Court File and Parties

COURT FILE NO.: FS-15-83434-00 DATE: 20180830

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

PAULINA BRIGHT KUDOM O. Owusu, for the Applicant

- and -

PATRICK KUDOM-INNOCENT J. Stanleigh, for the Respondent

HEARD: May 8, 9, 10, 11, 16, 18, 2018, at Brampton

REASONS FOR JUDGMENT

André J.

[1] The issues in this trial are whether Ms. Paulina Bright Kudom (“Ms. Kudom”) and Mr. Patrick Kudom-Innocent (“Mr. Innocent”) were married in Ghana, as Ms. Kudom maintains, and if so, the amount of spousal and child support payable by Mr. Innocent and equalization of net family property.

SUMMARY OF THE EVIDENCE

Ms. Kudom’s Evidence

[2] Ms. Kudom testified that she and Mr. Innocent were married on May 11, 1985, under the Akan Customary Law of Ghana.

[3] She was a 21-year-old student at the Bechem Business College in Ghana when her father paid a surprise visit to her. He told her that Mr. Innocent’s family had approached him and asked for her hand in marriage after seeing a picture of her. Ms. Kudom learned that Mr. Innocent, who then lived in Israel, had returned to Ghana to marry another woman, but upon his arrival found out that this person was involved in another relationship.

[4] Ms. Kudom returned to her village with her father and met Mr. Innocent. They subsequently met each other on several occasions. Mr. Innocent advised Ms. Kudom that he wanted her to return to Israel with him. He asked Ms. Kudom’s father for his daughter’s hand in marriage. Ms. Kudom’s father gave his permission for Ms. Kudom to travel with Mr. Innocent once the customary marriage rites had been performed.

[5] On May 11, 1985, Mr. Innocent arrived at Ms. Kudom’s village with a twenty-person entourage including his elder brother, sisters, a traditional sub-chief and some nieces and nephews. Accompanying Ms. Kudom were her father, brothers, sisters, uncle, aunts and other relatives.

[6] Mr. Innocent performed the customary marriage rights, which included a formal request to Ms. Kudom’s father for his daughter’s hand in marriage and a presentation of liquor, money and gifts to Ms. Kudom’s family. During the ceremony Ms. Kudom was asked if she agreed to be married to Mr. Innocent. She replied yes.

[7] Following the ceremony, the couple travelled to Accra to make travel arrangements. They remained there for two months before leaving for Israel on August 28, 1985. However, the couple was denied entry and returned to Cairo where they had stopped on their way to Israel.

[8] Mr. Innocent left Egypt nine months later and travelled to Canada where he successfully claimed refugee status. Three months later Mr. Innocent bought a travel ticket for Ms. Kudom to come to Canada. She arrived in Montreal on July 22, 1986.

[9] Upon Ms. Kudom’s arrival in Canada, Mr. Innocent commenced a spousal sponsorship application on behalf of Ms. Kudom. Canadian authorities issued her a Record of Landing on April 6, 1987, indicating that she had accompanied Mr. Innocent to Canada.

[10] The couple remained in Montreal until 1988, when they moved to Toronto. They lived in a number of apartments before purchasing a home in 1991. They had joint bank accounts and lived as man and wife until they separated in February 2012.

[11] According to Ms. Kudom the parties separated following an incident in February 2012 when their son Patrick was to be confirmed in the Roman Catholic Church. Mr. Innocent and Ms. Kudom had a big argument over who would be Patrick’s godmother. Mr. Innocent called Ms. Kudom a witch in front of their son Ryan and then tried to strike her. He then told her that she was on her own and went to Ghana three days later. Ms. Kudom then decided that thenceforth, the two would be separated even if they continued living under the same roof.

[12] Following separation, they resided in the matrimonial home until Mr. Innocent’s departure in 2015. Ms. Kudom left the home in November 2016. Mr. Innocent then renovated the home and has lived there ever since.

[13] The parties have three children, Stephanie Adjei-Kudom, born on August 18, 1989; Ryan Amosa-Kudom, born on August 7, 1993; and Patrick Kudom, born on June 19, 1998. Patrick is a full-time student. Ms. Kudom testified that at the request of her husband, she stayed home for ten years while caring for their three children.

[14] During the marriage, Mr. Innocent purchased three properties in Ghana which he now claims to have sold. Mr. Innocent has developed a relationship with an unknown woman named “Roman Barber” with whom he has travelled to U.S.A., Mexico and Panama for unknown reasons.

[15] Cracks in the marriage developed after Patrick was born in 1998. The woman Mr. Innocent had intended to marry in Ghana moved to Canada and Mr. Innocent began seeing her. This led to many arguments between Mr. Innocent and Ms. Kudom. The arguments increased to a point that Mr. Innocent assaulted Ms. Kudom. Mr. Kudom contacted the police on this occasion which resulted in Mr. Innocent being charged with assault in 2003. He was acquitted on the second occasion while the first charge was withdrawn after Ms. Kudom’s pastor apologized to her on Mr. Innocent’s behalf and told her she should not proceed with the charge.

Mr. Innocent’s Evidence

[16] Mr. Innocent categorically denied marrying Ms. Kudom in Ghana in 1985 or at any time. He returned to Ghana in 1985 not from Israel but from the United States of America where he had travelled after leaving Israel in May of that year. However, U.S. authorities detained him for one month before deporting him. He returned to Ghana.

[17] Upon arrival in Ghana, Ms. Kudom’s father, a distant cousin ten times removed from Mr. Innocent, approached him and asked him if Mr. Innocent could give his daughter “a good life”. Mr. Innocent agreed to do so. There was no discussion about what Mr. Innocent did for a living or about his financial resources. Mr. Innocent therefore took Ms. Kudom to Accra where he spent U.S. $3,000 to obtain the necessary travel documents for Ms. Kudom to travel with him.

[18] After receiving the documents the two travelled to Israel via Cairo, Egypt, but were denied entry into Israel. They returned to Cairo where they lived for approximately nine months. The two shared a bedroom during that time. Mr. Innocent went to Canada in 1986 and successfully sought refugee status. He arranged for Ms. Kudom to follow him but only to help her, not because they were married. After Ms. Kudom arrived in Canada, the two lived in Montreal until they moved to Toronto in 1988.

[19] Thereafter, they lived together until Mr. Innocent left the Brampton residence they shared in 2015. During this period, Mr. Innocent essentially lived on his own. He purchased a residence in Brampton on his own on October 26, 2001. He paid all the expenses without any help from Ms. Kudom. The two did not live as man and wife; they did not express love for each other; exchange gifts; attend functions together or do anything together. Ms. Kudom did not cook for Mr. Innocent or wash his clothes. The two never had a joint bank account. Mr. Innocent admitted that he purchased three properties in Ghana but insisted that he sold them years ago and that in any event, Ms. Kudom never made any financial contributions towards their purchase or upkeep. Mr. Innocent maintained that at no time during the thirty years he lived with Ms. Kudom, did he ever had a romantic relationship with Ms. Kudom. He only assisted Ms. Kudom because of her father’s request.

