CITATION: Mirzai-Asl v. Borojerdi-Azar, 2016 ONSC 1495
COURT FILE NO.: D24776/14
DATE: 2016/03/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Behnaz Mirzai-Asl, Applicant
AND: Davood Borojerdi-Azar, Respondent
BEFORE: Mr. Justice P. R. Sweeny
COUNSEL: Maria G. Lucarelli, for the Applicant
Alden L. Birman, for the Respondent
HEARD: February 12, 2016
E N D O R S E M E N T
Introduction
[1] The respondent moves for interim spousal support, and the applicant moves for an order that the respondent pay child support, contribute towards s.7 expenses, and for partition and sale of the matrimonial home.
Background
[2] The parties married in Iran on July 8, 1983. The parties separated in 2012. There was some dispute as to the date of separation. The respondent thought that the parties would reconcile. The applicant did not. The applicant asserts a separation date of September 28, 2012. Since the date of separation, the respondent has been living in the matrimonial home and the applicant has been living in a home in Fenwick, Ontario. The matrimonial home is jointly owned by the applicant and respondent. The home in Fenwick is owned by the applicant alone.
[3] There are two children of the marriage: Behrouz, born October 29, 1984, is independent. Rouzbeh, born December 10, 1988, is 27 years old and has developmental disabilities and schizophrenia. He resides at Ontario Shores Mental Hospital in Whitby, Ontario and has been there since 2009. He receives ODSP benefits.
[4] The applicant has a PhD and is a professor in Middle Eastern studies at Brock University. She earned $115,000.00 in 2015. The respondent received an Engineering degree from the University of Texas in 1980. Just prior to moving to Canada, he had a good job as a supervisor in a phone company in Iran. The couple moved to Canada in 1997. The respondent has worked as an engineering technologist for many years. He first worked in Ottawa for Nortel for two years. He then returned to Toronto and worked at Flextronics for 10 years. During the time he worked for Flextronics, he also worked four hours per day at UPS. He was earning approximately $65,000.00 per year from both jobs. In 2014 he was laid off at Flextronics. He has since obtained a job working approximately 20 hours per week as a bus driver. He now earns approximately $45,000.00 per year.
[5] The parties have assets in Iran. The respondent comes from a wealthy family. He receives rental income from properties in Iran. The applicant sold a property in Iran. The respondent’s financial statement is not complete. He failed to disclose certain bank accounts. The applicant asserts that the respondent has certain cash deposits in his bank accounts which are not identified. He has funds to which he has access which are not disclosed. The respondent disputes this. Questioning has occurred and undertakings were given. Much of the material has been provided in fulfillment of the undertakings. However, the respondent still has outstanding undertakings.
[6] There are three issues to be addressed on this interim motion:
(1) Is the respondent entitled to interim spousal support and, if so, in what amount?
(2) Is the respondent liable to pay child support and s.7 expenses for the child of the marriage Rouzbeh and, if so, in what amount?
(3) Should there be an order for the immediate sale of the matrimonial home?
I shall address each of the issues.
Spousal Support
[7] The respondent seeks spousal support in the amount of $2,300.00. He asserts he is entitled to support because he supported the family during the marriage and the respondent was able to get a PhD and has established a career as a professor earning an excellent income. The applicant has not advanced in his career. He lost a full-time job through no fault of his own and now, at 59 years of age, it is difficult for him to find full-time employment in his field. He does not have professional engineering qualifications. He was only earning about $17.00 per hour at Flextronics. He earns more per hour at UPS, where he has significant seniority.
[8] The applicant says that there is no entitlement to support. The respondent has an education and a job. He has worked in his field for years. He has lost a job, but he can find another, and loss of his job is not related to the breakdown of the marriage. In any event, he earns $45,000.00 plus rental income per year. He has no need for the support.
[9] Entitlement to spousal support is governed by s.15.2 of the Divorce Act:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
…
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[10] In considering the authorities with respect to this matter, the following general principles arise in considering an order for interim spousal support:
(1) The interim support is to provide income for dependent spouses from the time proceedings are instituted until trial;
(2) The court need not conduct a complete inquiry to determine whether either party suffered economic advantage or disadvantage as a result of the relationship. That exercise is for the trial judge;
(3) Interim support is a holding order to maintain the accustomed lifestyle, if possible, provided the claimant can present a triable case for economic disadvantage;
(4) Assuming a triable case exists, interim support is to be based on means and needs. The merits of the case in its entirety must await a final hearing. See MacKenzie v. Flynn, 2010 ONCJ 184.
[11] In this case, I am satisfied that the respondent has presented a prima facie case for entitlement to spousal support. The respondent did work full-time throughout the course of the marriage. In fact, he worked a significant number of hours. The applicant has achieved significant financial and academic success. The applicant is 50 years of age and has the opportunity to increase her income over time. The respondent is 59 years of age and his career prospects are likely diminished. This is especially so since his previous work was at a modest $17.00 per hour.
