REASONS FOR JUDGMENT

scott j.

[1] These reasons are in addition and supplemental to the oral findings and subsequent final orders made on October 28, 2015 in this uncontested trial.

[2] The parties were married on October 26, 1992 in Pakistan. They have three children: Mehr Gilani, date of birth July 24, 1994, Abdul Haseeb Gilani, date of birth May 3, 1998, and Seyada Aaila Gilani, date of birth June 20, 2000. All of the children attend school full-time and remain dependent on their parents.

[3] During the marriage the family resided in Pakistan until 1997, Saudi Arabia until February 2008, and then Canada. They remained domiciled in Canada after the parties’ separation on July 5, 2013.

[4] The applicant wife commenced the application in July 2013. The respondent husband, while still residing in Canada, filed an Answer and attended a case conference in August 2014, thereby attorning to this jurisdiction. The respondent continued to correspond with the applicant’s counsel and acknowledged receipt of documents although he did not respond to a Request to Admit (Exhibit 2). He did not attend any further court appearances nor did he comply with temporary court orders for financial disclosure. His Answer was struck for oral reasons given on October 28, 2015.

[5] The respondent now resides in Pakistan and works there as a medical doctor. He earns or ought to earn $120,000 CAD per year. The respondent has purported to divorce the applicant in Pakistan (based on false information that the applicant also resides in Pakistan). He has allegedly remarried. He does not visit with, or pay support for, the children.

Child and Spousal Support

[6] Both parties are trained medical doctors. The respondent was successful in qualifying to practice medicine in Canada and while residing here took various additional university courses. In 2013 he was offered, but did not accept, a position in Alberta with Health Services for which he would have earned in excess of $103,000 annually. Instead in November 2013, he took a position in internal medicine at a hospital in Saudi Arabia. In 2014, he worked sporadically in Canada and traveled extensively to Saudi Arabia and Pakistan.

[7] As a result of her duties arising out of the marriage, the applicant did not have the opportunity to qualify to practice medicine in this country. She has been successful in obtaining full-time employment in an administrative position and currently earns approximately $40,000 a year at a Community Care Center in Toronto.

[8] Since the separation in July 2013, the applicant and the children have remained in the former matrimonial home (registered in the respondent’s name). The applicant has been solely responsible for caring for the children, one of whom has special needs, and meeting the financial obligations of the family.

[9] All of the children continue to attend school full-time. The eldest child is in University and resides with the applicant. She requires child support and assistance with her post-secondary education costs. The middle child has been diagnosed with Asperger’s Syndrome and Multiple Sclerosis. He attends high school full-time, but has additional transportation and medical expenses. The youngest child is also a full-time high school student and has physiotherapy, dental and eye glass expenses not covered by the applicant’s extended medical benefits.

[10] While the applicant is now employed full-time her wages are insufficient to meet the entirety of the needs of her core budget. She is entitled therefore to non-compensatory spousal support. In addition, given her duties during married cohabitation and the responsibilities she continues to discharge for her family, she is entitled to compensatory spousal support.

[11] The parties were married for over 20 years. Largely due to the respondent’s career plans, they traveled frequently and relocated internationally. The applicant’s career advancement was deferred as a result. In addition, she was responsible throughout married cohabitation for almost all of the childcare duties which were complicated due to the special needs of some of the children. For all these reasons it would be appropriate to consider the high range of the Spousal Support Advisory Guidelines calculation provided by counsel and filed in this proceeding.

[12] The respondent did not comply with various court orders to complete financial disclosure and specifically to provide updated corroboration of his year end income in the years 2014 and 2015. The evidence reveals that the respondent has the ability to earn income at a rate of at least $120,000 CAD. His income since separation shall be imputed at that amount.

[13] Consequently, the respondent shall pay to the applicant the table amount for three children of $2,159 per month commencing July 5, 2013 and in each month thereafter. In addition, the respondent shall pay the applicant 71.4% of the children’s s. 7 expenses, retroactive to the date of separation (i.e. July 5, 2013).

[14] Commencing July 5, 2013, the respondent shall pay the applicant spousal support in the amount of $1,200 per month until further order of the court.

Equalization of Net Family Property

[15] In this, as in many Uncontested Trials, the issue of full and frank financial disclosure remains elusive and ultimately impacts significantly the ability of a court to make a full and fair determination of the matter. The respondent purported on two occasions herein to complete a Financial Statement, both were significantly flawed, being incomplete, almost illegible, and with no corroboration.

[16] Most significantly, the respondent did not deny but provided no values for, a considerable asset base of real properties outside the jurisdiction. The respondent owns several properties/parcels of land in Pakistan:

(i) 1 property in Banigala in Islamabad;

(ii) 1 property in Karachi;

(iii) 4 properties in Hayatabad in Peshawar;

(iv) 2 properties (open land and a home on adjacent land) on Mecca Street in Abbottabad.

(Exhibit 2)

[17] Additionally, in oral evidence, the applicant was able to describe and provide some minimal corroboration of the existence of bank accounts and stock holdings that the respondent owned during married cohabitation. The amounts on deposit at the date of separation were unknown to the applicant.

[18] Finally, the respondent in his purported financial disclosure alleged the existence of an Ontario Student Assistance Program (OSAP) loan and perhaps a personal or familial loan owed by him at the date of separation. Again, no corroboration of the amounts of these obligations or arrangements for their repayment were ever filed by the respondent. Proportionately, these loans could in no way, balance the undisclosed net value of the respondent’s international landholdings. As it is his obligation in law to provide necessary valuations, the calculation of net family property has been determined with no estimates of or reference to, the above assets or debts of the respondent due to this lack of disclosure and corroboration.

