Court File and Parties

COURT FILE NO.: FS-14-4203-00 DATE: 2017 05 12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ann Badrinarayan Applicant P. Buttigieg, Counsel for the Applicant

- and -

Rabindra Badrinarayan Respondents Jesse Schmidt, Counsel for the Respondents

HEARD: 14 April, 2017

REASONS FOR JUDGMENT

TRIMBLE J.

[1] Mr. and Mrs. Badrinarayan married on August 25, 1985. They separated on August 4, 2011 and divorced on August 17, 2012. Their union was of 26 years, to date of separation. They had four children: Andrew, DOB July 25, 1985, Matthew DOB May 23, 1986, Tristan DOB June 7, 1988, and Nicholas DOB March 13, 1992. At the time of their separation, all of the children were independent.

Is this Motion a Motion for a Final or Interim Order?

[2] This motion was originally brought by Mrs. Badrinarayan as a motion for interim support and equalization of net family property. Justice LeMay, by endorsement dated 25 November, 2016, ordered that the question of spousal support proceed to a two-day trial in which the affidavits filed in respect of the motion would constitute the parties’ examinations in chief, and only cross examination would be conducted at trial.

[3] Initially, Mrs. Badrinarayan took the position that the motion was for interim support. However, after reviewing Justice LeMay, J.’s endorsement and the final order, she conceded that the motion was for a final order respect to spousal support. The application, however, would continue with respect to equalization of net family property.

Procedural history

[4] The unwinding of this couple’s relationship has moved at a snail’s pace. As indicated, they separated on August 4, 2011. On December 15, 2011, the husband filed for a simple divorce. It was granted, unopposed, on August 17, 2012, notwithstanding that Mrs. B. was aware of the application at least by December 26, 2011.

[5] The jointly-owned matrimonial home was sold on June 22, 2012, with the proceeds of the sale being split between the parties, with each receiving approximately $230,000. It is of note that between the date of separation of August 4, 2011 and the sale of the property on June 22, 2012, Mr. Badrinarayan had finished paying off the mortgage.

[6] In July, 2013, Mrs. Badrinarayan’s lawyer wrote to Mr. Badrinarayan demanding that he pay spousal support and enter discussions about equalization of net family property. Mr. Badrinarayan did not respond to this. At trial he gave two explanations for this. At one point he said that he merely waited for Mrs. Badrinarayan to say what she wanted. At another point he said that he thought the two spouses had reached an oral agreement that all property and support issues were settled when they split the equity in the home.

[7] The matter went dormant again until September 12, 2014 when Mrs. Badrinarayan commenced her application. On October 10, 2014, Mr. Badrinarayan filed his answer.

[8] The matter went dormant again until September 26, 2016 when Mrs. Badrinarayan requested a case conference. The case conference was held before Donohue, J, on June 14, 2016. She gave leave to bring a motion for spousal support on July 26, 2016, and made a production order.

[9] On July 26, 2016 Mrs. Badrinarayan’s spousal support motion was not placed on a list because it was not confirmed. It was rescheduled for October 27, 2000 2016 but adjourned on consent to November 10, 2016. On November 9, 2016 the court was advised that on consent, the motion was adjourned to November 17, 2016.

[10] Ultimately, the motion came on before LeMay, J. on November 25, 2016. He ordered that this motion, insofar as it claimed support, would be the subject of a focused two day trial of an issue the week of April 3, 2017. He set a timetable for materials to be filed. He ordered that the affidavits filed would be the examination in chief of the audience and that they be cross examined, only, at the trial. Mrs. Badrinarayan asked LeMay, J. to make an order for interim support, without prejudice. He declined to do so.

Undisputed Facts

[11] Mr. and Mrs. Badrinarayan were high school sweethearts. They began dating when she was 14 and he was 15. Mrs. Badrinarayan was pregnant when she was 16, and delivered her first child when she was 17. They married two months later, after Andrew was born. Both finished high school and both entered the workforce.

[12] During the marriage, both Mr. and Mrs. Badrinarayan worked, with short periods each of unemployment, only when they were laid off or made redundant. Mrs. Badrinarayan appears to have been unemployed from mid-2002 until very early in 2004. During that time, however, the couple bought from Mr. Badrinarayan’s sister the inventory of Mr. Badrinarayan’s sister’s convenience store, and attempted to run the convenience store for themselves. They were not successful and abandoned business.

[13] During the time that they own the convenience store, Mr. Badrinarayan continued to work full-time at his 9 to 5 job and then worked at other hours in the store. Mrs. Badrinarayan was assisted by her sister and her mother in the store.

[14] Mrs. Badrinarayan began working as a medical secretary in March 1989 through to August 1990. After a short period of unemployment, in December 1990 she began to work for Baxter Corporation, leaving in June 2000. While there, she started in the accounts receivable department then moved into general accounting, and ended her career as a financial analyst. From June 2000 the June 2002, she was a financial analyst in inventory for Source Medical Corporation.

[15] Mrs. Badrinarayan returned to the workforce in February, 2004, following the family’s attempt to run the convenience store. From then to September 2004 she worked as a financial analyst administrator with Impact Auto Auction, on contract. In September 2004 she commenced as the operations administrator for Metro Canada Logistics in Brampton. In May 2008 she entered another period of unemployment which ended in November 2008 when she became the administrative assistant at EagleBurgmann Canada Inc. She remained there until July 2009. She then appears to have been off for another year.

