COURT FILE NO.: FS-12-000076500-000
DATE: 2015 07 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JYOTI OBEROI a.k.a. JYOTI BALA KHATRI
Applicant
- and -
ASHOK OBEROI
Respondent
Subodh Bhardwaj, for the Applicant
Unrepresented, for the Respondent
HEARD: January 20 to 23 & 26, July 24, 2015
REASONS FOR JUDGMENT
FAIRBURN J
Overview
[1] Jyoti and Ashok Oberoi were married on October 28, 1986. They had three children before they separated on July 12, 2011. I was informed on the first day of trial that their custody issues had been settled. Sole custody was granted to the Ms. Oberoi on the terms agreed to by the parties. This left the following issues to be determined:
(1) divorce
(2) imputed income to Mr. Oberoi;
(3) child support, including from the date of separation;
(4) section 7 expenses;
(5) life insurance for Mr. Oberoi, designating the two younger children as beneficiaries; and
(6) equalization of net family property.
[2] What follows are my reasons in respect to each of these issues.
Contextual Facts
[3] The parties had a long and difficult relationship. They were joined through an arranged marriage. They have three children, one of whom is an adult, and the other two born on November 19, 2001 and October 23, 1998, meaning these children are currently 13 and 16 years of age. There is no dispute the children have lived with the applicant, Ms. Oberoi, since the date of separation. Nor is there a dispute about the date of separation – the valuation date – being July 12, 2011.
[4] Ms. Oberoi testified that at the outset of the marriage, she worked on and off at various jobs. In June 1996, she obtained employment with Rogers Communications. She worked with Rogers for a number of years, but eventually went on a leave of absence which resulted from stress that she says was largely created by Mr. Oberoi. She testified that, among other things, Mr. Oberoi was controlling in the following ways:
he controlled all finances within the family;
when she needed to make purchases for the family or herself, including the purchase of groceries, she would have to obtain cash from him;
she did not have access to bank accounts except when he would temporarily provide her with a bank card and instruct her about how much money to remove from the bank, after which she would return the card;
she was not permitted to handle the mail;
Mr. Oberoi kept a post office box for which she did not have a key;
he kept the mail, bills and all financial documentation locked in a room for which she did not have a key;
he did not tell her how much he earned;
although she would ask, she did not have a sense of what he did for a job;
he would sometimes leave the home wearing a suit and say he was off to a breakfast meeting;
he once travelled to India on business;
he would pick the clothes she was to wear to work in the morning, including her undergarments;
at one point Mr. Oberoi told her that he was investing $5,000 per month in a project in Hong Kong; and
when the couple bought their home in September 2005, she had no idea where the down payment came from.
[5] Mr. Oberoi testified and denied that he was controlling and, in fact, suggested that Ms. Oberoi was every bit as involved in the financial and other family decisions as he was. He suggested that he and Ms. Oberoi were joint decision makers as it related to all financial matters. Mr. Oberoi also suggested that he was the victim of verbal and physical violence at the hands of the Ms. Oberoi. He acknowledged that, at times, he would reciprocate with violence and verbal abuse.
[6] He testified that the complainant had a key to the room where all important documents were contained. He said that he discussed all financial matters with his wife. He never hid anything from her. He also testified that Ms. Oberoi had a key to the mailbox.
[7] I find that Ms. Oberoi was a truthful witness. She was careful in her testimony. She took time to understand and then answer questions. Under cross-examination, she demonstrated patience and respect. She was steadfast on important aspects of her evidence and was not shaken. Her evidence hung together nicely.
[8] Of particular note is how she performed in cross-examination on numerous matters over which she had received no notice or disclosure. Despite the Family Law Rules governing this litigation, and a specific order of Wein J., dated May 27, 2013, that required Mr. Oberoi to make financial disclosure, he failed to do so. Instead, he waited until Ms. Oberoi’s examination-in-chief was over, and he had commenced his cross-examination, to produce the documents he considered relevant to this litigation.
[9] Many of the documents had never been seen by Ms. Oberoi before. While Mr. Oberoi suggested that he may have sent some of the documents by mail to Ms. Oberoi’s counsel, I was informed by counsel that she had not seen them before. I accept this to be the case.
[10] Despite the failure to disclose, and the breach of Justice Wein’s order, I allowed Mr. Oberoi to cross-examine on the documents. While he did not have a good excuse for his failure to disclose in a timely way, I determined that the interests of justice supported his use of the documents. As a remedy for the late disclosure, and with Mr. Oberoi’s consent, a brief recess was taken, permitting Ms. Oberoi’s counsel to look though the documents and meet with her client for a short while. The trial then continued with cross-examination of Ms. Oberoi on these freshly disclosed matters.
[11] Despite the fact that she had not previously seen the documents with which she was confronted, Ms. Oberoi provided clear and unequivocal evidence. She appeared unfazed by the documents put to her and, interestingly, said that she did not recognize many of them, including some documents purporting to be loan agreements she had apparently signed. The documents she was not sure about, she said she had no recollection of having seen before. She was a calm, confident, reasonable and careful witness. I found her to be entirely credible.
[12] As for Mr. Oberoi, for the reasons found below, I find that he lacked in credibility on many fronts.
Issues to be Determined
(i) Divorce
[13] There is no prospect of a resumption of cohabitation between the parties. They have been separated for more than one year. A divorce judgment will issue.
(ii) Imputed Income to Mr. Oberoi
Facts
[14] Before determining the correct level of child support, I must first determine Mr. Oberoi’s income level or, at a minimum, his potential to earn income.
