sharma has a direct and indirect interest.
A copy of all his bank, investment, and credit card statements for the last 24 months, for all accounts in which Mr. Sharma had a direct and indirect interest.
Documentation to verify Mr. Sharma’s assets and liabilities as at the date of marriage, as of March 22, 2013 and January 1, 2014.
[35] I therefore make the following orders:
Ms. Sharma shall have exclusive possession of the matrimonial home until further order of this court.
The parties shall have shared parenting of the two children of the marriage on interim basis.
Ms. Sharma shall have primary responsibility for the children and although the parties shall consult with one another with respect to decisions respecting the children, Ms. Sharma shall have final authority with respect to making those decisions.
Mr. Sharma shall have liberal and generous access to each of the children on alternate weekends commencing after school on Friday to 6:00 p.m. on Sunday evening commencing on Friday, August 22, 2014, as well as one night a week for dinner commencing after school and ending at 8:00 p.m. that evening.
Mr. Sharma shall pay all household expenses for the matrimonial home and shall also pay interim support on a basis to be characterized at a later date on motion or at trial in the amount of $2,000 a month, provided he receives credit for at least $1,507 of the amount towards interim child support at that time.
Mr. Sharma shall make further and better document disclosure pursuant to paragraph 34 above.
[36] The parties may make written submissions on costs consisting of no more than three typewritten, double-spaced pages, not including a costs outline or bill of costs for this motion. Counsel for Ms. Sharma shall serve her cost submissions on counsel for Mr. Sharma by August 29, 2014. Counsel for Mr. Sharma shall serve cost submissions on counsel for Ms. Sharma by September 5, 2014. Counsel for Ms. Sharma shall serve reply submissions consisting of no more than two pages, if any, by September 8, 2014 and shall file all submissions as a package with my judicial assistant, Sherry McHady at fax number 905-456-4834 as soon as possible after that date. If written submissions are not received by September 8, 2014, the parties shall be deemed to have settled the costs of this motion as between them.
Emery J
DATE: August 19, 2014
AMENDED: November 19, 2014
COURT FILE NO.: 36727/14
DATE: 2014 08 19
AMENDED: 2014 11 19
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MIKE MUKESH SHARMA – and REENA SHARMA
COUNSEL: Thomas Marshall, for the Applicant Fareen L. Jamal, for the Respondent
ENDORSEMENT
(Amendment to paragraph [35]6 on page 16)
EMERY J
DATE: August 19, 2014
AMENDED: November 19, 2014