[16] In August 2010 she became a property administrator with Bentall Kennedy Canada LP. At Bentall she was a property administrator which entailed budgeting for designated buildings within her portfolio, collecting rents, and managing the finances for those buildings.

[17] While Mrs. Badrinarayan’s annual income fluctuated because of the periods of unemployment, on an annualized basis her salary during the marriage was never less than $40,000. In her last year of work, her base salary was $45,000. Because of bonuses she was on track to earn $47,000. In addition to her pay, and bonus, at Bentall she had a pension, medical and extended health care benefits, and a stock purchase plan. Year to date, at the time she left Bentall in July, 2011, she earned as wages $24,633.48, but declared in her income tax return income for the year $27,464.

[18] Mrs. Badrinarayan admitted the following in cross-examination:

a. She never lost or gave up a career opportunity because of the marriage. b. She never turned down employment because of the marriage. c. Her career was never compromised by the marriage. d. She never had to relocate to benefit her husband’s career. e. She never had to give up a promotion to benefit her husband’s career. f. She never had a reduction in her earnings or earning capacity because of the marriage. g. She left employment with Bentall in the summer of 2011, after separation, because she resigned. h. During the marriage, her family was supportive and provided childcare for her. She was not required during her marriage by her husband, by agreement, or by circumstances, to stay home and raise children. i. She has no evidence, other than her own, to support her claim that she had the sole responsibility for taking care of the children.

[19] Mr. Badrinarayan also worked consistently throughout the marriage. After graduating from high school in 1985, until August 1987, he worked and took computer and systems analyst courses. He obtained a computer programming diploma at DeVry Institute of Technology. During this time, also, Mrs. Badrinarayan received her training at college as a medical secretary.

[20] From July, 1985, Mr. Badrinarayan was a senior system administrator/ programmer/analyst for National Book Services. In August 1994, he was let go because of company restructuring. He was given a separation package which replaced his wages until he found new work.

[21] In November 1994, Mr. Badrinarayan began as a senior systems analyst with the KTS Systems Group. This was a “9-to-5” job which paid approximately $45,000 a year. The family supplemented their income by renting a basement apartment in their house at the time.

[22] While Mr. and Mrs. Badrinarayan worked, Mrs. Badrinarayan’s mother and Mr. Badrinarayan’s sisters watched the children. According to Mr. Badrinarayan, Mr. and Mrs. Badrinarayan shared household responsibilities equally, as between them, although her parents also did some tasks. The couple would come home in the evening and, together, cook the evening meal.

[23] In July 1985 Mr. Badrinarayan left KTS for CanCom Business Network – Mobile as a senior UNIX system specialist. In this job he traveled two or three times a year, two or three days each time, traveling around Canada to various locations providing software support. He received some overtime when traveling.

[24] From May, 1998 until February 2004, Mr. Badrinarayan was employed by Fujitsu Technology Solutions as a senior systems engineer. He moved for slightly better pay.

[25] From February 2004 until today Mr. Badrinarayan is employed as a senior systems engineer with Oracle Canada. Originally the company was named Sun but was renamed during the time of his employment. Again this was a 9-to-5, Monday to Friday job. Travel was local, for the most part. They had flex – office capabilities which means he could work two or three days each week at home. In addition, he would have days that he was on call, meaning he would wear a pager and have to respond to all calls that came to him. Most calls from customers were dealt with eye way of telephone at. Regardless of the number of calls he received, he was paid overtime for these days.

[26] Mr. Badrinarayan’s income from his employment alone was as follows:

Year	T4	Net Rent or other inc	Gr. Business	Net Business	Dividend	Cap. Gain	Total Inc.
2000	96,418			(5,751)			82,195
2001	98,179			6,000			90,006
2002	94,401			5,000	16,446	(53,955)	32,098
2003	100,056			114,687	(84,708)		15,348
2004	99,277			36,844	57,032	(37,226)	99,084
2005	139,643
2006	130,338
2007	112,108		241		125		112,474
2008	123,576
1009	124,585
2009	127,616		294		344	581	128,835
2010	112,789		10		3,927		116,726
2011	115,335		896		6189	3,652	125,117
2012	111,019		7,973		9,396		128,388
2013	110,206		(17,748)		7,918	9,030	109,406
2014	110,855		(10,975)		9,050	12,630	121,561
2015	108,593		7,312	(24,435)	10,042	6,698	100,899
2016	110,915

[27] During the marriage, the couple put all of their money in a joint bank account out of which all family expenses were paid. They were completely integrated economically. They were interdependent. During their marriage, they own three houses, sequentially. They own them jointly. Neither one nor the other of Mr. or Mrs. Badrinarayan was responsible for specific expenses.

Disputed facts

[28] Mr. and Mrs. Badrinarayan disagree over certain issues. Mrs. Badrinarayan says that she did most, if not all the cooking, cleaning, and child rearing responsibilities. Mr. Badrinarayan disagrees. He says that much of the housework was done by those people who were minding the children while Mr. and Mrs. Badrinarayan worked. To the extent that chores around the house remained undone by those people, Mr. Badrinarayan says that he and his wife shared them relatively equally. He says that they shared the cooking. They would come home from their respective jobs and prepare the evening meal, often starting at 6:30. He says that he was an involved father.

[29] There is no doubt that Mrs. Badrinarayan sacrificed some time from work in having the children, although no evidence was provided respect to how long, if at all, she was off work. It is reasonable that she would have taken some time, however short, to recover from giving birth to each of her children.

