Court File and Parties

Ottawa Court File No.: FC-17-2220 Date: 2018/09/28 Superior Court of Justice - Ontario

Re: Anne Marie Cecile Claire Murray, Applicant And Suhail Masood Choudhary, Respondent

Before: Madam Justice Tracy Engelking

Counsel: Thomas Hunter, Counsel for the Applicant Self-represented Respondent

Heard: May 8, 2018

Endorsement

[1] On May 8, 2018, I heard the Applicant’s Motion and Respondent’s Cross-Motion in the within matter. However, in an endorsement released on that date, I indicated that the hearing of the motions were not quite completed, and I indicated that the parties had until May 29, 2018 to provide written submissions on the issue of entitlement and/or quantum of spousal support only. On May 22, 2018, the court received the Applicant’s written submissions and on May 29, 2018, the court received the Respondent’s written submissions. This endorsement is thus with respect to those motions, including the submissions provided in writing.

[2] The Applicant’s motion sought seven substantive grounds for relief, which included a Declaration that the property located at 43 Bramblewood Crescent, Kanata, Ontario, is owned by the applicant and is not the Matrimonial Home of the parties; that the Respondent be required to pay occupation rent for the period December 2, 2017, until his departure from 43 Bramblewood Crescent; that the police service having jurisdiction enforce the order; that the Respondent be required to repay to the Applicant $42,202.86 in the funds advanced to him from time-to-time in the form of loans; a Declaration that the dog, Bianca, is owned by the Applicant; and, that jewellery or the equivalent of its value be returned to the Applicant by the Respondent.

[3] The Respondent brought his own cross-motion in which he sought 13 specific grounds for relief, some having to do with disclosure and questioning. The others included a claim for spousal support; a Declaration that 43 Bramblewood Crescent, Kanata, Ontario is the Matrimonial Home of the parties; that the Respondent be permitted to continue to live there; that the Applicant continue to make payments towards the home and that a portion of those payments constitute spousal support; that the home be immediately listed for sale; that the Applicant continue to provide health benefits to the Respondent through her employer; that the Applicant maintain the Respondent as a beneficiary on her life insurance; and, that the dog, Bianca, be returned to the Respondent.

Background Facts

[4] The parties were married on May 2, 2007. According to the Applicant, they separated on October 9, 2017 when she instructed her counsel to seek a simple divorce. According to the Respondent, they did not separate at least until the Applicant’s counsel spoke with him on November 1, 2017 or he was served with the Application for Divorce on or about December 3, 2017.

[5] The Applicant has alleged abuse throughout the marriage, physical on a few occasions, verbal and financial. The Respondent denies abusing the Applicant and states that he is dependent upon her emotionally as well as financially, as a result of being diagnosed with Guillain-Barre Syndrome in or about 2010, and/or Chronic Inflammatory Demyelinating Polyneuropathy (CIPD) in or about 2014, which he asserts affects his ability to work.

[6] The Applicant is employed as a public servant with the Department of Public Services and Procurement Canada and has an annual income of approximately $120,000. The Applicant is also the sole owner of the home located at 43 Bramblewood Crescent, Kanata, Ontario. The Respondent is unemployed and appears to have been so for several years.

[7] In September of 2017, the Respondent moved to Germany with the stated intention of obtaining an undergraduate and then Master’s degree in Business Administration, and to then obtain an internship with BMW or Porsche, or start his own business. The Applicant states that she did not agree with the Respondent’s plan, but did not want to stand in his way, so supported him in the endeavor, including by paying for his travel and studies. The Respondent enrolled in the New European College and left Canada on September 25, 2017. He insisted on taking the parties’ dog, Bianca, with him, telling the Applicant that she would be a comfort to him and help him succeed in his studies.

[8] Over the course of his sojourn to Germany, the Applicant became aware that the Respondent was in fact spending time with a German woman, Bettina Baumgartner, whom he had met in 2005. She began to believe that her marriage was a sham, and on October 9, 2017, she instructed her counsel to prepare and subsequently file an application for a simple divorce. Her stated date of separation is October 9, 2017. She remained in her home at 43 Bramblewood Crescent, where she also had two roomers, and changed the locks on the home.

[9] Notwithstanding his enrollment and studies, the Respondent returned to Canada on or about November 17, 2017, at which time his mother returned Bianca to the Applicant. Because the Applicant was afraid of the Respondent, she left her home at 43 Bramblewood Crescent and took temporary refuge in the home of her parents. On or about December 2, 2017, the Respondent gained entry to the Bramblewood Crescent home when one of the tenants inadvertently left a door unlocked. He moved in and changed the locks again. He provided the tenants with new keys, and offered the Applicant keys as well. She remained at the home of her parents and sought relief from the court to regain possession of the home.

