CITATION: Patel v. Seth, 2016 ONSC 6964
COURT FILE NO.: FS-14-82217-00
DATE: 20161209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PRAVINCHANDRA PATEL
Applicant
– and –
ANNELY SHETH
Respondent
M. Bhardwaj, for the Applicant
R. Vora, J. Jagtoo for the Respondent
HEARD: May 31, June 2, 3, 6, 7 and 9, 2016
REASONS FOR JUDGMENT
FRAGOMENI, J
Overview
[1] The husband, Pravinchandra Patel (Patel) and the wife, Annely Sheth (Sheth) were married on September 18, 2010. They separated on January 19, 2014. They have one child, Tej Patel, born October 23, 2011. The husband’s date of birth is June 18, 1972 and the wife’s date of birth is October 30, 1974.
[2] This trial dealt with four issues, namely:
Spousal Support
Equalization of Property
The Tort of Invasion of Privacy
Assault and Battery
Trial Evidence
Pravinchandra Patel
[3] Patel is 43 years of age. He has been employed at Apotex Incorporated for 15 years. For the past 6 years he has been a supervisor in a quality control lab. He resides in Etobicoke with his mother.
[4] He met Sheth seven to eight months prior to the date of marriage, which was September 18, 2010.
[5] Sheth brought $45,000 into the marriage while he brought $75,000 into the marriage.
[6] Tej was born on October 23, 2011. Prior to his birth Sheth was employed at CB Richard Ellis Realty as a project co-ordinator.
[7] Patel testified that Sheth forced him to use his income for their living expenses and she would save her income.
[8] On September 17, 2011 Sheth told him how much money she had saved and set it out in a note which has been marked as Exhibit 1. The note states that she had the following savings:
ING
ISA $55,624.21
TAX $15,511.51
TOTAL $71,135.72
RRSP $26,186.91
TOTAL WITHOUT RRSP $149,898.39
TOTAL WITH RRSP $182,753.22
[9] When Tej was born on October 23, 2011 Sheth took maternity leave for the full year. On April 26, 2012 Sheth left Patel and she left with the child. The next day she went to the police and he was charged with assault. Patel described the incident as follows:
Sheth was behaving erratically. He was talking to her in a normal way. Sheth was upset and not looking at him. He touched her chin to draw her attention to look at him while he was talking to her. She said “don’t touch me, you know what I’m capable of doing.”
[10] As a result of this incident Sheth left and went to live with her parents.
[11] The bail order was such that Patel could not communicate with his wife until the charge was dealt with. CAS was also advised of the assault charge.
[12] In April 2013 the parties reconciled, however, Sheth imposed several conditions as terms of the reconciliation including the following:
− they would take marriage counseling
− they would take parenting classes
− there would be no monetary contribution by her
− he had to bring back into the marriage $50,000.
[13] With respect to the $50,000.00, he talked to his friends about loaning him that amount. Pranav Patel lent him $25,000; Tariq Mehmood lent him $5,000; and Divyesh and Jagruti Shah lent him $20,000. Sheth had insisted that he return the money he had prior to the marriage that he had brought into the marriage. Since he did not have that money he had to borrow it from his friends.
[14] Patel’s Net Family Property Statement is filed as Exhibit 5. It shows Sheth owing him $41,309.62.
[15] Tab 12, Book 1 of 2 of Patel’s Document Brief, sets out the promissory notes and proof of payments for the loans from his friends totaling $50,000.00. Patel paid these loans back in January and February 2014.
[16] On January 21, 2014 he paid Pranev Patel $25,000 by way of a money order. On February 8, 2014 he paid back Divyesh Shah $20,000 by way of a money order. The remaining $5,000 was paid to Tariq by way of cash.
Events After the April 20, 2013 Reconciliation:
[17] After the parties reconciled Patel testified that the relationship had changed. During the reconciliation period he became concerned about his own security. He felt insecure in his own home. Sheth had hired a private investigator alleging he was having an affair. He denies that he did have an affair.
[18] Back in April 2012 Sheth had falsely accused him of assault.
[19] Patel recorded his conversations with his wife. Later in 2013 he had difficulty talking to her and she started to become aggressive.
[20] It was for those reasons that he surreptitiously installed a video camera in the bedroom on the armoire facing the bathroom. He would turn the camera on in the morning. He had it on for a couple of days and he never downloaded the events. The only reason he set up the camera was to protect himself.
Cross-examination of Patel:
[21] Patel was asked about the camera in the bedroom and he acknowledged that he did not tell Sheth he had installed the camera. Patel also acknowledged that the camera could have caught Sheth in the act of getting undressed.
[22] With respect to the date of reconciliation, Sheth had indicated it was July or August 2013, not April 2013, but Patel insisted it was April 20, 2013. Patel acknowledged that he had proceeded with a Divorce Application on January 7, 2013 in the Superior Court of Justice in Brampton. Patel noted, however, that in his mind the marriage was still not over.
[23] The second separation occurred on January 19, 2014 and Patel proceeded with his second Application for Divorce on March 5, 2014.
[24] With respect to the assault charge, Patel acknowledged that he did not include the incident in his February 27, 2014 Form 35.1 affidavit. No abuse was set out in that document. He testified that he told his lawyer about it, but question 8 relating to violence or abuse, was left blank.