Separation

[30] Mr. and Mrs. Badrinarayan agree that they separated on August 4, 2011. The cause of their separation, although unimportant to the issue of support, consumed a fair amount of paper in the written record and time at the hearing. Mr. Badrinarayan says that his wife “abandoned” her marriage, her husband, and her children, to live with her new partner in Trinidad.

[31] Mrs. Badrinarayan says the number of things which are not wholly consistent. First, she claimed that there was mental abuse during the marriage which caused her to suffer from psychiatric issues. She also said that the psychiatric issues led to a short period of disability from work immediately before she left Bentall in May, 2011. Her own evidence was vague in this respect. She produced no medical or psychiatric evidence to support it. I do not accept it.

[32] She also said that Mr. Badrinarayan was having an affair before she began to see her later partner, albeit during the marriage. Mr. Badrinarayan was not examined cross-examined on this issue. In any event, it is an important.

[33] Mrs. Badrinarayan described her relationship with Mr. Devanand Indersingh (Davey) in several different ways. I conclude, that she re-partnered with Mr. Davey. She says, however, that as of the time she left the matrimonial home she had “developed a friendship with the individual who later became my boyfriend.” In another affidavit she said that when she was staying in Trinidad (she admitted to spending the time 50-50 between Trinidad and Canada) she lived “at Mr. Davey’s residence.” In her cross examination she referred to Mr. Davey as a “friend” and “partner”. Ultimately, she said that when she was in Trinidad she stayed with Mr. Davey, and when in Canada, with her mother. The most telling of her evidence was that, when she was questioned why she boarded a plane to Trinidad on the same day that she left the marital home, she said that she wanted to go to Trinidad to start her new life with Mr. Davey.

August, 2011 to January 1, 2016

[34] During this time, Mrs. Badrinarayan spent her time roughly equally between Trinidad and Canada. She admitted in her cross examination that during this period she was unable to hold down a full-time job. No one would employ her given her commuter lifestyle. She conceded that she voluntarily left her employment at Bentall the end of May, 2011, to start her new life with Mr. Davey. She said that, in order to live, she began to make withdrawals from the high interest savings account containing her share of the proceeds from the sale of the family home and that she never earned more than $3000 in income after the date of separation. Her evidence in this respect is suspect. She never produced statements for her bank accounts. The only thing she produced was statements of account for the investment account into which she placed most of her share, of the home equity. The only bank statement she produced begins in March 2016.

[35] Records show that Mrs. Badrinarayan received almost $230,000 from the real estate lawyer as her share of the house equity. She received perhaps another $5000 as her share of the hold back. The bank statements for her investment account show that by April 1, 2013, eight months after separation, the fund had reduced due to $201,000. The records show periodic withdrawals from the investment account which align, for the most part, with her trips to Trinidad. By the end of October, 2015, when Mrs. Badrinarayan says that her relationship with Mr. Davey ended, her investment account contained approximately $160,000. Therefore, between July 1, 2012 and October 31, 2015, Mrs. Badrinarayan had depleted her fun by $80,000.

[36] Mrs. Badrinarayan used her investment account statements as support for her position that Mr. Davey did not support her. She says that she did not share in Mr. Davey’s income yet at the same time says that he left money for household use when he was traveling. Even though Mrs. Badrinarayan didn’t receive any money directly from Mr. Davey, it appears on all of the evidence that he was she lived at his expense.

[37] Mrs. Badrinarayan’s investment account shows a change in her withdrawals beginning in 2016. In total, she redeemed $85,000 in 2016. Approximately $52,000 of this, however, was not used for personal expense. Rather, she bought two cars for, and loaned approximately $20,000 to various family members.

[38] Mrs. Badrinarayan conceded that Mr. Davey was an engineer and owned his own house in Trinidad and a house in Canada. He also owned to houses at two cars in Trinidad. While his income was never disclosed (because she didn’t ask for it), his income clearly allowed him to maintain a very comfortable lifestyle. Mrs. Badrinarayan advised that since Mr. Davie worked in the oil fields offshore, he paid no tax on the income that he earned.

[39] Mrs. Badrinarayan confirmed that she did nothing with her share of the house equity other than pay it into a high interest savings account. She did not invest in any negotiable instruments or real estate.

Credibility

[40] Much of the evidence in this case is the evidence of the parties with little supporting or corroborating evidence. Much of their evidence diverged widely. Most of the findings that I make in this judgment arise from uncontroverted evidence either given by the parties or from the documents produced. For the reasons that follow, I find that neither of the parties is particularly credible. Where I have made a finding based solely on the evidence of the parties, I have preferred the evidence of Mrs. Badrinarayan over Mr. Badrinarayan.

a. Law re-credibility

[41] In assessing credibility, I direct myself to the following considerations:

a) The demeanor of the witnesses. Findings of credibility, however, should not be made on demeanor alone. b) Does the evidence make sense in light of the preponderance of probabilities which a practical and informed person would find reasonable given the particular place and condition? Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.). c) Does the evidence have an internal consistency and logical flow? R. v. C.H. (1999), 182 Nfld. & P.E.I.R. 32 (Nfld. C.A.). d) Is the evidence consistent with the witness’s other statements? How significant are the differences, and are they adequately explained? R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788. e) Is there independent confirming or contradicting evidence? R. v. Khan, [1990] 2 S.C.R. 531. f) Does the witness have a motivation to lie or exaggerate? The witness’s motivation to lie must be greater than his/her interest to win or lose the case. R. v. S.D. 2007 ONCA 243, 218 C.C.C. (3d) 323.

b. Mrs. Badrinarayan

[42] Mrs. Badrinarayan’s evidence was imprecise and evasive. She was evasive with respect to describing a relationship with Mr. Davey. She was imprecise and evasive with respect to her alleged disability shortly before she left Bentall. A finding of disability requires expert evidence, either from a doctor, psychiatrist or psychologist. No admissible evidence was produced from any of these professionals. There was nothing produced support of Mrs. Badrinarayan’s claim to have a psychological condition that prevented her from working. The first time that she raised any psychological disability was from the witness box.

