Court File and Parties

Court File No.: F1068/08 Date: 2018-10-18 Ontario Superior Court of Justice

Between: Aliya Farrukh, Applicant And: Chaudhry Farrukh Amin, Respondent

Counsel: O. Ayoola, for the Applicant Respondent was self-represented

Heard: October 15 & 16, 2018

Before: The Honourable Justice James W. Sloan

Reasons for Decision

Corrected, Corrected decision: The corrections were made on November 22, 2018.

Paragraph 58, which currently reads “Therefore I find that there is $28,701.93 not accounted for ($93,701.93 - $60,000 - $5,000) and that half, or $14,351, belongs to the applicant.” should now be corrected to read “Therefore I find that there is $28,701.93 not accounted for, $93,701.93 - $60,000 = $33,701.93, and that half of that amount, or $16,850.96, less $5,000 the applicant has already received, results in a payment by the respondent to the applicant in the amount of $11,850.96 ($16,850.96 - $5,000).”

Paragraph 69(g) which currently reads “… the amount of $14,351, plus prejudgment interest …” should now be corrected to read “… the amount of $11,850.96, plus prejudgment interest …”

Corrected decision: The correction was made on October 30, 2018.

The reference to “(d) the applicant shall pay child support …” in paragraph 69 (d) on page 11 has now been corrected to read “(d) the respondent shall pay child support …”

[1] The respondent is from Saskatchewan.

[2] He attended court in Hamilton on October 15, 2018 and asked for an adjournment.

[3] The parties separated on July 18, 2012, over six years ago. The applicant commenced this action in May 2013, and the respondent filed his answer on October 23, 2013, almost 5 years ago.

[4] On October 15, 2018, in support of his request for an adjournment, the respondent filed a letter with the court dated October 15, 2018, which has been marked Exhibit “A.” The letter is from a Mr. Mahon, a Saskatchewan lawyer who had previously represented the respondent in this matter. The lawyer, on the date scheduled for the commencement of the trial, asked on behalf of the respondent, for court to set a specific special trial date so that he could attend from Saskatchewan.

[5] There is no evidence before me that the lawyer ever contacted the applicant’s lawyer or the trial coordinator prior to October 15, 2018, to make such a request.

[6] In fact, the letter states that he had been contacted by the respondent “about the possibility of representing him for trial”. The lawyer states he was contacted in July and that he informed the respondent that he already had a trial booked for October.

[7] Mr. Mahon had himself removed as solicitor of record pursuant to the order of Justice Chappel dated October 26, 2017, and does not appear to have become solicitor of record after that date.

[8] With respect to the respondent’s request for an adjournment, the court noted the following:

(a) The respondent was ordered to pay costs of $2,643 on September 1, 2016. He was also ordered to pay $500 costs on two other occasions, making the total payable $3,643. To date he has paid nothing.

(b) When asked why he had not paid any costs, he indicated that he did not know where to pay them, however he admitted not asking his own lawyer, or while self-represented asking the applicant’s lawyer where he should send the cheque. The court noted on the issue of costs, that in paragraph 5 of Justice Chappel’s order dated April 30, 2018, she ordered “These costs shall be paid by way of cheque to be delivered to the Office of Porter Law Office and to be made out to Porter Law Office in Trust for a Aliya Farrukh, and to be payable forthwith.”

(c) On June 13, 2018, at the trial scheduling conference, which it appears the respondent may not have attended, he was ordered to pay all standing costs orders forthwith.

(d) On June 30, 2017, he was ordered to produce personal and corporate tax returns and bank account statements from 2013 to date which he has not done.

(e) On October 26, 2017, he was ordered to produce in-depth economic briefs for himself personally and a corporation, KHS Services Ltd. He was also ordered to provide documentary proof of all values set out in his Net Family Property Statement. He has not done so.

(f) It is interesting to note in Exhibit “A” that Mr. Mahon writes “I further confirm that Mr. Mahon has given me a list of what is required by the Ontario Court to be filed, and will proceed to prepare the same for filing provided the trial is to be adjourned.”

[9] In addition, the respondent stated that, although he came all the way from Saskatchewan, he did not bring any documents with him that pertain to this action and that all the documents were at his Saskatchewan lawyer’s office.

