Qureshi v Poojari, 2017 ONSC 4323

COURT FILE NO.: FS-13-391636 DATE: 20170714 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

GHAZAL QURESHI Applicant

- and -

DHANRAJ SURESH POOJARI Respondent

JUDGMENT

D.L. Corbett J.:

[1] This family law trial was short, primarily because Mr Poojari was not permitted to defend financial and property issues as a result of a court order against him, described below. The bulk of the trial evidence concerned custody and access issues, and the resolution of those issues was relatively straightforward. In addition, the parties’ rather unusual domestic history was described in detail by both parties as evidence relevant to divorce and specifically, whether the parties require a divorce from this court or whether they are divorced already by decree from Sri Lanka. This latter issue bears on equalization of property and Mr Poojari’s claim to a constructive trust interest in the matrimonial home, as explained below.

[2] Oddly, the only issues left worth fighting about in this family law trial were the financial and property issues, issues which Mr Poojari was unable to contest, and upon which Ms Qureshi was content to proceed on evidence she has been able to obtain through imperfect disclosure. And, based on the evidence before me, the financial and property issues are the only ones on which the parties have serious disagreement.

[3] Up to the fall of 2016, despite orders to the contrary, Mr Poojari steadfastly refused to provide any child or spousal support to Ms Qureshi. In the fall of 2016, Mr Poojari offered to start paying periodic support. This offer was not accepted, apparently because counsel misunderstood the order. [1] Counsel did not seek to clarify her misunderstanding, and so Ms Qureshi lost the chance to receive some funds starting in September 2016. It is patently obvious that Mr Poojari refused to pay support for almost five years to try to force Ms Qureshi to do what he wanted in respect to the matrimonial home in Toronto, and in respect to other financial issues. Mr Poojari believes that, because the home in Toronto was bought with his money (which it was), that he is entitled to deal with it unilaterally, on the basis of his own sense of what is best for everyone, and he has taken it as an affront to his authority as the father and head of the family that Ms Qureshi has refused to accede to his decisions.

[4] In the fall of 2016, Mr Poojari offered to start paying periodic support. This offer was not accepted, apparently because counsel misunderstood the order. [2] Counsel did not seek to clarify her misunderstanding, and so Ms Qureshi lost the chance to receive some funds starting in September 2016.

Family History

[5] The applicant, Ms Qureshi, was born in Pakistan on December 21, 1978.

[6] The respondent, Mr Poojari, was born in India on July 1, 1976.

[7] The parties met around 2001 in Dubai. Mr Poojari was working in Dubai in family businesses. Ms Qureshi had come to Dubai sponsored by a relative, looking for work.

[8] Soon after they met they started a relationship. They married on March 13, 2003.

[9] Ms Qureshi is Muslim. Mr Poojari is Hindu. Dubai is a Muslim country. It is illegal for a Muslim to marry outside the faith in Dubai. The parties could not marry in Dubai. [3]

[10] In addition to the difficulties for the parties in Dubai, relations between Pakistani Muslims and Indian Hindus have not always been smooth. The parties agree that their match was an unusual one.

[11] The marriage was celebrated in Colombo, Sri Lanka, where public policy and social mores did not preclude the parties from marrying.

[12] After the marriage the parties returned to live in Dubai. They lived together and Ms Qureshi worked in the Mr Poojari’s family business. At some point Ms Qureshi stopped working in the family business and devoted herself to running the household.

[13] The parties’ marriage was a source of stress and potential difficulty for them in Dubai. Mr Poojari’s family, while not being against the marriage in principle, were concerned that Dubai authorities could take action against family business assets if the parties’ marriage became public.

[14] Because of these concerns, the parties returned to Sri Lanka and obtained a divorce there effective February 2006. They then returned to Dubai where, Ms Qureshi says, they carried on as a family as they had done before.

[15] Ms Qureshi testified that nothing changed in their domestic arrangements after returning to Dubai from Sri Lanka. Then, in November 2006, the parties immigrated to Canada as a married couple. One year later, in November 2007, they had a daughter, Teasha. In May 2011 they purchased the matrimonial home, with title in Ms Qureshi’s name, paid for by Mr Poojari. In November 2011, there was an incident of domestic assault in Ontario, and Ms Qureshi puts the date of separation at November 20, 2011, in the immediate aftermath of the assault.

