Geishardt v. Ahmed, 2017 ONSC 5513

CITATION: Geishardt v. Ahmed, 2017 ONSC 5513

COURT FILE NO.: FS-12-1813000

DATE: 20170925

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SUZANNE MARGARET GEISHARDT

Anita T. Kain, Lisa Kadoory and Jonathan Stankowicz for the Applicant

Applicant

• and -

SHAFQAT MONWAR AHMED

Daryl Gelgoot and Jen-Yii Liew, for the Respondent

Respondent

JUDGMENT

D.L. Corbett J.:

Introduction

[1] The parties were married in Jamaica on April 27, 1997.[^1] They separated on June 20, 2005. They were divorced on Jul 28, 2008. They had no children. Their conjugal relationship was 8 years at minimum and, according to the applicant, Dr Geishardt (disputed by the respondent, Dr Ahmed), should include three years of pre-marital cohabitation, for a total of 11 years.

[2] The respondent, Dr Ahmed, is a cardiac surgeon and earns a substantial income. He was born on March 7, 1966 and is now 51 years old. The applicant, Dr Geishardt, is a psychologist but has never practiced her profession. She was born on September 25, 1967, and is now about to turn 50. Dr Geishardt has remarried; Dr Ahmed has been in a new common law relationship which started shortly after separation.[^2]

[3] The parties settled equalization and material property issues in the Separation Agreement.[^3] In this case they principally litigate spousal support and issues arising out of their post-separation financial affairs.

Background

[4] The parties met in 1994 in Montreal, where they had grown up. Dr Ahmed had completed his medical degree and was in the midst of his residency, rotating through Montreal General Hospital. Dr Geishardt, worked at the same hospital. She was part way through her academic career.

[5] Dr Ahmed lived at his parents’ home in the Greater Montreal Area. Dr Geishardt had a small apartment near the hospital. When the two met, they quickly became “serious” about each other. Dr Ahmed frequently spent nights at Dr Geishardt’s apartment when he was on-call at the hospital.

[6] When Dr Ahmed completed his residency in Montreal, he obtained an internship in cardiac surgery at Hyde Park, Chicago, starting in the summer of 1996. This was an intensive three-year program that required Dr Ahmed to live in Chicago and gave him little time to return to Montreal. Dr Geishardt remained in Montreal and completed her Masters degree.

[7] Dr Geishardt did not have immigration status to enter the United States on a long-term basis. To facilitate her ability to be in the United States, the parties decided to marry, something they had already decided they would do at some point.

[8] The marriage took place in the Ocho Rios, Jamaica on April 27, 1997, without family. After that they both live in Illinois until 1999, when they returned to Canada. Dr Geishardt lived in Montreal (working on her Ph.D.) and Dr Ahmed in Toronto (where he worked at St. Michael’s Hospital). The parties did not consider themselves “separated” during this year – they were a married couple living in different cities while Dr Geishardt did her Ph.D. coursework.

[9] Dr Ahmed was recruited into a new cardiac program at Trillium Health Centre, in Mississauga, as one of three original doctors. He started work there on November 20, 2000 and has remained at Trillium as a cardiac surgeon ever since. Dr Geishardt continued her doctoral studies after moving to join Dr Ahmed in Ontario. Dr Ahmed paid most of the cost of Dr Geishardt’s continued studies and encouraged her to pursue her ambition to open a clinical practice in psychology.

[10] Dr Ahmed rented an apartment near St. Michael’s Hospital in Toronto during his fellowship there. He earned a material income that year (around $10,000 per month), but not enough to change his lifestyle dramatically. Once Dr Ahmed began his surgical career at Trillium, his income skyrocketed, and the parties found themselves, suddenly, with a great deal of money. In 2002, they bought a house at 1621 Chesboro Court, Mississauga (the matrimonial home) for about $1.6 million. There was money for fancy cars, expensive vacations, clothes, furniture, and the like. Life was good.

[11] The parties separated in June 2005. Dr Ahmed moved out of the matrimonial home. Dr Geishardt remained in the matrimonial home. The separation was at the instance of Dr Ahmed. From the evidence it seems that Dr Ahmed felt conflicted and guilty about his decision. He promised Dr Geishardt that he would take care of her always.[^4] He took no steps to obtain a divorce. In September 2005, Dr Ahmed bought a condominium in which to live, and did not protest when Dr Geishardt changed the locks on the matrimonial home, effectively excluding him from it.

[12] Dr Ahmed continued to deposit all his income into the RBC joint account, and Dr Geishardt continued to pay all the bills and manage the money for both parties.

[13] Dr Ahmed began a new relationship with Charlene Watley in July 2005. Over time, Ms Watley apparently became concerned that Dr Ahmed had not cut ties with Dr Geishardt, and she pressed Dr Ahmed to obtain a divorce and marry her. It seems that this conversation may have reached a point where Dr Ahmed was told to get a divorce and move forward, or Ms Watley would end their relationship. In late 2007, Dr Ahmed told Dr Geishardt that he needed a divorce. Dr Geishardt agreed to cooperate in obtaining a divorce, but she insisted that there must be a separation agreement in place first.

[14] The parties entered into a Separation Agreement on April 14, 2008 (the “Separation Agreement”). It provided, among other things, that (a) the parties would sell the matrimonial home and divide the proceeds between them, and (b) after sale of the matrimonial home, Dr Ahmed would pay Dr Geishardt spousal support of $29,000 per month, indefinitely, with no provision for Dr Geishardt to take steps to provide for herself and with a provision stating that remarriage by Dr Geishardt would not be deemed a material change of circumstances. Pending sale of the matrimonial home, it was agreed that Dr Ahmed would continue to deposit his income into the RBC joint account and both Dr Geishardt and Dr Ahmed would have their expenses paid from the joint account, with Dr Geishardt managing the money for both of them.

[15] The Separation Agreement was drafted by Dr Geishardt’s solicitor. Dr Ahmed did not obtain legal advice before he signed the agreement, even though he was advised to do so by Dr Geishardt’s lawyer.

[16] After the Separation Agreement was executed, the matrimonial home was not sold, and Dr Geishardt continued to live in it.

[17] In 2010, Dr Ahmed wanted to use his equity in the matrimonial home to secure a loan he needed to complete construction of a new house he was building for himself. Dr Ahmed had so mismanaged his relationship with his bank that he was eventually faced with an ultimatum with which he felt he had to comply. Dr Geishardt cooperated in Dr Ahmed’s refinancing, on a tight schedule, but insisted on an amending agreement to the Separation Agreement to address areas of non-compliance by Dr Ahmed (relating to insurance). In the Amending Agreement, dated November 10, 2010, which Dr Ahmed signed, again without legal advice, the parties reaffirmed the terms of the 2008 Separation Agreement.

[18] After the refinancing, the matrimonial home still remained unsold. Dr Ahmed still continued to deposit his income into the RBC joint account. Dr Geishardt still continued to manage the parties’ finances.

[19] This situation continued until 2012, when Dr Ahmed retained counsel and took steps to have the financial affairs of the parties unwound. Dr Ahmed stopped depositing his income into the parties’ joint account in December 2012. The matrimonial home was eventually sold in September 2013 for $2.1 million.

[20] From separation in June 2005 until Dr Ahmed stopped depositing his income to the RBC joint account in December 2012, Dr Geishardt could spend what she liked. Dr Ahmed spent what he liked. Between them, the parties spent almost everything that Dr Ahmed deposited into their joint account. And this was a lot of money – averaging in the range of $825,000 a year for the 7 year period, net of income taxes actually paid.

Positions of the Parties

[21] Dr Geishardt asks that the Separation Agreement be enforced and thus that she be awarded spousal support of $29,000, indefinitely.

[22] Dr Ahmed asks for two things. First he asks that the Separation Agreement be set aside or overridden in respect to spousal support. Second, he asks that this court order Dr Geishardt to repay to him “up to $1,370,000” in money she spent for her own benefit from the RBC joint account in excess of the reasonable spousal support to which Dr Geishardt was entitled for the period 2005-2012.[^5] Dr Ahmed takes the position that the reasonable period of support had expired by 2012, and thus that no support should be payable after that time; he asks that Dr Geishardt be ordered to repay the support that has been paid to her since that time.

[23] Overlaid on these issues are significant tax issues which, although not raised before me by either of the parties, are central to understanding the issues between them. Dr Ahmed has apparently overstated his tax deductions very considerably, at least since 2006. The extent of the overstatement does not appear to be defensible. Both parties accepted the income figures for Dr Ahmed proposed by Dr Ahmed’s expert, Mr Ranot, which include very substantial gross-ups to account for unpaid taxes. Dr Geishardt relies on these figures to justify the substantial support to which she says she is entitled. Dr Ahmed argues that Dr Geishardt is not entitled to so much, even in light of these gross-ups. In Appendix D to his report on Dr Ahmed’s income, Mr Ranot notes as one of his assumptions that neither party will make voluntary disclosure to CRA of their underpayment of taxes.[^6] The court cannot turn a blind eye to this situation: it appears that the parties are premising their positions on substantial defalcation, both historic, and anticipated into the future. To turn a blind eye to these positions would be tantamount to the court condoning this conduct. This the court cannot do.

Issues

(i) Length of the Relationship

[24] The marriage was slightly longer than eight years (April 27, 1997 – June 20, 2005). These dates are agreed in the Separation Agreement, paras 1.1 to 1.2.

[25] Dr Geishardt argues that cohabitation began shortly after the parties become involved with each other. Dr Ahmed frequently spent the night at Dr Geishardt’s apartment during his residency: the apartment was much closer to the hospital than was Dr Ahmed’s parents’ home, and Dr Ahmed could go to Dr Geishardt’s apartment on nights when he otherwise would have had to stay at the hospital. Dr Ahmed agreed that he spent nights at Dr Geishardt’s apartment, but he disagrees on the frequency of these visits. He argues that “home” for him continued to be at his parents’ home, where his mail was sent, where he kept his clothes, where he slept when he was not on call, and where he had lived for most of his life.

[26] Dr Geishardt says that Dr Ahmed contributed financially to her household. Dr Ahmed agrees that he paid for some things during this time, because he had more money than Dr Geishardt. He says that this reflected nothing more than the early stages of an adult dating relationship where he had more money than she did. That said, Dr Ahmed said that he “fell in love very quickly”, but that he was scared to tell his family because his father was religiously conservative and would have disapproved.

[27] When Dr Ahmed’s residency ended he enrolled in the cardiac specialist program in Chicago. Dr Geishardt remained in Montreal completing her Masters degree. The two did not see each other often during this period because of the substantial demands of Dr Ahmed’s program. After Dr Geishardt completed her Masters, the parties decided to marry so that Dr Geishardt could enter the USA as Dr Ahmed’s spouse. They had been planning to marry eventually, and this was a good reason for them to go ahead with this plan. They took a week and went to the Caribbean where they were married. They had a second marriage ceremony in 2001, at which Dr Ahmed’s family was present.

[28] The parties seem to have had a settled intention to marry eventually, quite early in their relationship. They did not form a settled household in one place together until they married, largely because they pursued education in different cities. Dr Ahmed argues that he did not even introduce Dr Geishardt to his parents until they were married. However, Dr Ahmed’s father was a conservative Muslim and might have disapproved of Dr Ahmed forming a relationship outside the faith; I conclude that the absence of an introduction to Dr Ahmed’s family was not because he was not serious or settled in his intentions regarding Dr Geishardt.

[29] The parties were not a settled conjugal couple in a state of cohabitation the first time Dr Ahmed stayed over at Dr Geishardt’s apartment. By the time they decided to marry they were a cohabiting couple even though they were frequently apart. It would be possible to argue for a “start date” to cohabitation at almost any point between 0 and 3 years before marriage. I generally prefer Dr Geishardt’s evidence to Dr Ahmed’s evidence on this point. Dr Ahmed acknowledged that the relationship was a serious one for him, quite early on, and that he was reluctant to make it known to his family because it might upset his father’s religious sensibilities. He then, circularly, relied upon his failure to introduce Dr Geishardt to his family as evidence that the relationship was not yet conjugal. I found this evidence self-serving and defensive.

[30] Paragraph 1.1 of the Separation Agreement provides that the parties began to cohabit “in late 1994”. Dr Ahmed says he knew this was wrong when he signed the Separation Agreement. Either he didn’t notice it or just didn’t care because it didn’t seem to matter. It does matter; in signing the Separation Agreement, the parties resolved the parties set out in it.

[31] “Late 1994” is a credible start date for cohabitation, and I rely on the Separation Agreement as the best evidence today to solve an issue over which reasonable people could disagree from over twenty years ago. There are consequences to signing an agreement; this is one of them. Further, this “error” was repeated: in Dr Ahmed’s Answer[^7] and his affidavit of February 6, 2013.[^8] Dr Ahmed “corrected” this “error” in two subsequent court documents, to put the date of cohabitation at July 1, 1996, and then at trial when he “got clarity” on the point, he put the date at the date of marriage in April 1997.

[32] I find that the period of additional cohabitation is about 2.5 years, starting in “late 1994”, bringing the total period of cohabitation to 10.5 years.

(ii) Dr Geishardt’s Medical Condition

[33] In her opening statement, Dr Geishardt stated that she “suffers from anxiety and depression”. During her testimony, Dr Geishardt said that she suffered from these conditions and that they had impeded her from commencing or pursuing work in her profession. She testified that she did some volunteer work as a way of readying herself to enter the workforce, something she did not believe that she was ready to do at the time of trial. Dr Geishardt also said that Dr Ahmed was aware of her condition and prescribed medication to help relieve her circumstances.

[34] Dr Geishardt presented in court as a healthy competent person. She endured sustained periods in the witness box, in testimony-in-chief and in cross examination, and she did not appear to have any difficulty completing full days. She was present throughout the trial and appeared alert and engaged. Dr Geishardt did show some indications of physical discomfort: when walking to and from the witness stand, she walked slowly and sometimes in a hunched posture. She positioned herself in her chair gently. The impression was that movement caused pain or discomfort. Dr Geishardt was not asked about this apparent physical discomfort and she did not explain it aside from her testimony about suffering from anxiety and depression. She did say that she had “taken medication” in order to “get through the days” at trial.

[35] Dr Geishardt also testified that she would not be able to obtain accreditation to practice clinical psychology because of her anxiety and depression. She tendered some internet printouts from her governing body to support this position.

[36] A party who wishes to have her medical condition taken into account as a basis that she cannot work bears the onus to establish material disability. This goes beyond testifying that she suffers from depression and anxiety: she must establish that the extent of her condition disables her from work.[^9] This onus cannot ordinarily be discharged solely on the basis of the party’s testimony. Here it is simply not sufficient for Dr Geishardt to testify that she cannot work. She would need to produce medical records and expert evidence about her condition, prospects and treatment.[^10] In terms of her professional qualifications, she would need to provide independent evidence linking her medical condition and circumstances to professional requirements.

[37] The trial in this matter was adjourned once in part to enable Dr Geishardt to obtain expert evidence from Dr Bloom about her alleged inability to work. No report was served. Dr Geishardt is represented by expert senior counsel, who did not request a further adjournment to obtain expert evidence on this issue (such a request would have required an explanation as to why the previous adjournment had not been sufficient to obtain this evidence – none was forthcoming).

[38] In all the circumstances Dr Geishardt has not satisfied the onus upon her on this point. I find that she is not and has not ever suffered from a condition that prevented or materially impeded her from work in her chosen field as a psychologist.

(iii) Failure to Sell the Matrimonial Home

[39] From separation (June 20, 2005) to the execution of the Separation Agreement (December 2007 to April 2008), neither party took steps to sell the matrimonial home. Dr Ahmed left the matrimonial home on June 20, 2005 and never returned to live there. Dr Geishardt lived in the home throughout this period from separation until the home was sold for $2,050,000 (net proceeds $979,000) in September 2013, more than eight years later.

[40] Both parties testified that they intended to sell the matrimonial home after signing the Separation Agreement in April 2008. There was a real estate agent “waiting in the car” on the day the parties executed the Separation Agreement. The home was not sold and each party blames the other for the failure. Dr Geishardt says that Dr Ahmed insisted on unreasonably high offering prices. Dr Ahmed says that Dr Geishardt refused to have a lawn sign. They both agreed that they listed the house for sale and then later took the house off the market on professional advice, so that the listing would not get stale.