ANALYSIS

[20] This trial raises the following issues:

(1) Was there a valid marriage between Ms. Kudom and Mr. Innocent in accordance with the customary law in Ghana, which is recognized in Canada? (2) If not, was there a common law relationship between Ms. Kudom and Mr. Innocent such that Mr. Innocent is required to compensate Ms. Kudom for having been unjustly enriched during the relationship? (3) Should Ms. Kudom be granted sole custody of Patrick Kudom? (4) If Ms. Kudom and Mr. Innocent were lawfully married, should Mr. innocent be required to pay spousal and child support to Ms. Kudom? (5) Should an income be imputed to Mr. Innocent in excess of his declared income as a limousine driver? (6) Should there be an equalization of net family property?

Is there a valid marriage between Ms. Kudom and Mr. Innocent?

[21] Ms. Kudom bears the burden of proving, on a balance of probabilities, that she married Mr. Innocent in May 1985 in accordance with the customary law of Ghana. In meeting this burden, she has to prove that her version of events is more probable than not.

[22] I find that Ms. Kudom was a credible and reliable witness for the following reasons. She provided details of her initial meeting with Mr. Innocent and her credibility regarding her initial meeting and her marriage to Mr. Innocent was never seriously challenged. Her testimony was internally consistent in that her union with Mr. Innocent explained why she would have left the school where she was studying to travel with Mr. Innocent, first to Israel, then to Egypt and finally to Canada. Her testimony is corroborated by the fact that Mr. Innocent obtained a travel ticket for her to travel to Canada and the fact that he indicated to the Canadian Immigration authorities that she was his spouse. It was confirmed by the fact that the parties shared a bedroom for many years and have three children.

[23] Ms. Kudom’s evidence was also corroborated by Mr. Innocent’s own actions. He testified that he bought the Brampton house on his own, without Ms. Kudom. Ms. Kudom testified that when she returned to Canada in November 2001 from a trip from Ghana, Mr. Innocent told her he had purchased a home in Brampton.

[24] The documents regarding Mr. Innocent’s mortgage application to purchase this home were tendered as an exhibit. Ms. Kudom is noted on this document as Mr. Innocent’s spouse. Additionally, the following appears above Mr. Innocent’s name: “I am a spouse. The person consenting below is my spouse.” Mr. Innocent confirmed during the trial that he signed this document.

[25] Additionally, Ms. Kudom testified that she and Mr. Innocent opened a joint bank account into which Mr. Innocent deposited some of his earnings. Mr. Innocent disputes this and testified that he never opened a joint account with Ms. Kudom.

[26] And yet, a signature card from the Bank of Montreal (“BMO”) dated November 1990 has the signatures of both Mr. Innocent and Ms. Kudom. Carlos Paredes, the bank manager where the account was opened, testified that given that the BMO’s records are only kept for seven years, he could not obtain the bank records relating to this account. Under cross-examination however, he conceded that the signature card which had two signatures suggests that this was indeed a joint account of the two signatories.

[27] Additionally, photographs entered as exhibits in this trial corroborate Ms. Kudom’s testimony that she and Mr. Innocent presented themselves in Canada as husband and wife by attending public and private functions together. One photograph shows her dancing with Mr. Innocent at a function; another shows the two seated at a table with another couple; two photographs show the two at what appears to be a baptismal ceremony at a church; while another shows them in a residence with other well-dressed males. These photographs contradict Mr. Innocent’s testimony that he never socialized with Ms. Kudom or attended any functions with her.

Assessment of Mr. Innocent’s Testimony

[28] In my view, Mr. Innocent’s testimony is internally inconsistent, contradictory, self-serving and incapable of belief. I arrive at this conclusion for the following reasons.

[29] Mr. Innocent’s account of how he became involved with Ms. Kudom is simply ludicrous. He states that a very distant uncle, who turned out to be Ms. Kudom’s father, asked him to give his daughter a good life. Ms. Kudom’s father then took his daughter out of business school and sent her to an unknown future with Mr. Innocent, whom he hardly knew. Mr. Innocent then, out of the goodness of his heart, spent U.S. $3,000 to obtain travel documents for Ms. Kudom to travel with him to Israel. It simply makes no sense that Mr. Innocent would undertake the monumental task of giving Ms. Kudom a “good life” without having established a conjugal relationship with her. Furthermore, Mr. Innocent testified that he had six siblings. One would have thought that if he wanted to merely give someone a “good life”, he would have chosen one of his siblings to benefit from his generosity.

[30] Mr. Innocent’s actions confirm that he had indeed married Ms. Kudom. These include the following:

(1) His statement to the Canadian Immigration authorities that Ms. Kudom was his spouse; (2) His statement to the Bank of Montreal in 2000 when he applied for a mortgage that Ms. Kudom was his spouse; (3) The 1990 BMO statement signed by Ms. Kudom and Mr. Innocent clearly indicating that the two had at least one joint account; (4) His socializing with Ms. Kudom for some period after they migrated to Canada; and (5) The fact that for some period, the two parties shared a bedroom whether in Egypt, Montreal or Ontario.

[31] In my view, there is a major inconsistency in Mr. Innocent’s evidence that further causes me to reject his evidence regarding the nature of his relationship with Ms. Kudom. He testified that other than having sex with Ms. Kudom, he had no relationship with her. They did not socialize, utter terms of endearment to each other, enjoy meals together or anything of the kind. And yet he maintains that he separated from her in 2003. How could Mr. Innocent have separated from Ms. Kudom if there was no relationship between the two?

[32] The relationship between the parties clearly deteriorated sometime after Patrick was born. Whether this arose because of Mr. Innocent’s interaction with the woman he originally intended to marry, his association with the elusive Roman Barber, the alleged violence between Ms. Kudom and Mr. Innocent, or a combination of all three, is uncertain. Mr. Innocent, particularly after the police charged him with assaulting Ms. Kudom, took steps to keep Ms. Kudom in the dark about his activities and financial affairs. That however, does not alter the fact that he was a willing participant in a marriage ceremony in Ghana in which he and Ms. Kudom were the main participants.

[33] Mr. Innocent’s counsel however, relies on M.S.C. v. C.F.J., 2017 ONSC 2389, at para. 25, for the proposition that absent any evidence of Ghanaian customary law, there is no evidence that Mr. Innocent and Ms. Kudom were married in Ghana. He relies on the following passage in Ali v. Ahmad, [2002] O.J. No. 397, at paras. 8 – 11, quoted in M.S.C. v. C.F.J., at para. 25:

8 Both parties seek to rely on what each claims is the governing foreign law in Iraq. Neither adduced any evidence to prove this law as a fact. We have only their conflicting opinions as to what constitutes a valid marriage in that country.

9 Foreign law is a question of fact which must be specifically pleaded by the party seeking to rely upon it. A Canadian court cannot generally take judicial notice of foreign law (J.-G. Castel, Canadian Conflict of Laws, 3rd ed. (Markham: Butterworths, 1994) p. 147 ff.