[15] On his own admission, Mr. Oberoi is a well-educated man. He has a masters degree in accounting and commerce from a university in Delhi. He also completed computer programming courses from Humber College, where he attended for a year or a year-and-a-half. He completed one to two semesters at York University. He disputes none of these things.
[16] Ms. Oberoi filed Mr. Oberoi’s LinkedIn profile. Mr. Oberoi does not dispute that it is his profile or that he is aware of its existence on the Internet. It suggests that he holds the position of Director, Global Operations and Executive Management Zintas Capital Research Group. The profile suggests that, in the past, he has held various important positions, including Senior Vice President of International Consulting Group and Director at Data Management Services.
[17] The LinkedIn profile adds that Mr. Oberoi has an even further level of education than he admitted to in his evidence and that he belongs to various business organizations. It outlines some events that he is said to have been involved in, including one bringing together “150 [plus] decision makers”. Moreover, Mr. Oberoi’s business card shows him as a “management consultant”. He does not deny this is his card.
[18] He also has a “Shaddi.com” profile in the name of “Ashok K”. Mr. Oberoi acknowledges that this is his profile and that Shaddi.com is a personal partnering website. This profile refers to the fact that he has a masters in commerce, is a corporate executive in Toronto, and earns $150,000 to $200,000 annually.
[19] Mr. Oberoi testified that he is aware of both his LinkedIn and Shaddi.com profiles, but that they do not represent reality. He said that both are fake profiles. In terms of the Shaddi.com profile, he said that a friend of his created the profile in an attempt to assist Mr. Oberoi in moving on with his life. He testified that the reference to his income being so high is not true, but only a “projection”.
[20] While I find as a fact that Mr. Oberoi does not earn the level of income his Shaddi.com profile suggests, or hold all of the important positions that his LinkedIn profile suggests, his decision to make these profiles available on the Internet, for others to read, speaks to his credibility. On his own admission, these profiles contain blatant lies. They are clearly designed to encourage others to believe the lies. From a credibility perspective, this has an impact on my assessment of Mr. Oberoi’s indifference toward veracity and truth.
[21] Mr. Oberoi testified that Zintas Capital does not even exist. In an effort to support this statement, he filed a Certificate of Non-Registration from the Ministry of Government Services dated January 7, 2015, showing there is no “expired record of a registration under the Business Names Act”. The difficulty is that the name search was for “Zintas Capital”, whereas the name reflected on the LinkedIn profile is “Zintas Capital and Research Group”. I take no comfort from this corporate search to establish that this company does not exist.
[22] Mr. Oberoi says that he had virtually no business income at any time, but I do not believe this to be the case. He testified that he has always worked jobs that paid only $10, 12 or 13 dollars per hour. He testified that the maximum income he ever received was less than $17,000 in a year. He worked at various call centres, in a data centre, at a collection centre, and so on. He said he “aspired” to be ambitious, and there were projections that he could start self-employment, but he “never succeeded” and it has remained that way to this day.
[23] He said that in or around 2010 to 2011 he started to receive medical insurance and then started receiving funding from the Ontario Disability Support Program. He testified that he has been on ODSP for two years and is receiving $742 per month. Mr. Oberoi testified that this is currently his sole source of income.
[24] I do not entirely believe Mr. Oberoi. I have looked at the tax records that he has provided. I have also compared them against his Form 13.1 Financial Statement, sworn February 27, 2013. I have also considered them against his testimony.
[25] Mr. Oberoi testified that he has not worked for at least two years. His 2012 T1 Income Tax and Benefit Return suggests that his employment income was $723.07 for the year. His employment insurance and other benefit income was $4,158.35 for the year, resulting in a total income of $4,881.42. This return was not signed until June 28, 2014.
[26] Despite this low level of income for 2012, and his claim that he has not worked for at least two years, Mr. Oberoi claimed on his February 27, 2013 Financial Statement that he had a self-employment income of $1,800 per month. In the same statement, he provided an expense sheet suggesting that he rents an office, buys office supplies, maintains a business phone, buys gas and insurance for work and so on. His business expenses apparently total $1,840.00 per month.
[27] When confronted in cross-examination with his Financial Statement, and its clear inconsistency with his viva voce evidence, he said that this was just a “projection” because he was trying to “start self-employment”. According to Mr. Oberoi, this amount reflects what he thought he would make in self-employment, but not what he did make. While Mr. Oberoi testified that he had no income from his business(es) at any point, I do not believe this to be the case. Rather, and consistent with Ms. Oberoi’s observations about Mr. Oberoi’s breakfast meetings while dressed in suits, his claim about investing money in Hong Kong, and his travel to India on business, I find that he has been and remains engaged in business. I further note that, contrary to Justice Wein’s May 2013 order, Mr. Oberoi never produced copies of all pages of his passport. I am left to wonder whether there is something on those pages that suggests further business travel.
[28] Mr. Oberoi also presented two letters dated August 1, 2014 and January 14, 2015 from Dr. Edred Flak, an associate professor with the University of Toronto and medical doctor working in the Department of Psychiatry at Mount Sinai Hospital. Ms. Oberoi did not object to Mr. Oberoi filing these letters, but took the position that little weight should be placed on them. Having regard to Ms. Oberoi’s position, I admitted the letters and allowed them to be marked as exhibits. It is unclear to me whether Dr. Flak has any special training in psychiatry. He signs his correspondence “MD, FRCPC”.
