COURT FILE NO.: FS-14-80299-00

DATE: 2018 06 07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Afshin Farahpour

Self-Represented

Applicant

• and -

Hengameh Aghamirkarimi

Self-Represented

Respondent

REASONS FOR JUDGMENT

Bloom, J.

I. INTRODUCTION

[1] The parties were married in Canada on August 14, 2004. The sole issue before me is the application of s. 5 of the Family Law Act. The trial was commenced and conducted on that basis. While the Applicant and Respondent in oral argument attempted to raise other issues, I did not permit either to do so, because the trial had been conducted in the manner I have described.

[2] I should note that the Applicant has submitted that s.5(6) of the Family Law Act applies to increase the amount of the order he seeks.

[3] In oral argument the parties provided me with documents setting out their positions on the calculations to be made, as well as oral explanations justifying those positions. I intend to proceed in these reasons to address those positions based on the evidence adduced before me. Prior to doing so, I will make a finding of the valuation date based on the evidence adduced at trial.

[4] Before I commence that analysis I will set out the relevant provisions of the Family Law Act and related case law.

II. GOVERNING LEGAL PRINCIPLES

[5] The relevant provisions of the Family Law Act, R.S.O. 1990, c. F. 3 are set out below:

PART I FAMILY PROPERTY

Definitions

4 (1) In this Part,

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage; (“biens familiaux nets”)

“valuation date” means the earliest of the following dates:

1. The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

2. The date a divorce is granted.

3. The date the marriage is declared a nullity.

4. The date one of the spouses commences an application based on subsection 5 (3) (improvident depletion) that is subsequently granted.

5. The date before the date on which one of the spouses dies leaving the other spouse surviving. (“date d’évaluation”) R.S.O. 1990, c. F.3, s. 4 (1); 2006, c. 19, Sched. C, s. 1 (2); 2009, c. 11, s. 22 (1-4); 2009, c. 33, Sched. 2, s. 34 (1).

Net family property, liabilities

(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property. 2009, c. 33, Sched. 2, s. 34 (2).

Excluded property

(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

7. Unadjusted pensionable earnings under the Canada Pension Plan. R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).

Onus of proof re deductions and exclusions

(3) The onus of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it. R.S.O. 1990, c. F.3, s. 4 (3).

Close of business

(4) When this section requires that a value be calculated as of a given date, it shall be calculated as of close of business on that date. R.S.O. 1990, c. F.3, s. 4 (4).

Net family property not to be less than zero

(5) If a spouse’s net family property as calculated under subsections (1), (2) and (4) is less than zero, it shall be deemed to be equal to zero. R.S.O. 1990, c. F.3, s. 4 (5).

Equalization of net family properties

Divorce, etc.

5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).

Variation of share

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

Purpose

(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5 (7).

Application to court

7 (1) The court may, on the application of a spouse, former spouse or deceased spouse’s personal representative, determine any matter respecting the spouses’ entitlement under section 5. R.S.O. 1990, c. F.3, s. 7 (1).

Personal action; estates

(2) Entitlement under subsections 5 (1), (2) and (3) is personal as between the spouses but,

(a) an application based on subsection 5 (1) or (3) and commenced before a spouse’s death may be continued by or against the deceased spouse’s estate; and

(b) an application based on subsection 5 (2) may be made by or against a deceased spouse’s estate. R.S.O. 1990, c. F.3, s. 7 (2).

Limitation

(3) An application based on subsection 5 (1) or (2) shall not be brought after the earliest of,

(a) two years after the day the marriage is terminated by divorce or judgment of nullity;

(b) six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;

(c) six months after the first spouse’s death. R.S.O. 1990, c. F.3, s. 7 (3).

9 (1) In an application under section 7, the court may order,

(a) that one spouse pay to the other spouse the amount to which the court finds that spouse to be entitled under this Part;

(b) that security, including a charge on property, be given for the performance of an obligation imposed by the order;

(c) that, if necessary to avoid hardship, an amount referred to in clause (a) be paid in instalments during a period not exceeding ten years or that payment of all or part of the amount be delayed for a period not exceeding ten years; and

(d) that, if appropriate to satisfy an obligation imposed by the order,

(i) property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a term of years, or

(ii) any property be partitioned or sold. R.S.O. 1990, c. F.3, s. 9 (1); 2009, c. 11, s. 25.

