ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-09-65238-00
DATE: 20140930
B E T W E E N:
GURPREET DHILLON
Mr. Dhillon, on his own behalf
Applicant
- and -
SANDEEP DHILLON
Susan L. Kania, for Mrs. Dhillon
Respondent
HEARD: May 29, June 2, 3, 4, 5, 6, 2014
REASONS FOR JUDGMENT
André J.
1This trial focused on custody and access, spousal and child support, and the equalization of net family property. Mr. Gurpreet Dhillon seeks shared custody of the two children of the marriage in accordance with a 2008 court order, and an equalization of net family property but opposes any order mandating him to pay spousal support. Mrs. Sandeep Dhillon, seeks sole custody of the children, spousal and child support and equalization of the parties’ net family property.
2The trial therefore raises the following issues:
Should the court uphold a previous court order for shared custody of the children of the marriage?
Should Mr. Dhillon be required to pay child support?
Is Mrs. Dhillon entitled to spousal support?
What is the net family property of each party, and what is the proper equalization payment?
Did Mr. Dhillon receive more of the net proceeds of the sale of the matrimonial home than Mrs. Dhillon?
OVERVIEW
3The parties were married on February 15, 1998. They separated on September 16, 2007, and were initially divorced on April 8, 2009. The court later set aside the divorce order and the parties were eventually divorced on August 7, 2013.
4Following their marriage in Amritsar, India, Mrs. Dhillon sponsored Mr. Dhillon to migrate to Canada.
5Mr. and Mrs. Dhillon have two children, Arjun Dhillon, born on December 9, 2001, and Ria Dhillon, born on January 3, 2003.
6According to Mrs. Dhillon, the couple started having problems following the birth of their son, Arjun. Mr. Dhillon’s parents came from India to live with them. Mrs. Dhillon experienced many medical problems following the birth of Arjun. She testified that Mr. Dhillon wanted her to return to work and her mother-in-law initially refused to remain in Canada to assist in the caring of their son. Mrs. Dhillon’s mother-in-law left Canada but returned some time later.
7The couple continued to experience problems following the birth of their daughter, Ria. Mrs. Dhillon testified that her mother-in-law became very angry upon learning that Mrs. Dhillon was about to give birth to a daughter. Mr. Dhillon became very abusive to her and teamed up with his mother to denigrate her. The situation degenerated to a point where Mr. Dhillon started to sleep in his mother’s room within the matrimonial home.
8The parties separated in 2005 and 2006 but reconciled. Following an altercation, they separated for good on September 16, 2007. They sold their matrimonial home in August 2008.
COURT PROCEEDINGS
9Mrs. Dhillon brought an application in the Ontario Court of Justice for custody of the children and spousal and child support.
10On March 3, 2008, Maresca J. of the Ontario Court of Justice, endorsed Final Minutes of Settlement executed by both parties, the terms of which included the following:
(a) Shared custody of the children with the children alternating between living at Mr. Dhillon and Mrs. Dhillon’s residences.
(b) Mrs. Dhillon to pay child support for the two children of the marriage in the amount of $622 monthly, and $282 monthly for s. 7 expenses.
(c) Mr. Dhillon to continue to pay the mortgages of the two family residences and the utilities until the properties were sold.
(d) Neither party was obliged to pay spousal support.
11Mr. Dhillon applied for a divorce in 2009, which was initially granted in April 2009. In April 2009, Mrs. Dhillon brought a motion for custody, child and spousal support and equalization of net family property.
12In July 2009, Mr. Dhillon brought a motion seeking sole custody of the children on the ground that Mrs. Dhillon was an abusive mother who had physically abused the children. Ricchetti J. heard viva voce evidence from both parties. He suspended Mrs. Dhillon’s access to the children for one week, pending the outcome of investigations being conducted by the police and the Children’s Aid Society (CAS), based on information provided to them by Mr. Dhillon.
13On July 23, 2009, Lemon J. reinstated the order of Maresca J. with the consent of Mr. and Mrs. Dhillon.
14On August 7, 2009, Sproat J. dismissed Mr. Dhillon’s motion to vary the custody and access order of Maresca J. He ordered Mrs. Dhillon, who was attending a parenting course, to “take any other courses recommended by India Rainbow and should specifically inquire about anger management courses”.
Issue One: Should Maresca J.’s order regarding shared custody be upheld?
15Despite the fact that the parties agreed to a shared custody arrangement in 2008, Mr. Dhillon has made repeated attempts to prove that Mrs. Dhillon is an unfit mother who has physically abused the couple’s children.
16Mr. Dhillon provided the following examples of abuse that he feels disqualify Mrs. Dhillon as a fit mother:
(a) In 2009, the children had noticeable bruising on their legs, face and neck which he duly reported to the police.
(b) Following a complaint to the CAS, the Society concluded that Mrs. Dhillon was the cause of the children’s injuries.
(c) Arjun is allergic to cats, dogs and rabbits, and yet Mrs. Dhillon has employed a babysitter who has a pet rabbit to care for the children.
(d) On one occasion, Mrs. Dhillon advised him that Arjun had an allergic reaction in a restaurant. Instead of immediately taking Arjun to a hospital, Mrs. Dhillon took him home before taking him to an Emergency Room.
(e) In August 2013, Mr. Dhillon filed a complaint with the CAS alleging that Mrs. Dhillon had taken the children to the park, despite the fact that they had high fevers at the time.
(f) Arjun, who suffers from asthma, uses prescribed “puffers” to control his condition. In the event of an allergic reaction he relies on a medication called “Epi-Pen” that must be injected into his thigh as a temporary measure before he is taken to a hospital. Despite the importance of this medication, Mrs. Dhillon does not regularly have the “Epi-Pen” with her in case of an emergency.
