Court File and Parties

Citation: Siddiqui v. Anwar, 2018 ONSC 219 Court File No.: FS-14-4747-00 Date: 2018-01-09

Ontario

Superior Court of Justice

Between:

Javed Siddiqui

N. Barmania, Counsel for the Applicant

Applicant

• and -

Tabassum Anwar

D. Simard, Counsel for the Respondent

Respondent

Heard: January 10-13 and 16, 2017. Written Argument completed April 6, 2017. Further appearances October 27th, 2017 and December 12th, 2017.

Reasons for Judgment

Lemay J.

[1] The parties in this case, Javed Siddiqui ("Mr. Siddiqui") and Tabassum Anwar ("Ms. Anwar") were married on December 3rd, 2003 and separated on September 14th, 2014. No divorce has yet been granted, but for reasons I will set out below, the parties will be divorced thirty-one (31) days after the release of these reasons.

[2] There are two children of the marriage, Aaid Javed Siddiqui, age 13 and Ali Javed Siddiqui, age 8. The custody issues have been dealt with by way of a final consent Order, with one exception. The one exception is a request by Mr. Siddiqui for a specific order allowing him to travel outside of Canada with the children.

[3] The remaining issues are financial in nature, but require me to consider some evidence relating to the parties separation, the reasons for that separation, and the conduct of the parties around the time of the separation.

[4] At the outset, I should note that the trial concluded in January of 2017, but that written submissions were not completed until April of 2017. There were two additional appearances before me to address various interim issues, one in October 2017 and one in December 2017. I will address those appearances below.

Issues

[5] The following issues present themselves in this case:

a) What income should each party be credited with for support purposes?

b) What amount of child support should be paid? Should there be any retroactive child support?

c) In what proportion should section 7 expenses be paid? Should there be payment for any retroactive section 7 expenses?

d) Should an equalization of Net Family Property be ordered? If so, in what amount and to whom?

e) Are there any amounts owing between the parties on account of post-separation expenses?

f) Should spousal support be paid in this case? If so, in what quantum and for how long?

g) Should a divorce be granted under the Divorce Act in this case?

h) Should Mr. Siddiqui be able to travel outside of Canada with the children?

i) Should pre-judgment interest be paid on the equalization payment and/or any other retroactive amounts owing?

[6] There is a third child involved in this case, namely Maira Javed Siddiqui born April 7th, 2014. Although Maira was born during the marriage, the parties do not dispute that Maira is not Mr. Siddiqui's biological child. As a result, any claim for access to Maira was abandoned by Mr. Siddiqui in advance of trial. In addition, the claim for support for Maira was abandoned by Ms. Anwar at the outset of trial.

[7] As a result of this agreement, the parties also consented to an order permitting Maira's name to be changed. There were some difficulties in addressing the preparation of that paperwork, which required another appearance before me on October 27th, 2017.

[8] In that appearance, Mr. Siddiqui had prepared the necessary Affidavit to effect Maira's name change. However, he had not provided it to Ms. Anwar, as he was concerned that Ms. Anwar's Affidavit would contain improper statements, and he wanted to inspect it. Ms. Anwar did not want to provide her Affidavit to Mr. Siddiqui, as the name change was not of concern to him. The parties were unable to resolve this issue.

[9] As a result, after discussion with the parties, I directed that Mr. Siddiqui's Affidavit would be given to the Court, and that I would then review Ms. Anwar's Affidavit, but not include it in the Court record. If I was satisfied as to the propriety of Ms. Anwar's Affidavit, then I was to release Mr. Siddiqui's Affidavit to Ms. Anwar so that it could be included in the name change application. I duly inspected these materials and returned them to Ms. Anwar. I confirmed that Ms. Anwar's Affidavit was proper and released Mr. Siddiqui's Affidavit to Ms. Anwar.

[10] If any issues relating to Maira's name change remain, I retain jurisdiction to address them.

Credibility

[11] I heard from Mr. Siddiqui, Ms. Anwar, and Marasa Patil, who is Mr. Moin Khan's former partner. Mr. Khan is Ms. Anwar's current partner, and is Maira's father. In addition, I received a considerable volume of documentation. The source documentation was all generally proven by witnesses, while tables and other documents created by the parties were the subject of testimony.

[12] As a result, credibility is an issue in this case and I should make some general observations about the credibility of the two principal witnesses at the outset.

[13] I did not find Mr. Siddiqui's evidence to be particularly credible. He had a tendency to overstate his debts, understate his assets and his income, and understate the problems he has caused with the relationship between Ms. Anwar and the boys.

[14] One example will illustrate the problems with his evidence. Mr. Siddiqui owned an investment account with Aditya Birla. He did not disclose this account on any of his financial statements until three days before the trial, and only disclosed this account because Ms. Anwar's counsel had provided proof of its existence. His explanations for his failure to provide this account were inconsistent between his examination-in-chief and his cross-examination. In addition to this example, there were also occasions where Mr. Siddiqui's evidence was simply inconsistent with the documentary records.

[15] There were also problems with Ms. Anwar's evidence. Again, one example will suffice. Ms. Anwar testified that, after Mr. Siddiqui left Qatar with the children on September 15th, 2014, he was telling her (and she believed) that they were in London for a vacation. She testified that she did not know where the children had been taken for more than a week after they left on September 15th, 2014. However, she sent an e-mail to the Canadian immigration team on September 17th, 2014, in which she stated "my husband took all the PR cards (including mine) and my two boys and took off to Canada." These are inconsistent statements, and there was no good explanation for the inconsistency.

[16] As a result, I have approached the evidence of both witnesses cautiously. While I have accepted some of the evidence from both of them, I have generally looked to the voluminous documentary record to support my factual findings. There are also occasions where I have accepted the evidence of one party or the other. Where I have done so, I have set out my reasons.

Facts

a) The Parties Marriage and Life in Qatar

[17] The parties were married in India on December 3rd, 2003. Shortly afterwards, they moved to Qatar. Mr. Siddiqui is qualified as an accountant and, in Qatar was employed by Ooredoo, which is a telecommunications company. In this position, he earned approximately $230,000.00 CDN per year, plus bonuses and other allowances.

[18] Ms. Anwar was also employed. Shortly after moving to Qatar, she had commenced working for the Commercial Bank of Qatar. She held positions of increasing responsibility in this organization, culminating in her last position, which was Head of Compensation and Benefits in the Human Capital Department. In that position, she earned approximately $290,000.00 CDN plus bonuses.

[19] Ms. Anwar continued to work after the birth of all three of her children, and the family employed a nanny on a full-time live in basis to help manage the children. This nanny was in Qatar as a result of Mr. Siddiqui's sponsorship.

b) Moving to Canada and the Birth of Maira

[20] Although the family had been living in Qatar, there had been a long term plan to move to Canada long before the separation. To that end, the parties originally applied for permanent resident status in 2010. Then, they travelled to Canada in 2012, and registered with Immigration Canada for permanent residency, which they were granted.

[21] They then returned to Qatar and continued to work in their regular positions. Ms. Anwar became pregnant with Maira in 2013. As noted above, Mr. Siddiqui is not Maira's biological father. However, Mr. Siddiqui did not discover that Maira was not his biological child until after the move to Canada.

[22] In any event, as part of their plan to move to Canada, the parties came to Canada in April of 2014, to ensure that Maira was born in Canada, and had Canadian citizenship. The parties were here for a number of weeks around Maira's birth and then returned to Qatar again to continue working in their jobs.

c) The Events Leading to the Separation

[23] It is obvious that the parties' relationship had been deteriorating for some time prior to 2014. Ms. Anwar testified that the deterioration in the relationship began after the birth of Maira, but I reject that evidence.

[24] The parties had considerable tension in their relationship in the late summer of 2014. A significant source of tension was the fact that Ms. Anwar's parents were visiting from India in order to help care for Maira. I heard evidence of a number of arguments between the parties.

[25] However, there was clearly tension in the relationship in 2013 as well. For example, I heard evidence of an argument between the parties about Ms. Anwar's friendship with her current partner. There was also evidence from Ms. Anwar that Mr. Siddiqui was tracking her and monitoring her movements in 2013.

[26] On August 27th, 2014, Ms. Anwar and Mr. Siddiqui signed an agreement that gave guardianship of the two older boys to Mr. Siddiqui. Mr. Siddiqui testified that this agreement was signed as part of the plan to move the children to Canada. Ms. Anwar testifies that she was forced to sign this agreement after Mr. Siddiqui would not let her or Maira sleep because he was yelling at them. Ms. Anwar also testified that she did not really understand the document, and did not view it as binding.

[27] I reject Ms. Anwar's statement that she did not understand the document. She was aware of what she was signing, and what its effect was. However, I also reject Mr. Siddiqui's evidence that this document was part of the parties move to Canada. If the parties were planning to move to Canada, it would make no sense for Mr. Siddiqui's sister to be the children's guardian. The parent who moved first would be the more logical candidate for guardianship.

[28] Shortly after the signing of this document, Ms. Anwar went to India with Maira. During the course of that trip, she had some interactions with Mr. Siddiqui by telephone and text message, and decided that she wanted to seek a divorce. She began divorce proceedings in India.

[29] She returned to Qatar at the beginning of September, and the parties continued to live in their condominium. On September 14th, 2014, the boys went to school in the morning, and Ms. Anwar went to work. Mr. Siddiqui then went to the school and picked the boys up early. He then took them to Canada, without Ms. Anwar's prior knowledge.

[30] When Ms. Anwar came home, she discovered that no one was at home except the maid and Maira. She took steps to find the children and Mr. Siddiqui, and was able to ascertain that they had gone to Canada.

[31] Mr. Siddiqui had also taken Ms. Anwar's Canadian Permanent Resident card with him when he left Qatar on September 14th, 2014. Given the findings of fact that I have made in this decision, I conclude that Mr. Siddiqui took this card in order to ensure that Ms. Anwar could not follow him and the boys to Canada.

d) The Other Family Law Proceedings

[32] Ms. Anwar commenced family law proceedings in both India and Qatar. This proceeding has not, as far as I am aware, proceeded to final adjudication, and no substantive orders have been made by an Indian Court over this matter.

[33] Ms. Anwar also commenced a proceeding in Qatar, seeking custody, as well as support for the children. She was given 2,500 Qatari Riyals per month as support. This amount was paid into Court by Mr. Siddiqui for the period between September, 2014 and June of 2015. Ultimately, this proceeding was terminated, but the interim support payments remain paid into the Court in Qatar.

[34] I understand that Mr. Siddiqui has also commenced a proceeding in Qatar for divorce. The proceeding before me was commenced by Mr. Siddiqui before he commenced his proceeding in Qatar, and I am not aware of any final or substantive Orders made by the Court in Qatar as a result of Mr. Siddiqui's proceeding.

e) The Progress of the Ontario Family Law Proceeding

[35] This case was commenced by Mr. Siddiqui on October 21st, 2014. Originally, the Application only sought relief in respect of the children. An order permitting service on Ms. Anwar in Qatar was issued by Daley J. on November 24th, 2014. Mr. Siddiqui testified that he arranged to have these documents served on Ms. Anwar in December of 2014. Ms. Anwar denies receiving these documents but acknowledged attempting to talk to a lawyer in March of 2015. However, I was provided with a third-party affidavit of service demonstrating that the documents had been served on Ms. Anwar on December 19th, 2014, and I accept that evidence.

[36] No response to this proceeding was originally filed by Ms. Anwar. As a result, Mr. Siddiqui moved to an undefended trial in writing, seeking sole custody of Aaid and Ali, as well as other relief. On April 14th, 2015, Bielby J. granted sole custody of the boys to Mr. Siddiqui.

[37] Ms. Anwar then sought an extension for serving and filing her answer. This extension was granted on consent, and an answer filed.

[38] Ms. Anwar then sought an interim order for access to the children, and an Order was granted by Lemon J. on July 21st, 2015. This Order also addressed D.N.A. testing for Maira, but that issue has been resolved between the parties.

