Shaikh v. Shaikh, 2016 ONSC 7400

CITATION: Shaikh v. Shaikh, 2016 ONSC 7400

COURT FILE NO.: FS-15-0061-00

DATE: 2016-11-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ALIA AZIZ SHAIKH

Moxi Sahi, for the Applicant

Applicant

• and -

ABDUL-JABAR SHAIKH

Respondent

HEARD: April 11, 2016

at Brampton, Ontario

Price J.

Reasons For Order

NATURE OF MOTION

1Alia Aziz Shaikh is an émigré from Pakistan. Abandoned by her spouse, Abdul-Jabar Shaikh, whom she married in 2001, as arranged by her brother and his mother, Ms. Shaikh now applies for the rights which the Family Law Act of Ontario accords to her as a separated spouse.

2After delivering his Answer to Ms. Shaikh’s Application, Mr. Shaikh ceased to participate further in the proceeding, which therefore continued to an uncontested hearing. After receiving Ms. Shaikh’s evidence, the Court reserved judgment. These reasons address the issues raised in her Application.

BACKGROUND FACTS

The parties’ origins and their wedding in Dubai

3Ms. Shaikh is 45 years of age, born February 11, 1971; Mr. Shaikh is 47, born October 18, 1969. They were married November 1, 2001 and separated after 13 years, on May 23, 2014. There are no children of the marriage.

4Ms. Shaikh was born in Karachi, Pakistan. She earned a Master of Social Work degree from Karachi University, which is not recognized in Canada. Ms. Shaikh is therefore unable to pursue her career as a social worker in Canada. She has yet to achieve fluency in English so as to be able to become an accredited social worker in Ontario.

5Mr. Shaikh was also born in Pakistan. He obtained his Information Technology Management degree from DeVry University in Chicago, Illinois, in the United States. He later moved to Canada and, from there, operated an IT business in Canada and in Dubai, where she met Ms. Shaikh in 2001.

6Ms. Shaikh met Mr. Shaikh in September 2001, after travelling from Pakistan to Dubai to visit her brother. Their marriage was arranged by Ms. Shaikh’s brother and Mr. Shaikh’s mother, and took place two months later, on November 1, 2001, in Pakistan.

7After the parties’ wedding, Ms. Shaikh was employed as a Montessori teacher at a Kindergarten in Dubai. Mr. Shaikh operated several businesses, including a Call Centre, Contactopia FZC which he began in 2004, located at P6-138, Sharjah Airport Freezone, in the United Arab Emirates. The business provided office space for large international companies and organizations, including banks, and the British consulate.

The parties’ marriage and separation

8During the parties’ marriage, Ms. Shaikh, apart from teaching in a Montessori school when the parties resided in Dubai, performed the role of a housewife, maintaining the matrimonial home, cooking meals, and helping Mr. Shaikh establish his various businesses. After the parties’ emigration to Canada in 2010, Ms. Shaikh was not employed at all outside the home. Throughout the marriage, she was financially dependent on Mr. Shaikh, who treated her, she says, like a servant. Mr. Shaikh often travelled to Pakistan, Dubai, the United States, and elsewhere, in connection with his businesses, and always brought Ms. Shaikh along with him on those trips.

9Mr. Shaikh began having affairs with women in Dubai and the United States. When Ms. Shaikh confronted him, he became angry and told her to mind her own business. After Ms. Shaikh’s father died in 2008, Mr. Shaikh began abusing her emotionally and physically, yelling at her over minor disagreements, and ordering her several times from their home in Dubai. Ms. Shaikh complied, taking refuge after each incident with her brother and his wife, who lived in Dubai, until interventions by her brother and Mr. Shaikh’s mother enabled her to return home.

10In 2010, Mr. Shaikh applied for himself and Ms. Shaikh to become permanent residents of Canada. At his initiative, the parties came to Canada in August 2010. Apart from the one brother in Dubai, Ms. Shaikh’s family live in Pakistan.

11In 2012, Mr. Shaikh purchased a condominium in Mississauga, which became the parties’ matrimonial home. He registered the home in his own name. He operated his Call Centre, Contactopia FZC, from that address and established a second business, Saudaghar, with a head office at the matrimonial home. He did not disclose the details of his businesses to Ms. Shaikh.

12On December 31, 2013, Mr. Shaikh violently assaulted Ms. Shaikh by holding her down and continuously slapping and punching her in the face. After the assault, Ms. Shaikh was afraid to leave their home, and did not immediately report the incident to the police.

13On April 29, 2014, Mr. Shaikh took Ms. Shaikh to Dubai. He promised her that he would not have any more affairs and would not marry any other women, notwithstanding that Sharia law entitled him to have up to four wives. On May 23, 2014, Mr. Shaikh informed Ms. Shaikh that he would be attending a wedding in Pakistan. He instructed Ms. Shaikh to travel from Dubai to Pakistan before him, to visit her parents. He said that he would join her two days later.

14At Mr. Shaikh’s direction, Ms. Shaikh travelled Pakistan. Mr. Shaikh later travelled to Pakistan, but did not contact Ms. Shaikh. He returned, instead, to Dubai without informing her, retaining possession of her Permanent Resident Card and other Canadian identification, and warning her family that she should not try to return to Canada.

15Ms. Shaikh eventually returned to Dubai, where she applied to the Canadian Embassy for travel documents that enabled her, after three months, to return to Canada. She arrived in Canada on December 14, 2014.

16Upon her return to Canada, Ms. Shaikh went to Brantford, Ontario, where she stayed with a friend of her brother’s, as she had no other place to go. On the following day, she reported Mr. Shaikh’s December 31, 2013, assault to the police, who charged Mr. Shaikh with the offence on January 8, 2015.

17Ms. Shaikh feared reprisals from Mr. Shaikh. She therefore went to a Women’s Shelter on January 10, 2015. The police file for the charge against Mr. Shaikh was transferred to the Peel Regional Police in Mississauga.

18Ms. Shaikh began the present proceeding by Application, issued on March 13, 2015, in which she claims spousal support, equalization of net family property, exclusive possession of the matrimonial home, a freezing of assets, and sale of family property. Her Application and related documents were served on Mr. Shaikh on March 21, 2015.

19Mr. Shaikh delivered his Answer and Financial Statement on May 7, 2015. Mr. Shaikh also claimed equalization of net family property, exclusive possession of the matrimonial home, and sale of family property. He stated in his Answer that he had obtained a divorce from Ms. Shaikh in Dubai, and that he was asking that the divorce be recognized in Canada.

20Ms. Shaikh served her Notice of Case Conference on Mr. Shaikh by e-mail on September 10, 2015, in accordance with a request he had made in the same manner on September 3, 2015. Mr. Shaikh later sent an e-mail to Ms. Shaikh’s counsel, after sending a “revised and final offer for settlement”, and stated that he would not be participating any further in the proceeding. He then ceased communicating with Ms. Shaikh or her lawyer.

21On September 16, 2015, Ms. Shaikh’s lawyer served her client’s Case Conference Brief on Mr. Shaikh, to which he did not respond. Ms. Shaikh and her counsel attended at the Case Conference on September 28, 2015; Mr. Shaikh did not. The Court adjourned the Case Conference to November 20, 2015 and ordered Mr. Shaikh to deliver his Case Conference Brief by October 20, 2015, failing which Ms. Shaikh was granted leave to move to strike his pleadings. The Court additionally ordered Mr. Shaikh to pay Ms. Shaikh’s wasted costs of the attendance on September 28, in the amount of $3,000.

22Mr. Shaikh did not comply with the order, and at the resumption of the Case Conference on October 20, 2015, the Court struck his pleadings. The Court authorized Ms. Shaikh to sell the matrimonial home, and adjourned her Application to April 11, 2016, for an uncontested trial.

23Ms. Shaikh and her lawyer attended the uncontested trial on April 11, 2016, and Ms. Shaikh gave evidence in support of her claims. The Court reserved its judgment and Ms. Shaikh’s lawyer later submitted a Costs Outline.

ISSUES

24The Court must determine Ms. Shaikh’s entitlement to spousal support, equalization of net family property, and division of property.

PARTIES’ POSITIONS

25Ms. Shaikh submits that she is entitled to spousal support in the amount of $1,308 per month, based on Mr. Shaikh’s income, which she says should be imputed to him in the amount of $70,000. Mr. Sheikh earned an annual income of $60,000 when the parties first married in 2001, and he reported annual earnings of as much as $90,000 during their marriage. Ms. Shaikh submits that $70,000 would be a conservative amount of income to impute to him.