[43] There was no admissible evidence with respect to any physical disability. She produced a letter dated July 12, 2006 from her general practitioner which says quote and has met mechanical low back pain which has prevented her from working since 2011, and that she cannot sit for extended periods of time. This evidence is not admissible. Absent a notice under the Evidence Act a medical report attached as an exhibit to an affidavit (other than by the physician signing the letter) is not admissible for the truth of its contents. Even if it were, I have doubts about its accuracy. The flight to Trinidad is between five and six hours. Mrs. Badrinarayan gave no evidence of having difficulty with those flights. Further, she has not applied for ODSP nor does it appear from her income tax returns that she is receiving Canada Pension Plan or other disability payments. I reject claim of disability.

[44] Mrs. Badrinarayan was also evasive when it came to her relationship with Mr. Davey.

[45] Although Mrs. Badrinarayan abandoned any claim for support before August, 2016 attempted in her material to paint the picture that she was in need of support after the separation and that when she did the Canada she was forced to live with her mother and/or children. She also denied that Mr. Davey was supporting her.

c. Mr. Badrinarayan

[46] Mr. Badrinarayan’s evidence appears to be driven by money. He was cross-examined extensively on his income tax returns and statements he made therein. What he says it at any given time appears to be designed to maximize his economic position with the person to whom he makes statements.

[47] Many inconsistencies were highlighted between his evidence in court and his statements to the government. As a general rule, case law indicates the courts are not police for the tax authorities. The court will not hold against a party the fact that he or she was aggressive in maximizing his or her position with the tax authorities. However, Mr. Badrinarayan’s statements go beyond that. Mrs. Badrinarayan would have me conclude he was being fraudulent. I draw no such conclusion. Whether he is truthful with the government is of no moment in terms of the questions before this court. What are relevant, however, are the inconsistencies. Examples of statements that Mr. Badrinarayan made of that seriously and negatively affect his credibility include:

a. Suzanne, Mr. Badrinarayan’s former neighbour at the matrimonial home, is now his common law partner. He says that each of them contributed $100,000 to the down payment of their current home. Even though he is the only one listed on title, Mr. Badrinarayan says that both he and Suzanne are equal owners of the home. They keep separate bank accounts. Suzanne pays $1000 a month towards household expenses by paying the visa account. He says that her contribution is relatively low because she makes much less than he does.

Mr. Badrinarayan makes unequivocal statements to the contrary it comes to reporting to Canada Revenue Agency about his relationship. Mr. Badrinarayan says in his T1’s since 2012 that he is divorced. The portion of page one of his T1 where he would normally list details of his spouse’s income is left blank. Suzanne says in her tax returns (which Mr. Badrinarayan prepares) that she is separated. That portion on page one of her T1 where she would normally list details of her spouse and spouse’s income is left blank. Mr. Badrinarayan explained this omission as arising from his erroneous understanding that at law a cohabiting person did not become a common-law spouse until after three years of cohabitation. I do not accept this. Based on Mr. Badrinarayan’s explanations of other problems with his tax returns I find that this explanation is little more than a convenient rationalization.

b. In Suzanne’s income tax forms (which he prepares) Mr. Badrinarayan says that he is a landlord and Suzanne is a tenant. He lists on her return a sum of money that she pays in rent. He lists himself as the landlord. There is no lease. There is no proof of any payments being transferred. Mr. Badrinarayan does not declare as income the rent Suzanne declares she’s paying him.

Mr. Badrinarayan’s explanation for this is that Suzanne was paying property taxes and the amount of money that he stated in her return that was paid his rent was in fact the property tax. I do not accept this. Mr. Badrinarayan’s representations in Suzanne’s tax return that she is paying rent are made in that section in which Suzanne is claiming the Trillium benefit. The Trillium is designed to reimburse tenants, partially, for property taxes included in their rent. Mr. Badrinarayan confirms Suzanne is claiming the Trillium benefit.

c. Mr. Badrinarayan knows that the representations he makes about his income are not correct. He knows that when he signs his income tax returns with these intentionally false statements, “it is a serious offense to make a false return” to use the language of the signing portion of the T1. He knows that when he says “I certify that the information given us return and in any documents attached is correct complete and fully discloses all of my income” that he is making a false statement. Further, he knows that when he has Suzanne signed the tax return he has prepared containing what he knows to be false statements, he is exposing her to penalties ranging from interest to fines, to jail.

d. Suzanne is Mr. Badrinarayan’s common-law spouse. Declaring that Suzanne paid rent to Mr. Badrinarayan as the landlord is a deliberate misrepresentation designed so that Suzanne obtains Trillium benefit undeservingly, while avoiding detection by the tax authority by frustrating its ability to cross reference the T1’s.

