CITATION: Vhora v. Vhora, 2016 ONSC 2951

COURT FILE NO.: FC-12-040106-00

DATE: 20160520

CORRECTED DATE: 20160520

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Reshma Vhora

Applicant

– and –

Mohamad Moonaf Vhora and Zarin Vhora

Respondents

Joanne Lagoudis, for the Applicant

Peter M. Callahan, for the Respondents

HEARD: November 23, 24 and 25, 2015

Corrected decision: The text of the original judgment was corrected on May 20, 2016 and the description of the correction is appended

McDermot J.

Introduction

[1] Mr. and Ms. Vhora, practicing Muslims, underwent an arranged religious marriage ceremony in 1997. Their legal marriage took place in September 2000, after both parties divorced their former spouses. Both parties acknowledge the later date to be their date of marriage for equalization purposes.[^1] They had two daughters, who are now 17 and 15 years of age. Throughout the marriage, the parties lived in the home of Mr. Vhora’s parents.

[2] The separation, which took place on January 30, 2012, was difficult, and Mr. Vhora was charged with assaulting his wife. Those charges were resolved by way of peace bond. The children left with Ms. Vhora and continue to live with her. They do not have an easy relationship with their father and only see him when they wish to do so.

[3] Ms. Vhora sought custody of the children, as well as equalization and child and spousal support in proceedings brought soon after separation. Mr. Vhora vigorously defended these claims. Eventually, because of the circumstances surrounding the purchase of the matrimonial home, Mr. Vhora’s mother, Zarin Vhora, was joined as a Respondent in this proceeding.

[4] On October 20, 2015,[^2] on the eve of trial, the parties settled their custody and access issues. The Respondent agreed to pay final child support of $2,633 per month. The parties agreed to joint custody of the children, who have their primary residence with the Applicant, and Mr. Vhora has access to the children in accordance with their wishes.

[5] Only certain financial issues, including equalization, spousal support and retroactive support remained outstanding. Notwithstanding the financial nature of these issues, both parties spent much of their energy at trial testifying about the children and the way the other treated them during the marriage and separation. Mr. Vhora concentrated on how he was unjustly charged with assault and about his loss of his relationship with the children; Ms. Vhora spoke about the abuse she suffered at the hands of the Respondent’s mother during marriage, and how the Respondent had failed to honour her wishes for a separate residence for the parties and the children. Both parties testified at length about the assault.

[6] None of this was particularly relevant to the financial issues, but it used up valuable trial time. This left little opportunity for testimony about the details that were crucial in determining the financial issues. There were large gaps in the evidentiary record, especially concerning the details of the purchase of the matrimonial home and a large deduction claimed by the husband for a promissory note in favour of Usuf Vhora, his father.

[7] For the reasons set out below, I have determined the following:

a. The Respondent shall pay retroactive child support in the amount of $11,352;

b. The Respondent shall make an equalization payment to the Applicant in the amount of $181,909.96. There shall be judgment in that amount against the Respondent, along with pre-judgment interest on that amount from the date of separation.

c. The Respondent shall pay spousal support in the amount of $3,200 per month, commencing December 1, 2015 and terminating on January 31, 2025.

d. The Respondent shall designate the Applicant as the beneficiary of his present life insurance policies owned by him through Sun Life and through his employer in order to secure child and spousal support, so long as that support is payable. Once support ceases to be payable, Mr. Vhora may deal with the policies as he sees fit.

e. There shall be no retroactive spousal support payable by the Respondent beyond the interim award of spousal support previously made.

Background Facts

The Parties

[8] As mentioned, Mr. and Ms. Vhora were married in a religious ceremony on May 27, 1997. They began cohabitation on that date as well.

[9] As also noted, this was an arranged marriage. Ms. Vhora was born and raised in Mumbai, India, where her parents still live. Ms. Vhora’s mother is Mr. Vhora’s mother’s sister and the parties are first cousins. Ms. Vhora has a B.A. in Sociology from Bombay University. Ms. Vhora became a Permanent Resident of Canada in 2002 and became a Canadian Citizen in 2004. Ms. Vhora has worked at Coledale Public School in York Region as an educational assistant since August 2004.

[10] Mr. Vhora was born in England, and came to Canada when he was three years of age. He received a Bachelor of Engineering from Carleton University in 1989, but only obtained his professional engineering designation (his P. Eng.) last year. Other than his years at Carleton, he has always lived with his parents and is strongly connected to them both emotionally and financially.

[11] The families had considered marriage previously, but Ms. Vhora had earlier married an individual who lived in Modesto, California, named Parvez Vhora. As with Mike Vhora, Parvez was a first cousin of Ms. Vhora. She described this as a “forced immigration marriage” and it was unsuccessful. The parties separated after four months, and Ms. Vhora returned to Mumbai after eight months. She was divorced from Parvez Vhora in Nevada in 1998.

[12] After her first marriage, Ms. Vhora lived in India for a period, and then returned to live with a friend in California. She began speaking with Mr. Vhora on the telephone, and came to Canada in 1997. The parties dated several times, and quickly agreed to marry. The parties have the same Guru,[^3] and he attended in Canada for the religious marriage ceremony along with Ms. Vhora’s family from India.

[13] Both parties were already married at the time of this religious ceremony. Mr. Vhora was married previously in 1995, but separated from his first wife after two months. Like Ms. Vhora, he was also not divorced at the date of marriage. Mr. Vhora says that he was not aware that Ms. Vhora was also still married at the date of the religious ceremony. This is important because, according to Mr. Vhora, tradition permits a man to be legally married and enter into a second religious marriage, while a woman cannot. Mr. Vhora testified that he only found out about Ms. Vhora’s previous marriage late in 1997 and that he was “shocked” by that news. Ms. Vhora says that he was well aware of her prior marriage when the ceremony took place.

[14] Immediately after the religious ceremony, the parties moved into the home of Mr. Vhora’s parents, then located on Windsong Court in Markham. According to Ms. Vhora, the Respondent’s unwillingness to move out of his parents’ home, along with Ms. Vhora’s toxic relationship with the Respondent’s mother, Zarin Vhora, eventually resulted in the breakdown of the marriage.

[15] There are two children of the marriage, both of whom spent most of their childhood in the home of Mr. Vhora’s parents. Habiba was born on April 12, 1998 and Anim (Nida) was born on December 16, 2000. Until the children were in school, Ms. Vhora did not work and cared for the children. After she began work, it appears that Mr. Vhora’s parents became quite involved with the children; Mr. Vhora’s father Usuf picked up the children from school and Nida continued to sleep in Zarin Vhora’s room up to the date of separation. Ms. Vhora testified that she did all of the work respecting the children when she returned home, although she acknowledged that her husband helped the children with their homework and had a good relationship with the children up to the date of separation.

[16] Mr. Vhora is an engineer. When the parties were married, he worked for a communications firm known as Alcatel. Alcatel eventually merged with Lucent. As part of this transaction, the division in which Mr. Vhora worked was sold to another company, known as Thales Canada Transportation Solutions. He is the Director of Engineering for the group responsible for data communications in the transportation division of the company. As a senior member of the team, his income has risen substantially over the years. He estimated that in 2005, his income was about $90,000 per annum; by 2014, it had increased to around $204,000.

[17] Mr. Vhora earns a base income, which he said was $176,000 in 2014. In addition, he receives a bonus. That bonus can be up to 20 percent of his income and is based upon several components, including his own performance, the performance of the group for which he is responsible and the performance of his division. The bonus is paid the March following the year in which the bonus was earned. He has consistently received a bonus in past years. However, he testified that in the last year, he did not achieve the level of 20 percent, largely because of the overall losses suffered by Thales’ transportation division. He said that the division lost $50 million worldwide in 2014, and in 2015, they are expecting even greater losses.

[18] As mentioned, Ms. Vhora has a bachelor’s degree in Sociology from the University of Bombay.[^4] She is an educational assistant for the York Region Public School Board. She has worked at Coledale Public School in Markham since August 2004.

[19] Ms. Vhora could not initially work in Canada when she was married in 1997, as she was here on a visitor’s permit. Ms. Vhora said that she was only able to become a permanent resident with the consent of her mother-in-law. She testified that Mr. Vhora’s mother did not initially want her to work or to obtain permanent status in Canada because she wanted to retain the power to threaten to return Ms. Vhora to India if she misbehaved. As well, Ms. Vhora could not apply for permanent residency until after she was divorced from her previous husband and legally married to Mr. Vhora. She notes that this ended up being costly to the family. When she was pregnant with Habiba in 1998, there were complications that resulted in her hospitalization, which was not paid for by OHIP. The costs of her hospitalization were borne by the Vhora family.

[20] With the assistance of her husband, Ms. Vhora applied for and obtained permanent resident status in 2001 or 2002. She has been a Canadian citizen since 2004.

[21] Her employment contract, dated August 26, 2004, stipulates that she work ten months a year. Since she began working for the board, she has consistently taken the summers off to spend with her children. She has sometimes made trips to India or California during the summer months to visit relatives, but she has also collected Employment Insurance benefits when she remains in Canada.

The Role of Zarin Vhora

[22] According to Ms. Vhora, she was subjected to continual and ongoing abuse at the hands of her mother-in-law, Zarin Vhora. She testified that Zarin Vhora made ongoing attempts to intimidate and control her. Ms. Vhora described herself as nothing other than a servant to her mother-in-law, and at one point says that she listed all of the jobs that she was doing in the home in an attempt to obtain fair treatment.[^5] Ms. Vhora said that Zarin Vhora controlled the household, and when she asked to work outside of the home, it was Zarin Vhora who decided whether she could or not. Whenever Ms. Vhora stood up to her mother-in-law, she would threaten to send her back to India. Ms. Vhora said that Zarin pulled her hair once, and on another occasion said that if she were in India, she would “peel the skin from [Reshma Vhora’s] body.” Ms. Vhora gave evidence that Zarin called her a “fat black ass” and often asked Mr. Vhora why she had married her. Zarin Vhora was not questioned about these allegations of abuse when she testified.

[23] Ms. Vhora complained that her husband stood by passively, and went along with his mother’s demands. She also testified that her husband assaulted her by striking her a week prior to separation because his mother invited him to do so. Ms. Vhora blames Zarin Vhora for the abuse visited upon her by her husband. She said that after separation, she had sent Mr. Vhora a list of demands prior to any possible reconciliation. One of those demands was a place of their own. Ms. Vhora maintained throughout her testimony that Zarin Vhora, not Mr. Vhora, was the source of the problems in their marriage.

[24] The parties are strongly opposed on this issue. Mr. Vhora denies that his mother mistreated Ms. Vhora. He testified that the two always seemed to get along and that his mother never controlled anything; the decision to go to work was solely that of Ms. Vhora. He says that he had no idea that Ms. Vhora wanted to move out of his parents’ home. He claimed that the list of household jobs was an attempt by the family to take some tasks off Ms. Vhora’s plate. He denied assaulting his wife, and said that he had no idea that Ms. Vhora was planning to separate from him, or that she told him the reasons why she was thinking of separating.

Roles of the Parties in the Marriage

[25] This is a trial about financial issues. I do not have to make a finding about whether Ms. Vhora’s mother-in-law was abusive or not. I do have to make a finding about entitlement to spousal support, and this involves determining the extent to which Ms. Vhora was involved in the financial decisions made within the family.

[26] Relevant to this is the way in which Mr. and Ms. Vhora managed their money. Ms. Vhora had to hand over her entire paycheque to her husband every two weeks, other than a $100 allowance for personal needs. Ms. Vhora was also asked to account for her expenditures when she wished to go to India and requested some funds to do so. It was apparent that Ms. Vhora had little financial autonomy within this particular household.

[27] Another issue that leads me to this conclusion are the events surrounding the purchase of the matrimonial home located at 45 Germain Crescent, Markham, Ontario.

[28] When the parties began cohabitation, they lived in a home located at 14 Windsong Court in Markham. It was a 3,300 square foot, four-bedroom home, owned by Mr. Vhora’s mother and father.

[29] Ms. Vhora said that her mother-in-law went to India one summer and on her return, told everyone that their present residence was too small. She said that the girls needed their own washroom and a contractor had said it would cost $80,000 to construct a new washroom in the Windsong Court home.

[30] Ms. Vhora said that her husband did not discuss the purchase of the home with her, but that she overheard an argument where her husband demanded that his parents put him on title to the new home. She said that he demanded this because he had been paying the mortgage on Windsong, and wished to have the benefit of those payments. Ms. Vhora said that her husband threatened to stop paying the mortgage unless his parents agreed.

[31] Eventually, Mr. Vhora and his mother purchased a home at 45 Germain Crescent, also in Markham. The transaction closed on August 31, 2006, and Mr. Vhora took title to the home with Zarin Vhora as tenants in common.

[32] Mr. Vhora says that he discussed the purchase of the new home with the Applicant, and that she was in favour of it. However, he also testified that everyone, including Ms. Vhora, openly discussed the issue of the purchase. He said that the purchase of the new home was his and his father’s idea, and that only his mother was against it. He testified that she eventually “came around”.

[33] If the purchase of the home was discussed with Ms. Vhora, it appears that the financial details were not. Ms. Vhora testified that she was never privy to the particulars of the purchase.

[34] Mr. Vhora says that he had no funds with which to purchase the home. It was his evidence that his father loaned him the money to make several deposits, as well as paying out bridge financing, since the Germain Crescent transaction closed before the sale of Windsong Court. That transaction closed on September 18, 2006.