[29] The letters suggest that Dr. Flak has been seeing Mr. Oberoi since May 2013 and that he suffers from depression arising from the breakdown of his marriage. While the letters suggest that Mr. Oberoi’s sleep, energy and problem-solving skills have been adversely impacted, and that he is unable to work, it is unclear when and how the condition may pass and what steps Mr. Oberoi has taken to overcome the condition. It is also unclear to me what Dr. Flak’s qualifications are for offering this opinion.
[30] The August 1, 2014 letter of Dr. Flak refers to the fact that Mr. Oberoi has “crying spells” even when talking to people, such as his “clients”. Of course, this comment is in direct conflict with Mr. Oberoi’s evidence that he has not conducted any business at all and has never succeeded in conducting business. Indeed, and as above, Mr. Oberoi’s position is that he has not worked in two years and has only been collecting ODSP. The apparent inconsistency between Mr. Oberoi’s evidence and the comment in Dr. Flak’s letter gives me more reason to treat Mr. Oberoi’s evidence with suspicion.
[31] In contrast with the Dr. Flak letters, and having had the opportunity to observe Mr. Oberoi for a number of days at trial, I am impressed by his organizational skills, his energy and his ability to represent himself. While he does appear to have some physical limitations that caused a few breaks in the trial, he is an impressively articulate man, capable of expressing his thoughts and displaying a clear ability to think, strategize, and communicate. As a self-represented litigant, I was struck by his abilities, many of which contradict the content of Dr. Flak’s correspondence.
The Law on Imputed Income
[32] Barring exceptional circumstances, such as unavoidable health issues, a parent cannot evade child support obligations by being unemployed or under-employed. Under-employment occurs where a parent chooses to earn less than he or she is capable of earning. Where a person is unemployed or under-employed, s. 19(1)(a) of the Federal Child Support Guidelines allow a court to impute income in an amount it “considers appropriate in the circumstances”.
[33] In order to impute a level of income, there is no need to find a specific intent to avoid child support obligations: Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731 (C.A.), at paras. 25-6 [Drygala]. Where income is imputed to one of the parties to the litigation, there must be a “rational basis” for the amount settled upon: Drygala, at para. 44; Fraser v. Fraser, 2013 ONCA 715, at paras. 83-84. Settling upon a correct level of income should engage a rational thought process, grounded in evidence and bearing in mind considerations about what is reasonable, having regard to the age, education, experience, skills and health of the parent: Drygala, at paras. 44-45.
Law Applied to the Facts
[34] In Mr. Oberoi’s case, I have no doubt that he has made and continues to make more income than he has acknowledged to this court. While I do not find that he makes anything close to the amount that he suggests on Shaddi.com, I find that he makes more than what he has declared.
[35] At the end of the day, though, I need not resolve the issue as to what Mr. Oberoi has been earning. Regardless of whether he is unemployed, I am satisfied that Mr. Oberoi is under-employed. Ms. Oberoi is prepared to accept, and suggests that I accept, an imputed income of $40,000. I agree. Bearing in mind his level of education, computer skills, his articulate nature which I had the advantage of witnessing first-hand, his LinkedIn and Shaddi.com profiles, I accept that he is in a position to obtain a job or work on his business and earn at least this amount of money. As such, I impute to him an income of $40,000.
[36] I find that he has either been earning at least this much or has been in a position to earn at least this much since the date of separation, July 12, 2011. As such, I also find a retroactive imputed income of $40,000 to the date of separation.
(iii) Child Support to the Date of Separation
[37] The parties have two children who remain entitled to child support. They have resided exclusively with Ms. Oberoi since the date of separation. As I have imputed an income of $40,000, Mr. Oberoi is required to pay $579 per month in child support.
[38] Ms. Oberoi also asks for retroactive child support. Despite being separated since July 12, 2011, and having been ordered by Andre J. on January 10, 2014 to pay $579 per month in interim child support, Mr. Oberoi has never paid any child support.
[39] These orders should not be made automatically. The court must take a careful approach to imposing such awards, among other things, ensuring that they are not made where no discernible benefit will be realized by the subject children. For instance, in Titova v. Titov, 2012 ONCA 864 [Titova], Rouleau J.A. found that the trial judge had erred by failing to consider the fact that the children of the marriage were over the age of majority (within the meaning of s. 3 of the Federal Child Support Guidelines) at the time that the retroactive child support order was made.
[40] While the age of a child subject to child support is not determinative of the issue pertaining to retroactive support, it is a factor that must be taken into account. Other relevant factors include the following: the reasons for failing to provide the support; the conduct of the parents; the circumstances of the children; and any hardship that the retroactive award may entail. See Titova, at paras. 37-40; D.B.S. v. S.R.G., 2006 SCC 37, at paras. 95, 100-17.
[41] I have considered all of these factors. In this case, Mr. Oberoi has paid nothing in child support for the two children who have been living with their mother since the date of separation. They remain children of the marriage for purposes of the Federal Child Support Guidelines. They have been living off of Ms. Oberoi’s income, drawn from insurance and government assistance. Mr. Oberoi flagrantly disregarded Mr. Justice Andre’s order from January of 2014 and has provided no excuse for having done so.
[42] In all of these circumstances, I find that it is appropriate to impose a retroactive child support order and to require Mr. Oberoi to pay the arrears owing under Mr. Justice Andre’s order. As for the retroactive support, it covers the period from the date the application for child support was filed, November 19, 2012, to the date of Justice Andre’s order, January 10, 2014, which constitutes a period of approximately 13.7 months. The amount of retroactive support is $7,932.30. The amount owing in arrears under Justice Andre’s order is calculated from the date of his order, January 10, 2014 to now, which constitutes a period of approximately17.5 months. The amount owing in arrears is $10,132.50.