[39] A case conference was held on August 10th, 2015. At that time, the Office of the Children's Lawyer became involved, access was given to Ms. Anwar (as Mr. Siddiqui had sole custody at that point), and various production orders were made by Daley R.S.J.

[40] A settlement conference was held before Snowie J. on April 26th, 2016. At that time, on consent, the parties agreed that Ms. Anwar would be given interim sole custody of both Aaid and Ali, and that Mr. Siddiqui would have a significant amount of access. The property issues and the custody/access issues were separated. A trial on the custody issues was ordered for June of 2016, and a trial was ordered on the financial issues for September, 2016.

[41] The parties were able to resolve the custody issues, and Van Melle J. made a final order on June 20th, 2016 on consent. This final Order granted Ms. Anwar final sole custody of Aaid and Ali, but did not specifically address the issue of Mr. Siddiqui's ability to travel outside of Ontario with the children.

[42] The financial issues were originally supposed to proceed to trial in September of 2016. However, it was not reached, and it proceeded before me in the January 2017 blitz sittings. Submissions and further appearances were required, as set out above.

Issue #1 - The Income of the Parties

[43] Each party seeks to have income imputed to the other party. Given that Ms. Anwar has made a claim for spousal support, and that each parent has custody of the children for at least 40% of the time, I must determine the parties income before I can determine any other issues.

[44] I note that the employment that each party held when they were in Qatar is a helpful starting point for assessing each party's ability to earn an income. However, it is not determinative of the issue. It is also possible for me to impute income to each of the parties. Section 19 of the Federal Child Support Guidelines states:

IMPUTING INCOME – (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(b) the spouse is exempt from paying federal or provincial income tax;

(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

(e) the spouse's property is not reasonably utilized to generate income;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

(2) REASONABLENESS OF EXPENSES – For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

[45] The most relevant paragraphs for dealing with the income of both parties in this case are paragraph (a), (c) and (g) of section 19.

[46] There are also production issues that have arisen, and it is useful to comment on those first.

a) Production Issues

[47] Ms. Anwar argues that Mr. Siddiqui's production of financial records is insufficient. I disagree.

[48] The only production Order in the file is the Order of Daley R.S.J. on August 10th, 2015. In that Order, he directed the production by both parties of the following documentation:

a) A list of all real property owned or jointly owned as of the date of separation and valuations as of that date.

b) All bank account statements as of the date of separation.

c) Mr. Siddiqui shall produce his new business financial statements and operating statements when available to him.

d) The parties shall exchange Tax Returns and Notices of Assessment in respect of their personal income for the past three years.

e) Mr. Siddiqui shall produce his business tax return filed in 2014, and notice of assessment.

[49] Ms. Anwar argues that Mr. Siddiqui failed to provide all of this disclosure. At paragraph 77 of her argument, Ms. Anwar states:

Lastly, pursuant to the Order of Justice Daley dated August 10, 2015, the Applicant was to provide financial and operating statements for his businesses. The implications were that the said statements were to be supported with documentation. If the implications were not clear, the evidence at trial was such that multiple requests were made to the Applicant's counsel for the backup documentation. So to did the Respondent's proposed income valuation expert by way of letter dated September 9, 2016 and the Applicant's failure to respond precluded Mr. Pont from performing an income valuation.

[50] However, this statement ignores two key facts. First, as counsel for Ms. Anwar conceded during the trial, there is no production order outstanding for these documents. Second, Mr. Siddiqui produced a significant amount of documentation. Had the source documents been an issue, I would have expected to see a motion and an order for further production relating to the missing documents. No such motion was brought until right before the date originally scheduled for the trial. The motion was denied.

[51] In support of her position, Ms. Anwar points to a letter from Mr. Martin Pont, a business valuator, dated September 9th, 2016. This letter states that Mr. Pont was unable to prepare a report regarding Mr. Siddiqui's income for support purposes because insufficient information was provided. This letter itself references a list of missing documentation dated August 18th, 2016. I was not actually given a copy of that list of missing documentation.

[52] This matter was set for trial originally on September 16th, 2016, but was not reached. These document requests were made very late in the day, and it is not clear on the record before me what was required or why. In essence, Ms. Anwar is seeking to have me draw an adverse inference from Mr. Siddiqui's failure to produce unidentified supporting documents for use by the business valuator that the business valuator has not explained, at least on the record before me, why he needed these documents. I decline to draw this inference.

[53] In addition, in reviewing the records that were provided in evidence, it appears to me that most, if not all, of the material ordered to be produced by Daley R.S.J. was actually produced. As I have noted above, it was then up to Ms. Anwar to seek additional documentation, and identify why it was required.

[54] Finally, I note the decision of Kruzick J. in Starr v. Starr (2004 CanLii 18698 (Ont. S.C.J.)). That decision discusses the onerous nature of the disclosure obligations that a self-employed person faces. Those onerous obligations are often necessary for the Court to properly consider the issues before it. However, where a party has complied with the Court ordered disclosure, and there is no explanation as to the utility of the additional information sought by the other side, then the Court should be reluctant to draw an adverse inference.

[55] In the result, I am not prepared to draw an adverse inference from the failure to produce source documents for Mr. Siddiqui's businesses.

[56] I should note that there are gaps in the documents that both parties have produced. Where those gaps are significant, I have explained the basis for my findings on that particular issue.

b) Mr. Siddiqui's Income

[57] Mr. Siddiqui was employed in Qatar as an accountant. He is qualified as a chartered accountant, and has experience in business management.

[58] When he came to Canada, he did not work for the first few months. Then, in May of 2015, he bought a daycare in Etobicoke called the Mimico Montessori. He bought both the building and the land, which resulted in the purchase of two separate companies.

[59] I do not view the existence of two separate companies as being a significant factor in calculating Mr. Siddiqui's income, as the second company simply owned the property and paid the mortgage out of lease payments from the operating company. There does not appear to be any additional, unaccounted for income in this company.

[60] In May of 2016, Mr. Siddiqui bought a second Montessori school in Orangeville. This business is in a leased premises, and is run through a third company.

[61] Mr. Siddiqui has been working actively in managing and supervising these daycares, and has performed most of the administrative, marketing and purchasing tasks for both schools.

[62] Each school has a number of staff, and I received information from Mr. Siddiqui that he is quite happy with the staff, especially in Orangeville. As a result, in Orangeville he is carrying approximately double the staff that he requires in the hopes that enrollment in the school is going to increase in the near future.

[63] Mr. Siddiqui has no other sources of income at this point, other than the rent on the former matrimonial home in Qatar, which is being used to pay the mortgage on the property.

[64] Mr. Siddiqui is prepared to accept that income should be imputed to him in the amount of $78,000.00 per year, starting in 2016. Ms. Anwar argues that income should be imputed to Mr. Siddiqui in the amount of $200,000.00. Ms. Anwar advances this argument on the following grounds:

a) In Mr. Siddiqui's most recent financial statement, he records an income of $149,121.96. As a result, his income should be imputed at least at that level.

b) At trial, Mr. Siddiqui admitted to having two leased vehicles paid for by the revenues of the business. These monies should be added back into his income for support purposes.

c) Mr. Siddiqui claimed a number of expenses related to his automobiles that should be included in his income, and grossed up.

d) The expenses on Mr. Siddiqui's financial statements show that he is able to spend at least $75,000.00 per year and not deplete his savings. In addition, Mr. Siddiqui had several expenses (such as a cruise with the children) that were not included in his financial statements.

e) Mr. Siddiqui earns income from the former matrimonial home, the D408 flat in Qatar, and this income should be included in his total income for calculating support.

f) Mr. Siddiqui failed to disclose documentation relevant to the businesses.

[65] I would not impute income to Mr. Siddiqui at $200,000.00, but I would not accept his proposed level of income either. Beyond the issue of a lack of production, which I have rejected, Ms. Anwar raises a number of points that support an imputed income significantly higher than $78,000.00.

[66] I start my analysis with a review of the profit and loss statements from Mr. Siddiqui's two daycares. Those statements show that the Etobicoke Montessori is profitable. It was expected to earn $52,000.00 in income in the first eight months of 2016, which is an annualized income of $78,000.00. In 2015, the daycare earned $30,000.00, although Mr. Siddiqui claims that the daycare lost money between the time he took it over in May of 2015 and the end of the first year. I reject his evidence on this point because it is unlikely that the business made all of its money in the first five months, and because there was no explanation in either the evidence or the documents to support this assertion.

[67] This brings me to the issue of expenses for the business. There are two cars that the businesses pay the leases and other expenses for. They are a Honda Pilot and a Mercedes Benz E400 Cabriolet. There is no reasonable justification for one business owner to have two automobiles for business purposes, much less two luxury automobiles. Further, it is clear that these cars are used for Mr. Siddiqui's personal business as well as the company's business. As a result, these expenses clearly fit within section 19(1)(f) of the Guidelines.

[68] The total monthly lease costs are approximately $1,600.00. This produces an annualized amount of $19,200.00, which would need to be grossed up. These amounts also need to be adjusted to take into account Ms. Anwar's acknowledgement that at least some portion of the costs of the Honda Pilot should be attributed to the business. These leases were entered into in July 2015 for the Pilot, and September of 2016 for the Mercedes.

[69] Then, there are the financial statements that Mr. Siddiqui swore in this action. One shows expenses at $96,000.00 and the other shows expenses at $146,000. I am of the view that neither number should be considered for the purposes of determining income. However, I accept Ms. Anwar's assertion that Mr. Siddiqui was able to meet expenses in the range of $75,000.00 to $80,000.00 without depleting his assets. There are also expenses that are not on this form, such as a $5,000.00 cruise with the boys in the summer of 2016.

[70] Then, there is the rent on Flat D408 in Qatar. Mr. Siddiqui argues that the costs associated with this flat exceed the income that he generates from it and, as a result, no income should be recorded on his income statement. The expenses he claims are the condominium fees and the mortgage payments. In support of his position, Mr. Siddiqui relies on the decision in Appu v. Appu (2014 ONSC 19).

[71] The problem with Mr. Siddiqui's argument is that the decision in Appu, and the cases cited therein, all speak to the mortgage interest. Mr. Siddiqui is seeking to deduct the full value of the mortgage, including the principal payments, from the income for the property. Payments of principal on a mortgage decrease the value of the mortgage, and increase the value of Mr. Siddiqui's property. The principal payments are not part of the "hard costs" of the property, and are not properly deductible from Mr. Siddiqui's income.

[72] To summarize, the following emerges from the records:

a) For 2016, there is at least $78,000.00 in income in the business that is available to Mr. Siddiqui. This amount is taxed in the business, and not in Mr. Siddiqui's hands.

b) There is an additional series of expenses relating to the car lease. $19,200.00 in lease payments are made directly. Ms. Anwar argues that the entire of the lease costs for the Mercedes and half of the lease costs for the Honda Pilot should be added to Mr. Siddiqui's income. I agree. There may be additional gas and other operating expenses paid for by the daycare that must be estimated. This produces an amount of $16,000.00 in total. In addition, this number needs to be grossed up to take account of the income tax savings.

c) There are other expenses on the daycare balance sheets such as Travel Expenses (2015) and meals and entertainment (both 2015 and 2016) that do not seem to fit with the operation of a daycare, particularly at the level that is claimed. These produce another $7,000.00 to $10,000.00, which also has to be grossed up.

d) There is the fact that Mr. Siddiqui has extra money to take the children on trips, including a cruise in 2016.

e) There are the rents that Mr. Siddiqui is receiving from his property, the former matrimonial home, in Qatar. I have attached a value of $20,000.00 to those rents, and have grossed that number up as there was no evidence before me that taxes were paid on the rental income in 2015 or 2016.

[73] When all of these factors are considered, I am of the view that an imputed income of $157,000.00 is reasonable in this case. This is the income that will be imputed to Mr. Siddiqui for 2016, 2017 and going forward.

