CITATION: Hebo v. Putros, 2017 ONSC 7043
NEWMARKET COURT FILE NO.: FC-13-043942-00
DATE: 20171127
CORRECTED DATE: 20171129
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAWSAN HEBO Applicant
– and –
PETER JACOB PUTROS Respondent
Kim Larsen, for the Applicant
William H. Abbott, for the Respondent
HEARD: May 15-19, 23-25, 29 and July 27, 2017
Corrected decision: The text of the original decision was corrected on November 29, 2017 and a description of the corrections is appended
F. GRAHAM J.
Brief Background and Issues
[1] Sawsan Hebo and Peter Putros were married on May 16, 2001.
[2] The parties’ first child, J, was born on January 5, 2005. Their second child, L, was born on June 16, 2006.
[3] The parties separated on May 14, 2013.
[4] The parties settled various issues before trial. The children are primarily resident with Ms. Hebo. They have regular parenting time with Mr. Putros.
[5] The issues remaining to be determined at trial are: ownership of the matrimonial home, equalization or an unequal division of net family property, unjust enrichment, child support, special or extraordinary child expenses, spousal support, security for support, and divorce.
Assessment of Reliability and Credibility of Witnesses
Sawsan Hebo
[6] Ms. Hebo, as a party to the proceeding, implicitly had a natural bias, whether conscious or unconscious, in favour of her position.
[7] Her testimony that she had a black eye as a result of being assaulted by Mr. Putros, and that her birthdays were not celebrated by Mr. Putros, was externally inconsistent with some of the photographs filed during cross-examination (Exhibit 42). Her explanation that make-up covered her black eye in the photographs was not persuasive.
[8] In addition, her testimony that her sister loaned her money prior to separation was externally inconsistent with her financial statement dated July 29, 2013 (Exhibit 37) which did not indicate a debt to her sister. On the other hand, her financial statement dated October 10, 2013 (Exhibit 38) did indicate such a debt.
[9] Otherwise, her testimony was internally consistent and not inherently incredible. Furthermore, she was not evasive or focused on her own agenda during questioning.
[10] The court finds that a moderate degree of caution is appropriate when considering her evidence.
Soondoos Patros
[11] Ms. Patros, as a sibling to a party to the proceeding, implicitly had a natural bias, whether conscious or unconscious, in favour of her sister’s position.
[12] Otherwise, her testimony was externally and internally consistent and not inherently incredible. Furthermore, she was not evasive or focused on her own agenda during questioning.
[13] The court finds that a slight degree of caution is appropriate when considering her evidence.
Rita Putros
[14] Ms. Putros, as a sibling to a party to the proceeding, implicitly had a natural bias, whether conscious or unconscious, in favour of her brother’s position.
[15] Further, Ms. Putros testified that her friendship with Ms. Hebo, which commenced before the parties were married, ended when the parties separated.
[16] Ms. Putros demonstrated explicit bias when she wished her brother, “good luck” when she left the courtroom after testifying.
[17] Her testimony that she processed four transfers from her parents to Mr. Putros totaling $25,000 in 2010 ($7,500 x 2 and $5,000 x 2) was internally inconsistent with her later testimony that the four transfers totaled $28,000 ($7,500 x 2, $5,000 x 1, and $8,000 x 1). This inconsistency was significant, because she testified that she had a good recollection about these amounts for several reasons: she graduated from a banking programme, she works with money, and the money belonged to her parents.
[18] Her initial testimony that the first promissory note was dated June 7, 2014 was externally inconsistent with the note (Exhibit 119) that was dated June 7, 2010. In addition, her initial testimony that the extension to the note was dated June 7, 2014 was externally inconsistent with the extension (Exhibit 120) that was dated June 1, 2014. These inconsistencies were significant, because it is alleged by Ms. Hebo that the initial note is a fabrication, created after separation, and the extension note is also a fabrication.
[19] Ms. Putros’ testimony that it would have been too dangerous for her parents and her sister to carry a total of $100,000 U.S. dollars with them when they drove together from Iraq to Syria, because they would have been at risk of being robbed and killed en route, but it would have been safe for them to each carry $20,000 U.S. dollars, or a total of $60,000 U.S. dollars, was inherently incredible, given that both are substantial sums.
[20] Further, Ms. Putros’ testimony that she knew that Ms. Hebo was working for a temporary employment agency prior to separation, but she had no idea about the nature of her work, was inherently incredible given Ms. Putros’ own testimony that she and Ms. Hebo were longstanding friends (as well as sisters-in-law) at that time.
[21] Ms. Putros was not evasive nor did she seem focused on her own agenda while testifying.
[22] Overall, the court finds that a significant degree of caution is required when considering her evidence. As a result, her evidence will be given limited weight.
Juliet Yousif
[23] Ms. Yousif, as the mother to a party to the proceeding, implicitly had a natural bias, whether conscious or unconscious, in favour of her son’s position.
[24] In addition, she demonstrated explicit bias against Ms. Hebo when, as Ms. Yousif was leaving the witness box, she animatedly told the court, “It was a black day when I met her” (clearly referring to Ms. Hebo). The court finds that her explanation that the remark was directed at herself, rather than at Ms. Hebo or anyone else, was not credible.
[25] Ms. Yousif’s testimony that the family supermarket was sold in 2002 or 2003 was internally inconsistent with her testimony that the supermarket was sold in 2004 and not in 2002 or 2003. Similarly, her testimony that the proceeds of sale of the supermarket were $30,000 to $35,000 U.S. dollars was internally inconsistent with her testimony that she did not know the amount of the proceeds of sale of the supermarket.
[26] Further, her testimony that her only asset is a $110,000 debt owed to her by her son was externally inconsistent with the promissory note and the extension note (Exhibits 119 and 120) which state that interest is payable by Mr. Putros at the rate of four percent per annum. Assuming simple interest, rather than compound interest, then, on the date Ms. Yousif testified, she was owed about $140,000, including about $30,000 in interest.
[27] Quite significantly, on a number of occasions, Ms. Yousif volunteered information to the court without being asked. Unasked, she told the court that her son spent money supporting herself and Ms. Hebo while they were living in Syria pending Ms. Hebo’s departure for Canada. When asked about the proceeds of sale of the supermarket, Ms. Yousif replied that she did not know that amount, but she did know that she and her husband transferred $110,000 to Mr. Putros through their daughter Rita. She also volunteered, unasked, “I gave that money as a loan.” She also volunteered, unasked, “There was a paper about this in June, 2010” and, “In 2014 we sat down about this again”. None of these aspects of her testimony were given in response to a related question. It was evident that Ms. Yousif had an agenda when she testified.
[28] Overall, the court finds that Ms. Yousif was not a reliable or credible witness. As a result, her testimony will be given no weight.
Peter Putros
[29] Mr. Putros, as a party to the proceeding, implicitly had a natural bias, whether conscious or unconscious, in favour of his position.
[30] In addition, he demonstrated explicit bias against Ms. Hebo when he testified that Ms. Hebo’s approach to this proceeding was, “I’m going to drain this guy for the rest of his life.”
[31] His testimony that the only assets he owned on the date of marriage were a 1993 Lexus worth $19,000 and some collectible coins was internally inconsistent with: his sworn net family property (NFP) statement, dated November 9, 2016 (Exhibit 108), which indicated he owned $91,200 worth of general household items and vehicles on the date of marriage; and his sworn financial statements, dated October 16, 2013 (Exhibit 117) and November 2, 2016 (Exhibit 118), which indicated that on the date of marriage he owned furniture worth $18,000, a television and appliances worth $7,000, a computer and printer worth $2,200, tools worth $1,500, a bicycle and helmet worth $3,500, liquor worth $5,000, household goods worth $3,000, and collectible coins worth $32,000.
[32] Further, his testimony that, although he didn’t own those assets on the date of marriage, the $91,200 figure was correct, because he had $96,540 in the bank, did not make sense and was not believable. At the time he gave that testimony, he had his NFP statement, dated November 9, 2016 (Exhibit 108), open in front of him. Exhibit 108 clearly shows the $96,540 in the bank as a separate asset, on the line immediately below the $91,200. Exhibit 108 also clearly shows that both lines were added together to establish that the total value of his assets on the date of marriage was $187,740.
[33] His testimony that he calculated the value of his bank-held assets on the date of marriage in his financial statement, dated November 2, 2016 (Exhibit 118), as $96,540 by working backward from his interest income for 2000 ($4,585) by using an interest rate of three percent, because that was the GIC rate at that time, was internally inconsistent with his testimony that: he used “about” three percent, he used three percent or less, he did not recall the exact percentage he used, he just signed the financial statement without doing the calculation, and, the calculation was based on the Bank of Canada GIC rates for 2000 attached to the financial statement, which he provided to his lawyer. When it was pointed out to him that the Bank of Canada GIC rates for 2000 attached to the financial statement varied between five percent and six percent, he replied that he did not understand the information he had provided to his lawyer. Furthermore, $4,585 is 4.749 percent of $96,540, not three percent.
[34] His testimony that he is available to take care of the children every weekend or during the week, to permit Ms. Hebo to work, was internally inconsistent with his testimony that, as a result of his long hours working at Fiera, currently 50 to 70 hours per week, he no longer has time available to do personal training or sell gym equipment.
[35] His testimony that he would do anything for his children with respect to special or extraordinary expenses was internally inconsistent with his testimony that he has paid a total of $16 for special or extraordinary expenses since the date of separation. The court does not accept his explanation that he was waiting to receive original receipts so that he could claim the expenses on his income tax returns.
[36] His testimony that deposits into his bank account in the amounts of $1,468.59 and $2,198.70, on May 9 and 11, 2011, respectively, were sales commissions from Foremost was internally inconsistent with his testimony that he received only one sales commission from Foremost in 2011.
[37] His testimony that a deposit to his bank account in the amount of $2,404.32, on May 2, 2012, was likely his last sales commission from Foremost was internally inconsistent with his testimony that the May 2, 2012 deposit was not a sales commission from Foremost, and with his testimony that $1,792.68 deposited on July 9, 2012 was his last commission payment from Foremost.
[38] His testimony that his last bank deposit of a sales commission from Foremost was $1,792.68 on July 9, 2012 was internally inconsistent with his testimony that his last sales commission from Foremost was deposited on November 13, 2012, and was externally inconsistent with the cheque stub, dated November 7, 2012 (part of Exhibit 122), for the November 13, 2012 deposit.
[39] His testimony that he carried out a total of four or five transactions for Foremost, including only one transaction during 2012, was internally inconsistent with his identification of commission payments from Foremost in his bank records for the period of May, 2010 to May, 2013 (Exhibits 26, 103, 104, and 107). He identified commission payments from Foremost deposited on: May 17, 2010, May 9 and 11, 2011, July 18, 2011, May 2, 2012 (“likely” from Foremost), July 9, 2012, and November 13, 2012. Thus, he identified at total of seven commission payments received from Foremost, including three deposited during 2012. His testimony was also externally inconsistent with a cheque stub from Foremost, filed during cross-examination, that was dated April 12, 2012 (part of Exhibit 122), and deposited into his account on April 16, 2012. Thus, a total of eight commission payments from Foremost were deposited into his bank account, including four during 2012.
[40] Mr. Putros’ testimony that he had about $5,000 to $7,000 of his parents’ money left after buying a Toyota on July 21, 2012, was internally inconsistent with his testimony that he spent about $20,000 of his parents’ money to buy new furniture at the end of 2012.
[41] His testimony that he obtained permission from his parents to use their life savings for the purpose of reducing his mortgage until they came to Canada was internally inconsistent with his testimony that he received additional money from his parents after they arrived in Canada and he used their money to buy himself motor vehicles (a Mini-Cooper, a Toyota, and a VW Jetta) and for ordinary daily expenses for his family such as groceries.
[42] His testimony that he did not recall the source of $680 deposited to his bank account on August 20, 2010 was internally inconsistent with his testimony that it was cash from his parents.
