Court File and Parties

COURT FILE NO.: FC-13-44568-0001 DATE: 20170309 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Guennadi Nossov Applicant – and – Olga Shilo Respondent

Counsel: Okelsiy Bykov, for the Applicant Mercedes Ibghi, for the Respondent

HEARD: November 30, 2016, December 1 and 2, 2016 in Oshawa Submissions received February 17, 2017

Ingram, J.

[1] In this proceeding, it appears that the Applicant seeks the following relief:

a) set aside the divorce order made December 13, 2013; b) equalization of net family properties; and c) spousal support.

[2] A court interpreter for the Russian language was available at court. Although ordered for the Applicant, both parties used the services of the interpreter but testified primarily in English.

[3] The Applicant, born in Russia, immigrated to Canada in 1991. He is now age 68. He had a number of jobs, the longest being a manager of a Mr. Sub franchise for ten years. Other employment included vegetable deliveries, factory work with a Chrysler related company and with a solar battery company and delivering pizzas. He claims to have a minimal income at this time although his disregard for disclosure requirements of both court orders and Family Law Rules: O. Reg. 114/99 and his habit of operating with cash transactions makes the determination of his income a challenging task. His testimony reveals that he has been deceptive to both of his wives and perhaps the Russian and Canadian governments as he appears to selectively decide which facts are pertinent to disclose to each to promote his personal cause at the time. He was not a credible witness.

[4] The Applicant married his first wife, Nina Nossov, in Russia in 1971. They came to Canada at different times but have both lived in Canada since 1999. They had one child with whom he has no contact. The Applicant testified that he separated from his first wife in 2006 and obtained a divorce in Russia in 2008. The issue of the validity of the Russian divorce is not before the court, however it is questionable whether this divorce is recognized in Canada as both the Applicant and Ms Nossov appear to have been ordinarily resident and domiciled in Canada at the time of the Russian divorce. The relevant provision from the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) is as follows:

22(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

[5] Rosanne Adams, a lawyer, testified that her law firm has represented Nina Nossov, the first wife, in ongoing litigation with the Applicant since 2007. She testified that:

a) her client was not aware of the 2008 Russian divorce until contacted by counsel for the Respondent in this case in 2016; b) the Applicant obtained a mortgage on the matrimonial home from his marriage with Nina Nossov without obtaining her consent; c) the Applicant failed to pay the amounts owing to Ms. Nossov for spousal support ($1,925/month) or the equalization of $109,582 such that the matrimonial home was vested in the name of Nina Nossov; d) the Applicant obtained an order terminating spousal support on November 13, 2015, through a motion to change, served substitutionally, even though counsel had not changed her office address. Neither Ms. Adams nor her client received the notice; and e) the Applicant and Ms. Nossov are presently involved in litigation in which he seeks to rescind his arrears of spousal support and in his Dispute Resolution Case Conference brief claims an equalization.

[6] Should the divorce of the Applicant and Nina Nossov be recognized in Canada?

[7] The Respondent in this action, Olga Shilo, immigrated from Israel. She is age 60. While trained as an ophthalmologist in Israel, she did not receive her licence in Ontario and thus has worked as an assistant to an ophthalmologist since 1998 with a planned imminent retirement at age 60 due to health issues.

[8] The parties met in 2008 when they both owned residential real estate in the Greater Toronto Area, specifically Brampton and Richmond Hill. The Applicant had told the Respondent that he was divorced with one child. He was estranged from his child. The Respondent was a widow with one child.

[9] The Respondent purchased a new residence in December 2009 while the parties were dating but before they cohabited or married. She financed the property entirely on her own despite the suggestions by the Applicant that he was involved with this purchase. His name appears on none of the purchase documents. The mortgage representative from the bank who testified, Dimitri Alexopoulos, did not remember him and had no notation of him in his file despite the fact that the Applicant testified that he was in attendance during the negotiations and the mortgage approval was based partially on his income.

[10] The parties married on December 17, 2010. As with many couples during the dating process they had travelled together and gradually moved in with one another at the Respondent’s residence although that was not fully completed until after the marriage. The Applicant returned to Russia after the marriage due to an attendance requirement to maintain an apartment.

[11] After the marriage the Respondent paid the ongoing expenses on her house. The Applicant claims to have made substantial contributions to the household. He was to contribute $1,000/month to the household but quickly defaulted on that verbal agreement. He has no receipts or bank statements to prove payments that he made suggesting that he deals in cash. Similarly with house costs for maintenance and renovations or the $20,000 in cash that he alleges he gave Olga, he has no receipts. He does not even have any official documentation such as a driver’s license or account showing that he resided in her residence at any time.