26Ms. Shaikh submits that she has been disadvantaged by the marriage and the parties’ separation, and requires spousal support at the level she requests until she is able to achieve financial self-sufficiency.

27Ms. Shaikh submits that in the absence of a valuation of Mr. Shaikh’s businesses, an accurate determination of her entitlement to equalization cannot be made. She asks the court to exercise its discretion and order that the net proceeds of sale of the matrimonial home be paid to her in their entirety as lump sum spousal support, until she secures sufficient disclosure of Mr. Shaikh’s assets and liabilities to enable her to calculate the parties’ respective net family properties and determine her entitlement to an equalization payment.

28Mr. Shaikh’s pleadings were struck and there was no evidence received from him or on his behalf at the uncontested hearing.

ANALYSIS AND EVIDENCE

a) General Principles

29In Greenglass v. Greenglass, in 2010, the Court of Appeal held, as a matter of law, that the division of assets and equalization of net family property should always precede the determination of spousal support.¹ Although Greenglass involved claims made pursuant to the Divorce Act, the principle that the division of assets should be made before determining spousal support is equally applicable to claims made pursuant to the Family Law Act.²

30The Court of Appeal, in Greenglass, noted that there would be cases in which the division of assets and equalization of net family property would not affect a spouse’s entitlement to spousal support. The Court of Appeal stated, in this regard:

Section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support. This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun (2006), 2006 SCC 25, 34 R.F.L. (6th) 1 (S.C.C.) at para. 29.

In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550 at para. 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”

Here, the trial judge erred in the same way. Mr. Joseph, counsel for Ms. Greeenglass, quite properly concedes the error but describes it as a matter of form over substance. He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.

As will be seen, in the circumstances of this case, Mr. Joseph is correct. That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.³ [Emphasis added.]

b) Equalization of Net Family Property

(i) Apt. #001, Al-Zaan, The Square, in Al Mamzar Area, Dubai, United Arab Emirates

31Ms. Shaikh tendered Mr. Shaikh’s Sale and Purchase Agreement dated December 8, 2010 (the “Agreement”), for a property in the City of Sharjah, in the United Arab Emirates. The property was purchased by Mr. Shaikh from Town Square Investment LLC, incorporated in Dubai. The Agreement discloses that the purchase price was AED 1,416,093 Dirhams, of which Mr. Shaikh paid AED 743,451 Dirhams and financed the balance with a mortgage for AED 672,642 Dirhams. The Canadian equivalent of AED 743,451 is $271,805.69.⁴

(ii) Celicon Owaises, Dubai, U.A.E.

32Ms. Shaikh was unable to obtain evidence of this property, which she believes Mr. Shaikh owns in the United Arab Emirates. Accordingly, I have not included a value for it in the calculation of Mr. Shaikh’s net family property.

(iii) Matrimonial Home

33Mr. Shaikh purchased the matrimonial home at 2731-3888 Duke of York Boulevard, Mississauga, Ontario, in August 2012. He financed the purchase, in part, with a loan from HSBC Bank of Canada.

34Ms. Shaikh tendered Mr. Shaikh’s Personal Loan/Mortgage Application to the HSBC Bank of Canada, dated August 13, 2012 (the “Mortgage Application”). The Mortgage Application resulted in HSBC lending $270,400 to Mr. Shaikh, secured by a first mortgage on the matrimonial home. At the same time, Mr. Shaikh opened a Master Card account with HSBC.

35Based on the fact that HSBC loaned Mr. Shaikh $270,400 for the purchase, and assuming that the mortgage was for the conventional 80% of the value of the property, I infer that the value of the matrimonial home on August 13, 2012, was approximately $338,000.

36In his Financial Statement, sworn May 4, 2015, Mr. Shaikh values his 100% interest in the matrimonial home at $325,000 on that date. Pursuant to the Court’s order, dated November 20, 2015, Ms. Shaikh obtained a valuation of the home from a chartered property valuator, Terence Wong, C.R.A., D.A.R., C.A.R., on December 16, 2015, which valued the home at $371,000.

37I find that the value of $338,000 that the Bank likely assigned to the matrimonial home in August 2012, in a Bank appraisal before making its loan to Mr. Shaikh, and the value of $371,000 that Mr. Wong assigned to the home in December 2015, are more accurate than the $325,000 value that Mr. Shaikh assigned to the home in his Financial Statement on May 2015. I base this conclusion on the following facts:

a) It is unlikely the property would have appreciated by $46,000 (from $325,000 to $371,000), or over 14%, in the 7 months from May to December 2015.

b) The other information that Mr. Shaikh provided in his Financial Statement is clearly deficient or misleading. In particular, he failed to disclose his property in the United Arab Emirates, or the funds that he held in that country. He also misstated and under-stated his income, as noted below. I draw an adverse inference from his non-disclosure and conclude that he was likely understating the value of the home in the financial statement he filed in the present proceeding.

(iv) Funds in the United Arab Emirates

38In the Mortgage Application, Mr. Shaikh reported that he held $102,908 in a savings account at HSBC in the U.A.E., and $2,936 in a chequing account at the same Bank. He valued his total assets at $145,361.93, his liabilities at nil, and his net worth at $145,361. I infer that the assets he was declaring included the $102,908 in his savings account and the $2,936 in his chequing account in the U.A.E., and that he used a portion of those funds as his down payment for the matrimonial home.

39Based on the fact, as I find, that the matrimonial home likely had a value of $338,000 in 2012, and that Mr. Shaikh financed $270,400, or 80% of the purchase price, with the mortgage he obtained from HSBC Bank of Canada, I find that he likely paid a down payment of the balance of $67,600 from funds that comprised part of the $145,361.93 which he declared as his assets in the Mortgage Application, including his savings and chequing accounts at HSBC in the U.A.E.

40After applying $67,600 of his funds to purchase the matrimonial home, the balance of Mr. Shaikh’s declared assets on August 13, 2012 would have amounted to $77,761.93 (his $145,361.93 “net worth” less his $67,600 down-payment for the home).

(v) Property at 1809-4090 Living Arts Drive, Mississauga

41In his Financial Statement, sworn May 4, 2015, Mr. Shaikh declared that he owned two condominiums, namely, the matrimonial home at 2731-3888 Duke of York Blvd., in Mississauga, and a property at 1809-4090 Living Arts Drive, Mississauga. Mr. Shaikh values the properties as follows in his Financial Statement:

a) 2731-3888 Duke of York Blvd, Mississauga: $325,000

Less Mortgage: $280,000

Equity: $ 45,000

b) 1809-4090 Living Arts Drive, Mississauga: $275,000

Less Mortgage: $240,000

Equity: $ 35,000

42Mr. Shaikh lists his Net Family Property on Valuation Day (May 23, 2014) at $602,000. This corresponds with the value ($600,000) that his Financial Statement sworn on May 4, 2015, attributes to his two condominium units, being the matrimonial home at 2731-3888 Duke of York Blvd. and the rental property at 1809-4090 Living Arts Drive, both of which he acknowledges were solely owned by him when he swore the Financial Statement, plus $2,000 that he held in a chequing account at HSBC. I interpret this to mean that the value of the two properties did not change substantially from the date of separation to the date, a year later, when he swore the statement. In the absence of any contrary evidence as to Mr. Sheikh’s equity in the property at 1809-4090 Living Arts Drive, Mississauga, on the date of separation, I am accepting Mr. Shaikh’s Financial Statement as evidence that his equity was $35,000.

(vi) Funds used to purchase 2734-3888 Duke of York Blvd.

43Ms. Shaikh tendered a property search for an additional condominium unit, at 2734-3888 Duke of York Boulevard, Mississauga, which Mr. Shaikh purchased on October 10, 2014, five months after the parties separated. The property search discloses that the property was transferred to Mr. Shaikh for $385,000, and that he mortgaged it on the same date to Computershare Trust Company of Canada for $354,816.

44I find that on the date of separation, Mr. Shaikh is likely to have had the funds he used five months later to purchase this property. I find that these funds amounted to $30,184, being the difference between the purchase price and the mortgage on the property.