[25] When Sheth left on January 19, 2014 he did not know she had left the marriage. The following e-mail was put to Patel but he did not recall it:
Mon, Jan 20, 2014 at 11:17 PM
Pravin
Since you were misbehaving with me from quite a while and specially on Jan 19, 2014 very early in the morning you told me numerous times to leave the house as soon as possible and all the belongings in our house is yours and I do not have any right to stay. After that I was afraid for my son and myself so we have left. We are staying at my parents place in Brampton.
Regards,
Annely
[26] Patel acknowledges receiving it and he never e-mailed her back on it.
[27] Patel testified that he did not want her to leave but then he was shown his January 24, 2014 e-mail to Sheth which states:
Hi Annely,
We have given ourselves a good eight months to get back together in our lives after reconciling and there is no improvement and future. Although, we have gone through the full course of Marriage Counselling and Parenting Classes. When I brought up to you, I sense that you are not happy with this relationship and you acknowledged that “we both are not happy”. This signifies that we’re living miserable and no one deserves to live miserable life and that to our son’s best interest we should take a departure and move on.
I am very much concerned about our son and miss him a lot. I would like to see him and have access to him so that I can quality time with him.
Please let me know how and when you would like to arrange so that I can come pick him up.
Regards,
Pravin
[28] Despite the fact that in his e-mail he states that he missed his son he does not see his son until September 2014. During that time period Patel did not bring a motion for access, nor did he pay child or spousal support.
[29] In 2014 Patel’s income was $85,344. He knew Sheth was unemployed as of June 2014 and yet he paid no spousal support to her.
[30] In September Patel started paying spousal support. He also purchased a condominium.
[31] When he borrowed the $50,000 from his friends he never told Sheth that he was borrowing the funds. He said he lied to her about that to save the marriage. The reason he paid them back when he did is because they asked to be paid. They needed the money.
[32] Patel commenced paying child support in September 2014.
[33] Patel acknowledged that as of April 26, 2012 he had $68,000. He was asked why he would have to borrow $50,000 from friends if he had $68,000. Patel explained that he had spent the $68,000. He was stressed and depressed. He used the money to buy things and go out. He bought electronics; he paid his lawyers; he went out with friends; he helped out his mother. He really could not say how all the funds were spent.
[34] The reason he only paid $250 per month for child support instead of the guideline amount of $647 per month was because Sheth had a lot of savings she could access to support Tej.
[35] With respect to the camera in the bedroom, Patel acknowledged that he lied under oath at his Discovery. Patel acknowledged he lied with respect to the following questions:
Q: Before I start, did you ever put a camera, a hidden camera in the bedroom, Mr. Patel?
A: No.
Q: Okay. The camera is set in a key chain with a BMW key chain that looks very innocuous. Did you ever do that?
A: No.
Q: You sure?
A: Sure.
Q: And if this camera captures images in your bedroom and your washroom, is it your evidence that the Respondent planted the camera?
A: Could be.
Q: I need a yes or a no.
A. Yes.
[36] Patel acknowledged that he lied at his discovery with respect to the above-noted exchange.
[37] Patel acknowledged he lied again in the following exchange at his Discovery:
Q: Okay. So you’re going into the bathroom, you saw a key chain, and you’re wondering what a key chain is?
A: Well, BMW. Has a BMW logo. So, I said what is this.
Q: Okay.
A: I never seen it before. So….
[38] At Discovery he was also asked if he told anyone about what he had done with respect to planting the camera and he said no. At trial he said he did tell Amy Patel.
Tariq Mehmood
[39] Mr. Mehmood knows Patel as a friend and co-worker. He confirmed that he lent Patel $5,000 with no interest. Patel told him he would pay him back within a year. Tab 12 is the loan agreement dated April 26, 2013. Within eight or nine months Patel did pay him back in cash.
Cross-examination:
[40] Mr. Mehmood acknowledged that Patel is his supervisor and he has been reporting to Patel for the past two to three years. They trust each other. Patel told him he needed the money to save his marriage.
[41] Patel prepared the loan agreement and typed it and then Mr. Mehmood signed it.
Pranav Patel
[42] Pranav has known Patel for more than 10 years. He has worked with Patel and Apotex for almost 10 years. He is a senior chemist at Apotex.
[43] In May 2013 he loaned Patel $25,000.00. Tab 12 contains the promissory note confirming the loan. Patel paid him back on January 21, 2014. Pranav was never concerned out being paid back and really did not need a promissory note. No interest was charged.
Cross-examination:
[44] Patel is not his supervisor, he is a co-worker. They are also friends and he trusted Patel.
[45] Pranav had $15,000 of his own money and he asked three of his friends for the other $10,000. His friends were Ajeet, Gaurev and Manish. No receipt was given to them. They are all close friends of Pranev. They are all friends and help each other when required.
[46] Pranav’s understanding was that Patel’s marriage was having problems and he wanted to get back with his wife.
[47] Pranav did not bring to court any of his bank documents to verify this transaction and re-payment to him.
[48] Pranav could not recall why the date of January 21, 2014 was the time of repayment. He must have asked Patel to repay him then but he was not sure.
Suraj Benmanchh Patel (Suraj)
[49] Suraj is Patel’s mother. She is 66 years of age. She came to Canada in 2005 and is now a resident of Canada. She has been divorced for 40 years.
[50] She first met Sheth eight months prior to her marriage to Patel on September 18, 2010.