[41] Nothing turns on who is “at fault” for the house not being sold up until April 16, 2012.[^11] I accept that Dr Geishardt passively resisted sale of the house from April 2012 onwards and that this resistance is the primary reason that the house was not sold for over a year after Dr Ahmed retained counsel to force the sale.

[42] For the period April 2008 to April 2012, the parties had a mutual obligation to sell the house. Either of them could have forced the issue (as Dr Ahmed did eventually), but neither did so. I find that Dr Ahmed consistently wanted to sell the house, but that he did not pursue the issue and acquiesced in Dr Geishardt remaining in the house. Dr Geishardt’s resistance to a sale was largely passive, did not amount to a “refusal” to sell, and was within the “parry and thrust” of family law litigation.

[43] The Separation Agreement did not contain a term stipulating when the home would be sold. The usual practice when there is no express deadline is to infer that the parties agreed to sell the home “in a reasonable period of time”. I do not need to decide precisely what a “reasonable period” might have been: it would have been measured in months, not years, and both parties ignored the Separation Agreement by failing to sell the home within a reasonable period of time.

[44] Dr Ahmed argued that Dr Geishardt’s failure to cooperate in sale of the house amounted to a repudiation of the Settlement Agreement.[^12] I reject this argument for three reasons. First, although I agree that Dr Geishardt delayed the sale of the house and was reluctant to see it sold, I find no basis on which to conclude that she refused to sell the house and denied the obligation to do so under the Separation Agreement. “Repudiation is conduct that demonstrates that a contracting party has absolutely renounced its contractual obligations.”[^13] This never happened. Second, Dr Ahmed did nothing to compel a sale until he retained counsel in 2012, and he then relied on the contractual obligation to obtain an order in February 2013 to sell the house[^14] in order to compel it. Dr Ahmed cannot enforce the contract at one stage in this proceeding, and then later claim that the contract was previously repudiated. Third, in November 2010, nearly 2.5 years after the Separation Agreement was executed, the parties executed the Amending Agreement, reaffirming the terms of the Separation Agreement, including the provision that called for sale of the matrimonial home. Having reaffirmed the Separation Agreement in November 2010, Dr Ahmed cannot argue successfully that the Separation Agreement had previously been fundamentally breached when, rather than accepting the alleged repudiation, he reaffirmed its terms in the Amending Agreement.[^15]

(iv) Breach of Fiduciary Duty / Trust

[45] Dr Ahmed claims against Dr Geishardt for breach of fiduciary duty in regard to Dr Geishardt’s management of the family’s financial affairs. The argument goes that Dr Geishardt was a fiduciary of Dr Ahmed and breached that duty by self-dealing, acting unconscionably, and failing to account for her management of Dr Ahmed’s money.

I – Limitations Defence

[46] Dr Geishardt argues that this claim is barred by statutory limitations periods and the doctrine of laches. I reject this argumentm for the following reasons.

[47] These allegations were first raised by Dr Ahmed when he amended his Answer on May 30, 2014.

[48] Dr Geishardt argues that these claims are barred by the Limitations Act, which now applies to claims of breach of fiduciary duty.[^16] Dr Ahmed testified that around February 2012, he started to suspect that there were problems with Dr Geishardt’s management of family finances because he did not seem to have enough money for his own living expenses. However, Dr Ahmed testified, and I accept, that he did not discover the conduct that he considers to have been wrongful until he went through bank statements systematically, starting in 2012. He said this exercise took him a year to complete (recalling that he was working full-time, and some of the documents required for this analysis were not received from Dr Geishardt until 2013).

[49] Dr Ahmed was entitled to investigate his suspicions before asserting this claim. The time taken for the investigation seems long, but I accept that Dr Ahmed needed documents that were not delivered to him until 2013, and that he completed his preliminary analysis in 2013, less than two years before he raised the issue in his Answer. Therefore the claim is not barred by the Limitations Act.[^17]

[50] Dr Geishardt argues that the limitations period ought to have started to run much earlier – that Dr Ahmed had an obligation to use reasonable diligence in investigating the claim.[^18] That is not how I see it: until Dr Ahmed suspected there was something amiss, he had nothing about which to exercise reasonable diligence. “Perhaps [he] could have made inquiries earlier, but here is no suggestion that [his] conduct amounted to willful blindness.”[^19]

[51] The Ontario Court of Appeal, in considering the application of the Limitations Act to equitable claims not governed by the Real Property Act, held:

I would think that ordinarily the claim should be taken not to have been discovered until the parties have separated and there is no prospect of resumption of cohabitation….[^20]

This does not mean claims are deemed to have been discovered on separation, but rather that they generally are not likely to arise beforehand. Here the alleged conduct that is the subject-matter of the claim took place after separation, both before and after divorce. The “discoverability” issue is a question of when, in the exercise of reasonable diligence, should Dr Ahmed have known that he had a claim.

[52] While this case is an example of extreme inattention by Dr Ahmed, it is not dissimilar to many cases of alleged financial misconduct by a trusted advisor that could have been discovered quite easily and much earlier if only the victim had been less trusting and more careful. While it is true that Dr Ahmed could have looked at the bank statements much earlier than he did, it was not until his suspicions were aroused that he felt that he had any cause to do so. This is not a case where Dr Ahmed knew that he had suffered injury but was unsure whether he had recourse for the injury. Until he reviewed his financial records in detail starting in 2012, Dr Ahmed did not know, in his own mind, whether Dr Geishardt had misspent his money.

[53] Thus if it had been shown that Dr Geishardt had taken advantage of her position to take Dr Ahmed’s money for purposes inconsistent with their general “arrangement” (ie for reasons other than funding her own living expenses), then Dr Ahmed might have had a successful claim against Dr Geishardt.

[54] Dr Geishardt also raised the equitable defence of laches. I see no application of that doctrine in the circumstances of this case, for the same reasons that I conclude that the claim is not barred by the Limitations Act: Dr Ahmed asserted his claim reasonably promptly once he became aware of it.

II – No Breach of Trust / Fiduciary Duty

[55] Dr Ahmed relies upon the general law of fiduciaries to argue that Dr Geishardt was his fiduciary in respect to management of his financial affairs. In this regard, he notes that Dr Geishardt was paid $29,000 annually to do this work and had the title of “Chief Financial Officer”. These arrangements were in place well before separation and then continued afterwards until 2012. Dr Ahmed argues that he left his financial affairs entirely to Dr Geishardt, trusted her completely, and was entirely at her mercy as a result.

[56] The general test for establishing a fiduciary duty is found in the Supreme Court of Canada decision in Hodgkinson v. Simms.[^21] While the “categories of fiduciaries are not closed”, it must be borne in mind that trust and vulnerability are not the metes and bounds of the test for whether a fiduciary duty exists. Central to the concept of fiduciaries is the obligation, on the part of the fiduciary, to prefer the interests of the person in relation to whom she stands as a fiduciary over her own interests:

To find a fiduciary relationship, what is generally required is evidence of a mutual understanding that one party has relinquished her own self-interest and agreed to act solely on behalf of the other party. Such relationships are often characterized as power-dependency relationships where one party gains a position of overriding power and influence over another….[^22]

It is easy to see how these principles could sometimes apply to the relationship between parents and their minor children, or between children and their aged parents. It is far more difficult to see a useful application of these principles to the relations between spouses, especially in respect to management of household accounts where one party undertakes an obligation to act for them both, not just for the other party.[^23]

[57] Dr Geishardt is not a financial professional. She has not qualifications to advise Dr Ahmed about management of his money. She was called “Chief Financial Officer” and paid – not as a badge of her professional engagement on behalf of Dr Ahmed, but to split family income. In cross-examination Dr Ahmned agreed that Dr Geishardt was “CFO of our marriage”.

[58] Absent extraordinary circumstances (which are not present here), it would be singularly inappropriate to incorporate fiduciary duties into family law principles that govern financial matters between spouses.

[59] It is common, in many, many families, for one spouse to take responsibility over particular aspects of the family’s financial affairs. When one spouse pays bills late and incurs interest and penalties, will she be liable to the other spouse for her carelessness? When one spouse makes foolish investments and loses family capital, will he be liable to his spouse for the loss? There already exist tools to enable the court to address certain kinds of egregious financial misconduct between spouses to achieve an equitable division of assets and fair support; to import a legal concept that has, in its very spirit, a requirement of subordination of interest by one spouse to the other would be inconsistent with the most basic principles of family law. I reject this argument on first principles.[^24]

[60] Further, if it was ever thought appropriate to import the law of fiduciaries into spousal obligations, this is not the case in which to do it. It is not alleged that prior to separation, Dr Geishardt breached her so-called fiduciary duties. From June 2005 onwards, when the parties were separated, it is hard to see any defence for the argument that Dr Geishardt was obliged to prefer Dr Ahmed’s interests to her own. In his own testimony Dr Ahmed did not go so far. Rather, he argued that Dr Geishardt had to act reasonably and not spend far more money than she would have been entitled to in spousal support. Never did he suggest that Dr Geishardt had to prefer his own interests to her own, and, indeed, it would be hard to imagine how such an obligation could be consistent with an arrangement that permitted Dr Geishardt to pay all of her expenses from Dr Ahmed’s income.

[61] Section 14 of the Family Law Act provides:

The rule of law applying a presumption of resulting trust shall be applied in questions of the ownership of property between spouses, as if they were not married, except that,

(a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses intended to own the property as joint tenants; and

(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purpose of clause (a).

[62] The usual approach to joint accounts is to divide the balance between the spouses as of the date of separation, and for the spouses to account for their use of funds from the account thereafter.[^25]

[63] However, in this case, the “arrangement” between the parties was to carry on after separation as they had done before, with the RBC joint account being used to fund the expenses of both parties without any ongoing accounting. The parties, not being lawyers, did not put their minds to s.14 of the Family Law Act expressly. However, implicit in their arrangement was that they would treat the RBC joint account as available for their joint use, as they had in the past.

[64] Beaulieu J. found in Belgiorgio:

While it is certainly clear from Mr Belgiorgio’s testimony that he regrets having placed these funds in the joint bank account, the court cannot concern itself with how Mr Belgiogio now feels about his actions. Instead, the court must determine Mr Belgiorgio’s intention at the time he deposited the funds to the joint account.[^26]

The same observations apply to this case.

[65] I find that, by agreement, the parties intended to own the money in the joint account jointly up until Dr Ahmed ceased depositing his income into the account in December 2012. Therefore I find that the presumption of resulting trust does not apply to money in the joint account, after separation in June 2005, and after divorce in July 2008, up until December 2012.

[66] I agree with McLean J. in Drummond where he finds, in similar circumstances, that the wife managing a joint account is not a trustee but, if anything, an agent of the husband in managing their financial affairs:

Where we consider the activities of both Mr. Drummond and his wife it appears clear that he intended that Mrs. Drummond manage the account. This she did to the best of her ability. It would seem on this evidence that there is no indication that he constituted Mrs. Drummond his trustee for the use of the account. Rather, if there is any relationship, it is one of agency. He constituted her his agent to use the funds as she saw fit to manage the household and their lives together. It is clear from the evidence that this is what she did or attempted to do, and for these reasons the Court finds nothing inappropriate in her actions regarding the bank account. It may well be that Mr. Drummond may have been mistaken to do what he did; however, it appears, when we consider all the evidence including the wish Mr. Drummond had to shield himself from the FRO and any claims his former wife had, that Mrs. Drummond’s use of that bank account in the payment of bills was entirely consistent with his wishes throughout their relationship.[^27]

[67] Finally, I note that Dr Ahmed’s expert concluded that Dr Geishardt spent roughly $325,000 per year on her own expenses, and Dr Ahmed spent something in excess of $500,000 per year on his own expenses. Dr Geishardt argues that at its highest, she was obliged not to take more than half the money, which she did not do. I would not create such an obligation. Rather, I find that Dr Geishardt was obliged not to act in a manner inconsistent with the parties’ agreement to carry on as they had before separation. She did not do so. Dr Ahmed’s claim for breach of fiduciary duty fails, both because there was no fiduciary duty, and because Dr Geishardt did not act in a manner inconsistent with the agreement of the parties over management of joint finances. If Dr Ahmed was unhappy with the way in which Dr Geishardt was handling finances, he had it in his power to bring an end to it, which he eventually did in 2012.

III – Weight of the Expert Evidence

[68] I wish to make one comment about the methodology used to frame Dr Ahmed’s claim for damages. Dr Ahmed went through the account statements for the relevant bank accounts (notably the RBC joint account, Dr Geishardt’s personal account, credit card statements, and investment account statements) to compile a list of transfers of funds to or to the benefit of Dr Geishardt from 2005 to 2012. Then Dr Ahmed’s work was used by bookkeeper Paul Brown to prepare summaries for use by Dr Ahmed’s expert, Mr Ranot, who then prepared an analysis based on a set of assumptions provided to him by counsel for Dr Ahmed.

[69] Counsel for Dr Geishardt challenged the basis of the report on the grounds that the core research was done by Dr Ahmed, who is neither qualified nor neutral. During cross-examination various errors were identified in Dr Ahmed’s work. Counsel for Dr Geishardt argued that the errors were so legion, and so obviously based on a presumption of wrongdoing that the integrity of the research that underlies the report undercuts any value that can be placed upon it.

[70] I have no difficulty, in principle, with Dr Ahmed doing the initial research. His working papers were available for the purposes of cross-examination. I accept that Mr Brown was qualified to do the bookkeeping to organize Dr Ahmed’s raw research, and that this formed a basis for Mr Ranot to do his work. I do not reject Dr Ranot’s opinion because Dr Ahmed did the background research. Rather, I reject it because the legal premise behind the claim fails: Dr Geishardt operated with a free hand because that was the arrangement. She may well have received considerably more than she would have been entitled to under an award of spousal support – but that is because Dr Ahmed let her spend what she wished to spend, without question and without complaint. Dr Geishardt was not subject to implicit restrictions on her spending.

[71] Dr Ahmed asks me to draw an adverse inference against Dr Geishardt because of her failure to account for the money she spent from the joint account. He relies on the following passage from Parmigiani in this regard:

… Mr Parmigiani embarked on a course of conduct when he knew the marriage was in difficulty. His actions in handling this large amount of money was deliberate and premeditated…. On his own testimony, he was well aware. Within approximately two months, $165,000 disappeared. The bank statements show a pattern, essentially daily withdrawals to the maximum permitted.[^28]

However, at the next paragraph the court found as follows:

The spending patterns of Mr Parmigiani in this brief time period are inconsistent with his frugal nature over the prior fourteen years….[^29]

The case before me is very different. The spending patterns of Dr Geishardt (and Dr Ahmed) were quite consistent, and these patterns went on for years, before and after separation, and before and after divorce. While it is true that Dr Geishardt cannot account for many items that are challenged by Dr Ahmed, it is not fair to call her to account for them. It was never expected that she would have to do so. As Mr Brown testified, there were roughly 10,500 transactions over the course of seven years: Dr Geishardt was not required to account for these transactions periodically, and it is not reasonable to require her to do so now. Dr Geishardt managed family finances. Dr Ahmed acquiesced in this management throughout the marriage and for seven years thereafter. I find that Dr Geishardt spent as she was permitted to do. If Dr Ahmed did not like it, he had it in his power to bring it to an end at any time. It is his own fault that he did not do so until 2012, and he must now live with the consequences. I decline to draw the suggested inference.

[72] I accept Mr Ranot’s reports as admissible. I conclude that they do not establish a basis for liability because the legal premise on which they are based are incorrect: Dr Geishardt was not restricted to spending some notional amount of reasonable spousal support, and the evidence does not establish that her spending was inconsistent with the parties’ arrangement.

(v) Spousal Support

[73] There are two aspects to the question of spousal support. Dr Geishardt seeks an order enforcing the Separation Agreement, para. 3.1 of which provides for $29,000 per month of support indefinitely. Dr Ahmed seeks to set aside the Separation Agreement and Amending Agreement under s. 56(4) of the Family Law Act or, alternatively, a determination under s.15.2 of the Divorce Act that spousal support has been overpaid and should be terminated by overriding the support provisions of the Separation Agreement.[^30] A determination under s.15.2 requires an application of the principles set out in Miglin v. Miglin.[^31]

[74] Before considering these two issues, I first review what has happened, financially, from the date of separation to the present. Then I consider the arguments respecting the enforceability of the Separation Agreement. As shall be seen, I conclude that the agreement is valid and enforceable. Then I consider the Miglin analysis pursuant to s.15.2 of the Divorce Act. I conclude that the Separation Agreement should be overridden and that support should be terminated effective December 31, 2017, notwithstanding the terms of the Separation Agreement that provide for indefinite support.

