Virasami v. Virasami, 2015 ONSC 2076

CITATION: Virasami v. Virasami, 2015 ONSC 2076

COURT FILE NO.: FS-08-63698-00

DATE: 2015-03-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

URMILA VIRASAMI

Judy Piafsky, for the Applicant

Applicant

• and -

HENRY VIRASAMI

Un-represented

Respondent

HEARD: September 22 and 30, 2014, at Brampton, Ontario

Price J.

REASONS FOR ORDER

NATURE OF PROCEEDING

1Urmila Virasami has single-handedly supported the three children of the marriage since her separation from Henry Virasami on October 1, 2007. On August 14, 2008, Ms. Virasami began the present proceeding for divorce, custody of the children, spousal and child support, equalization of net family property and exclusive possession of the home and its contents. Mr. Virasami failed or refused to comply with numerous orders requiring him to disclose financial information and on August 30, 2012, Gray J. ordered that his pleadings be struck. Ms. Virasami proceeded to an uncontested trial on September 22 and 30, 2014, at which she and her daughter, Alyssa Virasami testified. These are the reasons for my order based on the evidence heard and the exhibits filed at that trial.

BACKGROUND FACTS

The marriage

2Urmila Virasami and Henry Virasami were married at Toronto on November 5, 1986. They separated in March 1997 but reconciled in 1999. They continued to reside together for 8 more years until they finally separated, after 21 years together, on October 1, 2007. Mr. Virasami left the matrimonial home six months later, in April 2009.

3There were three children of the marriage, namely:

1. Matthew Anthony Virasami is 26 years old (born October 3, 1988). He completed college and is now self-supporting. He is no longer a "child of the marriage" within the meaning of the Divorce Act.¹

2. Alyssa Marie Virasami is 25 (born February 27, 1990). Alyssa testified at the hearing. She graduated from high school in 2008 and planned to enter a nursing program but was not immediately accepted. She therefore obtained employment at an insurance brokerage, Alto and Associates, to enable herself to contribute towards the payment of her educational expenses. She worked for the brokerage for two years. Her Notices of Assessment disclose that she earned $11,558 in 2008, $21,937 in 2009, and $13,905 in 2010. Mr. Virasami told her that he would pay for her post-secondary education, as he had for her brother Matthew. Her mother helped her pay for her living expense and in 2010, she applied to enter a four year B.Sc. program in nursing at Seneca College. She was accepted in February, to begin studies in September 2010. The program would have qualified her to be a registered nurse, upon her completion in the spring of 2014. She sent the fee forms to her father and assumed that he had paid the required amounts. However, when she telephoned Seneca, they informed her that the fees had not been paid, with the result that they had given her place to another applicant. She had quit her job in July 2010 to enter the program but when she re-applied to the program, she was not accepted. She returned to work for Alto and Associates, until she was able to secure admission to a pre-health program at George Brown College. She earned $8,327 in 2011, $3,403 in 2012 (when she attended school), and $18,771 in 2013. She used most of her earnings to cover her recreation, entertainment, telephone, and clothes. Her mother paid for her food and housing. She attended George Brown for a full year from 2011 to 2012 and then applied for admission to a practical nursing degree program at Seneca College and was accepted. She began that program in September 2013 and expects to complete it in May 2015.

3. Nicholas Brendan Virasami is 20 (born July 4, 1994). He completed high school in June 2012. He took a year off to earn money for his education. He found part-time contract employment through employment agencies doing telemarketing from January to April 2013. His Notice of Assessment for 2012 shows Line 150 income of nil and his Notice of Assessment for 2013 shows Line 150 income of $4,371. He was able to save only $1,600 from his employment for his fees. He was accepted into the Culinary Arts program at George Brown College and began attending there full time on September 3, 2013, and is expected to complete his program in May 2015.

The parties' employment and income

4Ms. Virasami is employed as a Service Delivery Assistant at the Ontario Ministry of Training, Colleges, and Universities. In her financial statement sworn November 29, 2013, she reports that her current income is $51,554.64, which roughly corresponds to her Line 150 total income in her Notice of Re-assessment for 2012, which assessed her income at $51,576. Her income in the three preceding years was $50,100 (in 2011), $54,678 (in 2010), and $57,105 (in 2009). She explains that the higher income in 2009 and 2010 resulted from the fact that she had taken over a position for a colleague who went on maternity leave, but that she returned to her previous position when the colleague returned. She states that there is little room for advancement in her position.