(iv) Section 7 Expenses
[43] Ms. Oberoi asks for s. 7 expenses in respect to braces for one of the children who is now sixteen years of age. As I understand it, this expense has already been paid by Ms. Oberoi in the amount of $2,500.
[44] For purposes of s. 7 expenses, the court must consider the best interests of the child and the reasonableness of the expense having regard to the means of each spouse and the spending pattern of the family: Titova, at paras. 23-25. Orthodontic treatment is a specifically enumerated ground upon which s. 7 expenses may be ordered.
[45] I am satisfied that orthodontic treatment qualifies as a s. 7 expense. I am further satisfied that the orthodontic treatment required by one of the Oberoi children, undoubtedly is in her best interests and something that should and can be accommodated by the parents.
[46] I am prepared to order s. 7 expenses for orthodontics. To the extent that the other Oberoi child, still under 18 years of age, may require orthodontic work, and to ensure that there is no need for Ms. Oberoi to return to court, I also order s. 7 expenses in respect to his orthodontic work if it is required.
[47] Section 7 expenses should be shared by the spouses in proportion to their respective incomes. I accept that Ms. Oberoi’s long term disability payments from Rogers Communications and her pension amounts, total $27, 707.88. I take this amount from the updated December 9, 2014 Financial Statement she filed prior to trial.
[48] Taking into account Ms. Oberoi’s income, including an assessment of her child tax benefits, and Mr. Oberoi’s imputed income, the apportionment of s. 7 expenses is 57% for Mr. Oberoi and 43% for Ms. Oberoi. This means that Mr. Oberoi must pay $1,425 toward the orthodontic work already done. On a go-forward basis, within 30 days of being presented with a proper bill of account from an orthodontist’s office, Mr. Oberoi shall pay 57% of all bills in respect to each of the subject children until they reach the age of 18 years.
(v) Life Insurance for the two children
[49] Ms. Oberoi requests that I order Mr. Oberoi to maintain life insurance, designating his two youngest children, who are still under the age of majority, as beneficiaries of the policy. Ms. Oberoi requests that the policy run until such time as Mr. Oberoi is no longer under an obligation to pay for child support.
[50] Child support orders flow under s. 33 of the Family Law Act. Section 34 of the Act sets out the powers of the court in respect to these orders. Section 34(1)(k) grants the court jurisdiction to make an order that requires the securing of the payment of support, either by a charge on property or “otherwise”. This provision permits a court to order that the payor spouse obtain and maintain life insurance so that child support can be secured for as long as the spouse is required to pay: Sebastiano v. Sebastiano, [2008] O.J. No. 2308 (S.C.J.), at paras. 49-50.
Both parties have life insurance policies that were purchased some time ago. Mr. Oberoi claimed on his financial statement that his policy has a face value of $250,000 and the children are named as the beneficiaries. To offset the adverse repercussions that would result if Mr. Oberoi were to pass away while he is still obligation to pay child support, I order that he maintain a life insurance policy of at least $250,000 and that his two children, born November 19, 2001 and October 23, 1998, be named the beneficiaries. This order will go until these children have completed school, including post-secondary education.
(vi) Equalization of Net Family Property
[51] Section 4 of the Family Law Act governs the equalization of net family property.
[52] The parties are far apart on what a proper equalization should look like. Ms. Oberoi filed her Financial Statement in 2012 and an updated one before trial. She also filed a Net Family Property Statement, as she was required to do under the Rules. She admits that the Net Family Property Statement is not complete because she is uncertain about a number of Mr. Oberoi’s debts and liabilities.
[53] Mr. Oberoi filed a sworn financial statement in February of 2013. He did not file an updated statement prior to trial. Nor did he file a Net Family Property Statement.
Evidence About Ms. Oberoi’s Net Family Property
[54] I have carefully reviewed Ms. Oberoi’s financial statement. I have also heard her testimony regarding the items listed in her statement. I am satisfied that she is being honest with respect to the amounts she sets out although, as I address later in my reasons, I do not accept that she has properly characterized a few of these amounts as “debts” at the date of valuation.
[55] She claims $4,650 in general household items at the time of separation. As it turns out, $4,500 of this is comprised of her share of household goods and furniture that Mr. Oberoi placed in storage when the matrimonial home was listed for sale. This was done without Ms. Oberoi’s knowledge or consent.
[56] After Ms. Oberoi and children moved into her brother’s basement, she made repeated requests to have her possessions returned. With the exception of a few items, nothing was returned. She was later informed by Mr. Oberoi that the items had been auctioned off by the storage company. While Mr. Oberoi says he did not financially benefit from the auctioning of these things, as the storage company got rid of them in order to pay back rent, he agrees that it happened and that they are no longer in existence.
[57] Mr. Oberoi suggests that Ms. Oberoi was in possession of $20,000 in jewelry on the valuation date, an amount he says that she failed to declare on her Financial Statement. I believe Ms. Oberoi is telling the truth when she says that she did not have this jewelry on valuation date or now. I do not believe Mr. Oberoi’s allegation to the contrary. While Mr. Oberoi confronted Ms. Oberoi with pictures that she confirmed were taken of her after separation, she disputed that she was wearing expensive jewellery.