Procedural Issues

(a) Service of Trial Materials

[16] Mr Poojari told the court that he had not received documents served on him for the trial. I am satisfied that the materials were sent to Mr Poojari by registered mail and by email to the addresses listed as Mr Poojari’s address and email for service. There is no explanation why these materials would not have reached Mr Poojari.

[17] Counsel provided Mr Poojari with copies of these materials during the trial. Given the very narrow range of issues in respect to which Mr Poojari was able to participate at the trial, and the absence of serious disagreement respecting that narrow range of issues, I was satisfied that it was not necessary to adjourn the trial a few days. Moreover, Mr Poojari did not seek a brief adjournment. He had a return airline ticket and wanted to return as scheduled to Dubai. I would not have granted a long adjournment given the history of this case. I am satisfied that Mr Poojari was able to absorb the materials he needed to understand in order to participate in the trial on the narrow range of issues in respect to which he was entitled to present evidence and arguments.

(b) Historic Non-compliance with Disclosure Orders

[18] Mr Poojari’s pleadings were struck in respect to financial and property issues. This order was made by Moore J. on December 20, 2016. Mr Poojari was aware of this order shortly after it was made. Mr Poojari did not appeal this order. He did not move to set it aside or vary it in advance of the trial. He did not move to vary it or set it aside at the start of the trial. Mr Poojari did advise me that he was in substantial compliance with his disclosure obligations and that he had produced a great deal of information to Ms Qureshi. He also provided me with information inconsistent with Ms Qureshi’s evidence respecting financial matters. I explained to Mr Poojari that I, as the trial judge, was bound by the order of Moore J. striking out most of Mr Poojari’s pleadings. As the trial judge, I do not sit on appeal from Moore J., and I was required to conduct the trial on the basis of Moore J.’s order.

[19] Mr Poojari indicated that he understood the effect of the order of Moore J., and understood that, as much as he may not agree with that order, he is “stuck with it” for the purposes of the trial.

Substantive Issues

[20] The applicant set out the issues for trial as follows:

Part I: Contested Issues

(i) Child Custody and Primary Residence (ii) Access (iii) Travel and I.D. Documents (iv) Divorce (v) Costs

Part II: Uncontested Issues

(i) Imputation of Income & Income of Mr Poojari (ii) Child & Spousal Support (a) Retroactive Support (b) Prospective Support (iii) Equalization (iv) Matrimonial Home and Dispensing With Spousal Consent

[21] I find it useful to deal with the first four contested issues first, followed by the uncontested issues, followed by the question of costs.

Part I: Contested Issues

(i) Child Custody and Primary Residence

[22] The parties’ daughter, Teasha, was born in Canada in 2007. Teasha is Canadian and has lived her entire life in Canada (although she has travelled extensively with her parents).

[23] Both parties accept that Teasha is going to continue to reside in Canada. This means, as a practical matter, that Teasha will live with her mother and will have access with her father (a) irregularly, when Mr Poojari comes to Canada for visits; and (b) during vacations. Mr Poojari acknowledges that he has been having access with his daughter when he has come to Canada. He is not entirely satisfied with the way these arrangements have been handled, but he agrees that Ms Qureshi has generally supported access when he has been in Canada.

[24] As a practical matter, decision-making for Teasha has to be Ms Qureshi’s responsibility. Again, Mr Poojari seems to understand and accept this: Ms Qureshi is here and he is in Dubai; of course Ms Qureshi has to make day-to-day decisions, be they large or small. Mr Poojari does not wish to be stripped of his custodial status, however. He wishes to be able to obtain information about his daughter from health care providers and schools and wants to be able to assert his views if he concludes that Ms Qureshi’s decisions are not in Teasha’s best interests.

[25] Mr Poojari tells me that he intends to move to Canada one day. That, he says, has always been his plan. Mr Poojari also tells me that he will seek different arrangements for custody and access once he has moved to Canada. My decision is based on current circumstances, as I have described them. If Mr Poojari moves to Canada this will be a material change in circumstances. It will clearly bear on the issue of access: the irregular, ad hoc arrangements that must be in place now could be changed to a regular access schedule if Mr Poojari is available to see his daughter regularly.