[43] His testimony that $335 deposited to his bank account on June 13, 2011 was probably a gift for his birthday (he was born on January 13) was internally inconsistent with his testimony that the $335 deposit was part of a loan from his parents, and was externally inconsistent with his bank records for the period of May, 2010 to May, 2013 (Exhibits 26, 103, 104, and 107) which show no similar cash deposit in January of 2011, 2012, or 2013.
[44] His testimony that he could not remember the source of a $500 deposit to his bank account on June 13, 2011 was internally inconsistent with his testimony that it was his parents’ money.
[45] His testimony that he could not remember the source of an $800 deposit to his bank account on March 1, 2012 was internally inconsistent with his testimony that it was his parents’ money.
[46] His testimony that he provided proof of all the asset values in his financial statements was internally inconsistent with the fact that he did not file proof of the value he assigned to the 1993 Lexus on the date of marriage. Yet, he did file proof of the black book value for his Toyota on the date of separation (Exhibit 89).
[47] His testimony that he received a total of $110,000 from his parents (comprised of the equivalent of $80,000 Canadian dollars through his sister, $10,000 U.S. dollars when he visited his parents in Syria, and $20,000 U.S. dollars when his parents came to Canada in 2010) was internally inconsistent with his testimony that he spent his parents’ money to re-do the matrimonial home driveway and backyard (over $10,000), to purchase the VW Jetta ($6,000), to purchase the Mini-Cooper ($12,000), to make two lump sum mortgage prepayments ($45,000), to purchase the Toyota ($22,425), and to purchase new furniture at the end of 2012 ($20,000). These expenditures total over $115,000. But he also testified that he used his parents’ money for the down payment for the matrimonial home ($42,000 or $43,000), to increase the mortgage payments from 2010 to 2012, and for daily family expenses from 2010 to 2012. He also testified that he spent about $112,000 of his parents’ money to reduce the mortgage on the matrimonial home. Thus, the amount of his parents’ money that he testified he spent, significantly exceeded the amount that he testified he received.
[48] His testimony that he made deposits of his parents’ money into his own account in amounts between $800 and $2,000 was externally inconsistent with his bank account records for the period of May, 2010 to May, 2013 (Exhibits 26, 103, 104, and 107), which show, according to his testimony, deposits of his parents’ money ranging from $335 to $9,000. During that period, only three of 13 deposits fell within the range he gave ($800, $800, and $2,000). The other deposits he identified were $335, $400, $400, $500, $680, $2,100, $5,200, $5,250, $5,400, and $9,000.
[49] His testimony that he took the photographs of envelopes containing money (Exhibit 7) on three different dates, namely, at the start of 2010, in May or June, 2010, and at the end of 2010, was externally inconsistent, because each photograph shows at least one envelope marked with a date in late 2010. The photographs on the top left and bottom right of Exhibit 7, which are photographs of the same nine envelopes, include two envelopes dated October 8, 2010. The top right photograph on Exhibit 7 includes an envelope dated either October 3 or 8, 2010 and another envelope dated October, 2010 (the day is not clear). The bottom left photograph in Exhibit 7 includes an envelope dated December, 2010 (the day is not clear although it appears to be a double digit ending with 0). Thus, none of the photographs are compatible with having been taken at the start of 2010 or in May or June, 2010.
[50] Mr. Putros testified that his financial statement, dated November 2, 2016 (Exhibit 118), was sworn by him on the basis that its contents were true or believed to be true, but Exhibit 118 is externally inconsistent with the promissory note and the extension note (Exhibits 119 and 120), because Exhibit 118 values the debt owed to his parents at $110,000 on the date of separation as well as on the date the statement was sworn. As discussed above, with respect to Ms. Yousif’s testimony, the promissory and extension notes stipulate annual interest at four percent. Accordingly, assuming simple interest, the value of the note on the date of separation was over $122,000, including over $12,000 of interest, and, the value of the note on the date Exhibit 118 was sworn was over $138,000, including over $28,000 of interest.
[51] His testimony that his parents’ money was used for a down payment of either $42,000 or $43,000 on the matrimonial home in October, 2009, because the property cost $350,000 and the mortgage was $308,000, was externally inconsistent with the mortgage registration which shows that the amount of the mortgage upon closing was $333,905.48 (Exhibit 67).
[52] He testified that he has always worked a lot of overtime at Fiera, which was the reason he was hired by Fiera in 1996, and was also the reason, in 2012, that he stopped offering personal training at home and stopped selling gym equipment. He also testified that his hours of work around the date of separation varied between 60 to 70 hours per week depending on the amount of work available. Both statements were externally inconsistent with his bank records for the period of May, 2010 to May, 2013 (Exhibits 26, 103, 104, and 107), because, as detailed below, the bank records show that the amount of his net pay did not vary from pay period to pay period as one would expect for an employee working varying amounts of overtime on a regular basis.
[53] His bi-weekly net pay on May 7, 2010 was $2,039.38. That continued to be the exact amount of his bi-weekly net pay until July 30, 2010 when his net pay was adjusted upward by $1.14. His following net pay, on August 13, 2010, was adjusted upward by $63.69. His following net pay, on August 27, 2010, was adjusted to $2,225.41. That continued to be the exact amount of his bi-weekly net pay for the rest of 2010.
[54] On January 14, 2011, his bi-weekly net pay was adjusted downward to $2,044.48. That continued to be the exact amount of his net pay until August 12, 2011 when his net pay was adjusted upward by $39.52. The following net pay, on August 26, 2011, was adjusted to $2,231.56. That continued to be the exact amount of his bi-weekly net pay for the rest of 2011.
[55] On January 13, 2012, his bi-weekly net pay was adjusted downward to $2,052.88. That continued to be the exact amount of his bi-weekly net pay until August 10, 2012 when his net pay was adjusted upward by $4.67. The following net pay, on August 24, 2012, was adjusted upward by $55.63. The following net pay, on September 7, 2012, was adjusted to $2,241.80. That continued to be the exact amount of his bi-weekly net pay for the rest of 2012, except for one pay, on December 14, 2012, which was $29.48 less.
[56] On January 11, 2013 his bi-weekly net pay was adjusted downward to $2,058.26. The following pay, on January 25, 2013, was adjusted to $2,173.50. That continued to be the exact amount of his net pay until the bank records filed end in May, 2013.
[57] In essence, his bi-weekly net pay remained static, to the cent, except for a bi-annual downward adjustment every January and an upward adjustment in the latter part of the summer or early Fall.
[58] His testimony that he stopped working as personal trainer at home for cash and he stopped selling gym equipment for Foremost in 2012, because he was working more hours at Fiera was externally inconsistent with his income tax information which shows that his gross declared income in 2012 was lower than his gross declared income in 2009, 2010, and 2011. In other words, he did not work more hours for Fiera in 2012 than he did during each of the three previous years.
[59] His testimony that it was financially beneficial to him to use his parents’ money, that he claimed to have borrowed at an interest rate of four percent per annum, to reduce the mortgage on the matrimonial home by increasing the monthly payments and making lump sum pre-payments, was externally inconsistent with the interest rates he paid on the mortgage. In 2009, he paid 1.44 percent on the mortgage (Exhibit 69). The rate for 2010 was not filed, but in 2011, 2012, and 2013 (prior to his refinancing after separation) he paid 2.19 percent on the mortgage (Exhibits 76, 77, and 80). He increased the monthly mortgage payments in May, 2010 (to $1,500), April, 2011 (to $2,000), and April, 2012 (to $2,500), even though the mortgage interest rate was significantly lower than four percent. Not only was this evidence externally inconsistent, it was inconsistent with common sense.
[60] He was evasive when he was asked whether paragraph 42 of his Answer was incorrect where it stated that he owned the parties’ matrimonial home on the date of marriage. The home was bought eight years after the date of marriage. Initially, Mr. Putros did not respond. When the question was repeated, he replied that he meant that the parties were married when he bought the home. He then stated that because he had saved money before the date of marriage he believed that the statement in his Answer that he owned the matrimonial home on the date of marriage was “technically correct”. Neither response was credible.
[61] His testimony that Ms. Hebo did not know how to feed or bathe either of the parties’ children when they were less than three months old was incredible. Even if she did not know how to feed or bathe the first child (which the court does not accept), it is unbelievable that she would not know how to feed and bathe the second child.
[62] It was also incredible when he testified that he sometimes did personal training at his home in exchange for $20 “gas money” from a client. Given that the training was occurring at his home, there was no logical reason for him to be paid “gas money.”
[63] His testimony that he sold the 2009 VW Jetta for the highest amount possible was also incredible. The Jetta was a used vehicle when he purchased it for $19,775 for delivery on January 5, 2011 (Exhibit 92). Mr. Putros sold the Jetta to a Toyota dealer for $12,000 (Exhibit 109) on May 31, 2013 (17 days after separation). He testified that he sold the car to a dealer because he did not have time to sell the Jetta privately, and because he needed to pay for various expenses after separation. He also testified that he would have obtained the same price, more or less, had he sold the Jetta privately, and that the dealer must have had a customer lined up to buy the Jetta. The court does not accept this testimony, because the Jetta was sold quickly and for substantially less than its purchase price, despite having been purchased only about two years earlier, and because it is common knowledge that car dealers generally pay less than private buyers for used vehicles because dealers buy with a view to making a profit on resale. As Mr. Putros testified, he sold the vehicle to the dealer in order to sell it quickly. That action is not consistent with obtaining the highest possible price for the vehicle.
[64] It was also incredible when he testified that, due to the passage of time, he could not remember whether he had made a $5,093 charitable donation to a particular church in 2004, or a $5,450 charitable donation to the same church in 2005. First, the donations would have comprised about 10 percent of his gross income in each of those years, so a donation of that size is unlikely to be something he would forget. Second: both claims were initially disallowed by the Canada Revenue Agency (CRA) on the basis that the donation receipts were false, Mr. Putros filed an objection in 2008, and he received a negative final decision from the CRA in January, 2016, on the ground that the donation receipts were false (Exhibit 93). It is unbelievable that at the time of trial, a little over a year after receiving the final decision from the CRA, he had forgotten whether he actually made the impugned donations.
[65] It was also notable that Mr. Putros volunteered, without being asked, that Ms. Hebo went with him to sign the tax returns filed with the impugned donation receipts. The court is confident that she would have signed anything Mr. Putros asked her to sign during the period of 2004 to 2006. Mr. Putros also attempted to persuade the court that he did nothing wrong despite the CRA’s decision. He said that the impugned donations were simply an effort on his part (and on Ms. Hebo’s part) to “help people with an open heart.” That testimony, given in relation to donations that he claimed not to recall making, was not believable. It was evident that his agenda, when he volunteered that Ms. Hebo signed the tax returns, was to avoid a finding in this proceeding that he alone is financially responsible for the financial consequences of the false claims.
[66] Overall, the court finds that Mr. Putros was not a reliable or credible witness. As a result, his testimony will be given no weight except when his testimony is contrary to his interests or is confirmed by a reliable non-arms-length source (not his mother or his sister).
Detailed Background
[67] The court has carefully considered all of the evidence. Although the parties emphasized certain aspects of the evidence during the trial, some of those aspects are not significant when considered in the context of all of the evidence. The court will summarize the evidence that is most salient to the issues. The court has taken into account its findings with respect to the reliability and credibility of the witnesses. Unless indicated otherwise, the following are findings of fact.
[68] The parties were born and raised in Iraq. They are third cousins.
[69] Mr. Putros moved to Canada in 1995 when he was 24 years old. He became an employee of Fiera Foods in Toronto in 1996. He also worked part-time for UPS at that time. He rented an apartment in Toronto.
[70] As a result of arrangements between their parents, the parties became engaged in 1999 when Ms. Hebo was 17 years old. She was in grade 12 in Iraq at that time. She did not complete grade 12 because her focus shifted to preparing for marriage.
[71] The parties married in Iraq on May 26, 2001. Ms. Hebo was 19 years old and Mr. Putros was 30 years old. On the date of marriage, Mr. Putros’ property consisted of a 1993 Lexus and some bank-held funds in Canada. Ms. Hebo owned no property. The parties received some jewelry as gifts around the time of the wedding.
