COURT FILE NO.: FS-11-73113-00 DATE: 2016 08 05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Virgena Baijnauth M. Sahi, Counsel for the Applicant Applicant

• and -

Dewan Baijnauth R. Toor, Counsel for the Respondent Respondent

HEARD: January 18th - 22nd, January 25 and 26, 2016

REASONS FOR JUDGMENT

LEMAY J

[1] The parties, Virgena Baijnauth and Dewan Baijnauth, were married on May 17th, 1986, and separated on May 14th, 2010. There were two children of the marriage, Dewan Junior (“Junior”) and Marla Mindy (“Marla”).

[2] There is not yet an Order for a divorce in this case. However, the criteria for granting a divorce are clearly met, and I am ordering the parties to be divorced thirty-one (31) days after the date that these reasons are released.

[3] This application concerns the corollary relief sought by the parties. It is entirely financial in nature.

[4] At the outset it is important to note that there are disclosure issues in this case. In particular, there was substantial disclosure about the Respondent’s income and his properties that was missing from the record. I will address those issues as I conduct my analysis.

The Issues in Dispute

[5] The issues that present themselves in this case are as follows:

a) The calculation of the Respondent’s income. b) The calculation of child support. c) The quantum and apportionment of section 7 expenses. d) The calculation of the equalization payment. e) The quantum and duration of spousal support. f) The question of what remedies should be provided to protect the amounts of child and spousal support payable, if any.

[6] Each of these issues requires me to look at a complex web of facts. I heard from four witnesses. The Applicant, Virgena, testified on her own behalf and also called the parties’ daughter, Marla. The Respondent, Dewan, testified on his own behalf, and called his brother, Neilkant (“Neel”). Given that the witnesses all share a last name, I will refer to them by their first names throughout these reasons.

[7] At the outset, I will make some general observations about credibility. I did not find the evidence given by Dewan or Neel about Dewan’s financial circumstances, or the financial arrangements between Neel and Dewan to be particularly credible. For reasons that I will explore more fully below, their evidence was both internally inconsistent and inconsistent with the very limited documentation that was produced. As a result, I have generally looked for independent corroboration of anything any of these two witnesses said before accepting any part of it.

[8] Virgena’s evidence was similar in quality. Although she provided more documents as part of her case, she generally took the position that Dewan had been “hiding money” for the entirety of their marriage. She was also prone to exaggerating facts and misconstruing evidence to support her case.

[9] One example of this problem comes with her testimony about a corporate search that was entered as part of the joint book of documents. This is commonly known as a NUANS report and it is designed to show whether there is a conflict in the corporate name that someone is choosing. Virgena firmly testified that this report was actually a list of Dewan’s customers, and that he travelled all over for business with these customers.

[10] In fact, Virgena’s counsel spent some time cross-examining Dewan about this list of customers. It was only after this cross-examination was completed that Virgena and her counsel were prepared to concede that this NUANS report was not a list of customers. This approach was emblematic of the way that Virgena approached all of her testimony. As a result, I have generally looked for independent corroboration of Virgena’s testimony before accepting any part of it.

[11] The only witness whose evidence I am prepared to accept in its entirety is that of Marla. Her evidence was given in a straightforward manner, and was both internally consistent and consistent with the documentation that was filed.

[12] Although I found Marla’s evidence to be helpful in resolving a number of factual disputes between the parties, my reasons should not be taken as approving the decision to call Marla as a witness. This was a decision made by Marla’s mother, Virgena, and her counsel. Marla was eighteen at the time that she was called as a witness in this case, and she was called for the express purpose of trying to persuade me to give Virgena exclusive possession of the matrimonial home. The decision to call Marla as a witness was inappropriate, to put it mildly. It put her directly and publicly in the middle of the conflict between her parents. Although I have not considered the decision to call Marla as a witness in my assessment of the evidence, it remains an issue for costs submissions.

Background Facts

a) The Marriage

[13] The parties married in 1986 after a courtship. It was generally a difficult marriage, and the parties fought regularly. In 2001, the parties moved to Brampton and lived in a number of houses there. They were living at 2 Lucia Court when they separated.

[14] During the course of the marriage, I accept that Dewan ran some businesses. I also accept that, from time to time, Virgena performed some work for those businesses. I will return to that issue in my discussion of spousal support below, but I note that the evidence did not disclose Virgena doing significant work for these businesses over a significant period of time.

[15] I heard some testimony from Dewan that he had actually intended to divorce Virgena back in the late 1990’s. On his evidence, he had even seen a lawyer to commence the process. However, I was not given any supporting evidence to establish that this visit had taken place, and I am not prepared to make any findings of fact about any previous attempts to divorce.

[16] The parties continued to live together until the date of separation as noted above. Neither party seriously argued that the date of separation was something different, and I find it to be May 14th, 2010. Indeed, the agreed statement of facts confirms this date as the date of separation.

b) The Properties Owned by the Parties

[17] The evidence that the parties provided to me was both inconsistent and confusing. Part of that evidence involved the purchase of various matrimonial homes over the years. However, because of the lack of supporting documentation, and the lack of clarity and reliability in both Virgena and Dewan’s evidence, I cannot clearly outline the various properties where the parties lived.

[18] However, I can reach some conclusions about the properties that the parties owned at the time of separation. Specifically, as of the date of separation between them they owned (either jointly or with others), or had an interest in, the following real property:

a) The matrimonial home at 2 Lucio Court in Brampton. b) A townhome on Goreway Drive in Brampton c) A property in Erin Ontario. d) A cottage in Bancroft Ontario

[19] There is also a property on Ridgehaven Road in Brampton that the parties made an offer to purchase in 2010. This was a new home that was to be built for the parties. Currently, the title on the property is in the names of Neel and his wife. However, there are issues about the beneficial ownership of this property, as well as a deposit that was paid for the property

[20] There are also a number of disputes about whether Neel provided the parties with loans and/or gifts to purchase some or all of these properties. There is also a dispute about whether Virgena’s mother provided monies for the down payment on the Ridgehaven home. I will address all of these issues below.

c) The Separation and Surrounding Events

[21] There has been litigation over the matrimonial home since the separation. Specifically, at some point in June of 2013, the parties stopped paying the line of credit on the matrimonial home. As a result, the Toronto-Dominion Bank sued the parties to recover the loan. A default judgment was issued against Dewan, who did not defend the action, and summary judgment was successfully pursued by TD against Virgena.

[22] Ultimately, Virgena obtained an Order from the Court permitting her to obtain alternate financing on the matrimonial home, without Dewan’s consent. She has obtained that financing, and continues to live in the home. I will return to this issue in greater detail below.

[23] Since the separation, Marla has continued to live with her mother in the matrimonial home. Junior has generally lived with his father in various properties.

[24] Currently, Dewan lives with his girlfriend and their new baby in the Ridgehaven property. Junior also lives there. The evidence of Neel and of Dewan is that Neel and his wife own this property, and that Dewan, his girlfriend and Junior all pay rent for the property.

Issue #1- Dewan’s Income

[25] The question of Dewan’s income consumed a great deal of time during the course of this trial. However, there were very few documents that were actually disclosed that provide clarity around what Dewan’s income actually is.

[26] In determining Dewan’s income, I need to consider both his work history and the documentation that has been provided to me.

a) The Work History

[27] I heard testimony about Dewan’s work history, back to when he came to Canada at the age of 21. Most of the evidence relating to his work experience in the 1980’s and 1990’s is not relevant to the issues that I have to determine, but I note that Dewan has a Grade 10 education from Guyana.

