ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS-10-69454-00
DATE: 2015 11 24
BETWEEN:
Rupinder Bhandal
Applicant
Self-Represented
-and-
Chhinderpal Bhandal
Respondent
Daman Aujla/ Manny Chahal, Counsel for the Respondent
HEARD: May 28, 29, June 1-3, 2015
REASONS FOR JUDGMENT
LEMAY J
[1] The parties, Rupinder Bhandal (“Rupinder”) and Chhinderpal Bhandal (“Chhinderpal”) were married in India on February 2nd, 2004, and separated on November 11th, 2008. At the time of separation, there were two children, Arash born December 1, 2004 and Aikam, born April 27th, 2008.
[2] The divorce was severed from the corollary relief, and the parties were divorced by Order of Lemon J. on March 10th, 2011, with the divorce taking effect April 10th, 2011.
[3] This proceeding concerns the corollary relief that is being sought by both sides. It has a somewhat complicated history, as proceedings were originally started in the Ontario Court of Justice, before a divorce was requested. Once the divorce was requested, proceedings were transferred to the Superior Court of Justice.
[4] The one issue that remains from a procedural perspective is the question of disclosure, particularly financial disclosure. While significant documentation was received into evidence, other documentation is missing. I will review the disclosure history as part of my analysis below.
[5] In the sections that follow, I will outline the issue in dispute, as well as the background facts. Then, I will address each of the issues that have been raised by the parties.
The Issues in Dispute
[6] The issues in this case are as follows:
a) Who should have custody of the children, and what access should the non-custodial parent should be entitled to?
b) What is Rupinder’s income, and should income be imputed to him?
c) Based on the answer to the second question, what amount should be paid for child support? Is there retroactive child support owing in this case?
d) What amount, if any, should be paid for spousal support?
e) Should I grant an equalization of Net Family Property?
[7] Each of these issues requires me to look at a complex web of facts. The parties filed voluminous materials, and I have reviewed all of that material as well as the testimony of four witnesses. In the Applicant’s case, I heard from Rupinder, his brother Pargat Singh Bhandal (“Pargat”), and his cousin Davinder Grewal. In the Respondent’s case, I heard evidence from Chhinderpal. I have considered all of this testimony in coming to my decision. The testimony of all four witnesses was interpreted from Punjabi.
[8] At the outset, I should make some observations about credibility. I have significant difficulties with accepting the testimony of either Chhinderpal or of Rupinder without corroboration. On cross-examination, they both stated their positions and tried to argue their cases rather than actually answering the questions that were put to them. They also overstated the evidence, exaggerated the facts and claimed during the course of their evidence at trial that they had additional documents at home that they were prepared to bring to support whatever claim they happened to be making at the time. In short, both of them had significant frailties as witnesses.
[9] Therefore, in resolving credibility disputes, I have looked at the contemporaneous documents, as well as what the surrounding context would suggest is the truth, rather than relying solely on the testimony of either witness. This has made the fact-finding exercise in this case more complicated.
[10] The fact-finding exercise in this case has also been complicated by the fact that the financial records from both parties are incomplete. I will discuss that issue more fully below.
Background Facts
a) The Marriage
[11] As noted, the parties were married in India in February of 2004. They lived in India for a period of three months, and all was well. In the words of Chhinderpal, “he had a very good relationship with me.”
[12] The parties moved to Canada in February of 2005. Chhinderpal had previously lived in Canada. After the wedding, she sponsored Rupinder to come to Canada. When he arrived, he worked as a long distance truck driver.
[13] During the marriage, Chhinderpal took on more of the child rearing responsibilities because Rupinder was travelling for work at times. However, she continued to work outside the home. She testified that she worked as a labourer for cash, as well as performing other jobs outside the home.
[14] Then, in November of 2007, the couple went to California to work in a pizzeria called Mountain Mike’s. They spent five months working in this business, and neither of them reported any income from it. There are allegations that Rupinder had used family money to buy an interest in this business. I will return to this issue in the NFP discussion below.
[15] When Chhinderpal and Rupinder went to California, they did not take Arash with them. Instead, he remained with Rupinder’s parents in Toronto. There was also evidence that Arash was taken to India by Rupinder’s parents, in part so that Chhinderpal could continue to work outside the home.
[16] From this evidence, it was clear that Rupinder and his family expected Chhinderpal to continue to work outside the home after the children were born. It was also clear from the evidence that Chhinderpal was not happy with the prospect of working outside the home, or with the separation from Arash.