(g) Mr. Dhillon testified that Mrs. Dhillon took Arjun to a water park and allowed him to go down a water slide where he nearly drowned in the eight feet of water at the bottom of the slide.
(h) Mr. Dhillon testified that Mrs. Dhillon took her children to the home of a neighbour, Mr. Supreet Singh Mand, who owned a dog and that the dog chased Ria on one occasion.
17I do not accept these as valid concerns for the following reasons.
18With respect to the first point, it appears that Mr. Dhillon’s allegations that Mrs. Dhillon physically abused the children have not been substantiated. The police authorities did not lay any charges against Mrs. Dhillon on account of Mr. Dhillon’s allegation. Second, Sproat J. viewed photographs presented by Mr. Dhillon which allegedly showed the injuries on the children but concluded that he was not convinced that the photographs depicted any injuries on the children.
19Mr. Dhillon presented a letter dated May 26, 2011, from a child protection worker which indicated that on August 13, 2009, “The society verified allegations of inappropriate physical force/maltreatment.” However, I place little weight on this letter for the follow reasons:
(a) The author was not called as a witness to explain the basis for his conclusions.
(b) A number of witnesses testified including a police officer who knew the couple, that Mrs. Dhillon was a very caring and loving mother who did not physically abuse her children.
(c) Ms. Carrie Wilson, a CAS child protection worker, testified that in August 2013, she investigated a complaint made by Mr. Dhillon about his ex-wife’s medical care of the children. She spoke to three of the children’s doctors, none of whom expressed any concerns about Mrs. Dhillon’s care of the children. One of these doctors was the children’s family doctor who saw them on regular occasions. Furthermore, she interviewed Arjun and Ria, both of whom denied that they were sick with the fever or were coughing when their mother took them to the movies and to the park. On the contrary, both advised Ms. Wilson they wanted to go to the events. Ms. Wilson also spoke to the principal of the children’s school who expressed no concerns about Mrs. Dhillon’s parenting. Finally, Ms. Wilson testified that the children had no problems with the current shared custody arrangement but if given a choice, would rather live with their mother.
20Mrs. Dhillon confirmed that her babysitter has a pet rabbit. The children’s babysitter testified, however, that the children never touched the rabbit and that Arjun never suffered any allergic reaction while in her care. Mrs. Dhillon also testified that Arjun has petted a rabbit at his school with no allergic reaction and presented a photograph showing him doing so.
21Regarding the alleged incident in the restaurant, I accept Mrs. Dhillon’s testimony that she did not administer the Epi-Pen to her son because he did not manifest any difficulty breathing. She testified that one of Arjun’s doctors had explained to her that the “Epi-Pen” was only to be administered in case of an emergency; to stabilize her son if he experienced a severe allergic reaction that made it difficult for him to breathe.
22I do not regard this incident as indicative of Mrs. Dhillon’s poor parenting skills for added reasons. A number of persons, including Catherine Hall, the Director of a child care services organization who cared for the children for 2-3 years, and Mrs. Dhillon’s mother, testified that Mrs. Dhillon had instructed them about using the Epi-Pen if Arjun suffered an allergic reaction that required medical attention. Ms. Hall also testified that Mrs. Dhillon always gave her an updated Epi-Pen when Arjun was in her care. It is clear therefore, that Mrs. Dhillon ensured that those who had care of the children were advised of Arjun’s condition and had the Epi-Pen medication at hand, in case of an emergency.
23Regarding the alleged incident of Ria being chased by a neighbour’s dog, Mr. Mand testified that the incident described by Mr. Dhillon never happened. He noted that his dog was in his basement whenever Arjun and Ria visited his home. I therefore do not accept Mr. Dhillon’s contention that Mrs. Dhillon recklessly exposed Arjun to risks associated with his allergies.
24Mrs. Dhillon admitted that she took her son to the Wild Water Kingdom but denied that he nearly drowned. She presented certificates to show that both children had completed swimming courses before the incident. Second, I accept her testimony that a lifeguard stood at the bottom of the slide when her son entered the water. Third, Mrs. Dhillon presented a photograph to show that the area where Arjun entered the water was 1.3 metres deep, rather than eight feet. For those reasons, I do not accept that Mrs. Dhillon exposed her son to the danger described by Mr. Dhillon.
25That said, it appears that both parties have trespassed on their duty to act in their children’s best interests. Mr. Dhillon’s repeated questioning of the children and his accusations about Mrs. Dhillon’s poor parenting have unsettled the children and made them wary of him. Two witnesses called by Mr. Dhillon testified about two disturbing incidents which raise questions about Mrs. Dhillon’s parenting. Mrs. Seema Madi, a former neighbour of the Dhillons, said that she once saw a child sitting on the window ledge of the second floor of the Dhillon’s’ residence. When she spoke to Mrs. Dhillon about what she had seen, Mrs. Dhillon argued with her and denied that the child was ever on the ledge. Mrs. Dhillon testified that her child had not been on the ledge.
26Ms. Rupinder Jit Mand, a former landlord of Mrs. Dhillon whose daughter tutored Arjun and Ria, testified that on one occasion the two children complained to her that Mrs. Dhillon advised them that Mr. Dhillon is not their father because he has a darker complexion. Ms. Mand deposed in an affidavit that the children advised her that their mother told them that they should have nothing to do with black people because they are criminals.
27These statements attributed to Mrs. Dhillon are clearly hearsay. Second, Mrs. Dhillon denied making any disparaging remarks about her husband’s complexion but was never cross-examined on the other remarks attributed to her. I therefore place little weight on Mrs. Mand’s testimony.
