CITATION: Jamil v. Iqbal, 2016 ONSC 2158

COURT FILE NO.: FS-12-76175-00

DATE: 20160401

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ZUBAIR JAMIL

A. Farooq, for the Applicant

• and -

SUMERA IQBAL

A. Medhekar, for the Respondent

HEARD: January 18, 19, 20, 21, 22, 24, 2016

REASONS FOR JUDGMENT

André J.

[1] The applicant father, Mr. Zubair Jamil (“Mr. Jamil”), seeks court orders for joint custody of the two children of the marriage, spousal support and child support based on an imputed income to him of $26,000 annually, an equalization of net family property and costs. On the other hand, the respondent mother, Ms. Sumera Iqbal (“Ms. Iqbal”), seeks sole custody of the couple’s two children, child and spousal support based on an imputed income to Mr. Jamil of $73,000, the equalization of net family property and other ancillary orders. Ms. Iqbal’s claim for retroactive child and spousal support from the date of separation to December 31, 2014, was the subject of Final Minutes of Settlement filed by both parties on consent.

BACKGROUND

[2] The 37 year old Mr. Jamil and the 34 year old Ms. Iqbal were married on July 19, 2005.

[3] The parties have two children, Saifaan Zubair was born on May 16, 2009, while Zohal Zubair was born on March 30, 2012.

[4] Mr. Jamil and Ms. Iqbal separated on September 11, 2012 after Ms. Iqbal left the matrimonial home. She left due to difficulties associated with caring for the children, cleaning the matrimonial home, cooking, and taking care of the myriad needs of Mr. Jamil’s parents who lived with them at the time.

[5] Mr. Jamil initiated divorce proceedings on October 5, 2012. Ms. Iqbal then moved back into the matrimonial home and stayed there for a few months. On January 8, 2013, Mr. Jamil brought a motion for access to the children.

[6] The Peel Regional Police Force charged Mr. Jamil in July 2013 with assaulting Ms. Iqbal. The court dismissed the charge in November 2014. The parties started texting each other on June 28, 2015 and continued to do so until January 2016.

[7] Mr. Jamil has only exercised access to the children on four separate occasions since May, 2015. His avowed reason for not seeing them more frequently is that he is presently unemployed and does not own a vehicle. Mr. Jamil claims that his parents are providing him with financial assistance.

COURT ORDERS

[8] On January 8, 2013, Justice Price made a number of orders on an interim and without prejudice basis. His endorsement included the following orders:

• the primary residence of the children shall be with Ms. Iqbal

• Mr. Jamil [shall have] access to the children, beginning January 2013, every Monday and Thursday from 12 noon to 6:00 p.m. and every Saturday from noon to 6:00 p.m.

• Pick-up of the children shall be by the parent whose time with the children is about to begin, at the home of the parent whose time with the children is about to end, unless the parties agree otherwise in writing and in advance

• Mr. Jamil shall enroll in a counselling program offered by the Children’s Aid Society and shall present proof of enrolment and attendance at the program.

[9] On August 11, 2014, Justice Trimble made the following order:

The Applicant husband shall pay spousal support and child support of $637 and $892 per month, respectively, based on an income of $60,000 for the husband and ODSP income for the wife of $4,116. These child and spousal support are payable effective August 1, 2014. Support shall be payable for the periods of September 1, 2012 to December 31, 2012, and July 1, 2013 to current. Arrears to the end of July 2014 are $14,380 for child support and $9,248 in spousal support, based on the income above. This is subject [to] readjustment at trial once final findings are made with respect to both spouses’ incomes. Family Responsibility office shall collect and pay support. SDO is to issue.

[10] On October 25, 2015, Justice Seppi made the following order:

(1) Mr. Jamil provide copies of all his bank accounts, business and personal statements and records of his income from September 2012 to the present within 30 days. Disclosure of all income documentation, including income received by the company, of which he is the sole shareholder, shall be provided for the years 2010, 2011 and 2012 within 45 days.

[11] The court also ordered the applicant to ensure that the financial needs of Ms. Iqbal and children were met and to keep the mortgage payments on the matrimonial home up to date.

[12] On June 27, 2014, Justice Tzimas ordered Mr. Jamil to provide the following disclosure as a condition for an adjournment:

b. The adjournment will be conditional upon the Applicant Mr. Jamil providing following documents on or before Friday July 4, 2014 to my office in proper financial disclosure brief form:

i. updated Sworn Financial Statement - form 13,1;

ii. copies of business bank accounts with RBC from October 2013 to current;

iii. statements of your CIBC Account from July 2012 to present, which has never been disclosed until you provided new credit report;

iv. income statements of the Corporation for years 2010, 2011, 2012 (as ordered by J. Seppi’s court order) and year 2013 and until current month for year 2014;

v. proof of your current income from January 2014 onwards from all sources;

vi. copy of all contracts with the Corporation to provide professional services including with IBM, since last 3 years;

vii. copies of your pay stubs or contract invoices from date of the contract in year 2013 to present; and

viii. details of Accounts you hold in Pakistan – either in sole or joint names, and its statements from last 3 years (including but not limited to Habib Bank).