[51] Suraj was living with Patel and Sheth and was doing the household chores as she was not working outside of the home. After the marriage Sheth was working.
[52] Suraj noted that she did all the cooking and most of the cleaning. Sheth did nothing.
[53] Tej was born on October 23, 2011. She was very happy to be a grandmother. After Tej’s birth Patel and Sheth’s relationship was fine in the beginning but after they started arguing. She does not know what the arguments were about. She never witnessed any physical altercations between them.
Cross-examination
[54] In cross-examination Suraj acknowledged or confirmed the following:
− she is financially independent
− when she was divorced from her husband in India she left two kids with him and this was unusual for the Indian custom and culture
− as Patel fell in love with Sheth, she did not arrange the marriage as is the usual custom. She gave Patel her blessing to marry Sheth.
− while living with Patel and Sheth she did not pay room and board
− she was able bodied and happy to contribute to the household and she did. She helped because they were both working and had a small child.
− she did not know about the camera in the bedroom. She is shocked and offended if that was the case. When she did come to know about the camera she was not surprised. She said it was put there for his safety.
− after she indicated she did not know about the camera she then acknowledges she did and found out about it when this case started. It was in the pleadings. So she asked her son about it and he told her he put it there for his safety.
− she acknowledged that having a camera in her room without her consent could be offensive.
Respondent Annely Sheth
[55] Sheth confirmed the date of marriage as September 18, 2010. Tej was born October 23, 2011.
[56] The parties first separated April 26, 2012.
[57] She described the altercation on April 25, 2012 that led to this first separation. The parties were having an argument. He grabbed her face and she told him to let go as he was hurting her. He then grabbed her left arm and she again said he was hurting her. He called her dumb and stupid and she did not have the guts to call 9-1-1.
[58] As a result of this altercation she went to her parents and the next day she went to the police and gave them a videotaped statement. Patel was charged with assault by the police.
[59] The second separation occurred on January 19, 2014. She left as a result of emotional and physical abuse at the hands of Patel. On that day at 3:00 a.m. Patel was in their bedroom looking for something in a panic. He was looking for a BMW key chain. He was very panicked. She asked him what was so urgent. He pushed her and kicked her and asked her to leave with Tej.
[60] At 6:00 a.m. or 6:30 a.m. she left with Tej and went to her parents’ home.
[61] On January 20th, 2015, she sent him an e-mail. (See Volume 2 Tab 30)
[62] Tab 68 at Volume 2 is the Occurrence Report of the York Regional Police.
[63] Sheth’s Education and Work History income is set out at Exhibit 12 as follows:
Education:
1995: Interior Decorating
Vancouver School Board
1997: Computer Information Systems
Douglas College
2008: Project Management (CAPM)
PMI Organization
2015: Accounting Fundamentals Program
Adult & Continuing Education Program
Dufferin-Peel Catholic District School Board
Employment History:
February 2003 – March 2006:
(3 years, 0 months) Customer Service Manager, ICICI Bank Canada
March 2006 – November 2008:
(2 years, 9 months) Program Coordinator, CBRE Ltd.
November 2008 – September 2009:
(0 years, 11 months) Program Coordinator, Brookfield Johnson Controls (BLJC)
September 2009 – June 2013:
(3 years, 10 months) Program Coordinator at CBRE Ltd.
June 2013 – April 2014:
(0 years, 11 months) Unemployed
April 2014 – June 2014:
(0 years, 3 months) Project Coordinator/Junior Project Manager, Tiree Facility Solutions Inc.
June 2014 – January 2016:
(1 year, 7 months) Unemployed
January 2016:
(0 years, 1 month) Co-op Student, DATA Group Limited.
February 2016 – Present:
(0 years, 6 months) Junior Accounts Payable Clerk, DATA Group Limited.
Income:
2010 $59,076.00
2011: $54,419.00
2012: $36,739.00
2013: $41,155.00
2014: $41,783.00
[64] At Volume II of Sheth’s Document Brief, Tabs 17 and 18, are the work logs and summary of work applications and e-mails demonstrating the efforts she had made to find employment.
[65] Her current salary is $17.54 per hour for a 36.5 hour work week. It is a contract position with no benefits.
[66] Sheth denies that as a condition of the parties getting back together Patel had to return $50,000 back into the marriage. The only conditions she discussed for reconciliation were:
− to take marriage counselling
− to take parenting classes.
[67] The parties reconciled in August 2013 and the final separation was January 19, 2014. At this time Sheth was not working. She found work in April 2014. In September 2014 Patel paid her $700 per month for child support. In March 2015 he started paying spousal support pursuant to a court order.
[68] Exhibit 14 is Sheth’s Financial Statement sworn May 2, 2016.
Re: Camera in bedroom
[69] Sheth found the camera in October 2014 when she was moving her bedroom furniture around. She was living at her parents’ home at the time. The BMW key chain contained the camera. She gave it to her lawyer at the time.
[70] Tab 77 of Volume II are the photos she was able to retrieve from the camera. If other photos or videos exist she would not know.
[71] Sheth testified that she was highly offended at becoming aware that Patel had surreptitiously planted a camera in their bedroom. This all took her by surprise and she was embarrassed.