28Additionally, Mr. Dhillon presented a note written by Mrs. Dhillon, in which she expressed a desire to see Mr. Dhillon and his family destroyed or killed. Mrs. Dhillon testified that she wrote the note in a fit of anger caused by Mr. Dhillon’s attempts to stop her from having access to the children. Mrs. Dhillon testified that she has voluntarily sought counselling to deal with any anger management and parenting issues she may have had in the past.
29Should Maresca J.’s March 2008 order be varied by granting Mrs. Dhillon sole custody of the children? In my view it should for the following reasons.
30First, there is unimpeachable evidence that the relationship between the parties has deteriorated to an extent where it has had a deleterious effect on the children. Mrs. Dhillon testified that when the children are with Mr. Dhillon they are afraid to speak to her.
31Second, Mrs. Dhillon testified that Mr. Dhillon not only interrogates the children when they are with him, but that he also coaches them to say whatever he wants. A report by a Clinical Investigator employed by the Office of the Children’s Lawyer also concluded that Mr. Dhillon was in the habit of interrogating the children and influencing them against their mother.
32Third, it appears that Mr. Dhillon’s actions are having an adverse effect on the children’s emotional wellbeing. They are afraid to reveal things that he says to them. I accept Ms. Wilson’s testimony that they do not oppose the present custody arrangements but would prefer to live with Mrs. Dhillon.
33Fourth, Mrs. Dhillon gave uncontradicted testimony that Mr. Dhillon is acting contrary to the March 2008 Minutes of Settlement to which he consented. Paragraph 49 of Maresca J’s order indicates that Mrs. Dhillon, “Shall be permitted to attend at the children’s school or babysitter to pick up the children or see them at lunch time.” However, Mrs. Dhillon testified that Mr. Dhillon instructed the school principal not to allow Mrs. Dhillon to visit the school for that purpose. Indeed, Mr. Dhillon corroborated Mrs. Dhillon’s testimony at this point.
34The best interests of the children remains the sole consideration in resolving the issue of custody. Lawson v. Lawson (2006), 2006 26573 (ON CA), 81 O.R. (3d) 321 (C.A.), at para. 14 [2006] O.J. No. 3179; Ziaie v. Ziaie, 2013 ONCA 156, at para. 1, 228 A.C.W.S.(3d) 155.
35In determining custody of Arjun and Ria; I must consider their best interests in accordance with section 24 of the Children’s Law Reform Act which provides as follows:
24.(1) The merits of an application under this Part in respect of custody or of access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3), and (4). 2006, c. 1, s.3(1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be
ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of
the child to provide the child with guidance and education, the
necessaries of life and any special needs of the child;
(e) The plan proposed by each person applying for custody or access to the child for the child’s care and upbringing;
(f) The permanence and stability of the family unit with which is proposed that the child will live;
(g) The ability of each person applying for custody of or access to the child to act as a parent; and
(h) The relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s.3(1); 2009, c. 11, s.10.
Past Conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4) or;
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c.1, s.3 (1).
Violence and Abuse
(4) In assessing a person’s ability to act as a present, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) any child. 2006, c. 1, s.3 (1)
36Applying these provisions to the facts of the case, I make the following conclusions:
i) The love, affections and emotional ties between Arjun and Ria and both parents and their families.
Undoubtedly, the children love their parents. While Mr. Dhillon was the main breadwinner in the family, I find that Mrs. Dhillon was the main caregiver for the children. I also find that Mr. Dhillon’s combative attitude towards Mrs. Dhillon has engendered a degree of anxiety in Arjun and Ria.
It appears that both the parents of Mr. and Mrs. Dhillon have had a great degree of involvement in the lives of the children. However, Mr. Dhillon’s mother had been a source of friction between Mr. and Mrs. Dhillon and has supported her son in his efforts to prove that Mrs. Dhillon is a bad parent.
ii) The children’s view and preferences, if they can reasonably ascertained.
Ms. Carrie Wilson testified that while the children would be content with the existing shared custody arrangement, they would prefer to live with Mrs. Dhillon if given the choice. I accept Ms. Wilson’s testimony given that she has no interest in the outcome of this trial, and interviewed Arjun and Ria without any input from either parent.
iii) The ability of each parent to provide Arjun and Ria, with guidance and education, the necessaries of life and any personal needs of the children.
It appears that both parents are attuned to the children’s personal and educational needs. Mr. Dhillon however, appears intent to prove to Arjun and Ria that Mrs. Dhillon’s assistance with their school work is deficient. I accept Mrs. Dhillon’s testimony in this regard given the written remarks he made on a few of their written assignments.
Unlike Mr. Dhillon, Mrs. Dhillon had taken a number of proactive steps to ensure the children’s emotional and educational wellbeing. She has enrolled them in a number of educational activities. She has apprised their babysitters of Arjun’s medical issues and has explained to them the use of the EPI-Pen. She has the assistance of her parents in nurturing Arjun and Ria. Where Mrs. Dhillon appears to have had anger management problems in the past, she sought and completed anger management counselling on her own volition.
37For the above reasons, I conclude that it is in Arjun and Ria’s best interests that Mrs. Dhillon be granted sole custody of them.
Issue Two: Should Mr. Dhillon be required to pay child support for the two children?
38The simple answer to this question is yes. To his credit, Mr. Dhillon does not dispute that he should pay child support to Mrs. Dhillon for the two children.
39Mr. Dhillon is employed as a finance officer at a company called EMC Corporation of Canada.
40Mr. Dhillon’s income over the past seven years is as follows:
2007 $107,178
2008 $104,422
2009 $103,397
2010 $115,527
2011 $115,424
2012 $112,695
2013 $114,362
41The assessment of child support to be paid by Mr. Dhillon will be based on his 2013 income.
42The Child Support Guidelines (CSG) indicate that based on the Mr. Dhillon’s annual income and the fact that Arjun and Ria will be living with their mother, Mr. Dhillon would be required to pay monthly child support of $1,591.34 to Mrs. Dhillon, commencing August 1, 2014.
