Court File and Parties

Court File No.: FC-18-333 Date: 2018/08/14 Ontario Superior Court of Justice

Between: Drazenka Sanda, Applicant And: Sasa Sanda, Respondent

Counsel: Paul Fitzgerald, Counsel for the Applicant

Heard: June 26, 2018

Reasons for Judgment

Justice Engelking

[1] This is an uncontested trial on application by the Applicant, Ms. Sanda, requesting an order for equalization of the parties Net Family Property (NFP), an unequal division of the NFP, child support, spousal support, and an order transferring Mr. Sanda’s interest in the matrimonial home and the parties’ rental property to her in satisfaction of the equalization and Mr. Sanda’s support obligations.

[2] On April 17, 2017, Justice Summers found that Ms. Sanda’s application, financial statement and case conference notice had come to the attention of Mr. Sanda by emails dated February 23, 2018 and April 12, 2018, and ordered that service was completed pursuant to Rule 6(18) of the Family Law Rules. On June 1, 2018, Justice Shelston found that Mr. Sanda had not filed an answer or case conference brief and had not appeared in person. He noted Mr. Sanda in default, permitted Ms. Sanda to proceed by way of uncontested trial to be heard in June of 2018, and made a costs order against Mr. Sanda of $500 for the case conference.

[3] In support of the uncontested trial, Ms. Sanda filed a lengthy Affidavit for Uncontested Trial sworn on June 21, 2018, contained at Tab 7 of the Continuing Record. The Affidavit reveals the following:

• The parties were married on February 15, 1992 and separated on June 20, 2017. Mr. Sanda left the home on that date and did not return. From June 20, 2017 to February 16, 2018, he remained in Ottawa in a rental property;
• One child was born of the marriage, Stefan Sanda, born March 30, 2001. From June 20, 2017 to February 16, 2018, Stefan spent approximately equal time with each of his parents;
• As of February 16, 2017, Mr. Sanda left the country, most likely to join a woman in Belgium with whom he appears to have been in a relationship for some time. He returned briefly in May, at which time he seems to have fraudulently sold a vehicle owned jointly by the parties for $6000 and absconded with the proceeds of sale. He is likely back in Belgium at this time;
• The parties jointly own a matrimonial home at 1737 Jobin Crescent, Ottawa. The value of the home is approximately $420,000. It has a mortgage registered against in of approximately $200,160.96. The value of Mr. Sanda’s interest in the equity of the home is thus approximately $109,920;
• The parties also jointly own a condominium that is rented out at 1012-2000 Jasmine Crescent, Ottawa. The approximate value of that property is $130,000 and if currently has a mortgage registered against it of approximately $94,601. The value of Mr. Sanda’s interest in the equity of this property is approximately $17,699;
• On March 31, 2017, Mr. Sanda, with Ms. Sanda’s consent, increased the mortgage for the matrimonial home by adding $22,255.92 to it;
• On September 14, 2017, Mr. Sanda, with Ms. Sanda’s consent, increased the mortgage for the condominium by adding $28,300 to it;
• Uncertain as to why the family had debt such that increasing the mortgages on the properties was required, Ms. Sanda began to investigate and discovered that Mr. Sanda had been depleting the family’s resources by recreationally travelling in Europe (when she thought he was travelling for work) and transferring money directly to Europe, both of which were in furtherance of his relationship with the aforementioned woman in Belgium;
• In 2006, Ms. Sanda was diagnosed with Multiple Sclerosis (MS). She is followed by health care professionals and has been undergoing treatment since her diagnosis. Ms. Sanda is unable to work as a result of her condition, and receives LTD benefits and a CPP disability pension. Her combined annual income is approximately $27,000;
• Mr. Sanda works in the high-tech field. His income over the past three years, based on his T4 slips, was $99,530 in 2015, $121,080.49 in 2016 and $103,375.34 in 2017. Mr. Sanda was employed by Jaytom Systems Inc. until on or about February 15, 2018. He appears to have left his employment (having received what is likely a severance payment of $19,301.84 on January 31, 2018, which he promptly removed from the parties joint account), and, although he has most likely been living in Europe since February of 2018, was in receipt of EI from April 22, 2018 to at least May 26, 2018 at $479 per week.
• From the date of separation, Mr. Sanda has paid no child support for Stefan, nor any spousal support for Ms. Sanda.