[72] Mr. Putros returned to Canada to sponsor Ms. Hebo. She remained in Iraq for a while and then moved to Syria where she remained for an extended period for the purpose of obtaining permission to emigrate to Canada. Pending her emigration, she lived with either a relative or her mother-in-law. Mr. Putros sent money to Syria to support Ms. Hebo and the person living with her and to cover various expenses.
[73] Ms. Hebo testified that, while she was in Syria, Mr. Putros and his father contributed to the purchase of a parcel of real estate in Iraq. It was not clear from her testimony whether the real estate was sold before the parties separated.
[74] On February 4, 2004, Ms. Hebo arrived in Canada. Mr. Putros paid for her travel.
[75] Ms. Hebo moved into the Toronto apartment with Mr. Putros. He was working at Fiera and as a personal trainer at Bally’s at that time.
[76] Ms. Hebo cooked and cleaned the apartment while Mr. Putros worked. Ms. Hebo had a limited grasp of English. She became pregnant shortly after she arrived in Canada.
[77] The parties’ first child, J, was born on January 5, 2005. Ms. Hebo was J’s primary caregiver.
[78] Mr. Putros filed false charitable donation receipts with his income tax returns in 2003, 2004, and 2005, and he claimed fictitious carrying charges in 2003 and 2004. This was done with the assistance of a woman who charged a cash fee to prepare the false returns. As a result, Mr. Putros was eventually re-assessed for those years. He objected to the re-assessment but the CRA eventually decided against his objection.
[79] In July, 2005, Mr. Putros signed an agreement to purchase the parties’ first owned matrimonial home (a condominium residence in Brampton) for $179,000. The sale closed in September, 2005. The mortgage was $151,607.50. The amount of equity on closing was $27,392.50. The property was purchased in Mr. Putros’ name only.
[80] The parties’ second child, L, was born on June 16, 2006. Ms. Hebo was L’s primary caregiver.
[81] Also in 2006, the government of Iraq granted Ms. Hebo an interest in a parcel of real estate in Iraq in compensation for her father’s death in 2005 while serving in the armed services. Her mother and her two siblings were also granted a share of the property. The property was sold before the parties separated.
[82] Ms. Hebo alleged that she was assaulted by Mr. Putros while they lived in Brampton. Mr. Putros denied assaulting Ms. Hebo. As noted earlier, the court found that some of the photographs filed were inconsistent with Ms. Hebo’s testimony about the assaults. While the court suspects that Mr. Putros may have assaulted Ms. Hebo, the court is not satisfied on a balance of probabilities that assaults occurred, including the assaults alleged to have occurred later in Maple, Ontario.
[83] On the other hand, the court accepts Ms. Hebo’s testimony that Mr. Putros allowed her to have very little money during the marriage.
[84] As a result, in 2007, Ms. Hebo asked her sister, Ms. Patros, to send her some money. In 2007, 2011, and 2012, Ms. Patros sent her a total of $4,500 Canadian dollars in loans. Ms. Hebo also borrowed more than $40,000 Canadian dollars from her sister after the date of separation. Ms. Hebo’s brother sent her a total of $850 in 2011 and 2012.
[85] In 2007, Bally’s was bought by Good Life Fitness and, as a result, Mr. Putros was no longer employed there. He started to do personal training at his home for cash. At some point, he also started selling gym equipment for Foremost on a commission basis. He testified that both these sources of income ended in 2012 because of his extended hours at Fiera.
[86] In 2008, Ms. Hebo began working part-time on weekends at Tim Hortons. Ms. Putros obtained the job for her through Ms. Putros’ connections with the employer. Ms. Hebo worked there part-time until 2010. She was paid in cash. Mr. Putros took almost all of her earnings.
[87] In 2008, the parties moved to their second owned matrimonial home on Melville Avenue in Maple. The property was purchased by Mr. Putros for $315,000. The mortgage was $308,676.38. The equity on closing was $6,323.62. The property was registered in the name of Mr. Putros only.
[88] In October, 2009, the parties moved to their third and final owned matrimonial home on Lodgeway Avenue in Maple. The property was purchased by Mr. Putros for $350,000. The mortgage was $333,905.48. The equity on closing was $16,094.52. The property was registered in the name of Mr. Putros only. Mortgage payments were $1,042.76 per month.
[89] In May, 2010, Mr. Putros increased the mortgage payments to $1,500 per month.
[90] On May 26, 2010, Mr. Putros’ parents and his younger sister arrived in Canada sponsored by Mr. Putros.
[91] Mr. Putros, Juliet Yousif, and Rita Putros all testified that Mr. Putros’ parents loaned Mr. Putros a total of $110,000 Canadian dollars between 2009 and 2010 and that a promissory note for that amount plus interest at four percent per annum, due four years later or immediately upon demand, was signed by Mr. Putros and three witnesses, including Ms. Putros, on June 7, 2010 (Exhibit 119). They also testified that an extension of the promissory note was signed on June 1, 2014 by Mr. Putros and four witnesses, including Ms. Putros and Ms. Yousif (Exhibit 120). They also testified that Mr. Putros owed his parents $110,000 Canadian dollars on the date of separation.
[92] Mr. Putros testified that his mother had the almost three year-old promissory note in her possession at her daughter’s home on the date of separation, unlike other important documents, such as her Iraqi passport, which were kept at the parties’ home, which was Ms. Yousif’s primary residence at the time. As a result, he claimed, the original note was available to be filed as an exhibit, unlike various other documents, allegedly created by third parties, such as transfer receipts for funds allegedly sent to him from Iraq and Syria by his parents. Mr. Putros claimed that Ms. Putros removed the other documents from the matrimonial home after separation. Mr. Putros testified, “The only thing I had in my possession, it wasn’t in my possession, it was in my mother’s possession, was the promissory note.”
[93] Ms. Hebo testified that she was not aware that Mr. Putros borrowed any money from his parents.
[94] In 2011, Mr. Putros purchased a 2009 VW Jetta for Ms. Hebo’s use.
[95] In April, 2011, Mr. Putros increased the mortgage payments to $2,000 per month.
[96] After both children were in school full-time, Ms. Hebo asked Mr. Putros if she could go to school to improve her English. His response was that she should pursue training for employment. Accordingly, he paid for her to take a hairstyling course with the stated expectation that she would pay him back the cost of the course from her future earnings from hairstyling. When the course ended, however, she was unable to find employment in hairstyling, because she could not find a part-time position that would permit her to care for the children after school. The only position she found was as an unpaid trainee which she did for a while.
[97] In March, 2012, Mr. Putros made a $25,000 lump sum mortgage principal pre-payment.
[98] In April, 2012, Mr. Putros increased the mortgage payments to $2,500 per month.
[99] In July, 2012, Mr. Putros purchased a 2011 Toyota 4-Runner for his own use.
[100] In November, 2012, Mr. Putros made a $20,000 lump sum mortgage principal pre-payment.
[101] The parties separated on May 14, 2013. Ms. Hebo described an assault that precipitated the separation, but, as noted above, the court is not satisfied on a balance of probabilities that the assault occurred. Nevertheless, Mr. Putros was arrested at that time and removed from the matrimonial home. His terms of bail did not permit him to return to the matrimonial home while Ms. Hebo was residing there.
[102] The matrimonial home was appraised at $435,000 on the date of separation. On that date the mortgage was $224,275.03. The equity was, therefore, $210,724.97. The principal amount of the mortgage had been paid down by $109,630 since the purchase in October of 2009.
[103] Shortly after the arrest, a friend of Mr. Putros attended at the matrimonial home and removed both family vehicles and took them to Mr. Putros. Mr. Putros testified that he had decided that it was better for Ms. Hebo not to have the use of a vehicle after separation.
[104] Mr. Putros sold the VW Jetta to a dealer on May 31, 2013.
[105] From the date of separation until November 29, 2013, Ms. Hebo resided in the matrimonial home along with the children who resided primarily with her. Mr. Putros paid all of their expenses, including all expenses related to the matrimonial home, except for internet usage and Ms. Hebo’s cell phone charges. He also paid child support to Ms. Hebo, usually by giving an envelope containing cash to the children to give to her after they spent time with him. He filed proof of payment of $500 in May of 2013 and $700 in June of 2013. Ms. Hebo admitted that he paid a total of about $3,300 in child support prior to November 29, 2013.
[106] Mr. Putros paid $16 for a school trip to the zoo for one of the children on May 18, 2013. He made no other payment for special or extraordinary expenses for the children after separation. In June, 2013, when presented with a permission slip for a school trip by one of the children, he signed and told the child to tell Ms. Hebo to pay for the trip. As a result of his response, Ms. Hebo stopped sending the permission forms to him. Since then she has paid for special or extraordinary child expenses herself and provided copies of the receipts to her counsel to send to Mr. Putros’ counsel. Mr. Putros testified that he did not contribute to those expenses because he was not provided with the original receipts to file with his income tax returns.
[107] In July, 2013, Mr. Putros reduced the mortgage payments to $905.60 per month. He also established a secured line of credit with a ceiling of $340,000, including the mortgage balance. His remaining available credit was $115,546.57.
[108] In the fall of 2013, Ms. Hebo unsuccessfully applied for work at Tim Hortons, Walmart, and some convenience stores. Her poor level of English was likely a contributing factor to her lack of success. Further, Ms. Putros, who had arranged for her previous job at Tim Hortons, was no longer her friend.
[109] On October 21, 2013, the parties consented to an order by Nelson J. as follows,
The Applicant/Mother and the Respondent/Father shall contribute to the cost of all the children’s reasonable section 7 expenses on an after tax basis as agreed to in writing; such consent not to be unreasonably withheld.
[110] On September 11, 2013, the parties, with the assistance of counsel, reached an agreement that was made into a consent temporary order by Healey J. on May 1, 2014 (Exhibit 1, Tab 2).
[111] The terms of the agreement and temporary order included a provision that Mr. Putros would pay base child support at the rate of $1,171 per month commencing December 1, 2013, based on an annual income of $79,938, and that Mr. Putros would maintain the children on his employer’s extended health plan.
[112] Paragraphs 10 to 13 of the agreement and the temporary order read as follows:
The Respondent shall be allowed to purchase the Applicant’s interest in the home. The Applicant and Respondent shall agree on a certified appraiser to determine the value of the home. The Applicant and Respondent shall equally share the cost of the appraisal with the Respondent paying the Applicant’s share at first instance. The issue of how much of the equity the Applicant is to receive, if any, is still in dispute as the issue of equalization has not yet been resolved.
The Respondent’s name is solely on title to the home. It is not believed the Applicant’s name is listed on any encumbrances but if her name is on any secured encumbrances it shall be removed concurrent with the transfer of the home.
The Respondent shall have exclusive possession of the matrimonial home commencing November 29, 2013 at 12:00 noon.
Concurrent with the Applicant vacating the matrimonial home she shall receive the sum of $12,000. $3,000.00 shall be paid on or before October 13, 2013 and $9,000 shall be paid on November 29, 2013. At the Respondent’s sole discretion the $12,000 shall be classified at a later date as child support, advance on periodic spousal support, advance on equalization or a combination of the three. From the $9,000 one-half cost of the appraisal shall be deducted.
[113] Pursuant to that agreement, at the end of November, 2013, Ms. Hebo and the children left the matrimonial home and Mr. Putros moved back into the matrimonial home. He continued to reside at the matrimonial home during the trial. He was solely responsible for paying all expenses related to the home since the date of separation.
[114] Ms. Hebo and the children moved to a basement apartment that she rented for $1,200 per month.
[115] Starting in December, 2013, Mr. Putros paid Ms. Hebo base child support in the amount of $1,171 per month. He testified that he also paid her tenant insurance because he knew that she did not have much money.
[116] Ms. Hebo decided, in December, 2013, that, rather than continuing to look for a minimum wage job, she should improve her level of education so she could qualify for a better level of employment than minimum wage.