1. From June 2005 to December 2012

[75] From June 2005 to December 2012, Dr Ahmed deposited his income into the RBC joint account. Dr Geishardt used this money to fund Dr Ahmed’s expenses (which she paid on his behalf) and used it to fund her own expenses. She did not keep accounts of these expenditures (aside from records of expenses for which tax deductions were claimed, which she forwarded to the parties’ accountant). No support was otherwise demanded or paid during this period.

[76] Dr Geishardt continued to live in the matrimonial home, all of the expenses of which were paid from Dr Ahmed’s income deposited to the RBC joint account.

[77] The Separation Agreement provided for spousal support to commence after the matrimonial home was sold. Since the home was not sold between 2005 and 2012, spousal support under the Separation Agreement did not commence. In December 2012, Dr Ahmed stopped paying his income into the RBC joint account.

2. From December 2012 to October 2013

[78] Pursuant to the order of Jarvis J., Dr Ahmed paid $10,000 per month towards the mortgage on the matrimonial home (in which Dr Geishardt lived), and also paid $15,000 in temporary spousal support to Dr Geishardt. These payments were without prejudice to the position of the parties at trial.

3. From October 2013 to September 2017

[79] The matrimonial home was sold in September 2013. By agreement between the parties, Dr Ahmed commenced paying $25,000 per month in temporary spousal support to Dr Geishardt, without prejudice to the position of the parties at trial. I assume that these payments have continued until September 2017, when this judgment is rendered.

4. Spousal Support Obligations

[80] I find that both parties acquiesced in the system under which Dr Ahmed paid his income into the RBC joint account, both parties spent what they liked, and Dr Geishardt managed family finances. That system continued to December 2012.

[81] Dr Geishardt does not seek spousal support arrears for this period. I agree that the arrangements between the parties more than satisfied any spousal support claim that Dr Geishardt might have had during this period.

[82] These arrangements were voluntary. Neither party objected to them until after they had been concluded. Dr Geishardt relied on these arrangements in making her own spending decisions.

[83] There are no arrears for this period and I see no reason to order any repayment by Dr Geishardt.

[84] Spousal support under the Separation Agreement would not commence until after the sale of the matrimonial home. That took place in September 2013. The Separation Agreement contemplated continuation of the previous status quo until the home was sold. That is not what happened – there was a gap from December 2012 to September 2013.

[85] If the Separation Agreement applies, then I must determine the appropriate amount of spousal support from December 2012 to November 2013, and then the monthly amount stipulated by the Separation Agreement ($29,000 per month) will commence in September 2013. In this event I will then have to decide the further issue raised by Dr Ahmed as to when, if ever, this spousal support obligation should come to an end.

[86] If the Separation Agreement does not apply, then I must determine the appropriate quantum of spousal support from December 2012 to September 2017, and then determine whether there ought to be spousal support ongoing from September 2017 and if so for what period and in what amount.

5. Separation Agreement

[87] The Separation Agreement’s terms respecting spousal support are clear. It requires Dr Ahmed to pay spousal support to Dr Geishardt of $29,000 per month indefinitely.

[88] The first question raised by Dr Ahmed is whether the Separation Agreement and the Amending Agreement are valid and enforceable. If they are, then the second question is whether the Separation Agreement and the Amending Agreement should be overridden. The first question arises under common law and s.56(4) of the Family Law Act. The second question arises under s.15.2 of the Divorce Act, and the Supreme Court of Canada’s decision in Miglin v. Miglin.[^32] I address the status of the Amending Agreement first, and then turn to an analysis of the status of the Separation Agreement.

6. Amending Agreement

[89] There are three aspects of the Amending Agreement that are significant. First are the circumstances under which it was created and executed on November 24, 2010. Second is the affirmation it contains of the terms of the Separation Agreement. And third is the clause requiring Dr Ahmed to pay Dr Geishardt $50,000 if he failed to comply with insurance provisions in the Amending Agreement.

(a) Circumstances Under Which Amending Agreement Was Created

[90] As of the fall of 2010, Dr Ahmed was building a new house. He needed $102,000 in further financing for the construction. His bank required further security. Dr Ahmed did not satisfy his bank, and discussions dragged on. Eventually the bank made a time-limited demand.

[91] Once again, Dr Ahmed had chosen not to have professional advisors involved on his behalf. The bank was not present at trial and I did not have a chance to hear the bank’s side of the story of its dealings with Dr Ahmed. But even without that perspective, it seems clear that Dr Ahmed mishandled his relationship with the bank to such a degree that he prompted the demand for immediate security.

[92] Dr Ahmed had an asset in which security could be given – the matrimonial home, all of which he had paid for, and half of which belonged to him. Dr Ahmed contacted Dr Geishardt and asked her to cooperate in placing a mortgage on his interest in the matrimonial home to satisfy the bank. This all had to be done on a tight timeline because of the bank’s demand.

[93] Dr Geishardt said that she would cooperate. But in return she wanted some cooperation from Dr Ahmed. Dr Ahmed had agreed in the Separation Agreement to provide insurance for his support obligations. He had not complied fully with this obligation. More than two years had passed, and Dr Geishardt wanted this issue resolved.

[94] Dr Geishardt had her lawyer draft up the Amending Agreement, which both parties then signed. It confirmed the terms of the Separation Agreement, addressed the insurance issue, and provided that Dr Ahmed would pay Dr Geishardt $50,000 if he failed to comply with his insurance obligations. Dr Ahmed did not retain counsel to advise him on the agreement. He reviewed it and signed it. At trial he testified that he was pressured into signing the Amending Agreement, did not understand its purport, and just did it to get the security he so badly needed.

[95] As was the case with the Separation Agreement itself, Dr Ahmed was the party wanting to move forward – this time with real dispatch. The “undue influence” and “duress” here were nothing more than the pressures of life, and were not of Dr Geishardt’s making. Dr Ahmed had suffered a second heart attack in 2009, but he had recovered from that misadventure and was back at work full-time. The Amending Agreement, itself, was not inherently unfair (aside from the $50,000 non-performance clause, which I address separately below). Dr Geishardt was, in fact, cooperating with Dr Ahmed and did so with alacrity at his request.

[96] I find that there is nothing about the circumstances of the creation of the Amending Agreement that would permit Dr Ahmed to avoid it.

(b) Affirmation of the Terms of the Separation Agreement

[97] Dr Ahmed did not challenge the terms of the Separation Agreement from the time of its execution in April 2008 to the Amending Agreement roughly 2.5 years later. I conclude that once Dr Ahmed got his divorce, in July 2008, he did not much put his mind to the Separation Agreement until he needed his financing in 2010. Certainly in signing the Amending Agreement and affirming he terms of the Separation Agreement, Dr Ahmed must be taken to have accepted that the Separation Agreement was still in operation, notwithstanding that the matrimonial home had not been sold. The language used to affirm the Separation Agreement is in paragraph 11 of the Amending Agreement and is clear:

All other terms and conditions of the [Separation] Agreement remain in full force and effect and are affirmed by the parties hereby.

[98] Similarly, if Dr Ahmed felt that he had been treated unfairly in the negotiation and signing of the Separation Agreement, he had had 2.5 years to raise these issues before the Amending Agreement. He did not. And then, instead of challenging the Separation Agreement, he affirmed his obligations under it.

(c) Obligation to Pay $50,000 For Non-Performance

[99] The details of the insurance provisions of the Separation Agreement are not material any more since I terminate support in this judgment. What is significant is that Dr Ahmed agreed to provide substantial insurance for his spousal support obligations and then did not do so. This was a real annoyance to Dr Geishardt, and she had her lawyer, Mr Cooper, raise this issue with Dr Ahmed several times, to no avail. With the Amending Agreement, Dr Geishardt took the opportunity to bring this issue back to the table. She agreed to reduce the required insurance from $2.5 million to $2.0 million, but she wanted some assurance that this time Dr Ahmed would do what he was agreeing to do.

[100] Dr Geishardt could have insisted that Dr Ahmed comply with his obligations under the Separation Agreement before she would sign the documents for the collateral mortgage on the matrimonial home. She did not go so far. Instead she instructed her solicitor to include a clause requiring Dr Ahmed to pay her $50,000 if he failed to obtain the required insurance. Dr Ahmed signed the Amending Agreement, with this provision in it. He then failed to obtain the required insurance. Dr Geishardt asks for an order that Dr Ahmed pay the $50,000.

[101] I decline to make that order. The provision requiring payment of the $50,000 is a penalty clause, and obviously so. Although the clause was breached, no damages have resulted from the reach. The clause is unenforceable.[^33] Dr Geishardt’s remedy for breach of the insurance provisions was to move to enforce them by way of specific performance. While I appreciate her frustration over this issue, particularly in the aftermath of the Amending Agreement, that still does not make this penalty clause enforceable.

7. First Question: Validity and Enforceability (Common Law and FLA)

[102] Dr Ahmed has the burden of proof to persuade the court to exercise its discretion to set aside the Separation Agreement.[^34]

[103] Dr Ahmed raises the following bases on which he asks the court to find the Separation Agreement and Amending Agreement to be invalid and unenforceable:

(a) undue influence and duress;

(b) unconscionability;

(c) failure to make required disclosure;

(d) lack of independent legal advice.

[104] Dr Ahmed did not assert argument (d) as an independent ground to set aside the Separation Agreement, but relied on his lack of independent legal advice to buttress his arguments in respect to his other arguments to set aside the agreement.

(a) S.56(4) of the FLA

[105] Subsection 56(4) of the Family Law Act provides:

A court may, on application, set aside a domestic contract or a provision in it,

(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

(b) if a party did not understand the nature or consequences of the domestic contract; or

(c) otherwise in accordance with the law of contract.

[106] A finding that a circumstance described in s.56(4) of the FLA is established on the evidence does not automatically render the contract a nullity. The trial judge must determine whether s.56(4) is engaged, and if it is, then decide, as an exercise in discretion, whether it is appropriate, in the circumstances, to set aside the contract.[^35]

(b) Undue Influence and Duress

[107] To establish undue influence, the court inquires into whether there was an improvident bargain and, if there was, whether there was inequality in bargaining power.[^36] To establish undue influence or inequality in bargaining power, a party “must prove the ability of one person to dominate the will of another, whether through manipulation, coercion or outright but subtle abuse of power”.[^37] Duress:

involves coercion of the will of one party or directing pressure to one party so they have no realistic alternative but to submit to the party…. Equity recognizes a wider concept of duress including coercion, intimidation or the application of illegitimate pressure.[^38]

[108] By December 2007, the parties had been separated about 2.5 years. Dr Geishardt continued to live in the matrimonial home. Dr Ahmed had purchased a condominium in which he was living. Dr Ahmed had continued to deposit all his income into the parties’ joint account at RBC. All their expenses were paid from this income and Dr Geishardt managed their finances.

[109] Dr Ahmed formed a new relationship after separation shortly after separation.[^39] His new partner Charlene Watling, had a child, Maria, to whom Dr Ahmed became strongly attached very quickly. According to Dr Ahmed’s evidence, which I accept on this point, Ms Watling was not happy with Dr Ahmed’s continued involvement with Dr Geishardt. She wanted Dr Ahmed to get a divorce and then to marry her. Dr Ahmed became concerned that Ms Watling would eventually leave him if he did not comply with her demand, and he resolved to get divorced and then to remarry.[^40]

[110] Dr Ahmed approached Dr Geishardt and asked her to cooperate in obtaining a divorce. Dr Geishardt was willing to do this, but she wanted to have a Separation Agreement between the parties before she agreed to a divorce. Dr Ahmed was willing to have a separation agreement, but he did not raise the issue himself: this came from Dr Geishardt.

[111] Dr Ahmed asked Dr Geishardt to arrange for a lawyer to draft a separation agreement for them. He asked her to have something “fair” drafted. Dr Ahmed did not want to retain a lawyer for himself, and trusted Dr Geishardt to make the arrangements, as she had arranged everything else about their financial affairs.

[112] Dr Geishardt retained Gregory Cooper to draft a separation agreement. Mr Cooper was clear to Dr Geishardt that he was her lawyer and that he was not acting for both Dr Geishardt and Dr Ahmed. In his correspondence with Dr Ahmed, Mr Cooper was clear that he was not Dr Ahmed’s lawyer and that Dr Ahmed should retain his own solicitor to negotiate the Separation Agreement.

[113] Dr Ahmed declined to retain a solicitor because, he testified:

(a) He trusted Dr Geishardt implicitly to create an agreement that was fair to both sides, to give those instructions to her lawyer, and to ensure that her lawyer did so;

(b) He was extremely busy and felt that it was the best use of his time to delegate this task to Dr Geishardt;

(c) He was in emotional distress because of his mother’s terminal illness;

(d) He was in physical distress because he had recently suffered a heart attack from which he was still recovering; and

(e) Lawyers are expensive and Dr Geishardt told him that they could not afford to hire two lawyers.

[114] Dr Geishardt testified that Dr Ahmed told her that he would not retain a solicitor because he was smarter than any lawyer and could handle things on his own. She did not respond to the suggestion that Dr Ahmed expected her lawyer to draft something fair but noted that the correspondence to Dr Ahmed from her own lawyer stated clearly that he was acting for her and protecting her interests and that Dr Ahmed should get a lawyer for himself. Dr Geishardt acknowledged that Dr Ahmed’s mother was very ill[^41] and that Dr Ahmed did have a heart attack (from which Dr Ahmed had recovered sufficiently to return to conducting cardiac surgery full-time).[^42] She denied telling Dr Ahmed that they could not afford a second lawyer.

[115] Dr Ahmed denied making the statement that he did not need a lawyer because he was smarter than any lawyer.

[116] The timing of negotiations around the Separation Agreement was a result of Dr Ahmed’s timetable for obtaining a divorce. If Dr Ahmed was in difficult personal circumstances and wanted to delay negotiations, that would have been possible. The record supports the conclusion that Dr Ahmed had the time and opportunity to retain a solicitor, was advised to do so by Dr Geishardt’s solicitor, and chose not to do so. The suggestion that Dr Ahmed was well enough to perform cardiac surgery but not to retain a lawyer or negotiate the Separation Agreement, is absurd. Dr Ahmed abdicated responsibility for his personal affairs at the time he negotiated the Separation Agreement, and he continued this pattern during his testimony. I find that Dr Ahmed chose to represent himself and not as a result of any vulnerability upon which Dr Geishardt or her lawyer preyed.

[117] The negotiations themselves were carried out directly between Dr Geishardt and Dr Ahmed. Dr Geishardt would then instruct Mr Cooper about amendments to the draft agreement. Dr Ahmed testified that the spousal support figure came from Mr Cooper’s assessment of what would be fair. Mr Cooper denies that and says the number came to him from Dr Geishardt, who told him that it had been proposed by Dr Ahmed. I accept Mr Cooper’s evidence as to what he was told and that he did not propose either $30,000 or $29,000 per month. As to whether the numbers were proposed by Dr Geishardt or Dr Ahmed. Certainly they were numbers the two of them came up with together and then Dr Geishardt provided them to Mr Cooper

[118] The Separation Agreement was drafted by Mr Cooper. Dr Ahmed negotiated some of the terms of the agreement, including the quantum of spousal support. At first Dr Ahmed told Dr Geishardt that he would pay her half of his income. The he proposed a figure of $30,000 per month. Dr Ahmed proposed reducing that figure to $29,000 per month because he would also be paying $1,000 in insurance premiums. The negotiations went back and forth. Dr Ahmed testified that he only saw one draft of the agreement before the final version. Dr Geishardt says that she provided Dr Ahmed with between 5 and 10 drafts. I find that the truth is somewhere in between – it was at least 3-4 drafts (since there were that many materials changes to the drafts over the months it was under negotiations). The agreement was eventually signed on April 10, 2008. On the day the agreement was signed, Dr Ahmed came to Mr Cooper’s office. Dr Ahmed testified that the agreement was not explained to him, that he did not read the agreement on the day he signed it, and that he was at Mr Cooper’s office for no more than about ten minutes. Mr Cooper reports that he reviewed the agreement with Dr Ahmed, and that their meeting lasted about 45 minutes. I prefer the evidence of Mr Cooper to that of Dr Ahmed on this point. Dr Ahmed’s evidence on the issue of the Separation Agreement and the Amending Agreement was self-serving and, where it could be compared to contemporaneous documentary evidence, unconvincing. In brief, Dr Ahmed has minimized his own responsibility for decisions he made and for his inattention to his own important personal affairs. This minimization has coloured his recollection of events to the point that he sees himself as having been victimized and fails to recognize his own extreme lack of care and attention to his own affairs.