Financial information, inspections

(2) The court may, at the time of making an order for instalment or delayed payments or on motion at a later time, order that the spouse who has the obligation to make payments shall,

(a) furnish the other spouse with specified financial information, which may include periodic financial statements; and

(b) permit inspections of specified property of the spouse by or on behalf of the other spouse, as the court directs. R.S.O. 1990, c. F.3, s. 9 (2).

Variation

(3) If the court is satisfied that there has been a material change in the circumstances of the spouse who has the obligation to make instalment or delayed payments, the court may, on motion, vary the order, but shall not vary the amount to which the court found the spouse to be entitled under this Part. R.S.O. 1990, c. F.3, s. 9 (3).

Ten-year period

(4) Subsections (3) and 2 (8) (extension of times) do not permit the postponement of payment beyond the ten-year period mentioned in clause (1) (c). R.S.O. 1990, c. F.3, s. 9 (4).

Presumptions

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

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

(b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). R.S.O. 1990, c. F.3, s. 14; 2005, c. 5, s. 27 (3).

Conflict of laws

15 The property rights of spouses arising out of the marital relationship are governed by the internal law of the place where both spouses had their last common habitual residence or, if there is no place where the spouses had a common habitual residence, by the law of Ontario. R.S.O. 1990, c. F.3, s. 15.

Application of Part

16 (1) This Part applies to property owned by spouses,

(a) whether they were married before or after the 1st day of March, 1986; and

(b) whether the property was acquired before or after that day. R.S.O. 1990, c. F.3, s. 16 (1).

Application of s. 14

(2) Section 14 applies whether the event giving rise to the presumption occurred before or after the 1st day of March, 1986. R.S.O. 1990, c. F.3, s. 16 (2).

[6] With respect to the application of the first alternative date in the defintion of “valuation date”, I rely upon the principles set out in Strobele v. Strobele, [2005] O.J. No. 6312 (Ont. Sup.Ct.) at paras. 28 to 32 where Justice D.L. Corbett states:

28 Section 4(1) of the Family Law Act defines the valuation date as follows, among other things:

The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.

29 As noted in the case of Newton v. Newton, 1995 17875 (ON SC), [1995] O.J. No. 519, [1995 CarswellOnt 84 (Ont. U.F.C.)], the principles for fixing a separation date under section 4(1) of the Family Law Act are not necessarily the same as those developed under the Divorce Act for living separate and apart. The goal under the FLA is to fix the date on which the economic partnership should fairly be terminated. The goal under the Divorce Act is to establish the date on which the parties may obtain a divorce. The definition in section 4(1) has two aspects: the date on which the spouses separate, and that there is no reasonable prospect that they will resume cohabitation. The structure of the section links the concepts of separation and cohabitation. These concepts, though assuredly related, are not interchangeable. Cohabitation implies conjugality, as that term is understood by the law. Separation requires more than living under separate roofs to encompass a cessation of the multi-levelled intricate relationship between couples. No one factor determines when the test has been met. The global question is, when was it that the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume?

30 Continuation of a relationship requires two people. Either can end the relationship without the consent of the other. As a matter of common sense, there will be many cases where one spouse knows that there will be no reconciliation and the other does not because the one has decided he or she does not wish to reconcile, but the other does not yet understand this. A fair determination of this issue requires that an objective eye be cast upon the unique circumstances of the couple. Thus it is that there are cases where couples are found to have met the test under section 4(1) even though they both continue to live in the matrimonial home: the cases of Oswell v. Oswell, 1990 6747 (ON SC), [1990] O.J. No. 1117, [1990 CarswellOnt 278 (Ont. H.C.)], Torosantucci v. Torosantucci, 1991 12851 (ON SC), [1991] O.J. No. 759, [1991 CarswellOnt 262 (Ont. U.F.C.)], Buller v. Buller, [1979] O.J. No. 4370, [1979 CarswellOnt 121 (Ont. Co. Ct.)], Anderson v. Anderson, [1994] O.J. No. 1915, [1994 CarswellOnt 438 (Ont. Gen. Div.)]. These cases cited above address the situation where the parties may be living under the same roof and yet are separated. In this case the parties ceased living together in April 1, 2002 and they never resumed cohabitation; and prior to that they were living under the same roof for some time, in next-door rooms on the same property. They never resumed cohabitation.