(vii) Calculation of Net Family Properties

45Based on the evidence before me, I calculate Mr. Shaikh’s net family property at $454,167.62, consisting of the following:

a) Equity in property in U.A.E. on Dec. 8, 2010: $271,805.69

b) Equity in matrimonial home at 2731-3888

Duke of York Blvd, Mississauga,

purchased on Aug. 13, 2012:

($371,000, being its value on Dec. 16, 2015,

less real estate commission (5%)

and less $280,000 mortgage balance): $72,450.00

c) Balance of assets on Aug. 13,12: $77,761.93

Following purchase of matrimonial home

($145,361.93 net worth, less $67,600

used on Aug. 13/12 to buy matrimonial home)

i) Funds later used to purchase

2734-3888 Duke of York Blvd.,

Mississauga, on Oct 10/14: $30,184.00

ii) Balance of funds from U.A.E.: $42,177.93

d) Equity in 1809-4090 Living Arts Drive, Mississauga: $35,000.00

(as stated in Mr. Shaikh’s Financial Statement)

$2,000 on deposit at HSBC Bank of Canada: $ 2,000.00 (as stated in Mr. Shaikh’s Financial Statement)

TOTAL: $459,017.62

46Ms. Shaikh, in her Financial Statement, sworn March 13, 2015, claims a net family property of $598,000. However, she bases this on a 50% interest in the matrimonial home, which was solely owned by Mr. Shaikh, and a 50% interest in the property at 1809-4090 Living Arts Drive, Mississauga, which Mr. Shaikh’s Financial Statement says was also solely owned by him. I have attributed those properties to Mr. Shaikh. Ms. Shaikh derives her interest in the matrimonial home through him, from her claim to an equalization payment based on the full value of these properties being attributed to him.

47Based on Mr. Shaikh’s net family value of $459,017.62, and Ms. Shaikh’s net family value of nil, Ms. Shaikh is entitled to an equalization payment of half the difference, or $229,508. Assuming, as appears likely, that the matrimonial home will be sold for approximately $371,000, the net proceeds of sale, after deducting real estate commission of 5% ($18,550) and the $280,000 mortgage balance, are likely to be approximately $72,450.00. If the entire net proceeds are paid to Ms. Shaikh, Mr. Shaikh will owe her a balance of approximately $157,058 for the equalization payment she is due ($229,508 less $72,450).

48It is unlikely that Ms. Shaikh will be able to recover the equalization payment that Mr. Shaikh owes her. However, even if the full equalization amount were paid to her, it would enable her, at best, to purchase a home more modest than the matrimonial home the parties shared during the marriage. It would not provide income-earning capital to her, and therefore does not affect her entitlement to spousal support from Mr. Shaikh.

c) Spousal Support

(i) Entitlement to spousal support

Legislative framework

49Ms. Shaikh makes her claim for spousal support pursuant to sections 30 and 33 of the Family Law Act. They provide:

Part III – Support Obligations

30. Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so.⁵

Order for support

33(1) A court may, on application, order a person to provide support for his or her dependants and determine the amount of support.

(2) An application for an order for the support of a dependant may be made by the dependant or the dependant's parent. . . [Emphasis added]

50The purposes of an order for spousal support are set out in subsection 33(8) of the Family Law Act. It provides:

Purposes of Order for Support of Spouse

33(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

Jurisprudence

51The Supreme Court of Canada, in Moge v. Moge, in 1992, commented on the last of the purposes listed above, relieving economic hardship resulting from the marriage or its breakdown. McLachlan J. stated:

… [T]he judge’s order should…grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship.⁶ [Emphasis added.]

52The Supreme Court further held, in M v. H, in 1999, that the spousal support provisions of the FLA help protect the economic interests of individuals in intimate relationships.⁷ When a relationship breaks down, the support provisions help ensure that a spouse who has contributed to the couple’s welfare in intangible ways will not find himself or herself “utterly abandoned”.

53As noted below, the circumstances to be considered when determining the amount of spousal support, in relation to need, include the spouse’s capacity to contribute to his or her own support,⁸ the measures available for him or her to become able to provide for his or her own support, and the length of time and the cost involved to enable the dependent to take those measures.⁹

54Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship.¹⁰ Entitlement can be based on compensatory, non-compensatory or contractual grounds.¹¹

Compensatory support

55Because marriage is a joint endeavour, spousal support orders are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship. L’Heureux-Dubé, J. stated in Moge:

Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time.¹² [Emphasis added.]

56Ms. Shaikh’s marriage to Mr. Shaikh was of medium duration, and produced no children for whom Ms. Shaikh must assume responsibility, which might result in an occupational disadvantage to her and entitle her to compensation. It is impossible to determine, with certainty, without evidence from Mr. Shaikh, the extent of occupational advantage derived by him from the household duties that Ms. Shaikh assumed during their marriage. However, Ms. Shaikh’s undisputed evidence is that he benefited from her efforts by being able to devote himself more fully to developing his businesses.

57Ms. Shaikh undoubtedly suffered a loss of economic advantage, in terms of her financial self-sufficiency, by coming to Canada and being out of the work force for 13 years. She left her nascent career as a social worker in Pakistan to marry Mr. Shaikh. She left Pakistan, where she had earned her accreditation, and moved to Canada, where her professional credentials were not recognized. She became financially dependent on Mr. Shaikh, with his encouragement, and had reason to expect that he would continue to provide a standard of living for her equivalent to the one she had given up in Pakistan. She is entitled to spousal support to compensate her for the advantage that Mr. Shaikh derived, and the economic disadvantage she suffered, from the marriage.

Contractual entitlement

58Contractual entitlement flows from the express or implied agreement between the parties to the marriage.¹³ Mr. and Ms. Shaikh had a reasonable expectation, from their marriage, that they would derive an equal benefit from their respective contributions to the marriage.

Non-compensatory Support

59Non-compensatory support is a residual basis for ordering support “where it is fit and just to do so.”

60Ms. Shaikh should be given a reasonable opportunity to find suitable employment for herself in the workplace in Canada.

61In the present case, there are no children. However, in the particular circumstances, it is not realistic to expect that Ms. Shaikh will become financially self-sufficient at a standard of living even approaching the one the parties enjoyed during the marriage, having regard to the facts that:

a) Ms. Shaikh followed her husband to Canada because his business and her role in the marriage demanded it;

b) Ms. Shaikh’s role in the marriage prevented her from developing her own financial self-sufficiency;

c) Mr. Shaikh failed to provide spousal support to Ms. Shaikh after the parties separated;

d) Ms. Shaikh’s Social Work degree from Pakistan is not recognized in Ontario; and

e) Ms. Shaikh is not yet sufficiently fluent in English to qualify to pursue her career in Ontario.

62Ms. Shaikh was financially dependent on Mr. Shaikh throughout the parties’ 13 year marriage. There appears to have been an economic disadvantage and economic hardship to her that has been made worse by the marriage breakdown.

(ii) Amount of spousal support

Legislative framework

63Subsection 33(9) of the Family Law Act sets out the circumstances that the court should consider in determining the amount and duration, if any, of support for a spouse in relation to need. It provides:

Determination of amount for support of spouses, parents

33(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant's capacity to contribute to his or her own support;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent's career potential;

(k) Repealed.

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed.

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

Conduct

(10)The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.¹⁴

The jurisprudence

64As noted above, section 33(9) directs the Court to base its determination as to the amount of spousal support, in part, on the payor spouse’s means¹⁵ and on his or her capacity to provide support.¹⁶ The Court of Appeal, in Fisher v. Fisher, in 2008, held that the Spousal Support Advisory Guidelines (SSAG)¹⁷, while advisory in nature, are a useful starting point when determining the appropriate amount of spousal support.¹⁸ The Court has further held, in Gagne v. Gagne, in 2011, that once it finds a spouse to be entitled to spousal support, the Court must take the Spousal Support Advisory Guidelines into account when determining the amount.¹⁹ Gauthier J. applied the SSAG in Wright v. Lavoie, in 2014, in a case involving un-married spouses, brought pursuant to the Family Law Act. In determining entitlement to spousal support under the provincial Family Law Act, Gauthier J. pointed out that the Spousal Support Advisory Guidelines “state clearly, at Chapter 6, that the starting point for the determination of income under those Guidelines is the definition of Income under the Federal Child Support Guidelines.”²⁰

65This Court noted in Poirier v. Poirier, in 2010, that when applying the Spousal Support Advisory Guidelines in the determination of spousal support, courts commonly apply the methodology set out in the Federal Child Support Guidelines (FCSG)²¹ for determining a spouse’s income.²² Similarly, Olah J. noted in Rilli v. Rilli, in 2006, that the test for determining income for the purpose of determining child support applies equally to claims for spousal support.²³ In Pagnotta v. Malozewski, in 2008, the Divisional Court continued an interim support Order based on income imputed to the husband using the methodology in the FCSG.²⁴

66The FCSG provide, in section 2, that a payor spouse’s income means his or her annual income, as determined by reference to the methodology set out in sections 15 to 20 of the Guidelines. Those sections direct the Court through a series of alternative methods for determining income, until a fair one is found.