[119] Dr Ahmed testified that Mr Cooper told him that the Separation Agreement “was absolutely fair” and that Dr Ahmed “was getting a good deal”. Mr Cooper denied giving Dr Ahmed any advice, and specifically denied giving him this advice. Mr Cooper is a very experienced family law lawyer. He clearly documented his advice to Dr Ahmed that he was acting solely for Dr Geishardt. I do not believe that Mr Cooper said such things to an adverse party, particularly in the context of finalizing a Separation Agreement. I accept Mr Cooper’s evidence on this point.

[120] These circumstances do not come close to undue influence or duress.

(c) Unconscionability

[121] Unconscionability is related to but not identical to undue influence and duress. To paraphrase from the Court of Appeal’s 1969 decision in Mundinger, equity will protect a party, not against his or her folly or carelessness, but against being taken advantage of by those in a position to do so because of their relationship to the party.[^43] In 1994 the Court of Appeal held that this is

… the basis of our modern law of unconscionability…. The question therefore becomes was there an inequality between the parties, a preying of one upon the other which, combined with improvidence, cast the onus upon [one party] of acting with scrupulous care for the welfare and interests of [the other party]….

We must always remember that it is not the ability of one party to make a better bargain that counts. Seldom are contracting parties equal. It is the taking advantage of that ability to prey upon the other party that produces unconscionability….[^44]

[122] Dr Ahmed argues that he was vulnerable to being “preyed upon” because of the special trust and confidence he placed in Dr Geishardt. She had managed their financial affairs for many years and had taken care of all decisions respecting their personal affairs. Thus, Dr Ahmed argues, he trusted her to act reasonably and fairly and to obtain a reasonable and fair separation agreement. It is true that a “special relationship in which trust and confidence has been reposed” by one party in another give rise to circumstances where a party may be taken advantage of.[^45] But that is not this case in respect to the Separation Agreement. Dr Ahmed could not reasonably believe that in a negotiation with Dr Geishardt and her lawyer over the terms of a separation agreement, that Dr Geishardt would be looking out for Dr Ahmed’s interests.

[123] It was Dr Ahmed who wanted a divorce. Dr Geishardt’s request for a separation agreement as the price of her cooperation in obtaining a consent divorce places this entire issue in context: the parties were bargaining with each other from the start of these discussions. They were adverse in interest even if, at that point, they seemed able to find agreement easily. The threshold for unconscionability is high:

In order to establish a claim for a calculation of the net family property which favours one spouse over the other, the threshold of unconscionability must be established. “Unconscionable” does not mean unfair. The cases of Merklinger v. Merklinger[^46] and Roback v. Roback[^47] indicate how serious the circumstances must be before a court will find that that threshold has been met.[^48]

The circumstances of this case do not come close to establishing the kind of predatory preying that is required for a finding of unconscionability. The principles of unconscionability will not rescue Dr Ahmed from his own folly and carelessness in failing to retain a solicitor or take reasonable care safeguarding his own interests while negotiating the Separation Agreement. Dr Ahmed raised personal circumstances, included the death of his beloved mother in the fall of 2007 and his own health problems (he suffered a heart attack). Dr Ahmed was well enough to engage full-time in his profession as a cardiac surgeon. Negotiations unfolded slowly over a period of months. Dr Ahmed was the person wishing to resolve matters expeditiously so that he could proceed to get his divorce. This is a far cry from a case like Rick v. Brandsema[^49] where the husband preyed upon the wife’s profound mental instability. There is nothing in this record to show that Dr Geishardt pressed or took advantage of Dr Ahmed during the negotiations or that Dr Ahmed had any peculiar vulnerability that was exploited by Dr Geishardt.

(d) Failure to Make Full Disclosure

[124] Dr Ahmed argues that the failure to make full financial disclosure at the time of the Separation Agreement and the Amending Agreement is a basis to set the agreements aside.

[125] The “deliberate failure” to make “disclosure of all relevant financial information” may render a separation agreement:

… vulnerable to judicial intervention where the result is a negotiated settlement that is substantially at variance from the objectives of the governing legislation.[^50]

[126] However, non-disclosure does not automatically vitiate a separation agreement.

Whether a court will, in fact, intervene will clearly depend on the circumstances of each case, including the extent of the defective disclosure and the degree to which it is found to have been deliberately generated. It will also depend on the extent to which the resulting negotiated terms are at variance with the goals of the relevant legislation.[^51]

[127] Disclosure issues are to be assessed practically and substantively, not formally and technically.[^52] The allegedly undisclosed assets, here, were a spousal RRSP worth about $39,000, some personal bank accounts with balance in them of less than $10,000 in the aggregate. Dr Geishardt also had a Maserati automobile in her name – Dr Ahmed was certainly aware of this though he may not have known what the car was worth. Dr Geishardt says that Dr Ahmed knew of the existence of the RRSP’s and, if he did not know what they were worth, did know what had been contributed to them over the years. In my view these assets and their alleged non-disclosure were not material to the Separation Agreement. Apart from the car (which Dr Ahmed certainly knew about), the aggregate value of the assets was less than two months’ of agreed support. And these assets were only material to equalization, not to support.

[128] While there was no formal disclosure process prior to execution of either the Separation Agreement or the Amending Agreement, I am satisfied that Dr Ahmed “was aware of the assets and, on the evidence, had as much ability to value these assets as” did Dr Geishardt.[^53] Here the alleged non-disclosure was not material to the issue of spousal support, the only aspect of the Separation Agreement in issue at this point.[^54] I do not agree that the existence of the allegedly undisclosed property would have been material to support: it was not substantial enough to affect quantum of support, even if the court imputed some small amount of income that could be generated from this asset. The quantum of support was based on the following:

(a) Dr Ahmed’s income, as deposited into the joint account at RBC;

(b) Dr Ahmed’s and Dr Geishardt’s incomes, net of taxes, which were based on significant and consistent overstatements of deductible expenses;

(c) Dr Ahmed’s statement to Dr Ahmed that he would split his income with her;

(d) Dr Ahmed’s own sense if his cash flow, based on the foregoing.

The quantum of support was not based upon, or influenced by, property issues. The alleged non-disclosure, not being material to the issue of spousal support, is not a basis to set aside the spousal support provisions of the Separation Agreement.

[129] Paragraph 17.9 of the Separation Agreement provides that the parties “have disclosed their income, assets and other liabilities existing at the date of marriage, separation and the date of this Agreement.” There was no formal disclosure. Dr Geishardt explains this on the basis that both parties knew everything material about their financial affairs. Dr Geishardt’s lawyer, Mr Cooper, agreed that it was unusual to proceed without sworn financial statements. However, he understood that “everything was jointly owned” and since Dr Ahmed was insisting on proceeding without a lawyer, asking him for a sworn financial statement “was probably a waste of time”. I accept this explanation. Dr Ahmed says that the statement is false, but he just went ahead and signed it (his explanation for what he describes as false statements in para. 1.1 of the agreement respecting the duration of the relationship). The provision is not a waiver of disclosure, but an affirmative statement that the parties know each other’s financial positions. Another consequence, for Dr Ahmed, of signing the Separation Agreement is that I find, on the strength of that agreement, and all of the other circumstances of the case, that Dr Ahmed was familiar with the general financial position of Dr Geishardt at the time he signed the Separation Agreement.

[130] “Parties are expected to use due diligence in ascertaining the facts underlying their agreements.”[^55] Here, Dr Ahmed exercised virtually no diligence at all. I appreciate that s.56(4)(a) of the Family Law Act does not require that a failure to disclose be material, deliberate, or relied upon. The “simple failure to disclose” is a basis on which the court could exercise discretion to set aside a separation agreement.[^56] However, the matter is still discretionary, and the discretion must be exercised judicially. In the leading case of LeVan, for example, the separation agreement was set aside pursuant to s.56(4) where disclosure “was insufficient to enable the wife to have a clear understanding of exactly what rights she was giving up by entering into the contract” and “the wife's lawyers were unable to appreciate the consequences of the contract and impart them to the wife due to lack of financial disclosure and misrepresentations.”[^57]

[131] The parties have equalized their property already, the non-disclosure would not have affected support. Non-disclosure is not a proper basis in this case to set aside the Separation Agreement.

(e) Lack of Independent Legal Advice

[132] Dr Ahmed testified that Dr Geishardt promised that she would retain a lawyer to draft a fair agreement for the two of them. He testified that Dr Geishardt told him that lawyers are expensive and that they could not afford to have two lawyers involved. Dr Geishardt denies making these statements, though she does agree that she said that she would retain a lawyer to draft an agreement.

[133] Dr Geishardt’s lawyer advised Dr Ahmed to seek legal representation.[^58] Initial correspondence presumed that this would be done and asked Dr Ahmed to have his legal representative to get in touch. Latterly, Dr Geishardt’s lawyer encouraged Dr Ahmed to retain a solicitor. Paragraph 17.11(a) of the Separation Agreement states that Dr Ahmed “has been told to obtain independent legal advice, has had the opportunity to obtain independent legal advice, and has declined it.”[^59]

[134] I do not accept that Dr Geishardt talked Dr Ahmed out of retaining a lawyer.

[135] I accept the following summary of the law in this area from Healey J. in Dyck v. Boshold:[^60]

1. An absence of independent legal advice does not automatically impugn the validity of a domestic contract, but rather is a factor for the court to consider along with all the other circumstances…;[^61]

2. A lawyer who drafts a marriage contract on behalf of a spouse has no duty to ensure that the other spouse is informed of the merits of obtaining independent legal advice…;[^62]

3. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties,[^63] but this is always a question of fact;[^64]

4. Where the spouse could have received independent legal advice but chose not to do so, the courts will be loath to set aside the agreement.[^65]

[136] Independent legal advice may provide prima facie evidence that the party receiving that advice understood the nature and consequences of a separation agreement.[^66] The lack of legal advice, while it is a factor to consider in the analysis, does not create a presumption that the unrepresented party did not understand the nature and consequences of the separation agreement.[^67] Dr Ahmed understood the Separation Agreement, and in particular he understood the spousal support provisions of it. He requested, and obtained, a reduction in support from $30,000 to $29,000 to reflect the cost of insurance. What Dr Ahmed did not understand was that this amount - $29,000 per month – and the indefinite duration during which it would be paid – were greatly in excess of Dr Geishardt’s entitlement under ordinary principles of family law. Not understanding the agreement, and failing to appreciate that it was a ”bad deal” are not the same thing.

[137] Dr Ahmed testified that he did not understand his legal position when he signed the Separation Agreement. I accept that evidence. That is why he should have gone to a lawyer, of course. It was suggested to him that, if he was able to conduct intricate surgery, he surely could understand the terms of the agreement. He responded by saying, in effect, he is trained to do the surgery and understands it – a legal document like the Separation Agreement “is a lot more complicated than what I do.” I accept that general point that Dr Ahmed finds it easier to do things within his area of particular expertise. However, if he did not understand the Separation Agreement, then he should have obtained legal advice. He did not. That is his own fault. He must live with the consequences.

[138] I find that Dr Ahmed understood the meaning and consequences of the Separation Agreement. I accept that he did not understand that the spousal support terms were a “bad deal” for him, but he understood they required him to pay $29,000 per month after the matrimonial home was sold.

(f) Conclusion

[139] I have said nothing in this section about the fairness (or otherwise) of the Separation Agreement. The only terms that may be unfair concern quantum and duration of spousal support. I address this issue in detail later in these reasons. I conclude that in terms of both quantum and duration, the spousal support provisions were inconsistent with the principles of the Divorce Act, both at the time the Separation Agreement was executed, and at the time of trial. On the basis of Dr Ahmed’s income, grossed up for non-payment of income taxes, the quantum was very high, but not so high as to shock the conscience of the court. The duration was well beyond what the law would provide, but not inconsistent with arrangements that are sometimes made between parties to a domestic separation. On the basis of Dr Ahmed’s reported taxable income, the quantum of support was absurdly high, likely sufficient in and of itself to ground a finding of unconscionability (in some years it would have been substantially in excess of Dr Ahmed’s entire taxable income, as reported to CRA). I am satisfied that the parties agreed to the quantum of support on the basis of their actual disposable cash, predicated on Dr Ahmed claiming excessive deductions and thereby underpaying his income taxes materially.

[140] In all the circumstances, I find that Dr Ahmed understood the meaning and consequences of the Separation Agreement, that the agreement is not unconscionable or the result of duress or undue influence. I find that non-disclosure is not a proper basis to set aside the agreement. I find the agreement to be enforceable.[^68]

8. Second Question: Override the Agreements? (Divorce Act, s.15.2 and Miglin)

[141] An application under s.15.2 of the Divorce Act is not a review; it is not a request to vary the terms of the Separation Agreement as a result of a material change in circumstances. Rather, it is an original application to fix spousal support judicially, and the terms of the Separation Agreement are but one factor to be considered (albeit an important factor):

… it is understood that: (a) the instant application pursuant to s.15.2 of the Divorce Act is not a review of the spousal support provided by the Agreement; and, (b) the Court’s function… is not to determine whether Dr. Blair’s semi-retirement is “a material change in circumstance” under the parties’ separation agreement and, thus, a trigger obliging Ms Stewart to renegotiate with Dr. Blair. Dr. Blair’s application is for a judicial determination of spousal support in the first instance. It is the exercise of a statutory right afforded by s.15.s of the Divorce Act, notwithstanding the parties’ private agreement in relation to the same matter. The analytical approach in Miglin v. Miglin…, is applicable because Dr. Blair is seeking an order of statutory support inconsistent with his contractual support obligation under a pre-existing agreement.[^69]

[142] At the outset of the decision in Miglin[^70] the majority stated:

…[W]e believe that a fairly negotiated agreement that represents the intentions and expectations of the parties and that complies substantially with the objectives of the Divorce Act as a whole should receive considerable weight. In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should look first to the circumstances of negotiation and execution to determine whether the applicant has established a reason to discount the agreement. The court would inquire whether one party was vulnerable and the other party took advantage of that vulnerability. The court also examines whether the substance of the agreement, at formation, complied substantially with the general objectives of the Act. As we elaborate later, these general objectives include not only an equitable sharing of the consequences of the marriage breakdown under s.15.2, but also certainty, finality and autonomy. Second, the court would ask whether, viewed from the time the application is made, the applicant has established that the agreement no longer reflects the original intention of the parties and whether the agreement is still in substantial compliance with the objectives of the Act.[^71]

[143] Miglin stresses the importance of “certainty, finality and autonomy” and for good reason: parties often invest considerable resources and make material compromises in order to reach an acceptable final resolution of their family law conflicts. The Separation Agreement allows both sides to move on with their lives and plan with some confidence for the future. However, as is sometimes forgotten, while Miglin reaffirms the importance of these principles, the case concluded that the 1985 Divorce Act softened the rigorous deference to private contract that had been characteristic in the jurisprudence under the previous regime.[^72] The majority wrote:

It is helpful to identify several inappropriate approaches. In our view, the answer to these questions does not lie in adopting a near-impermeable standard that a court will endorse any agreement, regardless of the inequities it reveals. Neither, however, does the solution lie in unduly interfering with agreements freely entered into and on which the parties reasonably expected to rely. It is also not helpful to read between the lines in s.15.2 so as to identify a single implicit overriding legislative objective overshadowing the factors specifically set out.[^73]

[144] In general terms, “the language and purpose of the 1985 Act militate in favour of a contextual assessment of all the circumstances. This includes the content of the agreement, in order to determine the proper weight it should be accorded in a s.15.2 application.”[^74]

[145] The assessment of a separation agreement is not merely an objective analysis of the agreement and a determination of the extent to which it matches an award that the court would have made. “[W]hat is “fair” will depend not only on the objective circumstances of the parties, but also on how those parties conceive of themselves, their marriage and its dissolution, as well as their expectations and aspirations for the future.”[^75]

[146] The “proper approach” under s.15.2[^76] on an initial application “for spousal support inconsistent with a pre-existing agreement” is a two-stage process that,

requires an investigation into all the circumstances surrounding that agreement, first, at the time of its formation, and second, at the time of the application.[^77]

[147] In “Stage One” of the analysis, the court looks “to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.”[^78] The choice of language here is significant: this analysis need not be an “all or nothing” approach. The court could “discount” a separation agreement rather than setting it aside entirely or upholding it entirely.