Cross-examination
[72] Sheth acknowledged or confirmed the following:
− the reconciliation occurred in August 2013
− their counsellor suggested that they proceed slowly in the reconciliation process so the actual reconciliation is August 2013. She attended at Patel’s residence back and forth and they were working on the relationship. She never stayed overnight.
− she does not recall taking a trip with him to Niagara Falls in May 2015
− she changed her car insurance in August 2013
[73] Exhibit 4 is Sheth’s affidavit sworn January 21, 2015 complying with Patel’s request for information. In her affidavit she explains the structure of her bank accounts as it relates to her parents. In her affidavit she deposes the following:
I have a bank account, joint with my father (HSBC) account number 292-087446-150 in which both my father and I contributed. There was approximately $31,700.00 around the date of marriage.
Attached and marked as Exhibit “4” to this my affidavit is copies of said bank account form August 27, 2010 and until December 22, 2014.
I have two sole accounts with ING Direct and one joint with my mother. The account numbers are 3102359804 (RSP account), 3402392603 (TFSA account, 3009293240(ISA). All these accounts were in existence on the date of marriage.
Attached and marked as Exhibit “5” to this my affidavit are bank statements from July 1, 2010 until December 31, 2014 is the ISA (Investment Saving Account);
Attached and marked as Exhibit “6” are my bank statements from August 31, 2010 to January 14, 2015 (TFSA):
Attached and marked As Exhibit “7” are my bank statements from August 31, 2010 until January 14, 2015 (RSP account);
After the marriage my husband insisted that his mother’s name should be included in the ISA account, which I did, although there was no intention to make her beneficiary in this account. The name was added in July, 2011.
My mother-in-law never contributed in the said account.
My mother-in-law stopped giving me my mails in relation to this account. On April 9, 2012 the name of my mother-in-law’s was removed from this account. I was advised by ING that if the name is to be taken out the entire account has to be closed. Therefore, I transferred $61,431.04 to 3021391755 which was a brand new account opened in my name alone.
Attached and marked as Exhibit “8” to this my affidavit is my bank statements in relation to the new account (3021391755) from April 9, 2012 and until present.
I later added my mother’s name in the said account in June, 2013.
I did not have any other bank accounts, either sole of (sic) joint during the corpse of our marriage, other than the once (sic) disclosure herein.
Position of Patel
[74] Patel submits that Sheth owes him an equalization payment of $46,690.03. In support of that calculation he filed with the court, as an aide memoire, the following chart: (his Net Family Property Statement incorporated these figures to reach his net figure of $46,690.03.)
Applicant Accounts
V/T/Page
Date of Marriage
V/T/Page
Date of Separation
Scotiabank Savings
V2, T17, pg.1
$61333.45
V2, T17, Pg.41
7636.14
Scotiabank Chequings
V2, T14, Pg. 60
13-365.39
V2, T17, Pg 41
163.69
ING
0
00
V2, T 20, Pg 11
52563.29
Pension Plan
V1, T5, Pg.1
42280.99
V1, T5, Pg4
75442.92
116979.83 135806.04
Respondent Accounts
V/T/Page
Date of Marriage
V/T/Page
Date of Separation
HSBC
V1, T41, Pg. 111
1595.48
V1, T1 Pg 002
6232.73
RSP
Ex. 4, Tab 5, Pg.1
24834.10
V1, T42, Pg. 112
27080.93
TFSA
Ex. 4, Tab 5 Pg. 1
10274.09
V1, T42, Pg. 113
275.97
ISA
Ex. 4, Tab 5, Pg.1
10044.74
V1,T43, Pg 114
98457.49
46748.41 132047.12
[75] The significant issue in this analysis relates to the $50,000 loan Patel received from his friends.
[76] Patel submits that the documentary evidence in addition to the witness’ testimony, clearly establishes that these were loans.
Spousal Support
[77] Patel submits that at the time of their marriage in 2010 Sheth was employed and in 2010 she earned $59,076. In 2011 she earned $54,419. In 2013 and 2014 she earned $41,155 and $41,783 respectively.
[78] In 2015 Patel was paying child and spousal support.
[79] Patel argues that Sheth is not entitled to spousal support. The marriage was very short in duration from September 18, 2012 to August 2013 with a period of separation included in that time frame.
[80] The income earned by the wife all went into her accounts as savings.
[81] Patel and Sheth are similar in age. This is the second marriage for both of them. Both are qualified to work and both have had meaningful employment prior to the marriage and during the marriage.
[82] Sheth has an education comparable to Patel. Sheth is capable of earning a comparable income as well. Patel submits that Sheth is not economically disadvantaged by the marriage and in fact has benefited financially from the marriage.
[83] Patel has made child and spousal support payments from March 2015 to June 2016, a total of 15 months. Patel submits that he has paid spousal support for a sufficient amount of time considering the length of the marriage and in all of the circumstances Sheth is no longer entitled to spousal support.
Invasion of Privacy
[84] Patel submits that the only reason he surreptitiously installed the camera in the bedroom was to protect himself. After the reconciliation he was concerned about Sheth making another false allegation as she did in April 2012. It was a portable camera and only put there to protect him.
[85] Patel submits that he never came into possession of the videos as Sheth found the camera after he had lost it.
[86] In all of those circumstances Patel argues that there are no damages arising from the planting of the camera in their bedroom.