At trial, Mr. Badrinarayan said that although he is the only titleholder, their home is their joint home and they are, in effect, joint owners. Mr. Badrinarayan has arranged this with the specific purpose of maximizing his tax benefit. Mr. Badrinarayan is the only owner as the sole proprietor of the couple’s printing business which they operate out of the house. He says that this business is theirs, jointly. However, he reports the business as his. In order to minimize (in this case is eliminate) taxable income from the business, he must maximize his deductions. Were he to register the house in both their names, he would only be able to take advantage of half of the deductions. Mr. Badrinarayan also receives dividend, capital gains income and other business income. He needs to maximize his deductions in order to offset other taxable business, dividend and capital gains income.

e. Mr. Badrinarayan claims that he owes to his brother the sum of $57,600. He said that beginning in January 1989, his brother, Frank Badrinarayan, agreed to lend him $300 each month, which he transferred in cash. That loan ended in December 2004, totalled $57,600, and was to be repaid of yet at the end of 2005. Mr. Badrinarayan produced a demand notice dated 8 August 2016. While this document is relevant to property (an issue not before me), it does go to Mr. Badrinarayan’s credibility. The “payment on demand notice” the brother sent on August 8, 2016 is highly suspect. It is dated in 2016 although the debt was payable on January 1, 2005. No demand appears to have been made. No written demand was made in 2005, when the loan was not paid. No demand was made in 2011 following the date of the separation. No demand was made in December 2011 when Mr. Badrinarayan applied for the divorce or following the granting of the divorce in August 2012. No demand was made following June 22, 2012 in the house was sold. Mr. Badrinarayan did not pay it back out of the 230,000 he received from the sale of the house. He did not demand that the real estate lawyer withhold $57,600 to pay the brother. No demand was made following the July, 2013 demand by the plaintiff that they begin discussions about spousal support and equalization. No demand was made following the applicant’s commencement of the application in September, 2014 or following respondent’s filing his answer. No demand was made following the February 2016 case conference. The demand was made, it appears, only after the case conference when justice Donohue permitted motions including emotions for support. Finally, Mr. Badrinarayan’s brother was not called to explain why demands were made at significant steps in this action, and waited until after Donohue, J. set the date for the support motion.

In any event, Mr. Badrinarayan had no need for the loan from his brother. Except in those years where Mr. Badrinarayan suffered losses in his self-employment he continued to make deposits into his RRSP which exceeded the amount he borrowed in that year. All circumstances considered, I do not accept that there was a loan, from the brother to Mr. and Mrs. Badrinarayan.

Entitlement to spousal support

[48] Section 15.2 (6) provides that orders for spousal support can be awarded on a (a) compensatory, (b) contractual, and (c) non-compensatory basis.

Objectives of spousal support

[49] Section 15 (6) of the Divorce Act, provides that spousal support should:

1. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
2. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the spouse of any child of the marriage;
3. Relieve any economic hardship of the spouses arising the breakdown of the marriage; and
4. Insofar far as is practicable, promote the economic self-sufficiency of the spouse within a reasonable period of time.

[50] I will address each of the three kinds of support in light of these objectives, recognizing that no one objective predominates. All four objectives must be balanced in the confines of this case.

Contractual support

[51] Mr. Badrinarayan says that by contract, Mrs. Badrinarayan waived entitlement to support. He says that when they separated, Mrs. Badrinarayan agreed that in exchange for her half of the equity in the house, she would forgo all claims for equalization and support. Mrs. Badrinarayan denies this. Mr. Badrinarayan has the onus of establishing that by contract Mrs. Badrinarayan surrendered the right to claim equalization and support. He has not done so. I find no compelling evidence that a contract of the nature he alleges, existed. There is no document at the time of the agreement, or at the time of the sale and payment of the proceeds that supports the inference of an an agreement. I am faced with his statement that the agreement was reached, and hers that it was not. This is one of those instances where I accept her evidence over his.

Compensatory support

[52] Section 15.2 of the Divorce Act looks at marriage as a joint endeavor. Therefore, where required, orders for spousal support are designed to be compensatory, to bring about the sharing of the property in the relationship and address the advantages or disadvantages that arise to the parties flowing from the relationship.

[53] In Moge v. Moge, L’Heureux-Dube, J. said:

“In short, compensatory spousal support is premised on a marriage being a joint endeavor between spouses. By recognizing the value of non-monetary contributions to the marital union, compensatory support seeks to alleviate the economic loss of the disadvantaged spouse through an equitable distribution the benefit of the marriage.”

[54] She later commented:

“Essentially, compensatory support intends both spouses profit from the joint venture affairs. The question is not what the disadvantage spouse would have achieved had he or she not entered into the marriage rather, the question is what is that spouses contribution to the marriage and was the other spouse this advantage by that contribution if so, does equity demand the sharing of any advantage gained should be the benefit of an event 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. (At para. 45).”

[55] In this case, the parties’ relationship was one of financial interdependence. However, Mrs. Badrinarayan did not give up any pay, advancement, raises, or employment opportunities. She confirmed that when she was unemployed it was because of layoff or restructuring. I note that she did give birth to four children. I accept the burdens that women face in caring for children and that this fact would usually require some compensatory support. I have no evidence in terms of the time that Mrs. Badrinarayan took off work, for example, for maternity leave, and what affect that absence from work had on her earning capacity or ability.