[148] The first part of Stage 1 looks at the circumstances of execution of the agreement:

Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties’ separation and as indicative of their substantive intentions. Accordingly the court should be loath to interfere. In contrast, where the power imbalance did vitiate the bargaining process, the agreement should not be read as expressing the parties’ notion of equitable sharing in their circumstances and the agreement will merit little weight.[^79]

[149] The second part of Stage 1 considers the substance of the Separation Agreement. At this point,

The court must determine the extent to which the agreement takes into account the factors and objectives listed in the Act, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. Only a significant departure from the general objectives of the Act will warrant the court’s intervention on the basis that there is not substantial compliance with the Act.[^80]

This analysis takes account of the court’s review of the circumstances in which the agreement was negotiated. “The greater the vulnerabilities at the time of formation, the more searching the court’s review” when it considers the substance of the agreement.[^81]

[150] In Stage 2, “the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.”[^82] The analysis in this stage is only required if the Separation Agreement’s material provisions have survived Stage 1 of the analysis. Thus it will be necessary in Stage 2 to show that something has changed so significantly that the agreement “no longer reflects the parties’ intentions at the time of execution and the objectives of the Act.”[^83] By implication, the significant change must be something the parties did not reasonably anticipate at the time the agreement was executed.[^84]

[151] The test is not objective foreseeability. And again, the analysis is not “all or nothing”. A “change” will not necessarily lead the court “to jettison the agreement entirely.”[^85] And although the approach is more flexible and less onerous than in ordinary commercial contracts,

[p]arties must take responsibility for the contract they execute as well as for their own lives. It is only where the current circumstances represent a significant departure from the range of reasonable outcomes anticipated by the parties, in a manner that puts them at odds with the objectives of the Act, that the court may be persuaded to give the agreement little weight.[^86]

[152] The provisions of the Separation Agreement are reasonable in respect to property issues. Indeed, the parties have divided their property in accordance with the Separation Agreement, subject only to some minor adjustments following this judgment. There is no basis on which to override the entire agreement or any of the property provisions of it.

[153] What remains to consider, then, is the extent to which the Separation Agreement ought to be overridden in respect to spousal support. I have already concluded that there ought not be any adjustments up to the end of 2012, when Dr Ahmed stopped depositing his income to the RBC joint account. The analysis that follows is thus concerned with the period from January 2013 onwards.

9. Spousal Support Advisory Guidelines (“Supportmate Calculations”)

[154] When weighing the multifaceted considerations relevant to quantum and duration of spousal support, the Spousal Support Advisory Guidelines are an essential measuring stick. I use them to assess the extent to which the support provisions of the Separation Agreement are consistent with the objectives of the Divorce Act.

[155] To be clear, though, the SSAG do not apply where spouses earn more than $350,000 or “where a prior agreement provides for support”.[^87] Therefore, I do not use the SSAG to calculate entitlement, but as a “cross-check” or “starting point” to assess the terms of the Separation Agreement, and the appropriate support to award from December 2012 to trial, and prospectively after trial.[^88] As will be seen, my award of spousal support is above the suggested range in the SSAG from December 2012 forward.

[156] In Fisher the Court of Appeal held:

… when counsel fully address the Guidelines in argument, and a trial judge decides to award a quantum of support outside the suggested range, appellate review will be assisted by the inclusion of reasons explaining why the Guidelines do not provide an appropriate result. This is no different than a trial court distinguishing a significant authority relied upon by a party.[^89]

[157] In order to apply the SSAG in a case such as this, where there are no children of the marriage, it is necessary to know the period of cohabitation and the parties’ incomes for support purposes.

A. Period of Cohabitation

[158] As found above, the period of cohabitation was 10.5 years.

B. Dr Geishardt’s Income for Support Purposes

[159] Until Dr Geishardt was qualified to practice psychology, it would be appropriate to fix her income at zero. She received about $29,000 per year from Dr Ahmed as a salary for her work managing family finances, but I view this as a form of income splitting.[^90] For the purposes of calculating SSAG support, I would deny Dr Ahmed a deduction for this “salary” and impute the income back to him.

[160] Once Dr Geishardt was qualified to practice psychology, it would be reasonable to impute income to her, on a graduated, increasing scale.[^91] The Separation Agreement did not impose a duty of Dr Geishardt to enter the workforce, but neither did it negate this duty. As noted above, the conduct of the parties supports the conclusion that the parties intended and expected Dr Geishardt to pursue her profession and she had a duty to do so.[^92]

[161] Dr Ahmed testified that he believed that Dr Geishardt was working to establish herself professionally and that he supported these efforts. Even though the parties were already separated, Dr Ahmed helped Dr Geishardt locate office space in the Yorkville area of central Toronto. He paid the rent for that space, paid the cost of decorating and furnishing the office, and paid for utilities and services such as telephone, internet, a web site, marketing materials, and related expenses. Dr Geishardt managed these expenses, but Dr Ahmed was generally aware of them and was willing to pay for them to help Dr Geishardt become established professionally.

[162] The office lease was entered into in 2007 for a three year term. The lease was renewed in 2009 for another three years. Over the six years that it was rented the monthly rent ranged from $900 per month to $1200 per month. The web site was updated periodically, including changing the fee schedule, and, to the casual reader, would convey the impression that Dr Geishardt was practicing psychology. There is now a statement that Dr Geishardt is not currently accepting new patients, but that statement was added later and Dr Geishardt could not recall when. Prior to that anyone reading the web site (including Dr Ahmed) would have thought that she was in practice. Dr Geishardt has maintained her affiliations with the Ontario Psychological Association, its Quebec counterpart, and other professional organizations.

[163] Dr Geishardt never saw a patient in her office. So far as I can discern from the evidence, she was almost never at this office and may not have been there for more than the time required to arrange for its decoration.

[164] Dr Geishardt testified that this office was also intended as the location of a business office for Dr Ahmed for proposed investments. Dr Geishardt testified that the parties were in a “reconciliation period” and that Dr Ahmed knew that she was not yet feeling well enough to see patients. Dr Ahmed denies this suggestion. There is no documentary evidence to corroborate the suggestion that Dr Ahmed was planning on entering into “other business” ventures or that he intended to use the Yorkville office for those purposes. The lease itself restricts the use of the premises to a medical office.[^93] Dr Geishardt agrees that Dr Ahmed never had a key to the office. Dr Geishardt testified that there were discussions with the landlord about using the office for other business purposes and the parties had been advised that there would be no problem with that. Again Dr Ahmed denies this evidence and again there is no documentary evidence to corroborate it.

[165] I prefer Dr Ahmed’s evidence on these points. The parties did not require a separate business address for the kinds of investments described by Dr Geishardt. If they did require such an office, and if the intention was that Dr Ahmed would himself use the office, it would have made little sense for the office to have been located in Yorkville. Dr Ahmed’s centre of activity was and remains in the Region of Peel where he both lives and works. The commute to downtown Toronto would not have made sense for Dr Ahmed for the purpose of establishing a business mailing address or for the very limited office work that would have been required of him for the kinds of businesses described by Dr Geishardt in her evidence as the proposed ventures. Different considerations apply for Dr Geishardt’s proposed career as a clinical psychologist: she was proposing to develop a practice catering to affluent Torontonians, and an address for meeting patients in Yorkville would have been a suitable place for such a practice.

[166] I find that the Yorkville office was intended solely as business premises for Dr Geishardt.

[167] I also reject Dr Geishardt’s evidence that the parties “were in a period of reconciliation” in the sense that there were material prospects of ending their separation. The emails she relies upon to establish this proposition do not bear the meaning she proposes, when read in context, and I do not accept that she read them as she proposes. Dr Ahmed was still attached to Dr Geishardt, but to her knowledge he had moved on romantically.

[168] Dr Ahmed paid the costs of the Yorkville office in the belief that he was helping Dr Ahmed to establish herself in her profession. He testified that he believed that Dr Geishardt was doing precisely that and that he had no idea at the time that she had never started to practice. He testified that he would not have agreed to renewal of the lease if he had known that Dr Geishardt was not practicing and had no immediate plans to commence her career. Dr Geishardt says that she was suffering from anxiety and depression, that Dr Ahmed was aware of these circumstances, and that he shared with Dr Ahmed her hope that one day she would be able to start practicing, when she was better.

[169] The parties spent more than $72,000 for rent, plus associated office expenses, on office space for Dr Geishardt for six years that she never used. What folly.

[170] I do not accept Dr Geishardt’s evidence on this point. I find that she did not tell Dr Ahmed that she was not working in her chosen field. Rather, I accept Dr Ahmed’s evidence that she told him that she was seeing some patients, but that the process of building a practice and obtaining a base of patients was going slowly. It is consistent with Dr Ahmed’s “hands-off approach” that he did not probe this information further or follow up on it systematically, even when it seemed that the situation was continuing unchanged for a period of years. I find that Dr Ahmed would not have agreed to renew the lease if he had known that the premises had been unused and that Dr Geishardt was not working at all.

[171] This said, on the basis of the parties’ conduct and the arrangement that prevailed from June 2005 to December 2012, Dr Geishardt continued to have all of her expenses paid by Dr Ahmed, as determined by Dr Geishardt. Dr Ahmed may well have expected that Dr Geishardt had started to earn an income and to contribute to family finances at some point during this process, but he did nothing to follow up on this expectation. The most that could be said is that Dr Geishardt misled Dr Ahmed about her efforts to establish herself professionally; she did not mislead Dr Ahmed about the extent to which she was earning a material income to contribute to family finances. Finally on this point, although Dr Ahmed asked me to impute income to Dr Geishardt, he did not provide any evidence that would enable me to fix any particular amount of imputed income.

[172] Therefore, even though it would be reasonable[^94] to impute an income starting in 2006, I decline to do so prior to December 2012. Although there was deception by Dr Geishardt on this issue during this period, the real reason that matters unfolded as they did to December 2012 was Dr Ahmed’s complete abdication of any responsibility for his own affairs. He let these matters unfold as they did and it is simply too late to unwind them now.

[173] From June 2012, Dr Geishardt knew that Dr Ahmed was seeking to terminate his spousal support obligations. From that time to trial she did nothing to start working. She took the position that she was prevented from working for medical reasons, but she was unable to prove this allegation at trial for any portion of the period from June 2012 to trial.

[174] I find that Dr Geishardt had notice that Dr Ahmed took the (correct) position that Dr Geishardt had an obligation to pursue economic self-sufficiency starting in June 2012. I find that by January 1, 2013, Dr Geishardt should have been able to take the necessary steps to enter her profession and begin to build a client base. I impute a graduated income to her starting in January 2013 as follows:

2013: $25,000 2014: $40,000 2015: $60,000 2016: $75,000 2017: $90,000

I consider these figures conservative for a health professional with a doctoral degree. I acknowledge that I do not have evidence before me to establish these amounts, which is why I have used what I consider to be very conservative figures. In many cases where the court has no evidence of potential income, the court imputes income starting with minimum wage income, and then increases the amount gradually over time. In my view, even though the burden on this point lies with Dr Ahmed, as a matter of common sense a “minimum wage” approach would grossly understate reasonable income figures.[^95] Finally, as shall be seen below, my conclusion is that Dr Geishardt has received vastly more than what she would have received under SSAG. If it was felt that my exercise of common sense and reasonable estimate falls into the realm of speculation, given the factual record before me, I conclude that the same conclusions would obtain if minimum wage income was imputed to Dr Geishardt, or if no income at all was imputed to her to trial: on any analysis of her income, she has received considerably more than that to which she was entitled under SSAG.

[175] Dr Geishardt remarried on September 22, 2015. Her new partner, Dave Lakha, is a police officer. Dr Geishardt and Mr Lakha met in 2010 and bought a house together in August 2013. They described themselves as spouses in the house purchase documents. The evidence indicates that Mr Lakha makes some financial provision for his own elderly parents, who live with Lakha and Geishardt. He makes some contributions to household expenses, but they are not substantial relative to the level of support provided in the Separation Agreement. I do not consider that Dr Geishardt’s remarriage is material to the issues before me: even without any incidental benefit Dr Geishardt may receive from the sharing of household expenses with her new partner, in my view, as I explain below, Dr Geishardt is not entitled to continued spousal support.

C. Dr Ahmed’s Income for Support Purposes

[176] Dr Ahmed’s gross revenue is not disputed: he received this money from OHIP and the Trillium Health Centre and it is all documented. The issue in this case is the extent to which income ought to be imputed to Dr Ahmed for “personal use” values of legitimate tax deductions and, much more significantly, the extent to which income ought to be imputed to Dr Ahmed because of his ineligible deductions claimed on his tax returns.

[177] I approach this issue from two perspectives. First I analyse the case on the basis of the gross income earned by Dr Ahmed, with further income imputed to him on account of unpaid taxes. This is the approach urged by Dr Geishardt, and agreed by Dr Ahmed, and it produces income figures much higher than Dr Ahmed’s actual gross income. Second, I analyse the case on the basis of my assessment of Dr Ahmed’s proper line 150 income. I restrict my analysis to the tax years 2012 to 2015, and the support years 2013 to 2016.

[178] The figures upon which I rely in this section are set out in the report of Mr Steve Z. Ranot of Marmer Penner Inc., who was Dr Ahmed’s expert.

[179] Dr Ahmed’s professional revenue, claimed deductions, and reported net income, were as follows:

Year	Revenue	Expenses	Net Income
2012	$985,169	$725,193	$259,976
2013	$931,859	$451,834	$480,025
2014	$880,104	$385,934	$494,170
2015	$935,836	$499,053	$436,783

[180] In Mr Ranot’s opinion, Dr Ahmed’s income for support purposes for these years was as follows (without a gross-up for unpaid taxes):

2012 $800,000 2013 $820,000 2014 $770,000 2015 $810,000

I accept these figures.

[181] In Mr Ranot’s opinion, if an appropriate tax gross-up is imputed to Dr Ahmed on account of the untaxed income that should be valued as taxable income for support purposes, then Dr Ahmed’s income for support purposes was:

Year	Gross-up	Total Income
2012	$490,000	$1,290,000
2013	$300,000	$1,120,000
2014	$270,000	$1,040,000
2015	$360,000	$1,170,000

[182] Dr Ahmed’s average income for support purposes was $800,000, without gross-up, for the years 2012-2015. His average income for support purposes was $1,155,000, with gross-up, for these same years. I so fix his income for the purposes of calculating support and run the calculations based both with and without the gross-ups.

[183] The biggest problem when considering the taxation issues is the approach taken to this issue by both parties. In the face of this issue, they have not taken the issue up with CRA. Dr Ahmed continued to file his taxes on the basis that his overstated deductions are legitimate, even after having received expert forensic accounting reports premised on conclusions to the contrary. Apparently he believes the deductions are legitimate, though he was not asked about this during cross-examinations for obvious reasons: it is in Dr Geishardt’s interest to accept Dr Ahmed’s position on the legitimacy of the deductions while at the same time relying on Dr Ahmed’s expert for the conclusion that the deductions should not be accepted for the purpose of calculating income for purposes of spousal support. Dr Ahmed’s position seems to be premised on a conclusion that he is justified in making the deductions or that he will not be challenged by CRA.

[184] It seems to me that Dr Ahmed’s approach is consistent with his oblivious disregard for his own interests that characterized his approach to the Settlement Agreement, the Amending Agreement, and the many years in which the matrimonial home was not sold and Dr Geishardt remained in it. These decisions, aggregated, have been financially detrimental to Dr Ahmed’s interests. His failure to confront serious tax issues posed by his conduct may well prove disastrous for him. At this stage it would be speculation to guess at how these issues may turn out for Dr Ahmed.