Position of Sheth
Equalization
[87] Sheth submits that the $50,000 purportedly loaned to Patel by his friends is a sham. Sheth alleges that Patel took his own money and put it in his friends’ accounts and then they in turn loaned him the money. As Patel had been divorced before he knew how to shield and hide this money.
[88] Pranev testified he never had $25,000. He only had $15,000 and he asked three of his friends to make up the other $10,000.
[89] With respect to the $20,000 loan Jagruti and Divyesh did not come to court and testify about that loan. Sheth submits that an adverse inference ought to be drawn by the court in those circumstances.
[90] In addition to all of that the witnesses who did testify did not produce to the court any bank statements to substantiate the transaction and repayment, despite their court subpoena stating that they do so.
[91] In all of these circumstances Sheth submits that the $50,000 loan amount should not be excluded. Patel cannot be believed. He continually and repeatedly lied at his Discovery and his credibility at large is a very serious concern.
[92] Further Sheth submits that at the relevant time in June 2012 Patel had $68,500. When he was asked how he spent this or what he did with it he was vague and uncertain. He did not have to borrow $50,000 from friends as he had the money. That is why the loan is a sham.
[93] Sheth’s Net Family Property Statement dated May 2, 2016 is at Tab 13 of the Trial Record. It calculates that she owes Patel $14,916.57. Sheth also sets out a chart of the summary of her Financial Statement as follows:
Date of Marriage
Gross Income
Tax Payable (as per NOA)
Total Income
Expenses
Savings as of December 31)
2010
59076.00
11004.03
48071.97
60423.23
2011
54419.00
9620.17
44798.83
44798.83
2012
36739.00
1908.13
34830.87
28000.00
6830.87
2013
41155.00
1404.58
39750.42
28000.00
11750.41
Total
123803.35
Less Total Bank Account Balance (as of Date of Marriage) at September 2010
46688.60
Total Savings as of December 31, 2013
77114.75
Total Bank Account Balance (as of Date of Separation) January 19, 2014
132147.11
Less Total Bank Account Balance (as of Date of Marriage) at September 18 2010
46688.60
Total Appreciation from Date of Marriage to Date of Separation
85458.51
Less Total Savings as of Dec 31, 2013
77114.75
Estimated Value of Parents Contributions (Re Respondent Evidence during Examination in Chief June 5 2016
2012
10000.00
Low
13000
High
2013
10,000
Low
14,000
High
Total
20000.00
Low
27000.00
High
Add: Total Contribution from Respondent’s Parents
8343.76
8343.76
Total
28343.76
35343.76
Total Savings as of December 31, 2013
77114.75
77114.75
Less Total Contribution from Respondent’s Parents
28343.76
35343.76
Total
48770.99
41770.99
Less: Total Subsidized Expenses by Respondent’s Parents
Additional Rent @ $500 x 16 months (April 2012 – August 2013)
8000.00
8000.00
Total Savings (After Deduction of Parent’s Contributions)
40770.99
33770.99
Applicant’s Share (Assume 50/50) Division)
20385.50
16885.50
[94] Sheth seeks an unequal division of the NFP on the basis that Patel recklessly depleted $68,000 he had saved and he provided no proper explanation how he spent those funds. There is no way he would have had to borrow $50,000 if he had not recklessly spent the $68,000.
Spousal Support
[95] The order of Justice O’Connor dated February 17, 2015 sets out the following with respect to child and spousal support:
Paragraph 3: On a without prejudice basis as to quantum and retroactivity the Applicant father, Pravinchandra Patel shall pay to the Respondent mother, Annely Sheth as child support for the child of the marriage, namely Tej Patel born October 23, 2011 in the amount of $765.00 per month commencing March 1, 2015 and payable on the first day of each and every month thereafter, until further order of this court.
Paragraph 4: On a without prejudice basis as to quantum and retroactivity the Applicant husband, Pravinchandra Patel shall pay spousal support to the Respondent Annely Sheth, in the amount of $700.00 per month commencing March 1, 2015.
[96] Sheth submits that the mid-range of the spousal support guidelines would be fair. The range proposed by Sheth is based on a with child support formula based on Patel’s income of $90,000 and Sheth’s income of $30,000 and child support at $853 per month:
Low $807
Mid $1,192
High $1,543
[97] Sheth submits that the effective date of payment should be January 19, 2014, not March 1, 2015.
Assault and Battery:
[98] Sheth claims damages for the incident which occurred on April 25, 2012. Sheth submits that the range of damages is $5,000 to $20,000.
Invasion of Privacy
[99] Sheth submits that the circumstances surrounding the placing of the camera are exceptional. As such in those circumstances the range of damages exceeds $20,000. Patel lied about installing the camera at his Discovery and he also tried to blame his wife. He only admitted to planting the camera at this trial and admitted he lied at Discovery about it.
[100] The bedroom and washroom are personal areas and it is highly offensive to have breached her privacy interests in this way.
[101] The protection excuse advanced by Patel makes no sense. If he was intent on assaulting her there are numerous other rooms in the house without cameras that he could do so.
[102] Sheth submits that the court should send a strong message by awarding her $50,000.
[103] Sheth acknowledges that she has not pleaded punitive damages but argues the court should make this award in any event.
Analysis
Invasion of Privacy/Intrusion Upon Seclusion
[104] In Jones v. Tsige 2012 ONCA 32, Sharpe J.A. resolved the following question, “Does Ontario Law recognize a right to bring a civil action for damages for the invasion of personal privacy?” At paragraph 65 Justice Sharpe states that:
In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.