31 When was it that there was no reasonable prospect that they would resume cohabitation? In the language used in the case of Czepa v. Czepa, [1988] O.J. No. 1002, [1988 CarswellOnt 282 (Ont. H.C.)], when had the marriage irretrievably broken down so that the resumption of cohabitation is not reasonably foreseeable? In considering this question, it is helpful to keep in mind the purpose for which the question is being asked. It is to set the valuation date, the date at which the parties ceased being one kind of entity for financial purposes - a couple - and became another, a separated couple. Surely it is obvious that there is no one moment in time that can be fixed as the objectively true separation date. Rather the Court should determine the date on which it is fair that the parties no longer share the financial consequences of being married.

32 Where one spouse with the intention of ending the relationship transfers or dissipates assets, an early valuation date may be appropriate. Where one spouse has decided to terminate the relationship, but has not made this clear to the other spouse, then a valuation date that is later may be in order. However, the test is not purely subjective. Groundless hopes of reconciliation should not extend a valuation date where one spouse has been clear in his or her intentions to end the relationship. See the case of Evans v. Evans, [1988] O.J. No. 1587, [1988 CarswellOnt 292 (Ont. H.C.)].

[7] Regarding the onus of proof, in Sheikh v. Sheikh, 2005 14151 (ON SC), [2005] O.J. No. 1712 (Ont. Sup.Ct.) at paras. 109 and 110 Justice D. Gordon stated:

109 Section 8, Family Law Act, requires each party to serve and file a statement of property disclosing particulars of their property, debts and other liabilities as of the date of marriage and the valuation date. Rule 13(6), Family Law Rules, provides that a party must make full and frank disclosure in their financial statement, that is, disclose the existence of all assets and their true value.

110 The onus is on the party asserting a value to provide credible evidence in support: see, for example, Menage v. Menage (1987), 1987 5234 (ON SC), 8 R.F.L. (3d) 225 (U.F.C.). This, in my view, obliges a party to provide a realistic value for each asset, not a guess or fictional amount. When a value cannot be readily ascertained, or there is serious dispute, an independent valuation may be required, such as for a pension or a business: see, for example, Pennock v. Pennock (2000), 2000 22555 (ON SC), 4 R.F.L. (5th) 293 (S.C.J.); Dearing v. Dearing (1991), 1991 12812 (ON SC), 37 R.F.L. (3d) 102 (Gen. Div.); and Katz v. Katz (1989), 1989 8837 (ON SC), 21 R.F.L. (3d) 167 (U.F.C.). It necessarily follows, failure to provide credible evidence to support a value may result in a value being assigned which is less advantageous to the party claiming the asset.

[8] In Serra v. Serra, 2009 ONCA 105 at paras. 37 to 58 Justice R.A. Blair for the Court considered the principles which govern the application of s. 5(6) of the Family Law Act:

37 The steps to be taken when s. 5(6) is engaged are well-established. The court must first ascertain the net family property of each spouse, by determining and valuing the property each owned on the valuation date (subject to the deductions and exemptions set out in s. 4). Next, the court applies s. 5(1) and determines the equalization payment. Finally - and before making an order under s. 5(1) - the court must decide whether the equalization of net family properties would be unconscionable under s. 5(6), having regard to the factors listed in paragraphs 5(6)(a) through (h). See Rawluk v. Rawluk 1990 152 (SCC), [1990] 1 S.C.R. 70 at pp. 93-94; Berdette v. Berdette (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513 (C.A.), at pp. 525-526; Stone v. Stone (2001), 2001 24110 (ON CA), 55 O.R. (3d) 491, at para. 39; LeVan v. LeVan (2006), 2006 31020 (ON SC), 82 O.R. (3d) 1 (S.C.J.).