[185] To be clear, the tax problem is not limited to the years 2012 to 2015. In Mr Ranot’s report addressing Dr Ahmed’s claim for repayment from Dr Geishardt, Mr Ranot addresses the issue of the appropriate gross-up for the period 2006 to 2012.[^96] Only one year is the gross-up less than $500,000. The average gross-up is about $555,000. For the years 2005 to 2011, Dr Ahmed’s professional revenue, and reported net income, were as follows:

Year	Revenue	Net Income
2006	$1,059,787	$537,768
2007	$1,177,623	$545,271
2008	$876,864	$143,201
2009	$921,364	$195,637
2010	$784,284	$60,753
2011	$897,598	$178,098

In Mr Ranot’s opinion, Dr Ahmed’s income for support purposes for these years was as follows showing what the taxable income should have been, the tax gross-up, total income grossed up, and, to place all this in perspective, income taxes actually paid:

Year	Taxable Income[^97]	Gross-up	Grossed-up Income	Taxes Paid
2006	$876,874	$527,467	$1,172,404	$214,750
2007	$1,043,202	$663,990	$1,467,723	$213,853
2008	$725,184	$551,315	$1,225,556	$45,838
2009	$773,013	$572,866	$1,273,716	$67,058
2010	$637,872	$504,340	$1,126,934	$14,024
2011	$750,036	$558,258	$1,243,773	$49,206

(See Exhibit A and Schedule 5 of Mr Ranot’s report dated August 24, 2016, “Updating Calculation of Damages… From June 2005 to December 2012”). I accept these figures.

[186] There are many situations in family law cases where a deduction is considered legitimate for income tax purposes, but is imputed back as income for family law purposes. No defalcation is implicit in these analyses: the calculations of income are for different purposes. Here, however, there appears to be no basis on which to suppose that most of the claimed deductions are even arguably legitimate. Dr Ahmed is a cardiac surgeon. He works in a publicly funded hospital. He has some minor office expenses, professional memberships, insurance, and perhaps some legitimate travel expenses for professional conferences. Mr Ranot fixed the maximum proper deductions in a range between $79,000 and $99,000 except for 2006, when he was of the view that they were about $119,000. I accept these figures.

[187] If there was any doubt about whether it was possible for Dr Ahmed’s deductions to have been legitimate, this is surely laid to rest by the change in his income pattern in 2013 – when he first started paying court ordered (and deductible) spousal support. His claimed expenses went down and his taxable income went up, sufficiently to leave sufficient room in his taxable income to pay the support, claim the deduction for that support, and still have some income left for himself.

[188] This is not a case where subsequent tax reassessments or prosecutions can be considered by the court and evaluated. In some cases, where reassessments have concluded after a separation agreement, the court can determine whether the results of the reassessments were in the contemplation of the parties at the time they entered the separation agreement, or whether the result of the reassessment was an unforeseen circumstances justifying variation of the separation agreement.[^98]

[189] Dr Ahmed pointed out that he has always worked extraordinarily hard (he testified that he did between 370 and 400 procedures per year –“easily twice the national average”) – a characterization with which Dr Geishardt has agreed repeatedly (she told her own lawyer that Dr Ahmed “worked like a dog” frequently “120 hours per week”, though she tempered this slightly when she said that she came to attribute some of his time away from the home to infidelity rather than work. Still she agreed that he was totally devoted to his patients and his work at the hospital. Dr Ahmed points out that he has cardiac problems of his own and may not always work so hard. In my view this is irrelevant for the purposes of this case. The Separation Agreement provides for variation in the event of material change in circumstances. This case is not about whether support should be varied because Dr Ahmed may not always work so hard (a variation that would await a change in his income), but whether the Separation Agreement should be overridden, on a Miglin analysis.

D. SSAG Calculations

[190] By December 2012, for a period of 7.5 years, Dr Geishardt had received roughly $325,000 a year, available to her because of Dr Ahmed’s apparently substantial tax defalcation over that period. Although Dr Ahmed is responsible in law for this apparent defalcation (and likely will be the person to bear the consequences if and when Canada Revenue Agency ever reassesses him), Dr Geishardt was complicit in this conduct. She organized the deduction documentation, sent it to the accountant, and reviewed the tax returns when they were sent back by the accountant for signature. Dr Ahmed says that he signed whatever was presented to him. I expect that there is some truth to this though this does not absolve him from responsibility to report and pay his income taxes. However I conclude there is at least some truth to Dr Ahmed’s version of these events: he viewed himself as too busy in his important professional work to attend with concentration or commitment to something as mundane as his income tax returns. He left that to Dr Geishardt and his accountant. Dr Geishardt knew that this was Dr Ahmed’s attitude. While Dr Geishardt is no accountant or financial professional, she knew perfectly well that Dr Ahmed, as a cardiac surgeon, incurred few expenses to earn his income. She knew, she had to know, that the claimed deductions were grossly overstated. And she spent, on herself, money available as a consequence of Dr Ahmed’s tax conduct.

[191] I am buttressed in this conclusion by Dr Geishardt’s own tax returns, where her own expenses were apparenty overstated. Her income was earned from managing Dr Ahmed’s financial affairs – which in her testimony she described as nothing more than paying the family bills, making tax remittances and managing credit cards. She did not require a car to perform these services, which were performed almost entirely from the matrimonial home. Dr Geishardt earned no professional income from the practice of psychology, and it is clear from her evidence that she never had an immediate intention of working. It is hard to see how she could truly believe that she was entitled to the deductions she claimed against her modest income. I conclude that Dr Geishardt understood that her income tax return did not accurately report her own taxable income, and that Dr Ahmed’s tax return did not report his accurate taxable income.

[192] For a period of about 7.5 years, Dr Geishardt received inflated support under her arrangement with Dr Ahmed, based on their failure to report and pay taxes properly. This after a ten year relationship that, rather than compromising Dr Geishardt’s prospects, saw her complete her professional qualifications and set her up for a career as a clinical psychologist. Given this context, the following passage from Fisher v. Fisher is apposite:

To provide the appellant with a reasonable transition following her nineteen-year marriage, it is my view that the appellant will need support for seven years, beginning with the year of separation. In my view, a seven-year order complies with the spousal support objective of recognizing the appellant’s economic disadvantage arising from the marriage and its breakdown, while also encouraging the appellant to complete her transition to self-sufficiency, whether by reason of earning a higher income or, more likely, by adapting her lifestyle to her then income.[^99]

[193] If one was to use Dr Ahmed’s average income, on the basis of which he should have paid taxes ($800,000), and if one imputed no income to Dr Geishardt at all, in 2005, under the SSAG, Dr Geishardt would have been entitled to support for 5-10 years, at a rate of $10,000 per month (low) to $11,667 (midpoint) to $13,333 (high). If one were to calculate support on the basis of a tax gross-up, taking Dr Ahmed’s best year, when income for support purposes would have been $1.4 million, and if one were to impute no income at all to Dr Geishardt, then Dr Geishardt would have been entitled to support for 5-10 years at a rate of $17,500 (low) to $20,417 (midpoint) to $23,333 (high). Dr Geishardt’s own lawyer, Gregory Cooper, calculated her spousal support entitlement in the range of $11,550 to $15,400 per month.[^100]

[194] Dr Geishardt suffered no economic disadvantage from the marriage, and, indeed, was supported by Dr Ahmed in completing her education and, ostensibly, starting her professional practice. Neither party was diverted from a career by the demands of child-rearing. Dr Geishardt did not contribute substantially to Dr Ahmed’s education or in his establishing himself in his career. Dr Geishardt was young enough at separation (37 years old) that she was not disadvantaged in entering the workforce by reason of long absence from her professional career or by reason of advanced age. Dr Geishardt should have achieved self-sufficiency by now.[^101] This is a case where SSAG support would have been in the low range or, at most, between the low and medium range, both in terms of quantum and duration.

[195] Support would have been far less if it was calculated on the basis on line 150 income (ie on the basis that Dr Ahmed’s claimed deductions were actually incurred by him for the purpose of earning an income). On Dr Ahmed’s tax returns for the three years prior to separation, the $29,000 per month in support ($348,000 annually) would have been greater than his entire income.

[196] I do not hesitate to conclude that the support provisions of the Separation Agreement did not comply with the objectives of the Divorce Act. I find that they were premised on Dr Ahmed’s failing to accurately report his expenses on his income tax returns, and even then the quantum of support substantially exceeded the support to which Dr Geishardt would have been entitled to in an award of spousal support under the Divorce Act.

[197] If one accepted the expert evidence on income without a tax gross-up (the income for support purposes Dr Ahmed would have if one used his properly calculated taxable income), then I would have fixed support at $11,000 for a period of six years from separation. Dr Geishardt would have received $132,000 per year, for 6 years, for a total of $792,000. It is not possible to be sure what Dr Geishardt did receive as a result of the arrangement she had with Dr Ahmed until 2012, but I accept Mr Ranot’s figure of $325,000 per year for 7 years. That is a total of $2.275 million, slightly less than three times what I would have awarded for spousal support. I appreciate that some of the money spent by Dr Geishardt was to fund the matrimonial home – but she lived there rent-free throughout the period. For purposes of calculation here it is fair to consider the expenses of operating the home and the occupation rent to be a “wash”, and so no adjustment need to be made to these rough calculations. Since January 1, 2013, Dr Geishardt has received $25,000 per month (including, until the fall of 2013, $10,000 per month for expenses related to the matrimonial home). This amounts to $300,000 per year, which totaled $1.2 million by the end of 2016 and has accrued at $25,000 per month ever since. This totals, in round numbers, roughly $3.5 million in support, nearly 4.5 times her entitlement under SSAG.

[198] The numbers are less exaggerated if the very highest figures are used for imputing income to Dr Ahmed. With his income at $1.4 million, I would have fixed spousal support at $19,000 per month, again for six years, for a total of $1,368,000. This would result in Dr Geishardt having received roughly double her SSAG support entitlement during the seven years of the arrangement, and almost three times her support entitlement by the end of 2016.

[199] And all of this presumes that Dr Geishardt does not work and is not imputed any income on the basis that she ought to try to support herself. There is only one argument available that Dr Geishardt should receive a nickel further in support, and that is on the basis of the terms of the Separation Agreement, on which she has relied, and which I have found is enforceable under the Family Law Act.

10. Fixing Spousal Support

[200] The factors to consider in fixing spousal support are stipulated in s.15.2(4) of the Divorce Act:

In making an order under subsection (1) [for spousal support]… 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.

[201] When the Separation Agreement was signed in April 2008, the parties contemplated that the matrimonial home would be sold and that thereafter Dr Geishardt would receive $29,000 per month from Dr Ahmed. The Separation Agreement did not provide for Dr Geishardt to take steps to become financially independent, or to pursue work at all; it was silent on this point.

[202] The objectives of an order for spousal support are set out in s.15.2(6) of the Divorce Act:

An order made under subsection (1)… for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Factor (b) does not apply because there were no children of the marriage.

[203] I do not consider that factor (a) is at play here, aside from the consequences for the parties of their conduct on financial issues since June 2005. That conduct arose in the context of marriage breakdown but I do not see how it was “caused” by the marriage or its breakdown. Dr Geishardt gained the advantage of 7 years of continued sharing of Dr Ahmed’s income, without control or limit. Dr Ahmed suffered the disadvantage of Dr Geishardt spending far more of his money during that period than she would have been entitled to in spousal support. But these advantages and disadvantages arose from Dr Ahmed’s acquiescence and his failure to pay the slightest attention to his personal financial affairs. That carelessness was not “caused” by marriage breakdown.

[204] Similarly, I do not see factor (c) as being in play here.

[205] In respect to factor (d), Dr Ahmed has conducted himself to support Dr Geishardt entering the workforce and becoming self-sufficient. I do not have evidence as to the range of income Dr Geishardt could reasonably have expected to earn if she had systematically pursued her profession once she was qualified to do so. I accept that her likely income would probably have been materially less than Dr Ahmed’s income as a cardiac surgeon – that is a matter of common sense and experience rather than speculation. However, also as a matter of common sense and experience, a competent clinical psychologist, engaged full-time in her profession, once established, would be able to earn a sufficient income to be self-supporting. As noted by the Court of Appeal in Fisher v. Fisher:

Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton….[^102] Thus, a determination of self-sufficiency requires consideration of the parties’ present and potential incomes, their standard of living during the marriage, the efficacy of any suggested steps to increase a party’s means, the parties’ likely post-separation circumstances (including the impact of equalization… of their property), the duration of their cohabitation and any other relevant factors.

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, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.[^103]

[206] As put by the Supreme Court of Canada in Moge v. Moge:

As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution.[^104]

[207] Indefinite support would simply not be available to Dr Geishardt in the circumstances of this case on an application of the principles set out in the Divorce Act. In Davies v. Quantz, M.E. Marshman J. found that after an 18 year marriage to a cardiac surgeon, the last 9 years of which the wife stayed home to raise the children, the highly educated wife “had an obligation to achieve some degree of self-sufficiency”.[^105] Spousal support was awarded at the low end of the SSAG for a period of 8 years. The decision to limit support to 8 years was affirmed on appeal for brief oral reasons.[^106] Time limited support has been ordered frequently in cases such as this, where the marriage was “medium” term, the recipient spouse was young enough to enter the workforce for a meaningful period of employment, and the recipient spouse had a reasonable opportunity to prepare herself to enter the workforce.[^107]

[208] Dr Geishardt received far more than the support to which she would have been entitled for a period of about 7.5 years. Were it not for Dr Geishardt’s reliance on the Separation Agreement, by December 2012 it would have been appropriate to provide Dr Geishardt with a short period of transitional support to permit her to adjust to life without spousal support, and nothing more. This is certainly not a case where Dr Geishardt is entitled to support on a compensatory basis. Rather, it is a case where the “clean break model”, rather than the “mutual obligation model” of spousal support ought to be applied.[^108]

[209] However, it was reasonable of Dr Geishardt to rely upon the Separation Agreement in deciding what she would do with her life. The Separation Agreement did not, on its face, require her to enter the work force. Although it was inconsistent with the principles in the Divorce Act, Dr Ahmed’s promise that he would always support Dr Geishardt, his execution of the Separation Agreement that seemed to incorporate this assurance, and his confirmation of the terms of the Settlement Agreement in the Amending Agreement, all provided a basis for Dr Geishardt to believe that she would receive support and thus would not need to work. On the other hand, I have found that Dr Geishardt was deceptive with Dr Ahmed about whether she was pursuing her career, and actually spent Dr Ahmed’s money to pay rent for her office – and then renewed that lease – not for the purpose of working there but rather of creating the impression with Dr Ahmed that she was doing so.

[210] In Moscoe v. DiFelice, Karakatsanis J. (as she then was) found that the failure to take steps to become self-sufficient could be a basis for terminating support. Instead, the court awarded a further 18 months of support, without variation, for a total of seven years of support post-separation, giving the recipient spouse time to adjust to her new financial reality.[^109]

[211] There is considerable fault on both sides. On balance, I place considerable weight on the Separation Agreement, the result of Dr Ahmed’s carelessness and, indeed, folly, and conclude that support should be paid in accordance with that agreement from the sale of the matrimonial home until to the end of the trial, a period of about three years. I conclude that support should also be payable after the end of the trial for a short period, for purposes of transition. I fix that period at six months. I do not extend the period to the date of judgment. The period of reserve has been lengthy and I do not consider that Dr Ahmed should be penalized financially for that by extending support through and beyond the period that judgment was reserved. The trial ended on November 1, 2016. I would continue support to the end of April, 2017. I would credit Dr Ahmed with support he paid after April 2017.

[212] In the result then, Dr Geishardt will be entitled to support for a period of roughly 3.5 years after the sale of the matrimonial home. This is a sufficient period to reflect Dr Geishardt’s reasonable reliance on the Separation Agreement, and places considerable emphasis on the importance of the bargain the parties made back in April 2008 and again in November 2010.

[213] I would make one other adjustment to support. Temporary support was ordered at $15,000 per month plus $10,000 per month in expenses related to the matrimonial home.[^110] Temporary support was awarded to Dr Geishardt of $25,000 per month after the matrimonial house was sold. The Separation Agreement provided for $29,000 per month. I would enforce the support provisions of the Separation Agreement from the closing the sale of the matrimonial home in the fall of 2013 to the end of the support period in April 2017. This results in a credit for Dr Geishardt if $4,000 per month for 42 months, which is a total of $168,000. Netted against this will be Dr Ahmed’s payments from May 2017 to the date of release of this judgment (5 months x $25,000 = $125,000). This leaves a net balance of support owing to Dr Geishardt of $43,000, which I would order payable forthwith, without prejudgment interest.