10 What actually constitutes a legally valid marriage in the Iraqi Republic must be proved in court by properly qualified witnesses. Those witnesses need not be entitled to act as a legal practitioner in the foreign country in question. Any person whose occupation makes it necessary for him or her to have knowledge of the law of a foreign country may be a competent and qualified witness. The competence and qualification of the witness is a matter for the determination of the court. If uncontradicted, that evidence is usually accepted, unless obviously unreliable or extravagant (Castel, at p. 150-51). In the absence of such proof, the foreign law is assumed to the same as the lex fori (Castel, p. 155).

11 As neither party lead any evidence of the necessary requirements for a valid marriage in Iraq, the laws and legal requirements of Ontario govern their circumstances.

(emphasis added)

[34] M.S.C. v. C.F.J. is distinguishable on its facts from this case. It involves the marriage of a Canadian and American in Texas on April 8, 1995. The applicant was a born a female but later transitioned to a male in the 1980s. He changed his gender designation to male in government-signed documents. The applicant became aware in 1997 that the Texas legislature prohibited the issuance of marriage licences to persons of the same sex. In 1999, the Texas Court of Appeal in Littleton v. Prange held that a male-to-female transsexual remained legally a male. In 2003, Texas enacted legislation declaring a marriage or a civil union between persons of the same sex is contrary to the public policy of the State and therefore void (M.S.C., para. 10). M.S.C. therefore involved the validity of a marriage in the context of existing legislation and jurisprudence regarding same sex marriage in Texas.

[35] In this case, Mr. Innocent does not question the validity of customary marriage in Ghana; rather, he emphatically asserts that he did not participate in such a marriage. He denied there was a marriage of any kind between Ms. Kudom and himself. Unlike M.S.C., there are no conflicting opinions as to what constitutes a valid marriage in the place of the marriage.

[36] Furthermore, there is no uncertainty in this case, unlike M.S.C., about the validity of the customary law in Ghana as it pertains to marriage. In the case of Yaotey v. Quaye, {1961] G.L.R. 573, the Ghana High Court noted at p. 574 that “the essentials of a valid marriage” under customary law are:

(1) agreement by the parties to live together as man and wife; (2) consent of the family of the man that he should have the woman to his wife; that consent may be indicated by the man’s family acknowledging the woman as the wife of the man; (3) consent of the family of the woman that she should be joined in marriage to the man; that consent is indicated by the acceptance of drink from the man or his family, or merely by the family of the woman acknowledging the man as the husband of the woman; and (4) consummation of the marriage, i.e. that the man and the woman are living together in the sight of all the world as man and wife.”

[37] Mr. Innocent is also relying on the Ontario Court of Appeal’s decision in Debora v. Debora, [1999] 167 D.L.R. (4th) 759, for the proposition that there is no valid marriage between Ms. Kudom and himself.

[38] In Debora, the parties entered into a Jewish religious marriage on April 3, 1987. On July 20, 1994 they were married in a civil ceremony pursuant to the Marriage Act, R.S.O. 1990, c. M.3 which provides, under s. 4, that no marriage may be solemnized except under the authority of a licence issued pursuant to the Act. Following separation, the plaintiff initiated an action for an order that the definition of spouse under the Family Law Act applied to her following her initial marriage in April 1987 (at paras. 1-2).

[39] Before the 1987 marriage, the husband advised the plaintiff that in order to continue receiving his widower’s pension benefits, he did not wish to register their marriage pursuant to s. 4 of the Marriage Act. The plaintiff agreed to the plan relying on her husband’s representations that the absence of the licence would not alter the nature of the marriage and that their union would be the same as one for which a marriage licence had been obtained (at para. 3).

[40] In her appeal, the plaintiff relied on s. 1(1) of the Family Law Act, which at the time provided that:

“spouse” means either of a man and woman who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of the person asserting a right under this Act.

[41] The husband brought a motion for summary judgment before Walsh J. of the Ontario Court General Division who granted the motion. The plaintiff then appealed to the Court of Appeal.

[42] At paras. 5 and 6, the Court of Appeal framed the plaintiff’s argument as follows:

[5] The appellant relies upon the good faith provision in subparagraph (b) and frames the issue in its factum as follows:

a) The Learned Justice erred in determining that the good faith required by s. 1(1)(b) of the Family Law Act was the intention to comply with the Marriage Act, rather than the intention to comply with the Family Law Act, in the sense of assuming mutual rights and obligations under the Family Law Act of spousal support and equalization of family property as would arise from the legal and valid marriage that would have resulted had there been a marriage licence obtained.

[6] The appellant's argument is that the Family Law Act should be given a broad reading to assure a fair distribution of assets between the parties. On this approach if, as is alleged, the husband by his representations led the wife to the bona fide belief that she was for all purposes legally married, she should be entitled to rely upon that good faith in asserting a right under the Family Law Act.

[43] At para. 7 of Debora, the Court of Appeal quoted approvingly the following decision of Nasmith J. in Re Harris and Godkewitsch (1983), 41 O.R. (2d) 779 (Prov. Ct.), at p. 781 that:

To extend “spouse” under s. 1 to cover a person who has participated in a ceremony in Ontario which is quite clearly and deliberately outside the Marriage Act because it was “in good faith”, in the non-legal sense of religious and moral commitments, would be to invite much confusion and uncertainty.

[44] The Court of Appeal noted that the reasoning in Re Harris was adopted by Granger J. in Reaney v. Reaney (1990), 72 D.L.R. (4th) 532 (Ont. H. Ct. J.) and concluded, at para. 9, that:

Walsh J. followed these authorities in reaching his conclusion and I am satisfied that it was right for him to do so.

[45] In my view, Debora, Re Harris and Reaney stand for the proposition that for a marriage conducted in Ontario to be considered legal, it must comply with s. 4 of the Marriage Act. However, these cases are not applicable to the instant case, because Ms. Kudom and Mr. Innocent do not claim to have participated in a marriage ceremony in Ontario. Debora does not stand for the proposition that for a marriage conducted outside of Canada to be considered legal, the parties must obtain a licence under the Marriage Act or a document showing that the Canadian authorities accepted their marriage as being legally married. To that extent, the reasoning in Debora does not support a conclusion that the marriage between Ms. Kudom and Mr. Innocent is invalid.

[46] In what circumstances would a formal marriage be considered valid in Ontario? In Kanafani v. Abdalla, 2010 ONSC 3651, [2010] O.J. No. 2749, at para. 26, the court noted that:

In Ontario it is a settled rule of conflict of laws that the formal validity of a marriage is determined by the law of the place where the marriage was performed (lex loci celebrationis) or equivalently, the law of the place where the contract is executed (lex loci contractus).

[47] Furthermore, in Azam v. Jan, 2012 ABCA 197, at para. 18, the Alberta Court of Appeal quoted favourably Amy J. Kaufman in “Polygamous Marriages in Canada”, 2005 21 Can. J. Fam. L. 315, at 320:

The traditional conflict of laws approach to recognition of foreign marriages in Canada has two distinct aspects: the marriage must be both formally and essentially valid. To be formally valid, the formalities of the marriage must have conformed to the lex loci celebrationis, the law of the place of the marriage. To be essentially valid, each party must have had the capacity to marry under the law of his or her pre-nuptial domicile.