[117] In January, 2014, Ms. Hebo started a non-credit ESL (English as a Second Language) programme at Welcome Centre Immigrant Services. She remained in that programme until she started high school in November, 2014. She attended high school from 9 a.m. until 2:40 p.m. daily during the week. She completed high school on April 20, 2017. In February, 2017, she was accepted into a two-year Registered Practical Nurse (RPN) programme at Centennial College and, at the time of trial, it was her intention to register for the 2017 fall term. She also applied to Sheridan College for their May, 2017 term, but she was not accepted.
[118] Ms. Hebo has not worked during the summers, weekends, or evenings since separation, because she cares for the children at these times. She has not worked when the children are scheduled to have access with Mr. Putros, because he sometimes cancels his time with the children with less than 24 hours notice and she has no alternative care available for the children upon such short notice.
[119] In response to a July 14, 2015 letter from Ms. Hebo’s counsel seeking approval for braces for J, Mr. Putros agreed, through counsel, in early 2016, that he would contribute 75 percent of the cost for the braces for J if the work was delayed until 2017. The work had not commenced at the time of the trial.
[120] The matrimonial home was appraised at $610,000 on November 9, 2016.
[121] Ms. Hebo received notice from the owner of the basement apartment on April 1, 2017 that she had to leave by July, 2017. At the time of the trial, she was looking for alternate accommodation. The cheapest suitable location she had found at that point, with the assistance of a real estate agent and by looking on-line, was $2,000 per month.
[122] At the time of trial, Ms. Hebo’s sources of funds were $1,171 per month in child support and $1,196 per month in government assistance. She also continued to receive loans from her sister which totaled $44,500 Canadian dollars at the time of the trial. As at May 1, 2017, she owed $6,733.12 on a line of credit with the Royal Bank.
[123] Ms. Hebo has never received spousal support.
[124] Mr. Hebo requested that his payment of $12,000 to Ms. Hebo, pursuant to the agreement of September 11, 2013, be considered an advance toward equalization.
[125] On November 2, 2016, the principal amount owing on the mortgage on the matrimonial home was $207,422.38 and the balance owing on the secured line of credit was $34,217.20.
Ownership of the Matrimonial Home
Positions of the Parties
[126] Ms. Hebo argued that she should be granted beneficial ownership of one-half of the matrimonial home by way of a remedial constructive trust because the matrimonial home increased in value dramatically between the date of separation and the date of trial. She suggested that the matrimonial home was worth between $650,000 and $732,000 at the date of trial. She based her estimate on the fact that the matrimonial home had increased in value from $435,000 on the date of separation to $610,000 on November 9, 2016 according to the appraisals filed, and the well-known fact that the Greater Toronto Area (GTA) had recently experienced a heated residential real estate market.
[127] She submitted that Mr. Putros has been unjustly enriched by registering the matrimonial home in his name alone and by market forces since the date of separation. She argued that she has been correspondingly deprived because, due to the same market forces, she could no longer afford to buy a home in the GTA using her share of equalization. She submitted that she contributed to the acquisition, maintenance, and monthly payments for the matrimonial home by contributing almost all of her earnings at Tim Hortons, and by her efforts in the home caring for the children and being the homemaker for the family. She argued that her efforts in the home permitted Mr. Putros to work and earn the money that allowed him to purchase and pay the expenses of the matrimonial home. She also submitted that Mr. Putros had delayed the trial and that he should not profit by his delay.
[128] She submitted that there was no juristic reason for his enrichment and her corresponding deprivation. In anticipation of an expected counter-argument that the parties’ agreement in September, 2013 established a juristic reason (because Mr. Putros took the position that the intention behind paragraphs 10 to 13 of the agreement and the subsequent court order was that joint appraisal would establish the value of the home as at the date of separation), she argued that the terms of the agreement do not specify a valuation date or a transfer date and explicitly left those issues open by stipulating that the amount of equity she was to receive remained in dispute because equalization had not been resolved.
[129] In the alternative, she argued that she should be granted beneficial ownership of one-half of the matrimonial home by way of a presumptive resulting trust because she contributed to the parties’ financial well-being with her Tim Hortons income, and her efforts in the home with the children and as a homemaker, which allowed Mr. Putros to work and earn the income that allowed him to purchase and maintain the home.
[130] Finally, in the alternative, she sought a monetary remedy for unjust enrichment.
[131] Mr. Putros argued that he was the sole financial contributor during the marriage and that the home was registered in his name because Ms. Hebo never contributed financially to the purchase, maintenance, or monthly expenses for the home. He underlined his denial that he took any of her earnings from Tim Hortons (but, for the reasons given earlier, the court gives no weight to this testimony). Mr. Putros also argued that, if any unjust enrichment occurred, Ms. Hebo had not shown that a monetary award would not suffice as a remedy. He also underlined that Ms. Hebo has the benefit of equalization pursuant to the Family Law Act R.S.O. 1990, c. F.3, as am. (FLA) and, pursuant to the same statute, she is in a position to argue in favour of an unequal division of net family property. He also submitted that the evidence did not establish that Mr. Putros delayed the trial.
[132] With respect to a resulting trust, he maintained that Ms. Hebo did not contribute financially to the acquisition of the matrimonial home and he emphasized that she never transferred an interest in the home to Mr. Putros.
Analysis
[133] The parties were married for 12 years and cohabited for 9 years and 3 months prior to separation.
[134] The equalization provisions of the FLA are designed to ensure that a party like Ms. Hebo benefits from any increase in the equity in the matrimonial home during the parties’ cohabitation. Ms. Hebo seeks to benefit from any post-separation increase as well. As Mr. Putros pointed out, the FLA also provides her with an opportunity to seek an unequal division of net family property based on the post-separation increase. Ms. Hebo does seek this in the alternative. It should be borne in mind, however, that the test to justify an unequal division is quite onerous. The test is whether equalization would be unconscionable to the degree that it would shock the conscience of the court. An unfair, unjust, or harsh result from equalization does not meet the test. Thus, certainly from Ms. Hebo’s perspective, a trust approach is preferable. In any event, ownership of property must be determined prior to calculating equalization.
[135] The court agrees with Mr. Putros that the evidence did not establish that he delayed the trial. Similarly, the evidence did not establish that Ms. Hebo delayed the trial.
[136] The court must engage in a two-part analysis of a claim for unjust enrichment or constructive trust in relation to a matrimonial home, where the home is also subject to an equalization claim (See Cerenzia v. Cerenzia 2015 ONSC 7305). First, the court must determine whether the evidence supports a claim for unjust enrichment in favour of the claimant. Second, the court must determine whether a monetary award is sufficient to remedy the issue of unjust enrichment. Where unjust enrichment is established, the first remedy to consider is always a monetary award (See Martin v. Sansome 2014 ONCA 14, at para. 48). A court will impress a proprietary remedy, such as a constructive trust, only if the claimant satisfies the court that a monetary award would be insufficient in the circumstance.
[137] With regard to the first part of the analysis, the common law test for unjust enrichment is well-established and requires that the person holding title to property has been enriched, the non-titled claimant has suffered a resulting corresponding deprivation, and there must be an absence of any juristic reason for the enrichment and the corresponding deprivation (See Pettkus v. Becker 1980 22 (SCC), [1980] 2 S.C.R. 834, at p. 848).
[138] There is evidence in this case that supports a finding that Mr. Putros would be unjustly enriched if he alone is entitled to the entire $185,000 increase in value of the matrimonial home between the date of separation and the most recent appraisal on November 9, 2016. Further, there is evidence to support a finding that his unjust enrichment would be the result of a corresponding deprivation of Ms. Hebo given her sustained contribution to the family, as the homemaker for nine years and as the primary caregiver for the children for eight years, as well as the contribution of her income from Tim Hortons from 2008 to 2010, during which time the matrimonial home was acquired, and bearing in mind that Mr. Putros never allowed her to have much money.
[139] By providing domestic labour, including caring for the children, Ms. Hebo’s efforts enabled Mr. Putros to enjoy the benefits of having a family and children while he worked at Fiera, at Bally’s, at the family home as a personal trainer, and for Foremost selling gym equipment, to earn the income that allowed him to buy the parties’ homes and register them solely in his name. According to Mr. Putros’ testimony, his earnings also allowed him to amass a personal collection of rare coins worth $23,000, another coin collection worth $12,000 in an 18 litre jug, a cigar collection, and a liquor collection worth $8,000, prior to the date of separation.
[140] On the other hand, Ms. Hebo, whose English was limited, gave almost all of her earnings to Mr. Putros, had access to very little money, struggled financially during the nine years of cohabitation, has continued to struggle financially since separation, and has had to borrow a considerable sum of money from her sister before and since separation.
[141] According to her financial statement, dated May 10, 2017 (Exhibit 32), her total assets immediately before trial and before receiving an equalization payment (other than the $12,000 advance in 2013) were a vehicle worth $7,000 and $886.34 in the bank. Her liabilities were $48,500 owed to her sister, $1,800 owed on credit cards, and $6,733.12 owed on a line of credit. Thus, her net worth was negative $49,147.
[142] Mr. Putros did not update his most recent financial statement, dated November 2, 2016 (Exhibit 118), so his net worth immediately before trial is unknown. Further, Exhibit 118 is of little assistance with respect to Mr. Putros’ net worth, because it indicates that he owned no general household items or vehicles at the time it was sworn. Given that he had been living in the matrimonial home for almost three years at that point, it is highly unlikely that he owned no household goods. Further, the abstract of his vehicle ownership (Exhibit 111), dated only 19 days earlier than the financial statement, shows that he owned a 2013 Fiat and a 2000 BMW. Accordingly, there is no reliable evidence before the court about Mr. Putros’ net worth before trial.
[143] As noted above, the court is satisfied that Ms. Hebo made contributions to the acquisition of the home during the marriage. She contributed domestic labour, child care, and other services during the relationship. Further, her income helped to finance the household. The court finds that Mr. Putros was likely enriched by Ms. Hebo’s contribution.
[144] The more difficult question is whether there is a juristic reason for Mr. Putros’ enrichment and Ms. Hebo’s corresponding deprivation.
[145] As noted above, Mr. Putros submitted that paragraphs 10 to 13 of the September 11, 2013 agreement and the subsequent order of May 1, 2014 (Exhibit 1, Tab 2) comprise a binding contract between the parties stipulating that the value of the home for the purpose of a transfer of ownership between the parties is the home’s value on the date of separation, and, as a result, the agreement establishes a juristic reason that Ms. Hebo is not entitled to share in any increase in value of the home after the date of separation.
[146] It is useful to restate paragraphs 10 and 11 of the agreement:
The Respondent shall be allowed to purchase the Applicant’s interest in the home. The Applicant and Respondent shall agree on a certified appraiser to determine the value of the home. The Applicant and Respondent shall equally share the cost of the appraisal with the Respondent paying the Applicant’s share at first instance. The issue of how much of the equity the Applicant is to receive, if any, is still in dispute as the issue of equalization has not yet been resolved. [emphasis added]
The Respondent’s name is solely on title to the home. It is not believed the Applicant’s name is listed on any encumbrances but if her name is on any secured encumbrances it shall be removed concurrent with the transfer of the home.
[147] The agreement does not specify a valuation date or a transfer date. In particular, the valuation date for the purpose of the transfer is not stipulated as the date of separation. Thus, the linchpin of Mr. Putros’ argument is missing from the agreement. The agreement simply establishes that Mr. Putros has the right to purchase Ms. Hebo’s interest in the home on an undetermined date for an undetermined price. In that sense, the agreement appears to be somewhat similar to a right of first refusal.
[148] Furthermore, the reference to a “purchase” of “the Applicant’s interest in the home” suggests an agreement between the parties that Ms. Hebo has a beneficial interest in the home. The subsequent reference to “how much….equity, if any, [Ms. Hebo] is to receive” provides support for that interpretation given that the concept of a beneficial interest in property, also known as an equitable interest, is founded in the law of equity. The explanation in the agreement that the amount of equity Ms. Hebo is to receive is uncertain because equalization is still in dispute, is not inconsistent with that interpretation. Global resolutions of property matters after a marriage breakdown are common and often lead to a single payment between the parties to settle all property issues, including issues of ownership and equalization.