[28] Starting in the 1990’s, Dewan testified that he was in the moving business, through his own company D & B Trucking. This continued until 2006 when he suffered a shoulder injury. He testified that, when he suffered the shoulder injury, he was not able to move it for a period of time, and he had to give up working in his business. He also testified that he did not get surgery on his shoulder because he would have been off work for a year and a half, but that he had been told that he needed surgery by a doctor. When asked to produce this report, his statement was “I gave it to my lawyer.” Virgena disputes this assertion and testified that Dewan had been hurt a bit but he was not injured.

[29] This is an example of the tendency of both parties to exaggerate testimony to fit their version of events. Dewan wishes to claim a serious injury so he can show that his income has been substantially reduced since 2006, but he has failed to produce documents that should have been easily obtained in order to prove this point while claiming that his lawyer has the documents. Virgena wishes to claim that Dewan did not suffer any injury at all, so she can claim that there has been no change to his ability to make money, and she asserts that he is hiding things from her. I reject the evidence of both of them on this point.

[30] Marla testified that her father had hurt his shoulder and complained of pain on a regular basis. However, she did not testify that Dewan’s shoulder had been immobilized. I accept her evidence as to the significance of Dewan’s shoulder problems. I find as a fact that Dewan had a shoulder problem, but that it was not sufficiently severe as to prevent him from continuing to work and continuing to earn the type of income that he had prior to the shoulder injury.

[31] This brings me to 400 Sales and Service, which is another company that Dewan has been involved with. This company is in Neel’s name, and Dewan claims that he only started to do some part-time work for this company in 2006 after he injured himself. He also testified that he has never worked full-time for this company. As a result, he testified that he makes $2,000.00 gross income from this company per month, for an annual salary of $24,000.00.

[32] Neel has expertise in the software and technology fields, and has been very successful in that business. Neel testified that he established 400 Sales and Service in 1996, and it was in the trucking and moving business. He also testified that one of the main reasons that he opened the business was because his brother Dewan was in the trucking and moving business, and Dewan could make 400 Sales and Service work. However, he also testified, moments later, that Dewan did not start working for the company until more than ten years after Neel established the company. I reject this evidence.

[33] The problem with the evidence of both Neel and Dewan is that it is both internally inconsistent and completely contradicted by the credit application that the parties filed. This credit application, which was for the line of credit on the Lucio Court property, shows that the Plaintiff has been the Manager of 400 Rentals since the late 1990’s. It also shows an annual income of approximately $100,000.00 per year, although Neal and Dewan claimed that, currently, it was actually $24,000.00.

[34] It is likely that Dewan’s income was (and remains) substantially higher than $24,000.00. In support of that conclusion, I also note that the matrimonial home, at 2 Lucio Court, was purchased in 2001. There does not seem to have been a significant mortgage (or line of credit) against that property until sometime shortly before separation, when Dewan took out a line of credit in order to purchase a further property in Erin.

[35] Indeed, the mortgage documents for this property that were filed showed a mortgage of approimately $39,000.00 on the property in 2003, which had been paid off by 2006. This suggests an income earning ability that is substantially higher than what Dewan has claimed.

[36] Dewan and Neel allege that Neel loaned Dewan and Virgena $140,000.00 to purchase the 2 Lucio Court home. I will return to whether that loan was actually made below.

[37] This brings me to the question of the missing documentation in this case.

b) The Missing Documentation

[38] I start with his tax returns and Notices of Assessment. I don’t have these documents for much of the time after 2011. I permitted Dewan to file an additional Financial Statement at the outset of trial. However, even that document did not set out all of the missing Notices of Assessment. It leaves me to infer Dewan’s income from the materials that were filed with me.

[39] In addition, Virgena filed a credit application that had been completed by her and Dewan in 2006. This credit application shows that Dewan’s income, at the time, was approximately $100,000.00 per year. He signed this application. When confronted about this amount in cross-examination, Dewan’s response was to say that he guessed that he had lied about his income on the credit application.

[40] Dewan should have had a great deal of documentation in his possession to support his assertion about his income. For example, he would have business records from D & B as well as from 400 Sales and Service. Instead, all he provided at trial is his statement that he earns approximately $24,000.00 per year, paid to him by his brother. The only evidence that I have to support this statement comes from Neel, who agrees that this is all he pays to Dewan for a year’s work.

[41] In addition, Dewan provided me with some of his notices of assessment between 2006 and 2011. All of these showed an income of around $20,000.00. I did not have any more recent assessments. I would also note that I was not provided with any information at all about the income of the various corporations, or of any corporate expenses that were deducted. Indeed, the corporate records that I was provided with were the bare minimum registrations that are available to the public.

[42] I also note that both Dewan and Neel had access to substantial documentation that would have supported their position about what Dewan has been paid for the past number of years. None of that documentation was actually produced prior to trial.

[43] Both Dewan and Neel stated, during their evidence, that they had this documentation and that they would produce it. I received no explanation as to why this documentation had not already been disclosed, and I was not prepared to permit its production in the middle of a trial, especially when there had been substantial disclosure Orders prior to the trial.

[44] Instead, I view the failure of Neel and Dewan to produce this documentation in a timely way as demonstrating a desire on their parts to conceal the truth about Dewan’s income. The best evidence that I have about Dewan’s income comes from Marla, and from the contemporaneous documents that are part of the record. I now turn to that evidence.

c) The Available Documents and My Conclusions

[45] In assessing the evidence that is available, I start with the legal tests. Courts are able to impute income to parents for child support purposes under section 19 of the Federal Child Support Guidelines. The relevant subsections of the guidelines state:

19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed , other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; (b) the spouse is exempt from paying federal or provincial income tax; (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; (e) the spouses’ property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; (g) the spouse unreasonably deducts expenses from income; (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust

(2) For the purpose of paragraph (1)( g ), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[46] In addition, section 21 of the Child Support Guidelines required Dewan to provide his income information by no later than 30 days after he was served with the application. Section 23 of the Guidelines permits me to draw an adverse inference from Dewan’s failure to produce relevant documentation, and I draw that inference.

[47] In light of the evidentiary record before me, it is clear that Dewan has failed to provide income information that he is under a legal obligation to provide. As a result, it is open to me to impute income to him.

[48] I am not prepared to accept Dewan’s testimony that his income was less than $30,000.00 for the following reasons:

a) It is clear from his testimony about the credit line application that Dewan is prepared to lie about his income depending on what is at stake. He was seeking a loan from the bank that would be dependent on his income and he wanted more money so he was prepared to exaggerate his income. It is not difficult to infer that, faced with the prospect of paying child and spousal support based on his income, he would testify that the amount was much lower than it actually is. I make that inference, and reject his testimony about his income in its entirety. b) If his income was actually $24,000.00 a year, it would have been difficult for him to obtain and service the credit line with TD in 2006. c) Marla testified that her father was able to buy her things at Vaughan Mills, including items from La Senza Girl and Forever 21. It is unlikely that he would be able to make these purchases if his annual income was $24,000.00. d) Similarly, it is unlikely that Dewan would have been able to afford to purchase Marla her own car when she turned sixteen on an annual income of $24,000.00.

[49] As a result, I reject Dewan and Neel’s evidence that Dewan’s income was only $24,000.00.

[50] I also cannot accept Virgena’s testimony on this issue, in part because she does not actually provide a number for the income in this case. She also testified that Dewan was “hiding things” from her in response to almost every question about income, and she was prepared to exaggerate the extent of Dewan’s business, as is seen from her insistence that the NUANS report was actually a list of Dewan’s customers. Finally, Virgena had no direct knowledge of the amount of income that Dewan actually earned.