67Section 15 provides that where spouses do not agree in writing on a spouse’s annual income, the Court shall determine the income by considering the remaining methods, set out in sections 16 to 20. Section 16 provides that the Court should, first, consider a parent’s or spouse’s income to be the “Total Income” as set out on line 150 of his Income Tax Return:

16. Calculation of annual income. -- of Subject to sections 17 to 20, a parent’s or spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Revenue Agency and is adjusted in accordance with Schedule III. [Emphasis added.]

68Section 17(1) of the FCSG provides that if, because of significant fluctuations in a spouse’s income, his or her total income for the previous year would not be the fairest way of determining income for the purposes of support, the Court may average his or her income over the last three years to determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income, or receipt of a non-recurring amount during those years.

69Section 19 of the FCSG provides that, in appropriate circumstances (that is, where the previous methods have been found not to be fair), the Court may impute a different amount of income to a spouse.

Applying the legal principles to the facts of this case

70Since 2004, Mr. Shaikh has been the owner of a call centre, Contactopia FZC, in the United Arab Emirates. He is currently operating Contactopia from Canada also. Mr. Shaikh acknowledges in his Financial Statement, sworn May 4, 2015, that he is additionally self-employed through a company named Saudaghar, located at 2731-3888 Duke of York Boulevard in Mississauga (the matrimonial home).

71Mr. Shaikh’s Notices of Assessment from the Canada Revenue Agency, which he filed with his Financial Statement in this proceeding, disclose the following income history:

a) 2012: $ 1.00

b) 2013: $15,255

c) 2014: $16,541

72Mr. Shaikh’s Notice of Assessment for 2013 discloses gross professional income in the amount of $28,000, and net income of $15,255. Mr. Shaikh used the latter amount as his declared “Total Income”.

73Ms. Shaikh tendered in evidence the August 13, 2012 HSBC Mortgage Application, referred to above. Mr. Shaikh submitted the Mortgage Application to obtain the loan he needed to purchase the matrimonial home that month. In addition to granting him the loan, HSBC issued Mr. Shaikh a Master Card credit card.

74In the Mortgage Application, Mr. Shaikh declared that he was self-employed through Contactopia FZC, and had an annual income in the amount of $90,000. He reported that Ms. Shaikh was a homemaker and earned no income.

75Ms. Shaikh tendered the monthly statements for Mr. Shaikh’s Master Card account from June 18, 2012 to December 17, 2015. The statements disclose the purchases and payments in 2013, set out in Schedule “A” to these reasons. Because the statements cover the period from mid-month to mid-month, I have derived the totals in two different manners, one showing the totals based on amounts from mid-December 2012 to mid-December 2013, and the other based on amounts from mid-January 2013 to mid-January 2014. The credit card statements disclose purchases and payments that average approximately $3,000 per month, based on totals of between $31,786.94 and $43,704.40 for the 12 month period, as follows:

Purchases Payments

Dec. 18, 2012 to December 17, 2013: $40,060.62 $43,704.40

January 18, 2013 to January 19, 2014: $31,786.94 $37,554.12

76Mr. Shaikh’s Notice of Assessment for 2014 discloses gross professional income of $22,501 and net income (and Line 150, or “Total Income”) of $16,541. Mr. Shaikh’s HSBC credit card statements disclose purchases and payments that also average approximately $3,000 per month, based on totals of between $33,472.50 and $40,121.51, from that 12 month period:

Purchases Payments

Dec. 18, 2013 to December 17, 2014: $36,210.07 $37,902.35

January 20, 2014 to January 18, 2015: $33,472.50 $40,121.51

77As noted above, Mr. Shaikh’s Sale and Purchase Agreement dated December 8, 2010, for a property which Mr. Shaikh leased to purchase in the City of Sharjah, in the United Arab Emirates, discloses that, of the purchase price of AED 1,4165,093 Dirhams, he paid AED 743,451 Dirhams and financed the balance with a mortgage for AED 672,642 Dirhams, on which he made monthly payments of AED 42,040 every three months from February 15, 2011 to November 15, 2014. Ms. Shaikh does not know whether the mortgage was re-financed at that time. AED 42,040 is the equivalent of $15,501 in Canadian currency, or $5,167 per month.²⁵

78A Loan Payment History Report from Mr. Shaikh’s mortgage account at HSBC, for his mortgage on the matrimonial home, discloses that he made monthly payments of $1,263.06 on that mortgage, and payments of property tax of a further $234 per month.

79Based on the foregoing information, I estimate Mr. Shaikh’s spending to be approximately $9,664 per month, consisting of the following:

a) Credit card purchases: $3,000

b) Mortgage payments on matrimonial home: $1,263

c) Property tax on matrimonial home: $234

d) Mortgage payments on U.A.E. home: $5,167

TOTAL: $9,664 ($115,968/yr)

80In his Financial Statement, Mr. Shaikh declares that his current annual income (in 2015) is $30,000, consisting of “commissions, tips, and bonuses” in the amount of $500 per month, and “interest and investment income” in the amount of $2,000 per month. Yet, he lists expenses of $79,980 in his Financial Statement. These consist, he says, of the following monthly expenses:

$4,140 Housing (mortgage, property tax, and condominium fees x 2)

$ 125 Cell phone and internet service

$1,500 Groceries

$ 500 Meals outside the home

$ 150 Public transit or taxis

$ 100 Clothing

$ 150 Alcohol and tobacco

$6,665 TOTAL

81Mr. Shaikh has not included among his expenses the mortgage payments he was making on his home in the United Arab Emirates, which would add an additional $5,167 per month. While Mr. Shaikh lists credit card debt in the amount of $10,000 on the date of the Financial Statement (May 4, 2015), he does not disclose the amount of the debt a year earlier, on the date of separation, as required, with the result that it is not possible to determine the extent to which the amount by which his expenses exceed his income is accounted for by an increase in debt.

82As a self-employed person, Mr. Shaikh had an obligation to provide disclosure pursuant to Family Law Rule 13. That Rule provides, in part:

13(1) If an application, answer, or motion contains a claim for support, a property claim, or a claim for exclusive possession of the matrimonial home and its contents,

(b) the party against whom the claim is made shall serve and file a financial statement within the time for serving and filing an answer, reply or affidavit or other document responding to the motion, whether the party is serving an answer, reply or affidavit or other documents responding to the motion or not.

(3.3) A party who is required under subrules (1) to (3) to serve and file a financial statement in relation to a claim under Part I of the Family Law Act shall, no later than 30 days after the day by which the financial statement is required to be served, serve on the other party the following information, unless the court orders otherwise:

1. The statement issued closest to the valuation date for each bank account or other account in a financial institution, pension, registered retirement or other savings plan, and any other savings or investments in which the party had an interest on that date.

2. If the party had an interest in a sole proprietorship or was self-employed on the valuation date, for each of the three years preceding that date,

i. the financial statements of the party’s business or professional practice, other than a partnership, and

ii. a copy of every personal income tax return filed by the party, including any materials that were filed with the return.

7. If the party had an interest in a corporation on the valuation date, documentation showing the number and types of shares of the corporation and any other interest in the corporation that were owned by the party on that date.

8. If the corporation in which a party had an interest was privately held, for each of the three years preceding the valuation date,

i. the financial statement for the corporation and its subsidiaries, and

ii. if the interest was a majority interest, a copy of every income tax return filed by the corporation.

10. Documentation showing the value, on the valuation date, of any property not referred to in paragraphs 1 to 9 in which the party had an interest on that date. [Emphasis added.]

83Mr. Shaikh failed to produce his bank statements from the month when the parties separated, his tax returns, the financial statements and, if those businesses were incorporated, the tax returns, of Contactopia FZC, in the United Arab Emirates and in Canada, and of Saudaghar, in Mississauga. He also failed to produce documentation showing the value of his real property in the United Arab Emirates.

84I find that it is likely that Mr. Shaikh has additionally failed to provide income information. Ms. Shaikh testified that both the property at 2734-3888 Duke of York Blvd., in Mississauga, and the property in Dubai were rented to tenants, and Mr. Shaikh failed to disclose the income from those properties. I find that it is likely that he derives income from the U.A.E. that is not taxed, or that is subject to significantly lower income tax rates than those in Canada.

85Having regard to Mr. Shaikh’s ownership of a property in the United Arab Emirates, and his Notices of Assessment, which state that he derives income from “interest or investments”, I find that he derives income from sources that are taxed at a lower rate than employment or business income, or that are exempt from tax.