[35] Mr. Vhora’s father also apparently paid down the mortgage of $382,492 on the Germain Crescent property. Mr. Vhora said that he borrowed a total of $202,806 from his father, and he produced a signed promissory note in this amount in favour of his father. The note was dated March 8, 2007, and the witness to the signatures on the note testified at trial. Mr. Vhora testified that he prepared this note from the internet and one of the witnesses to his signature gave evidence of his execution of the note at trial.

[36] Mr. Vhora says that he told his wife that he had to borrow money from his father to buy the home. If he did, she certainly does not appear to have known the amount of the loan or about the promissory note. She was not present when it was signed, and she testified that she did not see it until well after separation. Mr. Vhora gave no evidence that he showed his wife the promissory note. When asked whether he was considering placing his wife onto title to the home, he asked counsel why he would do that. In her submissions, Ms. Lagoudis suggested on behalf of Ms. Vhora that the note was a sham, signed after separation in order to defeat Ms. Vhora’s equalization payment.

[37] The promissory note also recites the agreement between Mr. Vhora and his mother regarding the purchase of the Germain Crescent home. Ms. Vhora put down $55,000 on the home from her share of the proceeds from the sale of Windsong Court. She also agreed to pay for major repairs or renovations on the home. According to the note, Mr. Vhora agreed to make all payments on the mortgage, and in fact doubled up the payments for a number of years while he could afford to do so. In addition, he put down $30,000 in deposits on the Germain Crescent home, plus his half share on the down payment of $55,000, all of which he borrowed from his father.

Breakdown of the Marriage

[38] Wherever Ms. Vhora placed the responsibility for this, she testified that she became extremely unhappy. She says that she obtained anti-depressants from her doctor in 2005. She says that the marriage began to break down in 2009, when Ms. Vhora visited Sandgate Women’s Shelter, where she was referred to a legal aid advice lawyer.

[39] On January 25, 2012, Ms. Vhora argued with her husband and his mother over her taking her daughter to get a flu shot. She said that in the midst of the fight and at the instigation of her mother-in-law, her husband struck her in the face. She said that she decided to leave the marriage at that point. The day after she was assaulted, she says Mr. Vhora and his mother forced her to resign from her job; she sent a subsequent email to her principal on January 26, 2012, requesting a leave of absence instead.[^6] She acknowledges planning the separation over the next week, and she picked the children up at their school and went to the women’s shelter on January 30, 2012.

[40] She says that she told her story to the intake worker at the shelter and they called the police. She denies that she wanted police involvement, but they came to the shelter and interviewed her and subsequently charged Mr. Vhora with assault. He was arrested and spent a night in jail. He was released on bail the next day. He eventually attended the PARS program, after which the assault charges were resolved through a peace bond.

[41] Ms. Vhora did not stay at the shelter. The children, used to a large middle class home, objected. Instead, Ms. Vhora arranged to stay in a hotel room with her sister for several nights, who was visiting from California. Ms. Vhora then arranged to stay with some friends of Mr. Vhora’s for several weeks. Within several months, with help from her work colleagues, Ms. Vhora and the children obtained and furnished a basement apartment.

[42] Ms. Vhora attempted to reconcile with Mr. Vhora on a number of occasions. She offered to speak with the police about withdrawing the charges, but only if Mr. Vhora met her demands. Those demands included leaving his parents’ home and purchasing a home for her and the children. Ms. Vhora also enlisted the assistance of family and friends to arrange for reconciliation; one of those individuals testified at trial. Correspondence from Mr. Vhora’s counsel confirmed the attempts at reconciliation, but stated that the matter would continue towards trial.[^7] On May 30, 2013, Mr. Vhora emailed his wife confirming that he had completed an Islamic divorce,[^8] and at that point, Ms. Vhora appears to have understood that the marriage was at an end.

[43] As noted, since separation, Ms. Vhora has managed to accumulate a substantial amount of savings.[^9] According to Ms. Vhora, she amassed most of this while she was living in the basement apartment, which had relatively low rent of $825 per month. Ms. Vhora is now in a townhome and the rent has increased to $1,600 per month. She has obtained pre-approval for a mortgage and says that the funds that she has saved will be applied to a down payment on a home for her and the children.

[44] Things have not gone as well for Mr. Vhora. He says that he has now spent most of his savings and has paid some $80,000 in legal fees. This includes $30,000 paid to his criminal lawyer to deal with the charges of assault, which he says were eventually withdrawn.[^10] Mr. Vhora had been doubling up his mortgage payments, but he has been unable to do so lately. He has been paying child support of $2,365 per month since April 2012. That has now increased to just over $2,600 per month. Mr. Vhora has also been paying $2,483 per month in spousal support since November 2013. He says that the support is an impossible burden, which has enabled the Applicant to save substantial sums of money at his expense.

Issues

[45] The parties raised a number of issues at trial and in their written submissions. The first step at trial is to deal with child support, then the equalization payment and finally the issue of retroactive and ongoing spousal support, which may be affected by the equalization payment to be received by the Applicant. The issues are therefore as follows:

a. What, if any, is the amount of retroactive child support owing by the Respondent to the Applicant;

b. What is the equalization payment owing by the Respondent to the Applicant;

c. What ongoing spousal support should Mr. Vhora pay to the Applicant; and

d. What, if any, is the retroactive spousal support owing by the Respondent to the Applicant?

[46] Within the context of the Applicant’s equalization claim, I must determine several issues. These include the validity of the promissory note presented into evidence by the Respondent in favour of his father in the amount of $202,806, as well as the claim by Ms. Vhora that her husband has a resulting trust interest in the matrimonial home well beyond his 50 percent titled interest.

Analysis

(a) What, if any, is the amount of retroactive child support owing by the Respondent to the Applicant?

[47] The parties settled the issue of ongoing child support on a final basis on October 20, 2015. Retroactive child support remains an outstanding issue.

[48] There are two issues raised by the Applicant’s submissions. The first is whether the Respondent should be ordered to pay child support for February and March 2012. Mr. Vhora only began paying child support on April 1 of that year, pursuant to the order of Rogers J., made at the first case conference on March 23, 2012.

[49] The second issue is whether child support should be adjusted retroactively based upon the Respondent’s actual salary during the years of separation.

(i) Child Support payable for February and March, 2012

[50] The parties separated on January 30, 2012. Child support payments commenced on April 1, 2012, pursuant to the order of Rogers J., made at the case conference on March 23, 2012. Mr. Vhora did not pay child support for the two months immediately subsequent to separation. As the Respondent’s income was $202,189 in 2012, support would normally have been payable for those two months at the rate of $2,607 per month.

[51] Mr. Vhora says that he does not owe anything for those two months. He said that he paid for food when the children came over and that he also bought them clothing. He further said that he paid for several school trips for the children, which cost about $130 apiece.

[52] Mr. Vhora did not quantify how much he paid for clothing. His food expenses are not set off against child support, as this is a normal cost of access. The school trips are a section 7 expense under the Child Support Guidelines,^11 and although there may have been an overpayment (as Ms. Vhora would have had to pay a portion of the school trips based upon her own income), that would be a minor amount compared to the base child support payable. As well, Ms. Vhora testified that there was need; she was unable to move from the residence of Mr. Vhora’s friends into a basement apartment until child support began to flow under the Rogers J. order.

[53] In addition, Mr. Vhora complained that he did not see the children for three weeks after separation. This means that Mr. Vhora would have had access costs only during the last week of February, a short month, and the month of March 2012. The assertion by Mr. Vhora that access was limited in the first month of separation is inconsistent with his assertion that he spent large sums of money on the children prior to commencement of child support.

[54] Child support is generally payable from the date of separation, as a new household must be maintained for those children from that date onward. Therefore, unless there is clear evidence to the contrary, a child support order usually commences as of that date. There is no such contrary evidence in this case. Mr. Vhora, therefore, owes retroactive child support for February and March 2012, in the amount of $2,607 per month, for a total of $5,214.

(ii) Retroactive Adjustment of Child Support According to Mr. Vhora’s Actual Income

[55] Counsel for the Applicant submitted that child support should have been adjusted on an annual basis according to Mr. Vhora’s income. She says that Mr. Vhora refused to adjust his child support payments when his income increased. She says that it is now time for the court to adjust child support on an annual basis from the date of separation to the date of the settlement of child support in October 2015.

[56] According to the endorsement of Rogers J. dated March 23, 2012, child support was set based upon Mr. Vhora’s 2011 income of $181,880. Therefore, under this order, which was made at a case conference (and which it is to be noted was not on consent of the payor), Mr. Vhora was ordered to pay $2,365 per month commencing April 1, 2012.

[57] Mr. Vhora’s income in 2012 was substantially higher than in 2011. He made $202,179 and should have paid child support in the amount of $2,607 per month. However, there was no adjustment in Mr. Vohra’s child support until early 2014, well after Mr. Vhora presumably became aware of his 2012 income. At that time, on February 13, 2014, Rogers J. increased Mr. Vhora’s child support payments to $2,607 per month. Mr. Vhora’s income in 2014 increased again to $204,515, and again child support was not adjusted until the final order made on consent in October 2015.

[58] Ms. Lagoudis submitted that her client had requested an adjustment of child support once she discovered that Mr. Vhora’s income had increased. She says that Mr. Callahan unreasonably refused that request on behalf of Mr. Vhora.[^12] Certainly, Mr. Vhora acknowledged in his testimony that his income had increased in 2012 and that he continued to pay child support in the amount based upon his 2011 income notwithstanding his increase in income.

[59] Mr. Callahan says that the only obligation of the court is to ensure that “reasonable arrangements have been made for child support” based upon s. 15.1(7) of the Divorce Act.[^13] He says that the arrangements for child support were reasonable and that the court should not make a retroactive award.

[60] Section 15.1(7) of the Divorce Act is not applicable in the present case. The section only applies to consent orders and Rogers J.’s interim child support order dated March 23, 2012 was not on consent. In fact, Rogers J. noted specifically in her endorsement that she was ordering child support “not on the consent of the payor.” Rogers J. also specifically noted that the subsequent adjustment of child support on February 13, 2014 was also not on consent of the parties. Section 15.1(7) is not applicable to the temporary orders made in this matter, and there is obviously no consent respecting the issue of retroactive child support. Therefore, the table amounts under the Child Support Guidelines based upon the income of the Respondent govern in the present case: see s. 3(1)(a) of the Guidelines.

[61] It is also the case that child support is calculated each year based upon the payor’s income for that particular year. As stated by Bastarache J. in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 at para. 54, “under the federal scheme, a payor parent who does not increase his/her child support payments to correspond with his/her income will not have fulfilled his/her obligation to his/her children.” Or, as stated by the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, the right of child a child to support after separation is “automatic” and the “the payor parent is or should be aware of the obligation to provide support commensurate with his or her income” (para. 208). This is especially so when there is ongoing litigation and final child support has yet to be determined in the matter.

[62] There is no issue of notice in this case, as this litigation began early on and child support was in issue from the beginning.

[63] I also agree with Ms. Lagoudis that the fact that the payor’s income exceeds $150,000 per annum has nothing to do with child support in this case. Under Francis v. Baker, 1999 CanLII 659 (SCC), [1999] 3 S.C.R. 250, the table amount is presumed to govern. It is up to the party seeking to rebut the presumption to lead “clear and compelling evidence” that the table amount is “unsuitable”, and the Respondent has not done so (paras. 40, 43).

[64] Finally, the Respondent has led evidence that indicates that his bonus is uncertain, and is paid in the year subsequent to the year it is declared.

[65] Section 16 of the Guidelines states that the court is to determine child support based upon the “Total income” heading set out in the payor’s T1 tax return. Section 2(3) of the Guidelines requires the court to determine income based upon the “most current information”.

[66] Often child support is based upon the payor’s previous year’s income, because that is the “most current information” available to the parties when child support is set. That is especially so where, as in the present case, a payor’s income has the potential to fluctuate substantially because of bonus income or similar uncertainties. That does not mean that the court is to assess support one year in arrears when determining the amount of support that should have been paid in the course of litigation that began several years prior to trial. The most current information available to the court in this case is Mr. Vhora’s actual income for the year in which it is to be paid, which is set out in his income tax return for the year in question. I agree with Mesbur J.’s statement in Tauber v. Tauber, 2001 CanLII 28234 (ON SC), 203 D.L.R. (4th) 168 at para. 44, that the “law is clear that using historical income is inappropriate.” The only time that a historical approach may be appropriate is where there is no more current information available to the court.

[67] Therefore, I find that the payor has underpaid child support and that it must be adjusted based upon the payor’s actual income during the years in question where child support was underpaid.

[68] I have reviewed the charts set out in paragraphs 124, 126, 128 and 130 of the Applicant’s closing submissions, which I have attached as Schedule A to this endorsement. Mr. Callahan made no comment respecting these calculations, which, for the purpose of this judgment and based upon the findings above, I adopt. Therefore, I find that there is a shortfall in child support from April 2012 to October 2015, in the amount of $6,138, calculated as follows:

Time Period

Amount Paid

Amount Owing

Difference (Shortfall)

April to December, 2012

$21,285

$23,463

$2,178

January to December, 2013

$28,380

$31,284

$2,904

January to December, 2014

$30,800

$31,596

$796

January to October, 2015

$28,703

$28,963

$260

Total

$109,168

$115,306

$6,138

[69] Taking into account the child support that the Respondent should have paid for February and March 2012, the Respondent owes the Applicant total retroactive child support of $11,352.

