ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-12-74943-00
DATE: 20151015
B E T W E E N:
ANJUM NAVEED
A. Katz, for the Applicant
Applicant
- and -
ZAHIDA NAVEED
K. Dosanjh, for the Respondent
Respondent
HEARD: June 2, 2015
REASONS FOR JUDGMENT
André J.
[1] The issues in this trial are equalization of net family property, spousal support and child support. The respondent, Zahida Naveed (“Ms. Naveed”), seeks a disproportionate share of the net family property pursuant to s. 5(6) of the Family Law Act, and ongoing child and spousal support. The applicant, Anjum Naveed (“Mr. Naveed”), maintains that there is no evidentiary basis for an unequal sharing of the net family property, or for the quantum of spousal and child support Ms. Naveed is seeking.
BACKGROUND FACTS
[2] Mr. Naveed was born on December 12, 1966, in Pakistan.
[3] Ms. Naveed was born on April 1, 1977, in Pakistan.
[4] The parties were married on January 17, 1999.
[5] The parties separated on March 8, 2012.
[6] The parties have two children, Nathan Naveed, born July 21, 2002, and Noel Naveed, born on February 27, 2008.
[7] Both children of the marriage reside with Ms. Naveed. Ms. Naveed lives in the matrimonial home and wishes to retain the home to raise her children.
[8] On June 30, 2014, Justice Ricchetti fixed Mr. Naveed’s annual income at $57,000 based on two pay stubs which Mr. Naveed provided for the month of December 2013. Justice Ricchetti ordered that:
(1) Mr. Naveed must pay child support in this amount of $856 per month commencing February 1, 2014, for Nathan Naveed, D.O.B. July 21, 2002, and Noel Naveed, D.O.B. February 27, 2008, on an interim, without prejudice basis.
(2) Mr. Naveed must pay 50% of the mortgage of the matrimonial home, which was approximately $2,300 per month, and 50% of the utilities for a total amount of $1,350 per month commencing February 15, 2014.
[9] The parties separated on March 8, 2012, following a physical altercation. Mr. Naveed was subsequently charged and convicted of assaulting Ms. Naveed.
PARTIES SUBMISSIONS
Ms. Naveed’s Submssions
[10] Ms. Naveed submits that Mr. Naveed controlled the couples’ finances during the course of the marriage. Prior to separation, she discovered that Mr. Naveed had an extramarital affair with a female in Pakistan. She then asked Mr. Naveed to leave the matrimonial home. Mr. Naveed paid all the family’s expenses for eighteen months post-separation but ceased paying without any explanation. She has subsequently been paying all expenses related to the matrimonial home and the care of the couple’s children.
[11] Ms. Naveed maintains that she has discovered, since the separation, that Mr. Naveed made a number of cash advances to himself for his own benefit and has given significant sums of money to family members and to his girlfriend in Pakistan.
[12] She submits that Mr. Naveed owes her the following sums of money:
(1) Money sent to Mr. Naveed’s nephew in June 2009 - $21,050
(2) Money sent to Mr. Naveed’s brother, Noel Qaiser, in August 2010 - $4,800.33
(3) Cash advance from TD Visa on August 31, 2010 - $4,000
(4) Refinancing of matrimonial home in October 2011 - $55,395.37
(5) Money sent to girlfriend through Western Union - $2,680.55
(6) Money sent to girlfriend and others following separation - $12,000
(7) Insurance payment for dental expenses incurred by the respondent but retained by Mr. Naveed - $11,000
Total Owed by Mr. Naveed to Ms. Naveed - $115,867.70
[13] Ms. Naveed submits that this debt owed to her justifies an unequal division of the net family property in this case.
Mr. Naveed’s Submissions
[14] Mr. Naveed disputes that he owes any debt to Ms. Naveed. He maintains that on the contrary, he assumed most of the debt of the marriage after the couple separated.
[15] Mr. Naveed maintains that what Ms. Naveed has erroneously described as cash advances are in fact loans from institutions to repay credit card debts and other debts. He submits that Ms. Naveed has grossly exaggerated the amount of money he sent to his girlfriend or to his relatives.