86For the foregoing reasons, I find that Mr. Shaikh’s Line 150 income, as reflected in his Notices of Assessment from the Canada Revenue Agency, is not the fairest basis for determining his income for the purposes of spousal support. Section 19 of the FCSG permits the court, in these circumstances, to impute an income to Mr. Shaikh in an amount other than his Line 150 income. Section 19 provides, in that regard:

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 spouse’s 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. [Emphasis added.]

87In her Application, Ms. Shaikh claimed spousal support based on Mr. Shaikh’s income in an amount of $100,000, which she asked to be imputed to him. At the hearing, she reduced her estimate of his income to $70,000, based on the fact that she believed that he was earning $60,000 at the time when they were married in 2001. The spousal support awarded to her should not exceed the amount Ms. Shaikh claims, being the amount she claims in her Application.

88The best evidence of Mr. Shaikh’s income is the amount he declared in his Mortgage Application in 2012, namely, $90,000. Based on Mr. Shaikh’s spending, it is highly unlikely that he is earning less than that amount today, three years after he applied for the mortgage. Based on the above analysis, he is likely earning more; however, I am unable to determine, from the evidence before me, how much more.

89Ms. Shaikh received no support from Mr. Shaikh following the parties’ separation. She received only $4.50 per day from Ontario Works when she resided at the Women’s Shelter. She was required to leave the shelter after four months. On May 15, 2015, she began receiving Social Assistance in the amount of $656 per month, which translates to only $7,872 per year. She made up the shortfall of her expenses by borrowing from her brother in Dubai, whom she intends to repay from the net proceeds of the sale of the matrimonial home. Under the SSAG, social assistance received by a recipient spouse is not to be treated as income, for the purposes of spousal support.²⁶ As a result, Ms. Shaikh’s income to date, for the purposes of calculating support, is zero.

90It has now been two and a half years since the parties separated. From March 2015, when Ms. Shaikh began the proceeding, until the present, she is entitled to spousal support based on Mr. Shaikh’s income of $90,000, and her own income of zero. The SSAG range is from $1,462 to $1,950 per month, with a mid-point of $1,706 per month. Having regard to Ms. Shaikh’s heightened dependency, which Mr. Shaikh encouraged, and the lack of support she has received since the parties separated, which has caused her to become indebted to others, she is entitled to support at the high end of the range. There will therefore be an order for retroactive spousal support in the amount of $40,950 ($1,950 x 21 months from March 2015 to November 2016, inclusive).

91Beginning on December 1, 2016, over two and a half years after the parties separated, it is reasonable to impute an income of $19,556.70 to Ms. Shaikh, based on minimum wage. The minimum wage in Ontario as of October 1, 2016, is $11.40 per hour. This translates to $19,556.70 per year, based on 36.5 hours per week, less five statutory holidays per year, which equals 1,715.5 hours per year.

92Based on Mr. Sheikh’s annual income of $90,000 and Ms. Sheikh’s annual income of $19,556.70, the Spousal Support Advisory Guidelines suggest that Ms. Sheikh is entitled to be paid spousal support in the range of $1,145 to $1,526, with a mid-point of $1,335, for between 6.5 and 13 years.

93Ms. Shaikh’s circumstances are similar to those facing others who immigrate to Canada sponsored by a spouse who is a Canadian citizen, except that in those cases, there is a separate and independent source of legal obligations for the support of the immigrant spouse.²⁷ The existence of a sponsorship agreement is a relevant factor, but not determinative, when considering entitlement to spousal support.²⁸

94The absence of a sponsorship agreement does not significantly lessen Ms. Shaikh’s dependency, or the moral obligation Mr. Shaikh has to support her. Mr. Shaikh was responsible for Ms. Shaikh leaving Pakistan, where most of her family reside and where she had earned accreditation as a social worker, and for her coming to Canada, where her degree was not recognized. He encouraged her financial dependence on him, and he remains obligated to support her until she can achieve self-sufficiency.

95Subsection 33(10) of the Family Law Act provides that the obligation to provide support for a spouse exists without regard to conduct of either spouse. It is only when the Court determines the amount of support that the Court may consider the conduct of either spouse, but the conduct must be “so unconscionable as to constitute an obvious and gross repudiation of the spousal relationshipI find that Mr. Shaikh’s treatment of Ms. Shaikh was unconscionable and did constitute a gross repudiation of their marriage. It would be unfair, in these circumstances, and having regard to the impact that his conduct had on Ms. Shaikh, to deny her spousal support.

96The parties were married and lived together for thirteen years and, since the separation, Mr. Sheikh has provided no support for Ms. Sheikh, who is currently without income, apart from social assistance.

97I find, based only on the undisputed evidence before me, that Ms. Shaikh has made out a prima facie case for entitlement under at least two of the three bases for an award of spousal support: compensatory, based on her relinquishing her own financial security in Pakistan in return for the financial security promised to her for assuming responsibility for Mr. Shaikh’s household and enabling him to develop his businesses, and non-compensatory, based on need. Arguably, there may also have been an implicit contractual understanding between the parties, in accordance with the principles which the Supreme Court of Canada enunciated in Bracklow v. Bracklow.

98In Niranchan v. Nadarajah, in 2015, Justice Zisman, of the Ontario Court of Justice, dealing with a claim for spousal support arising from immigration sponsorship, noted that, although the SSAG formula is intended to apply to the vast majority of cases, there will be unusual or atypical cases where the formula generates results that are inconsistent with the support factors and objectives found in the legislation.²⁹ In such cases, an appropriate result can sometimes only be achieved by departing from the formula.

99In Carty-Pusey v. Pusey, in 2015, Justice O’Connell, of the Ontario Court of Justice, stated:

The “basic needs/hardship exception” was added in the Final Version of the SSAG to recognize the specific problem with shorter marriages where the recipient has little or no income and the formula is seen as generating too little support for the recipient to meet his or her basic needs for any transitional period that extends beyond the interim exception. See Simpson v. Grignon, 2007 17038 (ON SC), 2007 17038, 39 R.F.L. (6th) 329, [2007] O.J. No. 1915, 2007 Cars­well­Ont 3095 (Ont. Fam. Ct.).

Further, in The Spousal Support Advisory Guidelines: A New and Improved User Guide to the Final Version (2010), Professors Carol Rogerson and Rollie Thompson noted specifically that some of the identified exceptions to the SSAG may be relevant in short marriages involving immigration sponsorship agreements, justifying a departure from the formula ranges.³⁰ [Emphasis added.]

100In R.S. v. M.S.M., and Kuznetsova v. Flores, both cases in 2016 involving immigration sponsorship, Justice Sherr of the Ontario Court of Justice notes that the SSAG recognized that the formula may create specific problems for short marriages without children, where the recipient has little or no income at the time of separation. Justice Sherr points to a number of exceptions that are outlined in the explanatory notes to the SSAG in cases involving short marriages without children, including those of compelling financial circumstances and basic needs/hardship. Justice Sherr states:

The existence of a sponsorship agreement can be a factor in extending the durational limits of the SSAG or ordering support at the high end range. See: The Spousal Support Advisory Guidelines, A New and Improved User’s Guide to the Final Version, Department of Justice Canada, March 2010, Chapter FV 7(b) by Carol J. Rogerson and D.A. Rollie Thompson, where the authors write:

Short marriages: immigration sponsorship cases

One category of short marriages, those involving immigration sponsorship agreements, raise some unique issues under the without child support formula. These are cases where a marriage breaks down while a sponsorship agreement is in place. Most spousal sponsorship agreements now run for a period of 3 years, but in the past the duration was as long as 10 years. In some cases involving very short marriages, courts have used the duration of the sponsorship agreement as the appropriate measure for the duration of spousal support, thus extending duration beyond the durational ranges generated by the Advisory Guidelines. As well, in such cases, some courts have also ordered support in an amount beyond the high end of the range to generate an amount of support that will meet the recipients' basic needs and preclude resort to social assistance. See Gidey v. Abay, 2007 40212 (ON SC), [2007] O.J. No. 3693 (Ont.S.C.J.); and T.M. v. M.A.G., [2006] B.C.J. No. 3479, 2006 BCPC 604.

Some of the identified exceptions may be relevant in these cases to justify a departure from the formula ranges:

• the compensatory exception in short marriages

• the exception for compelling financial circumstances in the interim

• the basic needs/hardship exception

However, it does appear that the sponsorship agreement may be an independent factor in short marriages, leading to either an amount or a duration outside the formula ranges.]³¹ [Emphasis added.]