[17] The couple returned from California in April of 2008. Chhinderpal testified that she worked as a labourer for cash, so it was not clear to me where she worked after their return from California. Aikam was born in April of 2008, and Chhinderpal was off on maternity leave at that time.
b) The Separation and Subsequent Events
[18] The parties separated on November 11th, 2008. It is clear from the record that there was a serious domestic assault on that day. Chhinderpal testified that she was punched, kicked and dragged around the house. She clearly went to the emergency room that evening.
[19] Rupinder testified that the assault was a little fight, and that it had been exaggerated. In cross-examination, he also stated that this assault was in the past, and that even six years after the fact he was continuing to pay for this assault.
[20] There was clearly an assault that involved bodily harm. Rupinder acknowledged this during his cross-examination, and the emergency records support this conclusion. This is of great concern to me. Rupinder has not taken adequate responsibility for this assault, which is also of concern to me. It diminishes his credibility and raises questions about his suitability as a custodial parent.
[21] However, Chhinderpal’s comments about the assault are also of concern, as she is attempting to magnify the effect of the assault and claiming that it (rather than the car accident that happened shortly after separation) is the cause of her disability. This diminishes her credibility as well.
[22] Chhinderpal has asserted that the assault caused her to become disabled. This evidence must be weighed against the fact that Chhinderpal had a car accident shortly after separation. According to the opening statement filed by her counsel, this car accident, which was in January of 2009, resulted in a shattered left tibia, and rods in her leg. Although Chhinderpal’s evidence was not as clear on this point, it was clear that she was in the hospital for some months after this accident, and that the car accident has had a permanent effect on her. This is also clear from the OCL report.
[23] It is useful to list a selection of Chhinderpal’s evidence relating to the domestic assault in November of 2009, and compare it to the contemporaneous medical records:
a) She testified that Rupinder broke her fingers during the assault. However, the medical reports show that she had a swollen finger on her right hand and swelling on her left wrist.
b) In cross-examination she testified that Rupinder had broken her fingers and her right arm in the assault. There is no evidence to support this statement in the medical documents.
c) She testified that Rupinder hit her neck during the assault. There were no neck problems noted on the emergency reports.
d) She testified that she could not lift her arm as a result of the assault. The emergency reports show that she had injuries to her hands and wrist only, and that there were no shoulder injuries mentioned.
e) She testified that she was bleeding from the ear and the mouth. However, the medical reports do not show any active bleeding.
[24] The medical reports disclose that a serious assault took place, and that Rupinder is not acknowledging the seriousness of what took place. However, in reviewing the records, it is equally clear that Chhinderpal has exaggerated the effects of this assault.
[25] On the evidence before me, I find as a fact that Chhinderpal is not disabled as a result of the assault in November of 2008. Indeed, her lawyer’s opening statement makes it clear that her ongoing disability is as a result of the car accident in early 2009. By the time of the car accident in January 2009, it appears as if Chhinderpal had recovered from the assault.
[26] This car accident took place in January of 2009. It was serious, and resulted in Chhinderpal having pins put into her leg. I was not, however given any details of the accident. As a result, on the limited evidence I have, I can only conclude that it was disabling to her. I have no medical evidence to assist me in understanding the prognosis for her return to work.
[27] There was also evidence from Chhinderpal during the marriage that she was subject to domestic violence from both Rupinder and his family. Any allegation of this nature is serious, and needs to be taken seriously. However, Rupinder has denied some of the allegations made by Chhinderpal, while other allegations were not even put to him in cross-examination. In addition, there was discussion in the OCL report that the Children’s Aid Society was aware of these incidents and had records. However, these records were not filed in the materials before me. Given that there are credibility issues with both parties, given Chhinderpal’s exaggeration of the effects from the November 11th, 2008 assault, and given the absence of any corroborating evidence that I was shown, I cannot make any findings on whether or not these assaults actually took place.
(Decision continues with the same wording and structure through paragraphs [28] to [153], concluding with:)
LEMAY J
Released: November 24, 2015
COURT FILE NO.: FS-10-69454-00
DATE: 2015 11 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rupinder Bhandal
Applicant
- and -
Chhinderpal Bhandal
Respondent
REASONS FOR JUDGMENT
LEMAY J
Released: November 24, 2015