5Mr. Virasami is a self-employed contractor who operates his own construction companies. He is also a licensed electrician and plumber. In 2003, he formed a company, VHM Construction Inc. In Ms. Virsasami's affidavit sworn July 30, 2012, she states that he recently started another company called 9 Brothers.

6Ms. Virasami helped Mr. Virasami with invoicing during the marriage and states that he earned substantial cash income and directed customers to make all cheques payable personally to him. She states in her affidavit sworn July 30, 2012, that Mr. Virasami earned in excess of $100,000 per year during the marriage, even without adding back any personal expenses which he deducted from his income for the purposes of income tax.

7Ms. Virasami assumed primary responsibility for the children and for the household during the marriage. Mr. Virasami was the primary income-earner. Mr. Virasami left the home at 8 a.m. and returned at about 9 p.m. He regularly worked on weekends. He worked mostly from his truck, which he owned outright. He did his work locally, in Toronto, Brampton, and Mississauga, with the result that virtually his only overhead was the expense of his telephone, which amounted to $50 per month, and gas for his vehicle. He paid for both his phone and his gas through his business, deducting over $6,000 in vehicle expenses in 2007, although he made personal use as well as business use of both his phone and his vehicle.

8Mr. Virasami worked for Canroof, a roofing company, for two or three years while he obtained his certification as an electrician and plumber at George Brown College, studying late into the night. He completed his certification in 2004 and the same year, formed VHL Construction. VHM Construction did anything, including electrical, plumbing, and carpentry work, to up-grade homes. Ms. Virasami stated that Mr. Virasami "flipped houses", meaning that he purchased houses, renovated them, and sold them at a profit.

9While Mr. Virasami worked under the name VHM Construction, he also continued working shifts on weekends and in the afternoon for Canroof. Additionally, he did side-jobs with his brother for Global Construction, Kanff Homes, and other companies in the neighbourhood, performing home renovations, building basements, bathrooms, and decks for which he was paid in cash when the job was completed. It appeared to Ms. Virasami that Mr. Virasami's businesses were successful.

10Ms. Virasami testified that Mr. Virasami used no invoices when he performed work as Global Construction. When he issued invoices on the letterhead of VHM, samples of which she introduced, they directed the customer to "Make all cheques payable to Henry Virasami." Ms. Virasami stated that Mr. Virasami prepared invoices only for customers who were paying by cheque. The other customers paid by cash, which Mr. Virasami kept on his nightstand, in his wallet or in his truck. He always used cash to pay for purchases.

11Ms. Virasami began the present proceeding by application issued August 20, 2008, when she and Mr. Virasami were 44 years of age. In her application, Ms. Virasami claimed a divorce, spousal support, custody of the children and child support, exclusive possession of the matrimonial home and its contents, and an equalization of net family property. Mr. Virasami delivered an Answer on November 4, 2008, in which he made similar claims.

12On February 27, 2009, Coats J. made a temporary and without prejudice order, on consent, requiring Mr. Virasami to pay child support to Ms. Virasami in the amount of $188 per month for the parties' youngest child, Nicholas Brendan Virasami, based on an income of $22,000 per year, beginning February 1, 2009. He made no voluntary payments but the Family Responsibility Office collected approximately $12,000 in its enforcement of the order.

13In the same consent order dated February 27, 2009, Coats J. required Mr. Virasami to make financial disclosure. Mr. Virasami failed to make the financial disclosure required. On May 21, 2009, in the face of a motion by Ms. Virasami to have Mr. Virasami found in contempt, Mr. Virasami's lawyer was removed from the record as his solicitor and Ms. Virasami's motion was adjourned to June 25, 2009, to give Mr. Virasami an opportunity to purge his contempt. When he failed to purge his contempt by that date, Murray J. found him in contempt and ordered him imprisoned for 14 days. Mr. Virasami later breached the further order of Mossip J. dated July 8, 2010, requiring him to make financial disclosure and after repeated adjournments of Ms. Virsasami's motion and Mr. Virasami's continued breach of the orders for disclosure, Gray J. finally struck his pleadings on August 30, 2012.