Section 7 Expenses
43Mrs. Dhillon submits that Mr. Dhillon should contribute to the following section 7 expenses which she has fully paid.
(a) Daycare: from Jan. to Dec. 2011 $ 852.00
(b) Art Program: 2012 $ 215.25
(c) Swimming: March 26, 2011 to June 25, 2011 $ 190.50
(d) Soccer: Sept. 25, 2011 to Dec. 18, 2011 $ 282.00
(e) Swimming: Sept. 28, 2012 to Dec. 13, 2012 $ 165.10
(f) Aerobics: Sept. 2012 to Dec. 2012 $ 46.15
(g) Swimming: March to June, 2013 $ 165.10
(h) Bootcamp: (Arjun) $ 46.15
(i) Gym: (Arjun) $ 152.00
TOTAL $2,114.25
44As already indicated, the parties signed final minutes of settlement which were incorporated in a court order dated March 3, 2008.
45Paragraph 12 of this order indicates the following:
Mrs. Dhillon shall pay Mr. Dhillon the sum of $280 per month for extraordinary expenses for the children, Arjun Dhillon born December 9, 2001 and Ria Dhillon born January 3, 2003, commencing the 1st month after the matrimonial home is sold via closing.
46Paragraph 13 provides that:
A support deduction order shall issue for the child support and extraordinary expenses upon the closing of the sale of the matrimonial home.
47The 2011 expenses claimed by Mrs. Dhillon amount to $1,324 while that for 2012 amount to $426.40. On the other hand, pursuant to Maresca J.’s final order, Mr. Dhillon was obligated to pay $3,384 annually ($280x12) for extraordinary expenses for the two children. If I find that the parties are not bound by Maresca J’s final order regarding the payment of extraordinary expenses, Mr. Dhillon should not be obligated to pay the expenses being claimed by Mrs. Dhillon, given the monthly amount he is required to pay as a result of this order.
Issue Three: Is Ms. Dhillon entitled to spousal support?
48Mr. Dhillon maintains that he should not be made to pay spousal support to Mrs. Dhillon for the following reasons:
(a) The March 2008 Minutes of Settlement clearly indicates that the parties had agreed that no such support would be payable by Mr. Dhillon.
(b) Mr. Dhillon bore the mortgage and other expenses for the two residences owned by the couple from the date of separation until they were sold in 2008, an amount of approximately $71,000. It would be wrong for him to shoulder all the major expenses of the marriage and still be required to pay spousal support to Mrs. Dhillon.
(c) He lacks the means to pay spousal support given that he is mired in debt, has no assets and resides with his mother.
(d) Mrs. Dhillon does not have any needs that justify a spousal support order. She purchased a $500,000 home in 2008 and a brand new car. She also has rental income and has achieved a state of self-sufficiency.
49Subsection 15.2(4) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (the Act) sets out the factors to be considered in determining spousal support while ss. 15.2(6) outlines the purposes for such an order. In determining whether or not a spouse should pay spousal support, the court must consider all the factors enumerated in s. 15.2(4), in addition to the objectives of such support set out in s. 15.2(6).
50Section 15.2(4) provides that:
In making an order under subsection (1) … the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
51Any support order must meet the following objectives set out in s. 15.2(6):
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
52In first assessing the condition, means and needs of both parties, I note that both are employed, although Mr. Dhillon earns considerably more than Mrs. Dhillon. Mrs. Dhillon is clearly indebted to members of her family who assisted her with a down payment for her house which she purchased for $401,000 in 2008, with a mortgage of $366,032.52. She also had to cash in some RRSPs to meet ongoing expenses associated with taking care of her children.
53Mrs. Dhillon’s annual income over the past seven years was as follows:
2007 $ 2,005.65
2008 $35,372.00
2009 $38,016.00
2010 $38,016.00
2011 $38,175.00
2012 $41,832.00
2013 $42,000.00
54Additionally, Mrs. Dhillon had the following rental income from 2009 to 2013:
2009 $ 6,000
2010 $10,200
2011 $ 7,200
2012 $ 8,400
2013 $ 9,800
55Mrs. Dhillon has deducted 40 per cent for each year of rental income she received to account for utilities. That amount is clearly exorbitant given that Mrs. Dhillon only had one tenant at any time in her basement apartment compared to four persons who occupied the two other floors in her residence. The appropriate deduction should be 25 per cent of utilities. Therefore, her net rental income for 2013 should be $7,350. For the purposes of calculating support, Mrs. Dhillon’s 2013 income was $49,350.
56Mrs. Dhillon reported the rental income to the Canada Revenue Agency and has therefore paid taxes on this income.
57Mr. Dhillon submits that Mrs. Dhillon’s 2013 income should be $71,000 as she claimed in her December 2013 application for a mortgage. I accept Mrs. Dhillon’s testimony that this figure was incorrect, something which she advised her real estate broker.
58Mrs. Dhillon devoted herself to child rearing once the parties’ two children were born. She lost a job as a Logistics Manager of a company after Mr. Dhillon pressured her to travel to India to visit his ailing father. As a result, she was forced to apply for employment insurance. The job she now holds pays her significantly less than the $55,000 to $60,000 she earned in that previous job.
59There is no doubt that Mrs. Dhillon has been economically disadvantaged by the marriage and its eventual breakdown and continues to endure economic hardship on account of the breakdown of the marriage.
60Mr. Dhillon maintains that he lacks the means to pay spousal support. However, I do not accept his testimony about his alleged impecuniosity. First, he earned $114,000 in 2013. Second, he testified that his mother owns the house he presently lives in and yet title documents entered as an exhibit in the trial indicate that Mr. Dhillon was on title in 2010 as one of the owners of the home. He explained this by noting that he had to do so given that his parents could not obtain a mortgage on their own. That could well have been the case given that Mr. Dhillon’s parents are both retired. Both could have had the means to come up with the approximately $70,000 down-payment given that both had responsible positions before retirement. Mr. Dhillon’s mother was a secondary school principal while his father was a Lieutenant Colonel in the Indian army.