[105] In deciding the elements of the action for intrusion upon seclusion Justice Sharpe notes the following at paragraph 70:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
[106] At paragraph 71 Justice Sharpe states:
The key features of this cause of action are first that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
[107] Commencing at paragraph 74, Justice Sharpe deals with the question of damages. After reviewing damages under Ontario case law and damages under Provincial legislation Justice Sharpe sets out the following at paragraph 87:
In my view, damages for intrusion upon seclusion in cases where the plaintiff has suffered no pecuniary loss should be modest but sufficient to mark the wrong that has been done. I would fix the range at up to $20,000. The factors identified in the Manitoba Privacy Act, which, for convenience, I summarize again here, have also emerged from the decided cases and provide a useful guide to assist in determining where in the range the case falls:
The nature, incidence and occasion of the defendant’ wrongful act;
The effect of the wrong on the plaintiff’s health, welfare, social, business or financial position;
Any relationship, whether domestic or otherwise, between the parties
Any distress, annoyance or embarrassment suffered by the plaintiff arising from the wrong; and
The conduct of the parties, both before and after the wrong, including any apology or offer of amends made by the defendant.
[108] In Jones, Tsige committed the tort of intrusion upon seclusion when she repeatedly examined the private bank records of Jones. Justice Sharpe awarded damages at $10,000 characterizing what happened at the mid-point of the range. Justice Sharpe did not find any exceptional quality to the circumstances calling for an award of aggravated or punitive damages.
Conclusion
[109] I am satisfied on the evidentiary record before me that this claim has been made out. Patel admitted at trial that he had surreptitiously planted a camera in their bedroom and it looked into the bedroom and bathroom.
[110] Patel lied repeatedly at his Discovery while under oath, that he had done so and even tried to blame it on his wife Sheth.
[111] Patel’s explanation for why he had to do this makes no sense. There are numerous rooms in the house without cameras and if his intention was to protect himself from a false allegation he would have had to plant cameras in all of the rooms.
[112] The bedroom and bathroom are very private rooms. The photos do not depict anything explicit, however, the potential to have done so was real. There is no indication what else may have been on the camera.
[113] Sheth was embarrassed and shocked. Even Patel’s mother expressed that it would be offensive.
[114] I am satisfied that the elements of the action have been met.
[115] With respect to damages it is important to note that Sheth did not plead punitive damages. Further, at paragraph 88 Justice Sharpe states:
I would neither exclude nor encourage awards of aggravated and punitive damages. I would not exclude such awards as there are bound to be exceptional cases calling for exceptional remedies. However, I would not encourage such awards as, in my view, predictability and consistency are paramount values in an area where symbolic or moral damages are awarded and absent truly exceptional circumstances, plaintiffs should be held to the range I have identified.
[116] I am satisfied that damages of $15,000.00 is appropriate in this case. I am not satisfied that punitive or aggravated damages are warranted. The factors that have to be balanced in this case include the following:
the nature of the intrusion. It took place in a bedroom and bathroom, places which are very private. The privacy interests of Sheth were significant.
the intrusion takes place within a domestic relationship
although Sheth was embarrassed and shocked at the intrusion no medical information was filed to support and establish an evidentiary basis to find any significant effect on Sheth’s health or welfare
the conduct of Patel in lying about the intrusion at his Discovery and even attempting to blame Sheth herself for the camera being installed is extremely aggravating and demonstrates a lack of any insight into what he did as being wrong.
Assault and Battery: April 25, 2012
[117] The police report relating to this incident is at Volume II Tab 68. The initial narrative sets out the following:
On Thursday April 26, 2012 at 15:24 hrs a female party walked into the Front Desk of 4DHQ in the City of Vaughan in regards to a Domestic Assault call.
The female party, Annely SHETH, told police that on 25APR12 at 12:00 hrs she got into an argument with her husband, Pravin PATEL. SHETH advised police that during the argument PATEL grabbed her by her jaw with his right hand. PATEL proceeded to grab her left arm and pull her.
SHETH advised that she was so fearful that she took their son and went to her parents’ place in Brampton. Today she went to Peel Regional Police to report the incident and she was advised to attend York Regional Police.
CIB was made aware of the incident and took a video statement from SHETH. The interview revealed an email that PATEL sent to SHETH revealing that he just held her face and asked her to look at him.
Police will make arrangements to get PATEL to turn himself in. CAS was contacted, victim services emailed and a premise history added.
[118] Sheth saw her doctor after this and she was given an ointment.
[119] The charge of assault was subsequently withdrawn on the condition that Patel enter into a Peace Bond, which he did.
[120] Sheth filed several cases in support of her position. I will only refer to a couple in these reasons.
[121] In Wilk v. Golec 2012 ONSC 5158, Ms. Wilk was awarded $15,000. The assault consisted of slamming a door on her arm and on earlier occasions choking by seatbelt and smothering with a pillow.
[122] In Costantini v. Costantini, 2013 ONSC 1626, Justice Pazaratz set out the following at paragraphs 29 and 30:
In Shaw v. Brunelle 2012 ONSC 590, 2012 ONSC 590 (Ont. S.C.J.) Blishen J. dealt with the wife’s claims for damages resulting from an assault. The wife suffered a serious fracture to her right wrist, requiring surgery. At a criminal trial the husband had been found not guilty of assault causing bodily, because the parties had different versions of what had transpired, and the standard of proof at the criminal trial would have been proof beyond reasonable doubt.
