COURT FILE NO.: FS-18-001928 DATE: 20180823 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Younus Shareef Majumder, Applicant AND: Nusrat Rashmi Rahman

BEFORE: Justice Kristjanson

COUNSEL: Paul Slan, for the Applicant Belinda Rossi for the Respondent

HEARD: August 9, 2018

Endorsement

[1] This is a motion by the Respondent wife for interim spousal support. This was a very short marriage – 10 months – during which the husband undertook to sponsor the wife for Canadian citizenship. Following separation in October, 2017, the husband withdrew the sponsorship application. However, the sponsorship file in the sponsorship undertaking has not been provided to me. On the evidence before me, I do find that the husband signed a sponsorship undertaking and is obligated at law to support his wife. There is nothing in evidence before me that indicates a unilateral withdrawal of the sponsorship causes that undertaking to cease.

[2] It must be kept in mind that an interim support award is a temporary order only and inevitably imperfect. Cardoso v. Cardoso, 2013 ONSC 5092. It is meant to provide “a reasonably acceptable solution to a difficult problem until trial”: see Chaitas v. Christopoulos, [2004] O.J. No. 907 (S.C.J.) per Sachs J. The following general principles apply to an interim spousal support order:

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 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.

Spousal Support: Entitlement

[3] Ms. Rahman came to Canada from Bangladesh on a student visa to attend McMaster University. Ms. Rahman successfully obtained a B.A. in economics. Following the completion of Ms. Rahman’s degree, she received a work visa. Ms. Rahman’s current work visa entitles her to work in Canada until August 2019, but the wife’s evidence is that the work visa was premised on Mr. Majumder’s undertaking to support Ms. Rahman, and her evidence is that she is in fear of deportation.

[4] The wife’s evidence is that despite the short marriage, the husband’s conduct has caused a disadvantage relating to the marriage regarding her ability to stay in Canada and become economically self-sufficient at the level contemplated prior to marriage. The wife’s evidence is that following graduation from McMaster University, Ms. Rahman had the opportunity to gain work experience and apply for permanent residency on her own. Ms. Rahman could do this in two ways: 1) She could gain enough continuous work experience to apply; or, 2) She could apply for a publicly recognized Master’s Program in Canada and upon completion, Ms. Rahman would be able to apply and receive permanent residence in Canada. Not only did Ms. Rahman work towards obtaining recognized work experience, but she also started seeking out Master’s programs that would provide her with a higher level of education. Ms. Rahman wanted to become more competitive in the workforce; as well, she gave evidence that a Master’s degree would very likely result in a successful permanent residence application. Ms. Rahman graduated with honours from McMaster.

[5] The wife’s evidence is that as soon as the parties were married (December 21, 2016), Mr. Majumder started asking Ms. Rahman to stop looking at Master’s Programs. Mr. Majumder said it was “a waste of time”. Mr. Majumder wanted to search for a new family home together and wanted to build up his business portfolio. With a B.A. in economics, Mr. Majumder invited, and wanted, Ms. Rahman’s assistance in the planning process. Mr. Majumder even sought out Ms. Rahman’s advice on the design of one of his most valuable gas stations and gave Ms. Rahman the title of manager. Mr. Majumder asked Ms. Rahman to jet set to various locations, sometimes with business ideas in mind; Mr. Majumder wanted Ms. Rahman to be his partner by his side. Mr. Majumder asked Ms. Rahman not to work. Ms. Rahman trusted Mr. Majumder and ceased following up on any job prospects as well as Ms. Rahman’s plans to enter a Master’s Program. When making this decision, Mr. Majumder promised to sponsor Ms. Rahman and apply for permanent residency as a member of the Spouse in Canada Class. The wife submits that had she not relied on Mr. Majumder’s promises and representations, she would not be in the current circumstances she finds herself in. From the outset of the marriage, Ms. Rahman was entirely supported by Mr. Majumder and dependent on him.