[10] The court adjourned briefly, to allow the respondent to contact his former lawyer’s office, with the suggestion that the lawyer either overnight courier or email the documents to him.

[11] On the basis of the facts before me it appeared that the respondent was essentially playing games with the court system and that delay was to his benefit.

[12] It appeared that the respondent has had legal advice when he wants it. Based on the above facts, the court denied his request for an adjournment.

Applicant’s Opening Statement

[13] The parties had four children, only one of whom remains dependent for child support purposes.

[14] At this trial, the applicant is seeking:

(a) spousal support;

(b) child support for one child who is currently attending post-secondary education;

(c) arrears of child support retroactive to 2012; and

(d) equalization of net family property with two main issues:

i. the sale of the matrimonial home and disposal of the equity from the sale; and

ii. the value of a corporation allegedly owned by the respondent and/or controlled by him.

[15] Both parties and their college aged daughter Samar testified, the latter with respect to her personal situation involving college expenses and employment earnings.

[16] At the end of trial, applicant’s counsel conceded that the applicant had not proven on a balance of probabilities, that the respondent had an ownership interest in the commercial gas station property in Saskatchewan.

The Respondent’s Income

[17] The applicant suggested the court should impute an income of $43,000 per year, but did not provide a roadmap of how the court should get there.

[18] The respondent testified that his only income is from the gas bar variety store owned by his brother. His youngest son works the gas bar with him and he resides in subsidized housing, owned by the Melford Housing Authority.

[19] He appears to have a lot of experience in running small businesses, but unfortunately had to declare bankruptcy after the economic downturn in 2008. His English skills are good.

[20] Although he had a recent hip replacement he did not testify to any other medical problems that would interfere with his working.

[21] His one and only bank account produced at Exhibit 6 is unremarkable in amounts, but remarkable because there is almost no activity in the account.

[22] The tax returns produced at Exhibit 7 show business income of, 2014 – $7,451, 2015 – $8,964.57, 2016 – employment income of $12,000, 2017 – employment income of $9,000.

[23] All of these amounts are well below the poverty line.

[24] In the respondent’s most up-to-date financial statement dated February 8, 2017, filed at Tab 3 of the Trial Record, he claimed total income of $12,000 per year, however he shows expenses of $26,352.96 per year. These expenses could only be possible on a $12,000 annual income if the respondent was living on credit, but he does not show any borrowings whatsoever in his financial statement, therefore, notwithstanding it is sworn under oath to be true, it is a mathematical impossible.

[25] In the same financial statement he shows only one bank account and no credit cards whatsoever. His bank account (Exhibit 6), shows almost no deposits, nothing even anything close to $1,000 a month which is his claimed income. In addition to his admitting that he received $10,000 in cash from his brother with respect to the sale of the house, and that he paid him $60,000 in cash to pay back a loan, it is obvious that the respondent essentially shuns bank accounts and all other forms of traceable cash like credit cards.

[26] He did not produce any records to show how the cheque from the lawyer with respect to the sale of the matrimonial home was negotiated, nor how it was spent. Records he would have access to.

[27] He did not produce any financial records with respect to the earnings of the gas bar. On the evidence before me, I find that he would have those records since his evidence is that he runs the gas station for his brother, who lives in the USA.

[28] On the evidence before me, it appears that the respondent has set himself up to take advantage of his wife, daughter and the system. He keeps his income artificially low so that he does not contribute any tax revenue to Saskatchewan or Canada, while at the same time, living in subsidized housing and reaping the benefits of Canada’s national healthcare and all other government services, including police, fire and roads, etc.

[29] I find the respondent’s position that he is making $1,000 per month to be ludicrous. Whether or not he has an ownership interest in the gas station does not mean that he is not living off the cash flow of that entity. There is simply no other way for him to exist based on the material in the financial statement that he has filed, and the expenditures he admits to, his financial statement expenditures are relatively spartan.

[30] On the evidence before me, I impute income to the respondent in the amount of $40,000 per year.

Child Support

[31] The child, Samar, finished high school in Saskatchewan, but because she had no money for university she had to work for approximately 2 ½ years before going to Mohawk College, and currently McMaster University.