[48] What is the law of the place, i.e., lex loci celebrationis, where the marriage of the parties took place? Mr. Innocent’s counsel submits that there is no evidence regarding this law. However, Ms. Kudom testified that she was married in accordance with the requirements of customary law. She gave details of the marriage including the date and place, the persons who were present, what transpired during the ceremony, and the gifts presented to her family. There is jurisprudence which indicates the requirements of a valid marriage under Ghana customary law. Ms. Kudom, in my view, has established the validity of her marriage in Ghana.

[49] Furthermore, neither party lacked the capacity to marry in Ghana. There is no evidence that either party was already married without being divorced before May 1985 and even if they were, that this prior marriage deprived them of the capacity under their country’s laws to marry. Accordingly, I find that the marriage was valid.

[50] Mr. Innocent’s counsel submits that this court should give little credence to Ghanaian jurisprudence about the validity of a customary marriage under that country’s customary law.

[51] In my view, there is no valid reason why I cannot review the jurisprudence of the country where the marriage took place to gauge whether, based on the evidence that I accept, the marriage complied with the country’s customary law. In any event, the English Court of Appeal’s decision in McCabe v. McCabe, [1994] 1 F.L.R. 410, [1994] 1 F.C.R. 257 similarly held that the essential components of a valid marriage under Akan customary law are the consent of each party to the marriage, the consent of each family and consummation of the marriage by the cohabitation of the parties as husband and wife.

[52] Further guidance regarding the requirements of a customary marriage in Ghana emerges in the Immigration and Refugee Board of Canada’s Appeal Division’s decision in Amapali v. Canada (Minister of Public Safety & Emergency Preparedness). The Board noted at para. 33 that:

There is also no argument that the appellant’s February 1985 marriage to the applicant would be valid if it meets all of the requirements of a customary marriage. These are set out as,

• Agreement to marry;

• Permission of the bride’s parents;

• A drink and the pouring of libation to seal the agreement; and

• Paying of the bride price or dowry.

[53] I accept Ms. Kudom’s evidence that there was an agreement for her to marry Mr. Innocent; that her parents agreed to the marriage; that on May 11, 1985, Mr. Innocent’s family gave Ms. Kudom’s family alcohol to seal the agreement and paid them money. Accordingly, I find that Ms. Kudom has proven, on a balance of probabilities, that she married Mr. Innocent in accordance to her community’s customary law.

EQUALIZATION OF NET FAMILY PROPERTY

ISSUE NO. ONE: Quantum of Net Family Property

[54] Section 5(1) of the Family Law Act, R.S.O. 1990, c. F.3 provides that when “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 one-half the difference between them”.

[55] Section 5(6) of the Family Law Act further provides that “[t]he 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 circumstances relating to the acquisition, disposition, preservation, maintenance or improvement of property.”

[56] A determination of the net family property of each spouse involves the following steps:

(1) Determine what property each spouse owned on the valuation date. (2) Determine the property value after making any applicable deductions and exemptions under s. 4. (3) Determine if one spouse’s net family property is less than the other’s. If there is a difference in net family properties, s. 5(1) provides that the difference between the two shall be equalized by dividing it equally and half the difference shall be paid to the other spouse with the lower net family property. (4) The court must consider whether, given the considerations listed in s. 5(6), it would be unconscionable to equalize the net family properties, if not, the payments shall be made as described in step 3:

See Berdette v. Berdette (1991), 3 O.R. (3d) 513.

[57] For the purposes of this case, the valuation date, except for the matrimonial home, is the date when the parties separated with no reasonable prospect of reconciliation. I reject Mr. Innocent’s claims that there was no marriage and hence no separation. Ms. Kudom testified that the couple separated in February 2012 but continued to live in the matrimonial home. I accept her testimony that this date was the effective date of separation.

Matrimonial Home

[58] Mr. Innocent is the registered owner of the matrimonial home. In paragraph 59 of his Affidavit dated April 18, 2018, he deposes that realtors have advised him that the property is worth $575,000 in today’s market.

[59] Mr. Innocent did not provide a valuation report for the matrimonial home. In his evidence he included a letter from a real estate agent indicating that as of February 29, 2016, the house had a market value of $475,000. The letter cautioned however, that it is merely a statement of opinion rather than “a comprehensive appraisal”. Mr. Innocent’s failure to obtain a recent appraisal is puzzling given that he had no apparent difficulty providing written valuations for the properties he owned in Ghana.

[60] In my view, the value of the three bedroom detached matrimonial home in 2012 can conservatively be fixed at $450,000.

Other Property

[61] Mr. Innocent claims in his Net Family Property statement that the values of the property he owns in Ghana is $2,500, while that owned by Ms. Kudom is $3,500. With respect to other property he owned in Ghana, he deposes that the “two properties that were owned by me were sold to an arm’s length third party for a value of the property, which at the time was approximately $17,832”.

[62] Each party has provided written valuations of the property they own or owned in Ghana. Mr. Innocent’s valuations of the properties are as follows:

Property No. 149 Block E, Sector 2, Sunyani, valued at Ghanaian Cedis 295,000, or CAD $92,187.50.
Property No. 35, Block “F”, Sector 1, Sunyani, valued at Ghanaian Cedis 157,000 or CAD $49,062.50.
Property No. 10, Block “V”, Sector 8, Sunyani, valued at Ghanaian Cedis 85,000 or CAD $26,562.50.

These values are dated April 30, 2016.

[63] Ms. Kudom provides the following valuations for the properties the parties owned in Ghana:

Property at Sunyani West District, valued at Ghanaian Cedis 498,000 or CAD $155,625.
Property No. 149, Block E, Sector 2, Sunyani, valued at Ghanaian Cedis 342,000 or CAD $106,875.
Property No. 10, Block V, Sector 8, Sunyani, valued at Ghanaian Cedis 164,000 or CAD $151,250.
Property No. 12, Block V, Sector 8, Sunyani, valued at Ghanaian Cedis 128,000 or CAD $40,000.

[64] Mr. Innocent testified that he sold his three properties; one for CAD $8,000, the second for CAD $3,000, and the third for CAD $3,000. Ms. Kudom indicates in her Financial Statement dated April 5, 2018, that her dwelling home in Sunyani, Ghana, was valued at CAD $4,000 on the valuation date.

[65] There are a few problems with Mr. Innocent’s testimony regarding the properties he claimed to have sold. One of these properties was allegedly sold to his close friend, Frank Yeboah, for CAD $8,000. Ms. Kudom gave uncontradicted testimony that when she left the couple’s residence in November, 2016, she discovered a number of wire transfers of money which Mr. Innocent sent to Frank Yeboah.

Moneygram

[66] The following is a list of these transfers:

February 1, 2018 $1,513.25
July 3, 2011 673.40
April 15, 2012 2,000.00
September 21, 2012 380.25
December 24, 2012 3,680.92

Requisitions

[67] Ms. Kudom also tendered a Bank of Montreal Requisition from Mr. Innocent to the Standard Chartered Bank Ghana Ltd. dated September 14, 1991, for the payment of U.S. $3,000 to a Corporal Frank F.E. Yeboah in Accra, Ghana and another requisition dated December 30, 1991, to the same individual in the amount of U.S. $3,450. A third Requisition dated March 4, 1992 to Corporal Yeboah is in the amount of U.S. $3,250.