[58] I have studied the pictures and they do not cause me any concern about Ms. Oberoi’s factual assertions. To the extent that she is seen wearing jewelry in the pictures, it does not look like expensive jewelry. I find that she did not have any valuable jewelry on valuation date and accept her evidence that the jewelry she is wearing in the pictures produced may have been things she bought for a few dollars from a store that sold inexpensive costume jewellery.
[59] In her financial statement, Ms. Oberoi claims that on the date of separation, she had $914.35 in various bank accounts.
[60] As for the matrimonial home, it was sold. After expenses were paid, the remaining proceeds from the home were held in trust pending the outcome of this trial. Ms. Oberoi says that the total amount in trust, when her original Financial Statement was prepared, was $64,630.16. Divided between the parties, they would each receive $32,315.08.[^1] In total, then, Ms. Oberoi says that she had the equivalent of $37,879.43 on valuation date.
[61] Ms. Oberoi says that the total amount of debt owed on valuation date was $65,736.38. This amount is comprised of five things:
(i) A Revenue Canada debt of $7,648.95. Ms. Oberoi testified that she was not aware that she owed Revenue Canada money until after she started to get documents gathered for purposes of this proceeding. It was at that point that she was informed about the debt and that it had been outstanding for some years. She was informed that notice of the debt had been sent to a post office box to which she did not have access.
(ii) She also claims that she has a $48,603.43 debt owing to Sun Life Assurance Company of Canada. She testified that over the course of the marriage, on a number of occasions, Mr. Oberoi had her authorize him to deal with Sun Life Assurance where she holds a life insurance policy with a face value of $250,000. She testified that Sun Life permitted a cash value to be taken from the amount of life insurance. On the date of separation, Ms. Oberoi testified that $48,603.43 had been removed from the total policy amount and that this constituted a “debt”.
(iii) Ms. Oberoi also has a Global Credit Collection debt owing from a Rogers bill in the amount of $1,861.00.
(iv) The parties agree that they jointly owe $2,623 arising from a court judgment.
(v) Ms. Oberoi also claims outstanding legal fees in respect to this matter in the amount of $5,000.
[62] Ms. Oberoi claims negative net family property in the amount of $27,856.95. In other words, she shows a net family property of zero.
Evidence About Mr. Oberoi’s Net Family Property
[63] Mr. Oberoi maintains in his financial statement that on the valuation date he had no possessions. While he says that there was a total amount of $2,500 in household goods and furniture, it had been auctioned off.
[64] Mr. Oberoi says that on valuation date he had savings totalling $369.02. In his financial statement, he claims that his share of the proceeds from the sale of the matrimonial home was $32,684.10. This is $369.02 higher than the amount claimed by Ms. Oberoi.
[65] In terms of debt, he claims that he and Ms. Oberoi had a joint debt in the amount of $78,000 at the time of separation. He says there was also a Bell Canada bill in the amount of $1,650 and a small claims court judgment in the amount of $2,623. He takes the position that these were joint debts and so attributes half to Ms. Oberoi, leaving him with a debt on valuation date of $41,961.50. Using these amounts, he came up with a negative net family property of $9,277.40, meaning zero for purposes of valuation.
[66] The main issue for determination of net family property involves Mr. Oberoi’s assertion that the couple accumulated a $78,000 debt during the course of the marriage. He testified that this money was spent on day-to-day living expenses. Ms. Oberoi disputes the existence of this debt. None of the alleged creditors testified.
[67] What follows is a break-down of Mr. Oberoi’s evidence respecting the debt and why I reject most of that evidence.
Shobana Lakkavally Loan
[68] Mr. Oberoi testified that he and Ms. Oberoi borrowed money from a Shobana Lakkavally. He produced letters from 2003, signed by he and Ms. Oberoi. The letters requested a loan that would be guaranteed by proceeds expected from a pending motor vehicle accident settlement. Ms. Oberoi said that she may have signed these loan letters, but has no recollection of having done so.
[69] Mr. Oberoi testified that Shobana Lakkavally loaned the couple $7,500 and that a great deal of interest was incurred over time. He produced an unsigned letter from someone with this name, written to Mr. Oberoi’s lawyer, saying that the total amount owed as of January 26, 2011, was $16,593.74.
[70] He also produced an email, purported to be dated March 15, 2012, from Mr. Oberoi’s lawyer to a “Shobana Lakka”, suggesting money was being held back out of the settlement funds, but that the original documentation for the loan was required before it would be paid out. Mr. Oberoi says that the documentation was eventually provided and that the debt was paid out of the funds after the date of valuation. The “promissory note” provided is only signed by “Ashok Oberoi” and acknowledges a debt to “Shobana Lak”.
[71] I have looked at the documents filed by Mr. Oberoi and, while there was no objection to their admission in this proceeding, I place little weight on them as I have little confidence in their veracity. Ms. Lakkavally’s name is spelled three different ways. While she purports to set out the amount of the debt in January 2011, the lawyer’s email purports to be March of 2012. The demand promissory note is authored by Mr. Oberoi only. Ms. Oberoi has no memory of signing the letters to the lawyer.
[72] Moreover, it is unclear to me as to when and how this debt, if it was a debt, was paid off. In 2008, and in order to avoid bankruptcy, the parties entered into a consumer proposal. During a consumer proposal, designed to restructure an individual’s financial obligations, disclosure must be made of one’s debt load. Mr. Oberoi agreed during cross-examination that he did not acknowledge this loan during the proposal. He had no explanation for not having done so.
[73] I do not accept that this was a debt that was incurred during the marriage.
Enbridge Collections Notice
[74] Mr. Oberoi filed an October 21, 2010 bill from Enbridge in the amount of $2213.77. In cross-examination he agreed that this bill had been paid off when the matrimonial home was sold. As such, I do not take it into account in respect to equalization.