ISSUES

14The court must determine the following issues in this proceeding:

1. What is Mr. Virasami's income for purposes of determining his support obligations?

2. What child support, if any, does Mr. Virasami owe to Ms. Virasami?

3. What spousal support, if any, does Mr. Virasami owe to Ms. Virasami and should it be paid in a lump sum?

4. What contribution should Mr. Virasami be required to make to the payment of the children's special and extraordinary expenses?

5. What are the parties' respective net family properties and what equalization payment, if any, is owed by one of them to the other?

6. What costs are payable?

ANALYSIS AND EVIDENCE

Child and spousal support

a) Mr. Virasami's income

15Ms. Virasami has personal knowledge of Mr. Virasami's earnings. She prepared quotes and invoices for his business during their marriage. She estimates that his income exceeded $100,000 per year. I accept her opinion in this regard. In addition to the fact that her opinion is informed by the observations she made during their marriage, I find it to be consistent with the following additional evidence.

1. Ms. Virasami tendered an invoice dated August 9, 2007, (Exhibit "A" to her affidavit sworn July 30, 2012) showing that Mr. Virasami charged $65 per hour for his labour, or $5,200 for 8 days of work (80 hours) from July 14 to 26, 2007. That hourly rate translates to $162,500 on an annual basis ($650 per day x 250 work days per year [365 - 104 weekends and 11 statutory holidays]).

2. In order to qualify for the mortgage of $406,900 that Mr. Virasami obtained from the Scotia Mortgage Corporation, he likely had to demonstrate that he earned a minimum of $177,624, as appears from the Scotiabank's online "What Can I Afford" tool, the print-outs from which Ms. Virasami has tendered in evidence.

3. Ms. Virasami tendered the bank statements of V.H.M. Construction Inc. for the period from September 1 to December 31, 2008. These disclose debits of $35,868.37, which translates to $8,967.09 per month, or $107,605.08 on an annual basis.

4. Ms. Virasami tendered ten monthly statements from Mr. Virasami's business account (V.H.M. Construction Inc.) for 2008, showing deposits of $74,500. While this represents $89,400 on an annualized basis, this assumes that the deposits during the months of July and August amounted to the average of the remaining months, which is unlikely, having regard to the fact that construction trades are busiest during the summer months. I infer that the deposits for the full year would have amounted to in excess of $100,000.

5. Mr. Virasami did not produce his Notices of Assessment for 2011 through 2013. His Notice of Assessment for 2010 records his total income (Line 150) as $7,034 that year. His Notices of Assessment for the preceding three years record his income as $2,913 (in 2009), $8,500 (in 2008), and $12,580 (in 2007). Mr. Virasami's Notices of Assessment are clearly not an accurate reflection of his income which, according to Ms. Virasami, exceeded $100,000 and included a substantial cash component. In 2007, when his Notice of Assessment records total income of $12,580, he was making mortgage payments alone of double that amount ($2,078 per month). His mortgage payments at that level suggest an annual income of in excess of $100,000, assuming Mr. Virasami was spending approximately ¼ of his income on housing. Additionally, any income that Mr. Virasami earned that he did not declare to the Canada Revenue Agency, should be grossed up by 25% to arrive at the equivalent taxable income.

6. The Federal Child Support Guidelines provide that a court may draw an adverse inference against the parent or spouse who fails to comply with his disclosure obligation and impute an income to that parent or spouse in such amount as it considers appropriate.² A self-employed spouse has a positive obligation to provide a comprehensive record of gross income and expenses, and the court may draw an adverse inference if such information is not provided. I draw an adverse inference from Mr. Virasami's failure to make financial disclosure and conclude that such disclosure would not be favourable to him and would not rebut Ms. Virasami's opinion that his income exceeds $100,000 per year.

16Ms. Virasami states that Mr. Virasami swore one Financial Statement in the proceeding but she has not tendered it in evidence. I have therefore disregarded her counsel's submissions regarding that financial statement.