[74] This brings me back to the income that should be imputed to Mr. Siddiqui for 2015. He only owned the daycares for part of the year. He owned the Etobicoke Montessori for 7 months. I find that imputing an income of $30,000.00 from the daycare for 2015 is reasonable. This amount is calculated by taking 7/12ths of the money earned by the daycare in 2015 and adding in a factor for expenses, including a portion of the lease on the Honda Pilot.

[75] There is also a T-4 that Mr. Siddiqui had issued for himself from the Montessori school for 2015. Given the income that I have imputed to the daycare for the seven months, the amount for the T-4 slip is included in my imputed income.

[76] However, it is also necessary to add in the monies Mr. Siddiqui was paid at the end of his employment in Qatar to arrive at his final income for 2015.

[77] From Mr. Siddiqui's final pay stub from Ooreedo, he was paid 222,616.54 Qatari Riyals. There were deductions for the Qatari support order and for a loan. Those matters are dealt with elsewhere in this decision as a prepayment for support and a debt respectively. They cannot also be claimed as deductions from income. As a result, the full amount is to be grossed up and added to his 2015 income for the purposes of support calculations. When this is converted to Canadian funds it is $65,671.88.

[78] The parties have agreed that severance pay is income in the year in which it is received, and I have treated both Mr. Siddiqui's severance and the severance received by Ms. Anwar in the same manner. (on the treatment of severances, see Walsh v. Walsh (2008) 586 (Ont. S.C.) at paragraph 27)

[79] Then, there is the income on Flat D408 in Doha. Ms. Anwar lived in this flat until the end of April 2015 and, as a result, the flat could not be rented out until after she had moved out. In addition, I find that it would have taken some time for Mr. Siddiqui to rent the property out. As a result, I am attributing net income of $5,000.00 to him for the rental of the flat. This income was not declared on his tax return, so will be grossed up.

[80] The amounts that Mr. Siddiqui earned in 2015 are to be grossed up because no tax was paid on them. This produces a final income in 2015 of approximately $143,000.00, which is the number I will use for the 2015 calculations.

[81] There is a jointly owned property in the Sabban Tower in Qatar. Each party is entitled to half the rents for this property. As I am not clear exactly what the amount of rent is, I have excluded it from the calculation of either party's income. I will address the issue of this property more fully in the equalization and post-separation adjustments sections, below.

c) Ms. Anwar's Income

[82] Given the findings that I have made about retroactivity of child support, below, it is not strictly necessary to set out Ms. Anwar's 2014 income. However, for completeness, the records before me reveal that her income for 2014 was $274,982 CDN plus a bonus of $70,000.00 CDN. None of this was taxable income, so if child support had been payable in 2014, it would need to be grossed up.

[83] Mr. Siddiqui asked me to find that Ms. Anwar's bonuses were $100,000.00 CDN rather than the $70,000.00 she claimed. Mr. Siddiqui's only reason for advancing this position was that Ms. Anwar did not produce documentation to establish what her bonuses were for every year. I reject Mr. Siddiqui's position for two reasons. First, Mr. Siddiqui managed the family finances. Therefore, if there was evidence to establish that Ms. Anwar's bonus was more than $70,000.00 in previous years, Mr. Siddiqui would likely have had access to this evidence. Second, there is evidence that Ms. Anwar made reasonable efforts to obtain a copy of her bonus letters from the Bank of Qatar and was unable to do so.

[84] This brings me to Ms. Anwar's income for 2015. When Ms. Anwar arrived in Canada, she continued to do some work for her employer in Qatar. As a result, she was given a very generous severance payment in 2015. She also earned her first three months of salary. This produced an income of $70,000.00 for salary, and a severance of $273,763.00. There was also Ms. Anwar's bonus for 2014, which was paid in 2015. I have found that bonus to be $70,000.00. This made Ms. Anwar's total income in 2015 $413,763.00, which will need to be grossed up to take account of the fact that no tax was paid on this income.

[85] Ms. Anwar then purchased a restaurant business with her partner, Moin Khan. This restaurant was purchased with a closing date of September 30th, 2015. The name was changed to Aayeshazz's, and the restaurant was run for a year. In October of 2016, the restaurant was sold at a loss of approximately $60,000.00 and closed.

[86] Ms. Anwar argues that income should not be imputed to her at any point in this case for three reasons. First, she was required to move to Canada unexpectedly because of Mr. Siddiqui's unilateral decision to move the children to Canada in 2014. Second, starting a restaurant business with her new partner, Mr. Khan, was a reasonable way to attempt to earn income. Finally, she has significant child care responsibilities, and also has had adjustment problems as a result of assuming custody for the Aaid and Ali.

[87] I reject all three arguments for the following reasons.

[88] First, Ms. Anwar actually earned income in 2014 and 2015. If support is to be payable in those years, then the Court cannot ignore the actual monies that she earned in calculating that support.

[89] Second, the move to Canada was not unexpected. While the timing of the move was clearly problematic, Ms. Anwar had jointly planned with Mr. Siddiqui that they would be moving to Canada. She was aware of this, and was aware that it would mean changes in her job. Even on Ms. Anwar's evidence, the move was intended to happen by 2016.

[90] Third, there is the assertion that deciding to run a restaurant was a reasonable choice to earn income. I disagree. Ms. Anwar has an MBA specializing in human resources and has held a senior position in a financial institution. The most logical choice for Ms. Anwar would have been to either pursue a career in consulting or to upgrade her knowledge of Canadian human resources law and seek a job in the field in which she already had a significant amount of experience. Ms. Anwar had no expertise in the restaurant business, and did not act reasonably in deciding to open a restaurant and work, at least part of the time, as the restaurant's cook.

[91] On this point, I note that Ms. Anwar's final argument asserts that the decision to open a restaurant was a reasonable one, but does not explain why it was reasonable. In my view, there is no reasonable explanation for why Ms. Anwar opened a restaurant when she moved to Canada rather than continuing to pursue her successful career in human resources.

[92] In addition, since Aayeshazz's closed, Ms. Anwar's job search has been dilatory, at best. I was provided with an exhibit outlining these job search efforts. It shows that Ms. Anwar has applied for less than five (5) jobs between September of 2016 and January of 2017. It also shows that she only started upgrading her skills in February of 2017.

[93] Finally, there is the issue of the fact that Ms. Anwar obtained sole custody of the children in May of 2016. Ms. Anwar argues that the change in custody to her, and her previous alienation from the children were a significant part of the reason that Aayeshazz's failed. Mr. Siddiqui argues that it is unconscionable for a parent to blame the failure of a business on that parent's need to care for the children. I reject Mr. Siddiqui's assertion in this regard. There will clearly be circumstances in which a parent's obligations to care for their children will contribute to the failure of a business.

[94] However, in this case, I find that the change in custody arrangements did not materially contribute to the failure of Ms. Anwar's restaurant. I reach this conclusion for two reasons. First, the evidence before me was incomplete. Some of the records from Aayeshazz's, particularly bank statements from the last few months of its operation, were not provided. Second, the bank statements that were provided support the view that the business was struggling from the time it was started. Given these facts, I do not see the business as having failed because of Ms. Anwar's increased parenting responsibilities.

[95] In considering whether to impute income to Ms. Anwar, I must also consider the evidence about ArcFox. This is a corporation that Ms. Anwar is a registered owner of. Ms. Anwar testified that Arc Fox was not actually doing anything profitable or productive. She also testified that the website that exists for ArcFox was a demonstration, and not an actual website, although it is accessible to the public. She also testified that ArcFox was only incorporated in the fall of 2016.

[96] However, Ms. Anwar testified that her sister in law, Ms. Vaishali Vats, is a software engineer. Ms. Vats helped Ms. Anwar with the website for ArcFox. Although Ms. Anwar testified that Ms. Vats is not an employee of ArcFox, Ms. Vats' LinkedIn profile lists her as an employee of ArcFox. In addition, in cross-examination, Ms. Anwar stated that she was in "constant touch" with Ms. Vats about how to take this business forward. Ms. Anwar's evidence on ArcFox is internally inconsistent.

[97] In addition, the evidence showed that, while the name was only incorporated in the fall of 2016, the business name was registered by Ms. Anwar with the Province of Ontario on February 12th, 2015. Further, while the website is only allegedly a "demonstration" website, it outlines services that ArcFox is prepared to provide and lists those services publicly. Finally, the bank statements from ArcFox were only provided up to June of 2016. I did not have any statements in evidence beyond that time, and no good explanation was provided for those statements not being filed.

[98] The evidence about ArcFox leaves me concerned about whether Ms. Anwar actually earned income from this company during the last few months before the trial. Certainly, the evidence I have reviewed above shows that Ms. Anwar was not completely forthright with the Court about this business. However, I am of the view that it is better to decide Ms. Anwar's income in this case by accepting that she was intentionally underemployed when she first came to Canada, and has remained intentionally underemployed.

[99] Ms. Anwar also received rental income from a flat in India that she solely owns. This rent goes into her father's bank account in India. Ms. Anwar testified that this money has not been transferred to her in Canada because of the difficulties in transferring money out of India. This rent is estimated to be approximately $300.00 per month. In addition, in 2016, Ms. Anwar was required to pay approximately $406.23 in expenses related to this flat. I find that an income of $300.00 per month for this flat should be assigned to Ms. Anwar for every year that this decision covers.

[100] Then, there is the property where Ms. Anwar currently lives. She rents this out for $1,200.00 per month. As will be discussed in the section on spousal support, both Ms. Anwar and Mr. Khan are listed on the mortgage, and Mr. Khan makes all of the mortgage and property tax payments. As a result, the entirety of this income should be included in Ms. Anwar's total income. A formal lease was signed for this rental on May 1st, 2016. However, I am of the view that the property could have been rented from January 1st, 2016, and will include a full year's rent for 2016 in Ms. Anwar's income.

[101] In summary, Ms. Anwar's income in 2015 consisted of her salary and the other payments from the Bank of Qatar, as well as the $300.00 per month from the flat she owns in India. As noted at paragraph 84, above, Ms. Anwar's 2015 income from the Bank of Qatar was $413,763.00, and the additional income from her rental property was $3,600.00. No tax was paid on any of this income, as far as the evidence before me discloses. As a result, it needs to be grossed up. It produces an income for support purposes of approximately $773,000.00.

[102] The picture for 2016 and 2017 is more complicated. For 2016, Ms. Anwar's actual income is as follows:

a) The $28,000.00 from Aayeshazz's will be treated as income, which was taxed.

b) The $14,400.00 in rental income ($1,200/month) from the home where Ms. Anwar lives shall be treated as income that is being taxed. While I did not have Ms. Anwar's tax return before me, I presume that she has complied with the law and claimed this amount as income.

c) The $3,600 in income from Ms. Anwar's flat in India will be included in her income. This will be treated as income that is not being taxed, as it was not shown on Ms. Anwar's tax return in 2015, although it was earned.

[103] Ms. Anwar argues that her income for the calculation of spousal and child support should be fixed at $28,000.00. I disagree for three reasons. First, she is actually earning nearly this amount of money from various properties including her flat in India and the house where she lives. When the Aayeshazz's income is added in, $28,000.00 does not reflect the reality of Ms. Anwar's actual income for 2016.

[104] In addition, some income should be imputed to Ms. Anwar. In my view, if she had pursued her career in human resources rather than opening a restaurant when she came to Canada, she would have earned an income of between $50,000.00 and $60,000.00 per year. I reach that conclusion by looking at the nature of the jobs that Ms. Anwar was applying for. These positions included Human Resources Business Partners and Senior Human Resources managers. The titles attached to the jobs indicate that these are beyond entry level positions.

[105] In addition, minimum wage would have produced an income of nearly $24,000.00 over a 40 hour work week. Given the other income that Ms. Anwar is earning, it is clear that imputing an income of between $50,000.00 and $60,000.00 to Ms. Anwar is quite reasonable.