(b) What is the equalization payment Respondent owes to the Applicant?

[70] Under this heading, the parties appear to agree on the value of most of the assets owned on the date of separation: see the Respondent’s comparative net family property statement filed as an exhibit at trial.[^14]

[71] There are four major issues regarding the equalization of property:

i. The validity of the promissory note signed by the husband in favour of his father;

ii. Whether the Respondent has a resulting trust interest in his mother’s half interest in the matrimonial home;

iii. The value of the parties’ personal property to be equalized in favour of the Applicant; and

iv. Whether the children’s RESPs should be included in the Respondent’s net family property.

[72] I shall consider each of those issues in turn.

(i) Is the promissory note signed by the husband in favour of his father a valid debt for equalization purposes, and if so, in what amount?

[73] In issue under this heading is a promissory note signed by Mr. Vhora in which he agrees to pay his father, Usuf Vhora, $202,806 on demand. The promissory note purports to have been signed on March 8, 2007, and recites certain advances made by Usuf Vhora to his son in connection with Mr. Vhora’s purchase of a one-half interest in the matrimonial home located at 45 Germain Crescent in Markham.

Relevant Facts

[74] The parties had originally lived in Mr. Vhora’s parents’ home on Windsong Court in Markham. That home was sold on September 18, 2006. The purchase of 45 Germain Crescent closed prior to the sale of the Windsong Court property, on August 31, 2006. Bridge financing on the Windsong Court residence was necessary to purchase Germain.

[75] Mr. Vhora and his mother purchased the Germain Crescent home from the builder for $509,990, as tenants in common. Two $15,000 deposits were made. It is unclear who made these payments. The $110,000 down payment on the Germain Crescent home was paid from the bridge financing on the Windsong Court property, which cost Mr. Vhora’s parents financing costs of $400. Zarin Vhora and Mr. Vhora took out a $382,492 mortgage. According to the promissory note, Usuf Vhora made two further lump sum payments on the mortgage in the total amount of $108,878. The promissory note purports to secure a loan from Usuf Vhora for the two $15,000 deposits, Mr. Vhora’s one half share of the bridge financing, closing costs of $4,748 as well as the lump sum payments made on account of the mortgage. Usuf Vhora did not testify at trial and did not prove that he actually advanced these amounts under the promissory note.

[76] To put this into context, the evidence of both Mr. Vhora and his mother Zarin Vhora, who did testify, seems to indicate that there were actually two agreements concerning the purchase of Germain Crescent:

a. Mr. Vhora says that there was an agreement between himself and his mother, whereby he would take an equal share in title to the home as a tenant in common with his mother. He testified that he would assume all responsibility to pay the mortgage, and he and his mother would split the down payment of $110,000. He would pay the mortgage and utilities; his mother would pay for any major capital repairs to the property.

b. Mr. Vhora also testified about his debt to his father, as contained in the promissory note. He said that he had no money with which to make the down payment. He claims that he borrowed $202,806 from his father, being the amounts set out above for the deposits, closing costs, his half of the down payment and the lump sum payments under the mortgage. He drafted the promissory note to secure these amounts.

Positions of the Parties

[77] Ms. Vhora testified that she was not privy to the arrangements between Mr. Vhora and his parents. She says that she recalls overhearing an argument between Mr. Vhora and his parents, wherein he demanded to be put on title or he would not make payments towards the mortgage on the property. She says that the first time she saw the promissory note was when it was produced in this litigation.

[78] Mr. Vhora says that he told his wife that he had to borrow money from his father to buy a one-half interest in the Germain Crescent property, and she was made aware of this “shortly after we moved into the house.” He testified that he did not tell Ms. Vhora about the details of the promissory note because “she did not want to know about it.”

[79] First, Ms. Lagoudis claims that the promissory note is a sham and Mr. Vhora cannot deduct its value in the calculation of his net family property. She suggests that the note was not actually signed until after this litigation began, and is a fraudulent attempt to defeat Ms. Vhora as a creditor of her husband.

[80] Alternatively, Ms. Lagoudis suggests that Mr. Vhora did not adequately prove the debt. She notes that Mr. Vhora did not call his father, Usuf Vhora, to prove the monies paid by him were advances under the loan. Finally, she also suggests that the loan be rejected because of the ambiguities in its wording, and because it should be construed against the drafter of the note under the doctrine of contra proferentem.

[81] Mr. Callahan says that execution of the note was proven and that clear and unequivocal evidence is needed to prove fraud. He says that the parole evidence rule applies to prevent any oral testimony objecting to the terms of the note. It is his position that the note reflected a transaction that enabled Mr. Vhora to go on title to a home when he did not have a down payment, and that this was an interest free loan from his father.

Analysis of the Evidence

[82] I had stated earlier that the parties spent a lot of time testifying about issues extraneous to the financial issues before the court. On the other hand, there were serious gaps in the evidence concerning those financial issues. In particular, I speak of the promissory note and the evidence led respecting that note. Neither side was particularly adept at providing evidence regarding the note. Mr. Vhora failed to call his father, which I would have thought crucial to the issue of the validity of the promissory note and the advances made thereunder. Mr. Vhora was not asked to explain details of the transactions through which he purchased his interest in the matrimonial home. He was not asked by his counsel to clarify the terms of the two agreements that he relied upon, firstly the agreement with his mother as to the purchase of the home, and secondly the agreement with his father under which he borrowed the funds for the purchase of his interest in the home.

[83] On the other hand, Ms. Vhora’s counsel failed to cross examine Mr. Vhora extensively regarding the advances made by his father under the promissory note, or how Mr. Vhora could have purchased an interest in the home and where the money would have otherwise come from. This may have been purposeful, considering Ms. Lagoudis’ position that Mr. Vhora had failed to prove the deduction in his evidence in chief. However, I was left confused as to the facts regarding the promissory note and the circumstances surrounding Mr. Vhora’s acquisition of his one-half interest in the matrimonial home.

[84] Considering these gaps in Mr. Vhora’s evidence, I am mindful throughout that, under s. 4(3) of the Family Law Act,[^15] the onus of proving a deduction from a party’s “net family property” lies on the person claiming that deduction. I consider the issues raised by Ms. Lagoudis in light of the serious evidentiary issues I have noted above, along with the issue of whether the Respondent has actually proven on a balance of probabilities all or part of the debt alleged to have been incurred between the Respondent and his father.

1. Is the note a fraudulent conveyance within the meaning of the Fraudulent Conveyances Act?

Position of the Parties

[85] Ms. Lagoudis alleges that the promissory note was not signed when the Respondent says it was. She suggests that it was a sham cooked up by the Respondent and his parents in order to defraud Ms. Vhora of her proper equalization payment. She relies upon the Fraudulent Conveyances Act,[^16] which states in s. 2 that:

Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns.

[86] Ms. Lagoudis points to three major flaws in Mr. Vhora’s evidence:

• The Respondent failed to call both of the witnesses to the execution of the promissory note. Although he called Sajeda Shirazi, one of the witnesses to the note, he failed to call the other witness, Rashda Butt, who was in Canada at the time of trial and available to give evidence;

• There were inconsistencies surrounding the execution of the promissory note. Ms. Shirazi’s evidence was inconsistent with that of Mr. Vhora regarding who was present during the execution of the note; and

• Ms. Vhora was not told of the promissory note and it was only presented to her when this matter went to court. It became conveniently available only after Ms. Vhora made a claim for equalization of property.

[87] According to Mr. Vhora, he signed the promissory note in March 2007, well after the closing date for the purchase of the Germain Crescent home. One of the two witnesses to the execution of the note testified. Sajeda Shirazi, a retired teacher and family friend, said that Mr. Vhora and his parents all attended at her home on March 8, 2007 and signed the note in her presence and in the presence of a second witness, Rashda Butt. Ms. Butt did not testify at trial and Ms. Shirazi confirmed that Ms. Butt was present in the country at the time of the trial.

Assessment of the Evidence Relating to Execution of the Note

[88] There were inconsistencies between Ms. Shirazi’s evidence and that of Mr. Vhora, who testified that only he and his father attended the residence of Ms. Shirazi to execute the promissory note. Ms. Shirazi testified that Zarin Vhora was also present when the note was signed.

[89] Zarin Vhora was not asked by either counsel whether she was present when the promissory note was signed.

[90] Ms. Shirazi says that note was signed in her home and the Vhoras asked her to be a witness. She said that it was signed on the date set out in the note. She identified her signature and that of Mr. Vhora. Her evidence of witnessing the Respondent’s signature was not seriously challenged on cross-examination. It was not put to her that she had actually witnessed the signing of the note well after separation, rather than in March 2007, as set out in the promissory note.

[91] I would be hard-pressed to make a finding that Ms. Shirazi would lie about witnessing the note or the date upon which the note was executed. She is a former teacher and it would be a serious matter to perjure herself for the sake of Mr. Vhora, even though she is a family friend. The inconsistencies as to who was present in her home at the signing of the note are not serious, considering the fact that the note was signed in 2007, more than eight years prior to trial.

Conclusion on the Issue of the Application of the Fraudulent Conveyances Act

[92] I find Ms. Shirazi’s testimony to be credible and reliable. I, therefore, find that Mr. Vhora signed the note in 2007 on the date set out therein.

[93] This finding addresses sufficiently the issue of whether the note was an attempt to defraud Ms. Vhora of her equalization payment. Assuming it was signed in 2007, Ms. Vhora was not then a “creditor” of her husband within the meaning of the Fraudulent Conveyances Act: there was no evidence that either party was then contemplating separation, or there was any intention to defeat Ms. Vhora’s equalization claim. Ms. Vhora herself said she took no active steps with regard to a separation until she went to see a legal aid lawyer in 2009, two years after the note was signed. Mr. Vhora testified that the separation was a surprise to him in January 2012.

[94] This situation is distinguishable from the facts in Stone v. Stone, 2001 CanLII 24110, 55 O.R. (3d) 491 (C.A.). In that case, the deceased and his children knew that his death was near and he transferred certain assets to his children as inter vivos gifts with the intention of depleting his estate and defeating his wife’s claims under either his will or the Family Law Act. In that case, the deceased knew his death would trigger an equalization claim by his wife; in the present case, Mr. Vhora had no idea that there was the possibility of such a claim when the note was signed in 2007.

[95] As I find that the note was signed in 2007, I do not find the Fraudulent Conveyances Act applicable to this matter.

2. Is the note so uncertain as to be incapable of enforcement, or should it be interpreted contra proferentem to the Respondent?

Position of the Parties

[96] Ms. Lagoudis, on behalf of the Applicant, submits that the note is ambiguous, and therefore should be interpreted unfavourably to the Respondent, the drafter of the note. She relies upon Adams v. McLean & Dickey Ltd., 2013 ONSC 1049, which confirms that the court should only resort to extrinsic evidence in order to interpret a contract where the contract is found to be ambiguous. She notes that “where the contract is ambiguous, the application of the contra proferentem rules ensures that the least favourable to the author of the document prevails”: Hunte v. Superintendent of Financial Services and The Canada Life Assurance Co., 2014 ONSC 1270, 11 C.C.P.B. (2nd) 27 (Div. Ct.).

[97] However, in her written submissions, Ms. Lagoudis then asks me to conclude that, because of the ambiguities in the note, the note itself should “fail” and therefore be rejected as a valid deduction for the Respondent. If Ms. Lagoudis is, in fact, seeking to have the note fail as a deduction because of ambiguities on the note’s face, this is not an issue of interpreting the contract against the Respondent, but rather, declaring it to be void or voidable because of uncertainty.

Applicable Law

[98] A contract or agreement capable of interpretation is an enforceable obligation. This would include an ambiguous contract requiring extrinsic evidence to assist in interpretation. The test for whether a contract is unenforceable due to an uncertainty of terms is well established. In G. Scammell & Nephew Ltd. v. Ouston, [1941] A.C. 251 (U.K.H.L.), Lord Wright wrote:

It is a necessary requirement that an agreement in order to be binding must be sufficiently definite to enable the court to give practical meaning. Its terms must be so definite, or capable of being made definite without further agreement of the parties, that the promises and performances to be rendered by each party are reasonably certain.

[99] The Ontario Court of Appeal adopted this test in Canada Square Corp. v. Versafood Services Ltd., 1981 CanLII 1893, 34 O.R. (2d) 250. Morden J.A. stated, at para. 30, “Notwithstanding that the parties may have thought they were bound, if the essential terms of the alleged contract lack certainty, either because they are vague or because they are obviously incomplete, the result will not be a binding contract.”

[100] An agreement can only be void for uncertainty where, taking into account the extrinsic evidence available, it cannot be interpreted in any reasonable fashion to give meaning to the agreement. Those uncertainties must address the fundamentals of the agreement, and not peripheral or secondary terms of the agreement. Underlying all of this, the court must attempt to give effect to an agreement where at all possible, and must only find a contract void for uncertainty as a last resort: see Canada Square Corp., at para. 37.

Assessment of the Enforceability of the Note

[101] There is no issue that portions of this agreement are unclear. Mr. Vhora acknowledged that he had attempted to draft it from a precedent on the internet, and he admitted that the note was “worded badly.” There are several places where the promissory note is badly flawed creating potential issues as to its enforcement.

[102] The first confusion arising from the note is the fact that when the amounts as set out in the recitals are added up, they total $198,806, and not $202,806. This $4,000 difference is a small discrepancy, considering the total amount of the loan, and it was not explored or explained in testimony at trial.