Equalization

[4] Although Ms. Sanda has requested both an equalization of the NFP and an unequal division of same, she did not provide a comparative NFP statement to the court. In her financial statement sworn on February 14, 2018, Ms. Sanda estimates her own NFP to be valued at $192,946.01. Her counsel advised that he could not provide a comparative NFP statement because his client did not have any information as to Mr. Sanda’s property, debts and liabilities beyond those jointly held by the parties. Ms. Sanda ought, however, to have made best efforts to determine the valuation date values of same to assist the court in determining what equalization payment is owed, if any, given her claim for same.

[5] From the values contained in Ms. Sanda’s financial statement, I find her NFP at valuation date to be $192,946.01. This does not take into account the value of the parties’ vehicle, which Mr. Sanda sold, seemingly fraudulently on or about May 23, 2018 for $6000. Nor does is account for any outstanding loan on that vehicle. In her affidavit in support of uncontested trial, Ms. Sanda attested to the fact that there remain existing monthly loan payments of $159.91, but nowhere in her materials does she identify either the valuation date value or outstanding balance of that loan.

[6] The value of Mr. Sanda’s NFP, based again on the numbers in Ms. Sanda’s February 14, 2018 financial statement regarding jointly held assets and debts, is $146,485.36. Unlike Ms. Sanda’s calculation, however, this does not include any solely held bank accounts or RRSP’s of Mr. Sanda, as those are unknown to Ms. Sanda and to the court. It is more likely that Mr. Sanda’s NFP is similar to that of Ms. Sanda, and that there would be little to no equalization payment owing from one to the other. Under the circumstances, I cannot determine the value of an equalization payment, and I decline to make one.

[7] Ms. Sanda has, however, made an additional claim for an unequal division of the parties’ NFP pursuant to section 5(6) of the Family Law Act.

Unequal Division

[8] Ms. Sanda’s evidence, as set out in the bullet points above, is that Mr. Sanda had been recklessly depleting the family’s assets for some time. In her review of the parties’ joint bank account statements, Ms. Sanda identified $40,768.45 in unexplained transfers from their CIBC Line of Credit, $26,668.45 of which were direct transfers to Europe. She also identified an additional $6,189.69 in transfers from their CIBC chequing account to Europe in June and July of 2016 and May to August of 2017. Ms. Sanda also found $3,272.44 in transfers to Europe from their TD Canada Trust account in March and April of 2017. Mr. Sanda also used the parties’ TD Visa card to pay $11,562.77 in European or travel related charges in July, August and September of 2016 and March, April June and July of 2017.

[9] These are, of course, the debts which caused Mr. Sanda to increase the mortgages on the matrimonial home and condo in June and September of 2017 respectively. Ms. Sanda indicated in her affidavit that while she questioned what debts the parties would have, she trusted her husband of 25 years when he told her that the mortgages would need to be increased. Ms. Sanda’s one-half interest in the equity of the matrimonial home at 1737 Jobin Crescent, Ottawa is approximately $109,920, and her one-half interest in the equity of the condo property at 1012 – 2000 Jasmine Crescent, Ottawa is $17,699.50. But for the increases to their respective mortgages, Ms. Sanda’s interest in the equity in the matrimonial home would have been approximately $121,047.48 at the date of valuation, or $11,127.48 more than it now is. Her interest in the equity of the condo would have been approximately $31,849.50, or $14,150 more that it now is. To restore Ms. Sanda to the position she would have been in, but for these unexplained debts, she would need to receive an additional $25,277.48.

[10] In addition, according to Ms. Sanda’s sworn financial statement, on June 22, 2017, two days post-separation, Mr. Sanda withdrew $25,145.70 from the parties’ TD Canada Trust Line of Credit ending in 4781, the full amount for which he should be accountable. Mr. Sanda will be required to pay Ms. Sanda’s half of that debt, or an additional $12,572.85.

[11] Finally, Mr. Sanda sold the parties vehicle, a 2012 Hyundai Tuscon, likely by fraudulent means (forging her signature), for $6000 on May 23, 2018. Ms. Sanda is minimally entitled to $3000 from that transaction. Not having any information as to the outstanding value of the car loan, I am unable to determine that more ought to be paid to Ms. Sanda.

[12] Under the circumstances, I find that it would unconscionable to equalize the NFP (with no payment) without restoring Ms. Sanda to the position she would have been in at the valuation date, were it not for the bad faith actions of Mr. Sanda. It would be additionally unconscionable for Mr. Sanda to keep the entire proceeds of the sale of the family vehicle (particularly while there is a loan outstanding that he did not pay off), and for Ms. Sanda to have any responsibility for the June 22, 2017 withdrawal from the parties TD Canada Trust Line of Credit. I, therefore, order that pursuant to section 5(6) of the Family Law Act Mr. Sanda shall pay to Ms. Sanda $40, 850.33 in unequal division of the NFP.