[68] Mr. Innocent testified that the Corporal Frank F.E. Yeboah to whom he wired money and the Frank Yeboah to whom he sold two of his Ghana properties, are two different persons. For the reasons provided below, I do not believe his testimony to that effect.

[69] It is rather strange that Mr. Innocent wired those large sums of money, amounting to over CAD $18,000, to a “Frank F.E. Yeboah” who happened to have the same name as Frank Yeboah, who Mr. Innocent claims, “purchased” one of his properties for $8,000 or $9,000. It makes no sense that Mr. Innocent, who testified that he had to borrow money from Ms. Barber, and to use his credit cards to meet his financial obligations, would sell this property for an amount significantly less than the appraised value.

[70] Mr. Innocent has also given contradictory evidence about Property No. 149, Block E. His valuation indicates that the value of this property at Ghanaian Cedi 295,000 or CAD $92,187.50. He testified during the trial that he sold this property to family friend Babra Aboagyeusa Bonsu, for CAD $3,000. He also made mention of this in his financial statement. However, Mr. Innocent filed a “Deed of Gift” dated May 30, 2012, upon which he claimed to have gifted the property to Ms. Bonsu. Asked about this discrepancy, Mr. Innocent replied that he had gifted the property to Ms. Bonsu and had not received any money for it.

[71] Similarly, Mr. Innocent filed an “Official Receipt” witnessed by two persons, in which he stated that he received “full payment” of Ghanaian Cedi 4,000 (approximately CAD $1,300) from Frank Yeboah for “Building Plot No. 12, Block “V”, Sector 8, situated at Fiapre”. However, Mr. Innocent testified that he sold that exact parcel of land to Mr. Yeboah for CAD $9,000. When confronted with this discrepancy, Mr. Innocent replied that the amount mentioned in the Official Receipt was an error and that the true amount received from Mr. Yeboah was CAD $9,000. Significantly, however, two individuals, one of whom is identified as “Reverend Father Ernest Fripong, “witnessed” Mr. Innocent and Mr. Yeboah sign the “Official Receipt” relating to the sale of that portion of land.

[72] It makes no sense that Mr. Innocent would sell one of his properties to his niece at what can only be described as a giveaway price. He claimed that he did so because she had already contributed $4,000 towards the construction of the home on one property. However, these properties were purchased for investment purposes and sold at a time when Mr. Innocent was experiencing significant financial difficulties.

[73] There is another piece of evidence that raises concerns about the veracity of Mr. Innocent’s testimony that he sold property to Mr. Yeboah. His bank records from his account in Ghana show that he continued receiving rental income from the property long after the purported sale to Mr. Yeboah. Mr. Innocent sought to explain this by stating that it takes approximately ten years to obtain a Certificate of Title in Ghana. He maintained that the rental income he received was sent to his niece who then forwarded it to Mr. Yeboah. Asked why he did not send the money directly to Mr. Yeboah, he replied that he wanted to have written confirmation that he had done so.

[74] In my view, Mr. Innocent’s explanation about the rental income makes no sense. He could have simply requested that his old tenant send the rental payments directly to Mr. Yeboah. He could also have wired the money directly to Mr. Yeboah just as he had done with the money he had wired to Mr. Yeboah through MoneyGram.

[75] I am therefore not persuaded, even on a balance of probabilities, that Mr. Innocent sold his properties in Ghana to his friend and to his niece. These are not arm’s length transactions, if indeed they are transactions. The properties in question are still owned by Mr. Innocent.

VALUATION OF GHANA PROPERTIES

[76] Both parties have given conflicting valuations of the properties owned by each other. I will fix a value which represents the difference between the two valuations for each property.

Ms. Kudom’s Ghana Property

[77] Ms. Kudom’s Ghana property is identified as Plot No. 140 Block “E” Sunyani (Central).

[78] Mr. Innocent’s valuation of this property is CAD $72,300. Ms. Kudom valued this property in her Financial Statement dated April 5, 2018 as $4,000 on the valuation date.

[79] In my view, Ms. Kudom has undervalued her Ghana property. Mr. Innocent deposed that this property is located in the central part of Sunyani and therefore is more valuable than the properties he owned. Although this property may not have the appraised value attributed to it, given the clear evidence of Mr. Innocent’s misrepresentations about his ownership of property in Ghana, I am prepared, for the purpose of equalization, to value this property at CAD $60,000.

Mr. Innocent’s Ghana Property

Property No. 149: Mr Innocent’s valuation is CAD $92,187.50, Ms. Kudom’s valuation is $106,875. Ascribed value is Cedi $99,531.25.
Property No. 10, Block V: Mr. Innocent’s valuation is $26,562.50, Ms. Kudom’s valuation is $51,250. Ascribed value is CAD $38,906.25.
Property at Sunyani West District: Mr. Innocent’s valuation is CAD $49,062.50, Ms. Kudom’s valuation is CAD $155,625. Ascribed value is CAD $100,000.
Property No. 12, Block V, Sector 8: This is a part of Property No. 10, Block V. Mr. Innocent did not give a separate valuation. Ms. Kudom’s valuation is CAD $40,000. Ascribed value is CAD $30,000.

[80] Mr. Innocent indicated in his Net Family Property Statement dated October 24, 2017, that Ms. Kudom’s property in Ghana is valued at $3,500. Ms. Kudom’s statement dated April 5, 2018, places a value on her Sunyani West District property at $100,000 as of May 2009. This property must have appreciated in value since then. For the purpose of ascertaining Ms. Kudom’s net family property, the value of her Ghana property will be set at $130,000.

GENERAL HOUSEHOLD GOODS & VEHICLES

Taxi Licence

[81] Mr. Innocent obtained a licence to operate a taxi service in Toronto on or about 2002. He testified that the licence was worth approximately $150,000 some years ago but since the advent of UBER, the licence has no value.

[82] I do not accept Mr. Innocent’s testimony that the taxi licence he owns has no value. He continues to earn a living as a taxi operator. There is no evidence that his income has steadily declined in recent years. Furthermore, he placed a value of $25,000 on the licence in his Financial Statement dated April 13, 2018.

[83] In my view, the value of the licence should conservatively be estimated at $50,000. This amount should be included in the calculation of Mr. Innocent’s net family property.

Furniture

[84] Mr. Innocent fixes his share of the value of the furniture at $500 and Ms. Kudom’s share at $250. Ms. Kudom, on the other hand, estimates her share to be $600 while that of Mr. Innocent to be $5,000.

[85] Ms. Kudom’s valuation of Mr. Innocent’s ownership of furniture is based on the fact that he retained the dining room table, bed, mattress, wall unit and sofa. This may well have been the value of these items in 2009, but the value would have significantly decreased between 2009 and 2012. The value of the furniture retained by Ms. Kudom is fixed at $300 while that retained by Mr. Innocent is fixed at $2,500.

