ONTARIO

SUPERIOR COURT OF JUSTICE

Editor’s Note: Erratum released February 14, 2014. Original judgment has been corrected, with text of erratum appended.

COURT FILE NO.: FS-11-73517-00

DATE: 20140210

BETWEEN:

Neeraj Arora

K. V. Bhagat, for the Applicant

Applicant

• and -

Sanchita Arora

M. S. Balz, for the Respondent

Respondent

HEARD: January 7-10, 13, 14 and 15, 2014

REASONS FOR JUDGMENT

D.L. EDWARDS J.:

INTRODUCTION

[1] Neeraj Arora and Sanchita Arora, who were both born in Jalandhar Punjab, met in the same city in 1997. Sanchita immigrated to Canada in June 2001. They married in India on July 3, 2002. Sanchita sponsored Neeraj to come to Canada in September 2003. In 2008 their son, Shaurya, was born. They separated on November 7, 2011.

[2] In this matter, each initially claimed sole custody of Shaurya, together with the attendant child support. Sanchita claimed spousal support and an unequal division of the net family property.

BACKGROUND

[3] In their testimony Neeraj and Sanchita each recalled a significantly different history leading up to their separation. Sanchita testified that the seeds for the destruction of their marriage were planted before they married. She married against the wishes of her family. She testified that her family’s background in India was one of education; whereas Neeraj’s family was not educated. Compounding this difference she testified that Neeraj wanted her family to pay him a dowry, which very much upset her parents. She testified that once Neeraj joined her in Canada financially they were in good shape until they purchased their home in 2006; at which time the family finances became strained. She stated that she had a stable job, which she referred to as a dead end job, which sustained the family while Neeraj began the process of obtaining certification as a heating, ventilation and air conditioning technician (HVAC), which improved his ability to earn an income.

[4] Neeraj testified that Sanchita’s family never liked him as he was not of the right class; he was not as educated, having only a grade 12 education. He felt that strains in the marriage developed after the birth of their son in 2008. He testified that they both worked towards improving their ability to earn an income, and they both attended educational courses to assist in achieving this goal.

[5] There was much testimony about events leading up to the separation. The parties agree that the date of separation was November 7, 2011. I am satisfied that neither party took any steps to hide or dissipate family property prior to separation. Accordingly, I need not determine what events led to the separation; nor need I apportion blame to the breakdown of the marriage.

WITNESSES

[6] Sanchita and Neeraj are a study of contrasts.

[7] Sanchita has a memory of, and a facility for, numbers. She has passed four of five examinations towards a Certified General Accountant (“CGA”) designation. She was able to testify to events, times and amounts without hesitation, and usually without the need to refer to the exhibits, or prompting from her counsel. She is well spoken.

[8] In contrast Neeraj displayed little understanding or memory of financial matters. His frequent answer to financial issues regarding his business was that he simply gave the information to his accountant and the accountant allocated the expense between a personal and business expense. His accountant put together the corporation’s financial statements and Neeraj simply accepted the result. In general, his recollection of financial matters is hazy. I find that he answered those questions to the best of his ability and recollection. I do not believe that he was attempting to evade the questions.

[9] Neeraj’s understanding of English was limited to relatively simple words. Occasionally, where a question contained a complex word, by his answer it was clear that he did not understand the question. This required intervention, either by his counsel or by the court, to request that the question be repeated utilizing more basic language.

[10] Neeraj’s facility for numbers demonstrably changed when he was asked to comment upon the HVAC business directly. For example, when asked to break down the overhead portions of certain invoices, his answers were quick, clear and concise. It was clear that his expertise lies in the HVAC industry. He has obtained certification that entitles him to work on heating and air conditioning units without supervision. He has not yet received his certification to work on refrigeration without supervision.

[11] Neeraj testified that during the marriage Sanchita was responsible for the financial matters. I find this to be a fact.

[12] Neeraj was cross-examined regarding a mortgage application made by him and Sanchita. He acknowledged that the information contained on the application regarding his employment and his income was false. He testified that a mortgage broker prepared the application; that he had very little personal knowledge about the application; and that he relied upon the mortgage broker. Sanchita testified that, although she had signed the application, she knew nothing about Neeraj’s financial information or his employment.

[13] I do not accept the testimony of Sanchita on this point. Based upon her knowledge of, and interest in, financial matters, I am satisfied that she would not sign the mortgage application without understanding its contents. I am satisfied that Neeraj, on the other hand, would simply rely upon a representation made by the broker, in the same way that he relies upon his accountant. This is not wilful blindness; Neeraj simply puts his trust in those who have a better understanding of financial matters than he does.