[51] I also note that Virgena signed the credit application as well. In spite of the fact that she has generally made $30,000.00 per year for most of the past twenty years, she claimed to have no income on this application. Again, this supports my view that I must approach Virgena’s evidence with caution.

[52] However, I can look at a combination of the credit application and the relief that Virgena is seeking in this case. The credit application suggests that Dewan’s income is around $100,000.00 per year. Virgena has requested that I impute income around the range of $70,000.00. In the circumstances, this is a reasonable number.

[53] It is arguable that the number should be higher than $70.000.00. However, it must be remembered that Dewan did not receive the income from the Goreway property after the parties separated, and this property has now been sold, as I will discuss below. As a result, it would not be a complete surprise to discover that Dewan’s income went down after completing this credit application in 2006.

[54] I have virtually no evidence from either party to assist me in determining what Dewan’s income actually is, or what it should be imputed at. Most, but not all, of the fault with this lies with Dewan. Dewan was well aware that this case was proceeding to trial, and he produced insufficient documentation prior to the trial. Although he offered to produce additional documentation during his examination at trial, this offer was insufficient as there were significant production orders that Dewan had ignored prior to the trial.

[55] One example from the Orders that were made will suffice to demonstrate the lack of information. In March of 2012, Dewan consented to an order to produce, inter alia, documents of bankruptcy and incorporation for the company D & B Moving, as well as three years tax returns for the company. Neither of these documents was provided in evidence, and no explanation was given for the failure to provide them.

[56] As a result, I reject Dewan’s evidence about his income in its entirety. Considering the evidence above, combined with the factors set out in section 19 of the Guidelines, I impute income to Dewan in the sum of $70,000.00 per year from the time of the separation and ongoing. This decision on income is on a final basis.

[57] One of the arguments that Dewan made throughout the trial was that I should not require him to make various payments based on undue hardship. His undue hardship argument was based on his assertion that his income was $24,000.00 per year. Given that I have imputed income of $70,000.00 to Dewan it follows that I have rejected his undue hardship argument.

Issue #2- Child Support

[58] There are three issues that present themselves with respect to child support. First, what the quantum should be. Second, whether this quantum should be paid retroactively back to May 14th, 2010, which is the date of separation. Finally, how long should child support be paid into the future.

[59] Based on the facts that I heard, there was never a time period after the parties separated in which either party would have been entitled to receive child support on account of Junior. Junior was over 18 at the time of separation, and has not been enrolled in full time school since that time. I also did not hear any evidence that Junior was not independent. As a result, the only child support obligations owing are with respect to Marla, who has lived with Virgena since separation.

[60] Given the fact that Marla is 19 and in post-secondary education, the issues of access and custody do not arise in this case.

a) The Quantum

[61] Marla is over 18 years of age. As a result, section 3 of the Child Support Guidelines is relevant to this case. I will discuss that section, and the applicable case law, more fully below.

[62] However, calculating the amount of child support payable on a monthly basis for Marla in the first instance is easily determined by reference to the Child Support Guidelines. Dewan’s income is $70,000.00 per year. Based on the Child Support Guidelines, he is required to pay $639.00 per month, and this amount is payable from August 1, 2016 forward. I will return to the question of whether the Guidelines require any adjustment to these amounts.

[63] The amount is to be payable to Virgena as long as Marla lives at home, and subject to the discussion below about the length of support. In the event that Marla decides to live on her own during the period when I have found support to be payable, then the parties may return to Court to address that issue on a motion to change.

b) Retroactivity

[64] This application was brought in 2011. Therefore, there is a question as to whether retroactivity should be paid prior to the date the application was brought.

[65] I start with the observation that child support is the right of the child, and not of the parties. The principles respecting retroactivity in child support are set out in D.B.S. v. S.R.G., 2006 SCC 2, [2006] 1 S.C.R. 202. Those principles, and their application to this case, are as follows:

a) Is there a reasonable excuse why support was not sought earlier? Although the evidence was thin on this point, it appears to me that Virgena was trying to resolve the outstanding issues before commencing litigation. This factor favours an award of retroactive support. b) The Conduct of the Payor Parent - in this case, Dewan has understated his income in an attempt to avoid paying child and spousal support. This factor strongly favours an award of retroactive support. c) The circumstances of the child - in this case, I did not hear significant evidence that Marla’s life had been significantly financially affected by the failure of Dewan to pay the proper amount of support. This factor is neutral in my analysis. d) The hardship caused by the retroactive award - given my conclusions that Dewan has failed to report significant amounts of his income, I do not see any hardship that he would suffer in this case. Although I acknowledge that he and his new partner have a newborn child to care for, his income (as imputed in this decision) is such that there should not be any significant difficulties in maintaining this level of support. This factor also favours an award of retroactive support.

[66] Dewan paid support in the amount of $316.00 per month, commencing on July 1st, 2012. Dewan states that his support obligations should be reduced based on his income of $24,000.00 per year, but that there should not be any downward adjustments for the past period. I have rejected this argument, and find that Dewan should have been paying child support based on $70,000.00 as an annual income from the date of separation to present.

[67] Virgena argues that child support should be retroactive to the date of separation, which is May 14th, 2010. I agree. I have found Dewan’s income to be $70,000.00 from the date of separation, and there is no basis for me to deny retroactive child support in this case. This application was started in 2011, which was relatively promptly. When the rest of the factors in DBS are reviewed, it is clear that they support an award of retroactive support back to the date of separation.

[68] My calculations of that amount are set out in Appendix “A”, and result in a payment by Dewan to Virgena in the amount of $31,802.00. This payment is to be made out of any amount that Dewan would otherwise be entitled to on account of his share of the matrimonial home. If the equalization does not satisfy this payment, then it is to be collected by the Family Responsibility Office in the usual course.

[69] If either party disputes my arithmetical calculations for retroactivity, they may outline their dispute in writing within fourteen (14) days of the date of this decision. Once that time passes, if there are no disputes, them my decision will become final. If there are disputes, I will consider what should be done with them, and no party is required or permitted to respond to a dispute about the retroactivity calculation unless they are invited by me to do so.

c) How Long is Marla a Child of the Marriage?

[70] In order to understand the positions of the parties as well as my conclusions on this issue, some background about Marla’s education and her plans is necessary.

[71] Marla is currently in the second year of a three year marketing program at Seneca College. She started this program in January of 2015, and will be finishing it sometime in 2017. She spends approximately seven hours a day, four days a week at Seneca itself.

[72] Once Marla completes the Seneca program, she intends to attend a four year university program at York University in accounting.

[73] The parties have differing position on how long Marla is a child of the marriage. Dewan states that he is prepared to continue paying child support, including his proportion of section 7 expenses, for the remainder of the Seneca College program, and one year of Marla’s university program. Virgena states that Dewan should pay child support and his proportionate share of section 7 expenses for as long as Marla is going through school, regardless of whether she decides to do a Masters degree or even a Doctorate after she is done her University program. I will deal with section 7 expenses separately below, as section 7(1)(e) of the Child Support Guidelines specifically refers to post-secondary expenses.