[149] On the other hand, a less formal interpretation suggests that the reference to “equity” was simply be a reference to the net equity in the home, i.e. the difference between the principal amount of the mortgage and the value of the property on a given date. And the reference to a “purchase” of “the Applicant’s interest in the home” was a reference to an equalization payment of half of the net equity in the home. And the reference to the amount of Ms. Hebo’s equity being undetermined because equalization is still in dispute simply meant that that the correct amount for the equalization payment had not yet been determined because the value of property other than the home was still in dispute.
[150] Thus, there is ambiguity in the meaning of the agreement, even though a valuation date is not stipulated.
[151] Clarity is provided, however, from the fact that the agreement was signed shortly after separation, and, therefore, likely prior to any significant increase in the value of the home, and because 16 days after the agreement was signed, the property was jointly appraised as at the date of separation (Exhibit 41). Moreover, Ms. Hebo testified that that appraisal was undertaken pursuant to the agreement.
[152] Thus, it is clear on all of the evidence, even though the terms of the agreement, taken alone, are ambiguous, and the valuation date for the appraisal of the property was not included in the agreement, that the agreement was that Ms. Hebo would be compensated for her “interest” in the home by a credit for one-half of the net equity in the home on the date of separation, as part of the equalization of net family property.
[153] That being the case, the agreement provides a juristic reason for Mr. Putros alone to benefit from any increase in the value of the property after the date of separation.
[154] As a result, Ms. Hebo’s unjust enrichment claim must be dismissed, even though the court is of the view that, absent the agreement, it would be unjust for Mr. Putros to be enriched by the full increase in value of the matrimonial home since separation.
[155] If the court had arrived at a different conclusion, given that the increase in value in the home can be quantified as at November 9, 2016, the court would have found that a monetary remedy would be a sufficient remedy for the unjust enrichment, particularly since Ms. Hebo has not sought to return to the matrimonial home, but more generally because, as the Court of Appeal noted in Martin (at para. 60), a post-separation increase in property value is a monetary benefit and, therefore, cannot be used as a rationale for finding a monetary award insufficient.
[156] This court, next, would have calculated equalization and then determined whether an unequal division of net family property was appropriate, before quantifying the monetary remedy.
[157] Given the court’s dismissal of the unjust enrichment claim, the claim for a remedial constructive trust must also be dismissed. Even if the court did not dismiss the unjust enrichment claim, given that the court would have found that a monetary remedy was sufficient, the constructive trust claim would have been dismissed in any event.
[158] Despite s. 14 of the FLA which establishes that 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, the court is not satisfied that the evidence supports a finding of resulting trust in relation to the matrimonial home. There is no evidence that Mr. Putros ever intended to hold any part of the ownership of the matrimonial home in trust for Ms. Hebo and, to the contrary, there was an established pattern that all three of the parties’ owned matrimonial homes were owned solely by Mr. Putros. This arrangement began with the purchase of the Brampton home. The total period of the parties’ cohabitation at that point was about two years, Ms. Hebo had been a homemaker for about two years, she had been the primary caregiver for J for about one year, and she had not earned any money.
Equalization
Assets on the Date of Marriage
[159] Mr. Putros claimed he owned a 1993 Lexus worth $19,000 and bank-held assets worth $96,540 on the date of marriage. During final submissions, he abandoned his claims that he owned other assets on the date of marriage.
[160] Ms. Hebo did not claim ownership of any assets on the date of marriage.
1993 Lexus
[161] Mr. Putros claimed that the eight year-old Lexus he owned on the date of marriage was worth $19,000 (Exhibit 118). He claimed that was the black book value, but he did not file a copy of the black book valuation. On the other hand, he did file a copy of the black book valuation for the Toyota he owned on the date of separation. As a result, the court is left without proof of value for the Lexus, except for Mr. Putros’ testimony.
[162] Ms. Hebo disputed the value claimed by Mr. Putros and suggested that the Lexus was worth $5,000 on the date of marriage (Exhibit 33). She provided no evidentiary foundation for that figure.
[163] The court found that Mr. Putros’ testimony should be given no weight. It is his onus to establish the value of his date of marriage assets. He has failed to do so in relation to the Lexus. Accordingly, despite the absence of an evidentiary foundation for Ms. Hebo’s valuation, the court accepts her valuation on the basis that it is an admission.
[164] As a result, for the purpose of equalization, the 1993 Lexus shall be valued at $5,000 on the date of marriage.
Bank-Held Assets
[165] Mr. Putros claimed that he owned bank-held assets worth at least $96,540 on the date of marriage (Exhibit 108). His proof is a copy of a U.S. bank account book with entries in 1999 and a reverse calculation based on the amount of interest income he declared in his 2000 income tax return. He claimed that this is the best evidence available, because Ms. Hebo removed his bank records from the date of marriage from the matrimonial home.
[166] Ms. Hebo disputed the value claimed by Mr. Putros and suggested that the bank-held assets were worth $50,000 on the date of marriage (Exhibit 33). She provided no evidentiary foundation for that figure.
[167] The court found that Mr. Putros’ testimony should be given no weight. Accordingly, the court does not accept his claim that Ms. Hebo prevented him from accessing his bank records. It is his onus to establish the value of his date of marriage assets. He has failed to do so in relation to the bank-held assets. Accordingly, despite the absence of an evidentiary foundation for Ms. Hebo’s valuation, the court accepts her valuation on the basis that it is an admission.
[168] Accordingly, for the purpose of equalization, Mr. Putros’ bank-held assets are valued at $50,000 on the date of marriage.
Debts on the Date of Marriage
[169] Mr. Putros claimed a credit card debt of $1,500 on the date of marriage.
[170] Ms. Hebo did not claim any liabilities on the date of marriage.
Assets on the Date of Separation
[171] The parties agreed that the value of the matrimonial home was $435,000 on the date of separation.
[172] The parties also agreed, in submissions, that they had fairly divided the household contents.
[173] The parties agreed that the joint bank account balance of $2,900 on the date of separation should be deemed to be Mr. Putros’ because he kept those funds.
[174] During final submissions, Ms. Hebo accepted Mr. Putros’ value of $12,000 for the VW Jetta.
[175] Based on the evidence, the court finds that the interest in property in Iraq, which each party alleged the other party owned on the date of separation, was likely sold or transferred prior to the date of separation. However, even if either party had proved that the other party owned the alleged property interest in Iraq on the date of separation, neither party provided sufficient evidence of the value of that interest on that date.
[176] The parties disagreed about the value of the parties’ jewelry on the date of separation. Ms. Hebo suggested a total value of $7,500 (Exhibit 33) and Mr. Putros suggested a total value of $10,000 (Exhibit 108). The court accepts Ms. Hebo’s estimate and accepts her testimony that Mr. Putros possessed all of the jewelry before and after the date of separation. Accordingly, the court deems Mr. Putros to be the owner of the jewelry on the date of separation.
[177] Because, during final submissions, Mr. Putros abandoned his claim that he owned his various collections on the date of marriage and took the position that he did not establish the value of the collections, neither party included the collections as date of separation assets. The court, however, does not accept Mr. Putros’ testimony that Ms. Hebo took the collections, and finds that they were owned by him on the date of separation. The court accepts Mr. Putros’ evidence about the value of the collections because it is against his interest.
[178] The parties disagreed about the value of the Toyota.
[179] Mr. Putros provided a copy of the black book valuation for the Toyota (Exhibit 89). It shows a range of values from $29,100 (low) to $31,250 (high) to $36,375 (retail). Mr. Putros suggested using the average of these amounts which is $32,241.67. Ms. Hebo suggested using the retail value of $36,375.
[180] The vehicle was purchased used for $45,836.88 on July 21, 2012 (Exhibit 91). Given that the vehicle was purchased used less than a year before the date of separation, the court finds that the black book retail value is the most appropriate value.
[181] As a result, for the purpose of equalization, the Toyota is valued at $36,375 on the date of separation.
Debts on the Date of Separation
[182] The parties agreed that the mortgage on the matrimonial home was $224,275 on the date of separation.
[183] Mr. Putros’ claim that he owed $1,500 on a credit card was not disputed.
[184] The onus is on Mr. Putros to establish that he owed his parents a debt on the date of separation. Given the court’s findings with respect to the reliability and credibility of Mr. Putros, Juliet Yousif, and Rita Putros, the court is not satisfied on a balance of probabilities that the promissory note was created prior to the parties’ separation, or that the extension note was valid, or that Mr. Putros was given money from his parents, or that he owed money to his parents on the date of separation.
[185] The court is also not satisfied that Ms. Hebo owed any money to her brother on the date of separation.
[186] On the other hand, the court is satisfied on a balance of probabilities that Ms. Hebo owed $4,500 to her sister on the date of separation.
[187] Given that Ms. Hebo’s sister continued and is continuing to loan Ms. Hebo money since the pre-separation loans, it is not surprising that she has not yet demanded repayment. The court accepts Ms. Patros’ testimony that she expects Ms. Hebo to repay her when she is able to do so. It is clear from the evidence that Ms. Hebo has not been in a position to repay her sister since the loans were made. The court finds that in the absence of a demand for repayment, the limitation period has not commenced. In any event, the court finds that even if the loan is unenforceable, Ms. Hebo feels morally bound to repay her sister.
[188] The parties agreed that Ms. Hebo owed $221.15 for a credit card debt on the date of separation.
[189] The parties also agreed that the amount of Mr. Putros’ debt to the CRA on the date of separation was $14,207.24.
[190] Ms. Hebo argued that the CRA debt should not be equalized because it arose from Mr. Putros’ involvement in an illegal scheme to submit false charitable donation receipts and claim fictitious carrying charges on his income tax returns for 2003, 2004, and 2005. She submits that all of the debt, but most particularly any interest and other penalties that are within the debt, should be the sole responsibility of Mr. Putros.
[191] In the court’s view, for Ms. Hebo’s argument to succeed, she must establish that inclusion of the CRA debt in equalization would be unconscionable within the meaning of s. 5(6)(b) of the FLA. As a result, this issue will be addressed after the determination of equalization.
Equalization Calculation
[192] Ms. Hebo’s assets on the date of separation were her bank account balances ($1,788.88) and her half of the household goods and furniture, which were divided in kind. Mr. Putros valued the household goods and furniture at $10,000 on the date of separation (Exhibit 108). Using that amount, Ms. Hebo’s half was worth $5,000. Thus, the value of her total assets on separation was $6,788.88.
[193] Ms. Hebo’s debts on date of separation were to her sister ($4,500) and a credit card ($221.15). Thus, her total debts were $4,721.15.
[194] She had no assets or debts on the date of marriage.
[195] As a result, the value of her net family property on the date of separation was $2,067.73.
[196] Mr. Putros’ assets on the date of separation were the matrimonial home ($435,000), the Toyota ($36,725), the Jetta ($12,000), his bank account ($18,000), his half of the household goods and furniture ($5,000), the joint account balance ($2,900), the rare coin collection ($23,000), the other coin collection ($12,000), the liquor collection ($8,000), and the jewelry ($7,500). There was no evidence indicating that Mr. Putros intended to sell the matrimonial home. Accordingly, there shall be no deduction for notional sales commission. Thus, the value of his total assets on separation were $560,125.
[197] Mr. Putros’ debts on the date of separation were the matrimonial home mortgage ($224,275), the CRA debt ($14,207.24), and credit card debt ($1,500). Thus, his total debts were $239,982.24.
[198] Mr. Putros’ assets on the date of marriage were his bank-held assets ($50,000) and the Lexus ($5,000) for a total of $55,000.
[199] Mr. Putros’ sole debt on the date of marriage was a credit card debt ($1,500).
[200] As a result, the value of Mr. Putros’ net family property on the date of separation was $266,642.76
[201] The difference between the parties’ net family property values was $264,853.88.
[202] Accordingly, the amount Mr. Putros owes Ms. Hebo to equalize net family property is $132,426.94 (before deducting Mr. Putros’ credit for $12,000).
[203] The amount of equalization remaining to be paid is, therefore, $120,426.94.