[32] Samar has always lived with her mother since separation and while she provided for most of her own needs, her mom paid the rent and utilities and she helped out with food from time to time.

[33] She had reported earnings of $11,457.31 – 2013, $8,464.81 – 2014, $8,205.96 – 2015, $17,068.13 – 2016. No information was provided with respect to her 2017 income, but for purposes of this exercise I am imputing it at $8,500. She goes to school 12 months a year, which allows her to take on a slightly reduced course load so that she can work part time, in addition to her studies.

[34] Although the court was not given a financial accounting sheet setting out her academic expenses and student loans, it appears that her educational expenses for the 2015-16 academic year were $14,505.43 and for the 2016-17 and 2017-18 academic years, were approximately $12,090 each for a total of $24,180.

[35] Over the same period of time it appears that she got student loans of $14,068.61.

[36] If my mathematics are correct, she spent $38,685.43 on post-secondary education while receiving student loans of $14,068.61, for a net expenditure form her earnings of $24,616.82.

[37] From 2013 to 2017, while living with her mother, she earned $53,696.21. Under the circumstances of this family and notwithstanding she will have to pay back her student loans, I find that it would not be unreasonable for her to contribute 35% of her earnings towards her education which equals $18,793.67.

[38] Therefore the parents should be contributing $5,823.15.

[39] Samar thinks her father might have given her $200 towards her education and the respondent is sure it was $500. I am inclined to give the respondent credit for the $500 and therefore the parents should have contributed $5,323.15

[40] Since the applicant is unable to contribute financially, I find that the applicant owes retroactive section 7 expenses to the child of $5,323.15.

[41] This amazing hard-working child deserves to be supported by her parents until she finishes her degree from McMaster, or is no longer attending university.

[42] Therefore, based on my DivorceMate calculations, a copy of which is attached to these reasons as Schedule “A”, the respondent shall pay child support in the amount of $319 per month.

[43] With respect to calculating the arrears of child support, I took into account that the child worked for approximately 2 ½ years while not attending school and earned $17,068 in 2016. Therefore, I order that the child support of $319 per month commencing January 1, 2017. I therefore calculate that child support is owing for 22 months at the rate of $319 per month which equals $7,018.

[44] Her parents should be contributing something towards her post-secondary education. Unfortunately, since the applicant is on ODSP, the most she can contribute is what she is already doing and that is shelter and food.

[45] As previously determined, the respondent should have already contributed $5,823.15 towards her education. In addition, he shall continue to pay section 7 expenses towards her education in the amount of $389 per month commencing September 1, 2018, until Sarma graduates. This may be April 2021, however the applicant’s lawyer can confirm this with Samara and pass the information along to the respondent.

[46] Therefore, the arrears of child support owing to the applicant are $7,018, which shall be paid at the rate of $117, which will retire the debt over 60 months.

[47] The arrears of section 7 expenses owing to the child are $5,823.15, which shall be paid at the rate of $242.63 per month, which will retire the debt over 24 months, in time for Samar’s graduation.

Matrimonial Home (ENFP)

[48] On the documentation before me, the home sold on June 25, 2012, just before the separation on July 18, 2012. The net equity from the sale of the home was $93,701.93.

[49] The respondent testified that all the money went towards debts. The applicant testified that she has no idea where the money went and the respondent never told her.

[50] The respondent testified that he paid $60,000 in cash to his brother because it was a debt since his brother loaned both of them $60,000 to purchase a property at 811 King St. E., Hamilton. The respondent never asked the applicant to confirm this $60,000 loan, nor did the applicant deny the loan by way of reply evidence. Exhibit 13 is a document titled “Undertaking”, dated March 18, 2005, that I have previously referred to as a loan, setting out that both parties owe Mr. Yashin $60,000.

[51] The respondent said he bought a used Toyota for $12,000, however if he did, it would have been a benefit only to him, since the parties separated almost immediately after the sale of the home.

[52] The respondent testified that the applicant went to Pakistan to see her parents at a cost of something close to $5,000 for air flights, gifts for relatives back home and to purchase clothing. The respondent never asked the applicant to confirm these expenditures and the applicant did not deny them by reply evidence.

[53] In addition, the respondent testified that they bought furniture at the Brick for approximately $3,000.