[6] I find that the wife has a triable case for disadvantage relating to the marriage, and on this motion has established both a compensatory and need-based claim for spousal support. Indeed, the husband concedes that the wife is entitled to spousal support.

Quantum of Interim Spousal Support

[7] The main issue is quantum of interim spousal support, which is tied to a proper determination of the husband’s means, made almost impossible by the husband’s failure to produce the financial statement as required by the Family Law Rules, and the type of financial disclosure evidence required on a spousal support motion. Early, voluntary, and complete financial disclosure provides the factual foundation for the resolution of financial issues in family law proceedings. The obligation and onus to satisfy the court as to income and the value of assets and debts is on the person whose income or asset or debt is called into question – the husband in this case. The obligation exists prior to any court orders, conferences or court attendances: Manchanda v. Thethi, 2016 ONSC 3776 (Ont. S.C.J.).

[8] The husband has numerous business interests. He has failed to disclose those interests as required by the Family Law Rules. His sworn financial statement is clearly deficient. The Answer contains a claim for support and a property claim. The Form 13.1 financial statement was due in 30 days. Given the number of corporate interests held by the Applicant, of particular importance is FLR 13(3.3). As stated by Myers, J. in Manchanda v Thethi, 2016 ONSC 3776, paras. 15-18:

[15] Rule 13.3 sets out various classes of required documents to demonstrate the breadth of financial disclosure required. Moreover, it requires parties to deliver proof that they have applied for some of the required documents which may be in the possession of third parties. The amendments also added a requirement for financial disclosure to be refreshed before case conferences by the filing of a certificate.

[16] The amendments to Rule 13 have had no appreciable effect on disclosure practices in Toronto. Despite the better modeling of required behaviour in the most recent amendments, in case after case, the court still sees refusals to disclose, or slow disclosure, or late disclosure, or failure to apply for third party documents, or failure to obtain valuations, and other asset-hiding tactics being adopted as if they are legitimate, normal litigation strategies. They are not.

[17] Disclosure reluctance remains common in “big” cases and “small” cases alike. Requiring the less moneyed spouse to repeatedly come to court to try to slowly peel back the layers of the financial onion is still standard fare on motion days and in case conferences. And it has to stop.

[18] A party who does not make early, voluntary, and complete financial disclosure is not participating in the process. He or she is not fulfilling the primary duty to help promote a just outcome.

[9] In a spousal support case, the court expects the parties to have complied with the Rules and produced evidence of the parties’ means, needs and circumstances. The Applicant has not met the Rule 13.3 disclosure requirements. From this I draw an adverse inference. I must thus impute income to the Applicant.

Husband’s Spending During the Marriage

[10] The wife’s evidence, not contradicted by the husband, is of extensive spending during the marriage. The amount of spending that the husband does not contest clearly could not have been incurred on the income/means claimed in the husband’s deficient financial productions. This includes that in the 10 month marriage:

(a) The husband bought her designer clothes and not less than 6 designer handbags, including Chanel, Prada and Yves St. Laurent bags costing $23,000. Mr. Majumder also purchased Ms. Rahman Manolo Blahnik shoes costing $1,463.35 and expensive jewellery; (b) The parties went on numerous vacations during the marriage. The first was to London, England in early January 2017; Ms. Rahman estimates the costs of flights, hotel, food, excursions and cab fare were not less than $8,400; (c) In February, 2017, the parties took a holiday to the Bahamas staying at the Atlantis Resort on Paradise Island. Mr. Majumder paid all of the expenses for this holiday. Ms. Rahman estimates that the costs of flight, hotel, limo rental, spa, casino, food and shopping were not less than $6,400; (d) In April, 2017 the parties vacationed in Dubai. The parties had brunch at Burj-al-Arab, considered by some as the world’s most luxurious hotel. The parties ate dinner at Dubai Dinner it the Sky, which was a once in a lifetime opportunity where diners have an aerial concept dinner and are hoisted 50 metres in the air over the Dubai Marina. The parties rented a Mercedes, went shopping and enjoyed the spa, including a couples’ massage. Ms. Rahman estimates the costs of the flight, hotel, brunch, dinner car rental, other food, shopping and the spa to be not less than $10,000. (e) The parties went to Singapore and stayed in a luxurious hotel. The parties rented a limo while enjoying expensive restaurants and shopping. This vacation could not have costs less than $9,000; (f) Towards the end of the relationship, the parties went to Vancouver and enjoyed sightseeing, eating out and shopping. Ms. Rahman estimates the costs of that trip was not less than $6,000; (g) In addition to travelling, Mr. Majumder purchased courtside tickets to a Raptors’ game at an estimated cost of $3,000 and purchased front row floor tickets to an Ed Sheeran concert at an estimated cost of $2,000; (h) The parties purchased a brand new detached home in January 2017 with 4 bedrooms, 3 bathrooms on a 30.5 x 12 metre lot. The wife estimates Mr. Majumder spent $15,000 on the parties’ hardwood, $10,000 on quartz counters in the kitchen, and $12,000 on appliances. Mr. Majumder paid for all the expenses associated with the parties’ home. On average, Ms. Rahman estimates that the parties spent $3,727.40 on their mortgage, property taxes, and insurance for their home. (i) During the relationship, Mr. Majumder provided a 2017 Mercedes C43 AMG for Ms. Rahman’s use. Mr. Majumder drove luxury vehicles, most of which appear to have been owned by one of the husband’s corporations. Mr. Majumder took the keys of Ms. Rahman’s vehicle following the separation and has not returned it. Mr. Majumder paid for Ms. Rahman’s gas and all expenses relating to the upkeep of her vehicle, including service appointments, during the marriage.

[11] During the marriage, Mr. Majumder had an interest in several corporations, including Pesco Petroleum Inc., YMJ Petroleum Inc., YMJ Flavour Foods Ltd., and Pesco Pump Ltd. Mr. Majumder has not provided any Financial Statements for any of the corporations, contrary to the clear requirements of the Family Law Rules. Mr. Majumder provided limited T2 Corporate Tax Returns for two of the four entities, namely T2s for fiscal year 2015, 2016, and 2017 (having a January 1st year end) for Pesco Pump Ltd. and a T2 for fiscal 2016 for Pesco Petroleum Inc.

[12] After the separation, in or about January 30, 2018, the gas station held by Pesco Petroleum Inc. was sold for approximately $5.265 million.

[13] Mr. Majumder is the sole shareholder of YMJ Petroleum Inc., which he concedes on his Financial Statement sworn June 26, 2018. Mr. Majumder has not provided any financial disclosure for this entity. Based on a Parcel Register search, this entity holds a gas station located at 7 Metcalfe Street East, Strathroy, Ontario. While Mr. Majumder claims that this entity has a value of $100,000 on his Financial Statement sworn June 26, 2018 on the date of separation, this entity received a commitment for a first mortgage of $2.4 million through Rescom Capital in or about February 2017. Under the agreement, YMJ was required to pay a monthly mortgage of $18,000. The property was valued (pre-construction) at $3.450 million.

[14] Mr. Majumder is an officer and director and sole shareholder of YMJ Flavour Foods, which is believed to be a related entity of YMJ Petroleum Inc. Mr. Majumder did not disclose this entity on his sworn Financial Statement or otherwise. Nor has he provided any financial disclosure for this entity despite claiming to earn no income from it.

[15] Ms. Rahman’s lawyers requested that Mr. Majumder provide financial disclosure as early as November 17, 2017. Mr. Majumder, through his first lawyer, agreed and undertook to provide his financial disclosure on December 1, 2017. He failed to do so, and ultimately retained another lawyer.

[16] Mr. Majumder brought an ex parte motion to commence his Application without a Financial Statement, despite knowing Ms. Rahman had requested a complete Financial Statement and that spousal support and the equalization of net family property were live issues. When Mr. Majumder served a Financial Statement prior to the case conference (June 26, 2018 for a conference returnable after the long weekend on July 4, 2018), he served his Financial Statement with “TBDs” for all expenses under Part 2 – making it impossible to show the disparity between his income and monthly expenditures.