11. Prudence and Common Sense

[214] The parties have both acted irresponsibly. Consider. Dr Ahmed earns around $800,000 per year. The parties have no children and no material financial responsibilities for anyone other than themselves.[^111] Dr Geishardt is qualified as a psychologist. The parties have been separated since 2005. When they separated they were on such good terms that they continued their financial relationship for another seven years. They were in a position to bring their financial affairs to an end in a civilized fashion at any time during that seven year period, achieve a “clean break” with each other, remain friends, as it seemed they wanted to do, and continue to live at a high standard of living.

[215] Instead they have failed to pay their taxes, squandered the considerable wealth generated by Dr Ahmed by living beyond their means, engaged in ruinous litigation with each other for years, and ended by taking positions in the litigation that are so one-sided as to leave the other side in financial ruin while accepting none of the consequences of their own long-term folly. Dr Ahmed took no responsibility for his own financial affairs. Dr Geishardt racked up more than $70,000 in useless office expenses (and probably a great deal more when utilities are included). In her evidence she retained a 2004 Maserati after separation, which she subsequently just “gave away” to her building contractor, she says “for no consideration”, as a sort of present to apologize for some late payments. The words of the Manitoba Court of Appeal, in different but comparable circumstances, come to mind:

Prudent financial planning is to be expected of anyone appearing in family court. Scarcity of resources is just as much a reality of economic life for an individual as it is for a corporation or the state. As a matter of law, courts should not condone irresponsible financial behavior or enable unrealistic expectations.[^112]

[216] A shadow looms over the parties now, particularly Dr Ahmed. Through their folly they now receive a judgment in which a trial judge notes, in some detail, that it appears that they have not paid their taxes. This may prompt Canada Revenue Agency to look into their affairs. I have no evidence of the likelihood of that eventuality. I have no evidence of the range of possible outcomes if it happens. As a matter of common sense, the financial consequences could be disastrous.

[217] This conundrum arises for family law trial judges more often than is supposed. The family law courts do not collect taxes. We insist on full financial disclosure, and sometimes that results in information of taxation problems. My findings as to what the parties’ incomes have been for tax purposes are to decide support issues, not tax issues. So this judgment does not decide that there has been taxation default. But the probability of it seems high.

[218] Serious taxation problems in families involved in family law litigation can make it very difficult to settle cases. It may leave a family facing fiscal ruin just at a time when their resources are already pressed beyond coping. But on the other hand, it is not an option for a court of law to conduct its cases on the basis that it is acceptable not to report and pay income taxes that are due. The issue arises at the very centre of this case: the non-payment of taxes must have been the basis on which the parties supposed, back in 2008, that $29,000 per month could possibly be close to a fair figure for support. Dr Geishardt’s position in this trial is premised, at least in part, on the assumption that this conduct will continue indefinitely into the future. Dr Ahmed’s agreement with this position is premised on the same position respecting the tax issues.

[219] Dr Ahmed has not asked me to take account of his possible contingent tax liability. Indeed, after having received his expert accountant’s first report in 2014, which notes the underpayment of taxes for the years 2005 to 2012, Dr Ahmed continued to over-report his expenses in subsequent tax returns, undercutting substantially his claim during the trial that the substance of his returns was entirely the responsibility of his tax accountant and Dr Geishardt: even when he learned from an expert forensic accountant that there was a big problem, he apparently refused to accept it.

[220] This judgment does not decide that Dr Geishardt is partially responsible for any tax problems Dr Ahmed may encounter as a result of the events described in this judgment. On the other hand, this judgment does not preclude a claim by Dr Ahmed against Dr Geishardt for contribution or other relief arising out of any reassessments that may take place. The goal of a judgment in a case like this is to settle the parties’ obligations to each other so that they may move on, but there is not much the court can do when the parties leave such an important issue dangling.

[221] Thus, even if I am wrong and if Dr Ahmed’s expert, Mr Ranot, is wrong, and there has not been material overstatement of expenses on Dr Ahmed’s tax returns, or even if there are no tax repercussions as a result of release of this judgment, I have not rested my decision on any notional contingent tax liability for Dr Ahmed that should be apportioned with Dr Geishardt.

(vi) Property Issues

[222] The parties have resolved the major property issues. The only issues that remain concern a few specific pieces of personal property: a signed photo of Muhammed Ali and a photograph of Muhammed Ali with the Beatles. Each party claims that the property belongs to him/her.

[223] I am not able to decide the property issues solely on the basis of the parties’ testimony on these issues. Either could be right in respect to each of the disputed items.

[224] Not having a basis to decide solely on the evidence related to the disputed property, I decide this issue on the basis of my general findings of credibility. And on this front I much preferred the evidence of Dr Ahmed to that of Dr Geishardt. I am satisfied that Dr Geishardt was deliberately untruthful about money she says she received from her mother. Dr Geishardt testified that her mother, a retired art teacher living modestly in Montreal, loaned Dr Geishardt a large amount of money, and did so by giving it to her in cash, bringing it to her on a bus from Montreal. This evidence was completely incredible. Dr Geishardt’s mother was of modest means – Dr Geishardt and Dr Ahmed had previously provided her with modest financial assistance. Dr Geishardt did not list this as a debt on her original financial statement and had no credible explanation for the omission. Dr Geishardt undertook that her mother would testify at trial, via video link, and then reneged on this commitment.[^113] And if it was true it would have been utterly disgraceful: Dr Geishardt testified that she was worried about paying her bills when Dr Ahmed stopped sharing his income with her in December 2012. Dr Geishardt was in a home valued in the range of $2 million, living a life of great luxury, and on her evidence she borrowed from her retired mother of modest means. Dr Geishardt dissembled with Dr Ahmed by telling him she was practicing psychology, and then by spending Dr Ahmed’s money for useless rental payments, for a five years lease, which she then renewed.

[225] As I have indicated in my reasons, there were places where I did not accept Dr Ahmed’s evidence. For the most part, in my view, Dr Ahmed simply sees and experiences the world slightly askew, and his recollection of events is coloured by this tilt. He has spectacularly mismanaged his financial affairs, takes no responsibility for it, and then blames those around him when things go wrong. I conclude that he is mostly sincere in these views, unreasonable as they are. On the whole, though, I think that Dr Ahmed was generally providing his evidence on the basis of the way he understands things to have happened. At times Dr Geishardt did not. On this basis I conclude that Dr Ahmed was the more truthful witness and prefer his evidence to Dr Geishardt’s evidence on the issues concerning contested property ownership. I find that the disputed items belong to Dr Ahmed and direct Dr Geishardt to return them to him within 14 days.

(vii) Other Issues

1. Discovery Transcripts Not Part of Evidence

[226] Complete discovery transcripts were included in the trial record. In my view this practice should be discouraged. During the trial I ruled on this issue as follows:

Those transcripts are not, underline not, in evidence in this trial, except to the extent that they are used to impeach a witness who testifies. And just so that everybody understands, and all counsel are nodding their heads, everybody understands this, I am not reading those transcripts. Those transcripts are not in evidence. And only when a witness is cross-examined on some portion of the transcript, that portion may end up being in evidence. And I just want you, your clients and counsel, to all be clear on that.

Similarly, I was referred to Dr Geishardt’s mother’s affidavit yesterday during cross-examination of Dr Geishardt. That affidavit is not in evidence for the truth of its contents. The statements that are in the affidavit were put to Dr Geishardt and her statements about those statements are in evidence. And that was the purpose for which the document was used. But the affidavit itself is not in evidence for the truth of its contents.[^114]

2. Requested Insurance Now Not Necessary

[227] Dr Geishardt also asks that I order Dr Ahmed to comply with his obligations in the Separation Agreement to maintain insurance for those obligations. Since I have terminated support in this judgment, there is no need for insurance for those obligations. Pursuant to s,15.2 of the Divorce Act, I would override those provisions of the Separation Agreement as a consequence and dismiss this request.

3. Court’s Response to Apparent Taxation Defalcation

[228] This issue arises quite frequently in family law cases, though not usually on the scale presented in this case. While tax gross-ups are common enough in family law decisions, the question of what to do about apparent taxation defalcation is seldom addressed. Here, the parties proceeded before me on the basis of historic problems on the basis that the problems will continue into the future. Dr Geishardt asked me to impute income on the basis of hundreds of thousands of imputed tax gross-ups annually, and so did Dr Ahmed. A path of low resistance would be to accept those positions without comment and proceed to calculate entitlement on that basis. In a case such as this one, in my view, this would be tantamount to appearing to condone serious misconduct.

[229] Family law courts are reluctant to venture into this terrain for several good reasons. First, the responsibility to assess and collect taxes lies elsewhere. CRA has tools at its disposal for this purpose, and both sides have recourse to the Tax Court of Canada where there are disputes. Second, disclosure is compelled in family law. If the result of disclosure will be a minute critique of one’s tax compliance, the process of disclosure will become an even more fraught area in family law. Third, the risk of tax complications has the underlying effect of reducing access to the family law courts: a family with serious underlying tax problems may conclude that neither side can afford public disclosure of their affairs. Fourth, the hammer of possible tax proceedings provides fertile ground for vindictive spouses. Fifth, in families where money is tight, which is a great many families, adding an additional potential liability may make it almost impossible for the family to make ends meet, and in some cases may prompt bankruptcy, with disastrous effects on dependent spouses and children.

[230] On the other hand, if family law courts turn a blind eye to non-compliance with tax laws, this encourages disrespect for the law, for the obligation to report and pay taxes, and the Rule of Law itself. It fosters a culture of non-compliance with taxation laws. The courts are a separate branch of government but are part of the government nonetheless: it is common enough for family law courts to order taxpayers to file tax returns for years in which they have not done so, so that proper disclosure can be made. I am not aware of family law courts requiring a party to report an apparent tax defalcation to tax authorities in order to get it resolved to establish the family’s true financial circumstances.

[231] I do not have an answer for this dilemma. I have concluded that the tax issues were so central to the core issues in this case that the problem could not be sidestepped or ignored.

(viii) Disposition

[232] For these reasons:

(a) Dr Ahmed’s request that I set aside the Separation Agreement and the Amending Agreement pursuant to the Family Law Act is dismissed;

(b) Dr Geishardt’s request that I order support of $29,000 per month, indefinitely, in accordance with the Separation Agreement and the Amending Agreement, is dismissed;

(c) Dr Geishardt’s request that I order Dr Ahmed to maintain insurance for his spousal support obligations is dismissed;

(d) Dr Ahmed is ordered to pay $43,000 to Dr Geishardt forthwith on account of spousal support;

(e) Dr Ahmed’s claim for damages against Dr Geishardt is dismissed;

(f) The disputed property items are declared to be Dr Ahmed’s property and Dr Geishardt is directed to return them to Dr Ahmed within 14 days;

[233] In respect to costs, success has been divided. However, the parties may consider that success has not been equally divided, and may also be of the view that the costs associated with the various issues in dispute were materially disparate. And, of course, there may be material offers to settle. If the parties cannot agree on costs then counsel are directed to convene a conference call with me no later than October 20, 2017, for directions on addressing the costs issue.

D.L. Corbett J.

Released: September 25, 2017

CITATION: Geishardt v. Ahmed, 2017 ONSC 5513

COURT FILE NO.: FS-12-1813000

DATE: 20170925

ONTARIO

SUPERIOR COURT OF JUSTICE

D.L. Corbett J.

BETWEEN:

Suzanne Margaret Geishardt

Applicant

• and -

Shafqat Monwar Ahmed

Respondent

JUDGMENT

D.L. Corbett J.