[74] Neither party provided me with any caselaw supporting their position or referenced the relevant statutory provisions during the course of their argument. However, I have reviewed the relevant principles, and make the following observations about the applicable legal principles:

a) The tests (and obligations) for the payment of ongoing support to a child who has reached the age of majority is set out in section 3(2) of the Guidelines. The guideline amount is to be used unless the Court views it as inappropriate in the circumstances. b) Marla has an obligation to make a contribution to her ongoing education bills. Marla testified that she worked at Food Basics, and has done so since December of 2012. She earns approximately $120.00 per week in this employment. Given the amount of time that Marla spends at school, I find that Marla has met her obligation to contribute to her expenses with this job. c) Any ongoing amount of support for a child for post-secondary education must take into account the means of the parents, the circumstances of the family and the likely outcomes for the child

[75] This brings me to the factual information about Marla’s particular circumstances. I note that neither party has led much in the way of evidence about Marla’s academic performance, her plans or whether she has applied for student loans. However, in addition to the information I have set out above, I can make some factual findings, as follows:

a) Although very limited evidence was led on the expenses associated with either the Seneca program or the York program, it is likely to be significant. Currently, school fees for the Seneca program are almost $4,000.00 per semester b) Marla is continuing to live in the matrimonial home with her mother, and it is expected that she will continue to live there for as long as the house is owned. c) Although I had very little evidence about how Marla was performing at school, I formed the strong impression from her testimony of a bright, articulate, capable and hard-working daughter who would likely benefit from further education, and had a plan to do so. That plan was, unfortunately, not articulated in the evidence before me.

[76] With these legal and factual factors in mind, I will now consider the positions of the parties.

[77] I do not find Virgena’s position on this issue reasonable. Expecting Dewan to pay for ever higher levels of education is not a reasonable expectation, given both the practical nature of the program that Marla is pursuing and the fact that Dewan’s income is $70,000.00 per year. At a certain point, children have an obligation to begin to work, rather than pursuing ever more education.

[78] However, I also do not accept Dewan’s position either. It must be remembered that Marla is only currently 19 years old, and will not turn 20 until November of this year. As a result, on Dewan’s position, she would only be entitled to support for continuing education until shortly before her 21st birthday.

[79] I also note that neither parent challenged Marla’s educational plans on the witness stand. Neither parent suggested to her (or to the Court) that her plans were unreasonable or inappropriate. In the circumstances, therefore, I find that Marla is pursuing a reasonable education plan.

[80] I am of the view that ongoing child support, separate from section 7 expenses for tuition, should be paid until Marla completes the York University program. These amounts should only be payable for as long as Marla continues in school, and continues to reside in the matrimonial home.

[81] In order to ensure that Dewan has confirmation of Marla’s continued enrollment in school, Virgena is Ordered to provide proof of enrollment to Dewan within 30 days of the start of each semester.

Issue #3- Section 7 Expenses

a) The Quantum of Past Expenses

[82] Virgena provided a list of historical section 7 expenses, totaling $20,244.25. The parties did not dispute that these were all reasonable expenses, with the exception that there was some dispute throughout the course of the trial about who had paid for the car. Virgena argued that she had paid for all of the section 7 expenses that were listed, including the car.

[83] Marla testified that she had asked her father to buy the car when she turned 16 years old, and that her father had agreed to do so. Marla further testified that her father paid cash for the car. It is clear to me that Dewan paid for the car.

[84] It is also clear to me, from the positions of the parties, that they do not dispute that the car was a proper section 7 expense. As a result, I order that it be considered as a proper section 7 expense, paid by Dewan.

[85] In addition, all of Marla’s post-secondary tuition and related expenses are to be paid for the duration of the time period for which I have granted child support to Marla.

b) Virgena’s Income

[86] I have already assessed Dewan’s income at $70,000.00. In order to determine the proper ratio of section 7 expenses, I must also determine Virgena’s income.

[87] Virgena testified that she earned approximately $30,000.00 per year. In addition, the Notices of Assessment that she filed suggest that she earned about this amount. Although her testimony about the past jobs was somewhat confusing, the records indicate that her income has been approximately $30,000.00 for the past few years

c) Ratio of Section 7 Expenses and Order

[88] Given the incomes of the parties, they will split the section 7 expenses on a 70/30 basis going forward.

[89] In terms of the past expenses, the amount of $14,171.12 is payable to Virgena by Dewan, less the amount of the car, which was $3,395.65. As a result, Dewan is ordered to pay Virgena the sum of $10,775.47 on account of historical section 7 expenses.

Issue #4- Equalization Payment

[90] Determining equalization in this case is a challenge for the following reasons:

a) There is a lack of documentation about the value of various properties at the date of separation. b) There are difficulties in identifying what assets are actually owned by whom. c) There are claims made by both parties that they received loans (and/or gifts) from family members to contribute towards the matrimonial home. d) There are a number of different properties owned by the parties and it is difficult, without records, to determine who put what into each property. e) The evidence that was presented to the Court was unclear, confusing and inconsistent.

[91] In addition, Virgena is seeking an unequal division of net family property on the basis that dividing net family property equally in this case would shock the conscience of the Court.

[92] I will review each of the five properties where the parties have an interest and establish who owned them and who had the interest in them. I will then turn and deal with Virgena’s claims about the chattels and investments that Dewan owns. I will also address Virgena’s claim for a valuation of the business, and will then return to the unequal division question at the end of this section.

[93] My determinations of the values for the parties Net Family Property statements are set out in Appendix “B”. I had no evidence about any debts (or assets) that either party had as of the date of marriage. As a result, I find that both parties entered the marriage with no assets, and no Net Family Property.

Lucio Court

[94] This is the matrimonial home. As noted elsewhere, it has been the subject of litigation after the date of separation. I intend to briefly review the history of this litigation and the current status, as it is relevant to the question of spousal support. The title in the matrimonial home remains in the name of both Virgena and Dewan.

[95] Although Dewan did not live in the matrimonial home after the date of separation, he continued to pay the interest on the credit line until sometime in June of 2013. At that point, he stopped paying these amounts, and the credit line went into default.

[96] As a result, TD Bank Financial Group (“TD”), which held the credit line began default proceedings against both of the Baijnauths, as they had both signed the credit line documentation. Dewan did not defend this proceeding, and a default judgment was entered against him. Virgena defended this proceeding on the basis that she had been deliberately misled about the contents of the document by the representative of TD. She brought a counterclaim against TD and the representative who had her sign the documents. She claimed it was for a “preapproved mortgage”.

[97] TD was granted summary judgment, and Virgena’s counterclaim was dismissed by way of written reasons of Fitzpatrick J. (see The TD Bank v. Baijnauth, 2015 ONSC 1045).

[98] As a result of this decision, a judgment issued requiring Virgena to pay TD the sum of $271,076.21 on account of the debt owing, as well as a further amount of $20,000.00 for costs.

[99] Virgena then arranged financing on the matrimonial home. She owes approximately $340,000.00 on the matrimonial home in debt that she holds herself. However, she also obtained a default judgment against Dewan for the sum of $336,000.00. This judgment was issued by Trimble J. on March 12th, 2015, and granted her the authority to obtain financing for the home without consulting with Dewan, and to register a charge on the property to secure that financing.

[100] However, the judgment goes on to say that the charge on the property binds Dewan’s interest in the home. There are no reasons for this determination.

[101] To summarize the facts, Virgena has a judgment against Dewan for the entire value of the credit line. In addition, she has bound his half of the property with the debt that she took out to pay off the credit line. This appears to produce a situation where the parties could be obligated to equally split the value of the loan on the property, while Virgena could then claim reimbursement from Dewan for an additional amount consisting of the entire credit line, plus the costs of pursuing her counterclaim against TD.

[102] The end result would be that Virgena would get half of the equity in the home, as well as being able to collect on a judgment of $336,289.00 against Dewan, as well as forcing him to pay off half of the mortgage that she put on the house to satisfy the TD judgment. It is clear to me that Dewan owes Virgena the judgment at this point. It is less clear to me that he is also obligated for the indebtedness that Virgena has charged against the property, and I make no findings either way in that regard. Either way, however, this judgment has created issues.