[103] A more important area where the promissory note made little sense concerns the parties’ expectations as to what would be disbursed upon the sale of the matrimonial home. At the end of the recitals at the top of page two of the note, it states that the “total amount of borrowing from father Usuf Vhora by son Mohamad Moonaf is $202,806 and son promised to payback original amount plus 50 percent of profit of his share of profit.”

[104] Even Mr. Vhora and his solicitor were at odds as to what this meant. Mr. Vhora acknowledged that the note was badly drafted, and testified that what he intended was that upon the sale of the property, he would pay the entire mortgage from his share of the net proceeds, $202,806 would be returned to his father and he would retain one-half of the net proceeds, less those amounts. However, Mr. Vhora’s solicitor in his closing argument suggested (as does the promissory note) that the net result was actually worse for Mr. Vhora. Mr. Callahan says that Mr. Vhora, in addition to paying off the whole of the mortgage and paying back his father, would also have to give his father 50 percent “of his share of [the] profit”.

[105] In cross-examination at trial, a hypothetical was presented to Mr. Vhora. The proposition was that the home eventually sells for $1 million and the mortgage was then $100,000. Mr. Vhora said in testimony that each owner would then end up with $450,000 (one-half of the $900,000 left after payment of the $100,000 mortgage). He would then have to repay his mother $50,000 for her share of the mortgage paid from the proceeds of the sale of the home. He would also have to pay back his father $202,806, leaving Mr. Vhora with $197,194. Zarin Vhora on the other hand would end up with $500,000, being her net share of the proceeds plus $50,000. Usuf Vhora would have his loan repaid in full.

[106] However, based upon what Mr. Callahan said in his closing submissions, Mr. Vhora would further have to give his father one half of his “profit” (assuming that means his net proceeds after the loan and mortgage are paid), a further $98,597,[^17] leaving Mr. Vhora holding the same amount. That would leave Zarin Vhora with $500,000 and Usuf Vhora with $301,403. Under this interpretation, Mr. Vhora would be left with about $100,000 and Zarin and Usuf Vhora would together receive $800,000. And all of this after Mr. Vhora had made all of the mortgage payments throughout, while Zarin Vhora testified that she had only paid a $55,000 down payment and $25,000 for finishing the basement, for a total investment of about $75,000.

[107] Another way to view this is to put it in terms of what Mr. Vhora says he had to pay in order to obtain a one-half interest in this home. Ms. Lagoudis pointed out that in exchange for paying off the mortgage of nearly $400,000, plus the deposits and his share of the down payment, Mr. Vhora reeived a one-half interest in the Germain Crescent home. His mother was getting the same interest in the home in exchange for payment of a $55,000 by way of half of the down payment, plus some renovations. Those renovations included finishing the basement, which cost between $26,000 and $27,000. In other words, according to Mr. Vhora, he paid nearly $470,000[^18] for his one-half interest in the home, while his mother paid about $80,000[^19] for her one-half interest in the home. This is partly the basis for Ms. Vhora’s position that Zarin Vhora holds much of her share in a resulting trust for Mr. Vhora.

[108] Based upon this discussion, one might assume that the promissory note was ambiguous and that extrinsic evidence could be led to determine the terms of the note. In fact, extrinsic evidence was led as to what Mr. Vhora thought he would be repaid once the home was sold. He testified that he was responsible for the mortgage but that he would receive 50 percent of the net proceeds, and from that he would repay his mother any share of the mortgage that she paid from her share of the sale proceeds. He said that once the note was repaid, the remaining net proceeds would remain his. That was his interpretation of that clause, and that was the only extrinsic evidence regarding this provision in the note placed before the court. No other evidence was led in opposition, and Zarin Vhora testified that she did not know the details of the agreement between Mr. Vhora and his father. Usuf Vhora did not testify as to what he thought that he was owed.

[109] I must bear in mind what portions of the note are ambiguous and what portions are not. I must also take into consideration the fact that there are purportedly two agreements in issue. One is the agreement between the Respondent and his mother, which dictated how they would take title to the home and the division of expenses once they had purchased the home. The second agreement, the subject of this discussion, is the agreement wherein Mr. Vhora borrowed certain funds from his father in order to pay deposits, the down payment, the closing costs and lump sum payments on the mortgage in late 2006 and early 2007. This was done, according to Mr. Vhora, to reduce his interest payments on the mortgage.

[110] A review of the promissory note also confirms that there are two portions to the note. The first part of the note consists of “recitals”. These are not generally operative or enforceable sections of the agreement, but are intended to explain the background to the agreement and the actual working terms of the agreement. The first word on the first page of the agreement is entitled “Background” and what follows effectively recites the terms of the agreement whereby Mr. Vhora and his mother took title to the Germain Crescent home. It also outlines the money said to be advanced by Usuf Vhora to the Respondent in order to assist the Respondent in purchasing his interest in the matrimonial home along with his mother.

[111] These are the terms of the agreement on which Ms. Lagoudis cross examined Mr. Vhora, and which she submitted were unfair and improvident to Mr. Vhora. But these terms are not the operative clauses of the note, and neither Zarin nor Usuf Vhora signed the note. Even the clause at the top of page two, which confirms that the note is to be paid upon a sale of the home along with 50 percent of the profit, is a recital of fact rather than an operative term of the agreement. It states that the son “promised” to pay back his father the loan plus 50 percent of the profit. It does not state that the son “promises” to pay back 50 percent, as this would then be inconsistent with the second portion of the note.

[112] The operative or enforceable provisions of this note begin at the top of the second page. Were Usuf Vhora seeking to enforce the note, the clauses that would be in issue would be those set out in paragraphs 1 to 10 on pages two and three of the promissory note. With the greatest of respect to Ms. Lagoudis, these operative or active clauses are generally capable of interpretation. They state that Mr. Vhora owes his father $202,806 under the note, and that this amount is repayable within 30 days of written demand. There is a prepayment provision in the note and, importantly, a severability provision. Unenforceable clauses are severable from the remainder of the promissory note. This permits the court to sever off paragraphs nine and ten on page three without affecting the enforceability of the remainder of the note. These were clauses that make little sense, as they speak of a “vendor’s lien” in favour of Usuf Vhora when he was not a vendor of the home. They also speak of Usuf Vhora having a “security interest” in the property, which would be a clause effective in respect of personal property under the Personal Property Security Act.[^20] As well, if the clause regarding payment on the sale of the home was incapable of having “practical meaning”, that clause as well could be severed off from the provisions of the loan requiring payment of the outstanding amount on 30 days’ demand.

[113] Therefore, the operative clauses of the note appear to be sufficiently unambiguous so as to be capable of enforcement. Mr. Vhora testified about the one ambiguous clause that also speaks of payment. That clause can be reasonably interpreted to be a recital, and not an enforceable provision of the note. Otherwise, that particular clause, if uncertain, could be severed off from enforcement of the note.

[114] Finally, the contra proferentem doctrine is a doctrine that governs between two parties to the agreement in a contest between them as to enforcement of that agreement. I was not presented with any case law that applies the doctrine to an equalization contest where the opposing parties are the person who is relying upon an agreement with a third party and a party seeking to impugn the debt of the agreement for equalization purposes. As far as I am aware, the doctrine of contra proferentem applies to the parties to the agreement only, rather than as between a party relying on the agreement as a deduction in an equalization dispute and a third party disputing that deduction.

Conclusion on the Enforceability of the Note

[115] Accordingly, I find that the note is sufficiently certain and capable of enforcement according to its terms. It provides for a debt between the Respondent and his father for $202,806, payable on 30 days’ demand and is enforceable for at least that amount.

3. Did the Respondent fail to prove the advances purported to be secured by the Promissory Note?

[116] Although the recitals to the promissory note are confusing, they do purport to set out the advances secured under the promissory note. However, it goes without saying that if certain funds were not actually advanced, no action lies against the obligor under the note for the money not actually advanced. It is therefore a valid defence to the note to prove that the funds secured under the promissory note were not advanced.

[117] The validity of a debt is founded upon the amounts advanced in order to support the debt. The pleadings filed by the Applicant put into issue whether Mr. Vhora’s father actually advanced the money under the promissory note.[^21] All of the evidence regarding these advances was exclusively within the control of the Respondent or his witnesses, and it was incumbent on the Respondent to prove the advances under the loan.

[118] The promissory note recites that Usuf Vhora advanced certain amounts to his son that they intended to secure by the note. The note is evidence of the advance of those funds, but, as noted above, the recitals are not the operative portions of the note. The recitals in the note are only one piece of evidence; they may be contradicted by evidence at trial. Evidence contradicting the recitals is not subject to the parole evidence rule, which only goes to the operative provisions in the note. Moreover, the ambiguities in the promissory note permit extraneous evidence in order to explain those ambiguities.

[119] In my view, the amounts that Mr. Vhora did not prove that his father actually advanced pursuant to the note are not repayable. I can discount the loan based upon omissions in the evidence resulting in the Respondent’s failure to prove the note.

[120] There are four different advances stated to have been secured by the promissory note, which are as follows:

• The two $15,000 deposits on the Germain Crescent property;

• One half of the down payment of $110,000 plus half the the cost of the bridge financing of $400;

• Closing costs of $4,748;

• Lump sum payments on account of the mortgage of $108,858.

Position of the Parties

[121] Mr. Vhora made a general statement when testifying that the funds were advanced as set out in the promissory note. He said in his testimony that all of the money stated to have been paid under the note was either paid to him directly or was paid on his behalf. He entered copies of his father’s bank accounts to prove payment of the deposits on Germain Crescent.[^22] Both Mr. Vhora and Zarin Vhora testified about the $110,000 in bridge financing on the Vhora’s first home, which was used to fund the down payment.[^23] Although Mr. Vhora did not enter exhibits proving that the lump sum amounts were paid on the mortgage in late 2006 and early 2007, he did testify during cross examination that he had asked his father to pay these amounts to reduce his interest payments on the mortgage. He felt it made more sense to borrow the money from his father on an interest free basis rather than pay interest on the mortgage.

[122] Ms. Lagoudis has asked me to find that this evidence is insufficient to prove that these funds were actually advanced, at least on account of the debt between Mr. Vhora and his father as reflected in the promissory note. She suggests that the transaction only makes sense if we look at Mr. Vhora’s contribution to the purchase of the property as his payment of the entire mortgage, without the other advances being attributed to or borrowed by him; the agreements as suggested by Mr. Vhora are otherwise together entirely improvident to him. She says that Mr. Vhora’s failure to prove these advances is fatal to the Respondent’s position regarding the promissory note, as Mr. Vhora could not trace them into his interest in the matrimonial home. She suggests that the promissory note itself was an afterthought and does not reflect the agreements between Mr. Vhora and his parents, which was actually that Mr. Vhora would pay the mortgage, and Mr. Vhora’s parents would advance the funds set out in the note to pay for Zarin Vhora’s one-half interest in the home.

[123] She notes that this evidence is especially deficient, since Mr. Vhora failed to call his father, who was available during trial and was on the witness list contained in the trial management conference endorsement. Ms. Lagoudis suggests that I draw an adverse inference against Mr. Vhora in respect of his failure to call his father.

Assessment of the Evidence

The Respondent’s Evidence of Each Purported Advance

[124] I will consider the evidence in relation to each amount purported to be advanced separately.

I. Two $15,000 deposits on the Germain Crescent property;

[125] The promissory note lists the two initial deposits on 45 Germain Crescent of $15,000 each, totalling $30,000, made in August and December 2005. Mr. Vhora testified that his father paid these amounts on his behalf toward the purchase of the matrimonial home. There were serious problems with his position that these amounts were actually advanced by Usuf Vhora for his son or that they actually were Mr. Vhora’s debt under the Promissory Note.

[126] Mr. Vhora failed to explain why he would have owed the whole of this amount under the promissory note. The deposits were to the benefit of both him and his mother, and yet the note suggests that he owed the whole amount of the deposits and not half (as was the case with the down payment of $110,000, which was divided in half).

[127] Moreover, at the time of the payment of the deposits, Mr. Vhora appears to have been paying his father $1,000 twice per month. Mr. Vhora acknowledged in cross- examination that in August, September, October and November of 2005, he had been withdrawing $1,000 from his account every two weeks from a cash machine. He also acknowledged that his father had been depositing similar amounts into his own bank account at almost the same time that the withdrawals were made from Mr. Vhora’s account. Mr. Vhora was unable or unwilling to explain these payments. Usuf Vhora was not called as a witness to explain these discrepancies or whether the funds were advanced by him or actually paid by his son.

[128] I acknowledge, however, that Ms. Lagoudis did not cross-examine Mr. Vhora regarding the reason he accepted responsibility to pay the entire amount of the deposits, or to explain the fact that there were three different cheques for the deposits in question. However, as noted, she may have chosen not to cross-examine Mr. Vhora on this issue because the advances were not actually proven in Mr. Vhora’s evidence in chief.

[129] Because of these inconsistencies and problems with his evidence, along with Usuf Vhora’s failure to testify, I cannot find that Mr. Vhora has proven on the balance of probabilities that the two deposits were made by his father on his behalf, as stated by the note.

II. One half of the down payment of $110,000 plus half the the cost of the bridge financing of $400;

[130] The second amount in issue is the down payment. Mr. Vhora testified that his share of the down payment on Germain was paid by bridge financing on Usuf and Zarin Vhora’s former home on Windsong Court in Markham, and that $110,000 was advanced from this bridge financing to purchase the home on Germain Crescent.[^24] There was, in addition, $400 in financing costs.