Released: September 25, 2017

[^1]: In some places the evidence puts this date at April 21, 1997. Nothing turns on this discrepancy. [^2]: He started to cohabit with his new partner in September 2005 and proposed marriage to her in 2006; they have not yet married. [^3]: I address the remaining minor property issues at the end of this judgment. [^4]: The parties disagree on this point in their evidence. I prefer Dr Geishardt’s recollection since it is consistent with later emails and with Dr Ahmed’s emotional state and feelings around the time of the separation. [^5]: Dr Ahmed’s Opening Statement, para. 17. [^6]: Dr Geishardt also over-claimed her deductions, consistently, but given her relatively low reported income, the consequences of this problem are not nearly so substantial as the problems in Dr Ahmed’s tax situation. [^7]: Exhibit 2(1)2, para. 6(a). [^8]: Exhibit 2(3)1. [^9]: See for example Kilbreath v. Morgan (2011), 2012 ONSC 2494, 20 RFL (7th) 317, per F.P. Kiteley J., paras. 152-153. [^10]: Buckley v. Buckley, 2007 ABCA 232, paras. 3, 8-9, affirming S.M.B. v. L.M.B., 2006 ABQB 141, per Belzil J.; Miller v. Miller (2008), 2008 SKQB 318, 65 RFL (6th) 198 (Sask. CA), per D.C. Hunter J.A., paras. 151-154; Pacik v. Bilodeau, 2011 SKQB 250, per G.N. Allbright J., para. 41. [^11]: This was the date of Dr Ahmed’s counsel’s letter demanding sale of the house: Exhibit 6(1). [^12]: See Smith v. Lau (2004), 2004 BCCA 443, 8 RFL (6th) 406 (BCCA), per Levine JA, paras. 40-42; Lalonde v. Lalonde, 2009 ONCA 540, para. 5. [^13]: Paul Perell, Real Estate Transactions, 2nd ed., Canada Law Book, p. 340, referring to W. J. Crowe Ltd. v. Pigott Construction Ltd., 1961 23 (ON CA), [1961] O.R. 305 (Ont. C.A.) affirmed 1963 10 (SCC), [1963] S.C.R. 238 (S.C.C.); Guarantee Co. of North America v. Gordon Capital., 1999 664 (SCC), [1999] 3 SCR 423, para. 40; Mersey Steel & Iron Co. v. Naylor, Benzon & Co. (1884), 9 App. Cas. 434 (UK HL); and, D. M. McRae “Repudiation of Contracts in Canadian Law” (1978), 56 Can. Bar Rev. 233, cited with approval in Kalis v. Pepper, 2015 ONSC 453 (SCJ), per Lederer J., para. 11. [^14]: Endorsement of Jarvis J., February 19, 2013, Exhibit 7(2). [^15]: Freake v. Freake (2004), 2004 NLCA 39, 50 RFL (5th) 1 (Nfld. & Lab. CA), para. 51, Charter Building Co. v. Ladson Properties Ltd. (2011), 2011 ONCA 487, 107 OR (3d) 133, 336 DLR (4th) 471 (CA), per G.P. Epstein JA, paras. 30-31. [^16]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B, s.5(1), Boyce v. Toronto Police Services Board, 2012 ONCA 230, para. 2. [^17]: Limitations Act, 2002, S.O. 2002, c.24, Sch. B, s.5(1)(b). [^18]: See Lawless v. Anderson (2011), 2011 ONCA 102, 81 CCLT (3d) 220 (Ont. CA). [^19]: El Feky v. Tohamy (2010), 2010 ONCA 647, 90 RFL (6th) 302 (Ont. CA), per M.A. Rosenberg JA, para. 35. [^20]: McConnell v. Huxtable (2014), 2014 ONCA 86, 118 OR (3d) 561 (CA), per Laskin JA, para. 54 (citations omitted). [^21]: Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 SCR 377. See also K.M. v. H.M., 1992 31 (SCC), [1992] 3 SCR 6, paras. 73-81. [^22]: Guzzo v. Randazzo, 2017 ONSC 1845 (Div. Ct.), per Stewart J., para. 65 (citation omitted to Hodgkinson v. Simms, at paras. 33-34. [^23]: See Guerin v. R., 1984 25 (SCC), [1984] 2 SCR 335. [^24]: In this regard I would not adopt into Ontario family law the analysis in Mollot v. Mollot (2006), 2006 ABQB 249, 406 AR 167 (ABQB). [^25]: See, for example, Goodyer v. Goodyer, 1999 20759 (ON SCDC), 1999 CarswellOnt 37 (SCJ), per Perkins J. [^26]: Belgiogio v. Belgiogio (2000) 2000 22733 (ON SC), 10 RFL (5th) 239 (Ont. SCJ), per Beaulieu J., para. 34. [^27]: Drummond v. Drummond, 2012 ONSC 2038, per McLean J., para. 14. [^28]: Parmigiani v. Parmigiani, 2006 9976 (Ont SCJ) per D.J. Gordon J., para. 102. [^29]: ibid., para. 103. [^30]: In para. 24 of his Opening Statement, Dr Ahmed sought relief under s.17 of the Divorce Act. In the absence of a prior final support order, the appropriate analysis is under s.15.2, and it was on this basis that the case was argued. This issue was raised in para. 26 of the Opening Statement; although s.15.2 of the Divorce Act was not cited, Miglin was. [^31]: To the extent that it is thought that a successful Miglin application leaves a party with a subsisting enforceable contractual right to support, and a different statutory order for support, I respectfully disagree (see Zimmerman v. Shannon, 2006 BCCA 499): if the support provisions of a Separation Agreement are “overridden” (in the language of Miglin) then in my view they are no longer enforceable. [^32]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303. See Rolland v. Tevendale (2015), 2015 ONSC 3226, 62 RFL (7th) 371 (Ont. SCJ), para. 35, per G.P. Smith J. [^33]: See Dundas v. Sinclair (2014), 2014 MBCA 92, 50 RFL (7th) 37 (Man. CA), per M.M. Monnin JA, paras. 54-58, Church v. Church (2003), 2003 1942 (ON SC), 40 RFL (5th) 43 (Ont SCJ), per Perkins J., para. 44, Heslop v. Heslop (1984), 1984 830 (BC SC), 39 RFL (2d) 322 (BCSC), per Wallace J., para.30 and the authorities cited therein. There was also a penalty clause in respect to confidentiality in the Separation Agreement, which is likewise unenforceable, though I do not understand there to be any claim under it. [^34]: Strifler v. Strifler, 2014 ONCJ 69, para. 60, and the authorities cited therein. [^35]: LeVan v. LeVan (2008), 2008 ONCA 388, 90 OR (3d) 1, 51 RFL (6th) 237 (CA), paras. 33 and 51; Virc v. Blair (2014), 2014 ONCA 392, 119 OR (3d) 721 (CA), para. 52. See also Dochuk v. Dochuk (1999), 1999 14971 (ON SC), 44 RFL (4th) 97 (Ont. Gen. Div.), per Lack J., and Demchuk v. Demchuk (1986), 1986 6295 (ON SC), 1 RFL (3d) 176 (Ont. HCJ), per Clarke LJSC. [^36]: Hyldtoft v. Hyldtoft (1991), 1991 12868 (ON SC), 33 RFL (3d) 99 (Ont. Gen. Div.), paras. 26-28. [^37]: Segal v. Qu (2001), 2001 28201 (ON SC), 17 RFL (5th) 152 (Ont. SCJ), para. 59. [^38]: Rolland v. Tevendale (2015), 2015 ONSC 3226, 62 RFL (7th) 371 (Ont. SCJ), paras. 59-61, per G.P. Smith J. See also Berdette v. Berdette (1991), 1991 7061 (ON CA), 81 DLR (4th) 194 (Ont. CA), para. 22; Segal v. Qu (2001), 2001 28201 (ON SC), 17 RFL (5th) 152 (Ont SCJ), per Himel J., para. 58. [^39]: He met his current fiancé, Ms Watling, in July 2005. Ms Watling and her daughter moved in with Dr Ahmed in September 2005. [^40]: By his own testimony, Dr Ahmed told Ms Watling that his financial situation was “complex” and that “if Dr Geishardt was no longer involved, we would be bankrupt.” No basis was provided for this preposterous assertion, and although I did not hear from Ms Watling, it is easy to understand why she might have been sceptical of such an explanation. [^41]: Dr Ahmed’s mother was diagnosed with a brain lymphoma in the fall of 2006 and she died in October 2008. [^42]: The heart attack was on March 6, 2006, and Dr Ahmed was back at work the next day, he testified that he performed three procedures on March 7, 2006. [^43]: Mundinger v. Mundinger, 1968 250 (ON CA), [1969] 1 OR 606 at 609 (CA), per Schroeder JA. [^44]: Rosen v. Rosen (1994), 1994 2769 (ON CA), 18 OR (3d) 641 (CA), paras. 12-13, per Grange JA. See also Clayton v. Clayton (1998), 1998 14840 (ON SC), 40 OR (3d) 24, 38 RFL (4th) 320, per Dunbar J. [^45]: Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 SCR 226, para.33. [^46]: Merlinger v. Merklinger (1996), 1996 642 (ON CA), 26 RFL (4th) 7 (Ont. CA). [^47]: Roback v. Roback, [1993] OJ No. 2056 (Gen. Div.). [^48]: Meade v. Meade (2002), 2002 2806 (ON SC), 31 RFL (5th) 88 (Ont. SCJ), per Kiteley J., para. 74 (citations set out in previous two footnotes); see also Scheel v. Henkelman (2001), 2001 24133 (ON CA), 52 OR (3d) 1, 11 RFL (5th) 376 (CA), per Borins JA, para. 20. [^49]: Rick v. Brandsema, 2009 SCC 10, [2009] 1 SCR 295. [^50]: Rick v. Brandsema, 2009 SCC 10, [2009] 1 SCR 295, 62 RFL (6th) 239, para. 47. [^51]: Rick v. Brandsema, 2009 SCC 10, [2009] 1 SCR 295, 62 RFL (6th) 239, para. 49. [^52]: See the analysis in Quinn v. Epstein Cole (2007), 2007 45714 (ON SC), 87 OR (3d) 184, 44 RFL (6th) 337 (SCJ), per D.M. Brown J. (as he then was), paras. 46-48, aff’d. 2008 ONCA 102. [^53]: Armstrong v. Armstrong (2006) 2006 32899 (ON CA), 32 RFL (6th) 244 (Ont. CA), para. 2. [^54]: See Dochuk v. Dochuk (1999), 1999 14971 (ON SC), 44 RFL (4th) 97 (Ont. Gen. Div.), paras. 18-19, per Lack J. [^55]: Clayton v. Clayton (1998), 1998 14840 (ON SC), 40 OR (3d) 24, 38 RFL (4th) 320 (Gen. Div.), per Dunbar J.; A.A.M. v. R.P.K. (2010), 2010 ONSC 930, 81 RFL (6th) 370 (Ont. SCJ), per Pazaratz J., para. 134. See also Toscano v. Toscano, 2015 ONSC 487, 2015 CarswellOnt 836, per Blishen J., paras. 46-58. [^56]: Patrick v. Patrick, 2002 CarswellOnt 593 (SCJ), per Mesbur J., paras. 52-53. See also Lambert v. Lambert (2008), 2008 22131 (ON SC), 52 RFL (6th) 363, per T.A. Platana J., at para. 37, Dubin v. Dubin (2003), 2003 2103 (ON SC), 34 RFL (5th) 227 (Ont. SCJ), per Mesbur J., para. 32. [^57]: LeVan v. LeVan (2008), 2008 ONCA 388, 90 OR (3d) 1, 51 RFL (6th) 237 (Ont. CA), paras. 54 and 61. [^58]: See Exhibits 1(3)1(B) and (C). [^59]: The same provision is at para. 12(a) of the Amending Agreement. [^60]: Dyck v. Bosholt, 2009 CarswellOnt 7351 (SCJ), per Healey J., quoted in A.A.M. v. R.P.K. (2010), 2010 ONSC 930, 81 RFL (6th) 370 (Ont. SCJ), per Pazaratz J., para. 142 (citations omitted from quoted text but footnoted below). [^61]: Dougherty v. Dougherty, 2008 ONCA 302, [2008] O.J. No. 1502 (Ont. CA). [^62]: Ablaka v. Ablaka, 1991 12843 (ON SC), [1991] O.J. No. 758 (Ont. UFC); aff’d. 1994 8793 (ON CA), [1994] O.J. No. 3622 (Ont. CA). [^63]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303. [^64]: Rick v. Brandsema, 2009 SCC 10, [2009] 1 S.C.R. 295. [^65]: Settle-Beyrouty v. Beyrouty (1996), 1996 19739 (ON SC), 24 R.F.L. (4th) 318 (Ont. Gen. Div.). [^66]: Mantella v. Mantella (2006), 2006 10526 (ON SC), 80 OR (3d) 270, 267 DLR (4th) 532, 27 RFL (6th) 57 (SCJ), paras. 53-54. [^67]: Strifler v. Strifler, 2014 ONCJ 69, para. 67, Dougherty v. Dougherty (2008), 2008 ONCA 302, 89 OR (3d) 760, 51 RFL (6th) 1 (CA). See also Settle-Beyrouty v. Beyrouty (1996), 1996 19739 (ON SC), 24 R.F.L. (4th) 318 (Ont. Gen. Div.); Gregory v. Brown (2005), 2005 ONCJ 284, 21 R.F.L. (6th) 289 (Ont. CJ); Rosen v. Rosen, 1994 2769 (ON CA), 18 O.R. (3d) 641, 3 R.F.L. (4th) 267 (Ont. CA); Mercer v. Mercer (1978), 1978 3055 (ON SC), 5 R.F.L. (2d) 224 (Ont. HC). [^68]: It would have been possible to fashion an argument that the agreement was predicated on systematic breach of the Income Tax Act, and therefore unenforceable as illegal or contrary to public policy. These arguments were not raised in this case and thus I do not rely upon them or decide them. [^69]: Blair v. Stewart-Blair (2013), 38 RFL (7th) 161 (BCSC), per Bernard J., para. 5. See also L.M.P. v. L.S., 2011 SCC 64, [2011] 3 SCR 775, R.P. v. R.C., 2011 SCC 65, [2011] 3 SCR 819, Zimmerman v. Shannon (2006), 2006 BCCA 499, 34 RFL (6th) 32, 276 DLR (4th) 659 (BCCA) and Peel v. Peel, 2012 ONSC 761 (SCJ), per Kruzick J. [^70]: Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303. [^71]: Miglin, para. 4. [^72]: The Pelech trilogy: Pelech v. Pelech, 1987 57 (SCC), [1987] 1 SCR 801; Richardson v. Richardson, 1987 58 (SCC), [1987] 1 SCR 857; Caron v. Caron, 1987 59 (SCC), [1987] 1 SCR 892. [^73]: Miglin, para. 45. [^74]: Miglin, para. 46. [^75]: Miglin, para. 56. [^76]: This proceeding is properly brought under s.15.2 of the Divorce Act, and not under s.17 of the Act. The rationale for this conclusion is set out in Stobo v. Stobo, 2016 ONSC 5805, per A.J. Doyle J., which I adopt on this point. [^77]: Miglin, para. 64. [^78]: Miglin, para. 80. [^79]: Miglin, para. 83. [^80]: Miglin, para. 84. [^81]: Miglin, para. 85. [^82]: Miglin, para. 87. [^83]: Miglin, para. 88. [^84]: Miglin, paras. 88-89. [^85]: Miglin, para. 90. [^86]: Miglin, para. 91. [^87]: Fisher v. Fisher (2008), 2008 ONCA 11, 88 OR (3d) 241, 47 RFL (6th) 235 (CA), para. 96. [^88]: Fisher v. Fisher (2008), 2008 ONCA 11, 88 OR (3d) 241, 47 RFL (6th) 235 (CA), para. 100. [^89]: Fisher v. Fisher (2008), 2008 ONCA 11, 88 OR (3d) 241, 47 RFL (6th) 235 (CA), para. 103. [^90]: Dr Geishardt’s tax returns to 2012 are found at Exhibit 1(2)1(A) to (K) and show the “income” from Dr Ahmed, deductions that do not appear valid as against that (or any other) income, and sometimes non-material investment income. Dr Geishardt said the figure of $29,000 was suggested by the family accountant in a meeting with both her and Dr Ahmed, so that it would be below $30,000 and thus “under the radar” for tax authorities. [^91]: See Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 OR (3d) 711 (CA). [^92]: See Pey v. Pey, 2016 ONSC 1909, per Shelston J., paras. 85-89. [^93]: Exhibit 2(13)27, p.4, para. 7.02 [^94]: Dr Geishardt defended her Ph.D. thesis three months after separation (in September 2005) and required some clinical experience after that before opening a clinical practice on her own. [^95]: See Abelson v. Mitra (2008), 2008 BCSC 1197, 59 RFL (6th) 364 (BCSC), paras. 37-42, where Brine J. took essentially the same common sense approach where minimum wage imputation would clearly be inadequate. [^96]: I have not included an analysis of 2005. It was a partial year and the calculations were annualized by Mr Ranot to obtain an annual income for support purposes. I do not consider the results of these calculations necessarily to be accurate for the purposes of the point I make here – about the extent and duration of the tax problems. It appears to me that the same problems existed in 2005, but perhaps not to the same extent as in later years. [^97]: This figure is net of a deduction for Dr Geishardt’s management fees of $29,010 annually, which seems a dubious deduction. [^98]: See for example Ayoub v. Osman, 2006 CarswellOnt 1808 (SCJ), per Aston J., where the assessment process was underway at the time that the Separation Agreement was executed. The court concluded that Mr Ayoub “certainly knew that there might be a significant liability” when he executed the Agreement. This fact, plus the fact that “the tax authorities reassessed [the parties] equally” led the court to conclude that the results of the assessment did not justify a variation of the Separation Agreement (para. 25). [^99]: Fisher v. Fisher (2008), 2008 ONCA 11, 88 OR (3d) 241, 47 RFL (6th) 235 (CA), para. 88. [^100]: Exhibit 2(6)2(O). Mr Cooper’s rough calculations were based on facts that are slightly different from the facts I have found – an 11 year marriage – with income at $840,000 – with a tax gross-up. [^101]: McNeill v. McNeill, 2013 ABQB 564, per C.A. Anderson J., para. 32. [^102]: Linton v. Linton (1990), 1990 2597 (ON CA), 1 OR (3d) 1 at 27-28 (CA). [^103]: Fisher v. Fisher (2008), 2008 ONCA 11, 88 OR (3d) 241, 47 RFL (6th) 235 (CA), paras. 53-54 (original footnote omitted). [^104]: Moge v. Moge, 1992 25 (SCC), [1992] 3 SCR 813 at 870. [^105]: Davies v. Quantz (2010), 100 RFL (6th) 156 (Ont. SCJ), para. 49, J.E. Marshman J. [^106]: Davies v. Quantz (2010), 2010 ONCA 896, 100 RFL (6th) 176 (Ont. CA). See also Zeitlhofer v. Boneham (2005), 24 RFL (6th) 404 (Div. Ct.), para. 2. [^107]: See for example Klimm v. Klimm, 2010 ONSC 1479, per G.M. Mulligan J., para. 41; Jiwaji v. Jiwaji (2008), 2008 56934 (ON SC), 60 RFL (6th) 342, per T.M. Wood J., paras. 60 and 62 (where support was stepped down after 2 years and a review ordered after 4 years, but where the recipient spouse’s prospects were uncertain); D.P.R. v. T.T.R. (2014), 2014 PESC 14, 350 Nfld. & PEIR 65, per W.D. Cheverie J., para. 43 (the trial judge described the relationship as having been “for a relatively short period of time”, but found the duration to have been seven years of marriage and nine years of cohabitation – within the “medium” range of the SSAG and comparable to the case at bar); Depatie v. Squires, 2012 ONSC 1399 (Div. Ct.), para. 14. [^108]: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 SCR 420, paras. 29 and 32. [^109]: Moscoe v. DiFelice (2006), 2006 63730 (ON SC), 24 RFL (6th) 140 (Ont. SCJ), per Karakatsanis J. (as she then was), paras. 83-86. [^110]: Order of Jarvis J. dated February 19, 2013. [^111]: Dr Ahmed now has a new partner, Charlene Watling and he stands in loco parentis to his partner’s child, Maria. There is no suggestion that Dr Ahmed’s obligations to his new family impede his ability to pay reasonable support to Dr Geishardt and to enjoy an affluent lifestyle himself. [^112]: Aquila v. Aquila (2016), 2016 MBCA 33, 76 RFL (7th) 1, 397 DLR (4th) 102, 326 Man. R (CA), para. 66, per C.J. Mainella J.A. [^113]: The court permitted Dr Geishardt to renege from this commitment, but on the basis that it would be open to the court, if the court thought it appropriate in view of the entirety of the evidence, to draw an adverse inference from the fact that Dr Geishardt’s mother did not testify. [^114]: Trial Ruling #1, September 16, 2016, pp. 1-2.