Vehicles

[86] Ms. Kudom owns a 2004 Nissan Maxima while Mr. Innocent owns a Toyota van. Mr. Innocent indicated in his Net Property Statement that the van is presently valued at $3,500 while the car is valued at $1,000. Both vehicles would have been worth much more on the separation date in 2012.

[87] Ms. Kudom values the two vehicles as of 2009 as $13,000 for the car and $22,500 for the van. The vehicles would have been worth much less three years later.

[88] For the purposes of calculating the net family property, the value of Ms. Kudom’s car is set at $3,000 while that of Mr. Innocent’s van is set at $6,000.

Electronics

[89] Mr. Innocent did not place any value on these items. Ms. Kudom places a value of $500 on the TV sets she owned and one of $5,800 on the sound system and treadmill owned by Mr. Innocent.

[90] The value of these items would have significantly decreased over time. Additionally, it appears that the value which Ms. Kudom has placed on the items owned by Mr. Innocent is very high.

[91] For these reasons, I value the TV sets owned by Ms. Kudom at $250 while the sound system and treadmill owned by Mr. Innocent at $1,500.

Bank Accounts

[92] Ms. Kudom indicates in her Financial Statement that she had the following account balances on the valuation date:

BMO Chequing Account $3,000.00 BMO Savings Account 0.00 RBC Chequing Account 50.00 Alterna Savings Account 40.00 Total: $3,090.00

[93] Mr. Innocent indicates in his Net Property Statement that he had a balance of $22,347 in his bank account on April 13, 2018. Given Mr. Innocent claims that he has had to pay significant expenses and has had to “max out” his credit cards, I am surprised that Mr. Innocent has succeeded in amassing that amount of savings. It is reasonable to assume that the amount of savings given the debts he claimed to have had, would have been less in 2012 than in 2018. However, he claimed that he sold his Ghana properties in 2012 and if so, came into a significant amount of money. I am unable to assess the amount of money he had in his savings account in 2012. I will therefore assess this amount as $20,000, while Ms. Kudom’s savings will be noted to have been $3,090 on valuation date.

Life and Disability Insurance

[94] Ms. Kudom claims that the Manulife Term Life Insurance has no cash surrender value. Mr. Innocent indicates that the value of his Manulife Insurance as of April 13, 2018 was $12,000.

[95] The value of Mr. Innocent’s insurance would have been less in 2012 than in 2018. I am prepared to estimate that the 2012 value would have been approximately $8,000 on the valuation date.

Value of Debts and Liabilities on Valuation Date

[96] Ms. Kudom claims the following debts on valuation date:

MBNA Visa $3,000 CIBC Visa 2,000 HBC 1,000 Student Loan 6,000 Credit Card (Walmart) 0.00 Total: $12,000

[97] Mr. Innocent claims the following debts in April 2018:

Amex and Mastercard $7,298 CRA 62,000 Visa 20,144 TD Line of Credit 21,408 Accountant 10,000 Mortgage 243,900 Debt to Helen Romandale [1] 110,000 Home Depot Debt 4,316

[98] Mr. Innocent presented no documentation confirming that he owes Ms. Romandale $110,000. I am very skeptical about this debt given that one would reasonably expect that there would be written proof that Mr. Innocent owes such a sizable amount to one individual. Similarly, Mr. Innocent provided no written proof that he owes his accountant $10,000. For these reasons, Mr. Innocent will not be allowed to claim these debts on the calculation of his net family property.

[99] Regarding his Canada Revenue Agency (CRA) debt of $62,000, Mr. Innocent testified that he incurred this debt following the starting of a taxi company in 2002 called Express Ambassador Taxi. He and 9 others set up the business which failed. Mr. Innocent testified that the other investors left the company leaving him responsible for payment of a huge debt to CRA.

[100] There is no evidence contradicting Mr. Innocent’s version of events concerning this debt. Accordingly, the amount claimed will be deducted from his assets in the determination of his net family property.

[101] Mr. Innocent clearly had a mortgage debt on the date of separation. This amount presumably exceeded the $243,000 he claimed he owed on that debt in April 2018. He deposed that he re-mortgaged the matrimonial home on July 16, 2008 in the amount of $325,000. I am prepared to estimate this mortgage debt to be approximately $300,000 on the date of separation.

[102] With respect to Mr. Innocent’s credit card and line of credit debts, there is no evidence that they existed in 2012. Indeed, they are likely related to Mr. Innocent’s lifestyle including the renovations made to the matrimonial home. Even if some of these debts existed in 2012, it appears that they were likely incurred by Mr. Innocent when he sent money by Moneygram to Mr. Yeboah. The three money transfers he sent to Mr. Yeboah in April, September and December 2012 amount to approximately $6,000. Mr. Innocent’s property owned on the date of separation should not be reduced by this amount given that it was incurred by Mr. Innocent to add value to his Ghana-owned properties.

[103] Ms. Kudom’s total debts on the valuation date is $12,000. Mr. Innocent’s total debt on the valuation date is $362,000 (i.e. $300,000 mortgage debt and $62,000 CRA debt).

NET FAMILY PROPERTY

	Mr. Innocent	Ms. Kudom
Matrimonial Home	450,000.00
Ghana Properties	268,434.50	60,000.00
Taxi Licence	50,000.00
Vehicles	6,000.00	3,000.00
Electronics	1,500.00	250.00
Savings	20,000.00	3,090.00
Insurance	8,000.00
Furniture	2,500.00	300.00
TOTAL: Value of Property	806,434.50	66,640.00
Debts
CRA debt	62,000.00
Credit cards/Student Loans		12,000.00
Mortgage	300,000.00
TOTAL: Value of Debts and Liabilities	362,000.00	12,000.00
NET VALUE OF PROPERTY OWNED ON VALUATION DATE	444,434.50	54,640.00
Date of Marriage (DM) May 1, 1985
NET VALUE OF PROPERTY AND DEBTS ON DM	n/a	n/a
Jewellery	n/a	n/a
Cash	n/a	n/a
VALUE OF PROPERTY OWNED ON DM
TOTAL VALUE OF DEBTS AND LIABILITIES ON DM
Debts and other Liabilities
TOTAL: VALUE OF DEBTS AND LIABILITIES	362,000.00	12,000.00
EXCLUDED PROPERTY	0.00	0.00
NET VALUE OF PROPERTY OWNED ON DM	0.00	0.00
TOTAL: VD AND DM	444,434.50	54,640.00
NET VALUE OF PROPERTY OWNED ON THE VD	444,434.50	54,640.00
NET VALUE OF PROPERTY OWNED ON THE DM	0.00	0.00
NET FAMILY PROPERTY	444,434.50	54,640.00
EQUALIZATION	194,897.25

ISSUE NO. TWO: Should Mr. Innocent receive more than half of the difference between the net family properties?

[104] Section 5(6) of the Family Law Act, R.S.O. 1990, c. F.3 sets out the factors to be considered in deciding whether equalizing the net family properties would be unconscionable.