[56] With respect to work around the house and child raising obligations, I have contradictory evidence. Mrs. Badrinarayan said that she was the main caregiver and did most of the caregiving and housekeeping in the family. Mr. Badrinarayan says that they split these tasks evenly. In light of the contradictory evidence in the parties, I cannot accept one or the other’s version of events. Therefore, I cannot conclude on the evidence before me that Mrs. Badrinarayan suffered any economic and that disadvantages from the marriage for its breakdown, or any economic hardship. Conversely I cannot conclude that Mr. Badrinarayan sustain any economic advantages on the marriage or its breakdown.

Non-compensatory support

[57] Non-compensatory support is a residual basis for ordering support quote where it is fit and just to do so.

[58] The Court of Appeal, in Roseneck v. Gowling (2002), 62 O.R. (3d) 789, discussed the various bases of spousal support. Weiler J.A. described non-compensatory support as follows, at para. 65:

Non-compensatory support focuses on the mutual obligation that arises from the marriage itself, the expectations of the parties when they married, and the need to grant relief from hardship flowing from the break-up of the marriage: Bracklow, supra, at paras. 48-49. Thus, non-compensatory support arises where there is an economic dependency that may be due to a variety of factors such as age, illness or disability. It is apparent that these factors need not necessarily be connected to the marriage. Where the marriage is of relatively short duration and there are no children of the relationship, however, economic self-sufficiency carries greater weight when considering the expectations of the parties: Rogerson, supra at 281…

[59] In this case, I am mindful of the Court of Appeal’s instruction in Fisher v. Fisher that economic self-sufficiency with this connotation of economic independence is a relative concept. It should be interpreted not has the ability to meet basic expenses but as the ability support a standard of living that is reasonable having regard to the economic hardships of the parties and the economic partnership the parties enjoyed and sustained during cohabitation and which the claimant could reasonably anticipate afterwards. This requires a look into the parties’ incomes, the standard of living during cohabitation, the parties post separation circumstances the length of their cohabitation and other relevant factors.

[60] As the Court of Appeal stated in Linton (1990), 1 O.R. (3d) 1 (C. A.) at para. 27 – 28:

“Self-sufficiency is often more attainable in short term marriages, particularly ones without children, where the lower income spouse has not become entrenched in a particular lifestyle or compromised career aspirations. In such circumstances lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living. New para in contrast, in most long term marriages, particularly in the traditional long-term ones, the parties merger of economic lifestyles creates a joint standard of living at the lower income spouse cannot hope to replicate, but upon which he or she has become dependent. Any in such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained.”

[61] This is a case of a long term marriage. The parties were married for 26 years and had four children. There was complete economic integration between the parties during the marriage. While both worked during the marriage, Mr. Badrinarayan earned over double Mrs. Badrinarayan’s income.

[62] Therefore, on a non-compensatory basis, I find that Mrs. Badrinarayan is entitled support. She, over 26 years, became used to standard of living based on their combined income of somewhere between 125,000 and $175,000.

[63] In coming to this conclusion, I am mindful that both of the lawyers agreed in argument that had Mrs. Badrinarayan claimed support spousal support at the time that she left the marital home, she probably would have been entitled to it.

The Effect of Delay

[64] Mr. Badrinarayan argues that in delaying claiming support for the time she lived with Mr. Davey, Mrs. Badrinarayan disentitled herself to support on the facts of this case since the delay was long, and not adequately explained. Further, the delay is evidence of the contract that Mr. Badrinarayan says existed. If support is awarded it should be at half the low end of the range. He cites as support for his propositions HJK v. JEB [1997] B.C. J. No. 2705 (B.C.C.A.), Broumas v. Broumas, 1998 ABQB 598, Greaves v. Greaves, [2004] O.J. No. 2522 (S.C.J.), Howe v. Howe, 2012 ONSC 2736, Walker v. Greer, [2003] O.J. No. 3396 (S.C.J.), Archibald v. Archibald 2000 BCSC 1219, Rezel v. Rezel, [2007] O.J. No. 1460 (S.C.J.), Morgan v. Morgan, 2006 NLTD 6, Quackenbush v. Quackenbush, 2013 ONSC 7547 (S.C.J.).

[65] Delay, as a general rule, does not affect entitlement unless the delay is unreasonable. As the Court said in Kripotos v. Kripotos, 2004 BCSC 37:

[102] Although an application for a spousal maintenance may be dismissed because of delay, such a dismissal will not occur unless the evidence shows that the delay is unreasonable, having regard to such factors as the explanation for the delay and the events that have transpired during the delay, including whether the applicant has made reasonable efforts to achieve economic self-sufficiency. See: Hillhouse v. Hillhouse, [1992] B.C.J. No. 2409 (C.A.); Archibald v. Archibald, [2000] B.C.J. No. 1660 (S.C.); and Olsson v. Olsson, [1992] B.C.J. No. 2516 (S.C.).

[66] In Kripotos, the parties were separated for 5 years by the time of trial, and the application was commenced two years before trial. The wife’s explanation for delay was found to be reasonable in that the husband paid support for a period, failed to make disclosure for a time, she depleted her capital. She started to take a course in accounting to improve her skills but could not complete it due to financial circumstances.

[67] In this case, I accept Mrs. Badrinarayan’s explanation for the delay. On the one hand, she lived with another man. She lived off her capital to an extent. When her new relationship failed, she obtained at least one contract position. Further, in not claiming support (to which Mr. Badrinarayan agrees she would have been entitled had she claimed it immediately after the separation), she has saved Mr. Badrinarayan a great deal in spousal support.