[19] In contrast, the applicant’s net family property statement was supported by considerable primary source disclosure. Consequently, with the above limitations, the respondent owes the applicant at least an equalization payment of $80,892.24 as set out in the Net Family Property Statement attached hereto as Schedule B.

Post Separation Accountings

[20] The applicant having established entitlement and need sought the court’s assistance to obtain support immediately after the parties’ separation when the respondent failed voluntarily to provide necessary funds to sustain the family. Given the respondent’s stable employment and considerable financial resources in Pakistan, the payment of retroactive support as herein calculated will not cause undue hardship to him.

[21] Since the date of separation the applicant has maintained the family home with no contribution from the respondent. As this property is registered in the respondent’s name alone, he will receive the benefit of the increase in its value to date. The applicant has funded and filed a current appraisal of the property.

[22] Counsel for the applicant has calculated the carrying costs of the home since separation at $46,427.81 and seeks reimbursement to her client of that total amount.

[23] However, the applicant and children have had exclusive possession of this property since the date of separation. As the applicant has been awarded retroactive spousal support, she now has the ability to pay occupation rent for this accommodation. Occupation rent of $1,000 per month for 31 months (or $31,000) is fixed as this would be a proportionate charge to the entire costs to the respondent of maintaining his interest in this freehold property—to find otherwise would be to create a double counting of entitlements to the applicant.

[24] In summary, effective January 31, 2016, the respondent owes the applicant:

(i) $80,892.24 equalization payment;

(ii) $15,427.81 net matrimonial home expenses after occupation rent credit;

(iii) $66,929 retroactive table child support;

(iv) $13,988.14 retroactive proportionate s. 7 expense contribution;

(v) $25,070 retroactive net spousal support;

total: $202,307.19.

[25] The respondent is entitled to a credit for the amount of temporary child support paid to the applicant to date of $4,400, leaving a balance of $197,907.19 owing by him to the applicant.

Costs

[26] The applicant has been successful in virtually all of the claims sought by her in this application. She is entitled to costs pursuant to rule 24(1) of the Family Law Rules, O. Reg. 114/99 [FLR].

[27] Her counsel has provided a cost outline, calculated with a reduced hourly rate due to the nature of her retainer. This hourly rate is very low in comparison to counsel’s years of experience. The time spent by counsel is reasonable and proportionate to the complexity and importance of this matter to the parties. A review of the continuing record revealed that costs were awarded to the applicant or reserved at each court appearance. The disbursements incurred by counsel were appropriate. Counsel calculated her client’s costs (without reference to previous costs awards) at $11,143.86 inclusive of HST.

[28] The respondent’s litigation behaviour was not reasonable within the meaning of Rule 24 of the FLR. The respondent’s failure to provide financial disclosure or to comply with temporary court orders was consistent and had a profound negative effect on the timely and fair determination of this matter. It thereby constituted “bad faith” (see Fard v. Fard, 2002 61493 (ON SC), at paras. 12-13) and triggered the provisions of rule 24(8) of the FLR:

“If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.”

[29] The applicant shall be entitled, therefore, to full recovery of her costs from the respondent:

July 7, 2015 – previously ordered

$ 1,400.00

October 28, 2015 – previously reserved

$ 2,800.00

Counsel’s Outline of Costs

$11,143.86

Total fixed Costs (inclusive of HST and disbursements):

$15,343.86

Vesting Order

[30] The court has jurisdiction to grant vesting orders, generally pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and specifically herein, pursuant to s. 9(1)(d)(i) and s. 34(1)(c) of the Family Law Act, R.S.O. 1990, c. F.3. These latter two provisions give a court discretion to enforce payment of an entitlement either for an equalization of family property or an accumulated support order in appropriate circumstances (see Lynch v. Segal, 2006 42240 (ON CA), 82 O.R. (3d) 641).

[31] The respondent has not complied with previous temporary court orders. He has not provided disclosure of his financial resources. He has left the jurisdiction and established a new residence and perhaps a new family in Pakistan. He has paid little child support and has effectively abandoned his wife and children. The likelihood of his complying with the terms of this judgment and/or future court orders is low.

[32] The applicant, who continues to have the responsibility of providing for the three children of the marriage, should not be put to the expense or delay of attempting to enforce the provisions of this judgment.

[33] The respondent’s current equity in the former matrimonial home, described municipally as 31 Horton Street, Ajax, Ontario is $400,000, less mortgage balance owing of $189,557 (July 2015) for a net equity of $210,443. The respondent owes the applicant $197,907.19 (as per paragraph 25 above) and costs of $15,343.86 (as per paragraph 29 above) for a total of $213,251.05.

[34] Consequently, title to the former matrimonial home described above shall be vested in the applicant wife, Mariam Afridi, free from any right or claim of the respondent husband, Syed Imran Shah.

[35] The difference between the total owed to the applicant and the respondent’s net equity in the matrimonial home shall be ordered as child support arrears. Arrears of child support owed by the respondent to the applicant are fixed at $2,808.05 as at January 31, 2016.

[36] In addition to these Reasons for Judgment, the Final Order to go is set out in Schedule “A” attached hereto.

Justice Margaret Ann C. Scott

Released: March 21, 2016

Afridi v. Shah, 2016 ONSC 1971

Case Summary

REASONS FOR JUDGMENT

Child and Spousal Support

Equalization of Net Family Property

Post Separation Accountings

Costs

Vesting Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Legislation 6