[10] On April 20, 2018, Justice Corthorn granted a temporary order providing that the Applicant have “exclusive possession of the property located at 43 Bramblewood Crescent” and requiring that the Respondent vacate it by 11:00 am on April 30, 2018. She also ordered that the Respondent was to return all keys and pay all of the outstanding utilities from December 2, 2017 to April 30, 2018. Justice Corthorn also granted the Applicant a restraining order against the Respondent.

[11] According to the Applicant, the Respondent failed to comply with the order of Justice Corthorn in that he did not deliver all the keys to the property to her counsel, nor did he pay the outstanding utilities for the period during which he lived in the home, which totaled $1,626.36 (though he did provide an uncertified check for $200). She also alleges that the Respondent removed her engagement and wedding rings from the property, which are valued at $19,000.

Issues

[12] The main issues to be decided by the court on this motion are:

1. Does 43 Bramblewood Crescent fall within the definition of a matrimonial home?
2. Can a declaration that the Applicant is the owner of Bianca be made?
3. Is the Respondent entitled to spousal support on a temporary basis?
4. If the answer to issue #3 is yes, what is the appropriate quantum of support?
5. Can the court order repayment by the Respondent of loans totalling $42,202.86 plus interest on the motion?
6. Can the Respondent be ordered to return to the Applicant her engagement and wedding rings, or in the alternative pay her $19,000 for them?

[13] For the reasons that follow, the court finds that:

• a declaration that 43 Bramblewood Crescent is not the parties’ matrimonial home is best left to trial;
• the dog, Bianca, belongs to the Applicant;
• the Respondent has a prima facie entitlement to spousal support,
• the quantum of temporary support payable is $964 per month;
• the issue of the loans is best left to trial; and,
• the rings are, on a balance of probabilities, in the possession of the Respondent.

Issue #1 – Is 43 Bramblewood Crescent the matrimonial home?

[14] Section 18 of the Family Law Act provides that: “Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

[15] The question in this case then becomes, was 43 Bramblewood Crescent ordinarily occupied by the Applicant and the Respondent as their family residence at the time of separation. The evidence of the Applicant is that, although she thought that she was still in a committed relationship with the Respondent post his departure for Germany, she discovered that she was wrong. It is her position that the Respondent permanently moved to Munich as of September 26, 2017, and he, therefore, did not occupy her home as a family residence at the time of separation, which was October 9, 2017. The Respondent’s position is that he was still in committed relationship with the Applicant, and that he either only temporarily went to Germany for the purposes of studying, or that, if his move to Germany was permanent, it was with the intention of the Applicant ultimately joining him there. His evidence is that he still “ordinarily occupied” 43 Bramblewood Crescent as the family home, and that it is, thus, the parties’ matrimonial home.

[16] The Applicant’s evidence is that the Respondent packed and took all of his belongings that he could when he left for Germany on September 25, 2017. He, moreover, instructed her to pack up anything that was left and ship it to him once he had an address to ship it to. Although she did pack up the remainder of his belongings, the Applicant never did ship them to the Respondent as he refused to provide her an address where he was living, which she ultimately believed was at the home of Bettina Baumgartner. Additionally, shortly after arriving in Germany, the Respondent wrote to a friend named Marie, and stated: “As for me, I’ve left North America all together and now live in Germany. I moved here to finish my MBA and hope to start another company in 2 to 3 years.” He wrote to another friend, Erin, from Munich and stated: “My situation is going to be in flex for probably the next few months until I land a permanent place I really like (boy do they love red tape and procedures here).” He then provided Erin with a German cell number at which he could be reached.

[17] Interestingly, in the Respondent’s enrollment form for the New European College, he gave Ms. Baumgartner’s address as his address and next to the heading “Familienstand”, which translates to “Marital Status”, the Respondent entered: “Verheirbatet/Getrennt”, which translates to “Married/Separated.” Although the Respondent states in paragraph 23 of his affidavit sworn on March 16, 2018: “At no point was this [his move to Europe] contemplated as a separation or a termination of our marriage”, nowhere does he explain why he put what he put on his own enrollment form.

[18] The Respondent’s evidence is that he and the Applicant had a plan to have her follow him to Europe and to take fertility treatment. His evidence was also that he was not gone for four years, but for one, to see how well he could do before deciding whether he would remain and the Applicant would join him, or whether they would continue to make a life in Canada. He relies on a letter signed by the Applicant dated September 22, 2017 demonstrating her financial support for this plan. Notwithstanding his statements to Marie and Erin, his enrollment form and his time spent with Ms. Baumgartner, the Respondent evidence in his affidavit is that he found it too hard to be away from the Applicant and it was for this reason that he returned to Canada.