[13] The parties filed Final Minutes of Settlement on consent on January 19, 2016. It provided that Mr. Jamil shall pay child and spousal support arrears for 21 months, based on an imputed income of $60,000. Total arrears payable by Mr. Jamil to Ms. Iqbal were fixed at $32,109 for the period ending December 31, 2014. The Minutes of Settlement also provided that Mr. Jamil’s share of the net proceeds of the sale of the matrimonial home was $39,650.12 and that Mr. Jamil shall pay the agreed amount of arrears, i.e. $32,109, from his share of the net proceeds of sale of the matrimonial home.

[14] Clause 11 of the Final Minutes of Settlement indicate that:

This consent for arrears issue shall be without prejudice to the mother’s claim for father’s [imputed] income for January 2015 onwards [for] child and spousal support purposes, and father’s claim for imputing of income.

ANALYSIS

[15] This trial raises the following issues:

(1) Should the court make an order for joint custody of the children?

(2) Should Mr. Jamil be ordered to pay child support to Ms. Iqbal and if so, how much?

(3) Should Mr. Jamil be ordered to pay spousal support to Ms. Iqbal and if so, how much?

(4) How should Mr. Jamil and Ms. Iqbal’s net family property be equalized?.

ISSUE NO. 1: Should the court make an order for joint custody of the children?

Legal Principles

[16] Both the Children’s Law Reform Act, R.S.O. 1990, c.C.12 (“CLRA”) and the Divorce Act, R.S.C. 1985, c.3 (2nd Supp) suggest that the determination of custody and access to children of the marriage must be based on the best interests of the child. Section 24(2) of the CLRA sets out the criteria to determine the best interests of the child while s. 16(8) of the Divorce Act directs the court “to take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” Section 16(10) of the Divorce Act also provides that in making an order for custody or access, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.”

Joint Custody

[17] In Ursic v. Ursic (2006) 2006 CanLII 18349 (ON CA), 32 R.F.L. (6th) 23, [2006] O.J. No. 2178 (C.A.), at para. 25, the Ontario Court of Appeal noted the following about when joint custody is unlikely to be ordered:

[25] Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children.

[18] In Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 194 O.A.C. 106, 249 D.L.R. (4th) 620, 10 R.F.L. (6th) 373, [2005] O.J. No. 275 (C.A.), at para 11, the Court of Appeal indicated that the younger the child, the greater degree of cooperation and communication between the parents is necessary for joint custody to be appropriate.

Evidence

[19] Ms. Iqbal was a student when she married Mr. Jamil in 2005. Upon completion of her studies she found a part time job at a branch of Future Shop. She worked there for two weeks and then found a job at another company. She worked there for two and a half months before being released. She subsequently worked at another company for three months, following which she found employment at a company called U.C. Baby. She got pregnant with her first child while working for this company. Mr. Jamil told her to remain at home when she became pregnant.

[20] Ms. Iqbal gave birth to Saifaan Zubair on May 16, 2009. She was the primary caregiver for the child while Mr. Jamil worked. Ms. Iqbal also testified and was not challenged on her testimony that Mr. Jamil frequently went out on weekend frolics with his friends.

[21] The couple’s second son, Zohal, was born on March 30, 2012, a few weeks prematurely. Significantly, Mr. Jamil could not recall this detail about the birth of the child while being cross-examined.

[22] Following the couple’s separation, Ms. Iqbal was the sole caregiver for the children. Mr. Jamil brought a motion for access in January 2013. Ms. Iqbal opposed this motion partly on the grounds that Mr. Jamil had mental issues and engaged in “self-destructive behaviour”. Mr. Jamil has successfully completed the counselling which he was ordered to take by Justice Price.

[23] Mr. Jamil had minimal contact with the children between July 2013, when he was charged by the Peel police, and August 2013, when the charge was dismissed in the Ontario Court of Justice. He has seen the children four times since May 2015. He and Ms. Iqbal had been text messaging and emailing each other from August 2015 to January 2016. Ms. Iqbal indicated in the messages that she still considers herself Mr. Jamil’s spouse. The emails contain details about the couple’s sex life. Mr. Jamil testified that the marriage is over. Ms. Iqbal testified that she was trying to salvage the marriage but can no longer do so, given that Mr. Jamil has publicized what she considered to have been private and confidential information about their lives.

[24] Undoubtedly, Ms. Iqbal has been the primary caregiver to the children. Mr. Jamil has played what can only be described as a minimal role in their care. He blames the fact that he has only seen them a limited number of times, despite being given access to the children, because he is presently unemployed and does not own a car. However, limited finances and the lack of a vehicle have not prevented him from going out with his friends on weekends.

[25] Neither has limited finances prevented him from enjoying what appears to be a Bohemian lifestyle. He testified that his parents give him $1,600 monthly to cover rent and food expenses. Since the couple’s separation, he has vacationed in Mexico on two occasions and has travelled to Pakistan on another two occasions, courtesy of his parents. Yet Mr. Jamil testified that he lacks the financial resources to meet with his children more regularly.