[103] The house is valued at $528,000.00 as of May 1, 2012. Undoubtedly the value has increased, but I will use that value to illustrate the issue that I see. Virgena has a debt, secured against the house, of $340,000.00, which binds the interests of both parties. As a result, each party would obtain approximately $95,000.00 from the sale of the home.

[104] However, once Virgena had collected on her judgment against Dewan, which was based in the litigation over the home, her share of the matrimonial home, net of debt, would jump to approximately $440,000.00 if the Court orders required Dewan to pay half of the mortgage that Virgena had placed on the property, and $270,000.00 if Dewan is not responsible for the mortgage. In short, there is an increase of at least $175,000.00 in Virgena’s share of the matrimonial home as a result of the judgment of Trimble J. If the judgment of Trimble J. is interpreted in a way that makes Dewan responsible for both the judgment and half of the value of the mortgage, then the value of Virgena’s interest would have been increased by nearly $350,000.00.

[105] Neither Dewan nor his counsel has, as far as I am aware, taken any steps to set aside the default judgment.

[106] Virgena takes the position that this potential outcome is entirely reasonable, because of the fact that it was Dewan who took the money out of the credit line to purchase the Erin property. However, Virgena also claims that she is entitled to half of the value of the Erin property as of the date of separation (unless it was given to Junior) and she also claims an interest in a term deposit of approximately $114,000.00.

[107] Virgena also testified that her position is reasonable because she was not really aware of what she was signing when she signed the documentation for the line of credit. I note that Fitzpatrick J. rejected this position in his reasons. I also reject this argument based on my assessment of Virgena’s credibility.

[108] I have no jurisdiction to address the issues raised by this history, as they are the subject of other judgments of this Court. In any event, my jurisdiction in this case is limited to setting out the parties Net Family Property statement as of the date of separation. Subsequent events are not relevant to the determination of Net Family Property.

[109] I set out this history, however, because it informs my decisions about the unequal division of property, the claim for spousal support and the claim for other protective remedies that Virgena has brought.

[110] Accordingly, unless Dewan can demonstrate that Neel loaned him and Virgena a portion of the proceeds to purchase the matrimonial home, the values of the asset and the value of the mortgage as of the date of separation will be recorded equally on the parties Net Family Property statements, as title remains in the names of both parties.

[111] Dewan claims that Neel loaned him and Virgena $140,000.00 to purchase the 2 Lucio Court home. Both he and Neel testified as to this fact. However, the only document that was tendered into evidence to support this claim is a “non-negotiable” duplicate of a cheque that Neel wrote to TD Canada Trust in January of 2001.

[112] I am not satisfied that this evidence establishes that Dewan made any payments at all to assist in the purchase of the 2 Lucio Court house. First, there should have been an actual cancelled cheque or a bank statement to support this assertion. Neither was provided, and I draw an adverse inference from the failure of Dewan and Neel to provide this evidence. Second, there is no good explanation as to why this money was provided to TD. Third, the property was purchased in January of 2002, while the cheque is dated January of 2001.

[113] As a result, I find that the value of the matrimonial home should be split equally between the parties. I retain jurisdiction to address any issues relating to the disposition of the matrimonial home for a period of six (6) months from the date these reasons are released, as Dewan wishes to have me order partition and sale. However, Dewan owes Virgena considerable amounts as a result of this decision, and I am directing him to reconsider his position on the issue of partition and sale.

[114] In the event that the parties do not address the issue of the matrimonial home in the next six months, then any proceedings they wish to bring relating to it are to be brought in the usual course before any Judge of the Court.

The Erin Property

[115] This property is located at 39 Pioneer Drive in Erin, and was purchased by Dewan in his name and the name of his son, Dewan Junior, prior to the date of separation. He used funds taken from the credit line on the Lucio Court property. His explanation for why he purchased this property was that he wanted to help Junior establish a business and, as a result, purchased this property so that Junior could use it to park his trucks on it.

[116] The cost of the property when it was purchased in 2009 was $140,000.00. There was no mortgage on the property.

[117] An appraisal was done on the property in 2012, and noted that the property had been improved by adding a building of approximately 2500 square feet to it, as well as some work on the driveway. In his discussions with the appraiser, Dewan noted that approximately $100,000.00 had been invested in the construction of the building as of 2012. The appraiser estimated that the property was worth $295,000.00 in 2012, and that the building would cost an additional $50,000.00 to complete.

[118] In evidence, I received no plausible explanation for where the money to construct this building came from. The fact that Dewan was able to spend $100,000.00 on the construction of this building fortifies my conclusion that he has vastly understated his income.

[119] There are two issues with this property that must be dealt with. First, Dewan has a term deposit of approximately $114,000.00 with TD Bank. Although the records are not completely clear, it appears likely that Dewan had this term deposit at the date of separation with this value, and I so find. I do have a statement dated October 1, 2010 showing the value of the term deposit

[120] Dewan claims that this deposit was required by the Town of Erin, and is encumbered by them for improvements on the property. As a result, he claims that this money is not available for equalization. In support of this assertion, he points to the notation on his personal statement from TD that has the word restricted next to the Term Deposit. However, he has provided no other documentation to support this assertion.

[121] I reject Dewan’s evidence on this point for the following reasons:

a) If the Town of Erin had imposed some sort of encumbrance on this asset, there would be some documentation from the Town to support this. I draw an adverse inference from the absence of any such documentation. b) There is no real explanation as to why the encumbrance was necessary. At the time of separation, the lot was vacant. At the time of the appraisal, most of the construction on the site was complete, and it would have cost less than half of the value of this term deposit to complete the remaining construction. c) Generally, Dewan’s evidence was unreliable and I am generally not prepared to rely on it in the absence of corroboration.

[122] As a result, the term deposit will be included as part of Dewan’s Net Family Property for the purposes of equalization.

[123] Second, there is the question of whether this property is to be included in Dewan’s Net Family Property statement and, if so, what the value of that property should be. In her evidence, Virgena appeared to be of the view that if the property was for Junior then she did not want it. I am of the view that this is the correct legal conclusion in any event, as a portion of the property was transferred to Junior prior to the date of separation. As a result, Junior’s half is not property that is available for equalization.

[124] However, only half of the property is Junior’s. The other half is subject to equalization. The problem is what value should be ascribed to Dewan’s half of the property as of the date of separation. I have no direct information on the value at the date of separation, but can make the following conclusions from the appraisal:

a) The buildings were built in the year prior to the appraisal, and would not have been constructed until after the date of separation. b) The value of the land did not increase significantly between the date it was purchased and the date of separation. Indeed, the appraisal estimates that the land itself was worth approximately the same in May of 2012 as it was worth in 2009.

[125] Based on these conclusions, the Erin property will be included in Dewan’s Net Family Property calculation with a value of $70,000.00 (being half of its total value) as of the date of separation.

Goreway Townhome

[126] At the time of separation, the Goreway townhome was owned equally by Neel and Virgena. The rents on the property were paid to Dewan and, as I have noted above, may have been included in his income.

[127] However, the fact remains that this property was owned in part by Virgena at the time of separation, and Dewan had no interest in the property at the date of separation. Therefore, it should be included in her Net Family Property for the purposes of equalization.

[128] The question is what is the value of the property as of the date of separation? The property was subject to partition and sale in 2012, and both Neel and Virgena realized approximately $95,000.00 from the sale of the property.

[129] The appraisal listed the value of the property as approximately $175,000.00 as of May of 2012. I have no evidence of how the value of the property changed between the date of separation and May of 2012, and I have no evidence about the mortgage on the property.