[131] Mr. Vhora was not cross-examined on this issue by Ms. Lagoudis. Zarin Vhora testified that of the $110,000 down payment, she paid her half of $55,000 from Windsong Ct. She asserted, about the other half of the down payment that, “Mike [Mr. Vhora] paid it” but that she and her husband had “made a deal” but she did not know what that deal was.

[132] Ms. Lagoudis suggests that there was never originally any division of the down payment between Mr. Vhora and his mother, but that Mr. Vhora’s parents paid this amount as part of their share of the purchase of the property. This was not suggested to Zarin Vhora when she testified. She said that she did not know what Mr. Vhora’s agreement was with her husband.

[133] There was no evidence, other than what was testified to by Mr. Vhora, that the advance of $55,000 set out in the note was advanced by Usuf Vhora under the note on behalf of Mr. Vhora. Usuf Vhora did not testify that he advanced one-half of the down payment on his son’s behalf. Zarin Vhora was unable to testify as to any arraignment made between Mr. Vhora and his father. I find that Mr. Vhora’s testimony on this issue, as was the case generally respecting the issue of advances under the note, to be insufficiently reliable to permit me to make a finding on the balance of probabilities that Usuf Vhora advanced the funds for the down payment by way of loan to Mr. Vhora. As will be discussed below, it is as likely that this was an arrangement between Mr. Vhora and his parents wherein he would pay the mortgage, and his parents, who were cash rich but income poor, would pay the down payment and other advances to purchase the home. Mr. Vhora, has therefore not met his onus of proving that his father advanced $55,000 to him as set out in the promissory note.

III. Closing costs of $4,748;

[134] The third item that the note purports to secure is the amount of $4,748 for closing costs. Mr. Vhora did not testify as to these closing costs, which I assume were legal fees and land transfer tax respecting the purchase of the home on Germain Crescent.

[135] Although Mr. Vhora made a general statement that the amounts set out in the recitals were advanced on his behalf, no particulars of certain of these advances were provided in his testimony. He failed to testify as to the amount of the closing costs that he said were paid by his father. Again, as noted by Ms. Lagoudis, Usuf Vhora could have easily been called as a witness, but was not.

[136] If the total amount of closing costs was $4,748, Mr. Vhora proffered no explanation as to why he bore the entire amount, rather than his one-half share. I do not even know what the total of the closing costs were.[^25] Mr. Vhora failed to prove that the closing costs were paid on his behalf or that they were secured under the promissory note.

IV. Lump Sum Payments Made Towards Mortgage Totalling $108,858

[137] The largest advances recorded in the note were two balloon payments on the mortgage, which totalled $108,858. Again, when he testified in chief, Mr. Vhora did not specifically address these payments. The promissory note recites that these payments were $57,373, made in October 2006, and $51,485, made in January 2007. Although the Respondent’s document book contained a bank statement of Usuf Vhora that was intended to show that he had, in fact, made these payments, that particular document was not referred to or proven at trial. It was not made an exhibit. Again, Mr. Vhora’s father was not called as a witness to prove that these advances were made on behalf of Mr. Vhora.

[138] Mr. Vhora did address these payments in cross-examination. In answer to questions posed by Ms. Lagoudis, he testified that he borrowed this money to pay down the mortgage because he wanted to “remove as much interest from the mortgage” that he could. When asked why his father had just not paid more money at the beginning to reduce the principal amount of the mortgage, he had no answer. He also could not recall the discussions that he had with his father about borrowing these funds. The pre-payment provisions in the mortgage that would have allowed these advances were not placed before the court.

[139] This is, by far, the largest amount said to be owed under the promissory note. Based on Mr. Vhora’s evidence that he had agreed with his mother that he was responsible for the entire amount owing under the mortgage, the amount of any money paid toward the mortgage would be to the account of Mr. Vhora. This can be distinguished from the deposits and the closing costs, which were not subject to a similar agreement and which therefore went to the benefit of both co-tenants.

[140] In this case, Usuf Vhora’s evidence was crucial to prove that these advances were actually made on Mr. Vhora’s behalf and why they were made well after the date of closing. It may have been because the funds were only available from the sale of the Windsong Court home on September 18, several weeks after the purchase of the Germain Crescent home closed, but it is not for me to speculate as to the reason for the reason for these late advances. No evidence was led as to the terms of the mortgage or what pre-payment privileges were available thereunder.

[141] Mr. Vhora failed to lead evidence sufficient for me to find, on the balance of probabilities, that the advances made by Usuf Vhora on the mortgages were loans advanced for the benefit of Mr. Vhora or were secured by the promissory note.

Drawing an Adverse Inference From Mr. Vhora’s Failure to Call His Father

[142] Ms. Lagoudis suggests that an adverse inference be drawn against Mr. Vhora by reason of his failure to call his father as a witness. That adverse inference would obviously be drawn in respect of the advances that he stated were made to purchase the property as secured by the promissory note, as well as the terms of the various agreements propounded by the Respondent. Ms. Lagoudis says that Usuf Vhora could have confirmed the purposes for which he advanced funds to purchase the home, and that they were intended as loans to Mr. Vhora at the time of advance. She also says that the failure to call Usuf Vhora , in effect, disproves Mr. Vhora’s contention that these funds were loaned to him.

[143] In Bishop-Gittens v. Lim, 2015 ONSC 3971, 75 C.P.C. (7th) 121, McKelvey J. reviewed the case law and set out the criteria necessary to draw an adverse inference by reason of a party’s failure to call a witness:

(a) The witness must have key evidence to provide;

(b) There must be no adequate explanation for the failure of the party to call the witness; and,

(c) The witness must be within the exclusive control of the party against whom the adverse inference is sought to be drawn (para. 17).

[144] In the event that a party fails to call a witness under these circumstances, “[s]uch failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case or at least would not support it.”[^26] This is particularly so where, as in the present case and as reflected in the trial management conference endorsement filed on October 20, 2015, the party had agreed to call the particular witness at trial.

[145] The failure to call Usuf Vhora fits within the criteria noted above in Bishop-Gittens. He was a witness on the Respondent’s witness list and within the Respondent’s control. He had crucial evidence to provide on the purported loans between Mr. Vhora and Usuf Vhora. He was available to testify but did not.

[146] Usuf Vhora was available to be called as a witness. This was confirmed by Zarin Vhora during her testimony. He certainly could have corroborated Mr. Vhora’s evidence regarding advances made under the promissory note. He could have answered questions as to whether he made all of the deposits and why there were three cheques for two deposits.[^27] This is especially important, as there was evidence that Mr. Vhora was paying his father $1,000 twice a month when the deposits were made and Mr. Vhora could not explain these payments when cross-examined about them.

[147] I am concerned that the Respondent’s failure to call his father is because his father may have provided evidence that would counter the Respondent’s evidence of the advances made under the promissory note. This is especially concerning, since the promissory note was signed months after the advances were stated to have been made to or on behalf of Mr. Vhora. The Respondent must prove that Usuf Vhora intended to loan the funds to Mr. Vhora at the time the funds were advanced. The note does not prove this; Usuf Vhora is not a signatory to it and the note only purports to confirm a state of affairs which existed at the date of execution. No testimony was offered as to why it was signed when it was. Without Usuf Vhora’s testimony, the note is merely self-serving to Mr. Vhora. The sole witness who can prove that he intended to lend these funds was Usuf Vhora, and he was absent.

[148] Had the note been drafted contemporaneously with or prior to these advances, as is usually the case, then the advances could easily be connected to the note. Without that sequence of events, it is incumbent on the Respondent to prove that the note was not an afterthought intended to create a loan that did not previously exist; the note cannot make a set of circumstances a loan when it was not originally intended as such.

[149] Finally, considering the fact that Usuf Vhora was on the Respondent’s witness list, he should have been made available to Ms. Lagoudis for cross-examination purposes.

[150] Therefore, the Respondent’s failure to call his father causes me to draw an adverse inference against Mr. Vhora. Certainly, Usuf Vhora’s testimony would have been crucial regarding the issue of whether the funds were advanced as a loan to the Respondent or as a means of equalizing the contributions between the Respondent and his parents to the purchase of the property, as suggested by Ms. Vhora in her pleadings.

V. Conclusion

[151] As summarized above, I have serious concerns surrounding the fact that Usuf Vhora was not called as a witness to confirm the advances purported to have been made under the promissory note. This is respecting all of the advances said to have been made under the note, and not just the advances towards the mortgage.

[152] Although I do not find the note to be contrary to the Fraudulent Conveyances Act, I also do not find that it is an obligation that necessarily reflects a debt between the Respondent’s father and himself. I do not wish to speculate on the reasons why the Respondent signed the promissory note on March 8, 2007; certainly, there was no evidence of marital stress at that time that would have given the Respondent reason to attempt to reduce any potential equalization payment or to make the home unavailable to Ms. Vhora. However, the note, which was signed seven months after the Germain Crescent closing, and two months after the last advance of funds was made, is not reflective of the transaction under which the Respondent took title to the home. I do not find that the Respondent has proven that the funds paid by Usuf Vhora were funds advanced by way of loan to the Respondent.

[153] This also takes into account the fact that I do not believe Mr. Vhora’s evidence about his purchase of the home. He was evasive when questioned about the $1,000 withdrawals from his account and deposits into his father’s account. He was evasive when questioned about the details of the mortgage pre-payments and the reason for those payments. And Zarin Vhora said in her testimony that she knew little about the arrangement between her husband and Mr. Vhora or the financial details concerning the purchase of the home. Her evidence on this point is also unreliable.

[154] I, therefore, disallow the loan reflected by the promissory note as a deduction in this equalization calculation.

(ii) Does the Respondent have a resulting trust interest in his mother’s half interest in the matrimonial home?

[155] As I have found that Mr. Vhora has not sufficiently proven the loan as reflected by the promissory note, I am left to determine what the intentions of Mr. Vhora and his parents were when he accepted a transfer of the property. We know that he obtained a one-half interest in the home on Germain Crescent. His evidence was that he owes his father money in exchange for the transfer of the property. Counsel have given little guidance on this issue, and Mr. Vhora’s evidence was lacking and without clarity. I am, however, prepared for the purposes of equalization of property to make the following findings concerning the purchase of Germain Crescent:

a. When the purchase of the property was being discussed, Mr. Vhora wished to be placed onto the title of the property. This is confirmed by both Mr. and Ms. Vhora, who said that she overheard an argument between the Respondent and his parents wherein he was demanding to be placed on title to the property or he would stop assisting with household expenses.

b. It is unclear whether Mr. Vhora contributed to the initial deposits on the property. He was paying his father $1,000 twice per month when the deposits were paid. There were only two $15,000 deposits required under the agreement of purchase and sale and it is unclear who actually paid those deposits.

c. Usuf and/or Zarin Vhora were proven at trial to have contributed the following funds to the purchase of the property:

i. The down payment raised through bridge financing from Mr. Vhora’s parents’ property at Windsong Ct. in Markham (the other half was paid by Zarin Vhora, the co-owner of that property) in the amount of $110,000; and

ii. Lump sum payments made toward the mortgage in late 2006 and early 2007, in the total amount of $108,858.

d. Mr. Vhora agreed to pay the mortgage payments and utilities for the house on Germain Crescent. Zarin Vhora agreed that she and her husband would pay for food and that she would pay for renovations and major repairs to the property throughout. She said that she paid about $25,000 towards the basement renovations. However, she said that her husband had actually paid for the renovations, but that the money came from her account. She purported to know very little about the financial arrangements made by her husband.

e. For a time, Mr. Vhora doubled up his mortgage payments on the property until he was no longer able to do so because he had to pay spousal support. This leads to an inference that he was doubling the payments to reduce the balance owing under the mortgage, which confirms that he understood that he was responsible to pay the whole of the mortgage when the home was sold. For what other reason would he have doubled up the payments where possible?

f. Ms. Vhora was excluded from these negotiations and was not privy to any of the details of the transaction. She was not shown the note and was not offered a position on the title of the property with her husband.

Position of the Parties

[156] Ms. Lagoudis submits that I should make a finding of resulting trust in favour of Mr. Vhora, giving him a greater than equal share of the property. This is based upon her suggestion that Zarin Vhora contributed only $55,200 towards the purchase of a $510,000 home, leaving Mr. Vhora to pay the remaining amount toward the purchase of the home. She suggests that Mr. Vhora be attributed with a 90 percent resulting trust interest in the home as a result. She argues that the parties’ intentions must be determined as of the time that the home was transferred to the two co-tenants, and based upon the payments made at that time, Mr. Vhora should be presumed to hold 90 percent of the property by virtue of a resulting trust.

Applicable Law

[157] A purchase money resulting trust may arise where one person buys property and has it conveyed into the joint names of him and another. As the Supreme Court stated in Rascal Trucking Ltd. v. Nishi, 2013 SCC 33, [2013] 2 S.C.R. 438, “[i]n the context of a purchase money resulting trust, the presumption is that the person who advanced purchase money intended to assume the beneficial interest in the property in proportion to his or her contribution to the purchase price” [para. 29].

[158] Likewise, in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, the Court emphasized that the key factor in determining whether the presumption applies is the intention of the transferor at the time of the transfer [para. 59]. The Court instructed that “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention. Thus … the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities” [para. 44]. [Emphasis added.]