39 The scope of the exception in s. 5(6)…has been the subject of considerable controversy amongst family law professionals. This is perhaps because the exception appears to fly in the face of what is seen as the essential characteristic of present-day family law legislation in Ontario, namely, the promotion of certainty, predictability and finality in the determination of support obligations and property division and the removal of judicial discretion in those areas to the extent possible. The great concern - as Mr. Epstein fairly acknowledged during oral argument - is to dispel any interpretation of the Family Law Act that might suggest the courts are empowered to deal with the division of family property on the basis of "discretionary fairness." On this view, expanding the discretion in the hands of the judiciary in family law matters is anathema to Ontario's legislative scheme and the development of any trend in that direction would be worrisome.

40 In my opinion, however, the concern is overblown, especially on the facts of this case, and misses the distinction between factors that may legitimately be considered under s. 5(6) and a finding of unconscionability under that provision.

41 Whereas other provinces have chosen different mechanisms for giving effect to the policy underlying modern family law legislation⁷ - that is, the equal division of family property in recognition of equal contributions to marriage - Ontario deliberately chose a fixed valuation date approach. For most practical purposes, that date is the date of separation.⁸ There is no discretion in the court to vary the valuation date

47 In this regard, the threshold of "unconscionability" under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court": see Merklinger v. Merklinger (1992), 1992 7539 (ON SC), 11 O.R. (3d) 233 (Ont. Gen. Div.), aff'd (1996), 1996 642 (ON CA), 30 O.R. (3d) 575 (C.A.); Roseneck v. Gowling (2002), 2002 45128 (ON CA), 62 O.R. (3d) 789 (C.A.); McDonald v. McDonald (1988), 1988 8635 (ON SC), 11 R.F.L. (3d) 321 (Ont. S.C.); and LeVan (S.C.J.).

48 I note, for example, the following comments of Backhouse J. in LeVan, and of Jennings J. in Merklinger:

LeVan, at para. 258:

"Unconscionability" is a much more difficult test to meet than "fairness" and as a result, the courts have only minimal discretion to order anything other than an equal division of family property. Unconscionable conduct has been defined as, among other things, conduct that is harsh and shocking to the conscience, repugnant to anyone's sense of justice, or shocking to the conscience of the court. [Citations omitted].

Merklinger, at para. 54:

Section 5(6) of the Family Law Act, 1986 permits me to order an unequal allocation of value if to do otherwise would be unconscionable. The legislature deliberately chose to strictly define the severity of the result of the application of s. 5(1) which must pertain before there can be any judicial intervention. The result must be more than hardship, more than unfair, more than inequitable. There are not too many words left in common parlance that can be used to describe a result more severe than unconscionable. [Emphasis added].

51 Elmer E. Driedger first articulated what is now accepted as the guiding principle of modern statutory interpretation when he said:¹³

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

This principle has been adopted as the standard by the Supreme Court of Canada on numerous occasions. See, for example, Rizzo & Rizzo Shoes Ltd., Re, 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

52 The rationale behind the statutory direction in s. 5 of the Family Law Act that net family property is to be shared equally - with the rare exception provided in s. 5(6) - is set out in s. 5(7) of the Act:

The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). [Emphasis added.]

53 This rationale is affirmed in the preamble of the Act, which states:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children; [Emphasis added.]

54 There is a jurisprudential theme running through the cases to the effect that relief may only be granted under s. 5(6) where there has been fault-based conduct on the part of the asset-owning spouse, that is, that the word "unconscionable" embraces factors relating to "unconscionable conduct" only: see, for example, von Czieslik v. Ayuso (2007), 2007 ONCA 305, 86 O.R. (3d) 88 (C.A.); LeVan; and Merklinger. In von Czieslik, for instance, Lang J.A. noted in obiter, "the legislative restriction of s. 5(6)'s application to certain enumerated circumstances, none of which have to do with ownership, but all of which relate to fault-based conduct on the part of the other spouse" (at para. 29).