[130] However, from the appraisal, I do note that the property was sold in 2000 for $112,000.00. This means that in 12 years, it only increased in value by about $60,000.00. Given that fact, and the absence of any evidence about the change in the value between 2010 and 2012, I accept the May 2012 value as being the best available evidence of the value of the property in 2010.

[131] As a result, Virgena will have this property listed as part of her Net Family Property for the purposes of equalization. The value on Virgena’s Net Family Property statement will be $87,500.00, being half of the total value of the property as of the date of separation.

The Bancroft Property

[132] This is a cottage that Neel purchased in the early 2000’s for him and his four brothers to use. He transferred a twenty percent interest to each of his four brothers so that they would feel welcome to use the property. Dewan transferred his interest in the property back to Neel shortly after separation, to protect the property from Virgena.

[133] Virgena alleges that Dewan made a contribution to this property and purchased part of it. She provides no amount that Dewan paid for the property, and absolutely no evidence to support her claim. Given my earlier conclusions about Virgena’s tendency to exaggerate and overstate Dewan’s financial circumstances, I am not prepared to accept this evidence without corroboration.

[134] On this issue, I am prepared to accept Neel and Dewan’s evidence that an interest in the property was given to Dewan because of the fact that I have the title abstract in evidence that shows an interest was transferred by Dewan to his four brothers on the same day.

[135] As a result, I find that the interest in the Bancroft property was given to Dewan by Neel. However, that does not end my inquiry. If this property is a matrimonial home, then Dewan would not be entitled to exclude it from his Net Family Property.

[136] Neither party provided me with either argument or case-law on this issue. However, in order to determine whether it is a matrimonial home, I must consider whether it was ordinarily used by the spouses and, if so, whether it was used as a family residence.

[137] In this case, I am satisfied that the property is not a matrimonial home because it was not used as a family residence. I reach this conclusion for two reasons:

a) I had no evidence that Dewan and Virgena used this home for their immediate family only. Indeed, the evidence I had clearly shows that it was a property that was for the primary use of all of Dewan’s brothers and their families. b) I had no evidence whatsoever that Virgena made any contributions to the maintenance and upkeep of this property, or played any role in the property other than as a visitor.

[138] In the circumstances, I find that this is not a matrimonial property, and that Dewan is entitled to exclude it from his Net Family Property as a gift. The value of the property as of the date of separation appears, on the basis of the appraisal I have received, to be approximately $450,000.00. Twenty percent of that amount, being $90,000.00 will be included on Dewan’s Net Family Property statement, and the same amount will be deducted as a gift.

The Ridgehaven Property

[139] This is a residential home located in Brampton. The parties put in an offer to purchase this property in 2009, and put a deposit on it. There are documents that support that the parties intended to purchase this property, and that a deposit was paid.

[140] However, the parties did not complete the transaction. Instead, the documentation that was filed shows that Neel and his wife now own the property. It was also clear from the evidence that Dewan was living in the property, along with his girlfriend, their new child and Junior.

[141] Neel and Dewan claim that Dewan and the others who live in the property pay rent in the sum of $1,000.00 per month to Neel. I reject this evidence because Dewan gave an undertaking on questioning for the production of receipts for rent, and none were produced in the course of the case. As a result, I conclude that Dewan and his family are living rent-free in the property.

[142] Although this arrangement appears suspicious, I cannot conclude on the evidence before me that Dewan actually has (or had at the date of separation) a beneficial interest in the property other than the deposit.

[143] The only other issue to determine with this property is the deposit. Virgena asserts that the deposit should be counted in the net family property, and that her mother provided the parties with a loan to purchase this property. With respect to the deposit, even if it was counted in the Net Family Property Statement, half of it would appear on each party’s statement, and I so order.

[144] Again, this is an issue on which the lack of documentation makes it difficult to determine precisely what the value of the deposit is. However, the parties filed cheques for the down payment totaling $24,000.00. As a result, I find $24,000.00 to be the value of the deposit for the home as of the date of separation, and half that amount will be included on each party’s Net Family Property statement.

[145] This brings me to the alleged loan from Virgena’s mother. Again, I reject Virgena’s evidence on this point for the following reasons:

a) Virgena would have had documentation from her mother, such as a cheque, to support this loan. No documentation was provided in Virgena’s evidence. b) If this was a loan, there would be an expectation that the parties would pay it back. I heard no evidence about any efforts to either have the money paid back, or to document that it was a loan.

[146] As a result, with respect to the Ridgehaven property, the deposit for that property will be included in equal amounts on each party’s Net Family Property Statement, but there will be no loan recorded.

The Chattels

[147] Virgena argued that there were a number of cars, motorboats and jet skis that the parties owned and/or purchased during the course of their marriage. She asserts that these chattels are all in Dewan’s possession, and that there should be a significant equalization payment on account of these chattels.

[148] During the course of the trial, Virgena agreed not to pursue the claim for the dirtbike, as it was owned (and used) by Junior. However, she did pursue a number of claims for vehicles, motorboats, tools and jet skis.

[149] In terms of the vehicles, Virgena testified that Dewan bought Mercedes and Hummers for himself and Junior. However, when Dewan testified, he told the Court that all of these vehicles were purchased used, and that there was not a lot of value in any of these cars. This testimony was, in large part, confirmed by Marla.

[150] The only documentary evidence I had to prove the existence of any of these cars was the licence renewal for a 1992 Mercedes. This document does not provide any value for this 25 year-old vehicle.

[151] This testimony is, again, a demonstration of Virgena’s tendency to overstate the value of Dewan’s assets. I am left in a position where the parties may own a few used vehicles, and I have no actual valuations of any of these vehicles from either side. In light of this evidentiary record, I am not prepared to ascribe any values to these vehicles for the purposes of the equalization calculation.

[152] This brings me to the boats, jetskis and dirtbikes. Virgena’s evidence on this point was to testify that there were a lot of toys that were purchased, some of which were parked at their home in Brampton during the winter. She also provided photos of Dewan and Junior standing next to boats, and labelled the photos “our boats.”

[153] Dewan denies owning any of these chattels. Instead, he testified that all of these items were owned by Neel. Neel corroborated this evidence, and testified that they had been bought for his children.

[154] I am faced with a conflict in the evidence of three unreliable witnesses, with absolutely no documentation (other than some photographs) to support any party’s evidence. The only way I can resolve this issue is to consider the maxim “he who asserts must prove”. In this case, Virgena is asserting that these chattels are owned by Dewan, and I find that she has not proven her assertion that any of these chattels were owned by Dewan. Accordingly, I am not prepared to include any of these items on the Net Family Property statement.

[155] Virgena also asserts that Dewan owned approximately $20,000.00 in tools. Dewan did acknowledge owning a few tools as of the date of separation. However, his testimony was that these tools were in the possession of Virgena. As a result, it is up to her to prove the value of these chattels. In any event, if the tools were in her possession and have been since the date of separation, it is arguable that they might belong on her side of the Net Family Property calculation. Given the failure of any party to provide me with any meaningful evidence about the value of these tools, and the fact that there are questions about where they would be included in the parties Net Family Property Statements, I decline to ascribe any value to them.

The Investments

[156] As I noted in the section on the Erin property, the Term Deposit will be included in Dewan’s Net Family Property calculation. The other items that Virgena claims include some Edward Jones accounts as well as a Tax Free Savings Account.

[157] I start with the Edward Jones account. In her evidence Virgena asserted that there were three accounts and she was entitled to equalization on all three accounts. This argument was also forcefully advanced by her counsel during the course of this case.