61There is evidence that Mr. Dhillon has the means to pay spousal support. He drove a Honda Civic at the time of separation and subsequently purchased or leased a late model Mercedes Benz. Additionally, he earns more than twice the income of Mrs. Dhillon.
62In determining whether or not a spouse should be required to pay spousal support, I must consider all of the factors listed in s. 15.2(4) of the Act including, pursuant to subsection c, “any order, agreement or arrangement relating to support of either spouse”.
63In this regard, the parties filed “Final Minutes of Settlement” with the court on March 3, 2008.
64Paragraph 11 of the Maresca J.’s order provides that:
Mr. Dhillon shall pay Mrs. Dhillon the sum of $622 per month as child support for the two children…based upon the Child Support Guidelines retroactive to the date of separation. This figure reflects the shared custody arrangement and represents an offset of income of Mrs. Dhillon (an income of $36,000) and Mr. Dhillon (an income of $84,624) and is based upon the Child Support Guidelines.
65Paragraph 14 provides that:
There shall be no spousal support payable by either party.
66A dispute has arisen over the meaning of this paragraph. Mrs. Dhillon maintains that this part of the order does not bar her from renewing her claim for spousal support once Mr. Dhillon was no longer singlehandedly paying the carrying costs of their two properties. Mr. Dhillon, on the other hand, testified that the parties agreed that no spousal support would be paid given that he was financially responsible for the couple’s debts.
67Both parties were represented by counsel when they signed the Minutes of Settlement. Mrs. Dhillon’s counsel failed to include a qualifier to the paragraph relating to spousal support indicating that it did not bar Mrs. Dhillon from seeking spousal support once the properties were sold. Neither did Mr. Dhillon stipulate that he was fully relieved of any future obligations.
68However, Maresca J.’s order is merely one factor to be considered in determining whether an order for spousal support is warranted. I must determine whether or not Mr. Dhillon should be made to pay spousal support to Mrs. Dhillon in light of sections 15.2(4) and s. 15.2(6) of the Divorce Act. To that extent, I have the discretion to make a spousal support order if I conclude, after considering all the factors, that such an order is appropriate.
69In my view such an order is appropriate where there is a compelling need to compensate Mrs. Dhillon for the effects of the marriage and its breakdown. Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, (1992), 43 R.F.L. (3d) 345. The fact that Mr. Dhillon paid the carrying costs of the couple’s assets following their separation does not fully compensate Mrs. Dhillon for the impact of the marriage on her financial wellbeing.
Quantum and Duration of Spousal Support
70In calculating the quantum and duration of spousal support, I rely on the case of Fisher v. Fisher, 2008 ONCA 11 for the proposition that the Spousal Support Advisory Guidelines (SSAG), while only advisory, are a useful starting point to address the quantum of spousal support, after entitlement has been determined.
71Mr. Dhillon’s 2013 income was $114,362 while Mrs. Dhillon’s annual income in the same year was $49,350. According to the SSAG, Mr. Dhillon might pay spousal support in an amount between a low point of $419 monthly and a high point of $1,190 monthly with a mid-point of $803 monthly, based on the fact that Mrs. Dhillon will have custody of Arjun and Ria.
72In my view, the quantum and duration of spousal support should be at the lower end of the scale given Mrs. Dhillon’s age; the fact that she is gainfully employed, has purchased a home and is receiving rental income; the child support she will be receiving; and the financial benefit she will receive following the equalization of net family property. I also note that Mrs. Dhillon purchased a home for $401,000 following separation, at a time when she only earned a modest $35,372 annually. Mr. Dhillon should not be made wholly responsible for this major acquisition. In any event, while Mrs. Dhillon incurred debt to purchase this residence, it has appreciated significantly in value since 2008. In her 2009 financial statement Mr. Dhillon estimated the value of the home as $430,000. The value of the home is much greater today, than in 2009.
73Mr. Dhillon should be required to pay spousal support to Mrs. Dhillon in the amount of $500 per month for a period of seven years. Mr. Dhillon should receive credit for Mrs. Dhillon’s share of the carrying costs and related expenses which he paid after separation up to the point when the couple’s two residences were sold in 2008.
74Mrs. Dhillon maintains that in consideration for Mr. Dhillon’s payment of the carrying costs, he was only required to pay $622 a month in child support. I disagree. Maresca J.’s order, which reflected Minutes of Settlement filed by both parties on consent, specifically state that the sum of $622 per month as child support for the two children “reflects the shared custody arrangement and represents an offset of income of Mr. Dhillon…and Mrs. Dhillon”.
75Mrs. Dhillon claims that Mr. Dhillon paid the sum of $41,444.46 between the date of separation and the sale of the two homes. Mr. Dhillon maintains that the amount he paid within this period exceeds this amount and presented a number of invoices and receipts that indicate that he made a number of payments which were not included in Mrs. Dhillon’s statement about the payments he made.
76These payments include the following:
(a) Mortgage and utilities for both houses $5,951.48
(b) Internet, cable and wireless services
and bank charges and safety deposit box $4,458.16
(c) Service charges for vehicles $2,017.45
(d) BMO card payments $2,741.73
(e) Costco card $4,600.00
TOTAL $19,768.82
77Mrs. Dhillon will not receive credit for the service charges for the vehicles since, as shown in the next section, those charges are reflected in the valuation of the couple’s two vehicles. Mrs. Dhillon queries whether the Costco payment was made post-separation. However, I accept Mr. Dhillon’s testimony that they were. To that extent, I find that Mr. Dhillon paid an additional amount of $17,751.37 which is not reflected in the $41,444.46 figure given by Mrs. Dhillon. Therefore, the total amount he paid following separation is $59,195.83.