[12] The parties got into a dispute on January 5, 2012, less than 13 months after the marriage. The Applicant became drunk at the Respondent’s birthday party, become loud, made anti-Semitic remarks and ripped the Mezuzah from the entrance. The party ended as did the marriage. The parties separated and he moved into the basement, not having another place to go.

[13] The parties filed a joint application for divorce on November 6, 2013. The Applicant suggests that this divorce was really a sham that they went through on the advice of an accountant. Again he has provided no proof of this unusual allegation other than his bold statement which is denied by the Respondent. Why did he not call the accountant as a witness? The divorce was granted on December 13, 2013. There is no suggestion that the Applicant was pressured into going through the Divorce process of which he was an equal participant.

[14] The Applicant remained living in the basement until July 2015, when the Respondent sold the house.

Relief Sought

a) Set aside the Divorce

[15] On August 27, 2015, almost two years after the divorce judgment, the Applicant applied to set aside the divorce, claiming in his pleadings, that the Respondent had provided a false date of separation. The Respondent has denied this allegation. The Applicant was a joint Applicant with the Respondent for the divorce, signed the Application for the divorce and was the only one who signed the Affidavit of Divorce.

[16] The evidence of the Respondent was more credible than that of the Applicant who seemed to tailor his evidence to support his position.

[17] The divorce will not be set aside.

b) Equalization

[18] The parties separated on January 5, 2012. The parties were divorced on November 13, 2013. This Application was commenced on August 27, 2015, within the limitation period set out in the Family Law Act, R.S.O. 1990, c. F.3:

Limitation

s.7 (3) An application based on subsection 5(1) or (2) shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity; (b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation; (c) six months after the first spouse’s death.

[19] There is a question whether the parties were legally married as the divorce that the Applicant obtained in Russia may not be recognized in Canada. If they were not legally married, then the Applicant is not entitled to an equalization.

[20] If there is a valid marriage, the Respondent submits that an unequal division should be ordered pursuant to s. 5(6) of the Family Law Act,

Variation of share

5(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 spouses' net family property were incurred recklessly or in bad faith; (c) the part of a spouse's net family property that consists of gifts made by the other spouse; (d) a spouse's intentional or reckless depletion of his or her net family property; (e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is 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.

[21] This marriage, if it existed was for a short duration, less than 13 months. The Applicant was dishonest as to his financial state concerning his debts and financial liabilities that existed at the time the parties entered into marriage. The Respondent was led to believe that they each owned their own residence. He failed to contribute the amounts to the relationship that he had pledged and ended up contributing less than the cost of room and board. He provided minimal work for any improvements to the property. The Respondent paid all of the expenses related to the acquisition, preservation and maintenance of the property.

[22] There will be no equalization.

Spousal Support

[23] The Applicant makes a claim for spousal support for a period of cohabitation of less than 13 months.

[24] If the parties were married, the issue would be determined under the Divorce Act.

Spousal Support Orders

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Factors

(4) 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.

Objective of spousal support order

(6) 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; … (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.

[25] If the parties were not married, the issue would be determined under the Family Law Act.

Obligations of spouses for support

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.

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; (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).

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; (j) a contribution by the dependant to the realization of the respondent’s career potential; (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, (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

[26] There are some similarities in both the federal and provincial statutes as to the objectives of spousal support and the factors to consider in making an order for spousal support. Factors that are relevant in this case are as follows:

a) This was a marriage or relationship of short duration. b) The Applicant did not suffer any economic disadvantage by this relationship. c) The Respondent’s annual income is $56,000 however it is her intention to retire due to high blood pressure and arthritis. d) The Applicant has provided no reason why he cannot return to his former type of employment. e) The Applicant has failed to follow both court orders and the Family Law Rules regarding financial disclosure such that it is hard to determine both his income and his assets, some of which originates in Russia. f) Without full disclosure of his income and his assets it is hard to determine if there is a need for spousal support g) Subsequent to the separation, the Respondent subsidized the housing for the Applicant for 3 ½ years (January 2012 to July 2015) by allowing him to remain in the basement for nominal and irregular rent. This should compensate for any spousal support that may have been awarded to the Applicant as a result of this one year relationship.

[27] There will be no order for spousal support.

[28] The Applicant’s claims are dismissed.

[29] In the event that the parties cannot decide the issue of costs, short submissions (not exceeding 3 pages) together with written offers of settlement may be submitted by April 15, 2017.

Released: March 9, 2017 Ingram, J.