55 Respectfully, I do not think this proposition is correct. First, it is clear that not all of the enumerated circumstances in s. 5(6) relate to fault-based conduct on the part of a spouse. Three of them - 5(6)(a), (b) and (d) - do. Four of them - 5(6)(c), (e), (f) and (g) - do not. One - 5(6)(h), the general basket clause at issue here - may or may not arise in conduct-related circumstances. Accordingly, there is no basis for concluding that the general basket clause in the list must take its colour and meaning from a previous list of specific conduct-based factors and, therefore, that the "circumstances" referred to must themselves embody fault-based conduct. That is not the case.

56 Secondly, neither the purpose or object of the s. 5 equalization payment scheme, the s. 5(6) exception, nor of the Act itself call for such an interpretation. The design of the legislation is to promote the goals of certainty, predictability and finality in the resolution of property matters following the breakdown of marriage. This, in turn, is founded on the central premise articulated in s. 5(7) that "inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of [their joint] responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6)." (emphasis added)

57 Thus, to ensure adherence to the policy choices made by the Legislature, and reflected in s. 5(7) and the preamble of the Act, equalization of net family properties is the general rule. As with most rules, however, there are exceptions - in this case, the high-threshold unconscionability provisions of s. 5(6). This exception is expressly contemplated by the caveat "subject only to the equitable considerations set out in subsection (6)" set out in s. 5(7). Judicial discretion with respect to equalization payments is therefore severely restricted, by statutory design, but it is not eliminated altogether since there is discretion to order an unequal payment where "the court is of the opinion that equalizing the net family properties would be unconscionable": see, for example, Skrlj v. Skrlj (1986), 1986 6314 (ON SC), 2 R.F.L. (3d) 305 at p. 309 (Ont. S.C.).

58 There is no principled reason that I can see, given the language of the Act and its purpose or objects, to confine the word "unconscionable" in s. 5(6) only to circumstances arising from fault-based conduct on the part of one of the spouses. Although unconscionable conduct is obviously an appropriate consideration in determining whether equalizing the net family properties would be unconscionable, in my opinion the true target of the limited exception to the general rule is a situation that leads to an unconscionable result, whether that result flows from fault-based conduct or not.

[9] In Symmons v. Symmons, 2012 ONCA 747 at para. 36 the Court re-affirmed that analysis:

36 This court has stressed that the threshold of unconscionability under s. 5(6) is exceptionally high. A party seeking an unequal division must show that an equal division of net family property would "'shock the conscience of the court'": Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47. In this case, the equalization of net family property does not come close to meeting this standard.

III. ANALYSIS

[10] In my analysis I apply the governing principles I have set out above.

A. Credibility and Reliability

[11] The parties in their testimony demonstrated a high level of bitterness toward each other.

[12] Further, regarding the Applicant I note that in an affidavit of April 2, 2014 he stated that at the date of the marriage he owned three properties in Iran. In his Financial Statement of April 2, 2014 he stated that he owned $450,000.00 worth of properties on the date of the marriage. In cross-examination he stated that these statements were in error; that he had owned three properties in Iran worth approximately $450,000.00 but had sold them approximately 5 years before the marriage; and that the errors were probably the result of language issues between himself and the lawyer who represented him when the two documents were drafted.

[13] The Respondent testified in examination-in-chief that a sum of $15,559.70 deposited to the account of 7Lounge, a business she and the Applicant operated, was an HST refund. Later she testified in cross-examination that it could have been a refund of deposit monies which was not paid to real estate agents on the sale of the business.

[14] In view of these worrisome aspects of their evidence I am not satisfied that either party was credible or reliable when discussing financial matters without documentary confirmation.

B. Valuation Date

[15] In the case at bar the applicable definition of “valuation date” in the Family Law Act is “The date the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

[16] The Applicant argues that that date was February 9, 2014 when he arrived back in Mississauga from Iran. The Respondent argues that the date was April 4, 2014 when she was served by the Applicant with papers commencing family law proceedings against her.

[17] In determining this date I am applying the principles set out above to the evidence before me. In that regard, it is worth reiterating a passage from Strobele v. Strobele, supra; Justice Corbett states, “The global question is, when was it that the parties knew or, acting reasonably, ought to have known, that their relationship was over and would not resume?”

[18] Here I answer that question by accepting the Applicant’s date of February 9, 2014.