Property Tax Bill and Mortgage Arrears
[75] Like the Enbridge bill, Mr. Oberoi filed a City of Mississauga tax bill in the amount of $15,668.17. He also filed correspondence between he and a law firm, suggesting mortgage arrears. In cross-examination, he agreed these matters were no longer an issue, having been taken care of when the matrimonial home was sold. As such, I do not take them into account in respect to equalization.
Debt Owed to Landlord
[76] Mr. Oberoi suggested that on valuation date, he owed $6,300 to a former landlord for a debt incurred while he and Ms. Oberoi lived in an apartment. He produced a Statement of Account that appears to have been produced in May of 2012, covering the dates January 1, 1991 to May 10, 2012. All that was filed to prove this debt was a statement of account listing numerous amounts, including a reference to $6,300. The difficulty is that this amount on the chart suggests that the $6,300 was paid on October 30, 2003.
[77] I am not satisfied that there is any money owing to a former landlord as of valuation date. Nor am I satisfied that this amount was paid by borrowing money from people listed below.
Two Boxes of Fashion Clothing
[78] Mr. Oberoi suggests that he incurred a $4,200 debt when two boxes of clothing were purchased for Ms. Oberoi. He produced a letter with the date April 21, 2007. It is signed by the parties. It suggests that the shipment was received by the parties and that a debt of $4,200, payable within six months, was outstanding.
[79] The letter is curiously lacking any company logo and does not list the items included in the “boxes” of clothing. Ms. Oberoi has no memory of the shipment of clothing or of having signed the document. The document is from a “B D Bokharia” yet the document is purported to have been signed by a “B D Bokhadia”. When this misspelling was pointed out to Mr. Oberoi in cross-examination, he said that it is the same person.
[80] Again, Mr. Oberoi did not claim this debt during the consumer proposal process. I find that there is no such debt.
Loans from “Sanjay Mediratta”
[81] Mr. Oberoi filed two letters, both dated January 15, 2015, and authored by “Sanjay Mediratta”. In these letters, Mr. Mediratta reminds the parties that they owe him a total of $30,000. The first letter, written to “Jyoti & Ashok”, refers to a loan of $20,000 that had been delivered to them in cash on June 8, 2008. The letter goes on: “You had committed to repay this within 6-8 months or as soon your house was sold. The loan carries an interest @ 6% per annum.”
[82] Mr. Oberoi also filed a letter, purported to have been signed by both he and Ms. Oberoi, dated June 10, 2008, acknowledging receipt of the $20,000 in cash as a loan from Sanjay Mediratta “resident of Dubai”. The letter conveniently references the fact that “[w]e both are jointly responsible for repayment of this loan [and] interest within the specified terms.”
[83] As for the second letter, it reminds Mr. Oberoi that he owes $10,000 that was loaned in 2012 and asks when the funds may be expected. (This is after the valuation date and so I do not take it into account in equalization.)
[84] I find that these letters are fabrications. I do not accept that the parties ever had a loan totalling the amount of $20,000 owing to a “Mr. Mediratta” from Dubai. I say this for a few reasons: (1) no proper loan agreement was produced; (2) no terms and conditions of the loan were produced; (3) I believe Ms. Oberoi when she testified that she had no knowledge of the loans; (4) the loan document confirming the receipt of $20, 000 in cash appears to be in Mr. Oberoi’s handwriting; and (5) Mr. Oberoi did not include this loan in his consumer proposal.
[85] Moreover, there is no explanation as to why Mr. Mediratta would loan Mr. Oberoi $10,000 in 2012, if he had not made good on his first $20,000 cash loan from 2008. I reject this amount as part of the equalization process.
700,000 Rupees
[86] Mr. Oberoi suggests that he and Ms. Oberoi entered into a loan agreement with Raksh Sahdev on June 8, 2008 for 700,000 rupees. According to Mr. Oberoi, the loan from Sahdev is worth $12,400 in Canadian dollars and was repayable at a rate of 9% per annum within 6-8 months of the date of the loan. Mr. Oberoi produced a loan agreement, purported to be signed by the parties. It refers to the fact that they are “jointly responsible for repayment of this loan [and] interest with in the specified terms”.
[87] Again, Ms. Oberoi testified that she has no knowledge of this loan. It was not claimed by Mr. Oberoi as part of the consumer proposal process. Like the others, I am not satisfied that this was a loan incurred during the marriage and do not take it into account in the equalization process.
Tibriwal Loan
[88] Mr. Oberoi said that he took a loan from a Mr. and Mrs. Tibriwal in the amount of $2,000. As proof he produced a cheque dated January 21, 2010. Nothing further was produced. Ms. Oberoi testified that she had no knowledge of this loan. There was no loan agreement produced. No demand letters. It is simply a cheque written to Mr. Oberoi.
[89] I reject Mr. Oberoi’s evidence that this was a loan and do not take it into account in the equalization of net family property.
Amount Owing to Auto Sales-Service Shop
[90] Mr. Oberoi suggests that there was a $2,800 debt owing to an automotive repair shop. He produced a bill as proof and said it had not been paid. It is dated April 14, 2011. Ms. Oberoi testified that she called the auto shop shortly after the bill had been issued and it had been paid in full. It is Ms. Oberoi’s understanding that the couple is free and clear as it relates to the auto shop, or at least in respect to work done prior to the valuation date.
[91] I do not accept that this debt exists.