[26] The efficacy of joint custody depends on the couple having a record of communication with each other or the prospect of being able to do so in the future. Mr. Jamil and Ms. Iqbal have had an acrimonious relationship which culminated in criminal charges, later dismissed.

[27] The messages which they exchanged between August 2015 and January of 2016 may suggest that they can communicate together for the wellbeing of their children. However, I am sceptical about whether they can do this. The disclosure of these communications has strained the relationship between the two even further. These communications were not about the children; rather they were about the couple’s intimate relationship.

[28] In assessing the efficacy of joint custody, I should also consider the parties’ living circumstances. Mr. Jamil has endeavoured to keep the address of his residence a secret. He is unemployed. He claims that he resides in Mississauga, which is a considerable distance from Markham. The children attend school in Markham. In my view, the strained relationship between the parties and Mr. Jamil’s living circumstances make an order for joint custody an untenable proposition in this case.

[29] That said, it is in the children’s best interests that they have as much contact as possible with their father. Ms. Iqbal is not opposed to this but insists that she does not want Mr. Jamil to be involved in the major decisions involving their children.

[30] However, this issue must be determined in accordance with the children’s best interests, rather than Ms. Iqbal’s desire to maintain control over them. As far as is reasonably possible, Mr. Jamil should be allowed to be involved in the major decisions concerning the children’s religion, education and health.

ISSUE NO. 2: Should Mr. Jamil be ordered to pay child support to Ms. Iqbal and if so, how much?

[31] There is no dispute that Mr. Jamil should pay ongoing child support. What is in dispute is the quantum of child support which Mr. Jamil should pay.

[32] Mr. Jamil maintains that not only does he have no income at present but that he has made diligent efforts to secure employment. Additionally, he is heavily indebted to his parents and three friends to the tune of $49,100. Nevertheless, he is agreeable to paying child support based on an imputed income of $26,000. Ms. Iqbal insists that child support should be fixed based on imputed income of $73,000. She asserts that this amount reflects Mr. Jamil’s actual average annual income as an IT contractor from 2012 to 2014.

Mr. Jamil’s Debts

[33] Mr. Jamil claims that he is both impecunious and heavily indebted. He therefore claims that he lacks the ability to pay support. His Net Family Property Statement indicates that he owes the following amounts:

Asim Aleem $11,000

Muhammad Rehan $23,500

Jamil Uddin $15,600

[34] Additionally, he allegedly owes his parents an undisclosed sum of money.

[35] I am not persuaded that Mr. Jamil owes these individuals money. He filed no documentation confirming that he borrowed money from any of them. Neither did he file proof of any money transfers from Pakistan, where his parents reside, to Canada. In light of the clear evidence that Mr. Jamil has underreported his income and has made a number of unexplained withdrawals of sizeable amounts of money from accounts under his control, I disbelieve his evidence that he has incurred these debts from his friends and family.

Should an income be imputed to Mr. Jamil?

[36] In Drygala v. Pauli, 2002 CanLII 41868 (ON CA), [2002] O.J. No. 3731, 61 O.R. (3d) 711 (C.A.), the Ontario Court of Appeal set out the following tripartite test for imputing of income:

1. Is the spouse intentionally under-employed or unemployed?

2. If so, is the intentional under-employment or unemployment required by virtue of his or her reasonable educational needs?

3. If the answer to question #2 is negative, what income is appropriately imputed in the circumstances?

[37] In determining the first factor, the following questions should be asked:

(1) What are the spouse’s qualifications?

(2) What was the spouse’s past income?

(3) What is the spouse’s present employment situation; and

(4) What efforts has the spouse made to obtain employment which is commensurate with his or her qualifications and past income?

Mr. Jamil’s Qualifications

[38] Mr. Jamil holds a Bachelor’s degree in Science and Information Technology and a Bachelor of Commerce degree. He also has a diploma in computer science and holds a Microsoft certification as a Systems Engineer. Mr. Jamil downplayed this certification by testifying that “it is fifteen years old and obsolete”. He is a Microsoft Certified Professional and a Citrix Professional Certified Administrator.

[39] When questioned about his extensive qualifications in computer technology, Mr. Jamil testified that his certification is outdated and that he does not have the $3,000 to $4,000 required to upgrade his certification. He testified that he would require $20,000 to $24,000 to upgrade his certification and be able to secure gainful employment in the computer technology field.

[40] I do not accept Mr. Jamil’s testimony that his certification is outdated and hinders him from obtaining a job. First, he has extensive experience in the computer technology field. Second, while he maintains he simply could not afford the cost of upgrading his certification, he had no difficulty finding money, ostensibly from friends and his parents, to travel to Mexico in 2012 and 2013 and to Pakistan in 2014 and 2015.