[106] I accept that Ms. Anwar's income should have been the mid-point in this range, or $55,000.00. This income is in addition to the monies that Ms. Anwar makes from renting out a portion of her house and from the flat in India. To that end, I have added $27,000.00 to the income that she has earned from Aayeshazz's for 2016. The full $55,000.00 will be included for 2017 and 2018.

[107] When these amounts are added together and grossed up, they produce an income for support purposes for Ms. Anwar of $74,730.00.

d) Income Review

[108] The incomes of both parties are in flux, as they have experienced significant life changes in the past three years. In addition, both of them have started businesses that might result in changes in income over the next few years.

[109] In the circumstances, it is appropriate to direct that the parties revisit the calculation of child support, and the underlying income amounts, after January of 2019. To that end, the parties are to exchange the following information by July 1st, 2019:

a) Their income tax returns for the 2016, 2017 and 2018 calendar years.

b) The tax returns for their businesses for 2016 to 2018.

c) The income statements and balance sheets for their businesses for 2016 to 2018.

d) Any other disclosures required by section 21 of the Federal Child Support Guidelines. In particular, the parties are reminded of the provisions requiring production of the information supporting any non-arm's length salaries or other payments.

[110] Once this information is provided, the parties are directed to discuss whether the child support payments need to be adjusted based on changes in the income. In the event that neither party can agree, then either party may seek the guidance of the Court. I am not seized for the purposes of dealing with this calculation.

[111] Until any new agreement or Court order on child support is reached, the support ordered under this decision remains in force.

[112] For reasons that I will explain below, the spousal support calculation should only be changed if there is a material change in circumstances. For clarity, an increase in income for both parties is expected and, in and of itself, will not amount to a material change in circumstances for the purposes of the spousal support award that I have made below.

Issue #2 - Child Support

a) The Amount of Child Support

[113] From April 30th, 2016, when custody changed from Mr. Siddiqui to Ms. Anwar on a temporary (and then a final) basis, this becomes a purely arithmetical calculation. From that point forward, the parties have agreed that there is a set-off for child support. The only real dispute was over the incomes. Having resolved those, the ongoing support payments are the table amounts.

[114] On a go-forward basis, Mr. Siddiqui is to pay support to Ms. Anwar in the sum of $2,163.00 per month, while Ms. Anwar is to pay Mr. Siddiqui support in the amount of $1,135.00 per month. This leaves an offset flowing from Mr. Siddiqui to Ms. Anwar of $1,028.00 per month, commencing January 1, 2018.

b) Retroactivity of Child Support

[115] Mr. Siddiqui has claimed retroactive child support from the date of separation until custody changed to Ms. Anwar in 2016. Ms. Anwar resists this claim on the basis that Mr. Siddiqui kidnapped the children and moved to Canada from Qatar unilaterally. She argues that there should be no child support payable at all prior to the change in custody in April of 2016.

[116] Mr. Siddiqui seeks child support retroactive to September 15th, 2014. He did not claim child support in his original application, filed in October 2014. However, he did claim child support in his Reply dated July 13th, 2015.

[117] The parties agree on the principles to be applied to the question of retroactivity. Specifically, in D.B.S. v. S.R.G. (2006 S.C.R. 37), the Court listed four considerations that would apply in deciding whether to award retroactive support:

a) Is there a reasonable excuse why support was not sought earlier?

b) The conduct of the payor parent.

c) The circumstances of the children.

d) Whether an award of retroactive support would cause hardship.

[118] The parties disagree, however, on the applicability of these principles, as well as other points flowing from the interpretation of D.B.S., supra.

[119] Ms. Anwar starts by arguing that the date of effective notice for the support claim was when Mr. Siddiqui first sought child support in July of 2015. As a result, Ms. Anwar argues that no support should be payable prior to this date. I reject this argument as Supreme Court makes it clear that a legal claim does not have to be advanced for effective notice to be given (see DBS paragraph 121).

[120] In this case, it is difficult to pin down a date of effective notice, as the parties were not communicating in any positive or meaningful way after they separated in September of 2014. However, I am of the view that effective notice of a potential claim was provided by the end of 2014 for two reasons. First, as discussed elsewhere, Ms. Anwar was served with the Ontario proceedings in December of 2014. Second, and more importantly, Ms. Anwar had put the issue of support clearly on the table by asking for, and receiving, support in the Qatari proceeding. It should have been in her contemplation by that point in time that a countervailing claim for support would likely be made in respect of the two boys.

[121] Ms. Anwar then argues that the conclusions in the endorsement of Snowie J. dated April 20th, 2016 are sufficient, in and of themselves, to support a finding that Mr. Siddiqui engaged in blameworthy conduct. I acknowledge that Snowie J. provided a detailed endorsement outlining her concerns in this matter, and that Snowie J's conclusions clearly support the positions taken by Ms. Anwar. I also note that the endorsement starts by noting that Snowie J. was conducting a settlement conference between the parties.

[122] I have grave concerns about a trial judge relying on an endorsement from a settlement conference judge to dispose of, or even assist in determining, a substantive issue at trial. Settlement conferences are supposed to be a confidential opportunity for the parties to express their positions, and for the Court to assist them in reaching a settlement. The Court's assistance can, and often does, include strong statements by the Court about the flaws in a party's position, or even the conduct of a party. However, the statements of the presiding judge are intended to be confidential, and they are not based on a complete evidentiary review of the record so they cannot amount to findings of fact.

[123] For those reasons, I am not prepared to put any weight at all on the opinions expressed by Snowie J. in her endorsement of April 20th, 2016 and I will not consider that endorsement further in reaching my own decision.

[124] This brings me to the two DBS factors that Ms. Anwar has relied upon in order to ground a denial of retroactive child support. They are the conduct of the parties and the circumstances of the children. The other two factors were not argued with any force by Ms. Anwar for good reason. First, Mr. Siddiqui's delay in seeking child support was minimal. Second, given the equalization payment and the assets of the parties, there is no particular hardship that will accrue to either party as a result of an award of retroactive support. As will be seen when the equalization calculations are performed, the parties have a great deal of wealth.

[125] Ms. Anwar argues that no retroactive child support should be payable to Mr. Siddiqui because it will not provide any discernable benefit to the children. I disagree. The children are currently in an arrangement where they spend significant amounts of time with both parents. In addition, Aaid is reaching the age at which expenses for post-secondary education are going to start to be a concern. As a result, there may very well be a discernable benefit to an award of retroactive child support in this case. I reject Ms. Anwar's argument on this point.

[126] This brings me to the question of Mr. Siddiqui's conduct. The reasoning in D.B.S. is focused on the conduct of the payor parent. There are, however, some cases on the issue of the recipient parent. I considered Ferguson v. Charlton (2008 ONCJ 1) and the cases cited therein, A.A. v. G.G. (2010 O.J. No. 835) and Attard v. Attard, infra.

[127] Mr. Siddiqui testified that he was not taking any steps to prevent Ms. Anwar from coming to Canada. In fact, Mr. Siddiqui testified that he was pushing Ms. Anwar to come to Canada after the separation. I reject this evidence, and I accept Ms. Anwar's assertion that Mr. Siddiqui improperly attempted to keep Ms. Anwar from coming to Canada between September of 2014 and April of 2015.

[128] This fact is clear from a series of text messages and e-mails between the parties. One example of a text message that Mr. Siddiqui sent to Ms. Anwar will illustrate the reasons for my conclusions:

No Canada for you

I don't agree you shifting to

canada. I am sorry

I want to avoid seeing you

and not meeting you everyday

I am divorcing you to forget you

and not to meet you everyday

and cross your path everytime

Parting is difficult. But we are at

the stage that we have to do.

It's your decision. And I don't

want anyone pampering my

kids so that they become

revoltive to my disciplinary

actions.

[129] In addition, I find that Mr. Siddiqui took Ms. Anwar's Permanent Resident Card for the express purpose of preventing her from travelling to Canada. I reject Mr. Siddiqui's assertion that the parties had agreed for him to move to Canada in September of 2015. In support of this conclusion, the evidence relating to Mr. Siddiqui's departure from Qatar needs to be remembered. In particular, if the parties had planned to move the children from Qatar, then Mr. Siddiqui would not have told their school that the children had a family emergency on the day he left for Canada, and he would not have waited until the end of September, 2014 to formally withdraw them from school. Instead, if the parties planned to move the children, then they would have done so at the start of the school year.

[130] Although it is rare for retroactivity to be denied on the basis of the recipient parent's conduct, there are cases where the Court has concluded that the denial of retroactive support on this basis was justified. For example, in Attard v. Attard (2010 ONSC 810), Ricchetti J. stated:

[27] Therefore, it is the obligation of every parent to financially support their children. This obligation is not conditional or dependent on access by the parent obliged to support his or her children. Many courts in Ontario have stated this obligation is absolute.

[28] However, that is not to say there are not unique circumstances where the termination of the child support is an appropriate or the only remedy available to the court, particularly where the children of the marriage are over 16 years of age and there exist adequate arrangements for their financial maintenance.

[29] The common threat in these cases is that while child support is absolute, it may be reduced or eliminated due to non-access by the parent paying child support only in extreme or unique circumstances such as where the custodial parent has sufficient assets and income and the children will not be deprived of appropriate support and, generally, only where the children are older.

[131] In this case, it is clear that there was no access at all until the end of May of 2015. It is also clear that Mr. Siddiqui was actively preventing access in this time period, and that his conduct in this time period was intentionally harmful to the children's relationship with Ms. Anwar.

[132] I reach the conclusions in the previous paragraph for the following reasons:

a) As discussed above, there were text messages where Mr. Siddiqui made it clear that he did not want Ms. Anwar to move to Canada permanently.

b) Mr. Siddiqui attempted to prevent Ms. Anwar from moving to Canada by taking her permanent residency card when he left.

c) His departure to Canada was abrupt and done in a way to prevent Ms. Anwar from finding or following the children.

d) Mr. Siddiqui specifically stated in numerous text messages to Ms. Anwar that she "did not deserve" the children.

e) More generally, it was clear from the e-mails that Mr. Siddiqui was angry with Ms. Anwar around and after the separation.

f) Given these five points, I accept Ms. Anwar's evidence that, on the occasions that Mr. Siddiqui would contact her with the boys, she was given very little, or no, opportunity to speak with them.

g) I also accept Ms. Anwar's evidence that the boys, particularly Aaid, were hostile towards her when she started to have sole custody of them in May of 2016.

h) Finally, I accept that the children had a good relationship with Ms. Anwar prior to the move to Canada.

[133] When all of these facts are considered, the only reasonable conclusions are the ones I have set out above. This is, therefore, the type of extremely rare case where the Court can consider reducing or eliminating child support.

[134] This brings me to the remainder of the conditions set out in paragraph 29 of Attard, supra. Mr. Siddiqui had sufficient assets and income to provide for the children in this time period. In addition, the children are not being deprived of support. As a result, the harm to the children in reducing the child support is going to be more limited. As a result, I conclude that this case fits into the extremely rare category of case where child support should not be paid. I conclude that there will be no retroactive child support payable from Ms. Anwar to Mr. Siddiqui between September of 2014 and May of 2015.

[135] Starting June 1st, 2015, the analysis is somewhat different. At that point, Ms. Anwar had arrived in Canada, Mr. Siddiqui had set aside the noting in default on consent, and permitted her to file an answer to this proceeding, and some in-person access was taking place. As I have noted above, it is extremely rare for the Courts to deny child support. It is the right of the child, and not the parent. In light of the changed circumstances, child support is payable by Ms. Anwar from June 1st, 2015 until the change of custody in May of 2016. For ease of calculation, I have established the change to the shared regime on May 1, 2016.

[136] I have set the calculation of the retroactive child support payable by Ms. Anwar to Mr. Siddiqui out in Appendix "A" to these reasons. The amount owing is $57,876.00.

[137] If any party is challenging the arithmetical calculations, they must do so in writing within fourteen (14) days of the release of these reasons. I will then review those challenges and determine whether a reply is required.