[16] Mr. Naveed submits that there is no air of reality to the quantum of income which Ms. Naveed claims that he earns. He maintains that in 2013, he sold the truck which he owned and has worked as an employee since then. He maintains that rather than the $157,000 which Ms. Naveed claims that he earns, he currently earns $56,000 annually.
[17] Mr. Naveed maintains that because he paid 100% of all the couples’ expenses following separation, Ms. Naveed is not entitled to any spousal support.
ANALYSIS
[18] This trial raises the following issues:
(1) What is the quantum of net family property?
(2) Should Ms. Naveed receive an unequal share of the net family property?
(3) Should Mr. Naveed be required to pay Ms. Naveed spousal support and if so, how much and for how long?
(4) Should Mr. Naveed be required to pay Ms. Naveed child support and if so, how much?
(5) Should Mr. Naveed be required to pay s. 7 expenses?
ISSUE NO. ONE: Quantum of Net Family Property
[19] Section 5(1) of the Family Law Act provides that when spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3.
[20] Section 5(6) of the Family Law Act provides that the court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalization of the net family properties would be unconscionable, having regard to:
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5(6).
[21] A determination of the net family property of each spouse involves the following:
(a) Determine what property each spouse owned on the valuation date.
(b) Determine the property value after making any applicable deductions and exemptions under s. 4.
(c) Determine if one spouse’s net family property is less than the other, if there is a difference in net family properties s. 5(1) provides that the difference between the two shall be equalized by dividing it equally and half the difference shall be paid to the other spouse with the lower net family property, subject to step 3.
(d) The court must consider whether given the considerations listed in s. 5(6), it would be unconscionable to equalize the net family properties, if not the payments shall be made as described in step 2: see Berdette v. Berdette (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513.
[22] For the purposes of this case, the valuation date is the date when the parties separated with no reasonable prospect of reconciliation. Mr. Naveed and Ms. Naveed agree that this date is March 8, 2012.
EQUALIZATION OF NET FAMILY PROPERTY
Matrimonial Home
[23] There is a divergence of opinion regarding the value of the 3077 square foot matrimonial home located at 2 Rockstep Court, Brampton. Ms. Naveed’s appraisal, done by a local company called Hendren Appraisal Services, indicates the value of the property as of April 21, 2015, at $690,000. The company relied on the sale price of properties in the same neighbourhood, none of which had a basement apartment. Furthermore, the other properties examined were much smaller than the matrimonial home, one of them being 2400 square feet.
[24] On the other hand, Mr. Naveed has received an appraisal by a company called the Mississauga Appraisals Services, dated May 13, 2015, which values the matrimonial home at $770,000, after comparing it to homes in the parties’ neighbourhood with finished basements.
[25] Mr. Naveed presented evidence that he built two basement apartments comprising of two bedrooms, two washrooms, a living room and kitchenette in the basement of the matrimonial home after purchasing it. Mr. Naveed testified that he paid a contractor approximately $52,000 in installments for the work done. Ms. Naveed disputes this and testified that Mr. Naveed told her that he paid $10,000 to the contractor.
[26] I accept Mr. Naveed’s testimony concerning the amount he paid to have two rental apartments in his basement. First, I can take judicial notice of the fact that in this city, it would cost significantly more than $10,000 to build two apartments, each with a kitchen, washroom and separate living room. Second, Mr. Polmarnie Jailall, the contractor who built the apartments, testified that he was paid approximately $52,000 for the work he did at the matrimonial home. He also testified that not only did he build the apartments, he also built a walk-out from the basement, a concrete pathway from the back entrance to the driveway on both sides of the home and a fence. Mr. Jarlall was not shaken in cross-examination about the work he did or the amount he was paid. I therefore find that this work significantly increased the value of the Naveeds’ matrimonial home.
[27] Given that Ms. Naveed’s appraisal relied on comparisons of smaller homes than that belonging to the parties, the fact that Mr. Naveed and Ms. Naveed had a finished basement and third, the fact that the appraisal done by Mississauga Appraisal Services was more recent than that relied upon by Ms. Naveed, I value the matrimonial home at $770,000.
... (continues exactly as in the source through paragraphs [28]–[125] and the full disposition)
André J.
Released: October 15, 2015