Court File and Parties

COURT FILE NO.: FS-12-1813000 DATE: 20180312 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SUZANNE MARGARET GEISHARDT Applicant

• and -

SHAFQAT MONWAR AHMED Respondent

Counsel: Anita T. Kain, for the Applicant Daryl Gelgoot, for the Respondent

SUPPLEMENTARY JUDGMENT

D.L. Corbett J.:

[1] In my judgment released September 25, 2017 (2017 ONSC 5513), I found:

The parties settled equalization and material property issues in the Separation Agreement.[^1]

The parties have equalized their property already….[^2]

The parties have resolved the major property issues. The only issues that remain concern a few specific pieces of personal property….[^3]

[2] In my disposition, I dismissed all of the parties’ claims excepting that I ordered Dr Ahmed to make a one-time payment of support of $43,000, and I directed Dr Geishardt to return the disputed personal property items to Dr Ahmed.[^4]

[3] During the trial it was made clear by Applicant’s counsel that there were issues about calculation of property equalization in accordance with the Separation Agreement. These issues were relatively minor (in the scheme of the overall dispute between the parties). One aspect of the Applicant’s claim for an award against the Respondent involved the penalty clause in the Separation Agreement, which I ruled was unenforceable. I understood that this question was the major issue dividing the parties on settling the final adjustment of accounts in respect to non-support issues.

[4] Applicant’s counsel has raised two issues which she argues remain outstanding and which were not decided in my judgment:

(a) accounting for proceeds of sale of the matrimonial home and the condominium purchased post-separation; and

(b) non-performance of the term in the Separation Agreement requiring equalization of RRSP’s by way of a spousal rollover.

[5] Respondent’s counsel argues that these matters were not addressed in final argument and that, although there may be documentary evidence about these issues in the voluminous record before the court, there was no evidence during the testimony of the parties directed at these points.

[6] Applicant’s counsel argues that the points were noted, and the court, assessing these issues as relatively minor, put the issues on the “back burner” and then the issues were apparently forgotten and not decided.

[7] I have reviewed my notes from the trial. I am satisfied that the issue described in para. 4(a), above, was referenced during the trial, and that there was an outstanding accounting issue to be decided. It is clear that the parties proceeded prior to trial on the basis that there was a dispute on this issue: the final payment of proceeds from trust, equally to both parties, was expressly without prejudice, the basis of this reservation being an existing dispute on calculation of payment of net proceeds.

[8] The value of this issue, as argued by the Applicant, is slightly less than $7,000, and I am prepared to conclude that I lost sight of it when wrestling with the other more weighty issues in the case.

[9] From my review of my notes, I am also satisfied that the issue of the RRSP rollover was mentioned, but I am not clear that it was ever addressed before me beyond noting that it was a “live” issue. This is a more substantial point. The Applicant argues that she is entitled to a rollover of $53,764.73.

[10] In paragraph 1 of this endorsement I quote passages from the Judgment that indicate my understanding that property issues had been resolved. In para. 152 of the Judgment these observations were qualified:

The provisions of the Separation Agreement are reasonable in respect to property issues. Indeed, the parties have divided their property in accordance with the Separation Agreement, subject only to some minor adjustments following this judgment….

This passage more accurately reflects my understanding of the state of property issues than the passages quoted at the start of this endorsement: there were still “minor adjustments to be made following the judgment.” Those adjustments included taking account of my decision on the penalty clause respecting insurance obligations, and the division of net proceeds of sale of the real estate. I do not recall if I also understood and had been told that there was a live issue concerning the spousal rollover to be addressed.

(a) Accounting for Proceeds of Sale

[11] The Separation Agreement called for net proceeds of sale of the two properties to be equalized. The parties agree that net proceeds from sale of the condominium were $190,950.29. They also agree that net proceeds of sale from the matrimonial home were $979,958.98. Thus each party would be entitled to a total of $585,454.63 from net sale proceeds of the two properties.

[12] The parties agree that, of these proceeds, $50,000 was used to pay off two lines of credit, and the parties agree that this payment should reduce each share of net proceeds by $25,000. Thus each party was entitled to receive $560,454.63.