Unequal Division of NFP
[204] As noted earlier, Ms. Hebo seeks an unequal division of net family property. She does so on the basis that she should not be responsible for any of Mr. Putros’ $14,207.24 debt to the CRA, because that debt resulted from his effort to defraud the CRA, and on the basis that it would be unconscionable for Mr. Putros to benefit from the entire increase in value of the matrimonial home since separation.
[205] The onus is on Ms. Hebo to satisfy the court that equalization would be unconscionable to the degree it would shock the conscience of the court. As stated earlier, an unfair, unjust, or harsh result from equalization does not meet this exceptionally high test.
CRA Debt
[206] Section 5(6)(b) of the FLA provides that a court may find equalization to be unconscionable having regard to the fact that that debts or liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith.
[207] Mr. Putros submitted that his income tax savings at the time of his improper filings benefited his family, including Ms. Hebo, at that time, and as a result, equalization of the debt would not be unconscionable.
[208] The court finds that Mr. Putros’ improper tax filings did create a debt to the CRA that was incurred recklessly or in bad faith within the meaning of s. 5(6)(b) of the FLA. However, the court accepts Mr. Putros’ argument that the portion of the debt that relates to the amount of tax he actually owed at the time was not created recklessly or in bad faith. Any penalties and/or interest incurred as a result of his fraudulent filings, however, are a different matter.
[209] The difficulty with this finding is that, having carefully reviewed the CRA letter (Exhibit 93) and Mr. Putros’ notices of re-assessments for 2003, 2004, and 2005 (Exhibits 112, 113, and 114) , it is unclear to the court how much of the CRA debt relates to penalties and/or interest. Even the references to interest charged on the notices do not assist given that those amounts could relate to the date the notices were printed which was November 10, 2016.
[210] For this reason, the court is unable to proceed further with the analysis in relation to the CRA debt.
[211] Accordingly, the court is unable to find that equalization of the CRA debt would be unconscionable.
Increase in Value of the Matrimonial Home since Separation
[212] Section 5(6)(h) of the FLA provides that a court may find equalization to be unconscionable having regard to any circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
[213] Ms. Hebo’s estimates of the value of the matrimonial home at the time of the trial were not based on evidence and should not be considered.
[214] On the other hand, the November 9, 2016 appraisal is appropriate to consider, because it is evidence that was not disputed by either party, there was no evidence that Mr. Putros delayed the trial, and the trial was heard about six months after the appraisal date.
[215] The equity in the matrimonial home was, by far, the most significant asset comprising each party’s net worth on the date of separation. That was particularly true for Ms. Hebo given that her other assets on the date of separation were worth only $6,788.88.
[216] Since then, as a result of market forces, the matrimonial home increased in value by about $185,000. Mr. Putros, as the sole registered owner, will be the only party to benefit from that increase, unless the court finds otherwise.
[217] As detailed earlier, by providing domestic labour, including caring for the children, Ms. Hebo’s efforts enabled Mr. Putros to enjoy the benefits of having a family and children while he worked at Fiera, at Bally’s, at the family home as a personal trainer, and for Foremost selling gym equipment, to earn the income that allowed him to buy the parties’ homes and register them solely in his name. According to Mr. Putros’ testimony, his earnings also allowed him to amass a personal collection of rare coins worth $23,000, another coin collection worth $12,000 in an 18 litre jug, a cigar collection, and a liquor collection worth $8,000, prior to the date of separation.
[218] On the other hand, Ms. Hebo, whose English was limited, gave almost all of her earnings to Mr. Putros, had access to very little money, struggled financially during the nine years of cohabitation, has continued to struggle financially since separation, and has had to borrow a considerable sum of money from her sister before and since separation.
[219] According to her financial statement, dated May 10, 2017 (Exhibit 32), her total assets immediately before trial and before receiving an equalization payment (other than the $12,000 advance in 2013) were a vehicle worth $7,000 and $886.34 in the bank. Her liabilities were $48,500 owed to her sister, $1,800 owed on credit cards, and $6,733.12 owed on a line of credit. Thus, her net worth was negative $49,147.
[220] As noted earlier, Mr. Putros did not update his most recent financial statement, dated November 2, 2016 (Exhibit 118), so his net worth immediately before trial is unknown. Further, Exhibit 118 is of little assistance with respect to Mr. Putros’ net worth at the time it was sworn, because it indicates that he owned no general household items or vehicles. Given that he had been living in the matrimonial home for almost three years at that point, it is highly unlikely that he owned no household goods. Further, the abstract of his vehicle ownership (Exhibit 111), dated only 19 days earlier than the financial statement, shows that he owned a 2013 Fiat and a 2000 BMW. Accordingly, there is no reliable evidence before the court about Mr. Putros’ net worth before trial.
[221] The effect of equalization, nevertheless, is that Ms. Hebo will have a net worth of about $70,000 and Mr. Putros will have a net worth that is significantly higher, because he is the owner of the matrimonial home.
[222] On the other hand, Ms. Hebo is not expected to pay back her sister’s interest-free loans until she is in a position to do so. Accordingly, she will have almost all of the remaining equalization payment available for her immediate use.
[223] Upon a consideration of all of the circumstances, the court finds that the result of equalization in this case is likely unfair and unjust, and possibly harsh, but the court is not satisfied that the result is unconscionable to the degree that shocks the conscience of the court.
Pre-judgment Interest and Security for Equalization
[224] As noted earlier, the amount of equalization remaining to be paid is $120,426.94.
[225] Given that Mr. Putros was an unreliable and incredible witness and his sworn financial statements were also unreliable, pursuant to s. 128 of the Courts of Justice Act R.S.O. 1990, C. 43, as am. (CJA), he is ordered to pay pre-judgment interest in the amount of $7,000 on the amount of equalization remaining to be paid.
[226] For the same reason, pursuant to s. 9(1) of the FLA, the full amount of equalization and pre-judgment interest owing to Ms. Hebo, i.e. $127,426.94, shall be a charge upon the matrimonial home as security for payment.
Child Support
[227] The parties agreed that Mr. Putros’ income for child support purposes was $78,269 in 2013, $80,107 in 2014, $80,107 in 2015, $80,107 in 2016, and $80,110 in 2017.
[228] The Child Support Guidelines SOR/97-175, as am. (CSG) stipulate he should pay child support in the amount of $1,150 per month for 2013, and $1,173 per month for 2014, 2015, 2016, and 2017.
[229] For 2013, including one-half of May, the total guideline amount stipulated is $8,569. The parties agree that Mr. Putros paid $4,471 for child support during 2013. The difference is $4,383.
[230] Mr. Putros submits that he should receive credit toward child support owing for 2013, because he made all the mortgage, insurance, taxes, and utilities payments for the matrimonial home while Ms. Hebo and the children were living there from the date of separation until the end of November, 2013.
[231] The matrimonial home, however, is Mr. Putros’ property. He is the sole owner. As the owner, it is his responsibility to pay for the mortgage, insurance, and taxes. He alone has gained from the appreciation of the property since the date of separation. As a result, he should not recover his payments for the mortgage, insurance, or taxes.
[232] He did not claim occupation rent, but it is reasonable, nevertheless, for him to recover some of the costs of utilities for the period he was not in the home after separation. The recovery should not be for the full amount of the utilities given that some water, heat, and electricity expenses would be necessary to the maintain the home and the property if Ms. Hebo and the children did not live in the premises.
[233] According to Mr. Putros’ financial statement, dated October 16, 2013 (Exhibit 117), the average monthly expense for water for the matrimonial home was $65, heat $100, and electricity $65. These expenses seem reasonable. They total $230 per month. The court finds that Mr. Putros should receive a credit in the amount of $150 per month for six and one-half months. The total credit is, therefore, $975.
[234] As a result, Mr. Putros owes Ms. Hebo $3,408 for child support for 2013.
[235] In addition, he owes her at total of $82 for repeated under-payments of $2 per month from January of 2014 until May of 2017.
[236] Accordingly, Mr. Putros shall pay Ms. Hebo a total of $3,490 for child support arrears to May 31, 2017.
[237] Mr. Putros shall pay Ms. Hebo $1,173 per month in child support from June 1, 2017 to November 1, 2017. As a result of a recent change in the CSG, Mr. Putros shall pay Ms. Hebo $1,213 per month in child support commencing December 1, 2017.
Special or Extraordinary Child Expenses (Section 7 of the CSG)
Ms. Hebo’s Income
Positions of the Parties
[238] Ms. Hebo has not earned any income since separation. In response to Mr. Putros’ position that income should be imputed to her, she submitted that, based on all of the circumstances, income should not be imputed to her.
[239] Mr. Putros submitted that Ms. Hebo is intentionally unemployed or under-employed and should have worked at least part-time since the date of separation, and, as a result, she should be imputed with an income equivalent to at least part-time minimum wage and up to full-time minimum wage, starting on the date of separation.
[240] Mr. Putros underlined that Ms. Hebo was 31 years old on the date of separation. He submitted that Ms. Hebo did not prove that she made diligent efforts to obtain at least part-time employment after separation. He argued that she should have worked immediately after separation, during the ESL course, while obtaining high school credits, and that she should work while attending college. He emphasized that the children have been in school full time since separation and that there is free after-school daycare available at their school. He suggested that, because J is now 12 years old, she is capable of taking care of L for short periods of time.
Analysis
[241] As noted earlier, very soon after separation, Mr. Putros sold the VW Jetta that Ms. Hebo used to transport herself and the children, because he decided that she did not need a vehicle. Despite her reduced mobility, Ms. Hebo applied for work at Tim Hortons, Walmart, and some convenience stores in 2013. She testified that she provided her lawyer with a list of the places she had applied so that he could send the list to Mr. Putros’ lawyer. As the court found earlier, her poor level of English was likely a significant factor in her not obtaining work. Further, she no longer had assistance from Ms. Putros who had arranged, through connections, Ms. Hebo’s only previous paid position.
[242] The court finds that in Ms. Hebo’s circumstances, her decision, made in December, 2013, after having unsuccessfully applied for minimum wage work at various employers, to focus, instead, on improving her education in an effort to qualify for better employment opportunities, so that she could attempt to move toward self-sufficiency, was completely reasonable. The court also finds that it was appropriate for her to commence her path to higher education by taking the ESL programme starting in January, 2014. Further, the court finds that she was quite diligent when she started attending high school in November, 2014. Further, given the challenges she faced: as a student with English as a second language, as the primary caregiver for two young children, not receiving spousal support, as a recipient of government support, and borrowing significant funds from her sister in Australia to make ends meet, the court finds that she acted diligently to complete high school in April, 2017, and to be accepted into the RPN programme at Centennial College commencing in the Fall of 2017.
[243] The court does not agree with Mr. Putros that Ms. Hebo should have added part-time or full-time employment to the challenges she was already facing. During the summers, the children are not at school and require her attention. The same applies during weekends and evenings during the school year. As noted earlier, Mr. Putros has a history of cancelling his parenting time with the children on short notice and Ms. Hebo does not have alternative care available for the children. Accordingly, she must be available.
[244] Mr. Putros has not satisfied the court that Ms. Hebo has been or is intentionally unemployed or under-employed or that income should be imputed to Ms. Hebo.
Proportionate Share
[245] Given that Ms. Hebo has had no earned or imputed income since separation and that will likely continue to be the case until she completes the RPN programme and obtains employment, the parties’ proportionate share of special and extraordinary child expenses will be determined by the amount of spousal support payable. Based on the determination of spousal support below, Mr. Putros’ proportionate share of such expenses for 2013 was 95 percent, and since January 1, 2014, has been 85 percent.
Arrears
[246] Ms. Hebo enrolled the children in tutoring in June, 2013. The cost was $85. Mr. Putros refused to contribute to that expense and submitted that he should not be required to contribute, because the children were enrolled without his consent.
[247] The court finds that Mr. Putros’ refusal was unreasonable, because tutoring was a reasonable extraordinary educational expense. Accordingly, he shall reimburse Ms. Hebo $80.
[248] In September of 2013, Ms. Hebo paid $19 for a child to go on a school trip to Pioneer Village. Mr. Putros refused to contribute and submitted that he should not be required to contribute, because the expense was too small to qualify as an extraordinary expense.