Child Support

[13] Ms. Sanda seeks an order of table child support, both retroactive to the date of separation and on-going. However, her own evidence is that from the date of separation of June 20, 2017 to February 16, 2018, Stefan “was spending a near equal amount of his time in each of the Respondent and my homes.” Retroactive support, that is support from the date of separation to the date the application was made, would therefore be in a set-off amount. Mr. Sanda’s 2017 income was $103,375. Although Ms. Sanda’s evidence is that Mr. Sanda ceased working for Jaytom Systems Inc. in or about February of 2018, she is requesting that the court impute income to him of $103,375 or of $107,995, which is an average of his previous three years of income. Ms. Sanda has no information with respect to the circumstances of Mr. Sanda leaving Jaytom Systems, but she asserts that he is a very skilled worker in the high-tech sector and is clearly capable of making at least $103,375 per annum. The onus is, of course, on the person seeking to impute income to provide an evidentiary basis upon which to establish that the other party is intentionally unemployed or underemployed (see Drygala v. Pauli, 2002 CarswellOnt 3228 (C.A.)). I am satisfied that Ms. Sanda has done so in the circumstances. Mr. Sanda is a skilled worker who has demonstrated that he is capable of earning a substantial income; he has simply abandoned his responsibilities in this regard. I am prepared to impute an income to him of $103,375 for support purposes.

[14] Ms. Sanda’s income for support purposes is $27,599. Commencing July 1, 2017 and continuing through to November 30, 2017, Mr. Sanda ought to have been paying Ms. Sanda $905 per month is support of Stefan, and Ms. Sanda ought to have been paying Mr. Sanda $233 per month. Thus, Mr. Sanda would owe Ms. Sanda $682 per month for five months for a total of $3410. Commencing December 1, 2017 and continuing through to February, Mr. Sanda ought to have been paying Ms. Sanda $937 per month on the new Federal Child Support Guideline tables and Ms. Sanda ought to have been paying Mr. Sanda $230 per month. Thus, Mr. Sanda would owe Ms. Sanda $707 per month for three months for a total of $2121. Mr. Sanda owes Ms. Sanda a total of $5,531 for child support from July 1, 2017 to February 28, 2018.

[15] Commencing March 1, 2018, Mr. Sanda ought to be paying $937 per month to Ms. Sanda in support of Stefan. As of June 30, 2018, he will owe her $3,748 in child support for March, April, May and June of 2018.

[16] Stefan has one year of high school left, and Ms. Sanda anticipates that he will attend university as of September of 2019, in which case he will complete his undergraduate degree in May of 2022. Ms. Sanda thus seeks lump sum support for Stefan at $937 per month until May of 2022, which is 58 months from now, and would equal $54,346. This does not include Mr. Sanda’s obligation towards Stefan’s extraordinary and special expenses. I am prepared to order that this sum be granted and held in trust for Stefan as table support to May of 2022. In the event that Stefan does not enter or complete a four year university degree, whatever amount is not used for that purpose is to be returned to Mr. Sanda.

Spousal Support

[17] Ms. Sanda additionally seeks an order of spousal support from the date of separation onwards (thus both retroactive and ongoing). I do not have sufficient evidence before me to come to the conclusion that she is entitled to support on a compensatory basis, however, I am satisfied that Ms. Sanda is entitled to support on the basis of need. This is long marriage and Ms. Sanda has been dependent on Mr. Sanda since at least her diagnosis in 2006. She is currently in receipt of only LTD and CPP disability payments. Based on the expenditures identified in the parties’ joint accounts/lines of credit, Mr. Sanda clearly has a much higher standard of living than Ms. Sanda and Stefan. Ms. Sanda seeks mid-range SSAG support of $916 per month based on her income of $27,599 and Mr. Sanda’s income of $103,375 and I am prepared to grant it. Again, because her only way of ensuring receipt of support at this juncture is via a lump sum payment realized by the transfer of Mr. Sanda’s interest in the parties’ properties, a lump sum payment is what she seeks.

[18] I find that the duration of spousal support in this case would be indefinite based on the length of the marriage and Ms. Sanda’s medical diagnosis. She is entitled to a lump sum payment which take her to at least 65 years of age, which is twenty years from now. Twenty years of support at the mid-range would result in a lump sum payment of $219,840. After calculating the tax consequences for Mr. Sanda, Ms. Sanda would be entitled to a lump sum payment of $158,301.