17Ms. Virasami obtained only some of Mr. Virasami's bank statements and those do not provide a sufficient basis from which to calculate his income. For example, the statements for his personal account from July to December 2007 disclose deposits of $37,757, but the remainder of that year's statements were not produced, nor were any of the statements for his business for that year.

18Based on the foregoing, I impute an income of $100,000 per year to Mr. Virasami.

b) Child support

19All three children were attending school and residing with their mother until May 2009, when Matthew graduated. Alyssa and Nicholas continue to reside with their mother while they attend school. They are economically dependent on their parents by reason of their post-secondary studies and are "children of the marriage" within the meaning of the Divorce Act. The interruptions in their studies resulted from factors beyond their control and during the intervening period, they were engaged in activities that were reasonably directed towards the continuation of their studies. The only interruption of any length was in Alyssa's schooling, which is accounted for, in large part, by Mr. Virasami's failure to pay her fees for her B.Sc. in nursing program as he had promised to do. This resulted in her losing her place in the B.Sc. program, which required her to delay her continuation of studies and enter a lengthier program later. Based on the jurisprudence I reviewed in Rotondi, I find that notwithstanding the interruption in their schooling, Alyssa and Nicholas have continued to be "children of the marriage" throughout the period from their graduation from high school to the present.³

20Based on the income of $100,000 which I have imputed to Mr. Virasami, the Federal Child Support Guidelines provide that his child support obligations from the date of separation are as follows:

1. For the 13 month period from April 1, 2008, when Mr. Virasami left the matrimonial home, to May 31, 2009, all three children were "Children of the Marriage" and primarily resided with Ms. Virasami. Mr. Virasami's child support obligation for that period, pursuant to the FCSG, is $1,825 per month for three children for a total of $25,550 ($1,825 x 13 months).

2. From June 1, 2009 to April 1, 2015, Alyssa and Nicholas have been in their mother's care. Mr. Virasami's child support obligation for that period is therefore $1,404 per month, for a total of $99,684 ($1,404 x 71 months).

21Based on the foregoing, Mr. Virasami owes Ms. Virasami child support in the amount of $125,234, less credit for amounts collected pursuant to the order of Coats J. dated February 27, 2009. Having regard to the minimal amounts collected since 2009, I calculate pre-judgment interest on the average of ½ of the full amount due, at the statutory pre-judgment interest rate of 3.3% applying to actions commenced in the 3rd quarter (as the proceeding was commenced August 20) of 2008, pursuant to s. 128 of the Courts of Justice Act. On this basis, the pre-judgment interest owing is $14,464.53 ($62,617 x 3.3% x 7 years).

c) Spousal Support

22Ms. Virasami suffered economic disadvantage as a result of her marriage to Mr. Virasami and her separation from him. When Mr. and Ms. Virasami married, Ms. Virasami was only 22 years old. Their first child was born when she was 24. Their three children were wholly dependent on her for meeting their needs. Mr. and Ms. Virasami separated after 21 years of marriage.

23During their marriage, Mr. and Ms. Virasami travelled to Florida, Guyana, and New York. Mr. Virasami bought furniture and household appliances. They dined out together twice a week at restaurants.

24Since the parties' separation, Ms. Virsasami's lifestyle has drastically declined. She is able to dine out only once per month. She was not capable, with an income of $51,554.64 per year, of carrying the costs of the household for herself and the children.

25Mr. Virasami made the mortgage payments on the matrimonial home, in the amount of $2,078 per month, until August 2008. After he stopped making the payments, Scotia Mortgage Corporation began Power of Sale proceedings against Mr. and Ms. Virasami. Mr. Virasami did not defend the proceeding, which resulted in a default judgment against him. Ms. Virasami paid the carrying costs and legal costs to delay the eviction of her and her children, and finally entered into Minutes of Settlement with the mortgagee whereby she agreed to vacate the property by February 1, 2014. Scotia Mortgage Corporation agreed to pay Ms. Virasami surplus proceeds of sale in the amount of $30,000, but these were exceeded by other encumbrances and the costs of the sale.