Issue #3 - Section 7 Expenses

[138] There was virtually nothing in either party's written argument about section 7 expenses. The only expenses that are being claimed are expenses for soccer, floor hockey and other extracurricular activities. These would only fit within section 7(1)(f) of the Federal Child Support Guidelines, which state that the parents can be required to pay, proportionate to income, for "extraordinary" expenses associated with extracurricular activities.

[139] However, the definition of extraordinary in section 7(1.1) of the Guidelines clearly states that the expenses have to be something that would exceed the amounts that the parent paying the expense, in this case Mr. Siddiqui, would reasonably be able to pay. Given the retroactive child support award that I have provided to Mr. Siddiqui, the amount of money that he earns and his asset base, these expenses are not beyond what Mr. Siddiqui would be able to pay. As a result, there will be no award for retroactive section 7 expenses.

[140] However, the parties' incomes have declined since 2015 and 2016. As a result, the payment of fees for activities such as soccer, floor hockey and swimming are now reasonable section 7 expenses, as they now meet the definition of extraordinary. These expenses are to be shared, going forward, in proportion to the parties incomes.

[141] For the 2017 and 2018 calendar years, the proportion for sharing section 7 expenses will be 68% for Mr. Siddiqui and 32% for Ms. Anwar.

Issue #4 - Equalization

[142] The parties own a number of properties, as well as a number of other assets. Some are in the name of one party and some are in the name of both parties. The parties also provided me with a Net Family Property statement comparing their positions.

[143] I have reviewed that statement, along with the other documentary and viva voce evidence. Based on that review, there are a number of categories of assets that need to be considered, as follows:

a) Real Property

b) The London House Deposit

c) Jewellery

d) Vehicles

e) Other assets and liabilities

[144] I will address each category in turn. Based on the Net Family Property statements provided at trial, I have prepared my own Net Family Property statement, which is set out at Appendix "B" to this decision.

[145] In addition, there is an issue as to the carrying costs of each property after the date of separation. I will address that issue at the end of this section, although it is not directly related to the equalization calculation. Those amounts will be shown on a separate statement, as they are not properly part of the equalization calculation.

a) Real Property

[146] The parties owned, either jointly or separately, six different properties as of the date of separation. I will address the arguments that have been made about each one of them in the sections that follow. I should identify one issue at the outset, however, which is where mortgages on solely owned properties are accounted for. In my view, the proper way in which to complete the equalization calculation is to include the full value of the property as an asset, and then include the value of the mortgage as a deduction in the liabilities section. My Net Family Property calculation is prepared in this way.

[147] The parties were working in five separate currencies as of the date of separation, specifically Canadian dollars, British Pounds, Qatari Riyals, Indian Rupees and the United Arab Emirates Dirham, which is the currency used in Dubai.

[148] The parties agreed on the exchange rates for the two major currencies, Qatari Riyals and Indian Rupees. They did not agree on the other two conversions. For the purposes of this judgment, I am accepting the following currency conversion rates. In each case, this is the amount of a Canadian dollar that one unit of each currency will buy:

Indian Rupees- 0.01818

Qatari Riyals 0.295

UAE Dirham 0.328

British Pounds- there was only one item in British Pounds, and I did not have any specific exchange rate information. As a result, I have calculated the exchange rate as the midpoint between the rates that the parties used.

[149] As a final general note, the parties have agreed on the sale of any jointly held properties. I have no jurisdiction to order such a sale, but confirm the parties' agreement.

Flat A-012, Sabban Towers - Joint

[150] The parties are agreed that the value of this property was $581,000.00 CDN as of the date of separation, and it was jointly owned. I have recorded these values on the NFP statement.

The Silver City, Nodia, India Flat

[151] The parties have agreed on a value of $200,000.00 for this property. Ms. Anwar states that the property is worth more now, and should be listed for sale forthwith. As I have noted above, I have no jurisdiction to make such an order, as the property is in India. All I will do is reflect the agreement of the parties on my Net Family Property calculation and remind the parties of their agreement that joint properties are to be listed and sold promptly.

Flat 408, Sabban Tower, Doha, Qatar

[152] This was the matrimonial home. It is solely in Mr. Siddiqui's name. There is a dispute between the parties over both the value and the mortgage. On the mortgage, I have accepted Mr. Siddiqui's position, as it accords with the conversion table set out above. The mortgage will be recorded as a debt of $534,308.30.

[153] On the value of this property, the best evidence was an e-mail from Mr. Nike Oloro, who is a senior property executive responsible for the building where this flat is located. In that e-mail, he advises that the range for these units was between 10,000 and 11,500 QAR per square meter in September of 2014. He also advises that, as of August 2016, the three bedroom units were selling at the bottom of a price range that ran from 10,500 to 12,000 QAR.

[154] Mr. Siddiqui argues that I should simply accept the bottom of the range, and fix the value on that basis. Ms. Anwar says that I should choose the midpoint in the range, as Mr. Siddiqui owns this property and did not provide any other information, including an appraisal, to assist the Court in assessing its value. Ms. Anwar also points out that this unit had unique amenities, including a large balcony and a good view.

[155] I am not adopting either position. Based on the e-mail from Mr. Oloro, it is clear that this was a large unit, and would be at the bottom of the range for prices. However, I accept that the amenities identified by Ms. Anwar would increase the value of the unit. In the circumstances, I assign a value of 10,250 QAR per square meter for this unit.

[156] When the rate of exchange is applied, that produces a value of $836,974.00 on the Net Family Property Statement as of the date of separation.

Flat 317, Greens, Dubai

[157] This property is solely owned by Mr. Siddiqui. The unit was sold in 2015. Mr. Siddiqui argues that I should accept the net proceeds of sale as the actual value of the property as of the date of separation. I disagree. Disposition costs, post-separation expenses and income incurred or earned after the date of separation are not relevant to the value of the property as of the date of separation.

[158] I also reject the argument that the disposition costs are a reduction in the value of the property. They are, instead, a cost of converting the value of the property from land into cash. I therefore accept that the gross sale price should be the value of the property as of the date of separation. I also accept that the mortgage principal, plus the accrued interest only should be the amount owing on the property. Additional fees for an early release from the mortgage are not properly part of the value of the mortgage as of the date of separation. This is also a cost of converting the value of the asset into cash.

[159] The amounts to be included in the Net Family Property statement are $541,200.00 for the value of the property, and $233,789.21 for the value of the mortgage.

Flat 315, Greens, Dubai

[160] On this property, Mr. Siddiqui is also advancing the argument that the disposition costs should be deducted from the value of the property as of the date of separation. For the reasons set out in the previous section, I am rejecting this argument and accepting Ms. Anwar's approach to the valuation of this property.

[161] The currency conversion calculation and the documents that I was provided with, however, yield slightly different numbers than those set out by either party in the various net family property statements. The property is valued at $334,560.00, and the mortgage is valued at $193,898.84.

A3/1603 Tower 8, Royal Park, Nodia, India

[162] This property is owned solely by Ms. Anwar. The parties disagree as to the value to be given to this property. Ms. Anwar provides the property tax statement, and argues that I should accept this as the value of the property. This produces a value of $150,336.60 for this property, using the agreed-upon conversion rate.

[163] Mr. Siddiqui's amount is based on the builder's price list for the units in the building, along with a valuation of the extras for the amenities, including the club membership and the building location. I had no evidence that these amenities were included in Ms. Anwar's property.

[164] However, I am of the view that the builder's price is a more reasonable representation of the value of this unit, and I accept that price (without the amenities) as being the best evidence of the value of the building. It is more directly related to the value of the property than the property tax statement. I was also not given any evidence about how the value in the property tax statement was reached. The value of a similar unit as offered by the builder is the more reasonable measure of value for this unit, particularly since Ms. Anwar owns it and could have had a formal appraisal completed.

[165] As a result, this property will be listed in the Net Family Property statement with a value of $179,472.05. This property produces an income of about $300.00 per month that is deposited in Ms. Anwar's father's account in India. I have factored that amount into her income calculations.

b) The London Flat

[166] Prior to separation, Mr. Siddiqui placed a deposit on a flat in London, England. The agreement to purchase the flat was in Mr. Siddiqui's name only. As a result, this is his asset.

[167] Mr. Siddiqui argues that he was forced to abandon the purchase of this property after the date of separation and forfeited the deposit. As a result, he is seeking to have this asset excluded from his Net Family Property. Mr. Siddiqui argues that the claim that the deposit has a value is "ridiculous" in light of the fact that the deposit has been forfeited.

[168] The problem with this argument is twofold. First, as of the date of separation, the deposit still had a value. At that point, the transaction could still have been completed, or Mr. Siddiqui could have sold the rights to the property to a third party. It was only after the date of separation that the asset lost its value.

[169] Second, the definition of property in section 4 of the Family Law Act is quite clear. It states that property includes any vested or contingent interest in, inter alia, real property. While this was a contingent interest, it was still an interest in real property. It is included in Mr. Siddiqui's Net Family Property.

[170] Then, there is a dispute between the parties about the value of the deposit as of the date of separation, as it was made in British Pounds. Mr. Siddiqui says it was $52,953.00. Ms. Anwar says that it was $54,063.80. I did not have the precise exchange rate, so I am giving this item a value at the midpoint between the two values. It will be recorded on the Net Family Property statement at $53,508.40

c) The Jewellery

[171] Mr. Siddiqui claims that Ms. Anwar has approximately $113,000.00 worth of jewellery that should appear on the Net Family Property statement. Ms. Anwar argues that the value of the jewellery in her possession should be limited to $25,000.00. This amount includes a claim for $15,000.00 of jewellery that Ms. Anwar claims she owned prior to the marriage. The difference between the parties flows from a number of issues.

[172] First, there were the gifts of jewellery given to Ms. Anwar either prior to or at the time of marriage. Mr. Siddiqui argues that these items were given to both parties at the time of the marriage. In support of this argument, he refers me to the decision in Sohi v. Sohi (2015 BCSC 1043). In that case, the BC Supreme Court considered the question of whether jewellery given at a wedding could serve multiple purposes. The Court found that it could be given to both parties to serve both as financial security, as well as to adorn the person who wore it.

[173] I accept that a gift of jewellery can have multiple purposes when given at a wedding. However, in this case, I do not have the type of detailed evidence about the gifts of jewellery that the Court had in Sohi, supra. In addition, there is no significant evidence before me from either party of the cultural context of these gifts of jewellery. Finally, unlike Sohi, there is no evidence that there were gifts from both families on the occasion of a wedding. The gifts in this case came mostly from Ms. Anwar's parents. As a result, I accept that the claim that Ms. Anwar is making for a date of marriage deduction in the sum of $15,000.00 is reasonable. The Net Family Property calculation will reflect that amount.

[174] Second, there were the gifts given to Ms. Anwar by third parties during the course of the marriage. Under section 4(2)1 of the Family Law Act, those items are excluded property. I note that there are some items that fall into this category. However, I do not have any valuations for these items, all of which are in the possession of Ms. Anwar. Had Ms. Anwar wanted to attach a significant value to these items, she would have provided an appraisal as part of the evidence at trial. However, it is clear from the testimony of both parties that some of these items were gold and there is value, beyond a minimal amount, in them. However, I am only prepared to permit a deduction of $2,500.00 on account of these items.

[175] This brings me to the questions of who has the jewellery bought during the marriage, and how much is it worth. Mr. Siddiqui argues that the bulk, if not all, of the jewellery is in the possession of Ms. Anwar. Ms. Anwar testified that some of the jewellery is in Mr. Siddiqui's possession. On this point, I accept Mr. Siddiqui's evidence for two reasons. First, most of the jewellery was stored either in a safety deposit box at the bank where Ms. Anwar worked or in the matrimonial home. As a result, she would have had more ready access to that jewellery. Second, the remaining jewellery was in the safe in the condominium in Dubai. Ms. Anwar lived there for approximately six months after Mr. Siddiqui moved out. In my view, it is more likely that she would have had the bulk of the jewellery in her possession.