Mr. Jamil’s Past Income

[41] Mr. Jamil’s Line 150 income from his personal income tax return for the years 2009 to 2014 are as follows:

2009 $65,000 approximately

2010 $35,000 approximately

2011 not provided

2012 $25,000

2013 $37,500

2014 $15,100

He testified that he earned $3,600 in 2015.

[42] There is good reason to believe that these amounts do not reflect Mr. Jamil’s true income for the above period under review for three reasons. First, Mr. Jamil was very tardy in complying with orders that he provide full financial disclosure. He failed to serve and file a business valuation. He has patently failed to provide invoices for his company, SIMZ Solutions Inc. Such invoices would give a more accurate picture of his income. He explained this failure by testifying that he could not retrieve the invoices from the computer. However, that is simply untrue given that Ms. Iqbal was able to obtain these invoices which show the amount of money which clients paid Mr. Jamil for work done on their behalf.

[43] The invoices retrieved by Ms. Iqbal reveal that from September 30, 2010 to November 30, 2010, Mr. Jamil’s company earned $25,667.95 for Mr. Jamil’s work. Furthermore, from January 4, 2011 to September 30, 2011, the company earned $117,859 for work done by Mr. Jamil.

[44] Mr. Jamil’s RBC business account reveals that in 2010, $98,000 was deposited into his personal bank account. In 2011, $61,000 was deposited into this account. In 2012, $92,000 was deposited into his personal account. In 2013, $48,000 made its way into the account.

[45] Second, it appears that Mr. Jamil, who claims to have earned a modest $25,000 in 2012, made a number of sizeable monetary withdrawals from his business account in the months preceding and following the couple’s separation. Between May and September 2012, he withdrew $5,000 on four separate occasions from the account. On September 15, 2012, he made another cash withdrawal of $5,000. When asked about the reason for these withdrawals, Mr. Jamil replied that he did not remember why he had done so.

[46] Third, Mr. Steven Rayson, a business evaluator called by Ms. Iqbal as an expert witness, opined that based on Mr. Jamil’s tax assessments, personal expenses paid by his business, and invoices, he estimated Mr. Jamil’s income for the years 2012 – 2014 to be as follows:

2012 $76,000

2013 $82,000

2014 $60,600

[47] The evaluator conceded that Mr. Jamil’s earnings for these years are not predictors of his future income given that he works on contract. He also conceded that he was unaware that certification has a bearing on Mr. Jamil’s income. Finally, he agreed that the rosy employment outlook he relied upon to conclude that the IT services market was expanding applied to salaried employees rather than those on contract.

[48] These concessions do not alter the fact that Mr. Jamil has under-reported his income and that he has failed to take the necessary steps to update his IT certification.

Efforts to Secure Employment

[49] Mr. Jamil maintains that the court should not impute income to him in the amount indicated by Ms. Iqbal’s counsel because he made reasonable efforts to secure employment. As proof of his efforts, he has tendered his correspondence with an employment agency since 2014.

[50] There are three problems with this evidence. First, it shows that Mr. Jamil sent a mere 25 job applications over a one year period; an amount which is woefully inadequate for someone who is diligently seeking employment in his field. Second, Mr. Jamil only applied for employment in the GTA; he did not apply anywhere else. Third, he never asked Capital Tech Inc., the company where he worked for the longest period in the past, for employment. I find this to be a grave omission which constitutes an indictment of Mr. Jamil’s job seeking efforts.

[51] Based on the above evidence, I find that Mr. Jamil has been deliberately unemployed and that his unemployment status is a by-product of his unwillingness to meet his support obligations to Ms. Iqbal. Significantly, he “lost” his job one month after Justice Trimble’s August 2014 Order and failed to make a single support payment after that date. I am prepared to impute an income of $70,000 to Mr. Jamil for child support purposes.

ISSUE NO. 3: Should Mr. Jamil be ordered to pay Ms. Iqbal spousal support and if so, for how long?

[52] Subsection 15.2(4) of the Divorce Act sets out the factors to be considered in determining spousal support while s. 15.2(6) outlines the purposes for such an order. In determining whether or not a spouse should pay spousal support, the court must consider all the factors enumerated in s. 15.2(4), in addition to the objectives of such support set out in s. 15.2(6).

[53] Subsection 15.2(4) provides the following factors that the court must take into consideration:

In making an order under subsection (1) … 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.

[54] Any support order must meet the following objectives set out in s. 15.2(6):

(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.

[55] There are three conceptual bases for entitlement of spousal support: (1) compensatory; (2) contractual, and (3) non-compensatory. Spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage: see Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 at para. 49.

Analysis

[56] Mr. Jamil and Ms. Iqbal were married for seven years. Mr. Jamil has been the main breadwinner while Ms. Iqbal left her employment when she became pregnant with the couple’s first child. Mr. Jamil does not dispute that Ms. Iqbal was the main caregiver for both children, a responsibility she continues to have.

[57] Ms. Iqbal started a garment company which Mr. Jamil financed. There is some dispute about who owned the company. Mr. Jamil maintains that his wife owned the company while Ms. Iqbal maintains that she handed the money earned in the company to Mr. Jamil. There is no dispute, however, that even while working in this company, Ms. Iqbal continued to take care of the children, the matrimonial home and Mr. Jamil’s parents.