26Mr. Virasami made no voluntary payments of support. The only amounts that Ms. Virasami received were collected by the Family Responsibility Office from its enforcement of Coats J.'s order. The account statement from the Family Responsibility Office, tendered at the hearing, discloses that arrears of $6,471 accrued by July 1, 2012, out of a total of $7,708 due pursuant to the order. That is, only $1,237 was collected during the first three and a half years from the time the order was made. The arrears increased to $10,696.13 by September 1, 2014.

27During the marriage, Ms. Virasami wanted to take a course leading to accreditation as a real estate broker but the time she was required to commit to helping Mr. Virasami with his business, spending 2 hours per night, 2 nights per week, in addition to maintaining her own full-time employment with the Government, did not permit her to do so. Ms. Virasami postponed her own career advancement in order to further Mr. Virasami's career. She suffered economically as a result of this arrangement, while Mr. Virasami benefitted by being able to devote his time to obtaining accreditation as a plumber, electrician, carpenter, and contractor, and developing experience and skills in those trades. Compensatory considerations therefore entitle Ms. Virasami to spousal support.

28Having regard to Mr. Virasami's disregard of past court orders and his failure to pay any child support pursuant to the order of Coats J. from February 2009, a lump sum payment of spousal support is appropriate. This will limit Ms. Virasami's need to interact with Mr. Virasami and will reduce in some measure Mr. Virasami's ability to frustrate an order for spousal support.

29Based on the parties' 21 year marriage, I find that the most appropriate amount of spousal support lies mid-way between the mid-point and the upper end of the range resulting from applying the Spousal Support Advisory Guidelines. Based on Mr. Virasami's imputed income of $100,000 per year and Ms. Virasami's income of $45,347 on the date of separation, and based on Mr. Virasami paying child support for 3 children, the mid-point was $200,753 and the high end of the range was $270,611. The point that is mid-way between these amounts is $235,682.

30Based on Mr. Virasami's imputed income of $100,000 and Ms. Virasami's income of $51,555 in 2013, and based on Mr. Virasami paying child support for two children, the mid-point spousal support payable under the SSAG is $178,657 and the high end of the range is $258,725. The point that is mid-way between these amounts is $218,691.

31The average of the mid-way points for the first year of the parties' separation and for the period since May 2009 is ($235,682 + $218,691) /2 = $227,186.65. I find this to be the fairest amount for a lump sum payment of spousal support.

32I calculate pre-judgment interest on spousal support at the average amount owing from time to time, which I find to be $113,593.33, being ½ of the total owing at the present time. Pre-judgment interest on this amount at the statutory rate of 3.3% for the 6 years and 8 months that have elapsed since the application was issued amounts to $24,990.53.

33I find that Mr. Virasami is capable of making a lump sum spousal support payment. The $100,000 income that I am imputing to him, as requested by Ms. Virasami, is a conservative amount, significantly less than the $162,500 he is capable of earning on regular work days alone, at the hourly rate of $65 he has charged his customers. It is also less than the $177,624 he would have been required to earn in order to qualify for his mortgage loan from the Scotia Mortgage Corporation.

34Mr. Virasami has been able to buy several properties, secure financing from them, without Ms. Virasami's knowledge or consent, and to transfer them to others in non-arm's length transactions.

1. On September 27, 2005, he granted a mortgage on the matrimonial home at 5480 Whitehorn Avenue to the Bank of Nova Scotia without Ms. Virasami's knowledge or consent, by falsely swearing that Ms. Virasami had released her interest in the property. He never accounted to her for the net proceeds of the financing, which I find amounted to $121,187.83.

2. On April 20, 2006, Mr. Virasami further encumbered the matrimonial home with a mortgage to Rakesh Sharma in the amount of $22,600, again without Ms. Virasami's knowledge or consent, by falsely stating that Ms. Virasami consented to the transaction.

3. On June 25, 2007, he further encumbered the matrimonial home with a mortgage to the Scotia Mortgage Corporation in the amount of $406,930.50, again with. The mortgage falsely stated that Mr. Virasami was not a spouse.

4. Ms. Virasami was not aware of any of the above-mentioned mortgages when they were granted. She discovered them only after the parties' final separation in October 2007.