[19] While the court is uncertain of what benefit a declaration that 43 Bramblewood Crescent is not the matrimonial home would be to Applicant, I am unable to make it based on the conflicting affidavit evidence before me. While it appears that the Respondent was deceitful to his spouse, be it about establishing a relationship with Ms. Baumgartner or otherwise, the questions of a) what the Respondent was actually doing in Germany; b) what his reasons for returning to Canada were; c) what the actual date of separation was; and d) whether the parties were ordinarily occupying 43 Bramblewood Crescent as their family residence at the time of separation, are ones that entail findings of credibility, and are best done on viva voce evidence which is tested by cross-examination. As this is the case, I decline to make such a finding on motion. Having said that, I note that the Respondent has made a cross-motion for an order that he be permitted to continue to live at 43 Bramblewood Crescent, though I note the drafting of the Notice of Cross-Motion predates the Temporary Order of Justice Corthorn. I see no reason to, and would not, depart from the order of Corthorn J. granting the Applicant exclusive possession of the property.

[20] The Respondent additionally seeks an order to immediately list the home for sale. As his is not a joint owner of the home, I have no authority to do so, and no such order will be made.

Issue #2 – To Whom Does the Dog, Bianca, Belong?

[21] The issue of the ownership of Bianca, on the other hand, is straight forward. The Applicant provided evidence to the court that she paid $700 for Bianca in July of 2012, she reported her purchase to her family by email and photograph on July 19, 2012, she completed training with Bianca at “Dog Dayz” in February of 2014, she attended to all of Bianca’s veterinary appointments, she registered Bianca with the City of Ottawa as her dog, she cared for Bianca (but for one feeding in the evening and some walks), and she reported Bianca as having been stolen to German authorities when she feared Bianca would not be returned to her. Against all of that evidence, the Respondent asserts that Bianca was bought for him as “a form of therapy dog”, that she anticipates his pain, soothes him and generally makes life for pleasant for him. In support of his assertion, the Respondent relies on the fact that Bianca was permitted to travel with him to Germany. The Applicant, however, provided an explanation that she and the Respondent obtained a Certificate that Bianca was a “Therapy/Companion Dog” on the internet for $25 in 2015 to permit them to travel to the US to visit the Respondent’s family and to stay in hotels with Bianca. They later obtained a letter from a psychologist on-line, who had never seen the Respondent, for $200 which permitted them to travel with Bianca to Europe in the spring of 2017. To demonstrate how easy it is to get a service dog certificate on-line, the Applicant again did so on February 22, 2018 for $200. All of which is to say, that any of the certifications provided by the Respondent or the Applicant either that Bianca is a “service” or “support” dog, or that she is permitted to travel with one or the other, do not assist the court in making the determination of who owns her. Most significantly, the Respondent has provided no evidence from any treating physician that he currently has that he requires a support or service animal. Based, therefore, on all of the evidence referred to above, I find that the Applicant is the rightful owner of Bianca.

Issue #3 – Is the Respondent Entitled to Temporary Spousal Support

[22] In the case of Maelbrancke v. Proctor, 2016 ONSC 1788, Harper J. reviewed the law with respect to temporary spousal support. At paragraph 11, Harper J. referred to the case of Samis v. Samis, ONCJ 273, which in turn referred to that of Lowalski v. Grant, 2007 MBQB 235, 219 Man.R. (2d) 260, 43 R.L.F. (6th) 344, [2007] M. J. no. 386, 2007 CarswellMan 422 (Man.Q.B.), to set out the following principles in temporary spousal support:

1. Interim support is to provide income for dependent spouses from the time the proceedings are instituted until trial.
2. The court need not conduct a complete inquiry into all aspects and details to determine what extent either party suffered economic advantage or disadvantage as a result of the relationship. That is to be left to the trial judge.
3. Interim support is a holding order to maintain the accustomed lifestyle if possible pending final disposition as long as the claimant is able to present a triable case for economic disadvantage.
4. Interim support is to be based on the parties’ means and needs, assuming that a triable case exists. The merits of the case in its entirety must await a final hearing.