78Based on spousal support of $500 for a period of seven years, Mr. Dhillon would be required to pay spousal support of $42,000. This amount will be reduced by Mrs. Dhillon’s share of the carrying costs which he paid post-separation, or 50 percent of $59,195.83. Therefore, Mr. Dhillon must pay an additional sum of $12,402.08. This amount deducted the net proceeds of sale of the matrimonial home being held in trust by Mr. Dhillon’s lawyer on his behalf.
Issue Four: What is the equalization of net family property?
79The law requires the court to ascertain the value of each spouse’s net family property, followed by an equalization of those amounts by requiring the spouse with the greater value to pay the other an amount that is equal to fifty per cent of the difference between them. There is no claim for an unequal division of net family property in this case.
80The assessment of net family property commences with the identification and valuation of each party’s assets or debts on valuation day. The financial statement form provides the following asset categories:
- Land
- General Household Items and Vehicles
- Savings and Savings Plans
- Securities
- Life and Disability Insurance
- Accounts Receivable
- Business Interests
- Other Property
81Mrs. Dhillon led the following evidence regarding the assets and liabilities of each party on the date of separation:
ASSETS
MR. DHILLON
MRS. DHILLON
Sale Proceeds of Matrimonial Home
$69,842
$69,642
Sale Proceeds of Investment Property
$2,490.94
$1,967.56
Property in Amritsar, India
$120,388.81
Household Contents (adjusted)
$1,350
$5,400
Vehicles (adjusted for servicing costs)
$5,000
Jewellery (Mrs. Dhillon’s appraised value accepted)
$3,500
$2,148.30
Bank Accounts, Savings, Securities
$95,904.33
$27,290.36
DEDUCTIONS
Date of Separation Debts
Joint Mastercard (final balance)
$7,015.52
$7,015.52
Joint Visa (final balance)
$6,707.08
$6,707.08
Sole Credit Card
$33.92
RSP Tax Liability
$6,276.78
Date of Marriage Assets
Amritsar Property (Rupee value accepted)
$6,260
MR. DHILLON
MRS. DHILLON
Excluded Property
Gifted Jewellery
$2,148.30
Damages (from wrongful dismissal settlement)
$13,615
NET FAMILY PROPERTY
$278,293.48
$70,651.62
82I will proceed to deal with those categories with which there are some concerns.
Land
83Mrs. Dhillon claims that Mr. Dhillon owns a property in Amritsar, India, which is currently valued at approximately $122,000. She submits that it should be included in a computation of his net family property.
84Mr. Dhillon maintains that the property should not be included in his net family property for the following reasons:
(a) It does not belong to him but to his mother.
(b) His mother transferred the property to him in 1997 to facilitate his migration to Canada as an independent immigrant.
(c) The tenants of the property have had a legal conflict with his mother for ten years. She has borne the costs of this legal action while Mr. Dhillon has not contributed to any of this cost.
85Mr. Dhillon testified that in 1997, his mother, Satwant Kaur Gill, transferred the Amritsar property to him in trust to facilitate his application to migrate to Canada under its Independent Immigrant category. He testified that he did not pay his mother any money for the property and that it never belonged to him. Mrs. Gill corroborated Mr. Dhillon’s testimony and presented a revocable Trust Agreement, to confirm that the transfer of title had indeed occurred in 1997 but only for the purpose of assisting her son in his application to migrate to Canada. Neither Mr. Dhillon or Mrs. Gill was shaken in cross-examination about the nature of the agreement to transfer this property and the time when it was done.
86Counsel for Mrs. Dhillon submits that I should place little weight on the Trust Agreement. However, there is no evidence contradicting Mr. Dhillon and Mrs. Gill’s testimony about the Amritsar property.
87Pursuant to s. 4(1)(b) of the Family Law Act, R.S.O. 1990, c. F.3, premarital property, if indeed Mr. Dhillon acquired ownership of the Amritsar property in 1997, must be deducted in the calculation of his net family property. However, I am not persuaded that Mr. Dhillon owns this property even if it remains in his name. His mother remains the beneficial owner. In my view, the Amritsar property should be excluded from the calculation of Mr. Dhillon’s net family property.
88I am mindful that the purpose for which Ms. Gill transferred ownership of the Amritsar property to Mr. Dhillon may well have constituted a fraud on the Government of Canada. However, I cannot consider this in my analysis of whether the property should be treated as belonging to Mr. Dhillon for equalization purposes.
Bank Accounts, Savings and Securities
89Mrs. Dhillon indicates that Mr. Dhillon’s bank accounts, savings and securities amount to $95,904.33. Mr. Dhillon presented documentation, which reveals his savings and investments on the date of valuation.
90These include the following:
ING Direct
$16,101.50
CIBC
$ 398.88
RRSP
$16,925.70
ING RSP
$ 8,796.67
Deferred Profit Sharing
$20,019.59
E-Trade Canada
$31,264.88
Stock with Employer
$ 391.07
TOTAL
$93,898.29
91Mr. Dhillon’s savings, investments and securities will therefore be adjusted to $93,898.29.
General Household Items and Vehicles
92The parties had two vehicles at the time of separation: a Dodge Caravan and a Honda Civic. Mr. Dhillon testified that he sold the Caravan after separation for $700 while he sold the Honda Civic for $2,000.
93Mrs. Dhillon has listed the Honda Civic in Mr. Dhillon’s net family property at the time of separation as being worth $5,000. She based this valuation from the Auto Trade Vehicle Report.