35Mr. Virasami, besides owning the matrimonial home, owned properties at 48 Fallingdale Crescent in Brampton, and at 29 Bruce Beer Drive in Brampton. On October 25, 2007, less than a month after the parties separated, Mr. Virasami sold the Fallingdale property to his nephew. On June 26, 2008, Mr. Virasami transferred the Bruce Beer property to his girlfriend. Ms. Virasami regards both transfers, with justification, as fraudulent conveyances intended to put the properties "out of her reach." She notes that Mr. Virasami has also transferred other assets, including funds in bank accounts, into his girlfriend's name, and has refused to produce the documents necessary for Ms. Virasami to trace the funds. In particular, she notes that he has never given her an accounting of his use of the funds he received from the mortgages that he placed on the matrimonial home, nor of the funds he received from the transfer of the Bruce Beer property and the sale of the Fallingdale property.

36On August 15, 2008, approximately four months after moving out of the matrimonial home, Mr. Virasami bought a commercial property at 111 Victoria Street in Welland Ontario. He failed to produce the records necessary to enable the court to determine how he acquired this property or what equity he owns in it.

37Having regard to Mr. Virasami's income and the properties he has been able to acquire and dispose of since the parties' separation, I find that he is capable of making a lump sum spousal support payment to Ms. Virasami.

d) Equalization of Net Family Property

38As noted above, Mr. Virasami owned three real properties on the date of separation, all three registered in his names alone. The matrimonial home at 5480 Whitehorn Avenue in Brampton was assessed at a value of $509,000 in an MPAC property assessment as of January 1, 2008. Mr. Virasami transferred the property at 48 Fallingdale Crescent to his nephew Akbar Zahid, for $313,500 on October 25, 2007. He transferred the property at 29 Bruce Beer Drive to his girlfriend, Arlyn Ardio, for $235,000 on June 26, 2008. Having regard to the fact that the transfers of the latter two properties were to his nephew and girlfriend, respectively, I find that the stated sale prices are likely less than fair market value, but I accept Ms. Virasami's submission that these values be accepted as the values of the properties on the date of separation.

39Mr. Virasami owned a 1990 Aerostar to which Ms. Virasami attributes a value of $12,000 on the date of separation. On the date of separation, it was 17 years old. In the absence of evidence as to its value of the vehicle on the date of separation, I am not prepared to accept the value which Ms. Virasami attributes to either Mr. Virasami's Aerostar, or her own 2000 Pontiac Sunfire, which she says was worth $9,000, or $3,000 less than the Aerostar, even though it was a decade newer. In the absence of evidence as to their respective values, I conclude that the two vehicles had comparable values in October 2007, and therefore disregard them in my calculation of the parties' respective net family properties.

40Ms. Virasami acknowledges that on the date of separation, she held a chequing account in her name with a balance of $500, and an OPSEU pension that was worth $113,461.

41Mr. Virasami held a chequing account at the CIBC (No. 75-85837) with a balance of $1,355, a BMO RRSP (No. 10875457) with a value of $1,950.47 (as of July 4, 2003, being the last date for which Mr. Virasami produced documentation), and an AIC RRSP with a value of $1,097.59 (as of June 30, 2002). Ms. Virasami attributes to Mr. Virasami a value of only $1,008 to his 100% interest in VHM Construction Inc. She bases that value of the balance sheet that Mr. Virasami filed with the company's T2 corporation income tax return for 2008, which shows a shareholder equity of $1,008. While this value is likely under-stated, I accept this as the value of Mr. Virasami's interest in the company, as Ms. Virasami has proposed.