[23] The court is not required to “conduct an in-depth analysis of the standing and entitlement issues. If the Applicant is able to make out a good, arguable case for standing and entitlement the court will assess support on the basis of the parties’ needs and means.” The questions to be answered in an application for temporary spousal support are: does the Applicant have standing; is the Applicant entitled to the support; what are the dependant’s needs; and, does the payor have the ability to pay? (Robertson v. Hotte, at paras 7 and 8)

[24] As noted by Labrosse J. in Kelly v. Kelly, at para 17, “interim support motions are not intended to involve a detailed examination of the merits of the case. Orders for interim support are based on a triable or prima facie case: see Knowles v. Lindstrom, 2015 ONSC 1408, at para 8.”

[25] The Respondent asserts that he has been financially dependent on the Applicant since September of 2010, when he was first diagnosed with Gillian-Barre Syndrome (GBS). His evidence is that he has been unable to work since that time, and that the Applicant was the provider for the couple. He relies on medical reports from 2010 and 2014, as well as on the fact that he is in receipt of a CPP disability benefit and a disability benefit from the United States Social Security Administration. The Respondent had lived and worked (largely in the technology and communications fields) in the United States prior to and during the marriage and earned approximately $100,000 per year until in or about 2009, notwithstanding that he had had a motor vehicle accident in or about 1998 in which he likely sustained a head injury. His position is that since his diagnosis in 2010, he has been medically unable to work.

[26] The Applicant questions the Respondent’s diagnosis and/or his alleged incapacity to work as a result thereof. She states firstly, that the information leading to it is entirely self-reporting by the Respondent, and secondly, that the most recent medical reports are dated (2014 being the most recent) and in any event, don’t support that the Respondent is unable to work for medical reasons. That he is unable to work also seems counter-intuitive to his stated reasons for going to school in Germany. Finally, the Applicant also relies on untested eye-witness accounts of her tenant and her neighbour with respect to the Respondent’s physical activities and use (or non-use) of a cane for walking.

[27] Both parties have also referred to the existence of a “pre-nuptial” agreement they entered into on May 2, 2007 (the same day as the marriage), which is signed by both in the presence of witnesses. The agreement provides that it “shall be interpreted and enforced under the laws of the state of Virginia”. With respect to the issue of spousal support it provides variously as follows:

#6. Both parties acknowledge that they possess sufficient education and job skills to adequately provide for their own support, and hereby waive any claim to spousal support (alimony) except in the event that:

i. One of the parties suffers medical disability and the other remains both employed and physically able, in which case the disabled party may receive reasonable spousal support consistent with state law until such time as the disability is resolved, or the other spouse retires or becomes disabled from working, either by agreement or by judicial determination.

#12. The parties further agree that in the event of a divorce there shall be no alimony paid.

[28] The Applicant relies upon the waiver of spousal support contained in the agreement and the Respondent relies on the exception to the waiver based on disability.

[29] I find that the Respondent’s medical status and resulting ability or inability to work, as well as the validity and enforceability of the pre-nuptial agreement are triable issues. The onus will, of course, be on the Respondent to prove at trial that he is unable to work for medical reasons, however, I find that he has made out a prima facie case as to his entitlement to temporary support. This is based on the fact that he is currently in receipt of disability benefits and that he has been a dependant of the Applicant’s for some time. Whether he should be in receipt of those benefits or should remain her dependant, and for how long, are matters to be determined at trial.

Issue #4 – What is the quantum of spousal support payable?

[30] Having found that the Respondent has made out a prima facie entitlement to temporary spousal support, the question becomes one of the quantum payable, which is based at this stage on the recipient’s need and the payor’s means.

[31] The Respondent is in receipt of a monthly gross income of $2123 from his US disability pension, is in US dollars. Accounting for a conversion rate of 1.3% and grossing it up to account for taxes, produces a gross annual income of $33,118. When the Respondent’s CPP disability benefit of $4,217 from his 2016 Notice of Assessment (this being the most recent available) is added to this amount, the Respondent’s annual guidelines income comes to $44,468.

[32] The Applicant’s regular annual income is $119,557.32. She has for periods of time been in an acting role, which has increased her income somewhat, however that assignment was to end in May of 2018. For the purposes of temporary support, spousal support calculated on the Applicant’s current annual income of $119,557.32 (with a deduction for union dues) and the Respondent’s grossed up income of $44,468 provides for a range of spousal support from $931 at the low end of the range to $1086 at the mid and $1241 at the high end of the range. Based on the fact that the Applicant is carrying all of the family debt, I am not inclined to order anything beyond the low end of the range.