94However, there is no information to confirm that the Honda Civic was worth that amount. There is no information regarding its state of repair or disrepair. Neither party sought to appraise the value of the vehicle at the date of separation. Mrs. Dhillon confirmed that the Honda Civic was stolen in 2006 and that the front of the vehicle was damaged and had to be repaired.
95Mr. Dhillon was not shaken in cross-examination about the money he received for the Honda Civic and Dodge Caravan when he sold both vehicles in 2008. The Dodge Caravan was involved in an accident before Mrs. Dhillon handed it over to Mr. Dhillon. Mr. Dhillon testified that he sold it for $700. There is no evidence to suggest that he received more money for the vehicle. In my view, these two vehicles should be valued at $3,000 rather than $5,000 as Mrs. Dhillon suggests.
96Regarding the household contents, Mrs. Dhillon indicates that she retained $5,400 of value compared to $1,350 by Mr. Dhillon. Mr. Dhillon testified that they purchased the furniture in 2006-2007 at a cost of $35,000 to $40,000. He testified that he only received one bed and mattress and two side tables. Mrs. Dhillon, on the other hand, received five bedroom sets, two living and dining sofa sets, the electronic equipment, a 50 inch television set and all the cutlery.
97Mrs. Dhillon admitted that she failed to mention that she also received three paintings, an aquarium, six tropical plants and a dresser which were in the garage. However, she denied any knowledge of a fifth bedroom set which the couple allegedly owned at the time of separation.
98Mr. Dhillon was not challenged in his testimony that the couple spent $30,000 to $40,000 on furniture just prior to separation. Indeed, at the time of separation, there was an outstanding balance from the Brick Furniture Store of $3,042. The figures provided by Mrs. Dhillon suggest that the furniture retained by Mr. Dhillon and herself was only worth $6,750 at the time of separation.
99I find that Mrs. Dhillon has understated the value of the couple’s furniture and household items and has not included the value of all the household property she retained after separation. Significantly, Mrs. Dhillon indicated in her December 2008 mortgage application that their household goods were valued at $31,000.. The property she retained should therefore be valued, at the very minimum, at $31,000 while that of Mr. Dhillon should be valued at $1,350.
Jewellery
100Mr. Dhillon maintained that Mrs. Dhillon retained $3,500 of the family jewellery while he retained $2,148.30. Mr. Dhillon testified that at the time of separation, the gold in the family possession was valued at $14,000 and is presently worth approximately $30,000.
101When confronted by a previous statement on April 4, 2009, to the effect that the jewellery in her possession was worth $10,000, Mrs. Dhillon replied that she was merely relying on her personal assessment. Mrs. Dhillon also denied that she kept any of Mr. Dhillon’s jewellery, yet confirmed that she admitted in a previous hearing that she had possession of Mr. Dhillon’s wedding ring.
102Mrs. Dhillon relies on a valuation report of New Rana Jewellers, dated May 2, 2011, for her valuation of the jewellery in her possession. The report however, is based on a valuation of five pieces of jewellery; one necklace, two rings and two bangles.
103According to Mr. Dhillon, that does not fully account for the family jewellery, specifically two sets of diamond jewellery he purchased during the course of the marriage.
104I am sceptical that the jewellery retained by Mrs. Dhillon should only be valued at $2,148.30. However, Mrs. Dhillon served Mr. Dhillon with a Request to Admit (RTA) the report of New Rana Jewellers regarding the value of the jewellery in her possession. Mr. Dhillon failed to reply to the RTA. His failure to respond is a deemed admission of the value of the jewellery in Mr. Dhillon’s possession. Rule 22(4) of the Family Law Rules, O. Reg. 114/99.
105On the other hand, I do not accept that the value of the jewellery retained by Mr. Dhillon was $3,500. I would value the jewellery he retained to be $1,500.
Credit Card Debts
106Mrs. Dhillon maintains that at the time of separation, Mr. Dhillon had a debt of $7,015.52 on the couple’s joint Mastercard and $6,707.08 on their joint Visa account. As already indicated, the couple had additional credit card debts, specifically that on their BMO credit card and Costco credit card. However, Mr. Dhillon has already received credit for these payments in the calculation of the spousal support payable to Mrs. Dhillon.
Damages For Wrongful Dismissal
107Mrs. Dhillon testified that she was wrongfully terminated by her employer during her marriage largely as a result of Mr. Dhillon’s actions. She filed a lawsuit against her employer and received a $20,000 settlement prior to separation. Following payment of her legal fees, she deposited $14,115 into an RRSP account.
108Mrs. Dhillon’s counsel submits that this money was earned as a result of Mrs. Dhillon’s pain and suffering and Mr. Dhillon’s own actions and should not be considered part of her net family property.
109Pursuant to s. 4(3) of the FLA, the onus of proving a deduction or exclusion from the calculation of net family property is on the person claiming it: Laing v. Mahmoud, 2011 ONSC 4047, at para. 49. Damages for wrongful dismissal do not fall under the list of excluded property in s. 4(2) of the FLA. This list included damages “or a right to damage for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship or the part of a settlement that represents these damages”.
110To the extent that the damages received by Mrs. Dhillon is on account of damages for wrongful dismissal, as opposed to personal injuries or psychological injuries, it must be included in her net family property.
111Mrs. Dhillon also blames her former husband for her company’s decision to fire her because of his insistence that she not take the company’s cellphone with her while visiting her ailing father-in-law in India. However, in the notes she wrote after being fired, she clearly indicated that it was her decision not to take the company’s phone with her to India, not that of her husband. Accordingly, I cannot exclude the wrongful damages award received by Mrs. Dhillon on the ground that Mr. Dhillon was responsible for her having been fired.
112Additionally, the jurisprudence about the categorization of work related payment of damages or severance pay justifies the treatment of damages for wrongful dismissal as property for the purposes of calculating net family property.