[12] The respondent also has a need for support. This is based on the respondent’s financial statements, which shows a gap between income and expenses – approximately $12,000.00 per year. The applicant’s income is significant. Although she is on a sabbatical and earning only 80% of her income for the first six months, she will earn in excess of $100,000.00 this year.
[13] The applicant has suggested that income be imputed to the respondent. The respondent is working approximately 40 hours per week at two jobs. He lost his job through no fault of his own and immediately found alternate employment at a higher hourly rate, although significantly fewer hours. At this stage of the proceedings, I am not prepared to impute any income to the respondent.
[14] In the circumstances, considering the needs of the respondent, on an interim, without prejudice basis, I order spousal support payable by the applicant to the respondent in the amount of $1,500.00 per month commencing March 1, 2016. Any issues about entitlement to retroactive support are left for determination by the trial judge.
Child Support
[15] Rouzbeh is disabled and lives at Ontario Shores Hospital. He is in receipt of ODSP. There is evidence that the respondent has been contributing towards a registered disability savings plan (“RDSP”) on behalf of his son. The government also contributes to the RDSP. The respondent advised that he visits his son on a regular basis. He also provides clothing and other items for his son through the joint bank account.
[16] The applicant asserts she has spent significant amounts on clothing for her son. She also seeks reimbursement for approximately $11,000.00 dental expenses. With respect to the dental expenses, the respondent advises that the applicant did not provide those to him until July 2015. In the normal course, the insurance coverage afforded to both the applicant and the respondent covers 100% of the dental expenses incurred. The respondent, therefore, disputes the applicant’s claim for reimbursement. The applicant asserts that the respondent will not provide any refund he gets from insurance to the applicant.
[17] On the issue of child support, I decline to make any order with respect to child support at this time. This includes any determination of contribution to s.7 expenses. Child support, if any, may be determined at the trial in these proceedings. It is not clear what, if anything, is necessary to support Rouzbeh, and what, while beneficial, is not really necessary.
[18] On the issue of dental expenses, the applicant shall immediately provide the respondent with full details of the claims made to her insurer and provide the necessary documents for the respondent to submit the claim to his insurer. The respondent shall submit the claim to his insurer in accordance with the terms of the policy as soon as possible. The response from the insurer and any reimbursement received must be delivered to the applicant. The issue of any services not covered by insurance is left to be determined by the trial judge.
Sale of the Matrimonial Home
[19] The sale of the jointly held matrimonial home may be made under the Partition Act, R.S.O. 2990, c. P.4. The applicant seeks an immediate order for the sale of the matrimonial home. The respondent objects to this order. The applicant asserts the respondent will have to make a significant equalization payment owed to the applicant which must be financed from the sale of the matrimonial home. The respondent suggests that he may be prepared to buy out the applicant’s interest in the matrimonial home.
[20] In Martin v. Martin, 1992 7402, the Court held:
Although there is clear jurisdiction under the Partition Act to order the sale of the parties’ matrimonial home, I do not wish to be taken to have endorsed the wholesale issuance of these orders. In my view, an order directing the sale of a matrimonial home before trial should only be made in cases where, in all of the circumstances, such an order is appropriate. Orders for the sale of a matrimonial home made before the resolution of Family Law Act, 1986 issues (particularly the determination of the equalization payment), should not be made as a matter of course. See Binkley v. Binkley (1988), 1988 8717 (ON CA), 14 R.F.L. (3d) 336 (Ont. C.A.). In addition, spousal rights of possession (s. 19) and any order for interim exclusive possession should be taken into account.
[21] In the circumstances of this case, where the applicant and the respondent both live in homes which appear to be comparable in size and value, and each is making mortgage payments, it is appropriate that the parties continue to reside as they do until they finalize all property matters. Therefore, I decline to order sale of the matrimonial home at this time.
DISPOSITION
[22] In the result, an order to go as follows:
(1) The applicant shall pay to the respondent spousal support fixed in the amount of $1,500.00 per month commencing March 1, 2016.
(2) The applicant’s motion for child support and sale of the matrimonial home is dismissed.
[23] If the parties are unable to agree on costs, I will accept submissions in writing, limited to three pages, plus a Bill of Costs and any offers to settle, delivered to me at my chambers in Welland. The respondent to deliver submissions within 10 days and the applicant will have a further 10 days to respond.
Sweeny J.
DATE: March 1, 2016
CITATION: Mirzai-Asl v. Borojerdi-Azar, 2016 ONSC 1495
COURT FILE NO.: D24776/14
DATE: 2016/03/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Behnaz Mirzai-Asl, Applicant
AND: Davood Borojerdi-Azar, Respondent
BEFORE: Mr. Justice P. R. Sweeny
COUNSEL: Maria G. Lucarelli, for the Applicant
Alden L. Birman, for the Respondent
ENDORSEMENT
Sweeny J.
DATE: March 1, 2016