Justice Blishen discussed the nature of the wife’s claim:
A person who "intentionally causes a harmful or offensive contact with another person is liable for battery": see Linden and Feldthusen, Canada Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), p. 44, "A battery may occur even when no harm is intended. The only intention required is that of making contact."
In Canadian Tort Law, the authors provide the following definition of assault at pp. 46-47:
Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault provides protection for the interest in freedom from fear of being physically interfered with. Damages are recoverable by someone who is made apprehensive of immediate physical contact, even though that contact never actually occurs. The underlying policy of the tort of assault, like that of battery, is the reduction of violence. Because threatening to inflict harm is apt to attract retaliation in the same way as causing harm, it must also be discouraged by tort law.
Assault should be distinguished from battery, although the two are often blurred together and called "assault". This does not usually matter very much because in most cases both assault and battery are committed in rapid succession. If a battery occurs, the assault tends to be ignored since the quantum of damages for it will be rather small. An assault can be committed without a battery and battery can occur without an assault preceding it. For example, swinging at someone and missing is an assault but not a battery; striking someone from behind, without his or her knowledge, is a battery but not an assault.
Conduct which intentionally arouses apprehension of an imminent battery constitutes an assault.
[Emphasis added.]
In this case both parties blurred the torts of assault and battery and used the term "assault" throughout. I do not find this a significant problem. The essence of Ms. Brunelle's argument is that Mr. Shaw intentionally physically ejected her from the home, causing her to break her right wrist. Therefore, "battery" is the more accurate description of what is alleged.
[123] At paragraph 39 Justice Pazaratz notes that other recent decisions fall into the $5,000 to $20,000 range for general damages.
[124] I accept the testimony of Sheth that the tort of battery is made out. Patel’s credibility is in serious doubt. He is an admitted liar and acknowledged at trial that he deliberately lied at his Discovery repeatedly and while under oath. I do not accept his version of what happened nor does his testimony leave me in reasonable doubt about what happened.
[125] Having said that the injuries were not significant. The incident did, however, take place within the context of a domestic relationship. I am satisfied that the low end of the range for damages is fair and reasonable in all of the circumstances.
[126] I am satisfied that $5,000.00 is appropriate for the claim.
Equalization
[127] The significant issue to resolve here relates to whether the $50,000 loan is in fact a loan or a sham. Although Patel called two witnesses on this issue he did not call those individuals relating to that $20,000 loan to verify same. I agree with Sheth that I should draw an adverse inference from Patel not calling them.
[128] The other difficulty I have with the supporting evidence called by Patel relates to a lack of documentary evidence verifying that the funds repaid by Patel could be traced into their bank accounts. It would have been easy to establish that and would have provided cogent evidence that these loans were in fact paid back.
[129] The additional concern I have with respect to the $25,000 loan is that Panev did not have $25,000 he only had $15,000. Why is it that he is making the effort to top it up to $25,000 by contacting three of his friends for the additional $10,000? The court did not hear from those individuals to confirm that they assisted Panev in this regard.
[130] The final and most important area of concern for the court relates to Patel’s evidence on why he needed the $50,000 in the first place.
[131] In this regard I again accept the evidence of Sheth that she did not demand he put back into the marriage $50,000 as a condition of reconciliation.
[132] The onus on this issue is on Patel to establish and demonstrate that the $50,000 exclusion is in fact an exclusion. The time of the transactions is questionable. The need for the money, in light of the evidence showing he had access to $68,000, is also questionable.
[133] Patel was cross-examined on how he could have spent all of the money which would have necessitated the need to borrow the $50,000. The explanation given was vague and lacked any sense of reality.
[134] He stated he paid $15,000 to $20,000 on legal fees for his criminal charge when in fact the assault charge was withdrawn and he entered into a peace bond. There was no trial. He gave $5,000 to his mother. He purchased electronics. He went out with friends.
[135] After all of these expenditures he still had $33,000. He stated he was traumatized and stressed about the relationship so he spent money on matters he could not provide particulars for. Further, his claim of being traumatized is not borne out as he was able to file an Application for Divorce on January 7, 2013; he travelled to Niagara Falls with Sheth; he travelled to the Bahamas; and he had the wherewithal, according to his evidence, to persuade his friends to lend him money.
[136] As I have already indicated on two prior occasions Patel’s credibility is in serious doubt.
[137] I am satisfied therefore that the calculations set out by Sheth on her NFP are proper and she will owe him $14,916.57. The question now is whether it is reasonable and appropriate to award Sheth an unequal division which would reduce that amount.
[138] Sheth claims an unequal division pursuant to Section 5(6) of the Family Law Act which states:
(6) 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 fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
[139] In Serra v. Serra 2007 2809 (ON SC), [2007] O.J. No. 446 T.P., Herman J sets out the following at paragraph 128:
The onus is on Mr. Serra to establish that an equal division would be unconscionable (Abdilla v. Abdilla, [2004] O.J. No. 4532 (Sup. Ct. J.) at paras. 27 and 28). The test of unconscionability is a difficult one to meet. The result must be “more than hardship, more than unfair, more than unequitable”; “outrageous” (Merklinger v. Merklinger (1992), 1992 7539 (ON SC), 11 O.R. (3d) 233 (Ont. Ct. – Gen. Div.); it must “shock the conscience of the court” (McDonald v. McDonald, 1988 8635 (ON SC), [1988] O.J. No. 518 (S.C.)).