42Ms. Virasami acknowledges that her property on the date of marriage had a negative value of $20,610.22, based on the fact that she had debts of $82,110.22, which exceed the $61,500 balance of her bank accounts, savings, securities and pensions. The fact that a negative value of marriage day assets has the effect of reducing the claimant's deductions, and increasing her net family property on the date of separation, and reducing the equalization payment she is owed, was confirmed by the Court of Appeal in Nahatchewitz v. Nahatchewitz,⁴ in 1999, and in Belgiorgio v. Belgiorgio, in 2001.⁵

43I find that Mr. Virasami owes Ms. Virasami an equalization payment in the amount of $156,658.62, based on the following calculation:

1. Mr. Virasami's Net Family Property:

(a) Mr. Virasami's assets on the date of separation:

1. 5480 Whitehorn Avenue: $509,000

2. 48 Fallingdale Crescent: $313,500

3. 29 Bruce Beer Drive: $235,000

4. CIBC Chequing account: $1,355.00

5. BMO RRSP: $1,950.47

6. AIC RRSP: $1,097.59

7. VHM Construction Inc.: $1,008.00

8. Cash (from increased mtge): $121,187.83

Total assets: $1,184,098.89

(b) Mr. Virasami's debts on the date of separation:

1. Scotia Mortgage Corp: $405,288.38

(5480Whitehorn Ave)

2. CIBC Line of Credit (50%): $77,500.00

3. Royal Bank of Canada: $200,556.54

(48 Fallingdale Cr.)

4. Matteo & Valeria Palandra: $144,388.67

(29 Bruce Beer Drive)

(c) Mr. Virasami's deduction for net

assets on date of marriage: $40,000.00

Total deductions: $867,733.59

(d) Mr. Virasami's Net Family Property: $316,365.30

($1,184,098.89 - $867,733.59)

2. Ms. Virasami's Net Family Property:

(a) Ms. Virsasami's assets on the date of separation:

1. Chequing account: $400

2. OPSEU Pension: $113,461

Total assets: $113,861

(b) Ms. Virasami's debts at separation:

1. CIBC Line of Credit (50%): $77,500.00

(c) Net assets on date of marriage: ($20,610.22)

Total deductions: $56,889.78

(d) Ms. Virasami's Net Family Property: $ 56,971.22l

($113,861 - $56,889.78)

Equalization payment owed by Mr. Virasami

to Ms. Virasami ([$316,365.30 - $56,971.22] ÷ 2): $129,697.04

Pre-judgment Interest owed as of April 1, 2015: $29,960.02

($129,697.04 x 3.3% x 7 years)

e) Special Expenses of the children

44Ms. Virasami has incurred the following expenses up to the date of the hearing (September 30, 2014), which I find to be special and extraordinary expenses, based on the fact that they were reasonable, having regard to the expectations that the parties had for the children's education before they separated, and their collective income:

$3,268 Alyssa's post-secondary school educational expenses as of November 2013.

$1,330 Alyssa's wisdom teeth extractions ($1,630 total, less $300 reimbursed from employment benefits).

$4,676 Nicholas' tuition and related expenses at George Brown for September 2013.

$1,230 Nicholas' wisdom teeth extractions ($1,530 total, less $300 reimbursed from employment benefits).

$199 Nicholas' eye care/eyeglasses ($299 total, less $100 reimbursed from employment benefits).

$10,703 Total

45In addition to the $4,676 referred to above (consisting of $2,607 paid for first semester and $2,069 for second semester), Ms. Virasami, or Nicholas, paid an additional amount of $1,100 for books and supplies and $506 for an additional course. These expenses shall be deemed to have been paid from the $1,600 that Nicholas saved from his employment to apply to his own educational expenses. I make no deduction for amounts that Nicholas received from OSAP (Ontario Student Assistance Program), as this amount is a loan that must be re-paid, and therefore represents simply a deferral of payment of the expenses to the future.

46Ms. Virasami's share of the above (net) expenses of $10,703 is 66%, based on Mr. Virasami's imputed income of $100,000 and Ms. Virasami's income of $51,555. Ms. Virasami shall contribute 34% to the children's special expenses. Based on the foregoing percentages, Mr. Virasami's contribution to the expenses listed above is $7,063.98 ($10,703 x 66%).

47Ms. Virasami acknowledges that Mr. Virasami paid the following special expenses for the children:

$239.41 Matthew's school supplies

$2,152.00 Matthew's tuition at Sheridan College for 2007-08

$2,213.20 Matthew's tuition at Sheridan College for 2008-09.