[176] This brings me to the valuation of the jewellery. In support of his position, Mr. Siddiqui provided spreadsheets, some e-mails showing the value of the jewellery, and a description of both weights of gold and types of gemstones. There is a significant weight of gold, and numerous diamonds, for example. I also had in evidence the declaration that was provided to the Canada Revenue Agency in August of 2013, as well as other documentation showing the purchase of jewellery since that time. These documents all assign a generally consistent value to the jewellery. I acknowledge that some of them were prepared by Mr. Siddiqui. However, the declaration to Canada Revenue is, in my view, reliable evidence because it was prepared before the parties were separating for the purpose of identifying the goods that they would be bringing to Canada.

[177] This evidence should be contrasted with what Ms. Anwar provided. All that she provided was a list and some photos. The list purports to set out the value for the jewellery that Ms. Anwar says she has. However, this list is not supported by any valuation information, and the jewellery is (as I have noted) in Ms. Anwar's possession. As a result, I infer that valuations would not have assisted Ms. Anwar's position. I therefore accept Mr. Siddiqui's position that the value of the jewellery on Ms. Anwar's NFP should be $113,186.00, subject to the pre-marriage and third party gift deductions I have set out above.

d) Vehicles

[178] At the time of separation, the parties owned two vehicles. Mr. Siddiqui owned a 2009 Infiniti QX56, and Ms. Anwar owned a 2009 Infiniti FX35. The parties originally disagreed as to the value of each of the cars. Both parties ultimately accepted the black book value for Ms. Anwar's car, and that amount ($22,925.00) will be included on the Net Family Property statement.

[179] For his own car, however, Mr. Siddiqui testified that he sold this car to Mr. Aamir Mobin for $19,623.00 shortly after separation, and this is the value I should attribute to the car. I disagree for two reasons. First, Mr. Mobin is one of Mr. Siddiqui's friends. Mr. Mobin even purportedly loaned Mr. Siddiqui money, as will be discussed below. It is, therefore, difficult to be certain that this was an arms-length transaction. Second, the black book value is a better, more neutral value of the car. I heard no evidence that would cause me to accept a different value for this car, and I assign that value to the car. It is $26,075.00, and will be included in the Net Family Property statement.

e) Other Assets and Liabilities

Personal Bank Accounts

[180] The parties have listed a number of personal bank accounts. There are two significant differences over this portion of the Net Family Property calculation that need to be resolved. First, there is the Aditya Birla Real Estate account owned by Mr. Siddiqui. Second, there is Ms. Anwar's State Bank of India Provident Fund account.

[181] The differences in the remaining amounts total, between all accounts, less than $650.00. I have resolved the outcomes by reviewing the documents, and including what I view as the appropriate number in my equalization calculation. Mr. Siddiqui's submissions state that the parties have agreed on the valuation of the bank accounts, except for the Aditya Birla account, but the Net Family Property statements that were filed (both Exhibit 17 and the ones attached to the closing submissions) do not reflect that agreement.

[182] On the Aditya Birla account, Exhibit 6 set out the value of the fund as of September 30th, 2015. In addition, the statements that were provided had a retrospective that also set out the value of the fund in 2014.

[183] Ms. Anwar argues that I should consider the value of Mr. Siddiqui's share of the fund in 2010, and then add a notional income for each of the next four years to reach the notional value of Mr. Siddiqui's portion of the fund as of the date of separation.

[184] I reject this approach as being both too complicated and ignoring the actual evidence in the documents filed. I have information on both Mr. Siddiqui's share of the fund as of September 30th, 2014, as well as the total value of the fund as of September 30th, 2014. I accept those numbers as being correct, and they produce Mr. Siddiqui's proposed value of this fund, which is $36,946.00 and will be included in the Net Family Property statement.

[185] Then, there is Ms. Anwar's State Bank of India Provident Fund account. The parties disagree about the value of this account, but did not provide me with any significant submissions on this issue. I have reviewed the statement from this account, and the balance as of the date of separation is 1,296,380 Indian Rupees, which converts to $23,568.18. This amount will be recorded on the Net Family Property statement.

Life Insurance

[186] While the parties have, between them, three life insurance policies, there is only a dispute over the value of the wife's ICICI Prudential Life Insurance policy. Mr. Siddiqui claims that this had a value, on the date of separation, of $32,000.00. Ms. Anwar claims that she is no longer receiving information about this policy, and that Mr. Siddiqui managed the policy. This claim is supported by the documentation filed at trial. However, the documentation at trial also supports that this policy would have a cash surrender value and that, on September 30th, 2014, that value would have been $27,895.48. This amount is a reasonable estimation of the value of this policy on the date of separation.

[187] The fact that Ms. Anwar owns this asset, but does not have control of the asset, raises an interesting question of remedy. I have included it on Ms. Anwar's Net Family Property statement. However, Mr. Siddiqui is directed to facilitate Ms. Anwar regaining control over this asset. If control over this asset is not returned to Ms. Anwar and/or the asset has been depleted, then Mr. Siddiqui is to pay Ms. Anwar the full value of the asset. I retain jurisdiction to deal with any enforcement issues relating to this insurance policy if the parties cannot resolve this issue within thirty (30) days.

Personal Loans to Mr. Siddiqui

[188] On his Net Family Property statement, Mr. Siddiqui claims a loan of $35,400.00 to Rajesh Chopra, and a loan of $35,872 to Mr. Aamir Mobin, the same person who purchased Mr. Siddiqui's car. In support of these loans, Mr. Siddiqui provided e-mails from both of these individuals that were sent to him long after the fact. He also provided some banking records that suggested deposits being made in these amounts around the time that he claimed the loans were made.

[189] However, Mr. Siddiqui did not provide any evidence of any loan agreements, any repayment schedules, or any agreements respecting interest. Indeed, when the e-mails are reviewed, it is clear that one of the loans from Mr. Mobin, made after the date of separation, carried an interest rate, while there was no mention of any interest payable on the loan allegedly made by Mr. Mobin to Mr. Siddiqui before the date of separation.

[190] There is no contemporaneous evidence showing the existence of these loans. There is also no evidence showing an intention to repay the monies, any obligation to repay by a certain date or any interest owing on these loans. I reject Mr. Siddiqui's assertion that these loans were actually made, and there will be no deduction on his Net Family Property statement for them.

[191] In addition, there is the car loan. As I have noted above, the deposit on the London property is an asset to be included in the Net Family Property calculation. Similarly, the car loan may have been a contingent liability as of the date of separation, but it was still a liability. As a result, it belongs on the Net Family Property Statement, and will be recorded as a liability of $9,609.04.

Ms. Anwar's Credit Card

[192] It is agreed that this is a debt to be recorded on Ms. Anwar's Net Family Property statement in the amount of $14,774.00.

Other Debts

[193] There are two mortgage debts on Ms. Anwar's side of the Net Family Property calculation. There was no substantive argument over these items. I have included a calculation for each item in the Net Family Property calculation.

e) Conclusion on Equalization

[194] Based on the foregoing, Mr. Siddiqui is to make an equalization payment to Ms. Anwar of $411,970.57. I retain jurisdiction to address any issues relating to the ICICI Prudential Life Insurance Policy, depending on whether the parties can resolve that matter. My Net Family Property calculation is set out in Appendix "B".

[195] In addition, in the event that any party has an issue with my arithmetical calculations, they may make written submissions on the issue within fourteen (14) days of the release of this decision. These submissions are not to address any dispute that the parties may have with the legal and factual conclusions underlying my calculations.

Issue #5 - Post-Separation Adjustments

[196] Ms. Anwar is claiming post-separation adjustments in the sum of approximately $100,000.00. These were claimed on Ms. Anwar's Net Family Property statement. However, I am of the view that it is more appropriate to address those amounts separately as they are not reflective of, or related to, the value of each party's property as of the date of separation.

[197] The claims divide themselves into four amounts, as follows:

a) An amount owing on her Bank of Qatar credit card of $17,168.60 for expenses that she claimed Mr. Siddiqui incurred on this card after separation.

b) An amount for 50% of the rent on the Silver City flat in Nodia, India.

c) An amount for 50% of the rent on the Sabban Tower Flat in Doha, Qatar.

d) An amount for 50% of the mortgage payment for the Sabban Tower Flat in Doha, Qatar.

[198] I will deal with each issue in order, but will address c) and d) together, as they raise common issues.

The Bank of Qatar Credit Card

[199] Ms. Anwar is seeking reimbursement for the payment of various expenses on this credit card. However, the statements that were in the records before me are neither clear nor complete. In addition, Mr. Siddiqui states that he did not incur any expenses at all on this credit card after the date of separation.

[200] It is up to Ms. Anwar to lead the necessary evidence to prove this claim. The missing statements for November and December of 2014, along with the confusion in Ms. Anwar's testimony about what was actually being claimed, and on what basis, leave me with insufficient evidence to accept this claim, and I reject it.

The Silver City Apartment

[201] This is a jointly owned condominium in Nodia, India. Mr. Siddiqui's parents live in this condominium. Mr. Siddiqui argues that there is a long-standing unwritten agreement between the parties that his parents would live in this condominium without paying rent, and would pay the condominium fees. Mr. Siddiqui further argues that imputing rental income would contradict this long-standing agreement, and that the claim should be dismissed because there is no cost to either party to maintaining this agreement.

[202] However, Ms. Anwar rightly points out that this agreement would have ended at the time that the parties separated. She also argues that this property could be generating income for the parties. I accept both of these submissions.

[203] If Mr. Siddiqui's parents did not live in this apartment, the property would be earning rental income. As a result, there is an opportunity cost to Ms. Anwar that is directly benefitting Mr. Siddiqui, as his parents are living rent-free. It is, therefore, reasonable to impute rental income to this unit, and to give Ms. Anwar half of it.

[204] However, it is not appropriate for the agreement that Mr. Siddiqui's parents could occupy the apartment and just pay the condominium fees to end immediately upon separation. There needs to be some notice. I accept Ms. Anwar's position that six months of notice is reasonable.

[205] Ms. Anwar also provided evidence as to the rental value of similar units. I accept that this unit would be rented out for 25,000.00 Indian Riyals per month. Ms. Anwar would be entitled to half of that amount between April 1st, 2015 and December 31st, 2017, for a total amount of $7,272.00 CDN. In addition, starting on January 1st, 2018, for every month that Mr. Siddiqui's parents remain in the unit, or it remains unrented and unsold, Mr. Siddiqui shall pay to Ms. Anwar the sum of $227.25 on the first day of each month. This payment is over and above the other support amounts that Mr. Siddiqui is required to pay to Ms. Anwar, and is compensation for the fact that his parents have had sole use of a jointly owned asset.

The Sabban Tower Apartment

[206] This is a jointly owned property. However, the mortgage was paid solely by Ms. Anwar. Further, the rents for the property were collected by Mr. Siddiqui, and used to pay off the mortgage on the matrimonial home, which was in his name only. In my view, for a jointly owned property, Mr. Siddiqui has an obligation to pay half of the mortgage. In addition, Ms. Anwar has an entitlement to collect half of the rents.

[207] There is also an issue about whether the apartment is currently being rented. Mr. Siddiqui testified that the property has remained vacant since March of 2016. However, the evidence filed with me suggests otherwise. The tenant at the time was a gentleman named Cagdas Bayarak. It is clear from the evidence that the property went into default when Ms. Anwar stopped paying the mortgage in the summer of 2016. On August 22nd, 2016, Mr. Bayrak sent Ms. Anwar a note asking what was meant by a "bad debt", as he had been paying his rent on time for the last three years.

[208] In the face of Mr. Bayrak's e-mail, I reject Mr. Siddiqui's evidence that the property was vacant as of March, 2016. It is clear that he misled the Court about this fact, and has been collecting the rent since that time. It is also clear that Mr. Siddiqui has been paying the mortgage since the summer of 2016, but that Ms. Anwar paid it prior to that time period.