[140] In Filipponi v. Filipponi 1992 14009 (ON SC), [1992] O.J. No. 367, the court noted that “…an equal division of assets in this case would be unconscionable. In order to place Mrs. Filippini close to the position she would have been had the separation taken place before the defendant proceeded to recklessly deplete the family assets, she will be entitled to an additional amount of $50,000 by way of equalization payment.”
[141] In Von Czieslik v. Ayuso 2007 ONCA 305, [2007] O.J. No. 1513, S.E. Lang JJ.A. stated the following at paras 29 and 30:
Clearly, a reapportionment of net family property under s. 5(6) is not a declaration about ownership of property, but only about distributing the value of the parties' net family properties to redress unconsionable conduct. This is reinforced by the legislative restriction of s. 5(6)'s application to certain enumerated circumstances, none of which have to do with ownership, but all of which relate to fault-based conduct on the part of the other spouse. See Hamilton v. Hamilton, 1996 599 (ON CA), [1996] O.J. No. 2634, 92 O.A.C. 103 (C.A.) and Brett v. Brett (1999), 1999 3711 (ON CA), 44 O.R. (3d) 61, [1999] O.J. No. 1384 (C.A.).
Accordingly, a s. 5(6) reapportionment is only available on those rare occasions when a party is able to meet the high threshold required to establish unconscionability. Only in such an exceptional case does the legislature give a court the discretion to fashion a remedy.
[142] In my view I have already accounted for the $50,000 in that I have not allowed it as an exclusion.
[143] I am not satisfied, therefore, that Sheth has established that the threshold for unconscionability has been met and this is not one of those rare occasions that s.5(6) ought to be invoked.
Spousal Support
[144] The existing order for child support is $765 per month in accordance with the consent order of Justice O’Connor dated February 17, 2015. According to the child support guidelines that amount would be based on a gross annual income of $90,000.00.
[145] The divorce calculation filed by Sheth sets out the following:
Patel’s income $96,583
Sheth’s income $30,000
[146] Child support based on $96,583 for one child is $853 per month.
[147] The with child formula results in spousal support as follows:
Low $807
Mid $1,192
High $1,543
[148] Justice O’Connor’s February 17, 2015 order sets out spousal support at $700 per month commencing March 1, 2015.
[149] Section 15.2 (6) of the Divorce Act sets out the objectives of spousal support orders as follows:
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.
[150] Section 15.2 (4) of the Divorce Act sets out the factors the court takes into consideration in making a spousal support order as follows:
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.
[151] Sheth has meaningful education and substantial work experience. She has the ability to obtain meaningful employment.
[152] At the time of the trial she was at Data Group Limited with a temporary contract for three months that was extended to August 2016.
[153] The marriage was of short duration from September 18, 2010 to January 19, 2014. In that time period there was a period of separation from April 26, 2012 to Jul/August 2013. The total time of co-habitation was about 25 months.
[154] In my view Patel ought to have commenced paying spousal support June 2014 when Sheth was unemployed. She was unemployed from July 2014 to January 19, 2016. I am satisfied that using the amount of $700.00 eventually agreed to in the Justice O’Connor order is an appropriate sum to calculate for that period.
[155] Patel commenced paying the $700.00 effective March 1 2015 so the months he did not pay were July 2014 to February 2015, a total of 8 months. At $700 per month the retroactive amount is $5,600.00.
[156] It is important to note that Sheth was employed at Tinee Facility Solutions Inc. from April 2014 until June 2014. (3 months)
[157] As I indicated the length of the marriage was short and Sheth has the educational background and work experience to be self-sufficient.
[158] On a go forward basis I am satisfied that spousal support should only be paid until the end of this year. With this order, then, the total time period Patel would have paid spousal support is from July 2014 to December 2016, a period of 2 years and 5 months. After the December 1, 2016 payment spousal support will terminate.
[159] I am also satisfied that the amount of $700.00 agreed to in Justice O’Connor’s order is reasonable and will continue for the months of November and December 2016.
[160] Judgment to issue as follows:
Damages for Assault and Battery - $5,000.00.
Damages for Invasion of Privacy - $15,000.00.
Equalization Payment to the Applicant in the sum of $14,916.57. This amount is set off from the $20,000.00 owing in damages to the Respondent. I will round off the equalization payment to $15,000.00 so the result will be a payment owing to the Respondent in the amount of $5,000.00
The Applicant shall pay to the Respondent retroactive spousal support in the amount of $5,600.00.
The Applicant shall continue to pay spousal support in the sum of $700.00 per month in accordance with the order of O’Connor, J., for the months of November and December 2016, after which time spousal support is terminated.
The parties shall file written submissions on costs within 30 days.
Fragomeni J.
Released: December 9, 2016
CITATION: Patel v. Seth, 2016 ONSC 6964
COURT FILE NO.: FS-14-82217-00
DATE: 20161209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PRAVINCHANDRA PATEL
Applicant
– and –
ANNELY SHETH
Respondent
REASONS FOR JUDGMENT
Fragomeni, J.
Released: December 9, 2016