[158] On inspection of the statements, however, it is clear that there is only one Edward Jones account. I reach this conclusion for the following reasons:

a) The account numbers on the statements appear to be the same. b) The statements are for different months. c) The amounts on the statements are all similar. In fact, the September 2010 statement shows the same starting balance as is listed as the closing balance on the August 2010 statement.

[159] I note again that the claim by Virgena that there were three Edward Jones accounts is another example of her tendency to overstate Dewan’s assets. In terms of the actual value of the Edward Jones account, the best evidence I have as to the value of this account on the date of separation is the statement showing the balance as of July 31st, 2010 as $16,112.03, and that amount will be included on Dewan’s Net Family Property Statement.

[160] This brings me to the TFSA. I have a statement showing the value of Dewan’s TFSA as $5,009.93 as of June 30th, 2010. Again, this is the best evidence of the value of this business as of the date of separation, and the TFSA will be included on Dewan’s Net Family Property statement.

Valuing Dewan’s Businesses

[161] In her Net Family Property statement, Virgena states that the value of the businesses owned by Dewan is to be determined. In her evidence before me, she states that the value of the business is in excess of $1 million dollars. Other than Virgena’s evidence, I have absolutely nothing to support this claim.

[162] Part of Virgena’s claim is based on the fact that she asserts that Dewan’s business owned a hundred trucks. Another part of her claim is based on his customer list. This is the same customer list that turned out to be the NUANS report.

[163] I reject Virgena’s evidence as being wholly unreliable for a number of reasons:

a) It is clear that she was prone to substantial exaggeration and, perhaps, outright fabrication when it came to valuing Dewan’s assets. On this point, I note the NUANS report (again). b) I also note that Virgena would say that Dewan was hiding things from her every time she was asked to provide some support for her conclusions. At its highest, her evidence amounts to mere supposition. I am not prepared to ascribe such a significant valuation to this business on mere supposition. c) Her claim of Dewan owning a hundred trucks was not supported by Marla. Indeed, Marla testified that her father had some people working for him, but certainly there was no mention of a huge staff. To put it another way, her suppositions about the value of the business are contradicted, to a certain extent, by the only credible witness to testify in this case.

[164] Dewan’s evidence was equally unreliable. I have already rejected his claim that the business only pays him $24,000.00 per year. As a result, I am left with my own analysis about the nature of the business.

[165] I have no evidence to support that the business has significant assets. It is a trucking and freight operation. As a result, it is likely that most of the value of the business is in its ability to generate cash through ongoing operations. In other words, there are unlikely to be many assets in the business other than the “sweat equity”, or earning power, that Dewan brings to it.

[166] In addition, the Agreed Statement of Facts states that Dewan does not own 400 Sales and Service. As a result, it would be difficult to include it in any Net Family Property Statement as an asset.

[167] Accordingly, on the record I have before me, I am not prepared to ascribe any ongoing value to the business.

Unequal Division of Property

[168] Virgena has claimed that she is entitled to an unequal division of Net Family Property. She advances this claim on the basis that it would be unconscionable, and shock the Court to permit an equal division of Net Family Property. Virgena points to the provisions of section 5(6) of the Family Law Act to support her position.

[169] Dewan argues that Virgena should not be allowed to pursue the claim for an unequal division as it was not properly pled. In support of this assertion, he relies on the decisions in Taylor v. Taylor, 2004 ONSC 42952, 10 R.F.L. (6th) 202 (Ont. S.C.J.), Greenglass v. Greenglass, 2010 ONCA 675 and Sheikh v. Sheikh, 2005 ONSC 14151, 17 R. F.L. (6th) 303 (Ont. S.C.J.)

[170] In this particular case, I am prepared to consider the claim for an unequal division of Net Family Property for two reasons. First, as counsel for Dewan rightly concedes, “parties should rarely be denied the opportunity to make their case”. Second, it was clear from the Net Family Property statements filed by Virgena some time ago that she was seeking an unequal division of Net Family Property.

[171] The analysis of whether this request should be granted starts with sections 5(1) and 5(6) of the Family Law Act. These sections state:

5. EQUALIZATION OF NET FAMILY PROPERTIES – (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them.

(6) VARIATION OF SHARE – the court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage; (b) the facts that debts or other liabilities claimed in reduction of a spouses’ net family property were incurred recklessly or in bad faith; (c) the part of a spouse’s net family property that consists of gifts made by the other spouse; (d) a spouse’s intentional or reckless depletion of his or her net family property; (e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionate large in relation to a period of cohabitation that is less than five years; (f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family; (g) a written agreement between the spouses that is not a domestic contract; or (h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[172] The test for an unequal division of Net Family Property is high. It has been explained in Janjua v. Khan, 2013 ONSC 44. At paragraph 68 of that decision, Hughes J. stated:

Be that as it may, the onus in this case is not on Mr. Janjua to prove he is entitled to an equalization of net family property. It is on Ms. Khan to prove he is not. To prove that he is not so entitled she must establish that for the court to award him an equal share of net family property would not just be “highly unfair,” as she stated in her 14B motion, but unconscionable. That is the test.

[173] In this case, I see no basis for a finding that it would be unconscionable to divide the net family property equally. The accumulation of capital occurred over the course of the marriage, and it is being shared equally.

[174] Indeed, if I were going to find it appropriate to permit an unequal division of property, it would be more likely that I would find that this division should favour Dewan because of the circumstances of the matrimonial home. However, given my conclusions on spousal support it is not necessary to consider these issues.

Conclusion on Equalization

[175] Based on the foregoing reasons, and the calculation set out in Appendix “B”, Dewan owes Virgena the sum of $59,185.58 as an equalization payment, and I direct this amount to be paid within thirty (30) days.

Issue #5- The Quantum and Duration of Spousal Support

[176] As noted above, there is really no dispute between the parties that Virgena’s income is currently approximately $30,000.00 and has been approximately that since the date of separation. Dewan’s counsel argues that, going forward, this income number should be viewed as too low, and that I should impute a higher number to Virgena.

[177] Any analysis of spousal support starts with considering the two bases under which support could be awarded in this case: the compensatory basis and the needs basis. It also requires me to consider the factors set out in section 15.2(4) of the Divorce Act and the objectives set out in subsection (6) of the same section. I will address the two bases for awarding support, and will consider the factors as appropriate in each area.

[178] I note at the outset that there is no argument being advanced for support to be paid under the contractual basis, and I see no facts whatsoever to support such a claim in any event.

The Compensatory Basis

[179] The rationale behind the compensatory basis was set out in Moge v. Moge, [1992] 3 S.C.R. 813 at 861, where the Court stated:

Today, though more and more women are working outside the home, such employment continues to play a secondary role and sacrifices continue to be made for the sake of domestic considerations. These sacrifices often impair the ability of the partner who makes them (usually the wife) to maximize her earning potential because she may tend to forego educational and career advancement opportunities. These same sacrifices may also enhance the earning potential of the other spouse (usually the husband) who, because his wife is tending to such matters, is free to pursue economic goals.

[180] This passage does not clearly apply to this case. Virgena has worked throughout the marriage, with the exception of a couple of short maternity leaves when she was at home. The nature of the work that she did, which was clerical work, remained the same both before and after the marriage. In addition, I heard very little evidence from Virgena about any specific career related sacrifices that she made.

[181] The only evidence I did hear about sacrifices she made in relation to helping Dewan with his business was the fact that she did some invoices for him when she was off work with Junior. She also testified that Dewan travelled for work from time to time.

[182] In any event, however, given my concerns with the reliability of Virgena’s testimony, I am of the view that it is better to found any award of spousal support under the needs basis, as it provides a more objective and more reliable framework to analyze the facts of this case.