[19] In the event that Stefan, for any reason, does not enter or complete a four year university program, and money for child support is being held in trust by Ms. Sanda to be returned to Mr. Sanda, it may first satisfy Mr. Sanda’s spousal support obligation.

Divorce

[20] Ms. Sanda seeks a Divorce. The court has now received her marriage certificate, and, based on the within arrangements for the support of Stefan, divorce is granted.

Order

[21] For all of the reasons given above, there shall be a final order as follows:

1. Divorce is granted;
2. The Respondent shall pay to the Applicant the sum of $40, 850.33 to equalize the parties’ NFP, payable forthwith;
3. Pursuant to Section 9 of the Family Law Act, the Applicant is authorized to sell one or both of 1737 Jobin Crescent, Ottawa, Ontario and Unit 1012 – 2000 Jasmine Crescent, Ontario to satisfy the equalization payment;
4. Commencing July 1, 2017, the Respondent shall pay to Applicant child support in the amount of $905 per month is support of Stefan Sanda, born March 30, 2001, representing Federal Child Support Guidelines table support for one child on an income of $103,375, and the Applicant shall pay to the Respondent $223 per month for the support of Stefan, representing Federal Child Support Guidelines table support for one child on an income of $27,599.
5. Commencing December 1, 2017, the Respondent shall pay to the Applicant $937 per month in support of Stefan, representing Federal Child Support Guidelines table support for one child on an income of $103,375, and the Applicant shall pay to Respondent $230 per month for the support of Stefan, representing Federal Child Support Guidelines table support for one child on an income of $27,599.
6. Arrears of child support from July 1, 2017 to January 31, 2018 are fixed at $4824.00;
7. Commencing February 1, 2018, the Respondent shall pay to the Applicant $937 per month in support of Stefan, representing Federal Child Support Guidelines table support for one child on an income of $103,375;
8. Arrears of child support from February 1, 2018 to June 30, 2018 are fixed at $4685;
9. The Respondent shall pay to the Applicant child support for Stefan in a lump sum payment of $54,346, representing 58 months of support at $937 per month, which sum will be held in trust by the Applicant for Stefan, or for the Respondent in the event that Stefan does not complete a four year university program;
10. The Respondent shall pay to the Applicant spousal support in a lump sum of $158,301, representing the midpoint between the Respondent’s after-tax cost and the Applicant’s after-tax benefit. In the event that Stefan does not enter or complete a four year university program, any remaining money held in trust by the Applicant for child support may be applied to satisfy the Respondent’s spousal support obligation prior to return to him;
11. Pursuant to section 34 of the Family Law Act, child support and spousal support under this order shall be payable from the Respondent’s interest in 1737 Jobin Crescent, Ottawa, Ontario and Unit 1012 – 2000 Jasmine Crescent, Ontario, and the Respondent’s interest in the properties is hereby transferred to the Applicant;
12. The Applicant shall be free to transfer, encumber, list for sale and sell or otherwise deal with the properties located at 1737 Jobin Crescent, Ottawa, Ontario and Unit 1012 – 2000 Jasmine Crescent, Ottawa, Ontario, without requiring the consent of the Respondent. This Order shall be good and sufficient authority to any lawyer or real estate agent retained by the Applicant to list, sell and/or transfer those properties in accordance with the Applicant’s instructions, without requiring the consent and/or signature of the Respondent;
13. For the purposes of enforcement, the outstanding child support pursuant to this order is $63,855 ($4824 arrears + $4685 arrears + $54,346 lump sum award). Outstanding spousal support pursuant to this order is the lump sum award of $158,301. The total outstanding support is $222,156, $86,768.67 of which is satisfied by the transfer of Respondent’s interest ($127,619 less the equalization payment of $40,850.33) in 1737 Jobin Crescent, Ottawa, Ontario, and Unit 1012 - 2000 Jasmine Crescent, Ottawa, Ontario, to the Applicant. To secure the outstanding child and spousal support of $135,387.33 not addressed by the Respondent’s remaining interest in 1737 Jobin Crescent, Ottawa, Ontario, and Unit 1012 - 2000 Jasmine Crescent, Ottawa, Ontario, the Applicant shall have a first charge against the Respondent’s estate;
14. The Respondent shall pay to the Applicant costs for these proceedings in the sum of $5000 payable forthwith;
15. Post-judgment interest on the amounts owed pursuant to this Order shall accrue at the rate of 3% per annum.
16. Unless the Order is withdrawn from the Director’s Office, is shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

Madam Justice Tracy Engelking Released: August 14, 2018