[209] I should also deal with the issue of the mortgage on the former matrimonial home and Mr. Siddiqui's claim of occupation rent. After the date of separation, the mortgage payments were for the sole benefit of Mr. Siddiqui. The home was his asset, and paying the mortgage preserved and, to the extent principal was paid, increased the value of his asset. In addition, there was no evidence before the Court as to what this property would actually rent for. As a result, I am not prepared to award any amount for occupation rent for this time period.

[210] At this point, I am not prepared to fix a precise amount owing for this property. However, the parties are to agree on the calculation of the amounts owing to Ms. Anwar, with the following principles in mind:

a) The rent has been received continuously by Mr. Siddiqui since September 14th, 2015, and will be received by him until the date the unit is/was sold.

b) The mortgage was paid by Ms. Anwar until the summer of 2016, and is now being paid by Mr. Siddiqui.

c) Each party is entitled to half the rent for this property, and required to pay half the mortgage for this property.

d) Mr. Siddiqui is not entitled to any deduction or claim against this money on account of the expenses related to the matrimonial home.

[211] For clarity, the points listed in the previous paragraph are findings of fact and law, and are not subject to change or comment by the parties. In the event that the parties are not able to agree on these amounts within fourteen (14) days from today's date, they are to advise my judicial assistant and we will arrange for an appearance to address the issue.

Issue #6 - Spousal Support

[212] There are three grounds on which a spousal support claim can be founded: a compensatory, a needs or a contractual basis. There is no basis in this case for a claim for spousal support on a contractual basis.

[213] Ms. Anwar claims spousal support from Mr. Siddiqui on both a compensatory basis and a needs basis. Ms. Anwar argues that the unexpected move to Canada left her in a position where she had to forego her high paying job in Qatar, and had to move to Canada without time to ensure her self-sufficiency. Ms. Anwar also argues that she needs support as she is having to upgrade her skills through education.

[214] Mr. Siddiqui resists this claim, arguing that Ms. Anwar had several months to plan her move to Ontario, that Ms. Anwar was able to plan her affairs to ensure that she was self-sufficient when she moved to Ontario, and that Ms. Anwar did not utilize her resources properly when she moved to Ontario.

[215] The factors and objectives that a Court should consider when making a spousal support order are set out in sections 15.2(4) and 15.2(6) of the Divorce Act. I will consider those factors as I assess whether the facts of this case support a compensatory or a needs based award of spousal support.

[216] In making my award, I note that section 15.2(5) of the Divorce Act states that misconduct on the part of either spouse is not something that the Court should take into consideration in making an award of spousal support.

[217] With these principles in mind, I will address both the compensatory and the needs basis for support in this case.

a) The Compensatory Basis

[218] In essence, Ms. Anwar is arguing that she is entitled to spousal support on a compensatory basis because she was required to leave her job in Qatar and move to Canada without sufficient time to properly organize her affairs. Ms. Anwar also argues that this move was necessitated because of Mr. Siddiqui's unilateral decision making.

[219] I reject these arguments. First, Ms. Anwar did have time to organize her affairs. She was aware that a move to Canada had been planned as far back as 2010. In addition, when Mr. Siddiqui moved to Canada, Ms. Anwar remained in Qatar for six months, and was able to make arrangements with her employer where she would continue to tidy things up and performed additional work even after she moved to Canada.

[220] Second, the decision to move to Canada had been made prior to the separation, and it is clear that it was a joint decision. On that point I note that the parties ensured that Maira was born in Canada so that she would have Canadian citizenship.

[221] Finally, the opportunities that the parties had when they moved to Canada were similar. In addition, the sacrifices that each party made during the marriage were similar. As I have noted elsewhere, the parties employed a nanny in Dubai. I also heard no evidence that Ms. Anwar was disadvantaged in terms of her ability to earn an income as a result of her marriage. As noted in Thompson v. Thompson (2013 ONSC 5500 at paragraph 55), the compensatory model is designed to ensure that there is an equitable distribution of the consequences of the breakdown of the marriage. In this case, as I have noted, those consequences appear to have been equally distributed. Each party was starting over in Canada, each party had the ability to find new opportunities in Canada, and each party had been able to develop their skills during the course of the marriage.

[222] In terms of the child rearing responsibilities both during the marriage and afterwards, I note that the distribution of these responsibilities is not uneven. During the marriage, the parties employed a nanny and were both able to pursue their careers. Currently, the older two children are being jointly cared for by the parents. Maira, Ms. Anwar's youngest child, is not a child of the marriage. Her father, Mr. Khan, has a responsibility to support her. In any event, I note that Ms. Anwar's parents assisted her in 2014 in the months after Maira's birth. They were also in Canada for a period of time in 2016 to assist with caring for all of the children.

[223] As a result, in my view there is no basis for a claim of spousal support under the compensatory model.

b) The Needs Model

[224] In assessing the needs model of spousal support, no one factor is paramount, but the fact of a remarriage or cohabitation with another spouse that is providing support is relevant. (See Fisher v. Fisher, 2006 CanLii 4950). Assessing whether Ms. Anwar is entitled to support under the needs model requires me to consider a series of different factors in addition to the fact that Ms. Anwar is receiving support from Mr. Khan.

[225] First, the needs of the spouse seeking support do not have to arise as a result of the roles and/or sacrifices made during the course of the marriage.

[226] There is also no presumed duty on a spouse to achieve financial independence. It is dependent on the circumstances of the parties and the dynamics of each relationship (see Thompson, supra, at para 49).

[227] Finally, the longer the relationship, the more the Court will do to ensure that the standard of living that the parties enjoyed during the course of the marriage is preserved for the spouse seeking support. However, in assessing support, the Court must first determine whether the party seeking support has established entitlement.

[228] In this case, I am persuaded that Ms. Anwar is entitled to some support on the needs basis. I reach this conclusion for the following reasons:

a) This was a medium term relationship at a minimum. It lasted for more than ten years.

b) The parties enjoyed a high standard of living when they lived in Qatar.

c) The parties had a plan to move to Canada and to accept the adjustments that would come with a very significant change in their careers and lives.

[229] However, in considering the quantum of support, I am mindful of Ms. Anwar's current circumstances. First, there is her accommodation. Both Ms. Anwar and Mr. Khan, her current partner, are listed on the mortgage for 3445 Pintail Circle, and Mr. Khan pays the mortgage and property taxes. He also provides some of the funds for the household. Ms. Anwar is receiving significant support from Mr. Khan.

[230] Second, Mr. Khan has an obligation to support Maira, which will contribute to Ms. Anwar's ability to support herself.

[231] Third, Ms. Anwar has significant skills, both from an educational perspective and from her work with the Bank of Qatar. As a result, she has the skills to support herself.

[232] Finally, although there is no presumed duty to achieve financial independence, the relationship between these parties supports the view that, in this case, financial independence is a reasonable goal. Both parties had successful careers up to the date of separation. There is no reason why they should not be expected to pursue their careers after separation.

[233] When the relative income numbers that I have assigned are compared, there is no support payable for 2015. However, in the first half of 2016 the spousal support ranges are from $815.00 per month at the low end to $1,087.00 per month at the high end.

[234] Then, when custody changes in 2016, the range changes to a low of $467.00 per month to a high of $1,442.00 per month. The ranges for 2017 are similar, being $445.00 per month to $1,409.00 per month.

[235] All of the calculations have the duration of support at between 5.35 years and 12 years.

[236] I am of the view that the award of spousal support in this case should be at the very low end of the guideline amounts for both the duration and the amount for the following reasons:

a) Ms. Anwar's education, training and experience clearly suggest that she will be able to support herself very quickly.

b) During the course of the marriage, Ms. Anwar did not have to make more sacrifices in her career than Mr. Siddiqui made in order to care for the children.

c) Ms. Anwar is also receiving support from Mr. Khan and, as a result, her needs are lower.

d) The equalization payment provided to Ms. Anwar, together with the assets that she owns, will allow her to make some provisions to support herself. In particular, I note the payments that I have awarded to Ms. Anwar on account of lost rent for the Silver City apartment as an example of her ability to earn income with the resources that she has.

[237] Based on these conclusions, spousal support is payable by Mr. Siddiqui to Ms. Anwar on a monthly basis, commencing January 1st, 2018 in the sum of $445.00. This support is to terminate five and a half years after the date of separation, being March 14th, 2020.

[238] Given the short duration of the spousal support award, it is not appropriate to review it as part of the income review.

[239] The arrears for spousal support owing to Ms. Anwar are $12,336.00. I have set out my calculations in Appendix "C" of these reasons. If any party is challenging the arithmetical calculations, they must do so in writing within fourteen (14) days of the release of these reasons. I will then review those challenges and determine whether a reply is required.

[240] The amounts that were paid into Court in Qatar are to be credited against the arrears that Mr. Siddiqui owes. It is not clear to me whether those amounts remain in Court in Qatar or have been paid out. The parties are to discuss that issue and attempt to agree on it. If the parties are not able to agree on this issue in thirty (30) days, then an appointment may be made to discuss the matter with me. I retain jurisdiction to address this issue.

Issue #7 - Should A Divorce Be Granted in This Proceeding?

[241] Mr. Siddiqui argues that Qatar is the proper jurisdiction for a divorce to be granted, as Mr. Siddiqui first requested a divorce in her Qatari proceeding. Mr. Siddiqui also asserts that, if a divorce is granted in this proceeding, his Qatari proceeding will be dismissed.

[242] On his own submissions, in his Qatari proceeding, Mr. Siddiqui is seeking to address allegations of misconduct wrongly made by Ms. Anwar, divorce, the payment of support and legal costs.

[243] In support of his position on this issue, Ms. Anwar points to section 3 of the Divorce Act, which states:

3. JURISDICTION IN DIVORCE PROCEEDINGS – (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

(2) JURISDICTION WHERE TWO PROCEEDINGS COMMENCED ON DIFFERENT DAYS - Where divorce proceedings between the same spouses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding shall be deemed to be discontinued.

(3) JURISDICTION WHERE TWO PROCEEDINGS COMMENCED ON SAME DAY – Where divorce proceedings between the same souses are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the divorce proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

[244] In addition, Ms. Anwar argues that Mr. Siddiqui has provided no explanation as to why he wishes to have a divorce granted in Qatar. Ms. Anwar argues that Mr. Siddiqui wishes to have the divorce granted in Qatar so that he can allege adultery against Ms. Anwar, and prevent her from visiting Qatar without facing legal consequences.

[245] Although I share Ms. Anwar's concern about the motivations behind Mr. Siddiqui's Qatari proceeding, I do not have sufficient evidence before me in the record as to what the laws in Qatar are with respect to divorce and adultery, and I cannot give effect to Ms. Anwar's argument on this point.

[246] However, when the history of the various proceedings is reviewed, the first proceeding that was started was Ms. Anwar's Indian divorce proceeding. The second proceeding was Ms. Anwar's Qatari divorce. The proceeding before me was the third proceeding that was started. Ms. Anwar's Qatari proceeding was dismissed as abandoned in October of 2015, and the Indian proceeding has also been abandoned. As a result, the proceeding before me is the first proceeding in priority.

[247] More specifically, there is no evidence before me that Mr. Siddiqui's Qatari proceeding is actually related to the proceeding that Ms. Anwar brought. Mr. Siddiqui's Qatari proceeding was started after this proceeding.

[248] In addition, all of the corollary relief is being granted in this case. When the list of issues identified in paragraph 5 of these reasons is considered, every one of them was addressed by the evidence before me, and I have made rulings on all of them. I have also had to make findings of fact on all of the issues in these proceedings, including the conduct of the parties. The custody and access issues were also fully dealt with by this Court through a consent Order.

[249] As a result, it is appropriate for the divorce to issue in this case. To order otherwise would require the parties to pursue two separate proceedings in order to obtain relief that could be granted in this proceeding, which was commenced before any of the other proceedings that are currently active.