The Needs Model

[183] The Ontario Court of Appeal’s Decision in Gray v. Gray, 2014 ONCA 659 provides recent instruction on the needs model. In that decision, the Court stated (at paragraph 27):

One of the objectives of the Divorce Act is to relieve economic hardship. Need is not measured solely to ensure a subsistence existence, but rather should be assessed through the lens of viewing marriage as an economic partnership. As stated by this court in Marinangeli v. Marinangeli (2003), 2003 ONCA 27673, 66 O.R. (3d) 40 (Ont. C.A.) at para. 74, in determining need, courts ought to be guided in part by the principle that the spouse receiving support is entitled to maintain the standard of living to which she was accustomed at the time cohabitation ceased. The analysis must consider the recipient’s ability to support herself, in light of her income and reasonable expenses.

[184] One of the issues in this case is the fact that there is a significant income disparity in this case. In addition, it was a long marriage, having lasted nearly 24 years. When the factors in section 15.2 of the Divorce Act are considered, it is clear that some spousal support should be paid on the needs basis at least before the equalization issues are considered.

[185] The SSAG ranges in this case with child support produce values of between $502.00 per month at the low end of the range and $978.00 per month at the high end of the range.

[186] In the circumstances, those produce retroactive amounts for spousal support that would amount to significantly less than the advantage that Virgena has gained from having a judgment against Dewan for the entirety of the value of the mortgage on the matrimonial home. Indeed, the total lump sum spousal support that would be payable at the low end of the range is approximately $135,000.00. In other words, the payment of the mortgage judgment by Dewan results in a payment that is substantially greater than what the minimum range for the lump sum spousal award would be.

[187] I have described the long and tortured history of the matrimonial home above. In my view, Dewan’s obligations to pay spousal support will be fully satisfied upon payment of the judgment that Virgena obtained against him.

[188] However, if Dewan seeks to set aside this judgment, then I retain jurisdiction to consider what the actual support amounts should be in this case. I retain this jurisdiction for a period of six (6) months, taking the view that if Dewan does not move to set aside the judgment within six months of the release of these reasons, then it is unlikely that a Court would entertain a subsequent request, especially since Virgena will have relied on Dewan’s failure to move to set aside the judgment as acceding to the judgment and accepting that as her spousal support award.

Issue #6- Remedies to Protect Ongoing Support

[189] At this point, I have directed Dewan to reconsider the question of whether he is still seeking partition and sale of the matrimonial home. Regardless of his decision in respect of that issue, Dewan’s portion of the proceeds from the matrimonial home represent a significant asset that can be used to protect any amounts owing under this decision.

[190] In addition, Dewan has title to a portion of the Erin property, which has increased substantially in value since the date of separation.

[191] I was not provided with any clear grounds for protecting ongoing support in this case and, given the fact that there are real assets in the jurisdiction that can be realized upon if support is not paid, I decline to make any Orders in this regard.

[192] I also must address one further argument that Virgena advanced. She asserts that she should be given exclusive possession of the matrimonial home until Marla finishes school. Indeed, in her final argument, Virgena’s counsel stated that pursuing this argument was the reason that Virgena was “constrained to call the child” as a witness.

[193] The basis for Virgena’s argument is sections 19(1) and 24 of the Family Law Act, as well as the fact that remaining in the matrimonial home would be in the best interests of Marla.

[194] I reject these arguments. First, there are the statutory provisions. Section 19(1) gives each spouse an equal right to possession of the matrimonial home. I fail to see how this section can be used to support an exclusive right of possession for Virgena in this case. Section 24 deals with the circumstances in which the Court can grant exclusive possession of the matrimonial home to one spouse.

[195] There are a number of principles that apply here. First, a joint tenant (such as Dewan) has a prima facie right to partition and sale and this right should not be interfered with lightly.

[196] Second, this action is at a conclusion, and the parties have been separated for more than six (6) years. In the circumstances, it would require significant evidence to establish that exclusive possession should be granted to Virgena for a further six (6) years. In addition, I was not given any legal authority to support the proposition that such a long period of exclusive possession was legally supportable.

[197] This brings me to the only other argument that Virgena advanced. In response to questions from Virgena’s counsel, Marla testified that she was very attached to the home and would be devastated if she left it. Virgena’s counsel points to this evidence to support her contention that it would be in Marla’s best interests to remain in the house.

[198] I reject this argument for two reasons. First, as I have stated elsewhere, Marla should not have been called as a witness in this case. Second, I am not prepared to accept her preferences as being synonymous with her best interests. She is nineteen years old, and at University. A divorce is a very difficult event for all children, partly because of the changes it brings. One of those changes is often the sale of the matrimonial home.

[199] It is unlikely that Marla’s University education or her trajectory in life will be affected by the sale of the matrimonial home at this point. As a result, I have no evidence that it is in her best interests to remain in the matrimonial home at this point, and I reject this argument.

[200] As I have noted above, I have retained jurisdiction to consider any issues of partition and sale of the matrimonial home for a period of six months from the release of these reasons. This is not an opportunity for Virgena to relitigate the question of exclusive possession of the matrimonial home. My decision on that issue is final.

[201] Finally, as I have noted above, I am of the view that it was not appropriate to call Marla as a witness, as it put her in the middle of a parental conflict. In essence, if the reason she was called was to explain that she did not want to have the matrimonial home sold, then she was enlisted by Virgena to challenge Dewan’s position in this litigation. No child should be put in that position.

Conclusion- Order and Costs

[202] Based on the foregoing reasons, I make the following Orders in this case:

a) The parties are to be divorced, effective thirty one (31) days after the date that these reasons are released. b) The Respondent’s income is imputed at $70,000.00 per annum from the date of separation, May 16th, 2010, and ongoing. c) The Respondent is to pay retroactive child support in the amount of $31,802.00 either out of his share of the proceeds from any sale of the matrimonial home or through the Family Responsibility Office. d) If either party disputes the arithmetical calculations in paragraph (c), they are to serve and file written submissions within fourteen days of the date of this decision. e) No party shall respond to submissions provided pursuant to paragraph (d) unless and until invited to do so by me. f) The Respondent is to pay $639.00 per month in child support to the Applicant on account of Marla, starting August 1st, 2016 and ending when Marla completes her proposed program of study at York University. g) The Applicant is to provide the Respondent with proof of Marla’ enrolment in Seneca College and/or York University within thirty (30) days of the start of each semester. h) The parties are to split section 7 expenses, with the Applicant paying 30% of those expenses, and the Respondent paying 70% of those expenses. i) The parties are to continue to pay all of Marla’s post-secondary tuition and related expenses for the duration of the period set out in paragraph (f). j) The Respondent is directed to pay the Applicant the sum of $10,775.47 on account of retroactive section 7 expenses. k) I retain the jurisdiction to consider any issues relating to the matrimonial home, including its partition and sale, until February 5th, 2017. l) The Respondent will pay to the Applicant the sum of $59,185.58 as an equalization payment within thirty (30) days of the date of the release of these reasons. m) I retain jurisdiction to consider whether spousal support should be paid until February 5th, 2017, but only in the event that the Respondent seeks to set aside the Order of Trimble J. of October 8th, 2014.

[203] This brings me to the subject of costs. Given the divided success in this case, each party shall make their costs submissions within fourteen (14) days of the date of these reasons. Those submissions are not to exceed four (4) double spaced pages, exclusive of case-law, bills of cost and offers to settle.

[204] Each party may file a reply on costs submissions within seven (7) days of receiving the other side’s costs submissions. These submissions are not to exceed two (2) double spaced pages.

LEMAY J

Released: August 5, 2016