[68] I reject Mr. Badrinarayan’s claim that Mrs. Badrinarayan is disentitled to spousal support because of delay. Delay still is relevant to quantum and may reduce it (see Dingle v. Dingle, 2010 ONCJ 731, add’l reasons at 2010 ONCJ 734), which I address below.

[69] Further, Mr. Badrinarayan argues that entitlement to spousal support cannot be founded on need arising from intentional unemployment or underemployment. Mrs. Badrinarayan cannot hold Mr. Badrinarayan responsible for the economic consequences of a decision that was unreasonable in the circumstances, citing see Hodgkinson v. Hodgkinson, 2003 BCSC 1538 and Uzelac v. Uzelac, 2003 BCSC 665.

[70] I agree with Mr. Badrinarayan (see Wilson v. Wilson (1988), 14 R.F.L. (3d) 90 (B.C.S.C.) and Van Gool v. Van Gool (1998), 44 R.F.L. (4th) 314 (B.C.C.A.). So does Mrs. Badrinarayan. She makes no claim for support for the period during which she cohabited with Mr. Davey.

Quantum and duration of spousal support

Mr. Badrinarayan’s Income for Support

[71] Mrs. Badrinarayan takes the position that support should be calculated on Mr. Badrinarayan’s whole income. This includes his T4, dividend, rental, and capital gains income. She says that she supported him during the marriage while he developed his skills as a day-trader and his skills in business, many of which he learned from their failed attempt to run the convenience store. Mr. Badrinarayan takes the position that if support is to be a given, it should be on his income from his T4 sources and renting the apartment in the home. It should not include his income from day-trading, or the rental property he purchased with his share of the equity in the marital residence. That property was acquired after the separation. Further, his business skills he developed after the marriage ended.

[72] Mrs. Badrinarayan also says that most of the deductions that Mr. Badrinarayan has taken against his business income should be attributed back to him. He has been overly aggressive and, at times, on the wrong side of income tax law. For example, he writes off 65% of his current house for the business he runs in the house without adequately justifying that percentage. He says, repeatedly, and that is what he does in terms of deductions against income, is what he’s been told is reasonable. There is no evidence in this regard.

[73] For calculation of future support, the husband’s income comprises his T4 line 150 income. I find that his day trading business and his rental business of the separate rental property do not form part of his income for support calculation purposes. That portion of his income arises from investments he made after the marriage ended. It cannot be said that these sources of income arise from the marriage. Therefore, Mr. Badrinarayan’s income for support purposes is:

• 2014 $110,855
• 2015 $108,593
• 2016 $110,915

Mrs. Badrinarayan’s Income for Support

[74] Mrs. Badrinarayan conceded that in 2011 she walked away from a job that would have paid $47,000 per year and that her jobs generally paid in the range of $45,000.

[75] Mr. Badrinarayan says that I should attribute to her an increase of at least 1% per year, and impute income to her reflecting the fact that her capital sum of $350,000 could have earned income, had it been invested.

[76] I do not accept his position for several reasons.

a. First, with respect to her income from employment, his position requires evidence that Mrs. Badrinarayan would have received increases in her wages. No such evidence was presented, and I am not able to take judicial notice of wage inflation in her line of work. b. Even if I could impute an increase in her wages, I would also have to reduce them for negative contingencies such as the possibility that she would have lost her job in the intervening years. There was no evidence of this. c. Mr. Badrinarayan’s position requires evidence with respect to what investments would have been reasonable, and what those investments would have returned. He led no such evidence.

[77] Accordingly, I impute to Mrs. Badrinarayan today and in the future $47,000.

What is the Quantum of Spousal Support?

[78] Mr. Badrinarayan says the Spousal Support Advisory Guidelines (SSAGs) are purely guidelines; they are not determinative. He says support should be at the low end or below the low end of the ranges set by the SSAGs.

[79] The Court of Appeal, in Slongo v. Slongo 2017 ONCA 272 held that while the SSAGs are guidelines, they should not be departed from except in unusual circumstances (see paragraph 81 – 10). In that case, given the length of the marriage (23 years) and given the age of the wife, the Court held that the Wife was entitled to spousal support on a level commensurate with the standard of living the parties enjoyed during the marriage.

[80] In this case, the SSAG ranges on the incomes above are as follows:

Year	His Income	Her Income	Low -level	Mid-level	High-level
2014	$110,855	$47,000	$1,995	$2,328	$2,646
2015	$108,593	$47,000	$1,925	$2.246	$2,548
2016	$110,915	$47,000	$1,997	$2,330	$2,641

[81] The SSAGs set out a number of factors to consider when determining where, within the range, spousal support should fall. In this case, the following factors are relevant:

a. Mrs. Badrinarayan has no compensatory support claim. b. Mr. Badrinarayan has healthy income from employment, absent any business income or losses. c. Mrs. Badrinarayan has the capacity to earn $47,000 per year. d. Mrs. Badrinarayan has relatively standard needs. e. Mrs. Badrinarayan re-partnered at the time of separation, but that ended that relationship. f. The marriage was long term. g. Both parties worked throughout the marriage, except for periods of unemployment caused by external forces. Such periods were brief. h. Both parties, early in the marriage, earned technical qualifications to improve income prospects. i. Mrs. Badrinarayan, at the time of separation, gave up a job that paid $47,000 that year. At the time of separation, she was approximately 42 years of age. Today, she is approximately 48, and is likely much less likely to be fully employed for the remainder of her working life. This fact, however, is a result of her removing herself from the workforce, and not an effect of the marriage or its end. j. Mrs. Badrinarayan requires an incentive to attain self-sufficiency. Since the beginning of 2015, she says that he has looked for work through agencies, on line sources, and newspapers, and has sent in a large number of resumes and applications. She has only obtained one period of contract employment. Because of my credibility assessment, however, I do not accept that she sent in the resumes and looked as hard for work as she claims. m. Equalization has not been decided, although the net proceeds of the home were divided equally, in July, 2012. n. Mrs. Badrinarayan has not addressed the issue of what support, if any, she might be able to expect from Mr. Davey. This factor has played little role in my decision. Given that the relationship with Mr. Davey was between 4 and 6 years, support from him would have been minimal. Further, I do not know whether he was or is a Canadian resident over whom the Court has jurisdiction.

[82] In my view, based on all the factors prevalent in this case, the range of support should be at or near the lowest end of the SSAG range (see Heimsoth v. Heimsoth, 2009 ABCA 129).

Past Support

[83] For purposes of past support, I fix the support owing at $1,900 per month.

[84] Mrs. Badrinarayan claims support from August 1, 2016, onward. I infer that she concedes that her need began only then because her relationship with Mr. Davey had ended and her capital was largely eroded. I accept this. Therefore, past spousal support from August 1, 2016 to May 1, 2017 is $19,000.00.

Future Support – Amount

[85] For May 1 and June 1, 2017, Mr. Badrinarayan shall pay spousal support of $1,900, directly to Ms. Badrinarayan.

[86] For spousal support from July 1, 2017 and every year thereafter beginning on July 1, Mr. Badrinarayan shall pay support on the following rules:

1. Spousal Support shall be at the low level determined by the SSAGs.
2. Mr. Badrinarayan’s income for spousal support purposes shall be his line 150 assessed income.
3. Mrs. Badrinarayan’s income for spousal support purposes shall be the greater of $47,000 and her actual income.

[87] The parties will exchange T1 and CRA assessments by June 1 of each year commencing June 1, 2017. Spousal support payable for the 12 months beginning July 1, 2017 and on July 1 of every year after shall be determined based on the Rules as above, and the T1 and CRA statements provided in the previous June.

Future Spousal Support - Duration

[88] The SSAGs suggest that the duration of support is indefinite.

[89] In Heimsoth, supra, the Court held that delay was addressed by reducing the amount of spousal support. It held that the duration should continue to be indefinite. In similar circumstances, the support may also be time limited (see Walker Bodnarek v. Bodnarek, 2005 SKQB 462). In a long term marriage, where the dependent spouse is unlikely to achieve self-sufficiency in the foreseeable future, support was indefinite (see Martin v. Martin (2011), 81 O.R. (3d) 503 (C.A.)).

[90] In this case, I have no doubt that but for her removal from the work force for a number of years, Mrs. Badrinarayan would have been self-sufficient by now. Her voluntary self-removal from the work force, and the effect of that withdrawal on her self-sufficiency, is not something that Mr. Badrinarayan should be responsible for. On the other hand, self-sufficiency is not a self-standing goal. It should been seen in the context of the relationship and other goals of support.

[91] In this case, I must consider not only the need to promote Mrs. Badrinarayan’s self-sufficiency, I must also address the hardships arising from the breakdown of the marriage, which have been deferred because Mrs. Badrinarayan re-partnered for a while.

[92] Mrs. Badrinarayan needs time to adjust to self-sufficiency to adjust to her income earning capacity, and to adjust to a new standard of living having enjoyed a much greater standard of living during the marriage. Both parties, in argument, agreed that had she sought support at the time of separation, she likely would have been entitled to it. Mr. Badrinarayan has had the benefit of not paying spousal support since the breakdown of the marriage, which he admits he would have been required to pay. On the facts of the case, Mrs. Badrinarayan’s entitlement to support at the date of separation, had she sought it, would have been on a needs basis, and support would have been awarded to help her transition to self-sufficiency.

[93] Where spousal support entitlement is non-compensatory and therefore ordered to relieve against the economic consequences of the end of the marriage and to allow the recipient to adjust to economic independence and self-sufficiency, time limited support may be reasonable (see Bracklow v. Bracklow, (1999), 1 S.C.R. 420). The husband asks that I make a sort, time limited support order.

[94] I must also consider that Mrs. Badrinarayan withdrew from the work force voluntarily thereby impairing her ability to achieve self-sufficiency. The consequences of her withdrawal from the work force for 4 to 5 years are Mrs. Badrinarayan’s to shoulder, not Mr. Badrinarayan’s.

[95] I have every confidence that Mrs. Badrinarayan will be able to return to the work force and earn $47,000 p.a. I have every confidence that she will achieve self-sufficiency. To give her incentive to do so, I order that Mrs. Badrinarayan’s entitlement to spousal support is to be reviewed, at the instance of either party, not earlier than 3 years from the date of these reasons.

Costs

[96] Unless the parties can agree on costs, I will decide the issue of who should pay whom costs, in writing. Submissions are limited to 10 pages, double spaced, excluding bills of costs and cases. Mr. Badniarayan’s submissions are to be served and filed by 4 p.m., 9 June, 2017 and Mrs. Badnararayan’s by 2 p.m., 13 June, 2017.

TRIMBLE J. Released: May 12, 2017