[13] The condominium was sold first. The Separation Agreement provided that, in this event, Dr Ahmed was entitled to use the net sale proceeds from the sale of the condominium to assist him to purchase accommodation for himself, with Dr Geishardt’s share of those proceeds to be paid to her from Dr Ahmed’s share of the net proceeds of sale of the matrimonial home.[^5]

[14] Dr Ahmed did use net sale proceeds from the condominium to help him buy another house. However, the parties agree that he did not use 100% of those proceeds for that purpose. Rather, the net proceeds of sale of the condominium were paid into a joint savings account, and various payments were made from that fund towards Dr Ahmed’s new home. The parties disagree on how much of the money went into the new home, and how much of it ended up being used to pay ongoing living expenses of both parties.

[15] Dr Geishardt relies upon the ledger statement from Dr Ahmed’s lawyer to show that the lawyer received $189,594.78 from Dr Ahmed, and she treats these funds as all having come from net proceeds of sale of the condominium. Dr Ahmed argues that the net proceeds of sale of the condominium of $190,950.29 were paid into the joint savings account. Only $162,480.90 was paid out from that account towards the cost of his new home. The balance in the joint savings account remained there and was used ultimately by the parties to fund their living expenses. Dr Ahmed argues that other payments towards the home came out of the joint chequing account, which held all of Dr Ahmed’s income, and was available to both parties to fund their expenses. Those payments, he argues, should be treated as Dr Ahmed funding those payments from income, rather than from the net proceeds of sale of the condominium.

[16] I prefer Dr Geishardt’s analysis on this point. Dr Ahmed could have paid his acquisition costs from the savings account, in which event there would have been more money in the joint chequing account to fund the parties living expenses. The deployment of capital from sale of the condominium to Dr Ahmed’s new house is not a matter of tracing specific dollars through specific bank accounts – neither of the parties managed their financial affairs with that sort of precision. Neither party was obliged or expected to use their share of proceeds of sale of matrimonial real estate for joint living expenses, and Dr Ahmed’s position on this issue would result in Dr Geishardt’s share being used for that purpose, while Dr Ahmed used money in the joint chequing account to make up the difference in his payments towards his new home.

[17] In the result, Dr Geishardt is entitled to payment of $6,946.41 from Dr Ahmed in respect to this item of claim.

(b) Spousal Rollover

[18] I conclude that I cannot decide the spousal rollover issue without hearing further from the parties. It is not clear to me that this issue was addressed in the evidence or in argument, and I will need counsel to assist in refreshing my memory on (a) what evidence was led on this point at trial; (b) the testimony of the parties respecting how this was addressed between them from the time of the Separation Agreement until trial; and (c) the arguments that were made on this point during final argument.

[19] The Separation Agreement provided for equalization of RRSP’s by way of rollover, and clearly this was never done. Dr Ahmed claims in his written submissions that he cashed in portions of his RRSP’s and paid the proceeds into the joint chequing account where they were used by the parties for their joint expenses. He claims that this was done at the request of and to the knowledge of Dr Geishradt.

[20] I have no recollection of evidence about what was said or done over the years between the Separation Agreement and the trial about Dr Ahmed’s failure to equalize the RRSP’s. In contrast, I did hear about steps Dr Geishardt took about Dr Ahmed’s failure to comply with insurance provisions of the Separation Agreement, and I did hear about the parties identifying their disagreements over the equalization of net proceeds of sale of their real estate and agreeing to without prejudice interim arrangements, thus preserving their positions respecting their underlying dispute respecting that issue.

[21] I decline to decide the spousal rollover issue on the strength of the written submissions now before me and direct that the parties may address this issue in oral submissions at the same time that they make oral costs submissions.

Reattendance

[22] My assistant has scheduled an appearance on March 28, 2018, 9:00 am, to address costs and the spousal rollover issue. In addition, I have found some typographical errors in the judgment. A list is attached to this endorsement. I ask counsel to advise, at the appearance on March 28, if (a) they have any objection to my correcting the errors I have found, and (b) if they have found any other typographical errors which they wish corrected.

D.L. Corbett J.

Released: March 12, 2018

COURT FILE NO.: FS-12-1813000 DATE: 20180312 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Suzanne Margaret Geishardt Applicant

• and -

Shafqat Ahmed Respondent

SUPPLEMENTARY JUDGMENT

D.L. Corbett J.