Analysis of the Evidence

[159] To find a resulting trust, there must be, as a pre-condition to such a finding, a gratuitous transfer to the recipient of the property. Considering my finding that the loan between Mr. Vhora and his father was not proven, that cannot be the case. I can only find that Mr. Vhora paid 90 percent of the purchase price of the property if I also find that he owes his father $202,806 for these advances. I have found, however, that this is not a debt for equalization purposes and that Mr. Vhora has not proven that he owes that amount to his father.

[160] Based upon that finding, it was not Mr. Vhora but Mr. Vhora’s father, or perhaps his mother, who paid the majority of the funds down towards the purchase of the property. The evidence from Mr. Vhora was uncontradicted that he certainly did not pay these funds, and they could not have come from anywhere else other than from Usuf and/or Zarin Vhora.

[161] However, very little evidence was provided regarding the first agreement, which was supposedly only between Mr. Vhora and his mother. I have determined that Mr. Vhora has failed to prove that the advances made by Usuf Vhora were actually borrowed by Mr. Vhora. From the evidence at trial, or the lack thereof, it is unclear who was responsible for what in the purchase of the Germain Crescent property.

[162] There was also evidence, however, that the purchase of the matrimonial home was an enterprise between Mr. Vhora and both of his parents. The pleadings filed by Mr. Vhora speak of a loan from his “mother and father”[^28] as do many of the financial statements filed by Mr. Vhora.[^29] As well, Mr. Vhora confirmed in his evidence that he had arranged with his “parents” that he would be placed onto the title of the Germain Crescent property; Ms. Vhora also confirms that she overheard a heated discussion between the Respondent and his parents wherein he demanded to be put on the title to the property. This confirms that the arrangement appears to have been between Mr. Vhora and both his parents. The witness to the execution of the note testified that Mr. Vhora and both his parents were present when the promissory note was signed; if accurate, this also suggests that both parents were involved in this transaction.

[163] It also makes more sense financially if the advances supposedly made by Usuf Vhora were actually made by both of Mr. Vhora’s parents from the net proceeds of the sale of their home located on Windsong Court. The transaction becomes immediately less improvident and more equitable if this is the case. In that case, assuming Mr. Vhora’s parents paid the deposits and the down payment along with the lump sums on the mortgage and the basement renovations, they would have contributed about $276,000 to the purchase of the property, which was purchased for about $510,000.[^30] Taking into account that the mortgage was $382,492, and Usuf and Zarin Vhora paid down $108,858, Mr. Vhora would then become responsible for just over $270,000 of the the purchase price of the property by assuming responsibility to pay the remainder of the mortgage.[^31] This is far more equitable than what Ms. Lagoudis suggested, which is that Ms. Vhora had only contributed about $55,000 to the purchase of a $500,000 property. It is a division of responsibility that makes sense, insofar as Mr. Vhora’s parents had cash and limited pension income, and Mr. Vhora had a much greater income with which he could pay the mortgage and utilities.

[164] That said, I have no evidence of such an arrangement. But it is important to look at all possible scenarios in light of the applicant’s request that I find a resulting trust in favour of Mr. Vhora, giving him a greater interest in the home because of his inordinately large contribution to the property.

[165] The suggestion was that I restrict Zarin Vhora’s interest in the property to ten percent of the value of the property and that Zarin Vhora’s interest be impressed with a resulting trust in favour of Mr. Vhora, giving him an overall 90 percent interest in the property. If, however, I find that Mr. Vhora is solely responsible for the mortgage with no corresponding debt to his father, then both he and his parents have made an equivalent contribution to the matrimonial home and there is no gratuitous transfer to Zarin Vhora. That appears to be what I am left with if I disallow the debt purported to be secured by the note. Thus, there cannot be a finding of resulting trust as there is no gratuitous transfer to Mr. Vhora’s mother. This has to be based, however, on me finding that Mr. Vhora is, as he testified, responsible for the entire amount of the mortgage on the matrimonial home less the lump sum payments made on the mortgage.

[166] Based upon this, and based upon the evidence of both Zarin Vhora and Mr. Vhora concerning the advances of funds to the matrimonial home, and their respective responsibilities for expenses concerning the home, I make the following findings:

• There is no resulting trust interest in the home in favour of Mr. Vhora;

• Mr. Vhora owns a 50 percent interest in the matrimonial home on the date of separation to be equalized with Ms. Vhora;

• Mr. Vhora is solely responsible for the mortgage debt against the matrimonial home as of the date of separation, and the entire amount of this debt shall be placed on his side of the ledger for equalization purposes.

(iii) What is the value of the parties’ personal property to be equalized in favour of the Applicant?

[167] When Ms. Vhora left the matrimonial home, she left all of the family’s belongings in her husband’s possession. Mr. Vhora had not included the value of the personal property left in the home in his financial statement because, as he testified, he expected it to be divided. He acknowledges now that this was not done. As far as I can see, even the children’s items remain in Mr. Vhora’s possession. Ms. Vhora testified that she relied upon family and friends to furnish her apartment and that the children, until recently, did not have beds but slept on mattresses on the floor in their rooms.

[168] Ms. Vhora provided a list of items from the home that she said belonged to the parties and remained in the hands of Mr. Vhora.[^32] In her net family property statement, she estimated the value of these items as being $18,000. Ms. Vhora acknowledged that she was not qualified to appraise these household contents.

[169] Mr. Vhora has provided an appraisal of the items that he says belonged to both parties and which Ms. Vhora left in the matrimonial home. That appraisal sets out a fair market value of the items on the date of separation as $4,750.[^33] No objection was taken by Ms. Lagoudis to entering this appraisal without calling the author of the document; indeed, considering that what we are dealing with is household contents, Rule 2 of the Family Law Rules (proportionality) would have dictated no less.

[170] In his testimony, Mr. Vhora addressed each item that he claimed he owned exclusively, and provided an explanation or a provenance of each item to demonstrate title. He addressed these items in a concise and believable fashion. I find his evidence to be compelling and persuasive and I accept his evidence of ownership of the household contents as provided for in his evidence.

[171] It is a common mistake for parties to overvalue household contents. The fair market value of these items is often much less than what a party thinks them worth. The real question is what these items would fetch in a garage sale or auction, which would be modest considering we are discussing the values of used furniture and electronics. The appraisal provided by Mr. Vhora reflects a realistic value for household contents; Ms. Vhora’s estimate of value is inflated and she was admittedly not qualified to value the contents of the home.

[172] I therefore find that the household contents are valued at $4,750 for equalization purposes and this amount is to be placed on the Respondent’s side of the ledger.

(iv) Should the children’s RESPs be included in the Respondent’s net family property?

[173] The Respondent holds RESPs for the children. On the date of separation, these accounts contained well over $40,000. These are funds earmarked towards the children’s education, should they eventually attend a post-secondary institution. Portions of these funds are made up of government grants and tax free interest; a portion would be returned to the contributing parent if the child does not go on past high school.

[174] The Applicant seeks in her Closing Arguments to exclude these assets from equalization because they are held in trust for the children and as such are not property within the meaning of the Family Law Act.

[175] The Applicant and the Respondent appear to have agreed to this as neither party has included it as an asset for equalization purposes in their respective net family property statements.[^34] The parties appear to be in agreement with the proposition that the RESPs are not to be equalized between them.

[176] I expect that this agreement means that the RESPs will be seen as a contribution by the children to their education when section 7 expenses are being negotiated between them when the children begin to attend at university or college.

(v) Calculation of Equalization Payment

[177] I have attached a net family property statement as Schedule B to this judgment. I have incorporated into that net family property statement the findings I have made above.[^35]

[178] The equalization payment owing by the Respondent to the Applicant is $202,727.85. Taking into account the deduction for the vehicle agreed to by the parties,[^36] the net amount payable is $181,909.96. Judgment shall go in that amount. As the Respondent has had use of the property reflecting the majority of the equalization payment, the matrimonial home and his bank accounts, pre-judgment interest shall be assessed under the Courts of Justice Act[^37] from the date of separation to the date of payment.

(c) What, if anything, should the Respondent pay by way of ongoing spousal support?

[179] I must determine three issues as raised by the submissions of the parties:

i. Is the Applicant entitled to spousal support and on what basis?

ii. Should income to be imputed to the Applicant?

iii. What is amount of spousal support payable by the Respondent?

[180] I will deal with those issues in turn.

(i) Is the Applicant entitled to spousal support and on what basis?

[181] The Applicant claims compensatory spousal support. She bases this claim on her financial oppression that she says she suffered during the marriage. The Applicant submits that she was economically disadvantaged by the marriage and her treatment at the hands of the Respondent’s family and, by extension, the Respondent.

[182] The Respondent denies that the Applicant was disadvantaged. He says that she was able to foster a career and continues to work in that career during and after the marriage. In fact, the Applicant was able to save some $40,000 after the date of separation. He says that the Applicant and the Respondent shared in the child rearing duties equally until separation. He denies the Applicant’s evidence respecting her treatment during the marriage.

[183] Section 15.2 of the Divorce Act speaks to spousal support orders. As this is a divorce proceeding, that section is applicable.

[184] Section 15.2(4) speaks to the factors to be taken into account in awarding spousal support; this is the “entitlement” subsection of s. 15.2:

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.

[185] The parties cohabited for roughly 15 years. The major issue under this subsection is the roles each party assumed within the marriage.

[186] As set out in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, there are three grounds for entitlement for spousal support: compensatory, non-compensatory and contractual. Depending upon the grounds for which the spousal support is ordered, the objectives must be tailored to address that basis for entitlement.

[187] Contractual spousal support is not in issue. Other than any immigration concerns, which expired upon Ms. Vhora receiving her Canadian citizenship, there is no issue of an agreement to pay spousal support.

[188] While non-compensatory spousal support is based upon the means and needs of the parties, compensatory spousal support is meant to compensate a spouse for the loss of economic opportunity or for economic disadvantage resulting from the roles that each spouse had within the marriage: see Moge v. Moge, 1992 CanLII 25, [1992] 3 S.C.R. 813. For example, a homemaker in a traditional long-term marriage who raised the parties’ children has a clear entitlement for compensatory spousal support. The issue is whether Ms. Vhora has suffered economic loss as a result of the marriage.

[189] Ms. Lagoudis submits that her client has suffered such a loss. She says that Ms. Vhora was not able to accumulate funds during the marriage by reason of her husband’s treatment. As well, her career path was delayed for a number of years until her husband married her and sponsored her for Permanent Residency. She says that her role was that of a traditional caregiver of the children during their pre-school years, and that she was only permitted to go back to work at the sufferance of her husband and only subject to certain conditions. Finally, she says that she was prevented from becoming a teacher, which was a career that she wished to pursue earlier in the marriage.

[190] However, his is not a situation where the claimant had no career at the end of the marriage. Ms. Vhora has a bachelor’s degree in Sociology from the University of Bombay, and has worked for the York Region Board of Education as an educational assistant at Coledale Public School in Markham since August 2004.

[191] There is no question that this marriage was an extremely traditional marriage. Ms. Vhora had little economic power within the marriage, and was under the financial control of her husband and his family. There are four examples which prove this to be the case:

• Ms. Vhora was forced to hand over all of her paycheques to her husband other than a $100 “allowance” for personal expenses;

• Ms. Vhora both worked outside the home and was responsible for many domestic chores within the home, as exemplified by a list of jobs prepared in a negotiation to reduce her work load;

• Ms. Vhora was kept in the dark about the purchase of the Germain Crescent home;

• Ms. Vhora was forced to resign from her job by her husband and his mother;

[192] The most blatant example is the fact that Ms. Vhora was forced to hand over her entire bi-weekly paycheque to her husband apart from a $100 “allowance” for her personal needs. Ms. Vhora says that when she began to work at the York Region District School Board as an educational assistant in 2004, she was only able to do so with the permission of her husband. She said that her husband allowed her to work only on condition that she gave him her entire paycheque when it was deposited into her account. She said that the amount she was permitted to spend on herself was $100 per paycheque, which was increased later in the marriage to $200 per paycheque. When this was occurring, Ms. Vhora was netting about $1,200 bi-monthly for the ten months of work a year that she worked with the school board. Other than the “allowance” permitted to her by Mr. Vhora, the money she made was viewed by Mr. Vhora and his mother as the family’s money and was withdrawn by Mr. Vhora from the joint account that the parties had together.

[193] The bank statements from the joint account confirm this to be the case[^38] and Mr. Vhora does not deny that from 2004 until separation, he appropriated all of Ms. Vhora’s paycheques other than what he referred to as Ms. Vhora’s “allowance” (which he later acknowledged to be a poor choice of words). He denies, however, the evidence that this arrangement was the condition by which Ms. Vhora was permitted to work outside the home. He says that Ms. Vhora herself approached him because she had had difficulties in managing money that she made from an earlier work position, and asked him to help her “save” and “manage” her money. This, he said, was in the context of her needing a new bank account, and he suggested a joint account at PC Financial where whe would deposit her paycheques, after which he would withdraw the entire paycheque other than the allowance. He acknowledges that he used the Applicant’s income in payment of family and household expenses.

[194] If the goal was for Ms. Vhora to save money, it failed. The Applicant was left with little or no savings when she left the marriage in January 2012, while Mr. Vhora had significant savings. When the Applicant asked for $10,000 for a trip to India with the children in 2011, she was asked to list what she did with her money and she produced a list of expenditures between September and December 2011.[^39] Mr. Vhora acknowledges that he demanded this from his wife but said that this was a one-time event. He said that her request for $10,000 was completely unreasonable, notwithstanding the fact that he had had the use of almost all of the Applicant’s money from their joint account for about five years at the time.