113Damages for wrongful dismissal or severance pay can constitute property for the purpose of calculating net family property if entitlement crystallizes before separation of the parties. Slack v. Slack (2001) 2001 28170 (ON SC), O.J. No. 5115, [2001] O.C.J. 944 (SCJ), Vitagliano v. Di Stavolo [2001] O.J. No.1138, 17 R.F.L. (5th) 194 (S.C.J.), 54, Leckie v. Leckie 238 D.L.R. (4th) 571 2004 10487 (ONCA). Similarly, wrongful dismissal damages become property for the purposes of the calculation of net family property only if entitlement to it arises prior to separation. Accordingly, the money received by Mrs. Dhillon as a result of her wrongful dismissal must be included in her personal property.
Equalization Calculation
114Based on the above, the revised assets and liabilities of each party on the date of separation are as follows:
VALUATION DATE (VD)
TOTAL VALUE OF ASSETS ON VD
ASSETS
MRS. DHILLON
MR. DHILLON
Sale Proceeds of Matrimonial Home
$69,642
$69,842.00
Sale Proceeds of Investment Home
$1,967.56
$2,490.94
Household Contents
$31,000.00
$1,350.00
Vehicles
$3,000.00
Jewellery
$2,148.30
$1,500.00
Bank accounts, Savings
Securities
$27,730.00
$93,898.29
Value of Property Owned on Valuation Day
$132,487.86
$172,081.23
Total Value of Debts and Liabilities on VD
Joint Mastercard
$7,015.52
$7,015.52
Joint Visa
$6,707.08
$6,707.08
Sole Credit Card
$33.92
RSP Tax Liability
$6,276.78
Total Value of Debts and Liabilities
$20,033.30
$13,722.60
Excluded Property
Gifted Jewellery
$2,148.30
NET VALUE OF PROPERTY ON VD
$110,306.26
$158.358.63
DATE OF MARRIAGE (DM)
NET VALUE OF PROPERTY (other than a Matrimonial Home) AND DEBTS ON MD
ASSETS
MRS. DHILLON
MR. DHILLON
VALUE OF PROPERTY OWNED ON MD
TOTAL VALUE OF DEBTS AND LIABILITIES ON MD
DEBTS AND OTHER LIABILITIES
TOTAL: Value of Debts and Liabilities
EXCLUDED PROPERTY
NET VALUE OF PROPERTY OWNED ON MD
TOTALS VD & MD
NET VALUE OF PROPERTY OWNED ON THE VD
$110,306.26
$158.358.63
NET VALUE OF PROPERTY OWNED ON THE DM
NET FAMILY PROPERTY
$110,306.26
$158.358.63
115The difference between the net family property of Mr. Dhillon and that of Mrs. Dhillon is $48 052.37. Mr. Dhillon is required to pay Mrs. Dhillon one half of this difference or $24,026.18.
Issue Five: Did Mr. Dhillon receive more of the net proceeds of the sale of the matrimonial home than Mrs. Dhillon?
116The disbursement of funds from the sale of the Dhillons’ matrimonial home indicates that Mr. Dhillon received $14,004.42 more than Mrs. Dhillon. He received $11,500 from the $83,000 held in trust by the real estate lawyer and an additional $2,504.42. I must therefore pay Mrs. Dhillon $7,000 to ensure that she receive an equal share of the net proceeds of the sale of the matrimonial home.
Disposition
117Based on the above, I order that:
Mrs. Dhillon shall have sole custody of the children of the marriage, Arjun Dhillon, born December 9, 2011 and Ria Dhillon, born on January 3, 2003.
The primary residence of the children of the marriage shall be with Mrs. Dhillon.
Commencing July 2014, Mr. Dhillon shall have access to the children:
a) On alternate weekends from Friday after school at 4:00 p.m. to Sunday at 7:00 p.m. and one mid-week visit from 4:00 p.m. to 8:00 p.m. on a day which is mutually agreeable to both parties.
The pick-up and drop-off of the children shall be at the parking lot of Mrs. Dhillon’s residence, or at any other place agreed to by the parties in advance and in writing.
Both parties shall be entitled to:
i) Attend at all children’s regular extracurricular events during the week;
ii) Communicate with the children at reasonable times by telephone, email, letter or Twitter; Facebook and;
iii) Have other access as may be mutually agreed upon by both parties in writing.
iv) To have access to the children during summer school break, the first two consecutive weeks in July or August during even numbered years, and the last two weeks in July or August in odd numbered years.
v) Mr. Dhillon shall advise Mrs. Dhillon no later than June 15th of the dates of his proposed access. Mr. Dhillon may also request an additional or third week of time with the children in the summer, if he wishes, but if he desires an additional or third week in the summer, he shall provide written notice of his wish to Mrs. Dhillon by June 15th of the year of any such request.
vi) During the Christmas school holidays, Mr. Dhillon shall have the children during the week of Christmas (4 days and nights) in odd numbered years and the following week (including New Year’s Day) during even numbered years.
vii) Mr. Dhillon shall have access to the children for March school break, from Saturday morning at 9:00 a.m. to Wednesday at 6:00 p.m. during even numbered years and from Wednesday at 6:00 p.m. to Sunday at 6:00 p.m. on odd numbered years.
viii) The children shall be with Mr. Dhillon for Father’s Day (from 10:00 a.m. to 9:00 p.m.) irrespective of and in addition to the regular access schedule.
ix) Telephone access to the children of the marriage on their birthday, Mr. Dhillon’s birthday and Diwali, in addition to regular access.
Mrs. Dhillon shall have the children of the marriage on Mother’s Day from 10:00 a.m. to 7:00 p.m., irrespective of the regular access schedule.
Mr. Dhillon shall be at liberty