[54] What is clear is that both parties were equally entitled to the equity from the sale of the matrimonial home. On the evidence before me, I find that the parties owed $60,000 to the respondent’s brother.

[55] I also find that the respondent was in control of the net proceeds. He also knew within about three weeks of receiving the money that his wife was leaving him and moving back to Ontario. He would and should have known that keeping receipts for money that was 50% hers, was something he should do. For some unexplained reason he did not.

[56] If the respondent purchased an automobile and furniture, it is more likely than not that he reaped all of the benefit from such purchases, since the applicant moved to a different province.

[57] Since the applicant did not offer any evidence in reply about the $5,000 expenditure for her alleged Pakistan trip, I am going to allow it as a deduction.

[58] Therefore I find that there is $28,701.93 not accounted for ($93,701.93 - $60,000 - $5,000) and that half, or $14,351, belongs to the applicant.

Spousal Support

[59] This was a conservative traditional marriage, where the applicant was, for the main part, a mother to four children and a housewife. Save and except for less than one year’s employment, that is all the employment she had outside the home.

[60] Although she testified using an Urdu interpreter, she does have some English skills, but because of her place in the marriage, they are likely nowhere near as good as the respondent’s, who at all times ran various businesses dealing extensively with the public.

[61] Currently, while both parties have some medical problems, the applicant’s are severe enough to qualify her for ODSP of $1,106.50 per month.

[62] On the facts before me, she is certainly entitled to spousal support from the date of separation. The issue is one of quantum, which I will deal with later.

[63] Although no evidence was presented at trial, it is the court’s understanding that any spousal support received by the applicant would be deducted dollar for dollar from her ODSP payments.

[64] The attached DivorceMate sheet (Schedule “A”) has been calculated taking into account that the respondent is being ordered to pay $389 in section 7 expenses.

[65] If the court were to order arrears of spousal support back to July 2012, that would encompass 75 months of spousal support. Although no evidence was presented at trial, it is the court’s understanding that any arrears of spousal support would likely not benefit the applicant since the court suspects that the money would have to be repaid to whatever social agencies assisted the applicant between 2012 and now.

[66] Also, based on the information before the court, while it appears the respondent has a cash flow from the gas station business, there was no evidence that he has any assets other than a 2006 automobile, furniture and personal effects.

[67] Until Samar has graduated, the respondent shall pay spousal support commencing November 1, 2018 in the amount of $1.00 per month.

[68] After Samar has graduated, and subject to any court order made after the date of this Judgment, the respondent shall commence paying spousal support in the amount of $1,283 per month, commencing on the first day of the month after Samar graduates from McMaster University or is no longer in full-time attendance at university. (See DivorceMate printout Schedule “B”)

[69] Therefore an order shall go as follows:

(a) on the evidence before me, I impute an income to the respondent of $40,000 per year;

(b) the applicant is entitled to indefinite spousal support and the respondent shall pay spousal support commencing November 1, 2018, in the amount of $1.00 per month, until the parties’ child, Samar, graduates from University, which is expected to be a little more than two years away;

(c) on the first of the month following Samar’s graduation, the respondent shall commence making spousal support payments in the amount of $1,283 per month;

(d) the respondent shall pay child support in the amount of $319 per month commencing the first day of January 2017, such support to continue so long as the child is living with the applicant and in full-time attendance at university, which is currently the case.;

(e) the arrears of child support are set at $7,018, which shall be paid at the rate of $117 per month commencing November 1, 2018, which will retire the debt over 60 months;

(f) the arrears of section 7 expenses are set at $5,823.15, which shall be paid at the rate of $242.63 per month, which will retire the debt in two years, close to the time when the child graduates;

(g) the respondent shall pay to the applicant, to equalize their net family properties, the amount of $11,850.96 plus prejudgment interest at the applicable rate from July 2012.

[70] If the parties are unable to agree on costs, Mr. Ayoola shall forward his brief submissions on costs to me by October 26, 2018. Mr. Amin shall forward his brief response to me by November 2, 2018. Mr. Ayoola shall then forward his reply, if any, to me by November 9, 2018. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca .

"J.W. Sloan" James W. Sloan J. Released: October 18, 2018