$4,604.61 Total

48Ms. Virasami's share of the above-noted expenses was $1,565.57 (34% x $4,604.61). This amount should be deducted from the amount Mr. Virasami owes to Ms. Virasami for the expenses she paid. Mr. Virasami shall therefore reimburse to Ms. Virasami $5,498.41 ($7,063.98 - $1,565.57). Pre-judgment interest on this amount shall be paid on the average amount outstanding from time to time, which I find to be ½ of the total amount, from April 1, 2008. On this basis, the pre-judgment interest owing is $1,270.13 ($5,498.41 x 3.3% x 7 years).

49Additionally, Mr. Virasami shall pay 66% of the expenses Ms. Virasami incurs from September 30, 2014, onward, until Alyssa and Nicholas complete their respective programs at George Brown College.

CONCLUSION AND ORDER

50For the foregoing reasons, it is ordered that:

1. Mr. Virasami shall pay the following amounts to Ms. Virasami:

(a) Child support in the amount of $125,234 from the date of separation to March 31, 2015, less credit for any amounts collected since February 27, 2009 pursuant to the Order of Coats J.

(b) Pre-judgment interest on child support in the amount of $14,464.53.

(c) Lump sum spousal support in the amount of $227,186.65.

(d) Pre-judgment interest on spousal support in the amount of $24,990.53 to March 31, 2015.

(e) Equalization payment of $129,697.04.

(f) Pre-judgment interest on the equalization amount in the amount of $29,960.02 to March 31, 2015.

(g) Contribution to the children's s. 7 expenses to September 30, 2014, in the amount of $5,498.41, plus pre-judgment interest of $1,270.13 to March 31, 2015.

(h) Costs on a full recovery basis, which I fix at $5,883, inclusive of H.S.T. and disbursements, based on the Bill of Costs, filed.

(i) Pre-judgment interest on costs from September 30, 2014, to March 31, 2015, in the amount of $97.07 (3.3% per year x $5,883 x 6 mos.)

2. Mr. Virasami shall, in addition to the foregoing amounts, pay to Ms. Virasami, commencing April 1, 2015:

(a) Child support for Alyssa and Nicholas in the amount of $1,416 per month until they complete their current programs at George Brown College;

(b) 66% of the children's special and extraordinary expenses, within 30 days of receipt of an estimate or invoice issued by the service provider;

3. Mr. Virasami shall forthwith obtain a policy of life insurance with a face value of not less than $750,000, naming Ms. Virasami as irrevocable beneficiary, in trust for the children, as security for his child support obligations under this order. Support shall be a first charge on Mr. Virasami's estate if he dies without the said life insurance policy being in effect, with Ms. Virasami named as irrevocable beneficiary.

4. It is ordered that the Divorce Order issue upon Ms. Virasami completing the necessary filing with the Court and upon payment of filing fees, if any. Upon completion of the said steps, the Divorce Order shall issue, to become final in 31 days.

5. Unless the Support Order and Support Deduction Order are withdrawn from the Office of the Director of the Family Responsibility Office, the Support Order shall be enforced by the Director, and amounts owing under the Support Order shall be paid to the Director, who shall pay them to the party to whom they are owed.

Price J.

Footnotes

1. 1Divorce Act, R.S.C. 1970, c. D-8, s. 2
2. 2Federal Child Support Guidelines, S.O.R./97-175, s. 19 and 23. Duffy v. Duffy 2009 NLCA 48, paras. 22 and 29; Guillena v. Guillena, 2003 NSSF 6
3. 3Rotondi v. Rotondi, 2014 ONSC 1520, paras. 28 to 41
4. 4Nahatchewitz v. Nahatchewitz 1999 ONCA 787, 1 R.F.L. (5th) 395; [1999] O.J. No. 3154 (QL) (Ont.C.A.)
5. 5Belgiorgio v. Belgiorgio, 2001 ONCA 32756, [2001] O.J. No. 4533, 23 R.F.L. (5th) 74, 111 A.C.W.S. (3d) 537 (C.A.), affg 2000 ONSC 22733, [2000] O.J. No. 3246, [2000] O.T.C. 556, 10 R.F.L. (5th) 239, 99 A.C.W.S. (3d) 291 (S.C.J.)