[19] I rely upon a number of facts in making that determination. I accept the Applicant’s evidence that he returned to the parties’ apartment in Mississauga from a trip to Iran on February 9, 2014 and found that no one was there; there were only some clothes. I accept further his evidence that 2 or 3 weeks later the police told him that the Respondent did not want to speak to him, and that he was to stay away from her. He then retained a lawyer to act for him in the matter.

[20] The Respondent testified that she had left the apartment to go to her brother’s home in Montreal to show her anger to her husband.

[21] However, the permanency of the split between the parties was demonstrated by the fact that she admitted that the Applicant had disconnected her cellular phone with the provider as soon as he reached the airport in Canada; she had cut off his access to their storage unit while he was in Iran; she did, indeed, complain to the police as stated by the Applicant; the Applicant never asked to speak to her when he telephoned her brother; and he never tried to contact her to resolve their conflict.

C. Value of Assets Owned by the Parties on Valuation Date

(i) Applicant’s Assets

[22] The parties agree that the Applicant owned a 2001 Honda Civic valued at $500.00; and an HSBC chequing account with a balance of $7,423.79.

[23] The two items in issue are the Respondent’s allegations that the Applicant had $55,000.00 in an unknown location which was a portion of the proceeds from the sale of a condominium unit that they co-owned in Iran; and $65,000 which he received from her father in January of 2014. The Applicant denies those allegations.

[24] With respect to the the $55,000.00 sum, according to documentary evidence tendered by the Applicant the sale of the unit occurred in January of 2010. There is no documentary evidence before me placing a sum of $55,000.00 from that sale in the hands of the Applicant on valuation day, over four years later. Accordingly, despite her oral evidence calling for a finding that the Applicant had this asset, I find that the Respondent has not discharged her onus to establish his ownership of this asset on valuation day.

[25] Regarding the $65,000.00 sum, the Respondent gave oral evidence that the Applicant received that money from her father at the end of January of 2014 in Iran; and that, while the Applicant was in Iran in February of 2014, she increased the mortgage on the property held in her name in Gatineau, Quebec to fund monies she used to pay her father back. There is some documentary evidence of 2 sums of $20,000.00 each coming out of an account in January and February of 2014 that could have been the result of an increase in the mortgage, but again the Respondent has not satisfied her onus to prove the $65,000.00 in the hands of the Applicant on valuation date.

(ii) Respondent’s Assets

[26] The Applicant alleged in his written materials provided in oral argument that the Responent owned a house in Gatineau, Quebec. He also orally made an allegation that he had in part paid for it.

[27] The Respondent testified that her father had ultimately provided her with the $10,000.00 used to fund the deposit and the $45,000.00 to fund the downpayment, when the house was purchased in February of 2007.

[28] She testified that she, without contribution from the Applicant, paid the mortgage payments, taxes, and maintenance costs on the property.

[29] There was differing evidence as to the value of the property. The Respondent provided her own affidavit evidence as to the price at which it was listed for sale, namely $280,000.00. She provided some oral evidence in that regard as well, being $260,000.00

[30] I am satisfied that she owned the property, and that it was worth $208,000.00 on valuation date. I rely upon the fact that the Applicant did not refer to any interest in that property on valuation date in his Financial Statement of April 2, 2014. The documentation from the forced sale, moreover, demonstrates a sale price of $208,000.00.

[31] The parties agree that the Respondent owned a 2005 Jeep Cherokee valued at $5,000.00 on valuation date.

[32] It is agreed that on valuation date she had $400.00 in an account she owned in the name of 7Lounge.

[33] With respect to her other bank accounts, there is dispute between the parties.

[34] I accept that she had $771.00 in her RBC chequing account based on a bank statement of February 6, 2014; she offered as against that evidence only an estimate of $ 500.

[35] I accept that she had $334.00 in her RBC savings account based on a bank statement of February, 2014; her estimate of $150.00 is unsupported by documents.

[36] I reject the Applicant’s contention that the Respondent had $35,000.00 from an RBC line of credit; there is no documentation supporting that contention. There is simply her affidavit evidence that she gave monies to her father to repay money he had provided to the Applicant.

[37] Finally, I accept that, based on a TD Bank statement as of February 10, 2014, the Respondent had $13,381.00 in her TD chequing account.