[58] Ms. Iqbal is currently unemployed. She currently lives with two of her siblings and their spouses along with her parents. She subsists largely on account of her family’s assistance and what she receives from the state.

[59] Ms. Iqbal’s line 150 income from her Notice of Assessment between 2012 and 2014 is as follows:

2012 $2,100

2013 $4,616

2014 $7,795

[60] She paid her family $650 monthly from the money she received from Ontario Works to rent half the basement.

[61] During cross-examination, Mr. Jamil’s counsel, Mr. Farooq, showed Ms. Iqbal a letter signed in 2007 in which she claimed that she worked as a graphic designer for a company called Global Components Inc. earning $10,500 annually. Ms. Iqbal replied and I accept her testimony that she signed the letter to assist Mr. Jamil in sponsoring her parents to Canada.

[62] Ms. Iqbal’s ability to obtain employment has been frustrated by the high cost of daycare. The cost of daycare for each child prior to the start of school is $781.60 per month. After school care for a child between three to five years old costs $297.80 per month. The rate for a child between eighteen months and three years was $1,045 per month.

[63] In my view, the evidence establishes on a balance of probabilities that Ms. Iqbal is eligible to receive spousal support both on a compensatory and non-compensatory basis.

Quantum of Spousal and Child Support

[64] The table amount of child support payable by Mr. Jamil to Ms. Iqbal for the two children from January 1, 2015 is $1,037. The Divorcemate calculator, a copy of which is attached to this judgment indicates that, with Mr. Jamil’s imputed annual income of $70,000 and with Ms. Iqbal’s annual income fixed at $7,795, the quantum of spousal support payable with the child support formula is a low $274, a mid-range of $453 and a high of $637 monthly. These figures are based on the dependent credit being claimed by Ms. Iqbal. The Divorcemate calculator indicates that the duration for spousal support in these amounts is for a minimum period of 3.5 years to a maximum of 14 years from the date of separation.

[65] What quantum of spousal support would be appropriate in this case? Ms. Iqbal’s counsel submits that the appropriate amount is $690 per month from January 1, 2015 onwards. Mr. Jamil’s counsel suggests that there should be no spousal support. Alternatively, if this court decides that Mr. Jamil should pay spousal support, such support should be based on an imputed income of $26,000.

[66] In my view, an appropriate amount of monthly spousal support in this case would be $500.

[67] Accordingly, Mr. Jamil must pay this amount of spousal support to Ms. Iqbal retroactive to January 1, 2015.

Duration of Spousal Support

[68] The Divorcemate calculator provides that the duration of spousal support should be a minimum of 3.5 years and a maximum of 14 years. The appropriate period of time will reflect an estimate of how long it will take Ms. Iqbal to achieve self-sufficiency given her present employment situation and the needs of the children of the marriage.

[69] Ms. Iqbal plans to enrol in a college program in September 2016 in order to improve her credentials. Given the age of her children, any employment income she may earn at this time will be spent paying for child care programs for the children. It is therefore imperative that she receives an opportunity to obtain an education to enhance her chances of earning a well-paying job.

[70] In my view, given Ms. Iqbal’s present impecuniosity, the needs of the children, the need to improve Ms. Iqbal’s education, and the spousal support she had received from the separation date to December 31, 2014, the appropriate duration of spousal support from January 1, 2015 should be seven years.

Retroactive Child and Spousal Support

[71] The amount of child support owing from January 1, 2015 to February 29, 2016, is $1,037 x 14 or $14,518.

[72] The amount of spousal support owing from January 1, 2015 to February 29, 2016 is $500 x 14 or $7,000.

[73] The total amount of child and spousal support owing is therefore $14,518 + $7,000 or $21,518.

Credit for Child Support Payments by Mr. Jamil from the Separation Date to August 2014

[74] Mr. Jamil indicates that he paid child support to Ms. Iqbal in the amount of $7,311 between 2012 and 2014. He believes that he should receive a credit for this amount. Ms. Iqbal testified that she received some support payments from Mr. Jamil during this period but did not stipulate the amount. Ms. Iqbal’s counsel did not question that Mr. Jamil paid $7,311 to Ms. Iqbal.

[75] The Final Minutes of Settlement signed by both parties on January 19, 2016 did not address this issue. Paragraph 5 of the Final Minutes of Settlement stipulate that the total arrears payable by Mr. Jamil to Ms. Iqbal are $32,109 as of December 31, 2014. It makes no provision for the deduction of any child support payments Mr. Jamil may have made to Ms. Iqbal between 2012 and 2014. I conclude that, in those circumstances, Mr. Jamil should receive a credit of $7,311 for the support payments he made to Ms. Iqbal during this period.

ISSUE NO. 4: How should Mr. Jamil and Ms. Iqbal’s net family property be equalized?

[76] Section 5(1) of the Family Law Act, R.S.O. 1990, c. F.3, (“FLA”) 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.