[105] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d), at para. 47, the Ontario Court of Appeal noted that the threshold of “unconscionability” under s. 5(6) is exceptionally high and that circumstances which are merely “unfair”, “harsh” or “unjust” alone do not meet the test. The court further noted that to meet the threshold of unconscionability, the circumstances must “shock the conscience of the court”. See also Belton v. Belton, 2010 ONSC 2400, at para. 18; MacDonald v. MacDonald (1997), O.J. No. 4250 (Ont. C.A.), 33 R.F.L. (4th) 75, at para. 17.

[106] Although Mr. Innocent has not specifically pleaded “unconscionability” in his materials, his claim for what is, in effect, an unequal division, is based on subsections 5(6)(b), (d) and (h) of the FLA.

[107] Mr. Innocent maintains that equalizing the net family properties would be unconscionable having regard to the fact that he bore all the expenses relating to the purchase and upkeep of the matrimonial home and the $70,000 cost of renovating the home in 2017.

[108] There is no dispute that Mr. Innocent paid virtually all the expenses associated with the matrimonial home. However, he benefitted from living rent free at the home from 2012 to 2015. Additionally, the $70,000 he claimed to have spent renovating the house appears to have been by a desire to live in the home rather than to prepare it for sale, as he agreed to do in June 2016. Indeed, he testified that he renovated the home in order to live in it; rather than to sell it.

[109] An endorsement by Tzimas J. dated June 30, 2016, indicates that:

Parties agree that the matrimonial home shall be put up for sale and will work towards a timetable. There is agreement that the applicant may have 90 days from today’s date to locate alternative accommodations.

[110] Mr. Innocent reneged on this agreement. He testified that he unilaterally decided not to sell the home.

[111] Mr. Innocent also sought to justify the cost of renovations by testifying that Ms. Kudom left the house in a deplorable condition in November 2016. However, invoices submitted by the contractor regarding the work done indicates that the upgrades made to the home were more than what was required to make the home habitable. These include:

Hardwood and laminate oak flooring throughout the home;
Replacement of popcorn ceiling;
Replacement of vanity and countertops;
A $6,000 renovation of the main bathroom;
LED pot lights in many areas of the home;
A $15,240 renovation of the kitchen with new cabinets, sink, under cabinet lighting and six pot lights;
Replacement of all baseboards; and
Three new chandeliers.

[112] It would be unconscionable for Ms. Kudom to bear some responsibility for these upgrades. In any event, Mr. Innocent has lived in the house rent free from April 2017 to the present. He has therefore derived a considerable benefit from living in the home, contrary to the agreement he made with Ms. Kudom on June 2016 to sell the home.

ISSUE NO. THREE: Is Ms. Kudom entitled to receive spousal support from Mr. Innocent?

[113] Subsection 15.2(4) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (the “Act”) sets out the factors to be considered in determining spousal support while s. 15.2(6) outlines the purposes for such an order. In determining whether or not a spouse should be granted spousal support, the court shall consider all the factors enumerated in s. 15.2(4), in addition to the objectives of such support set out in s. 15.2(6).

[114] Subsection 15.2(4) provides that:

In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

[115] Any support order should meet the following objectives set out in s. 15.2(6):

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[116] There are three conceptual bases for entitlement of spousal support: (1) compensatory; (2) contractual, and (3) non-compensatory. “[S]pouses should be compensated on marriage breakdown for losses and hardships caused by the marriage.” See Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 49.

[117] Mr. Innocent and Ms. Kudom were married in May, 1985 and separated in February 2012. They lived together for 27 years.

[118] During the marriage, Mr. Innocent initially worked as a welder then as a limousine driver, which required him to be away from the home for significant periods. Ms. Kudom initially worked, but with the arrival of the children, Mr. Innocent asked her to remain at home to care for the children. Mr. Innocent confirmed that he asked Ms. Kudom to do this but maintained that she only stayed home for six years. Ms. Kudom however, testified that she remained at home for ten years while singlehandedly caring for the couple’s children.

[119] Ms. Kudom also testified that she wanted to enroll in a Registered Practical Nurse (“RPN”) program but Mr. Innocent prevented her from doing so on the ground that it would be disrespectful to him if, as an RPN, she earned more than he did. Mr. Innocent did not deny this but insisted that Ms. Kudom did not contribute anything while they lived under the same roof.

[120] I reject Mr. Innocent’s claim that Ms. Kudom did not contribute anything while they lived together. He was able to go out and earn a living as a limousine driver only because Ms. Kudom bore the responsibility of nurturing and caring for the three children. She fed them, washed their clothes, ensured that they attended school, cleaned the house and gave them a warm comfortable environment where they could live. She was able to do this after giving up her employment. Furthermore, she was not able to pursue a career in the nursing profession because of Mr. Innocent’s insecurity and belief that his wife should not be the major breadwinner in the home.

[121] Mr. Innocent testified that Ms. Kudom never washed his clothes, cooked for him or did anything for him. That is not surprising given that Mr. Innocent made every effort to keep Ms. Kudom in the dark about his finances, his relationship with Ms. Romandale and his investments in Ghana. He seemed to have developed an aversion to Ms. Kudom’s cooking either after he was charged with assaulting her in 2003 or after he developed a special relationship with Ms. Romandale.

[122] Ms. Kudom presently earns approximately $32,000 annually. Her income in 2014 was $32,399. Since November, 2016 she has lived in a rental accommodation with her three children. She pays a monthly rent of $1,600. Mr. Innocent continues to live in the matrimonial home, which he significantly renovated in 2017.

[123] Mr. Innocent maintains that Ms. Kudom was not economically disadvantaged because she earned an income in a company which sold clothing to Ghana. Ms. Kudom confirmed this but testified that she went to Ghana to sell shoes which had been purchased by Mr. Innocent for $24,000. However, she discovered in Ghana that the shoes were incorrectly sized. As a result, Mr. Innocent lost much of his investment in that venture.

[124] As noted at para. 49 in Bracklow, spouses should be compensated on marriage breakdown for losses and hardships caused by the marriage. In my view, Ms. Kudom is entitled to spousal support both on a compensatory and non-compensatory basis. She gave up her job to look after the children of the marriage. She was discouraged from pursuing a career which could have enhanced her earning capacity. She lives in rental accommodation and earns a modest income. Meanwhile, Mr. Innocent enjoys the comfort of the matrimonial home which he upgraded following Ms. Kudom’s departure, with fixtures such as hardwood flooring, pot lights and at least three chandeliers.

Should an income of $91,000 be imputed to Mr. Innocent?

[125] Mr. Innocent’s 2016 Income Tax and Benefit Return indicates that his 2015 business income was $25,704.42. He claimed business expenses of $19,278.80, leaving a net income of $6,425.62. The Income Tax Assessment indicated that Mr. Innocent’s total income for 2015 was $9,894. Mr. Innocent’s 2014 Notice of Assessment indicates that his net annual income was $32,713.

[126] I am skeptical about Mr. Innocent’s statements regarding his net annual income for a few reasons. He has shown a tendency to under-report his income and to exaggerate his expenses. For example, his Financial Statement dated October 24, 2017, indicates that he has no property in Ghana. He testified that he owes Ms. Romandale $250,000 but she has only asked him to repay $110,000. He also testified that Ms. Romandale loaned him the $68,000 he spent renovating his home between January and April, 2017, and yet in his sworn Financial Statement, there is no mention of this loan. He also testified that for the last six years, he has annually incurred $60,000 debt, or a total of $360,000. There is no indication of this debt in his Financial Statement.