[195] On the other hand, Ms. Vhora said that it was not her husband, but his mother who demanded the list. She said that she had to produce the list of expenditures monthly, although she could only produce the list from late 2011.

[196] I accept the Applicant’s evidence that this arrangement indicated that the Respondent, and perhaps his mother, intended to control and manage the Applicant’s money. I do not, however, accept that this was to assist the Applicant in saving money, as asserted by Mr. Vhora. There was no evidence that Mr. Vhora “saved” any funds on behalf of Ms. Vhora and she had no savings on the date of separation. There was also no evidence of budgeting or managing money on behalf of Ms. Vhora. She earned money used by Mr. Vhora in paying the expenses of the family. He admitted on cross-examination that these funds may have assisted him in saving funds in his own name. The evidence confirms as well that Ms. Vhora had no influence or involvement in the financial decisions made in the household in which she lived. Finally, if Ms. Vhora was incompetent with her money, she proved to be extremely adept in saving money after separation; she had accumulated savings of some $43,000 by the time she had sworn her financial statement prior to trial on October 27, 2015.[^40]

[197] A further example that speaks to Ms. Vhora’s role within the household was the list of jobs that she was supposed to do, and her need to enter into a negotiation to reduce her workload within the home.[^41] This list was prepared by Ms. Vhora and appears to have been dated March 29, 2009. If she was responsible for all of these jobs as well as her own employment and a large part of the child rearing, she was truly hard at work at domestic chores during those years. The fact that she was able to enter into a negotiation regarding the work she was doing in the home belies the issue of whether she was truly under the thumb of her mother in law. However, there is no question that Ms. Vhora was continuing to shoulder a large number of domestic responsibilities, notwithstanding her full time employment at the time.

[198] Another example that leads me to this conclusion concerns the purchase of the Germain Crescent property in 2006. Ms. Vhora gave evidence that she was never told about the proposed purchase of the property. She says she found out about it when she overheard her husband arguing with his parents about the purchase of the property. She also says that no one told her of the “loan” from her husband’s father.

[199] Mr. Vhora has a different version of this. He says that Ms. Vhora was a participant in the discussions regarding the new home. He says that he told Ms. Vhora that he had to borrow money from his father to buy the home. Ms. Vhora denies this. However, if she was told, Mr. Vhora acknowledges that his wife knew none of the details of the transaction because “she did not want to know”. She was not placed on title, but had to go to the real estate lawyer to sign documentation, presumably to provide a spousal consent to the mortgage. Mr. Vhora admits that he only told her that he had borrowed money from his father after the Germain Crescent transaction closed.

[200] Finally, after the altercation that occurred on January 25, 2012, Ms. Vhora says that her husband and his mother forced her to resign from her post at Coledale Public School. This confirms the level of control that her husband had over her within the marriage. I find her evidence particularly compelling, as she has produced an email that she sent to her principal withdrawing her resignation and asking for a leave of absence instead.[^42]

[201] All of this together leads me to find that Ms. Vhora was part of a very traditional marriage. She had no control over her own funds, and I do not find that this was a matter of choice. I prefer her evidence over her husband’s, especially considering that her husband did not save any funds on her behalf. I also find that she had a domestic role within the marriage, which would have left her with little time outside of work to do anything other than her duties around the household and care for the children. I also find that her evidence that she was kept in the dark about the home purchase was accurate. That is confirmed by the fact that Ms. Vhora’s original application states that “it is unknown whether the Respondent’s mother paid any consideration for her 50 percent interest in the property”.[^43] It is apparent that Ms. Vhora had little knowledge of the transaction under which her husband purchased his interest in the matrimonial home at the time that application was issued in February 2012. Finally, her evidence of a forced resignation is corroborated by the email by Ms. Vhora to her principal withdrawing that resignation.

[202] The major issue is whether these factors have resulted in an economic disadvantage to the Applicant. Notwithstanding the fact that she was within a traditional marriage, she was able to pursue a successful career as an educational assistant working with troubled and autistic children. The fact that she received support from both staff and the administration of Coledale Public School speaks to her success. She is obviously well liked, popular and successful at that school. I am also not convinced that the permanent residency was delayed because Mr. Vhora or his mother would not permit it. Ms. Vhora had to obtain a divorce and marry Mr. Vhora before he could request permanent residency for her as his spouse, and I have no evidence or legal authority that cohabitation alone could permit a spouse to sponsor another as a permanent resident. Ms. Vhora went through the religious marriage in 1997, but only legally married Mr. Vhora in 2000. She was not divorced until September 1998. Accordingly, there was a delay of two years at most between the divorce and marriage and Ms. Vhora received her permanent residency the next year in 2001. I do not find that the issue of permanent residency and the commencement of Ms. Vhora’s career was related to her role within the marriage.

[203] Ms. Vhora also complains that she would have had her own financial resources had she been permitted to keep her paycheques and contribute to the household expenses in another way. However, assuming that Mr. Vhora was able to accumulate savings as a result of his appropriation of his wife’s paycheques, those savings, which are substantial, are being equalized in this proceeding.

[204] The final issue raised by Ms. Vhora is whether she would have furthered her career and become a teacher had she been permitted to do so. Her evidence was that she was interested in doing this, but that she was prevented from doing so by Mr. Vhora’s mother.

[205] She said that she had her degree from the University of Bombay evaluated in 2000.[^44] She was considering going to teacher’s college, and had she done so at the time, she would probably have had a different and more lucrative career path. She testified that she thought that her husband would have paid for teacher’s college and that he was in favour of her attending. She said that Zarin Vhora prevented her from going, and said that she only wanted to go to teacher’s college to become self-sufficient and leave the marriage.

[206] Neither Mr. Vhora nor Zarin Vhora testified about this issue, although Mr. Vhora has asked to impute income partly because Ms. Vhora could now become a teacher and earn more income than she is now earning.

[207] It is a nice question whether I can hold a spouse liable for a compensatory claim when the claimant’s evidence is that it was not her husband, but his mother, who was responsible for the loss in career opportunity. Going back to fundamentals, however, Moge confirms that it is the roles within the marriage, rather than personal blame or responsibility, which results in a compensatory claim. The marriage in this case was troubled, as far as Ms. Vhora was concerned, by her husband’s failure to obtain a separate household for herself and her children. Mr. Vhora bears some responsibility, at least, for this occurring. As well, the control over Ms. Vhora’s career exercised within that household is evidenced by the demand in January 2012 that Ms. Vhora quit her job, which she had to rescind by the email sent to her principal.

[208] I find, based upon the marital history, as well as the parties’ respective financial circumstances at present, that there is an entitlement to spousal support and that there is a compensatory element to that entitlement. It is difficult to speculate about what might have happened had Ms. Vhora gone to teacher’s college, but I do believe that it was not her choice that this did not occur. Had Ms. Vhora been able to go to teacher’s college, and had she obtained a position as a teacher (something that Mr. Vhora appears to be now demanding), she would have had a greater income and a greater opportunity at self-sufficiency than she now has.

(ii) Imputation of Income

[209] Mr. Vhora’s counsel, in his final submissions, sought imputation of income based upon the factors set out in s. 19(1)(a) of the Child Support Guidelines (which can be applied to imputation of income in a spousal support case: see Rilli v. Rilli, 2006 CanLII 34451 (Ont. S.C.J.) at para. 28). That section permits imputation of income where a “spouse is intentionally under-employed or unemployed” unless that under-employment is related to caring for a child under the age of majority.

[210] To find a payor to be “intentionally” under-employed does not require a finding of bad faith; all that must be shown is that the actions of the paying spouse were “voluntary act[s]”: see Drygali v. Pauli, 2002 CanLII 41868, 61 O.R. (3d) 711 (C.A.) at para. 28. According to Mr. Callahan, the Applicant is intentionally under-employed for two reasons:

• The Applicant could have gone back to university for a teaching degree, resulting in a greater amount of income on an ongoing basis;

• The Applicant has taken most summers off, and has gone to India with the children to see her parents. She should be working during the summer rather than swanning around with her children.

• She could work part time as a tutor, and earn extra income that way.

[211] To impute income, the party requesting the imputation must lay the evidentiary foundation for the order: see Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, and Joy v. Mullins, 2010 ONSC 1742 . Only once that evidentiary foundation is established on the balance of probabilities is it necessary for the spousal support claimant to provide evidence against a claim for imputation of income.

[212] I do not believe that the Respondent has established that evidentiary foundation. The test for imputation of income is reasonableness: is the Applicant Wife making what she can “reasonably expect to earn”: Rilli, at para. 22. Reasonableness is based upon the “age, health and employment prospects of the parties”.

[213] In this case, the marital history is relevant to the issues of imputation of income. First, regarding the teaching degree, I have already accepted the Applicant’s evidence that she wanted to obtain a teaching degree in 2000, when it might have been meaningful to obtain such a degree. There are few teaching jobs today, as, testified to by the Applicant. It would not be reasonable today for the Applicant to quit her job to go to teacher’s college for what is now a two-year degree. I do not hear the Respondent offering to pay an increased amount of spousal support to adequately support the Applicant and children when she has no income over the next two years because she is going to teacher’s college.

[214] Further, it is demeaning to say that the Applicant does not have a career; in fact, she does, as an educational assistant. The Respondent was content with that career path prior to separation and he cannot complain about it today. I do not find the Applicant’s present career choice to be a reasonable basis to impute income.

[215] Regarding the summers off, the Applicant gave evidence that her employment contract provides that she is laid off during the summer months. She said that she often receives Employment Insurance during the summers off. In 2014, she received income of over $2,000 from EI, giving her a total income in 2014 of $37,266. The Divorcemate submitted by the Applicant suggests EI income of more than $4,000 per annum.

[216] During the summer of 2012, Ms. Vhora went to California with the children. Since separation, this appears to have been the only summer holiday she has taken.

[217] Mr. Callahan suggested that Ms. Vhora should be obtaining employment during the summer. However, Mr. Vhora certainly did not ask Ms. Vhora to work during the summers during marriage, and he testified that he was content that Ms. Vhora travel with the children to India to visit their grandparents. In fact, he says he encouraged it. He cannot today insist that Ms. Vhora work during her summers off when that was not part of the arrangement during marriage. I suspect that Mr. Vhora would take some objection that he work during his holidays to earn additional income to pay support, and it would be a double standard to insist that Ms. Vhora do so.

[218] Finally, Ms. Vhora testified that she is not a teacher and her ability to provide tutoring would be limited. In any event, she is a single parent, dealing with raising her children on her own. It is not reasonable for Mr. Vhora to insist that the Applicant obtain part time work on top of her full time job. Again he would take exception to the suggestion that he obtain part time work in order to increase his income to pay more support.

[219] I find that the Respondent has not laid an evidentiary foundation for a finding that Ms. Vhora is intentionally under-employed. I therefore do not find that income should be imputed to the Applicant.

(iii) Spousal Support Award

[220] Ms. Lagoudis requests spousal support in the amount of $3,265 per month, which is the medium range under the Spousal Support Advisory Guidelines. In light of the 15 years of cohabitation, she requests spousal support for a duration of 13 years.

[221] Section 15(6) of the Divorce Act sets out the objectives of a spousal support award:

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.

[222] I have already found Ms. Vhora to be entitled to compensatory spousal support. I have found that there was economic disadvantage to Ms. Vhora resultant from her being forbidden to attend teachers’ college in 2000. This issue speaks to the first clause, s. 15.2(4)(a) of the Act.

[223] The second clause requires the court to apportion the financial consequences arising from the care of the children of the marriage. I have already considered this issue. Although Ms. Vhora was home with the children and continued to play a major role concerning the children, the evidence did not suggest that Ms. Vhora had foregone any career or other economic opportunities as a result. Ms. Vhora strikes me as a very resourceful and hardworking woman; this being the case, she both worked and was able to carry through with her domestic and child rearing tasks at the same time. She takes summers off to spend with her children. She continues to work in her chosen field, and no economic cost resulting from her childcare responsibilities was demonstrated at trial.

[224] The major issue for these parties in setting spousal support is economic hardship. The history since separation indicates that Ms. Vhora’s standard of living suffered. She lived in a basement apartment with her two children. Mr. Vhora gave her none of the household contents. Her children had to sleep on mattresses on the floor. She lived an extremely modest lifestyle while Mr. Vhora continued to live in his large suburban home. On the other hand, Ms. Vhora was able to save more than $40,000 during that time, which indicates that she might have been able to obtain a larger place rather than the basement apartment in which she chose to remain.

[225] Mr. Vhora, on the other hand, was able to double up his mortgage payments. By doing so, he obtained equity in the home not available to Ms. Vhora in the equalization of net family property. Since separation, Mr. Vhora has also purchased a $72,000 vehicle. He said he needed a “reliable vehicle”; however, I am sure that there are reliable vehicles that do not cost $72,000. Moreover, when the loan ran out on the vehicle that Ms. Vhora was using for herself and the children, Mr. Vhora threatened to take the vehicle back unless she agreed to deduct its value from the equalization. Had Ms. Vhora not acceded to this request, she and the children would have been without transportation.

[226] The quantum of spousal support must reflect an amount that permits the Applicant and the children to have an equivalent lifestyle to that of the Respondent. Ms. Vhora plans to obtain a townhome and has been approved for a mortgage.