[26] Mr Poojari testified about concerns that he has about Ms Qureshi as a parent. I decline to review these concerns here in detail. None are corroborated by independent evidence. These concerns have not been important enough for Mr Poojari to seek a change in Teasha’s primary residential arrangements. Some may arise from Ms Qureshi’s inability to pay for services for Teasha because of Mr Poojari’s failure to pay support. I do not accept that Mr Poojari has real concerns about Ms Qureshi as a parent, overall. On the record before me, I have no such concerns.

[27] Taking all of this into account, order to go on the following terms:

(a) The parties to continue to have joint custody of Teasha, subject to the conditions in this judgment. (b) Ms Qureshi to make all parental decisions for and about Teasha. (c) Ms Qureshi shall advise Mr Poojari promptly of any decisions respecting Teasha that are (i) significant changes from the status quo; (ii) that could significantly affect Teasha’s health, prospects and/or well-being; and/or (iii) that could significantly affect Teasha’s access and/or relationship with Mr Poojari. (d) When Ms Qureshi has an obligation to advise Mr Poojari under subparagraph (c), above, she shall (i) do so by email and, in cases of urgency and importance, by telephone; (ii) do so within a reasonable period of time, given the circumstances. (e) Mr Poojari shall continue to be entitled to receive information to which a parent ordinarily is entitled about Teasha directly from Teasha’s health care providers, schools and educators, and other service providers. (f) Teasha shall reside primarily with her mother, Ms Qureshi, in Ontario Canada, and shall have access with her father as ordered below. (g) This order is premised on the facts that (i) Mr Poojari is resident in Dubai and only occasionally visits Ontario; (ii) Ms Qureshi and Teasha are primarily resident in Ontario.

(ii) Child Access

[28] Mr Poojari acknowledges that access can only take place when he comes to Ontario and during vacation travel times. Currently he believes that he averages 2-3 trips to Ontario each year.

[29] Ms Qureshi acknowledges the importance of Teasha spending time with her father when he is in Ontario. She says that she has facilitated this contact, both in terms of making arrangements on short notice, when Mr Poojari comes to Ontario, and sometimes in respect to foreign travel (when she has travelled with Teasha to spend time with her father and her father’s family in foreign vacation destinations).

[30] I found some of this evidence a little hard to follow, largely because it seemed to be couched in unparticularized generalities. The parties do not have significantly different views on what should happen in respect to this issue. Teasha has a relationship with her father in large measure because her mother has supported that relationship and has taken reasonable steps to facilitate access when Mr Poojari has been in Ontario.

[31] Ms Qureshi has been right to facilitate the father-daughter relationship – it is in Teasha’s best interests, and access is the right of the child. That said, Ms Qureshi has been sorely provoked by Mr Poojari’s failure to pay any support from 2012 to the fall of 2016 (no support has been paid since the fall of 2016, but I do not consider this end period because of the confusion surrounding the offer to start paying, described above). The parties had a high standard of living in Dubai. Mr Poojari’s family is wealthy. Mr Poojari earns a good income and can provide for his family. And Ms Qureshi knows all of these things. The obvious inference is that Mr Poojari is seeking to use his superior financial power to exercise control over his wife and daughter, and Ms Qureshi knows that this is the case. Mr Poojari needs to come to terms with the fact that his strategy is a losing one under the laws of Ontario. It does not bear on the court’s order for child access, but it will affect his relationship with his daughter as she gets older.