Debt to Fei Xiao
[92] Mr. Oberoi testified that he incurred a $5,500 debt to a Fei Xiao during the course of the marriage. He said that he paid the amount back on August 12, 2011, but that the debt was owing at the time of valuation and should be taken into account during equalization.
[93] Ms. Oberoi testified that she has no knowledge of the debt. Other than a letter dated August 2, 2011, purported to be signed by Mr. Oberoi and a “Fei Xiao”, stating “this document confirms that Ash Oberoi has fully paid his debt to Fei Xiao in the amount of $5,500.00 including interest”, there is no other proof of this debt, what it was for, when it was incurred and what the terms were for repayment. In the circumstances, I am not satisfied that there was a debt, let alone one that was owing at the date of separation.
Debt Owed to Jasdeep Singh and Sunny Singh
[94] Mr. Oberoi says that he and Ms. Oberoi are jointly responsible for a $9,000 debt owing to Jasdeep Singh. He says that they are also responsible for a $7,000 debt owing to Sunny Singh. He was unable to produce any documentation with respect to these debts he says are outstanding.
[95] I find that there are no such debts and do not take them into account for purposes of equalization.
Dr. Abe Aberback
[96] Mr. Oberoi says he has an outstanding dental debt incurred during marriage of $3,200. He produced no documentation to support this claim. I do not take it into account for purposes of equalization because I do not believe that, even if Dr. Aberback is owed money, it is a debt for dental work done prior to valuation.
Small Claims Court Judgment
[97] Mr. Oberoi says that there is an outstanding amount owed on a small claims matter in the amount of $2,623. Ms. Oberoi agrees. This amount should be taken into account in equalizing property.
The Proceeds from the Matrimonial Home
[98] Ms. Oberoi filed evidence respecting the most recent valuation of the amount left in the trust account from the sale of the matrimonial home. In correspondence dated December 9, 2014, Kenneth Page of Page Martin LLP confirmed that $48,569.16 is sitting in the trust account. The monies taken from the trust account have been paid toward the lawyer and the consumer proposal that the parties entered into some years prior to separation.
Conclusion Respecting Equalization
[99] Based on the above findings of fact, I must now determine the net family property for each party. Section 4(1) of the Family Law Act defines net family property as the “value of all property (except excluded property) owned by a spouse on the valuation date (net of debts and liabilities) less the net value of property, other than a matrimonial home, owned by a spouse on the date of marriage”: Townshend v. Townshend, 2012 ONCA 868, at para. 11. I accept that neither party had any property coming into the marriage.
[100] Pursuant to s. 5 of the Act, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half of the difference between them.
[101] I have determined that Mr. Oberoi owes Ms. Oberoi money in the equalization process. I have arrived at the amount based on the following considerations and calculations:
Ms. Oberoi’s Net Family Property
I accept the value Ms. Oberoi places on bank accounts, household goods and vehicles on the date of separation. As well, based on the trust account information filed in respect to the proceeds of the sale of the matrimonial home, I also accept that Ms. Oberoi’s share of these proceeds, on valuation date, was $32,315.08. All amounts combined, I find that Ms. Oberoi had the equivalent of $37,879.43 on valuation date. I note that this is a very generous figure – generous in Mr. Oberoi’s favour – given that the household goods, that account for $4,500 of this figure, were largely auctioned off when they were under Mr. Oberoi’s exclusive control. This is an issue that I will return to later in my reasons.
I also accept the debt claimed by the Ms. Oberoi with respect to Revenue Canada in the amount of $7,648.95. As for the small claims court debt of $2,623, I find that this debt is to be shared by the parties. Ms. Oberoi’s half totals $1,311.50. I accept that she also had a Global Credit debt of $1,861 on valuation date.
As for Ms. Oberoi’s claim to a $5,000 debt in legal fees in this matter, I heard no evidence that these fees were incurred prior to the valuation date and, as such, I do not take this amount into account.
As for the insurance debt of $48,603.43 that is claimed by Ms. Oberoi, I do not accept that this was a debt at the time of valuation. After evidence had been completed in this trial, I asked the parties to return for clarification regarding this purported debt. Mr. Oberoi did so by telephone conference as he was out of the country and unable to attend in person. Ms. Oberoi attended with her counsel. Sun Life Financial produced documents for this appearance. As for Ms. Oberoi’s documentation, it suggested that the “loan value to be deducted” on valuation date was $45,077.77 and the net cash surrender value on that date was $4,905.13.
Counsel takes the position that on valuation date Ms. Oberoi’s “asset” was reduced by the amount of just over $45,000 and, as such, it acts as a “debt”. I do not agree. As Mr. Oberoi points out, and no one suggested to the contrary, the amount of cash paid out on the policy prior to separation does not get paid back. It is not a loan in the classic sense of the term. Rather, upon death, Ms. Oberoi’s beneficiaries will receive less than they would have received had cash value not been taken from the policy. As such, this is not a “debt”, but an asset that was depleted during the course of the marriage.
Notably, Mr. Oberoi specifically declined to request that the $4,905.13 net cash surrender value on valuation date be treated as an “asset”. While he may have done so because he too had a cash surrender value in his policy on valuation date, no information about this fact was elicited during the trial. In today’s terms, based on the information provided for purposes of the reappearance, Mr. Oberoi has a cash surrender value of $3,531.57 in his policy and Ms. Oberoi $15,728.81 in hers. These figures are not relevant to the equalization issue as they have changed since valuation.