101The exceptions to the SSAG ranges of spousal support in cases involving immigrants to Canada facing special hardship on that account are not limited to ones in which an immigration sponsorship agreement has been made. The exceptions may apply to marriages of short duration and even, in exceptional cases, of moderate duration, where immigration has given rise to compelling financial circumstances and greater than usual hardship for the claimant spouse. It can arise where a payor spouse has induced the claimant spouse, by an offer of marriage, to give up a social and economic support system in the country of origin, and to emigrate to Canada, where she or he is more financially dependent than the payor spouse by reason of being in a foreign land, with limited language proficiency, and occupational credentials that are of less value than in the country of origin. All of these factors can hamper a spouse’s ability to achieve economic self-sufficiency and may justify increasing the amount and extending the duration of spousal support.

102In the present case, Ms. Shaikh currently has no income and will be unable to earn more than minimum wage until she is able to improve her fluency in English and thereby earn accreditation as a social worker or otherwise improve her ability to secure employment beyond a basic level. Until then, her ability to achieve economic self-sufficiency will be impeded by the circumstances arising from her marriage. She cannot meet her very basic expenses without financial assistance from Mr. Shaikh. In my view, the spousal support amounts provided in the SSAG would not result in a fair amount to her, as they do not even meet her basic needs.

103Section 5(6) engages equitable considerations in situations where it is determined an equalization would be “unconscionable”. This threshold is said to be exceptionally high, one that is met only when the circumstances “shock the conscience of the court”. While such may pertain to fault based conduct, the target of the statutory provision is with the “unconscionable result” of equalization. If the threshold is achieved, the Court should determine what is “just, fair and reasonable”.³²In the circumstances of the present case, a fair and reasonable amount of spousal support, which Ms. Shaikh requires and Mr. Shaikh is capable of paying, is $1,700 per month.

(iii) Duration of Spousal Support

104In most marriages, spouses make decisions that accommodate the economic and non-economic needs of the other. The decisions include the way household responsibilities are handled and the way careers develop. Over time, these decisions can have a significant impact upon the income earning ability of each spouse at the time of separation and the advantage or disadvantage each derives from the marriage and the loss of advantage each experiences as a result of their separation.

105As a general rule, the longer a marriage subsists, the more intertwined the economic and non-economic lives of the spouses become, and the more a dependent spouse is entitled to a lifestyle commensurate with the accustomed lifestyle or the payor’s lifestyle, subject to the payor spouse’s ability to pay.³³ This principle, derived from the Supreme Court’s reasons in Moge, has been interpreted to mean that for long marriages, compensatory spousal support can continue until the spouses achieve a “rough equivalency” of standards of living.³⁴

106The duration of spousal support cannot be determined with precision, even by applying a “rough equivalency” of standards of living principle, based solely on the number of years the spouses lived together. The duration of the marriage is only one measure, and it gives rise to a presumption of equivalency only after a lengthy period of cohabitation. The court must review all the circumstances of the marriage, and examine the economic and non-economic decisions that were made and the impact they had on the spouses, in order to determine what duration of support will best meet the objectives set out in the Family Law Act.³⁵

107Ms. Shaikh states that during the marriage, she was enjoying a very “high lifestyle” in Pakistan, Dubai, and Canada. She does not provide the details of the lifestyle, or evidence that would enable the court to interpret her statement.

108In the present case, determining the duration of support, like determining the amount of support, requires consideration of Ms. Shaikh’s immigration to Canada, the extent of her financial dependence, which Mr. Shaikh encouraged, and the lack of support that Mr. Shaikh gave to her after the parties separated. These circumstances contributed to a degree of financial dependence that would normally be associated with a marriage of longer duration.

109The economic disadvantage that Ms. Shaikh suffered by reason of the marriage and its breakdown was aggravated by the fact that:

a) She left her employment in Pakistan, where her credentials were recognized, and came to Canada, where those credentials were not recognized;

b) She assumed household duties in a way that compromised her economic self-sufficiency; and

c) Her ability to achieve self-sufficiency since the parties’ separation has been hampered by her lack of Canadian education and training, and the lack of support she has received from Mr. Shaikh.

These factors create compelling financial circumstances and hardship for Ms. Shaikh in making the transition from her marriage to a life on her own.

110As noted above, the Spousal Support Advisory Guidelines suggest that Ms. Shaikh is entitled to spousal support for 6.5 to 13 years. How long she actually requires support, however, is likely to be affected by how compliant Mr. Shaikh is with the order that is made. Ms. Shaikh’s ability to enforce her rights is in doubt, owing to Mr. Shaikh’s failure to continue participating in the proceeding and his failure to provide the disclosure required by the Family Law Act.

111Having regard to these circumstances, the spousal support order will be indefinite, but will be subject to review (with respect to both entitlement and amount of support) at the request of either party after five years from this date. This is similar to the approach taken in Zivic v. Zivic, in 2014, and Dupuis v. Desrosiers, in 2013.³⁶

112Ms. Shaikh has an obligation to use reasonable efforts to become self-supporting and an examination of such efforts will be part of any court review. The Court, at that time, will consider whether she is still entitled to spousal support and may impose a time limit for her support.

(iv) Form of Spousal Support

113I will turn now to consider Ms. Shaikh’s request that she be paid lump sum spousal support from the net proceeds of sale of the matrimonial home.

Legislative framework

114The Family Law Act confers a broad discretion on judges to make an award of periodic or lump sum spousal support, or to make an award comprising both forms of support. Sections 34(1)(a) and (b) of the Family Law Act provide as follows:

34(1) In an application under section 33, the court may make an interim or final order,

(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; [and]

(b) requiring that a lump sum be paid or held in trust.³⁷ [Emphasis added.]

The matrimonial home

115Ms. Shaikh listed the matrimonial home for sale on December 31, 2015, for $389,900. On February 22, 2916, she reduced the listing price to $377,900, but the property had not yet been sold as of the date of the uncontested hearing. As noted above, it is likely that the home will be sold for approximately its assessed value of $371,000 and that, at best, net proceeds of $72,450.00 will be realized.

116Ms. Shaikh states that Mr. Shaikh destroyed all of her expensive clothing, and furniture given to her by her parents, in Dubai and in Canada during their marriage. He had not returned any of her personal belongings listed in her Application. She did not itemize that property or provide any evidence of its value. I have therefore not factored it into my calculations.

117Ms. Shaikh proposes that the net proceeds of sale of the matrimonial home be disbursed to her as spousal support, equalization or unequal division of net family property. This is reasonable in the circumstances.

Lump sum spousal support

118Whether the Court is asked to award periodic or lump sum spousal support, it is incumbent upon counsel to provide the judge with submissions concerning the basis for awarding, and the method of calculating, the proposed support, together with a range of possible outcomes. Submissions of this kind were limited, in the present case, to a proposal that lump sum support be paid from the net proceeds of sale of the matrimonial home. As noted above, the equalization payment that Ms. Shaikh is entitled to be paid already exceeds the likely net proceeds of sale of that property.

119I am mindful of the fact that it is highly desirable that a judge who is asked to make a lump sum award provide a clear explanation of both the basis for exercising the discretion to award such support or not to award it and, if a lump sum award is made, to provide the rationale for arriving at a particular figure.

120I have considered the procedure for determining spousal support as set out by the Court of Appeal in Davis v. Crawford, 2011.³⁸ The Court in that case rejected the submission that its earlier decision in Mannarino should be treated as restricting the Court’s ability to award lump sum spousal support to situations “where there is a real risk that periodic payments would not be made,” or to other limited and “very unusual circumstances.”³⁹

121A lump sum award should not be made in the guise of support for the purpose of redistributing assets.⁴⁰ The Family Law Act does not recognize redistribution of assets as one of the purposes of a spousal support award. That said, a lump sum order can be made to "relieve [against] financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home)".⁴¹

122The Ontario Court of Appeal noted in Willemze-Davidson v. Davidson that the purpose of an award must be distinguished from its effect, as any lump sum award will have the effect of transferring assets from one spouse to another. However, that should not be the underlying purpose of the order.⁴²

123An important consideration in determining whether to make a lump sum spousal support award is whether the payor has the ability to make a lump sum payment without undermining the payor's future self-sufficiency. The Family Law Act, provides, in s. 33(9), that "[i]n determining the amount and duration, if any, of support for a spouse . . . in relation to need, the court shall consider" among other things:

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future; . . .

(d) the respondent's capacity to provide support.