[32] One example explains this observation. Mr Poojari had access with Teasha during the trial. Mr Poojari paid (or offered to pay) Teasha’s outstanding cellphone bill so that her service could continue or be restored (I am hazy on the details but the essence was that the bill had been unpaid for some time). Teasha did not seem appropriately grateful to her father for his generosity on this issue and, to the contrary, almost seemed upset and angry that he had helped her out in this way. I tried to explain it to Mr Poojari. His daughter understands the circumstances because they are part of her life too. Her cellphone bill was unpaid because her mother could not pay it off. Her mother could not pay it off because her mother was not receiving any support from Mr Poojari. Having Mr Poojari arrive and instantly offer to pay the bill made it clear to Teasha that her father can afford to support them and chooses not to do so. Rather than being a mark of generosity, Mr Poojari’s offer was evidence of his manipulative use of his financial power. A ten year old girl has more than enough sophistication to understand these things without coaching: they are the reasons why her friends have active cellphones and she does not. My remarks are intended to be prophylactic rather than accusatory, the sort of things a lawyer might counsel his client, or a judge might share in a case conference. Here they arose in my view as a trial judge, and I consider them worthy of comment, even though they do not change any of the results of this case.

[33] Taking all of this into account, access order to go as follows:

(a) Mr Poojari shall have reasonable access with Teasha when he is in Ontario, to be arranged with Ms Qureshi as far in advance as is reasonably possible. (b) This access shall respect Teasha’s needs (i) to be in school during regular school times and (ii) to keep a reasonable schedule of sleep and extracurricular activities, balanced with (iii) the need to be flexible to facilitate Teasha’s relationship with Mr Poojari in the limited times that Mr Poojari is able to be in Ontario. (c) Mr Poojari should have access with Teasha via skype and email and/or other similar technological means that are not monitored or recorded by Ms Qureshi. (d) Mr Poojari shall have access with Teasha during vacation times for Teasha in locations outside Ontario provided that Mr Poojari shall not take Teasha or allow her to be taken into any jurisdiction that is not a signatory to the Hague Convention and provided that Mr Poojari complies with all the terms of this judgment related to travel and ID documents. The times and locations shall be matters to be agreed between the parties, including appropriate safeguards to ensure Teasha’s return to Canada. (e) The parties shall speak well of each other and shall not criticize each other to or in front of Teasha.

[34] Mr Poojari needs to understand that he should not criticize Ms Qureshi to Teasha. If he does so, Teasha will take it badly and likely report the conversation to her mother. This would be only natural. Teasha, as a child, does not want to be caught in a conflict between her parents, and definitely does not want to hear bad things about one of her parents from the other. But if the “chips are down” Teasha, at age 10, having lived the last six years almost exclusively with her mother, is almost certainly going to take her mother’s side. Again, this would only be natural. And it would not be changed by financial inducements, exercises of parental or patriarchal authority, or criticisms of Ms Qureshi. I say these things in this case because (a) Mr Poojari no longer has the benefit of counsel; and (b) his conduct during the time the trial was going on suggests that Mr Poojari needs to hear these things. I believe that Mr Poojari is sincerely concerned about his relationship with his daughter and wishes to see it prosper. I believe that Ms Qureshi is largely supportive of this goal. And I believe that the parties have all been under enormous cultural pressure that has led them to a state of some confusion and added difficulty.

(iii) Travel and I.D. Documents

[35] At the start of the trial the expressed concern, from both sides, was that the other side might take Teasha to a place where the other parent would not be able to get her back (ie countries that are not signatories to the Hague Convention). By the end of the trial they had both agreed on terms for foreign travel that would preclude either party from taking Teasha into any country that is not a signatory to the Hague Convention. Order to go on the basis of that consent.

(iv) Divorce

[36] This is perhaps the strangest issue in the case. And at this juncture, given the position of the parties on financial issues, not much turns on it from a practical perspective. Nonetheless, it is important for the parties.

[37] The parties have had a difficult journey. They both recognize this. Based on everything I saw and heard during the trial, and my observations of the conduct of the parties in each other’s presence, it is clear to me that this relationship was a genuine reflection of the parties’ love for one another, and a genuine desire to make a life together in circumstances where both parties knew, in advance, that there would be difficulties.

[38] It is clear to me that each side has hurt the other side, in different ways, and that both sides still feel that hurt. There have been extensive efforts at reconciliation and I believe that both parties have approached those negotiations sincerely, hoping that their efforts would succeed. And I believe that there remains residual affection and respect between the parties.