[14] I will first deal with the issues of spousal support.

SANCHITA

Spousal Support

[15] Sanchita has made a claim for spousal support.

[16] It is first necessary to examine whether Sanchita is entitled to spousal support.

[17] In Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.), at pp. 878-79, the Supreme Court directed that a judge should:

• First consider the “economic advantages or disadvantages…arising from the marriage or its breakdown”, including the “sacrifices and contributions made during the marriage and the benefits which the other spouse has received”.

• Second, consider the “apportionment” of the “financial consequences” of the care of children including any financial disadvantage incurred before or after separation.

• Third, consider granting relief from any economic hardship arising from the breakdown of the marriage with a focus upon post-marital need.

• Fourth, consider how “‘in so far as practicable’ promote the economic self-sufficiency of each former spouse within a reasonable period of time”.

[18] When Sanchita came to Canada in June 2001 she began a process that is typical of an immigrant. She first found an entry-level job in the fast food industry working for Wendy’s making food, which was consistent with her education in India, namely a Bachelor of Food Sciences. She was also employed by Future Shop and eventually advanced to Head Customer Service Representative (CSR). In 2003 she obtained full-time employment with 407ETR, and for a period of time worked fulltime with 407ETR and part-time with Future Shop.

[19] She sponsored Neeraj to come to Canada in 2003. At that time she quit her part-time job at Future Shop and remained on a full-time basis with 407ETR. She is still employed by 407ETR today. She has received various promotions. She testified that her annual income has increased from $34,100 in 2003 to $56,000 in 2013. She testified that this is a dead end job and she wishes to complete her CGA designation so that she can seek employment with higher income earning potential.

[20] She testified that in 2003 she and Neeraj agreed to take whatever jobs were available to earn an income, and then they would each enrol in courses to advance.

[21] In 2005 she enrolled at York University in her first course towards a CGA designation. Since then she has passed four of the five certifications necessary to become a CGA, having failed three exams. She testified that as she was the primary caregiver for their son and did most of the household work and maintained a full-time job, her progress toward certification has been delayed. She has sacrificed. She seeks spousal support in order to be able to reduce her hours at 407ETR and have the time to pass her final examination and work on a voluntary basis, which is an aspect required for her CGA designation.

[22] Sanchita’s parents and her brother testified that she performed most of the household cleaning and most of the childcare. Neeraj did not dispute that Sanchita did most of the household cleaning, but did testify that he contributed to childcare.

[23] Sanchita testified that, during marriage because of her sacrifice, Neeraj was able to obtain his Gas Tech 2 and 3 certifications.

[24] Neeraj testified that he began taking courses at George Brown College in 2004 and in 2006 to obtain his Gas Tech 2 and 3 certifications. He testified that he worked while he was taking the courses. His T4 for the years 2004, 2005 and 2006 respectively show income of $17,656, $17,524 and $26,798. He acknowledges that in addition to the reported income, he earned cash throughout this period.

[25] In 2008, prior to Shaurya’s birth, Sanchita was on sick leave due to a minor car accident, and after his birth she took maternity leave. Neeraj testified that he took time off work for about 15 days before his birth, and for about a month afterwards. Once Sanchita’s maternity leave ended, she returned to work at 407ETR. Their child, Shaurya, was left with a baby sitter when they worked. Sanchita testified that once she went back to work, she also worked part-time at H&R Block and attended school part-time.

[26] I find that Sanchita has not incurred an economic disadvantage arising from the marriage or its breakdown. The family unit has expended resources on Sanchita, both in the form of payment of tuition and for baby-sitting care to allow Sanchita to study towards her CGA designation. She has passed four of the five certifications. In addition, her income has increased considerably during the marriage.

[27] I am also satisfied that Sanchita did not incur, and is not incurring, a financial disadvantage as a result of caring for Shaurya that is not compensated for through child support and a s. 7 expense claim.

[28] I also find that the marriage breakdown has not created an economic hardship for Sanchita; according to her testimony, the family has struggled economically since the purchase of their home.

[29] I find that Sanchita is clearly economically self-sufficient, having an income in 2013 of $56,000. As well, as I have determined below, she has a larger income than Neeraj.

[30] I find that Sanchita’s claim for spousal support fails, as she has not proven entitlement to such support.

(Decision continues with equalization, custody, access, child support, summary, and appended erratum exactly as in the source.)