[77] Section 5(6) of the FLA 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 such would be unconscionable, having regard to the following circumstances:

(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).

Land

[78] The parties sold their matrimonial home in 2014. The net proceeds of sale was $79,300.02. Neither party is claiming a disproportionate share of the net proceeds of sale. The value of the property each party owned on separation date is therefore $39,650.01, subject only to the deduction of spousal and child support arrears owed by Mr. Jamil to Ms. Iqbal.

General Household Items and Vehicles

[79] Mr. Jamil claims that on the valuation date, the value of vehicles and household goods in his possession was $2,000 while that in Ms. Iqbal’s possession was $4,000. Ms. Iqbal, on the other hand, states that the value of such items in Mr. Jamil’s possession on valuation date was $3,000 while that in her possession was $1,100.

[80] Ms. Iqbal has placed a value of $1,000 on the bedroom set, living room set, dining room set, kitchen appliances and television in her possession on valuation date. Mr. Jamil states that the value of this property is $3,000. The parties purchased this property during the marriage. In all probability, the value of this property would have exceeded $1,000 on valuation date but would be less than the amount suggested by Mr. Jamil. I am therefore prepared to place a value of $2,000 on this property, which Ms. Iqbal retained following separation.

[81] Mr. Jamil claims that Ms. Iqbal owned a TV, laptop and computer valued at $1,000 on the valuation date. Ms. Iqbal claimed that she did not own such property on the valuation date.

[82] There is evidence, however, suggesting that Ms. Iqbal did have possession of either a laptop or computer on the date of separation. She was able to retrieve invoices from Mr. Jamil’s work on one of the couple’s computers following separation. In my view, she did own computer equipment on the date of separation. The value of this computer will be fixed at $750.

[83] The couple owned three vehicles at the time of separation: a 2008 MDX, a Toyota Camry and a 2001 Accord, all of which Mr. Jamil retained. Mr. Jamil indicated that the value of the Toyota Camry was $2,000 on the valuation date but that the other two vehicles had no value on the valuation date.

[84] It is simply a matter of common sense that the MDX and the Honda Accord had some value on the valuation date. The MDX was a mere four years old on that date while the Accord was eleven years old. In my view, the MDX and Accord should be valued at $2000 and $500 respectively on the valuation date. The value of the general household items and vehicles Mr. Jamil owned on valuation date is $4,500 while that owned by Ms. Iqbal is $2,750.

Bank Account And Savings

[85] Mr. Jamil claims that he had $10,600 in his personal and business bank accounts on the valuation date. He provided no valuation for his company on that date. He also maintains that Ms. Iqbal had $12,500 cash in her possession on the valuation date.

[86] I am very skeptical about Mr. Jamil’s claim that the amount of money in his accounts on valuation date was only $10,600. He made four cash withdrawals of $5,000 each before separation. He made another withdrawal of $8,500 in June 2012. These withdrawals clearly suggest that the quantum of money in Mr. Jamil’s possession on the valuation date far exceeds $10,600. At the very minimum, the amount of $20,000 should be added to the $10,600 Mr. Jamil claimed he had in his bank accounts on valuation date. I therefore conclude that the amount of money he had in his bank accounts on that date is fixed at $30,600.

[87] Ms. Iqbal indicates that she had $3,525.98 in an RBC account on valuation date, a figure which Mr. Jamil did not dispute. I therefore find that Ms. Iqbal had $3,525.98 in her bank account on the valuation date.

Life and Disability Insurance

[88] The total surrender value of insurance policies for both parties is fixed at zero.

Business Interests

[89] Mr. Jamil claims that his company Simz Solution Inc. had no value on the valuation date, despite the fact that in 2011 the company had contracts valued at over $125,000. Furthermore, the corporation’s account had $10,000 on the valuation date based on Mr. Jamil’s own admission. Mr. Jamil however, has already been credited with this amount.

[90] Additionally, Mr. Jamil failed to comply with a number of court orders to provide a valuation of his company. He only complied with these orders in December 2015. That said, however, the corporation has little or no assets.

[91] Ms. Iqbal had no business interests on the valuation date.

Money Owed to You

[92] Neither party claimed that any money was owed to the other on the valuation date.

Other Property

[93] Both Mr. Jamil and Ms. Iqbal claim that they had no other property on valuation date.

Debts and Other Liabilities

[94] Mr. Jamil indicated that his debts on the valuation date amount to $93,000. That debt was comprised of a $34,000 outstanding debt on the MDX which the lending institution later repossessed and an RBC line of credit of $60,000. This latter balance along with $1,674.52 in interest was paid out of the proceeds of the sale of the matrimonial home in January 2015.

[95] Ms. Iqbal maintains that Mr. Jamil should be fully responsible for the RBC line of credit. In my view, both parties should be equally responsible for this debt given that this was a joint line of credit and the balance accumulated during the marriage. Mr. Jamil claims that he owed $60,000 on the RBC line of credit on the valuation date. He can only claim 50 percent of this amount ($30,000). Mr. Jamil also indicates that he owed another $3,000 on two RBC credit cards. Based on the above, Mr. Jamil’s debts and other liabilities on the valuation date was $67,000.