[250] The parties are to be divorced, and the divorce will take effect thirty-one (31) days after the release of these reasons.

Issue #8 - Travelling Outside Canada

[251] This issue necessitated a further appearance before me on December 12th, 2017, just as I was preparing to issue my decision in this matter. Mr. Siddiqui is seeking an Order permitting him to travel with the children, as follows:

1. The children, Aaid Javed Siddiqui, born December 17, 2004 and Ali Kaved Siddiqui, born December 19, 2009, may travel outside of Canada with either the Applicant Javed Siddique or the Respondent Tabassum Anwar for the purposes of vacation with the consent of the other parent, such consent not to be unreasonably withheld.

2. The travelling party shall provide the non-travelling parent with a detailed itinerary of the trip including copy of the flight tickets, address where the children will reside on vacation and the telephone number where the children can be reached while on vacation. If the vacation is outside of Canada, the travelling party shall provide the non-travelling parent with a Travel Consent Letter and the non-travelling party shall sign the necessary travel consent letter and return it to the travelling party.

[252] This Order was opposed by Ms. Anwar, in large part on the basis that this was a custody and access issue, and the proceeding before me was a financial trial. Mr. Simard, on behalf of Ms. Anwar, did acknowledge that permission to travel outside of Canada cannot, generally, be unreasonably withheld.

[253] In that regard, the appearance before me was, in part, to address Mr. Siddiqui's desire to travel with the children to Florida over the Christmas break this year for a period that was slightly longer than his normally scheduled access time. This matter was resolved by the parties on the basis that Mr. Siddiqui could travel with the children.

[254] This brings me back to the larger question of the Order sought by Mr. Siddiqui. When the trial in this matter commenced, there was an issue as to who would be witnesses in this case. The parties both originally sought to call witnesses that were not listed on their trial management form. We considered the options of either hearing from all of the witnesses that everyone wanted to call, adjourning the matter or hearing only from the witnesses on the witness list.

[255] After discussion, it was determined that the trial would proceed, and that we would only call witnesses who had been identified on the trial scheduling endorsement form.

[256] As a result, the report of the OCL was in the trial record, but the author of that report was not called as a witness, or for the purposes of cross examination. In short, this report has not been considered in detail by the Court.

[257] More generally, custody issues were to be dealt with separately, and a separate trial date was scheduled for those issues. Instead of proceeding to trial, Mr. Siddiqui accepted an offer from Ms. Anwar that did not include any specific provision about travel. The financial issues proceeded to trial before me.

[258] Based on this history, it would appear that the issue of a travel provision is not properly before me. However, there is one caveat that must be addressed. Mr. Siddiqui has consistently raised this travel issue as one of the outstanding issues for the trial before me. As a result, Ms. Anwar had notice that the issue was potentially being litigated by the parties. However, Mr. Simard advised me at the outset of trial that this issue was not properly before me as it was a custody and access issue.

[259] In the circumstances, I agree with Ms. Anwar. The issues of custody and access were separated from the financial issues. The proceeding before me was a trial over the financial issues. The request for a travel provision is not properly before me, and I decline to make any order in that regard.

Issue #9 - Pre-Judgment Interest

[260] Ms. Anwar has requested that I order pre-judgment interest on all of the amounts owing as a result of this decision. I see no reason why this request should not be granted, and so order.

[261] The parties are to discuss the calculation of interest. If they are unable to agree on the rate and quantum of interest within fourteen (14) days of the release of these reasons, they may advise my judicial assistant, and we will make arrangements for submissions to be made.

Conclusion

[262] For the foregoing reasons, I make the following Orders:

a) I retain jurisdiction to address any issues relating to Maira's name change.

b) Mr. Siddiqui's income for the purposes of calculating support is deemed to be $157,000.00 for 2016, 2017 and 2018.

c) Mr. Siddiqui's income for the purposes of calculating support is deemed to be $143,000.00 for 2015.

d) Ms. Anwar's income, not grossed up, for 2014, is $344,982.00.

e) Ms. Anwar's income for 2015 for the purposes of calculating support is $773,000.00.

f) Ms. Anwar's income for 2016, 2017 and 2018 for the purposes of calculating support is $74,730.00.

g) The parties are to exchange income information by July 1st, 2019 to consider an update to the child support calculations. This information is to include:

i. Their income tax returns for the 2016, 2017 and 2018 calendar years.

ii. The tax returns for their businesses for 2016 to 2018.

iii. The income statements and balance sheets for their businesses for 2016 to 2018.

iv. Any other disclosures required by section 21 of the Federal Child Support Guidelines. In particular, the parties are reminded of the provisions requiring production of the information supporting any non-arm's length salaries or other payments.

h) Mr. Siddiqui is to pay Ms. Anwar child support in the amount of $2,163.00, commencing January 1st, 2018. Ms. Anwar is to pay Mr. Siddiqui child support in the amount of $1,135.00 commencing January 1st, 2018. This leaves an offset amount of $1,028.00.

i) Ms. Anwar is to pay retroactive child support to Mr. Siddiqui in the amount of $57,876.00.

j) If any party is challenging my arithmetical calculations of retroactive child support, they must do so in writing within fourteen (14) days of the release of these reasons.

k) The parties are to proportionately share section 7 expenses, including extracurricular activities. Mr. Siddiqui will pay 68% of these expenses, and Ms. Anwar will pay 32% of these expenses.

l) Mr. Siddiqui is to pay an equalization payment of $411,970.57 to Ms. Anwar.

m) If the parties have any issues with the arithmetical calculations I have made in arriving at the equalization payment, they are to make those submissions within fourteen (14) days of the release of these reasons.

n) Mr. Siddiqui is to facilitate the transfer of control over the ICICI Insurance Policy to Ms. Anwar within thirty (30) days of the release of these reasons. If control over this policy is not transferred or if the asset has been depleted, then Mr. Siddiqui will pay Ms. Anwar $27,895.48.

o) Mr. Siddiqui is to pay the sum of $7,272.00 on account of half the lost rent on the Silver City apartment.

p) Mr. Siddiqui is to pay the sum of $227.25 to Ms. Anwar starting on January 1st, 2018 for every month that the Silver City apartment is either occupied by his parents or unrented and unsold. This payment is in addition to any spousal or child support payments.

q) The parties are to address the issue of the monies owing on account of the Sabban Tower apartment within 14 days of the release of these reasons. If they are not able to agree on this issue, they are to arrange an appointment through my judicial assistant. I retain jurisdiction to address this issue.

r) Mr. Siddiqui is to pay Ms. Anwar $445.00 per month on account of spousal support commencing January 1st, 2018. This support payment is to continue until March 14th, 2020.

s) Mr. Siddiqui is to pay arrears in spousal support to Ms. Anwar in the amount of $12,336.00.

t) The amount in paragraph "s" is to be reduced by the amounts that were paid into court in Qatar. If the parties are not able to agree on this issue within 30 days, then an appointment may be made to discuss the matter with me. I retain jurisdiction to address this issue.

u) If any party is challenging my arithmetical calculations on the amount of arrears owing in spousal support, they must do so in writing within fourteen (14) days of the release of these reasons.

v) The parties are to be divorced, and the divorce is to take effect thirty-one (31) days after the release of these reasons.

w) Pre-judgment interest is payable on all amounts payable pursuant to this Order. In the event that the parties cannot agree on the quantum and rate of interest, they may contact my judicial assistant within fourteen (14) days of the release of these reasons to arrange to make submissions. I retain jurisdiction to address any issues in this regard.

[263] Success on these issues has been divided. As a result, if the parties cannot agree on costs, each side will provide their costs submissions within fourteen (14) days of the release of these reasons. Those costs submissions are to be no longer than four (4) single-spaced pages, exclusive of offers to settle, bills of cost and case-law.

[264] Each side will have an additional seven (7) days to provide responding costs submissions. Those submissions are not to exceed two (2) single-spaced pages.

[265] Any extensions to the time for providing either costs submissions, or, the other information required in this decision require my leave even if they are on consent.

[266] Finally, I should note that the issue of whether Mr. Siddiqui should be entitled to costs for the undefended trial will be addressed as part of these costs submissions. The page limitations I have set out take this fact into account.

Lemay J.

Released: January 9, 2018

Appendix A - Child Support Arrears

From June 1, 2015 to December 31, 2015, Ms. Anwar pays $9,112.00/month to Mr. Siddiqui

7 months @ $9,112.00/month

Total = $63,784.00

For January 1, 2016 to April 30th, 2016 Ms. Anwar pays Mr. Siddiqui $1,101.00/month

4 months @ $1,101.00/month

Total = $4,404.00

For April 30, 2016 to December 31, 2016 Mr. Siddiqui pays $2,098.00 and Ms. Anwar pays $1,101.00. Offset of $997.00/month

8 months @ $997.00

Total = ($7,976.00)

For January 1, 2017 to December 31, 2017, Mr. Siddiqui pays $2,163.00, Ms. Anwar pays $1,135.00. Offset of $1,028.00

12 months @ $1,028.00

Total = ($12,336.00)

Total Child Support Arrears = $57,876.00

Appendix "B" - Net Family Property Statement

Siddiqui v. Anwar

1. Value of Assets Owned on Valuation Date

a) Land

Property	Value on Applicant's NFP	Value on Respondent's NFP
Qatar - A-012 Sabban Towers, The Pearl	$290,500.00	$290,500.00
India - P-3-09 Silver City, Nodia	$100,000.00	$100,000.00
Qatar - Flat 408 Sabban Tower	$836,794.00
Dubai - Flat 317, Greens	$541,200.00
Dubai - Flat 315, Greens	$334,560.00
India - A3/1603 Tower 8, Nodia, India		$179,472.05
London Flat	$53,508.40
Total	$2,103,054.00	$569,972.05

b) General Household Items and Vehicles

Item	Value on Applicant's NFP	Value on Respondent's NFP
2009 Infiniti QX 56	$26,075.00
2009 Infiniti FX 35		$22,925.00
Respondent's Jewelry	$0	$113,186.00
Total	$26,075.00	$135,925.00

c) Bank Accounts, Savings, Securities and Pensions

Account	Value on Applicant's NFP	Value on Respondent's NFP
Doha, Qatar, Account 3****4	$736.08
State Bank of India, Provident Fund	$22,614.79
CIBC Chequing Account	$9,003.86
Aditya Birla Real Estate	$36,946.00
Commercial Bank of Qatar		$968.57
State Bank of India, Provident Fund		$23,568.18
Total	$69,300.73	$24,536.75

d) Life Insurance

Item	Applicant's NFP	Respondent's NFP
ICICI Policy		$27,895.48

2. Debts and Other Liabilities

Debt/Liability	Applicant's NFP	Respondent's NFP
Mortgage, Qatar - Flat 408	$534,308.30
Mortgage, Greens Flat 317	$233,789.21
Mortgage, Greens Flat 315	$193,898.84
Applicant's Car Loan	$12,000.00
Applicant's Personal Loans	$0
Respondent's Mortgage Acct #1		$100,772.95
Respondent's Mortgage Acct #2		$212,004.00
Credit Card - Bank of Qatar		$14,774.00
Total	$971,605.75	$327,550.95

3. Property as of Date of Marriage

Item	Applicant's NFP	Respondent's NFP
Jewellery		$15,000.00

4. Gifts from Third Parties During Marriage

Item	Applicant's NFP	Respondent's NFP
Jewellery		$2,500.00

5. Calculations

Applicant's Total NFP - $1,226,823.98

Respondent's Total NFP - $402,882.85

Difference - $823,941.13

Payment by Applicant to Respondent of 1/2 difference - $411,970.57

Appendix C - Spousal Support

For January 1, 2016 to April 30, 2016

4 months @ $815.00/month

Total = $3,260.00

For March 11, 2016 to December 31, 2016

8 Months @ $467.00/month

Total = $3,736.00

For January 1, 2017 to December 31, 2017

12 months @ $445.00/month

Total = $5,340.00

Total Spousal Support Payments = $12,336.00