[33] There will thus be an order that commencing June 1, 2018, the Applicant shall pay to the Respondent $931 per month in temporary spousal support. The Applicant shall be credited for the $1,426.36 still owing by the Respondent to the Applicant for the outstanding utilities from December 2, 2017 to April 30, 2018 as per the order of Justice Corthorn. Thus, the Applicant will be required to pay 0.00 in support for June 2018, and $495.36 for July 2018. This order for temporary support is, of course, without prejudice to the Respondent’s claims for spousal support retroactive to the date of separation or for a different quantum, and to the Applicant’s claim that the Respondent is not entitled to support.

[34] The Applicant shall also be required to maintain the Respondent on her health insurance plan of her employer pending agreement of the parties or further order of the court.

Issue #5 – Can the Respondent be Ordered to Pay the Applicant $42,202.86 in repayment of loans?

[35] The Applicant states that she has lent the Respondent money over the years of their relationship and marriage, which have been for specific purposes, such as paying off his bankruptcy debts in Virginia, paying his US attorney in his battle with his former wife and paying for his travel to and schooling in Germany. She asserts that the Respondent currently owes her $42,202.86 for such loans. The Applicant relied on an email exchange between the parties on December 9, 2015 wherein the Applicant confirmed with the Respondent that, at that point, he owed her $28,522.58, to which the Respondent replied: “Let’s make a payment plan and I’ll hook you up with the interest.” Among other monies, the Applicant states that she has since lent to the Respondent an additional $14,000 in relation to his trip to and schooling in Germany. Although the Respondent appears in the December 2015 email to acknowledge that he owed the Applicant money, and although he even made one $800 payment on the $14,000 “loan” for his trip to Germany, he is now stating that the money claimed by the Applicant was not in the form of loans; it was simply her supporting him with family money. This issue is, again, one which entails findings of credibility as between the Applicant and the Respondent, and requires a trial. Additionally, if the Applicant is successful in establishing that the money was loaned to the Respondent, it may result in a set off against any equalization payment which may ultimately be owing from the Applicant to the Respondent, or potentially against spousal support, in the event that the Respondent is able to meet his burden of proving to the court that he is unable to work for medical reasons, and is entitled to spousal support. Whether the money claimed by the Applicant was loaned to the Respondent or not is a thus matter which needs to be resolved at trial, and ultimately taken into account when equalizing the parties’ net family property.

Issue #6 – Can the Respondent be Ordered to Return the Applicant’s Engagement and Wedding Rings?

[36] The Applicant has proffered evidence that when she left the family home to take refuge at her parents’ house in or about November of 2017, her engagement ring and her wedding ring were at 43 Bramblewood Crescent, in a location known only to the Respondent. The Respondent entrenched himself in the home from December 2, 2017 until April 30, 2018, when Justice Corthorn ordered that he vacate it as of 11:00 am. The Applicant states that when she returned to the home, the rings, which she claims are worth $19,000, were missing. The Applicant filed a complaint with the Ottawa Police Services as soon as she noted the rings missing.

[37] The Respondent has not answered the Applicant’s claim in his affidavit in support of the motion. It is silent in relation to the Applicant’s allegation that he took the rings. Given the timing of the rings having gone missing, and having no evidence to the contrary, I find that, on a balance of probabilities, the Respondent took the rings. The Respondent shall be required to return the rings to the Applicant. In the event that he does not do so, possession of the rings shall be attributed to him and a value of $19,000 shall be included on his Net Family Property Statement to account for them.

Order

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

1. The Court declares that the Applicant is the owner of the dog, Bianca;
2. Commencing June 1, 2018, the Applicant shall pay to the Respondent $931 per month in temporary spousal support. The Applicant shall be credited for the $1,426.36 still owing by the Respondent to the Applicant for the outstanding utilities from December 2, 2017 to April 30, 2018 as per the order of Justice Corthorn. Thus, the Applicant will be required to pay 0.00 in support for June 2018, and $495.36 for July 2018. This order for temporary support is without prejudice to the Respondent’s claims for spousal support retroactive to the date of separation or for a different quantum, and to the Applicant’s claim that the Respondent is not entitled to support.
3. The Applicant shall maintain the Respondent on her health insurance plan from her employer pending an agreement of the parties or further order of the court;
4. The Respondent shall forthwith return to the Applicant her engagement and wedding rings. In the event that the Respondent does not return them to the Applicant, their value shall be included as property of the Respondent in his NFP for the purposes of equalization.

Costs

[39] Given the mixed success on the motion, the Applicant having been successful in relation to her claim for a declaration of ownership of the dog, Bianca, and for an order for the return of her rings, and the Respondent having been successful on his request for temporary spousal support, there shall be no order of costs on the motion.

Madam Justice Tracy Engelking Date: September 28, 2018