Bearing in mind Mr. Oberoi’s position, I have not assigned either party an “asset” arising from their respective policies on the date of valuation. Nor do I treat the amount removed from Ms. Oberoi’s policy prior to valuation as a debt.
Resulting from the above analysis, I assign a net family property value of $27,057.98 to Ms. Oberoi as follows:
Assets and share of proceeds from matrimonial home = $37,879.43
Debt from Revenue Canada, Global Credit and small claims court = $10,821.45
Total = $27,057.98
Mr. Oberoi’s Net Family Property
Mr. Oberoi says that there was a total of $2,500 in storage at the time of valuation. I reject this suggestion. Instead, I accept Ms. Oberoi’s position that there was a total value of $9,000 in household items in storage at the time of valuation. As with Ms. Oberoi, I assign $4,500 value to Mr. Oberoi. I combine this amount with the amount that Mr. Oberoi admits he had in the bank, $369.02, for a total of $4,869.02. When this amount is added to Mr. Oberoi’s share of the proceeds from the matrimonial home (half of the amount taken from the trust account information filed in this proceeding), he had a total of $37,184.10.
As for Mr. Oberoi’s debts, and as discussed above, I do not accept the $78, 000 loans he says he had. I do accept that the parties had a joint small claims court debt on valuation date, his share of which is $1,311.50. Based on my credibility findings, as set out above, and as he provided no documentary proof, I do not accept that Mr. Oberoi has a Bell Canada bill in the amount of $1,650. In the result, I find his total debts to be $1,311.50.
Resulting from the above analysis, I assign a net family property value of $35,872.60 to Mr. Oberoi as follows:
Assets and share of proceeds from matrimonial home = $37,184.10
Debt from Revenue Canada, Global Credit and share of small claims court = $1,1311.50
Total = $35,872.60
Conclusion on Net Family Property
[102] Mr. Oberoi has a positive net family property of $35,872.60. Ms. Oberoi has a positive net family property of $27,057.98. The difference between these amounts is $8,814.62. As such, Mr. Oberoi owes Ms. Oberoi half of his net family property, meaning he owes her $4,407.31. This will be the equalization payment.
[103] As it relates to the household goods, Mr. Oberoi is responsible for Ms. Oberoi’s goods having been auctioned off. Having removed them from the matrimonial home without her permission, he had control over the goods. She testified that with very few exceptions, he refused to return her possession. She valued the total household possessions, which included her clothing, at $9,000. I accept this to be an accurate sum.
[104] When the $9,000 is split between the spouses, it means that $4,500 of Ms. Oberoi’s possessions were removed from the home and kept under Mr. Oberoi’s exclusive control. I am prepared to accept that he returned about $2,000 worth of property to Ms. Oberoi. On this basis I determine that he should pay to Ms. Oberoi a total of $2500 to compensate for some of the household items that were sold.
Final Order
[105] The following order shall issue:
(a) A divorce judgment is granted.
(b) Mr. Oberoi shall pay child support in the amount of $579 per month.
(c) Mr. Oberoi shall pay $7,932.30 in retroactive child support.
(d) Mr. Oberoi shall pay $10,132.50 in arrears.
(e) A support deduction order shall issue.
(f) The retroactive child support and arrears in child support shall be taken from Mr. Oberoi’s share of the funds from the sale of the matrimonial home and currently held in trust.
(g) Mr. Oberoi shall pay to Ms. Oberoi $1,425 for the orthodontic work already completed. This amount shall be taken from Mr. Oberoi’s share of the funds from the sale of the matrimonial home and currently held in trust.
(h) Upon being presented with a proper orthodontic bill of account, Mr. Oberoi shall contribute 57% of the payment toward all orthodontic work for the two children, currently 13 and 16 years of age, until they reach the age of eighteen years.
(i) Mr. Oberoi shall pay to Ms. Oberoi $4,407.31 in equalization. This amount shall be taken from Mr. Oberoi’s share of the funds from the sale of the matrimonial home and currently held in trust.
(j) Mr. Oberoi shall pay to Ms. Oberoi $2,500 to compensate for the loss of her possessions when he removed them from the matrimonial home and held them without her consent, after which they were auctioned off. This amount shall be taken from Mr. Oberoi’s share of the funds from the sale of the matrimonial home and currently held in trust.
(k) Mr. Oberoi shall maintain a life insurance policy with a face value of at least $250,000. This policy shall stay in effect until the children, currently 13 and 16 years of age, have completed school, including any post-secondary education they may pursue.
Costs
[106] The parties shall attempt to arrive at an agreement as to costs. If they are unable to do so, counsel to Ms. Oberoi shall provide costs submissions within fifteen days of release of this judgment. To the extent that Ms. Oberoi relies upon an offer to settle and bill of costs, and bearing in mind that Mr. Oberoi is unrepresented, these materials shall be provided with the written submissions. The materials shall be served on Mr. Oberoi by sending a copy by email. They may be filed with the court by sending a copy by email to my assistant.
[107] Mr. Oberoi will have fifteen days to respond in writing. He may also serve the applicant and court electronically.
[108] Written submissions as to costs shall not be more than five pages in length.
FAIRBURN J
Released: July 24, 2015
COURT FILE NO.: FS-12-000076500-000
DATE: 2015 07 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JYOTI OBEROI a.k.a. JYOTI BALA KHATRI
Applicant
- and -
ASHOK OBEROI
Respondent
REASONS FOR JUDGMENT
FAIRBURN J
Released: July 24, 2015
[^1]: Today the total amount in trust is $48,569.16, translating to $24,284.58 each. There is no dispute between the parties about this fact.