[39] The divorce was faux. It was so that Mr Poojari could deny the marriage in Dubai. The relationship was not changed, and Mr Poojari affirmed it repeatedly afterwards. The parties cohabited afterwards, immigrated as a couple to Canada afterwards, and had a child together afterwards. Mr Poojari bought a house in Canada and put it in Ms Qureshi’s name. There is no evidence contrary to the proposition that the parties did not truly intend to divorce. I refuse to recognize the Sri Lankan divorce.

[40] The parties meet the requirements for a divorce in Ontario and they now wish to be divorced; the divorce is granted effective in 30 days.

Part II: Uncontested Issues

[41] I refer to these as “uncontested” because Mr Poojari’s pleadings have been struck on these issues and I did not permit him to adduce evidence on them. I did permit him to make arguments on these issues, based on the evidence properly before the court and the allegations in the application for divorce.

(i) Imputation of Income and Income of Mr Poojari

[42] Mr Poojari works in family-owned businesses. Control of the family business is in the hands of Mr Poojari’s father, in India, but one day it will be Mr Poojari who will likely be in charge of the family’s businesses.

[43] Mr Poojari provided “salary certificates” which showed his income as: $10,818 per month in 2011 ($129,729.60 annually) $12,084.60 per month in 2012 ($145,015.20 annually)

[44] On his financial statement Mr Poojari shows “other benefits” from employment valued at $33,641.90 annually. Mr Poojari does not pay income tax on his income (there is no income tax in Dubai), and so the income figures should be grossed up for use in Canadian family law proceedings.

[45] Ms Qureshi argues that Mr Poojari has understated his income significantly. She testified that in Dubai, the family spent $50,000 monthly and always had plenty of money for expensive foreign travel. Mr Poojari noted that family money was not his money, and trips paid for by his father to have all the family together were not part of his own income.

[46] It is difficult to penetrate close to a correct figure for income in the absence of full disclosure. Given the gaps in the evidence and the ability of Mr Poojari’s family to control the nominal income Mr Poojari receives, I accept Ms Qureshi’s argument that income should be based on 2012 income, plus the figure in Mr Poonari’s financial statement for benefits. This yields a figure of $178,657.10 ($145,015.20 plus $33,641.90). This figure then needs to be grossed up for income tax to produce an income figure for the purposes of calculating child and spousal support. The correct figure is probably considerably higher, but I accede to Ms Qureshi’s request to proceed on the basis of 2012 income.

(ii) Child and Spousal Support

A. Support Arrears

[47] I start with support arrears. I commence the period of arrears on January 1, 2012. That period continues until March 31, 2017 (prospective support will start effective April 1, 2017). Mr Poojari’s income for support purposes is fixed at $178,657.10 throughout this period. Ms Poojari’s income for support purposes was:

(1) $12,465 in 2012 (2) $18,135 in 2013 (3) $18,961 in 2014 (4) $17,086 in 2015 (5) $20,000 in 2016

[48] Based on these incomes, child support for one child has been as follows:

(1) 2012: $2350 x 12 months = $28,200 (2) 2013: $2344 x 12 months = $28,128 (3) 2014: $2392 x 12 months = $28,704 (4) 2015: $2387 x 12 months = $28,644 (5) 2016: $2436 x 12 months = $29,232

These amounts total $150,216 in child support arrears to March 31, 2017.

[49] In her calculations, Ms Qureshi has calculated a varied amount of spousal support each year, based on the precise amounts of her income and the Spousal Support Advisory Guidelines (“SSAG”). I would not calculate spousal support in this way. I fix spousal support at $5,500 per month for the purposes of calculating spousal support arrears, a figure close to the average of SSAG support figures for 2012 – 2015. I would not adjust in 2016, though Ms Qureshi’s income was slightly higher starting that year (based on her estimates). The changed income was, no doubt material for Ms Qureshi compared to the income she had been earning before, but it is not a material change relative to overall family finances and the range of support to which she is entitled.

[50] Therefore, I would calculate spousal support arrears at $5500 per month, for 63 months. To March 31, 2017. This leads to a total of $346,500. I would not apply a tax discount to this amount, even though it is awarded on a lump sum basis, since Mr Poojari has not paid taxes on this amount of income retained by him over the period in question.