124Section 33(9) makes it clear that ability to pay should be an important consideration in making an award of spousal support, including lump sum spousal support. In the present case, there is no evidence that Mr. Shaikh is able to pay lump sum spousal support, apart from what is generated by the sale of the matrimonial home, or what could be generated by the sale of other assets.

125I have weighed the perceived advantages of making a lump sum award in the particular case against any presenting disadvantages of making such an order. The advantages of making such an award are highly variable and case-specific. They can include, but are not limited to, the following:

a) Terminating ongoing contact or ties between the spouses for any number of reasons (for example, short-term marriage, domestic violence, second marriage with no children, etc.);

b) Providing capital to meet an immediate need on the part of a dependant spouse;

c) Ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support;

d) A lack of proper financial disclosure;

e) Where the payor has the ability to pay lump sum but not periodic support; and

f) Satisfying immediately an award of retroactive spousal support.

126The disadvantages of such an award can include the following:

a) The real possibility that the means and needs of the parties will change over time, leading to the need for a variation;

b) The fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and

c) The difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.

127I have considered the factors relevant to making a lump sum spousal support award on the facts of this particular case. I conclude that the disadvantages of doing so outweigh the advantages for the following reasons:

a) There is no ongoing contact between the parties, and no second marriage;

b) There is no evidence that Ms. Shaikh has an immediate or greater need for a lump sum than for periodic support;

c) While there is a risk of non-payment of periodic support, there is no evidence that the risk would be any less in relation to lump-sum support. The property at 1089-4090 Living Arts Drive, in Mississauga, was sold following the parties’ separation. After the mortgage and a Legal Aid lien were paid, there was no balance remaining from the sale. There is no reasonable prospect of securing a lump sum payment from the property in the U.A.E. or from bank accounts in that country;

c) There has been a lack of disclosure, but it would undermine Ms. Shaikh’s ability to enforce an order for lump sum support as much as her ability to enforce periodic support; and

d) There is no evidence that Mr. Shaikh has a greater ability to pay lump-sum support than periodic support.

128While lump sum spousal support awards are not limited to "very unusual circumstances", most spousal support orders are for periodic payments for the following four practical reasons:

a) In many instances, moneys will simply not be available to fund a lump sum support award, either to take the place of, or to supplement, an award of periodic support. Instead, support will be paid from one spouse's income, the only available source for support payments, and will be paid to finance the ongoing needs of the other spouse, which will generally be of a periodic rather than lump sum character.

b) For married couples, the court will have determined already the amount to be paid to equalize the value of the spouses' net family properties.⁴³ This has been done in the present case, in the order for sale of the matrimonial home. In many circumstances, this payment will obviate any requirements a dependent spouse may have for transitional capital.

c) In many cases, there will be no considerations favouring a lump sum award from the perspective of either spouse.

d) In at least some cases where there are considerations favouring a lump sum award, the general exigencies of life, including the possibility that the parties' means and needs will change, will outweigh the considerations favouring a lump sum award.

Costs

129Ms. Shaikh has been successful in her application, and is entitled to her costs. Her costs consist of the following amounts, which I find to be reasonable, based on her lawyer’s Bill of Costs, filed.

a) Outstanding costs order dated September 28, 2015: $3,000.00

b) Outstanding costs order dated November 20, 2015: $3,000.00

c) Fees and disbursements, inclusive of HST: $14,578.64

TOTAL: $17,578.64

CONCLUSION AND ORDER

130For the reasons stated above, it is ordered that:

1. The respondent shall pay to the applicant the following amounts:

(a) $229,508, less the net proceeds of sale of the matrimonial home, to equalize the parties’ net family property;

(b) $40,950 for retroactive spousal support from March 1, 2015, to November 1, 2016, inclusive;

(c) $1,700 per month, on the 1^st of every month, beginning December 1, 2016. This support shall be indefinite, but may be reviewed after five years.

(d) $17,578.64 for her costs of this proceeding.

Price J.

Released: November 28, 2016

Schedule “A1”

HSBC Credit Card purchases and payments

Period Covered Purchases Cash Advances Payments

June 18 to July 17, 2012 $94.63

July 18 to Aug. 19, 2012 $5,493.84 $2,253.62 $100.00

Aug. 20 to Sept 17, 2012 $3,205.34 Nil $7,749.07

Sept. 18 to Oct 17, 2012 $901.36 Nil $2,356.48

Oct. 18 to Nov. 18, 2012 $77.06 Nil $901.36

Nov. 19 to Dec. 17, 2012 $9,749.39 Nil $77.06

$19,521.62 $2,253.62 $11,183.97

Dec. 18/12 to Jan. 17, 2013 $11,442.28 Nil $9,044.46

Jan. 18 to Feb 18, 2013 $1,668.25 Nil $10,290.04

Feb. 19 to Mar. 17, 2013 $5,620.66 Nil $1,468.00

Mar. 18 to Apr. 17, 2013 $686.34 Nil $5,529.84

Apr. 18 to May 20, 2013 $142.27 Nil $565.46

May 21 to June 17, 2013 $876.54 Nil $142.27

June 18 to July 17, 2013 $5,615.12 Nil $876.54

July 18 to Aug 18, 2013 $5,060.53 Nil $5,306.72

Aug 19 to Sept. 17, 2013 $4,270.82 Nil $4,881.12

Sept. 18 to Oct. 17, 2013 $1,382.07 Nil $4,028.74

Oct. 18 to Nov. 17, 2013 $390.13 Nil $1,365.01

Nov. 18 to Dec. 17, 2013 $2,905.61 Nil $206.20

$40,060.62 Nil $43,704.40

Dec. 18/13 to Jan. 19, 2014 $3,168.60 Nil $2,894.18

Jan. 20 to Feb. 17, 2014 $1,330.88 Nil $2,704.26

Feb. 18 to March 17, 2014 $2,185.38 Nil $1,330.88

Mar. 18 to Apr. 20, 2014 $3,183.35 Nil $2,185.38

Apr. 21 to May 19, 2014 $1,253.85 Nil $3,183.35

May 20 to June 17, 2014 $1,884.76 Nil $1,119.38

June 18 to July 17, 2014 $8,232.07 Nil $1,685.42

July 18 to Aug. 17, 2014 $1,149.57 Nil $8,232.07

Aug. 18 to Sept. 17, 2014 $4,487.28 Nil $6,114.20

Sept. 18 to Oct. 19, 2014 $2,273.82 Nil $4,291.24

Oct. 20 to Nov. 17, 2014 $1,947.17 Nil $2,214.82

Nov. 18 to Dec. 17, 2014 $5,113.34 Nil $1,947.17

$36,210.07 Nil $37,902.35

Dec. 18/14 to Jan. 18, 2015 $431.03 Nil $5,113.34

Jan. 19 to Feb. 17, 2015 $6,721.33 Nil $57.35

Feb. 18 to Mar. 17, 2015 $5,560.81 Nil $9,681.17

Mar. 18 to April 19, 2015 $10,389.80 Nil $1,728.19

Apr. 20 to May 18, 2015 $611.41 Nil $10,409.80

May 19 to June 17, 2015 $4,030.48 Nil $611.41

June 18 to July 19, 2015 $111.93 Nil $4,030.48

July 20 to Aug 17, 2015 $5.65 Nil Nil

Aug. 18 to Sept. 17, 2015 $107.56 Nil $5.65

Sept. 18 to Oct. 18, 2015 $5.65 Nil Nil

Nov. 18 to Dec. 17, 2015 $218.55 Nil Nil

$28,194.20 Nil $31,637.39

Total $123,986.51 $2,253.62 $124,428.11

$250,668.24

Schedule “A2”