[96] Ms. Iqbal indicates that she owed her family $6,000 on the valuation date. She also owed another $30,000 for her share of the negative balance on the RBC line of credit. Accordingly, she owed $36,000 on the valuation date.

Property Owned on Date of Marriage

[97] Mr. Jamil claims that he had $500 in savings on the date. Ms. Iqbal indicates that she had no assets or liabilities on the date she got married.

Excluded Property

[98] Mr. Jamil maintains that the value of excluded property in his possession is zero. Ms. Iqbal counters that the family’s jewellery, which they received when they got married, is in Mr. Jamil’s possession. However, she cannot place a value on such property.

[99] The total value of excluded property for both parties is zero.

Equalization of Net Family Property

[100] Based on the above calculation, the revised net family property of Mr. Jamil and Ms. Iqbal on valuation date is as follows:

Valuation Date (VD)

Total Value of Assets on VD Mr. JAMIL ms. IQBAL

ASSETS

Matrimonial Home

39,650.01

39,650.01

Cars, boats, vehicles

4,500

0

Household Goods

0

2,750

Bank accounts and savings

10,600

3,525.98

Life and Disability Insurance:

n/a

n/a

Business interests

20,000

0

Money owed to you

0

0

Value of Property Owned on VD

74,750.01

45,925.99

Total Value of Debts & Liabilities on VD

Matrimonial Home

0

0

Car Loan

34,000

Personal Loan

6,000

Line of Credit

30,000

30,000

Credit cards

3,000

Total: Value of Debts & Liabilities

67,000

36,000

Net value of Property Owned on VD

7,750.01

9,925.99

Date of Marriage (DM)

net Value of property (other than the Matrimonial Home) & Debts on DM

Assets

Jewellery (not exempt)

Cash

500

Insurance

Value of Property Owned on DM

500.00

0.00

Total Value of Debts and Liabilities on DM

Debts & other liabilities

Total: Value of Debts & Liabilities

0.00

0.00

Excluded Property

0.00

0.00

Net value of Property Owned on DM

500.00

0.00

TOTALS VD & DM

Net Value of Property Owned on the VD

7,750.01

9,925.99

Net Value of Property Owned on the DM

500.00

0.00

NET FAMILY PROPERTY

7,250.01

9,925.99

[101] The difference between the parties’ net family property on valuation date is $2,675.98. Ms. Iqbal must therefore pay an equalization payment of $1,337.99 to Mr. Jamil.

Calculation of Money Owed by Mr. Jamil to Ms. Iqbal

[102] Mr. Jamil owes the following amounts to Ms. Iqbal:

(1) costs of $3,600 pursuant to Justice Baltman’s Order dated December 16, 2014;

(2) costs of $3,500 pursuant to Justice Edward’s Order dated October 2, 2015;

(3) retroactive child support owing from January 1, 2015 to February 29, 2016 in the amount of $14,518; and

(4) retroactive spousal support owing from January 1, 2015 to February 29, 2016, in the amount of $7,000.

[103] Ms. Iqbal owes the following amounts to Mr. Jamil:

(1) $7,311 for support payments made to her between 2012 and 2014; and

(2) equalization payment of $1,337.99.

[104] Mr. Jamil’s share of the net proceeds of the sale of the matrimonial home is $39,650.01. When the amount of retroactive child and spousal support ($32,109) which he owes to Ms. Iqbal from the date of separation to December 31, 2014, is deducted from his net proceeds of the matrimonial home, his share of the net proceeds is reduced to $7,541.01. If the amount of costs that he owes (i.e. $3,600 and $3,500 or $7,100) is deducted from this amount, Mr. Jamil’s share of the net proceeds becomes $441.01.

[105] The credit for support payments made by Mr. Jamil ($7,311) and the equalization payment owed to him by Ms. Iqbal, amount to a total of $8,648.99 ($7,311 plus $1,337.99). When Mr. Jamil’s share of the net proceeds of the matrimonial home is added to this figure, he is then owed the sum of $9,090 (i.e. $8,648.99 plus $441.01). When the retroactive child and spousal support owed by Mr. Jamil is deducted from this amount (i.e. $14,518 plus $7,000 or $21,518), Mr. Jamil owes Ms. Iqbal $12,428 in child and spousal support arrears.

Costs

[106] Ms. Iqbal seeks costs in the amount of $62,445.46 on a full indemnity basis. This amount comprises $45,917.55 for trial preparation and counsel fees for the trial and $16,527.91 for disbursements.

[107] Mr. Jamil seeks costs in the amount of $14,780.80 on a partial indemnity basis or $21,444 on a full indemnity basis.