[51] In the result, total support arrears to March 31, 2017 are $496,716. I order Mr Poojari to pay this amount to Ms Qureshi forthwith.

B. Prospective Support

[52] Commencing April 1, 2017, I order prospective child support at $2436 per month (based on an imputed income of $178,657.10 for Mr Poojari), payable by Mr Poojari to Ms Qureshi on the first day of each month.

[53] Commencing April 1, 2017, I order prospective spousal support at $5250 per month (based on Mr Poojari’s imputed income of $178,657.10 and Ms Qureshi’s estimated income of $20,000), payable by Mr Poojari to Ms Qureshi on the first day of each month.

(iv) Equalization

[54] Since I have concluded that the Sri Lankan divorce ought not to be recognized in Ontario, in all the circumstances of this case, and that the parties are entitled to a divorce now, the parties are also entitled to equalization of property under the Family Law Act.

[55] Ms Qureshi testified to a broad range of assets and her belief that Mr Poojari is a very wealthy man as a result of his interests, direct or indirect, in his family businesses. The disclosure issues make it difficult to wrestle this issue to the ground.

[56] Notwithstanding her evidence that Mr Poojari has substantial assets that have not been disclosed in this proceeding, Ms Qureshi seeks equalization on the following basis:

(a) The matrimonial home is her asset, title being held in her name alone. (b) Ms Qureshi has listed the home’s market value on the valuation date ($1.25 million), and the mortgages that existed at that time as the encumberances against it. (c) Ms Qureshi has accepted Mr Poojari’s statement of the value of his business in Dubai, in the amount of $168,274. She believes it is worth much more, but she prefers to conclude matters on the basis of the amount stipulated by Mr Poojari.

[57] Based on all of these numbers, and accepting the other figures in Ms Qureshi’s statement of net family property (which have not been contested in light of the order of Moore J.), this leaves Ms Qureshi with sole ownership of the matrimonial home, and with Ms Qureshi owing Mr Poojari a equalization payment of $102,554.87.

[58] The amount of the equalization payment shall be set off against Mr Poojari’s outstanding support arrears. The balance of the arrears shall be subject to collection by the Family Responsibility Office.

[59] This judgment does not affect and does not include the condominium in Dubai, which is subject to separate legal proceedings between the parties in Dubai.

(v) Sale of matrimonial Home

[60] Mr Poojari’s claim to a constructive trust interest in the matrimonial home has been struck out by the order of Moore J. In the alternative, if I have construed the effect of Justice Moore’s order over-broadly, then there is no evidence before me to establish the constructive trust claim and it is dismissed. Further and in any event, in view of my decision on the issues of divorce and equalization of property, there can be no subsisting trust claim for this matrimonial asset.

[61] Title to the house is in Ms Qureshi’s name, and by this judgment she is no longer a spouse of Mr Poojari’s. Order to go that Ms Qureshi may deal in any manner with the matrimonial home without requiring a signature from Mr Poojari.

Judgment and Costs

[62] Judgment to go in accordance with these reasons. Counsel for Ms Qureshi may prepare the order for my signature. Approval of form and content dispensed with, though counsel shall provide Mr Poojari with a copy of the draft judgment. Costs throughout to Ms Qureshi fixed in the amount of $80,000, inclusive, a reasonable figure for all the work required to bring this matter to a conclusion. These costs shall be paid as support and are collectible by the Family Responsibility Office.

D.L. Corbett J.

Released: July 14, 2017

Footnotes

[1] Although it is not entirely clear, it appears that counsel understood the offer to require Ms Qureshi to waive some or all of her claims to support arrears in order to receive support commencing in September 2016. That is not how I read the offer. Counsel acknowledged that the mistake may have been hers, and that as a result the court cannot draw an adverse inference against Mr Poojari from September 2016 onwards.

[2] Although it is not entirely clear, it appears that counsel understood the offer to require Ms Qureshi to waive some or all of her claims to support arrears in order to receive support commencing in September 2016. That is not how I read the offer. Counsel acknowledged that the mistake may have been hers, and that as a result the court cannot draw an adverse inference against Mr Poojari from September 2016 onwards.

[3] I accept the parties’ uncontested evidence on these points.