D. Value of Debts of the Parties on Valuation Date

(i) Applicant’s Debts

[38] It is agreed by the parties that the Applicant owed $558.20 on his HSBC Mastercard on valuation date.

[39] The Applicant alleged also that he owed the TD Bank the sum of $9,824.56. The only document he offered in support of this contention was a PRA Group Canada document which spoke as of December 12, 2017. I do not accept that the Applicant has discharged his onus to establish this debt; the sum could have been incurrred post-valuation date.

(ii) Respondent’s Debts

[40] The parties agree that she owed $75,000.00 under an RBC line of credit.

[41] According to her affidavit of May 6, 2014 she owed $95,000.00 on the mortgage on the Gatineau property as alleged by the Applicant, not $100,000.00 as she alleged. I accept the $95,000.00 figure.

[42] She produced no documentation to support allegations of a $2,000.00 estimate of what she owed on her American Express credit card and of a $500.00 estimate of what she owed on her Desjardins credit card. In the face of dispute respecting both allegations by the Applicant, I find that she has not discharged her onus to establish those debts.

[43] I do not allow her any amount in respect of the real estate commissions and fees for the sale of the Gatineau property as claimed by the Respondent. The sale took place after valuation date, and, therefore, these expenses are not allowable.

E. Value of Assets Owned by the Parties on the Date of the Marriage

(i) Applicant’s Assets

[44] It is agreed by the parties that the Applicant owned a one half interest in the condominium unit that they co-owned in Iran; and that the it was valued at $60,000.00

[45] They also agree that he owned a vehicle valued at $1,000.00.

[46] They disagree on the value of the furniture he owned. He alleges a value of $8,000.00; she alleges a value of $2,000.00 I accept the lower amount, given the fact that the Applicant has not discharged his onus to prove the larger sum.

[47] The parties agree that he owned a ring valued at $1,500.00.

[48] The Applicant alleges that he had $80,000.00 in savings from his salary from working at the Iranian Embassy in Ottawa. Faced with the denial of this contention by the Respondent, the Applicant relies on his oral evidence.

[49] I find that the Applicant has not discharged his onus to establish that sum, particularly since it does not appear in his financial statement of April 2, 2014.

(ii) Respondent’s Assets

[50] The parties agree that the Respondent owned a one half interest in the condominium unit in Iran that they co-owned; and that this interest was valued at $60,000.00

F. Value of Debts of the Parties on the Date of the Marriage

(i) Applicant’s Debts

[51] The parties agree that the Applicant had no debts on the date of the marriage.

(ii) Respondent’s Debts

[52] In their written materials neither party alleged that a debt was owed by the Respondent. However, in their oral evidence they agreed that she owed $9,000.00 in student loans; I accept that figure.

G. Calculation of Amount Under S. 5(1) of the Family Law Act

[53] Pursuant to s. 4(5) of the Family Law Act the Applicant’s net family property is zero.

[54] The Respondent’s net family property is $6,886.00.

[55] Based on s. 5(1) of the Family Law Act the Applicant would be entitled to a payment of $3,443.00 from the Respondent, unless under s. 5(6)(h) of the act the Applicant should be entitled to a larger amount.

[56] The Applicant argues that he is entitled to the application of that provision having regard to the Respondent’s increasing the mortgage on the Gatineau property by $40,000.00 while he was in Iran in early 2014, and to her taking more than the share she to which she was entitled on the 2013 sale of the 7Lounge business in which they engaged.

[57] I am not satisfied of the facts of either incident. The documentation to establish clearly the flow of the funds involved is not in the record. Further, the Applicant has not proven that an equal division of the difference in the net family property amounts would “shock the conscience of the court.”

[58] Accordingly, I order that the Respondent pay the Applicant the sum of $3,443.00.

IV. COSTS

[59] I will receive written submissions as to costs. They are to be no more than 4 pages, excluding a bill of costs. The Applicant will serve and file his submissions within 21 days from the release of these reasons. The Respondent will serve and file her submissions within 21 days from service of the Applicant’s submissions. There shall be no reply.

Bloom, J.

Released: June 7, 2018