Released: March 12, 2018

Changes to Judgment dated September 25, 2017

1. Para. 1, second line, “Jul” should be “July”.
2. Para. 8, second line: the word “live” should be “lived”.
3. Para. 12, the following should be added at the start of the paragraph: “During the marriage, Dr Ahmed deposited all his revenue into a joint chequing account with Dr Geishardt (the “RBC joint account”), and Dr Geishardt entirely managed family finances. After separation”
4. Para. 23, line 4, the phrase “Both parties accepted” should be changed to “Both parties accept”.
5. Para. 30, last line, the phrase “the parties resolved the parties” should be changed to “the parties resolved the issues”.
6. Para. 39, fourth line, the word “about” should be inserted after “net proceeds”.
7. Para. 57, first line, the word “not” should be replaced with “no”.
8. Para. 57, second line, the dash should be replaced with a comma.
9. Para. 60, seventh line, the phrase “his own interests” should be replaced with “his interests”.
10. Para. 74, the date “December 31, 2017” should be replaced with “April 30, 2017”.
11. Para. 97, fifth line, “affirming he terms” should be “affirming the terms”.
12. Para. 101, third line, “the reach” should be “the breach”.
13. Para. 103, second line, “and Amending Agreement” should be deleted.
14. Para. 117, second last line, there should be a comma instead of a period after “Dr Ahmed”, and the word “Certainly” should be deleted.
15. Para. 118, eighth line, “materials changes” should be “material changes”.
16. Para. 118, ninth line, “negotiations” should be “negotiation”.
17. Para. 123, fourth last line: “Rick” should be italicized.
18. Para. 127, third line: “balance” should be “a balance”.
19. Para. 127, sixth line, “did know what had been contributed” should be “he did know what had been contributed”.
20. Para. 128(b), “overstatements” should be “overstatement”.
21. Para. 128(c), “sense if” should be “sense of”.
22. Para. 141, seventh line of the quotation, “s.15s” should be “s.15.2”.
23. Para. 160, third line, “duty of Dr Geishardt” should be “duty on Dr Geishardt”.
24. Para. 160, last line, the word “that” should be inserted between “and” and “she”.
25. Para. 174, second last line, the word “prior” should be inserted between “her” and “to trial”.
26. Para. 175, the word “Mr” should be inserted before “Lakha” and the word “Dr” should be inserted before “Geishardt”.
27. Para. 176, second last line, the word “his” should be deleted before “ineligible deductions”.
28. Para. 189, second last line, “would await” should be changed to “could await”.
29. Para. 195, first line, “basis on” should be changed to “basis of”.
30. Para. 196, fourth line, the word “to” should be deleted after “entitled”.
31. Para. 211, fourth line, the word “to” should be deleted.
32. Para. 227, second line, “insurance for these obligations” should be “insurance for support obligations”.
33. Para. 227, third line, “s,15.2” should be “s.15.2”.
34. Para. 228, fifth line, “hundreds of thousands of imputed” should be “hundreds of thousands of dollars of imputed”.
35. Para. 229, third line, the word “where” should be “when”.
36. Para. 229, eighth line, “their affairs” should be “its affairs”.
37. Para. 232(f) should end in a period and not a semi-colon.
38. Note 12, “JA” should be “J.A.”. This change is also required in notes 15, 19, 20, 33, 43, 44 and 48. A similar change is required in note 35, where “LJSC” should be “L.J.S.C.”
39. Note 13, “S.C.R.” should be “SCR”.
40. Note 50: the entire case name should be italicized. The same change is required in notes 51, 52, 54-57, 60-92 and 95.
41. Note 97 should not be in bold.

[^1]: Reasons for Judgment, para. 3. This statement is qualified in note 3 to the Reasons for Judgment: “I address the remaining minor property issues at the end of this judgment.” The only minor property issues addressed at the end of the judgment concerned disputed pieces of personal property (paras. 222-225). [^2]: Reasons for Judgment, para. 131. [^3]: Reasons for Judgment, para. 222. [^4]: Reasons for Judgment, para. 232. [^5]: There was a mirror provision in case the matrimonial home was sold first – with the overall effect that the parties would be able to use the equity in their properties towards replacement accommodation, with the final accounting to come after both properties had been sold.