HSBC Credit Card purchases and payments

Period Covered Purchases Cash Advances Payments

June 18 to July 17, 2012 $94.63

July 18 to Aug. 19, 2012 $5,493.84 $2,253.62 $100.00

Aug. 20 to Sept 17, 2012 $3,205.34 Nil $7,749.07

Sept. 18 to Oct 17, 2012 $901.36 Nil $2,356.48

Oct. 18 to Nov. 18, 2012 $77.06 Nil $901.36

Nov. 19 to Dec. 17, 2012 $9,749.39 Nil $77.06

Dec. 18/12 to Jan. 17, 2013 $11,442.28 Nil $9,044.46

$30,963.90 $2,253.62 $20,228.43

Jan. 18 to Feb 18, 2013 $1,668.25 Nil $10,290.04

Feb. 19 to Mar. 17, 2013 $5,620.66 Nil $1,468.00

Mar. 18 to Apr. 17, 2013 $686.34 Nil $5,529.84

Apr. 18 to May 20, 2013 $142.27 Nil $565.46

May 21 to June 17, 2013 $876.54 Nil $142.27

June 18 to July 17, 2013 $5,615.12 Nil $876.54

July 18 to Aug 18, 2013 $5,060.53 Nil $5,306.72

Aug 19 to Sept. 17, 2013 $4,270.82 Nil $4,881.12

Sept. 18 to Oct. 17, 2013 $1,382.07 Nil $4,028.74

Oct. 18 to Nov. 17, 2013 $390.13 Nil $1,365.01

Nov. 18 to Dec. 17, 2013 $2,905.61 Nil $206.20

Dec. 18/13 to Jan. 19, 2014 $3,168.60 Nil $2,894.18

$31,786.94 Nil $37,554.12

Jan. 20 to Feb. 17, 2014 $1,330.88 Nil $2,704.26

Feb. 18 to March 17, 2014 $2,185.38 Nil $1,330.88

Mar. 18 to Apr. 20, 2014 $3,183.35 Nil $2,185.38

Apr. 21 to May 19, 2014 $1,253.85 Nil $3,183.35

May 20 to June 17, 2014 $1,884.76 Nil $1,119.38

June 18 to July 17, 2014 $8,232.07 Nil $1,685.42

July 18 to Aug. 17, 2014 $1,149.57 Nil $8,232.07

Aug. 18 to Sept. 17, 2014 $4,487.28 Nil $6,114.20

Sept. 18 to Oct. 19, 2014 $2,273.82 Nil $4,291.24

Oct. 20 to Nov. 17, 2014 $1,947.17 Nil $2,214.82

Nov. 18 to Dec. 17, 2014 $5,113.34 Nil $1,947.17

Dec. 18/14 to Jan. 18, 2015 $431.03 Nil $5,113.34

$33,472.50 Nil $40,121.51

Jan. 19 to Feb. 17, 2015 $6,721.33 Nil $57.35

Feb. 18 to Mar. 17, 2015 $5,560.81 Nil $9,681.17

Mar. 18 to April 19, 2015 $10,389.80 Nil $1,728.19

Apr. 20 to May 18, 2015 $611.41 Nil $10,409.80

May 19 to June 17, 2015 $4,030.48 Nil $611.41

June 18 to July 19, 2015 $111.93 Nil $4,030.48

July 20 to Aug 17, 2015 $5.65 Nil Nil

Aug. 18 to Sept. 17, 2015 $107.56 Nil $5.65

Sept. 18 to Oct. 18, 2015 $5.65 Nil Nil

Nov. 18 to Dec. 17, 2015 $218.55 Nil Nil

$27,763.17 Nil $26,524.05

Total $123,986.51 $2,253.62 $124,428.11

$250,668.24

Footnotes

1. 1Greenglass v. Greenglass, 2010 ONCA 675, 99 R.F.L. (6th) 271.
2. 2C.M.G. v. R.G., 2013 ONSC 961, 48 R.F.L. (7th) 422, at paras. 15-16.
3. 3Greenglass, at paras. 41-44.
4. 4Bank of Canada Daily Currency Converter, online: http://www.bankofcanada.ca/rates/exchange/daily-converter/.
5. 5Family Law Act, R.S.O. 1990, c. F.3, as amended.
6. 6Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813.
7. 7M v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3, at para. 66.
8. 8Family Law Act, s. 33(9)(c).
9. 9Family Law Act, s. 33(9)(g).
10. 10Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102.
11. 11Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420.
12. 12Moge v. Moge, at para. 45.
13. 13See Bracklow v. Bracklow.
14. 14Family Law Act, s. 39.
15. 15Family Law Act, s. 33(9)(a).
16. 16Family Law Act, s. 33(9)(d).
17. 17Spousal Support Advisory Guidelines, (Ottawa: Department of Justice, 2008), by Carol J. Rogerson and D.A. Rollie Thompson.
18. 18Fisher v. Fisher, 2008 ONCA 11, 88 O.R. (3d) 241.
19. 19Gagne v. Gagne, 2011 ONCA 188, 99 R.F.L. (6th) 1, para. 9
20. 20Wright v. Lavoie, 2014 ONSC 6690, 53 R.F.L. (7th) 96, at para. 70.
21. 21Federal Child Support Guidelines, SOR/97-175, as amended.
22. 22Poirier v. Poirier, 2010 ONSC 920, 81 R.F.L. (6th) 161, at para. 85. See also: Myers v. Hawco, 2005 NLCA 74, 262 D.L.R. (4th) 719, at paras. 42-43, and Murray v. Murray, 2010 ONSC 4278, per Milanetti J., at paras. 75-77.
23. 23Rilli v. Rilli, 2006 34451 (ON SC). See also: Pellerin v. Pellerin, 2009 60671 (ON SC).
24. 24Pagnotta v. Malozewski, 2008 14800 (ON SCDC), 54 R.F.L. (6th) 173 (Ont. Sup. Ct. (Div. Ct.)).
25. 25Bank of Canada Daily Currency Converter, online: http://www.bankofcanada.ca/rates/exchange/daily-converter/.
26. 26SSAG, s. 6.2.
27. 27In Javed v. Kaukab, 2010 ONCJ 606, the court writes at paragraph 24:“The case law is clear that any agreement can be considered. It does not matter whether the agreement is between the sponsor and the immigrant, or whether, as in this case, it is between the sponsor and the government. It is also noted that the precise wordings of the agreements may vary, although in most cases, as in this case, the text of the sponsorship agreement was not provided. Clause 33(9)(m) of the Family Law Act (reproduced in full above) specifically directs the court to consider "any other legal right of the dependant to support" in determining the amount and duration of support. Thus, far from negating his obligation to pay spousal support, the existence of a sponsorship agreement actually strengthens the obligation.”
28. 28Pourian v. Zaghian, 2007 23594 (ON SC); Singh v Singh, 2013 ONSC 6476; Nathoo v. Nathoo, 2005 ABQB 175, 16 R.F.L. (6th) 313; Ferron v. Ferron (1997) 1997 11548 (ON CJ), 31 R.F.L. 4th) 26 (Ont. Ct. J. (Prov. Div.)); Niranchan v. Nadarajah, 2015 ONCJ 149, 57 R.F.L (7th) 425..
29. 29Niranchan v. Nadarajah, at para. 52.
30. 30Carty-Pusey v. Pusey, 2015 ONCJ 382, at paras. 76-77, citing The Spousal Support Advisory Guidelines: A New and Improved User’s Guide to the Final Version, March 2010, page 19.
31. 31Kuznetsova v. Flores, 2016 ONCJ 203, 79 R.F.L. (7th) 499, at para. 60; and R.S. v. M.S.M., 2016 ONCJ 297, at para. 56.
32. 32Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161.
33. 33Moge v. Moge.
34. 34Dithurbide v. Dithurbide (1996), 1996 1236 (BC SC), 23 R.F.L. (4th) 127 (B.C. Sup. Ct.); Rattenbury v. Rattenbury, 2000 BCSC 722, [2000] B.C.J. No. 889; Rinfret v. Rinfret, [1999] B.C.J. No. 2945 (Sup. Ct.); O'Neill v. Wolfe, 2001 BCSC 135, 14 R.F.L. (5th) 155; Walton v. Walton, [1997] B.C.J. No. 1089 (Sup .Ct.); Ulrich v. Ulrich, 2003 BCSC 192, [2003] B.C.J. No. 836; and Carr v. Carr (1993), 1993 14760 (BC SC), 46 R.F.L. (3d) 326 (B.C. Sup. Ct.).
35. 35Ketchabaw v Bouck, 2016 ONSC 184, 76 R.F.L. (7th) 219.
36. 36Zivic v. Zivic, 2014 ONSC 7262;) and Dupuis v. Desrosiers, 2013 ONCJ 720, [2013] O.J. No. 6014.
37. 37Family Law Act, s. 34.
38. 38Davis v. Crawford, 2011 ONCA 294,) 106 O.R. (3d) 221.
39. 39Davis v. Crawford, at para. 51, referring to Mannarino v. Mannarino (1992), 1992 14022 (ON CA), 43 R.F.L. (3d) 309 (Ont. C.A.).
40. 40Mannarino; Willemze-Davidson v. Davidson, 1997 1440 (ON CA), 98 O.A.C. 335, at para. 32.
41. 41Family Law Act, s. 33(8)(d).
42. 42Willemze-Davidson, at para. 32.
43. 43Family Law Act, s. 5.