[127] Mr. Innocent also indicated in his Financial Statement that his taxi licence was valued at $30,000. However, he testified that the licence was worth approximately $150,000 in the 1990s but had significantly decreased in value because of UBER. Additionally, there is no mention of his ownership of the Brampton home where he and Ms. Kudom lived from 2000 to 2015.

[128] I therefore cannot rely on Mr. Innocent’s testimony regarding his net income. In my view, his income significantly exceeds the approximately $6,584.92 that he claimed as his 2016 net income.

What is the statutory justification for the imputation of income to a spouse?

[129] Section 19 of the Child Support Guidelines, O.Reg. 391/97 provides that:

(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;

(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;

[130] In Sobiegraj v. Sobiegraj, 2014 ONSC 2030, the court noted at paras. 50 and 51 that:

Although s. 19 speaks to child support, the section has been applied on a number of occasions to impute income for spousal support purposes: see Rilli v. Rilli, [2006] O.J. No. 2142 (S.C.J.), Perino v. Perino, and Smith v. Smith, 2012 ONSC 1116.

As suggested by Mr. Allan, the criteria set out in s. 19 are not exhaustive. The section specifically states that imputation of income may be grounded upon certain criteria, including those set out in the subsections following. For example, in the present case, there is an allegation of cash income which does not easily fall inside the subsections to s. 19; that is an issue of fact.

[131] The court in Sobiegraj also noted at para. 64 that “while it is incumbent on the party seeking to impute income to provide some sort of evidentiary basis for imputation of income, the evidence regarding income remains largely in the hands of the putative support payor”.

[132] Applying these principles to this case, I have two concerns regarding Mr. Innocent’s declared income. Under cross-examination, he testified that he made daily notes concerning his fares and was therefore able to determine his income. These notes were never disclosed despite a court order requiring Mr. Innocent to make full financial disclosure including a statement of business expenses for the last three years. Second, one would expect that Mr. Innocent used his vehicle for both business and private use. However, his income does not reflect this benefit. Similarly, certain expenses, including telephone and internet, may well have a personal use component and a business use component. This benefit is not reflected in the net income claimed by Mr. Innocent.

[133] In my view, the following factors justify an imputation of income to Mr. Innocent in the amount of $50,000:

He has failed to provide disclosure of all income information as requested;
His electronic transfers of cash to Ghana are disproportionate to the income he claimed he earned; and
The debts he claimed he owes to Roman Barber is not reflected in his Financial Statement sworn on April 5, 2018, neither is the $300,000 debt he claimed to have incurred over the past five years.

Should Mr. Innocent pay child support to Ms. Kudom?

[134] Mr. Innocent does not dispute that he should pay table child support to Ms. Kudom for Patrick Kudom.

[135] An assessment of spousal support and child support payable by Mr. Innocent to Ms. Kudom on MysupportCalculator.ca, based on an income of $50,000 imputed to Mr. Innocent and Ms. Kudom’s annual income of $32,000, has produced the following results:

LOW RANGE Monthly child support payable is $461 Monthly spousal support payable is $0
MID-RANGE Monthly child support payable is $461 Monthly spousal support payable is $112
HIGH RANGE Monthly child support payable is $461 Monthly spousal support payable is $308

[136] In my view, the mid-range amount of child and spousal support is applicable in this case. Accordingly, Mr. Innocent should pay Ms. Kudom monthly child support in the amount of $461 retroactive to March 1, 2012 and monthly spousal support in the amount of $112 retroactive to the same date. Mr. Innocent will receive credit for the child support he has paid to Ms. Kudom. He testified that he has paid Ms. Kudom $300 monthly in child support but it is unclear how long he has paid this amount to her.

Retroactive Spousal Support

[137] The amount of retroactive spousal support owed by Mr. Innocent to Ms. Kudom to the end of August 31, 2018 is $8,736 (i.e. 78 months @ $112 per month).

Should Ms. Kudom have sole custody of Patrick Kudom?

[138] Patrick has lived with his mother since he was born. He moved out of the matrimonial home with her in November 2016. He attends school full time. There is no evidence that he wishes to reside with Mr. Innocent although Patrick has received some financial assistance from Mr. Innocent. However, Patrick is now an adult and is therefore capable of deciding where he resides.

[139] However, as long as Patrick resides with Ms. Kudom and is enrolled in school fulltime, Mr. Innocent is required to pay child support to Ms. Kudom.

Should Mr. Innocent be ordered to pay Ms. Kudom damages in the amount of $500,000 for assault, battery and intentional infliction of mental suffering and punitive damages in the amount of $50,000?

[140] During the trial, Ms. Kudom testified that Mr. Innocent assaulted her on two separate occasions which resulted in criminal charges being laid against Mr. Innocent. The first charge was withdrawn while the second was dismissed.

[141] Ms. Kudom’s counsel did not call further evidence of assault, battery and intentional infliction of mental suffering. He did not make submissions for a furtherance of this relief sought by Ms. Kudom. Accordingly, there will be no order for this relief sought by Ms. Kudom.

CONCLUSION

[142] Based on the above, I order that:

Mr. Patrick Kudom-Innocent shall pay child support to Ms. Paulina Bright Kudom, in the monthly amount of $416 for Patrick Kudom, born on June 19, 1998, retroactive to March 1, 2012. The monthly amount of child support payments Mr. Kudom-Innocent has already paid to Ms. Kudom must be deducted from the child support payment arrears that is owed to Ms. Kudom.
Mr. Patrick Kudom-Innocent shall pay monthly spousal support to Ms. Paulina Bright Kudom in the amount of $112, for an indefinite period, retroactive to March 1, 2012. Spousal support payable by Mr. Patrick Kudom-Innocent shall be indexed pursuant to the Family Law Act.
Retroactive spousal support payable by Mr. Innocent to Mr. Kudom for the period from March 1, 2012 to August 31, 2018 is $8,736.
The net family income of Mr. Patrick Kudom-Innocent and Ms. Paulina Bright Kudom shall be equalized. Mr. Innocent shall pay Ms. Kudom the sum of $194,897.25 as an equalization payment.
The matrimonial home, known municipally as 15 Palmolive Court, Brampton, Ontario, shall be listed for sale with a mutually agreeable listing agent within thirty (30) days of this judgment.
Mr. Innocent-Kudom shall maintain or obtain a life insurance policy with a face value of no less than $150,000 naming Ms. Paulina Bright Kudom as irrevocable beneficiary for as long as spousal support is payable by him.
Mr. Innocent-Kudom shall pay prejudgment and post-judgment interest on any amounts owed to Ms. Kudom pursuant to the Courts of Justice Act.

COSTS

[143] The Applicant will file her costs submissions, not exceeding three pages, by September 15, 2018 while the Respondent will file his costs submissions not exceeding three pages, by September 30, 2018. The Applicant can file a reply by October 7, 2018.