[249] The court finds that $19 for a school trip was an extraordinary expense given Ms. Hebo’s relatively dire financial circumstances at the time. Accordingly, Mr. Putros shall reimburse her $18.
[250] In December, 2013, Ms. Hebo enrolled the children in skating lessons for $192. Mr. Putros refused to contribute, but he agreed at trial that he should contribute. Accordingly, he shall reimburse Ms. Hebo $182.
[251] In June and July, 2014, Ms. Hebo enrolled the children in swimming lessons for $125 and $179, respectively. Mr. Putros refused to contribute, but he agreed at trial that he should contribute. Accordingly, he shall reimburse Ms. Hebo $258.
[252] Between the Fall of 2014 and the Fall of 2015, Ms. Hebo enrolled the children in a school science workshop for $16, a school trip to the Royal Ontario Museum for $35, a school trip to Pioneer Village for $35, a school trip to the Columbus Centre for $5, a school trip to the Veneto Centre for $12, a school trip to the Ontario Science Centre for $30, a school trip to Harbourfront for $30, a school science workshop for $20, and a school trip to the Columbus Centre for $7.
[253] Mr. Putros did not consent to these trips and argued that the amounts are too small to qualify for reimbursement.
[254] The court agrees that the charges under $10, being $5 and $7 for the trips to the Columbus Centre, were too small for reimbursement as extraordinary expenses. As a result, Mr. Putros will not be required to contribute to those expenses.
[255] The court is satisfied, however, that the other trips were reasonable extraordinary educational expenses given Ms. Hebo’s financial circumstances at the time. Accordingly, Mr. Putros shall reimburse Ms. Hebo $151.
[256] In July, 2015, Ms. Hebo enrolled the children in swimming lessons for $110. Mr. Putros refused to contribute, but he agreed at trial that he should contribute. Accordingly, he shall reimburse Ms. Hebo $93.
[257] In September, 2015, Ms. Hebo spent $33 for a sunscreen for L who had a rash. Mr. Putros argued that this amount is too small to qualify for reimbursement as a medical expense. Given the annual $100 threshold in s. 7(1)(c) of the CSG, the court agrees with his position.
[258] In October, 2015, Ms. Hebo received an estimate for orthodontics for J. Mr. Putros delayed his consent for the treatment. At the time of trial, the orthodontic work had still not started. The court finds that this delay was unreasonable. If Mr. Putros has not done so already, he shall pay 85 percent of the uninsured portion of this expense. At Ms. Hebo’s option, she may require him to pay 100 percent of any such expense that has not yet been paid and she will reimburse him 15 percent of any uninsured portion of the expense.
[259] Ms. Hebo also claimed $544 for various unspecified expenses between October, 2016 and May, 2017. No receipts were filed. Mr. Putros submitted that he should not have to contribute absent written proof of the expense. The court agrees with his position.
[260] In total, therefore, Mr. Putros shall forthwith pay Ms. Hebo $782 for special and extraordinary child expenses incurred prior to the trial.
[261] He shall also pay her 85 percent of any special or extraordinary expenses for either child incurred during or after the trial. Ms. Hebo will have the option mentioned above in relation to any insured extended health or dental expense, including, without limiting the foregoing, any medical or orthodontic expense.
Going Forward
[262] Going forward, with the exception of insured extended health and dental expenses, Mr. Putros shall pay Ms. Hebo 85 percent of any special or extraordinary expenses for either child within 14 days of receiving a copy of the receipt. Mr. Putros’ consent is not required for such expenses.
[263] Mr. Putros shall pay or reimburse Ms. Hebo the full amount of insurance coverage and 85 percent of any uninsured portion of any extended health and dental expense for either child, including, without limiting the generality of the foregoing, any medical or orthodontic expense, or, at Ms. Hebo’s option, Mr. Putros shall pay 100 percent of such an expense and be reimbursed 15 percent of any uninsured portion by Ms. Hebo because Mr. Putros will likely be in a better position to pay any such expenses prior to insurance reimbursement. Mr. Putros’ consent is not required for such expenses.
Spousal Support
Law
[264] The court is guided by s. 15.2 of the Divorce Act R.S.C. 1985, c. 3 (2nd Supp.), as am. regarding spousal support.
[265] Subsections 15.2 (4), (5), and (6) of the Divorce Act provide:
(4) Factors - In making an order [for spousal support] the court shall take into consideration the condition, means, needs and circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during the cohabitation; and
(c) any order or arrangement relating to the support of either spouse.
(5) Spousal Misconduct - In making an order [for spousal support] the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) Objectives of Spousal Support Order – An order made [for spousal support] 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 any 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 amount of time.
[266] These provisions speak to three different types of entitlement to spousal support: compensatory, contractual, and non-compensatory (See Bracklow v. Bracklow [1990] 1 S.C.R. 420).
Entitlement
[267] Ms. Hebo submits that she is entitled to spousal support on a compensatory and non-compensatory basis. Mr. Putros concedes that Ms. Hebo is entitled to spousal support.
[268] The court finds that Ms. Hebo is entitled to spousal support on a compensatory and non-compensatory basis.
[269] Her contribution to the family by being the primary caregiver for the children and performing other domestic labour such as the cooking and cleaning, allowed Mr. Putros to devote long hours to earning an income. In addition, she gave him almost all of her earnings from Tim Hortons.
[270] Further, Ms. Hebo is very much in need of spousal support, and Mr. Putros has the ability to pay. Mr. Putros’ testimony that he pays for Ms. Hebo’s tenant insurance, because he knows that she does not have much money, was striking.
Amount and Date of Commencement
[271] As noted earlier, Ms. Hebo’s net worth at the time of trial was about negative $49,000. She is likely further in debt at present. She and the children have been surviving, since December 1, 2013, on child support of $1,171 per month, government assistance, and significant loans from her sister. As a result of this trial, Ms. Hebo should immediately receive an equalization and pre-judgment interest payment in the amount of about $127,000, arrears of child support in the amount of $3,490, and about $780 for arrears of special or extraordinary expenses. These amounts total about $132,300. If she delays paying back her sister, this amount should allow her to pay her other debts and may assist her in securing better accommodation for herself and the children than she may have at present.
[272] Ms. Hebo’s budget in her financial statement of May 10, 2017 (Exhibit 32) shows that at that time her monthly expenses exceeded her monthly income even with a very frugal lifestyle. She and the children were living in a basement apartment for which she paid $1,224 per month including utilities. As noted earlier, she was being forced to find alternative accommodation during the trial, and had not found anything suitable for less than $2,000 per month.
[273] Mr. Putros, on the other hand, is the sole owner of the matrimonial home, which had an appraised value of about $610,000 a year ago. At that time, the mortgage and line of credit registered against the home totaled about $241,700 according to his most recent financial statement sworn on November 2, 2016 (Exhibit 118). Accordingly, his equity in the home at that time was about $368,000. In addition, according to the same financial statement, Mr. Putros had about $8,000 in the bank. As noted earlier, Mr. Putros claimed, in that financial statement, to own no personal assets; meaning no household goods, no furniture, no vehicle, no computer, no jewelry, no electronics, no tools, no sports equipment, and no collections of cigars, coins, or liquor. Given that he was living in the matrimonial home at the time, the court found that it is highly likely that he owned and still owns furniture and household goods. Further, based on the evidence about his lifestyle during the marriage, it is also likely that he owned and still owns at least one vehicle, at least one computer, jewelry, electronics, tools, sports equipment, and some collections. In fact, as noted earlier, the abstract of his vehicle ownership (Exhibit 111), dated 19 days earlier than the financial statement, shows that he owned a 2013 Fiat and a 2000 BMW at that time. As a result, the court finds that his net worth is likely significantly higher than his equity in the matrimonial home or his net worth shown in his financial statement.
[274] As a result of this trial, Mr. Putros will be required to pay Ms. Hebo about $127,000 for equalization and pre-judgment interest forthwith. He will also have to pay $3,490 for child support arrears, and about $780 for arrears of special or extraordinary expenses. He will also have to pay his share for J’s orthodontic work, although a payment plan might be available from the orthodontist. At some point, Mr. Putros will also be required to pay about $14,207 he owes to the government as a result of his false income tax deductions.
[275] Mr. Putros has been steadily employed on a full-time basis by Fiera for over 20 years. While working at Fiera, he earned additional income as a personal trainer and selling gym equipment.
[276] As noted earlier, the parties agreed that Mr. Putros’ annual incomes for support purposes are $78,269 for 2013, $80,107 for 2014, 2015, and 2016, and $80,110 for 2017.
[277] Ms. Hebo submitted, nevertheless, that the court, when considering Mr. Putros’ ability to pay spousal support, should consider whether his income has actually been higher than those amounts, as a result of undeclared income as a personal trainer and from sales of gym equipment, when assessing his ability to pay spousal support. This proposition has some attraction, because Mr. Putros’ claim that the extra income he earned throughout the marriage ended shortly before separation is suspicious. Most of the proof of his income filed with the court, however, was by way of notices of assessment which do not provide a detailed breakdown of the sources of income. Only a few of his income tax returns or T4s were filed. As a result, it is not possible for the court to ascertain whether he declared any additional income for tax purposes. It is possible that he earned and/or earns undeclared income. If that had been proven, that income would be grossed up for support purposes, but based on the evidence presented, the court finds that the evidence does not establish that Mr. Putros earned and/or earns undeclared additional income. As a result, the court will not consider the possibility that Mr. Putros earned and/or earns undeclared additional income. The court will be guided solely by the income amounts agreed to by the parties, with respect to Mr. Putros’ ability to pay spousal support.
[278] Given the many inconsistencies in Mr. Putros’ evidence, and, for reasons already noted, the manifest unreliability of his financial statement (Exhibit 118), the court gives no weight to his monthly expense budget.
[279] The court finds that it is not appropriate to order spousal support based on Ms. Hebo’s frugal budget or the fact that she managed to find a basement apartment for below the going rate. Instead, spousal support should be based on a reasonable budget for her and the two children.
[280] Ms. Hebo and the children lived in the matrimonial home from the date of separation until the end of November, 2013. That was appropriate accommodation. While there, Ms. Hebo paid the monthly expenses for her telephone and internet. Child support for that period has been reduced by $150 per month, because Mr. Putros was paying the utility bills. That deduction from child support should be considered as an expense for Ms. Hebo when considering spousal support. Further, Mr. Putros sold the vehicle that Ms. Hebo and the children had been using, within 17 days after separation, because he decided that she did not need a vehicle. Further, Ms. Hebo did not receive the appropriate amount of child support owed during that period.
[281] Upon a consideration of the means, needs, condition, and circumstances of both parties, and the children, the court finds that Mr. Putros shall pay Ms. Hebo $600 per month in spousal support for that six and one-half month period. As a result, he owes her $3,900 for that period.
[282] The court recognizes that $600 per month falls significantly below $1,036 per month which is the low-range of the Spousal Support Advisory Guidelines (SSAG) for 2013, based on the parties’ incomes, but that is a result of Ms. Hebo’s dramatically reduced costs, because Mr. Putros was paying for her accommodation.
[283] For the month of December, 2013, Ms. Hebo paid rent for a basement apartment and utilities. Upon a consideration of the means, needs, condition, and circumstances of both parties, and the children, the court finds that Mr. Putros shall pay Ms. Hebo $1,300 for spousal support for that month. That means she and the children would have 55 percent of the parties’ net disposable income (NDI) and less than 46 percent of the parties’ individual net disposable income (INDI). That amount falls between the mid-range and the high-range of the SSAG for 2013. The mid-range is $1,206 and the high-range is $1,380.
[284] As a result, Mr. Putros owes Ms. Hebo a total of $5,200 for spousal support for 2013.
[285] Mr. Putros’ income rose slightly in 2014. Upon a consideration of the means, needs, condition, and circumstances of both parties, and the children, the court finds that Mr. Putros shall pay Ms. Hebo $1,350 per month for spousal support for 2014 which means that she and the children would have 55.3 percent of the parties’ NDI and less than 46 percent of the parties’ INDI. That amount falls between the mid-range and the high-range of the SSAG for 2014. The low-range is $1,057, the mid-range is $1,231, and the high-range is $1,408.