[227] That brings up the final issue. Spousal support is acknowledged to be time limited. Within those time limits, Ms. Vhora must become self-sufficient. I take into account the fact that the youngest child, nine years old at the date of separation, will be leaving high school in 2018 or so. There are substantial RESPs to assist the children in college or university, although I suspect these parties may have difficulties in negotiating the use of those funds, presently under the control of the Respondent.

[228] If spousal support ends 13 years after separation, in 2025, this allows sufficient time for both children to finish their post-secondary education and some time for Ms. Vhora to attend to her own self-sufficiency.

[229] The range of spousal support set out in the SSAG calculation provided by counsel shows a low of $2,711 per month to a high of $3,842. Counsel requests an award in the mid-range, which would be $3,265 per month. Duration under the SSAGs is between 7.5 years and 15 years, and Ms. Lagoudis requests spousal support to end 13 years after separation.

[230] The Respondent’s income has been based upon a bonus being paid, which is up to 20 percent of his base salary. He notes that the bonus has been based upon both is own performance, and the performance of his division. He testified that his division had lost $50 million in 2015 and that he expected his bonus to drop. However, he could not demonstrate another year where his bonus had dropped in the past, and his income stream has steadily increased throughout the years for which he provided financial disclosure.

[231] I find that the Applicant’s income is that set out in the Divorcemate calculation, which is $39,390. That assumes over $4,000 in EI income, which does not allow for a holiday out of the country during the summer months. I also find that, for spousal support purposes, Mr. Vhora’s income should be set at $204,514, which was his 2014 income. There were no specifics given as to any foreseeable reduction in income, and no evidence was provided from his employer confirming any specific expectation of the amount by which his bonus income may shrink.

[232] Based upon this, and based upon the compensatory nature of the claim for spousal support, I set spousal support in the amount of $3,200 per month, which is closer to the mid-range than the high range of spousal support. I take into account the SSAGs, which confirm that in respect of a compensatory claim, spousal support is generally in the mid-to-high range of support: see Rogerson and Thompson, Spousal Support Advisory Guidelines (July 2008) at p. 98. I take into account, however, the fact that Mr. Vhora says that his bonus may be in jeopardy because of poor performance within his division at Thales.

[233] The spousal support shall commence one the first day of the month after the commencement of trial, December 1, 2015. It shall terminate January 31, 2025, 13 years after separation.

[234] There is no request in the materials for a cost of living increase and there shall be no order for indexing.

[235] Mr. Vhora’s financial statement shows that he has life insurance policies in the amount of $100,000, plus a work related policy with Thales for two times his earnings. The beneficiary under those policies is Yasmin Mukri, Mr. Vhora’s sister. Ms. Lagoudis requests that Mr. Vhora obtain life insurance policies in the total amount of $442,689 to secure child and spousal support.

[236] The jurisdiction to order life insurance to secure support is provided s. 34(1)(i), which permits a court to order “a spouse who has a policy of life insurance as defined under the Insurance Act designate the other spouse or a child as the beneficiary irrevocably”. That section speaks of a present policy of insurance. It does not give jurisdiction to force a party to take out additional policies of life insurance. There are complications as well with such an order, as a party may be found to be uninsurable because of health issues, or the insurance may be overly expensive because of risk.

[237] There shall be an order that the Respondent designate the Applicant as the beneficiary of his present life insurance policies owned by him through Sun Life and through his employer in order to secure child and spousal support ,so long as that support is payable. Once support ceases to be payable, Mr. Vhora may deal with the policies as he sees fit.

(d) Retroactive Spousal Support

[238] Ms. Lagoudis claims retroactive spousal support from the date of separation in the amount of $68,565, being the amount that should have been paid from the date of separation to the commencement of spousal support on October 1, 2013. She bases this on the amount of spousal support that she requested at the mid-range under the SSAGs, in the amount of $3,265 per month.

[239] She also seeks the difference between the amount requested and the amount actually paid since October 1, 2013, which, based upon her requested spousal support, totals $18,768.

[240] The real issue is whether I should exercise my discretion to order retroactive spousal support.

[241] The Court of Appeal summarized the factors that must be considered when making a retroactive award of spousal support in Bremer v. Bremer, 2005 CanLII 3938, 13 R.F.L. (6th) 89 (C.A.), at para. 9 of the decision:

The considerations governing an award of retroactive spousal support include: i) the extent to which the claimant established past need (including any requirement to encroach on capital) and the payor's ability to pay; ii) the underlying basis for the ongoing support obligation; iii) the requirement that there be a reason for awarding retroactive support; iv) the impact of a retroactive award on the payor and, in particular, whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; v) the presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; vi) notice of an intention to seek support and negotiations to that end; vii) delay in proceeding and any explanation for the delay; and viii) the appropriateness of a retroactive order pre-dating the date on which the application for divorce was issued: see Horner v. Horner, 2004 CanLII 34381 (ON CA), [2004] O.J. No. 4268 (C.A.); Marinangeli v. Marinangeli (2003), 2003 CanLII 27673 (ON CA), 66 O.R. (3d) 40 (C.A.) and Price v. Price, [2002] O.J. No. 2386 (C.A.).

[242] I have already made an award of retroactive child support. However, as confirmed in Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, different considerations apply concerning spousal support. There is a presumptive entitlement to child support that is described as “automatic”; therefore, the issues of notice and lack of diligence are less important in considering retroactivity. At para. 208, the distinction is made clear as follows:

In contrast, there is no presumptive entitlement to spousal support and, unlike child support, the spouse is in general not under any legal obligation to look out for the separated spouse’s legal interests. Thus concerns about notice, delay and misconduct generally carry more weight in relation to claims for spousal support.

[243] The concerns I have respecting the Applicant’s request for a retroactive award of spousal support are past need and hardship combined with delay.

[244] I commented above on the lifestyle that the Applicant and children were forced to live, as opposed to that of the Respondent. I was unimpressed with the fact that the Respondent was able to double up his mortgage payments and buy an expensive vehicle. However, the Applicant was able to save over $40,000, largely during a period of time when she was receiving child support only. She has not demonstrated past need under the circumstances and spousal support may therefore only serve to redistribute capital.

[245] As well, there was an early case conference in this matter in March 2012, after which the Applicant was entitled to bring a motion for temporary spousal support. She did not do so, and did not explain in her testimony what the reason for delay was. It appears that spousal support was only ordered on consent in December 2013, based upon a motion that had been originally scheduled for March 23, 2013, but adjourned from time to time for cross examinations. If there were truly need, interim interim spousal support could have been argued on information more current than that available to me.

[246] The support requested by the Applicant also assumes that the incomes of the parties were constant and similar to today’s income throughout. Information under the SSAGs for previous years was not provided by Applicant’s counsel.

[247] The request also does not take into account the tax consequences of spousal support, which are only available in the year in which spousal support is ordered and the previous tax year. Any retroactive spousal support award would be discounted for this purpose, and no evidence has been provided as to the discount.

[248] Based on all of the above, I do not find there to be a compelling case for retroactive spousal support. Therefore, I decline to exercise my jurisdiction to order spousal support on a retroactive basis.

Order

[249] There shall therefore be a final order to go as follows:

a. The Respondent shall pay retroactive child support in the amount of $11,352;

b. The Respondent shall make an equalization payment to the Applicant in the amount of $181,909.96. There shall be judgment in that amount against the Respondent along with pre-judgment interest from the date of separation.

c. The Respondent shall pay spousal support in the amount of $3,200 per month commencing December 1, 2015 and terminating on January 31, 2025.

d. The Respondent shall designate the Applicant as the beneficiary of his present life insurance policies owned by him through Sun Life and through his employer in order to secure child and spousal support, so long as that support is payable. Once support ceases to be payable, Mr. Vhora may deal with the policies as he sees fit.

e. There shall be no retroactive spousal support payable by the Respondent beyond the interim award of spousal support previously made.

f. The Respondent may request a divorce upon filing an affidavit in compliance with Rule 36 of the Family Law Act.

[250] The parties may provide written costs submissions, first by the Applicant and then by the Respondent on a ten day turnaround. Costs submissions to be no longer than five pages in length, not including offers to settle and bills of costs.

McDERMOT J.

Released: May 20, 2016

1. Addition of paragraph 249(f) with respect to the divorce.

[^1]: Both parties have accepted September 17, 2000 as the date of marriage in their respective financial statements: See the Applicant’s financial statement filed as Ex. 2 and the Respondent’s financial statement filed as Ex. 9.

[^2]: Along with final child support; see the accepted Offer to Settle and Final Minutes of Settlement of October 20, 2015, made into a final order by endorsement of Rogers J. on that date.

[^3]: Shaikh Murshid

[^4]: Now known as the University of Mumbai

[^5]: See Ex. 1, Tab 73.

[^6]: See Ex. 1, T. 77

[^7]: See Ex. 1, Tab 16, which is correspondence from Mr. Callahan to Ms. Lagoudis dated January 10, 2013.

[^8]: See Ex. 1, Tab 15

[^9]: According to Ms. Vhora’s financial statement sworn on October 27, 2015, her savings since separation total some $43,000.

[^10]: In fact, the charges were not withdrawn; they were resolved through a peace bond, which is a result of a different nature.

[^12]: Ms. Lagoudis relies upon Ex. 1, Tab 12, which is a letter from Mr. Callahan to her dated December 6, 2013. She states in her submissions that she put this letter to Mr. Vhora during cross examination and he had no explanation for his failure to adjust. My notes do not reflect this exchange or that Ms. Lagoudis put this letter to the witness. There is no indication in the Clerk’s Exhibit List of this exhibit being entered or identified at trial. As there is an issue as to whether this correspondence was identified at trial, I do not rely upon this correspondence in any way.

[^13]: R.S.C. 1985, c. 3 (2nd Supp.)

[^14]: Ex. 7

[^15]: R.S.O. 1990, c. F.3

[^16]: R.S.O. 1990, c. F.29

[^17]: One half of $197,194

[^18]: Mr. Vhora agreed that he would pay the whole of the mortgage, which was $382,492. He also paid $55,000 towards the down payment on the home as well as two deposits of $15,000 each, all of which was borrowed from his father. The total of these three amounts was $467,492.

[^19]: Zarin Vhora paid the same down payment of $55,000 as Mr. Vhora. She also paid to refinish the basement, which she said cost between $26,000 and $27,000. She also purchased a garden shed and lumber for a deck, both of which were constructed by Mr. Vhora and his father. The total of these costs plus the down payment are no more than $80,000 according to the evidence.

[^20]: R.S.O. 1990, c. P.10

[^21]: See the Applicant’s Reply, para. 7, where the Applicant calls into question the payment by the Respondent’s father of the deposits on the home. In paragraph 8 and 9 of the Reply, the Applicant calls into question whether the funds were paid by the Applicant’s father as part of a loan and suggests that they were paid for her mother’s interest in the home, while the Respondent paid for his interest through obtaining a mortgage and paying that mortgage. To all intents and purposes, the Applicant acknowledges that certain payments were made by the Respondent’s parents, but that these were not advances under the loan, but just payment for their share of the property held in Zarin Vhora’s name. Mr. Vhora’s share was paid through his assumption of the mortgage. This theory was confirmed by the Applicant’s opening statement, but was not put to the Respondent or Zarin Vhora in cross examination.

[^22]: Ex. 6, Tab 24X

[^23]: Ex. 6, Tab 24H

[^24]: See the Trust Statement at Ex. 6, Tab 24M which was referred to by Mr. Vhora in his testimony.

[^25]: Mr. Vhora entered a trust statement respecting the purchase of Germain, but it set out legal fees, land transfer tax and title insurance which totaled $6,623: see Ex. 6, Tab 24M. That bears no relation to the closing costs set out in the promissory note recitals.

[^26]: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th ed., as cited in Bishop-Gittens at para. 15

[^27]: I note that Mr. Vhora was not asked about the three cheques for the deposit either in chief or in cross-examination. In fact, those cheques, although mentioned in the applicant’s closing submissions, may not have been referred to by any witness at trial or made an exhibit at trial.

[^28]: See para. 54 of the Respondent’s Amended Answer.

[^29]: See part 5 of the Respondent’s financial statements dated March 9, 2012 (Ex. 10) and September 27, 2013 (Ex. 9) where Mr. Vhora listed his parents as the creditor of the $202,806 owing under the note. In the last financial statement filed by Mr. Vhora and dated October 20, 2015, the creditor under that note has been changed to Mr. Vhora’s “father”.

[^30]: $30,000 + 110,000 + 108,858 + 27,000 = $275,858.

[^31]: $382,492 – 108,858 = 273,634.

[^32]: Ex. 1, Tab 64

[^33]: Ex. 6, Tab 3

[^34]: See Ex. 8 which is the comparative net family property statement entered by the Respondent.

[^35]: I note that there were minor differences between the parties as to several small bank accounts. Where no evidence has been led and no submissions made as to these assets, I have accepted the position of the owner of the asset, who is responsible to value the asset.

[^36]: The parties agreed during the litigation that the vehicle being used by the Applicant would be transferred to her by the Respondent in exchange for a $20,817.89 reduction in the equalization payment.

[^37]: R.S.O. 1990, c. C.43

[^38]: See Ex. 5, Tab 8

[^39]: See Ex. 1, Tab 72

[^40]: Ex. 2

[^41]: See Ex. 1, Tab 73.

[^42]: See Ex. 1, Tab 77

[^43]: Paragraph 55 of the Applicant’s Application dated February 24, 2012.

[^44]: Ex. 1, Tab 83