[108] In assessing what quantum of costs are fair and reasonable in this case, I consider the following factors:

(1) Ms. Archana Medhekar, Ms. Iqbal’s lawyer, was called to the Bar in 2005 and her hourly rate of $350 cannot be considered to be unreasonable;

(2) Ms. Iqbal was substantially successful in the matter;

(3) the trial lasted five days and therefore required a fair deal of preparation; however, the following fees appear excessive:

(a) the eleven (11) hours claimed on January 4, 2016 for a meeting with Ms. Iqbal and attendance at the Court for an Exit Pre-Trial,

(b) the five (5) hours claimed on January 18, 2016, for a meeting with Ms. Iqbal,

(c) the four (4) hours claimed on January 19, 2016, for another meeting with Ms. Iqbal,

(d) the six (6) hours claimed on January 22, 2016, for research concerning Rebuttal Evidence in Family trials;

(4) the parties settled the issues of child and spousal support arrears outstanding from the date of separation to December 31, 2014; and

(5) the fact that the issues in this trial were not particularly complex.

[109] In my view, the quantum of costs that can be considered fair and reasonable in this case is $40,000 inclusive.

[110] This Court makes the following orders:

(1) Ms. Iqbal shall have final sole custody of both children of the marriage: Saifaan Zubair (DOB: May 16, 2009) and Zohal Zubair (DOB: March 30, 2012);

(2) Ms. Iqbal shall contact Mr. Jamil on all major issues concerning the children’s welfare including their education, religion and healthcare, if the parents cannot reach an agreement with respect to any major decision despite their best efforts, Ms. Iqbal will have the rights to make such decision and Mr. Jamil will have the right under the CLRA to seek a review of any decision which he considers contrary to the children’s best interest;

(3) Mr. Jamil shall have access to the children in accordance with the following schedules:

(i) every Wednesday and Friday from 4:30 p.m. to 7:30 p.m.;

(ii) every Saturday from 10:00 a.m. to 7:30 p.m.; and

(iii) Mr. Jamil shall have overnight access to the children commencing three months from the date of the order. Such overnight access shall be on every other weekend from Friday at 7:00 p.m. to Saturday at 7:00 p.m.

(4) pick up and drop off of the children shall either be at the local police station nearest to Ms. Iqbal’s residence or at a mutually agreeable public location;

(5) Mr. Jamil shall inform Ms. Iqbal, via email, text or other means 24 hours in advance if he wishes to cancel and access visit for any reason;

(6) Mr. Jamil shall have Skype access to the children every week on Monday, Tuesday and Thursday between 6:30 p.m. and 7:00 p.m.;

(7) neither party shall speak ill about the other in the children’s presence;

(8) commencing March 1, 2016, Mr. Jamil shall pay monthly child support to Ms. Iqbal in the amount of $1,037 based on an imputed annual income of $70,000 annually;

Spousal Support

(9) Commencing March 1, 2016, Mr. Jamil shall pay monthly spousal support to Ms. Iqbal in the amount of $500 based on an imputed income of $70,000 annually. Mr. Jamil shall pay spousal support for a period of seven years commencing March 1, 2016;

Child Support

(10) Mr. Jamil shall pay retroactive child and spousal support of $12,428 for the period December 1, 2015 to February 29, 2016, based on the calculations set out in paragraphs 71-73 of this judgment;

Section 7 Expenses

(11) Mr. Jamil shall pay eighty (80%) of section 7 expenses;

Insurance

(12) Mr. Jamil shall maintain a Life Insurance policy naming Ms. Iqbal and his children as the irrevocable beneficiaries until his support obligations end. The policy shall have a face value of $250,000. This policy shall be in good standing and Mr. Jamil shall provide to Ms. Iqbal annual proof that the policy is in good standing;

(13) Mr. Jamil shall file the designation of his life insurance beneficiaries with his insurer in accordance with the insurance set and provide Ms. Iqbal with true copy of this designation written 30 days from the date of this order; and

(14) If Mr. Jamil dies without an insurance policy naming Ms. Iqbal and the children of the marriage as his irrevocable beneficiaries, his child and spousal support obligations shall survive his death and form a first charge against his estate.

Divorce

(15) Divorce shall be severed from other corollary relief and either party may file for divorce.

Enforcement by the Family Responsibility Office

(16) Unless the order is withdrawn from the Office of the Director of the Family Support Plan, it shall be enforced by the Director; amounts owing under the order shall be paid to the Director, who shall pay them to whom they are owed;

(17) this order bears post judgment interest at the rate of three percent (3%) per year effective from the date of this order; where there is a default in payment, the payment in default shall bear interest only from the date of the default;

(18) for as long as child support is to be paid, the payor and recipient, if applicable must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this order, in accordance with s. 24.1 of Child Support Guidelines.

Costs

(19) Mr. Jamil shall pay costs to Ms. Iqbal in the amount of $40,000 inclusive within four (4) months of today’s date.

André J.

Released: April 1, 2016

CITATION: Jamil v. Iqbal, 2016 ONSC 2158

COURT FILE NO.: FS-12-76175-00

DATE: 20160401

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ZUBAIR JAMIL

• and –

SUMERA IQBAL

REASONS FOR JUDGMENT

André J.

Released: April 1, 2016