[286] As a result, Mr. Putros owes Ms. Hebo $16,200 for spousal support for 2014.
[287] Mr. Putros’ income remained the same in 2015. Upon a consideration of the means, needs, condition, and circumstances of both parties, and the children, the court finds that Mr. Putros shall pay Ms. Hebo $1,300 per month for spousal support for 2015 which means that she and the children would have 55.5 percent of the parties’ NDI and less than 46 percent of the parties’ INDI. That amount falls between the mid-range and the high-range of the SSAG for 2015. The low-range is $967, the mid-range is $1,144, and the high-range is $1,326.
[288] As a result, Mr. Putros owes Ms. Hebo $15,600 for spousal support for 2015.
[289] Mr. Putros’ income remained the same in 2016. Upon a consideration of the means, needs, condition, and circumstances of both parties, and the children, the court finds that Mr. Putros shall pay Ms. Hebo $1,200 per month for spousal support for 2016 which means that she and the children would have 55.3 percent of the parties’ NDI and less than 46 percent of the parties’ INDI. That amount falls between the mid-range and the high-range of the SSAG for 2016. The low-range is $856, the mid-range is $1,038 and the high-range is $1,225.
[290] As a result, Mr. Putros owes Ms. Hebo $14,400 for spousal support for 2016.
[291] Mr. Putros’ income remained essentially the same in 2017. Upon a consideration of the means, needs, condition, and circumstances of both parties, and the children, the court finds that Mr. Putros shall pay Ms. Hebo $1,200 per month for spousal support for the first eleven months of 2017 which means that she and the children would have 55.2 percent of the parties’ NDI and less than 46 percent of the parties’ INDI. That amount falls between the mid-range and the high-range of the SSAG for 2017. Until recent changes to the CSG and the SSAG, the low-range was $862, the mid-range was $1,045, and the high-range was $1,232.
[292] As a result, Mr. Putros owes Ms. Hebo $13,350 for spousal support for the first eleven months of 2017.
[293] Accordingly, Mr. Putros owes Ms. Hebo a total of $68,650 for arrears of spousal support from the date of separation until November 30, 2017.
[294] On a go-forward basis, commencing December 1, 2017, Mr. Putros shall pay Ms. Hebo $1,200 per month for spousal support based on his 2017 income which means that she and the children will have 55.8 percent of the parties’ NDI and less than 46 percent of the parties INDI. That amount falls between the mid-range and the high-range of the SSAG after the recent changes. The low-range is $844, the mid-range is $1,015, and the high-range $1,211.
Pre-judgment Interest for Spousal Support Arrears
[295] Given that Mr. Putros has not paid any spousal support since the date of separation, even though he has known that Ms. Hebo, the primary caregiver for the children, has been significantly impecunious, pursuant to s. 128 of the CJA he is ordered to pay pre-judgment interest in the amount of $1,500 on the spousal support arrears.
Duration and Review
[296] The parties’ marriage of 12 years was of medium duration. Ms. Hebo is currently 35 years old. It is unknown at this time whether her efforts towards increased self-sufficiency will succeed. Bearing that in mind, and accepting the parties’ submissions that a review date is appropriate in this case, the court finds that spousal support shall terminate on May 2, 2025, which is 12 years after separation. The SSAG suggests a duration range between 6 and 14 years.
[297] Ms. Hebo suggested that spousal support should be reviewable after December, 2020, to give her a reasonable opportunity to complete her education and obtain secure employment.
[298] Mr. Putros suggested that spousal support should be reviewable after December, 2019.
[299] Based on all of the circumstances, the court finds that a review of spousal support may be commenced after December of 2020.
Life Insurance
[300] The court finds that the appropriate amount of life insurance to secure support in this case is the $200,000 amount sought by Ms. Hebo. Accordingly, Mr. Putros shall immediately secure support by having his life insured for $200,000, with Ms. Hebo as the irrevocable sole beneficiary, and he shall maintain that insurance while child and/or spousal support is payable and/or owing to Ms. Hebo. He shall provide her with proof, on an annual basis, that the insurance is in place.
Divorce
[301] The parties are divorced effective immediately.
Orders
[302] Final orders shall be issued as follows:
Peter Putros shall immediately pay Sawsan Hebo $120,426.94 for equalization of net family property.
Peter Putros shall immediately pay Sawsan Hebo $7,000.00 for pre-judgment interest in relation to equalization.
A charge in favour of Sawsan Hebo in the amount of $127,426.94 shall be registered on title for PT BLK 374, PL 65M3556, PTS 12 & 13, 65R24988, Vaughan, known municipally as 44 Lodgeway Drive, Maple, Ontario.
The said charge in favour of Sawsan Hebo in the amount of $127,426.94 shall not be discharged until Peter Putros has paid Sawsan Hebo the entire amount of $127,426.94 for equalization and pre-judgment interest.
Peter Putros shall immediately pay Sawsan Hebo $3,490 for arrears of child support, fixed as at May 31, 2017.
Peter Putros shall pay Sawsan Hebo $1,173 per month for child support for two children from June 1, 2017 to November 1, 2017; he shall pay her $1,213 per month for child support commencing December 1, 2017.
Peter Putros shall immediately pay Sawsan Hebo $782 for arrears for special or extraordinary expenses for the children, fixed as at May 31, 2017.
Peter Putros shall immediately pay 85 percent of the uninsured cost for the orthodontic work for J that was recommended in October, 2015. If Sawsan Hebo has paid or pays any of the cost for this work, she may provide Peter Putros with proof of payment and Peter Putros shall immediately apply under his employer’s insurance plan for reimbursement and he shall, immediately upon receiving a payment and a claim statement, or the equivalent, from the insurer, provide Sawsan Hebo with a copy of the claim statement, or equivalent, and pay to Sawsan Hebo the entire amount of any reimbursement received from the insurer plus 85 percent of any portion of the expense not reimbursed or paid by the insurer. At Sawsan Hebo’s option, to be provided to Peter Putros in writing and by ordinary mail, Peter Putros shall pay 100 percent of any amount owed directly to the orthodontist, in accordance with any payment plan established by the orthodontist. Peter Putros may then file a claim for any such payment with his employer’s insurer. He shall immediately provide Sawsan Hebo with a copy of the claim statement, or equivalent, received from the insurer and she shall immediately reimburse Peter Putros 15 percent of any portion of the expense not reimbursed or paid by the insurer. Sawsan Hebo may provide proof of payment or an exercise of her option in writing to Peter Putros by ordinary prepaid mail which shall be deemed to be received by him seven days after posting.
Peter Putros shall ensure that the children are continuously insured for extended health and dental expenses, including, without limiting the foregoing, medical and orthodontic expenses, under his employer’s insurance plan. If Sawsan Hebo has paid or pays any of the cost for such an expense, during or after the trial, she may provide Peter Putros with proof of payment and Peter Putros shall immediately apply to the insurer for reimbursement and he shall immediately upon receiving a payment and a claim statement, or equivalent, from the insurer provide Sawsan Hebo with a copy of the claim statement, or equivalent, and pay to Sawsan Hebo the entire amount of any reimbursement received from the insurer plus 85 percent of any portion of the expense not reimbursed or paid by the insurer. At Sawsan Hebo’s option, to be provided to Peter Putros in writing and by ordinary mail, Peter Putros shall pay 100 percent of any amount owed directly to the service provider, in accordance with any payment plan established by the service provider. Peter Putros may then file a claim for any such payment with his employer’s insurer. He shall immediately provide Sawsan Hebo with a copy of the claim statement, or equivalent, received from the insurer and she shall immediately reimburse Peter Putros 15 percent of any portion of the expense not reimbursed or paid by the insurer. Sawsan Hebo may provide proof of payment or the exercise of her option in writing to Peter Putros by ordinary prepaid mail which shall be deemed to be received by him seven days after posting.
Peter Putros shall reimburse 85 percent of any other special or extraordinary expense incurred by Sawsan Hebo, during or after the trial, for each child, to Sawsan Hebo, within 14 days of her providing him with a copy of the receipt(s) for such expenses. She may provide the copy if the receipt(s) to him by ordinary prepaid mail which shall be deemed to be received by him seven days after posting.
Peter Putros shall immediately pay Sawsan Hebo $68,650 for arrears of spousal support fixed as at November 2, 2017.
Peter Putros shall immediately pay Sawsan Hebo $1,500 for pre-judgment interest on the arrears of spousal support.
Peter Putros shall pay Sawsan Hebo spousal support in the amount of $1,200 per month, commencing December 1, 2017.
Peter Putros shall ensure that Sawsan Hebo is continuously insured for extended health and dental expenses, including, without limiting the foregoing, medical and orthodontic expenses, under his employer’s insurance plan for as long as she is eligible. If Sawsan Hebo has paid or pays any of the cost for such an expense, during or after the trial, she may provide Peter Putros with proof of payment and Peter Putros shall immediately apply to the insurer for reimbursement and he shall immediately upon receiving a payment and a claim statement, or equivalent, from the insurer provide Sawsan Hebo with a copy of the claim statement, or equivalent, and pay to Sawsan Hebo the entire amount of any reimbursement received from the insurer. Sawsan Hebo may provide proof of payment to Peter Putros by ordinary prepaid mail which shall be deemed to be received by him seven days after posting.
A support deduction order shall issue.
Each party shall provide the other party with a copy of their complete income tax returns and all attachments (including all T4s) on or before May 31st for the previous taxation year, commencing on or before May 31, 2018 for the 2017 taxation year, for as long as Mr. Putros is required to pay support of any kind to Ms. Hebo. Each party shall also provide the other party with a copy of their notice of assessment and any notices of re-assessment within 14 days of receipt from CRA, commencing in 2018 for the 2017 taxation year.
Spousal support for Sawsan Hebo shall terminate on May 2, 2027.
A review of spousal support may be commenced after December of 2020.
Peter Putros shall immediately secure his child and spousal support obligations by having his life insured for $200,000, with Sawsan Hebo as the irrevocable sole beneficiary, and he shall maintain that insurance while child and/or spousal support of any kind is payable and/or owing to Sawsan Hebo.
Peter Putros shall provide to Sawsan Hebo, within 14 days of February 1st of each year, commencing in 2018, written proof from his insurer(s) that the said life insurance is in place and continues to be in force and that Sawsan Hebo is the irrevocable sole beneficiary, for as long as he is required to maintain the life insurance.
Peter Putros and Sawsan Hebo are divorced effective immediately.
Costs
[303] If the parties are unable to resolve the issue of costs, either party may serve and file brief submissions as to costs within 14 days from the date of this judgment. The other party may serve and file brief responding submissions within 14 days of service by the first party. The first party may serve and file very brief reply submissions within 7 days of service by the responding party.
F. Graham J.
Released: November 29, 2017
November 29, 2017 – Corrections:
- Paragraph 237 corrected to now read:
Mr. Putros shall pay Ms. Hebo $1,173 per month in child support from June 1, 2017 to November 1, 2017. As a result of a recent change in the CSG, Mr. Putros shall pay Ms. Hebo $1,213 per month in child support commencing December 1, 2017.
- Paragraph 291 (final two sentences) corrected to now read:
That amount falls between the mid-range and the high-range of the SSAG for 2017. Until recent changes to the CSG and the SSAG, the low-range was $862, the mid-range was $1,045, and the high-range was $1,232.
- Paragraph 294 corrected to now read:
On a go-forward basis, commencing December 1, 2017, Mr. Putros shall pay Ms. Hebo $1,200 per month for spousal support based on his 2017 income which means that she and the children will have 55.8 percent of the parties’ NDI and less than 46 percent of the parties INDI. That amount falls between the mid-range and the high-range of the SSAG after the recent changes. The low-range is $844, the mid-range is $1,015, and the high-range $1,211.
- Paragraph 302(6) corrected to now read:
Peter Putros shall pay Sawsan Hebo $1,173 per month for child support for two children from June 1, 2017 to November 1, 2017; he shall pay her $1,213 per month for child support commencing December 1, 2017.