[17] Mr. Majumder is the architect of the lack of meaningful documentary financial disclosure at this stage in this proceeding. Mr. Majumder has not paid any amount of without prejudice support, despite conceding entitlement.

[18] Mr. Majumder has failed to provide a meaningful financial statement or meaningful disclosure regarding his income to date. On Mr. Majumder’s Financial Statement sworn June 26, 2018, he claims to have earned an annual income of $14,850 in 2016. Mr. Majumder provided no income information for 2017 or the current year.

[19] According to Mr. Majumder, his Line 150 income has been: in 2014, $1; in 2015, $7,060; and, in 2016, $14,850. This is inconsistent with the level of expenditure during the marriage of the parties, inconsistent with his lifestyle, and inconsistent with his assets. In addition, without production of the financial statements, the degree to which the husband benefitted from corporate expenditures cannot be determined. For example, it appears that the husband’s luxury cars, which he drives, are owned by corporations. There is no disclosure of expenditures that are personal in nature that are paid through Mr. Majumder’s various corporate vehicles.

[20] The wife produced what appears to be Mr. Majumder’s 2015 T4 from Pesco Pump Ltd. (a company in which he has a 50% interest) which confirms that he received taxable income of $400,000. Mr. Majumder did not provide this T4, and denies that he has ever seen it.

[21] The wife has produced a copy of the husband’s TD Canada Trust Personal Assessment as at September 29, 2017 setting out Mr. Majumder’s net worth after liabilities of $5.9 million, three weeks prior to the separation (October 20, 2017). Mr. Majumder also appeared to have at least $200,000 in investments. Mr. Majumder failed to disclose any investments on his sworn Financial Statement.

[22] In the 11 month period between December 1, 2016 and October 31, 2017, Mr. Majumder received deposits into his personal TD All-Inclusive Banking Plan Account No. 3012 of approximately $480,000. There are very significant deposits which are unexplained; although he produced a chart which purports to trace his assets and dispositions, I note that the chart cannot be reconciled with the amounts apparently deposited in his personal account.

[23] The investment accounts referenced on Mr. Majumder’s personal TD Canada Trust Assessment have not been produced. Mr. Majumder was given an opportunity to provide his bank statements and explain these large deposits, but he failed to do so. He did not produce supporting documentation for the chart he relies on at Exhibit B to his July 26, 2018 affidavit.

[24] Mr. Majumder has not provided the financial statements for the corporations, general ledgers, trial balances, or corporate bank statements (including for credit instruments). I note that the bank statements at Exhibit “L” of Ms. Rahman’s Affidavit sworn July 18, 2018 show little in terms of personal expenses paid using funds in the one personal bank account disclosed. Given the high standard of living (including the cars apparently owned by the corporations), there has been no disclosure of personal expenses met by the corporations in which he has an interest.

[25] Mr. Majumder rented out the investment condo the parties purchased (Cameron Street, Toronto, Ontario). Mr. Majumder and Ms. Rahman found a tenant who agreed to pay $1,900 per month and signed a lease from May 15, 2017 to May 15, 2018. Mr. Majumder sold this property without Ms. Rahman’s knowledge or consent in December 2017. It is unknown whether Mr. Majumder reported any rental income in 2017 as he did not provide his 2017 tax return.

[26] Mr. Majumder’s representation that he has an annual income from all sources of $14,800 is simply not credible. His disclosure is completely inadequate in light of his lifestyle; trips to Dubai, significant credit facilities, and driving luxury cars is not consistent with this claimed income, which is below the poverty level: Hum v. Man, 1998 CarswellOnt 3764 (Ont. C.A.).

[27] Mr. Majumder has received combined personal and corporate loans (of which he has also acted as personal guarantor) of millions of dollars in 2016 and 2017. Mr. Majumder would not have qualified for such credit facilities with negligible income and insignificant assets with equity. Mr. Majumder has been asked for a copy of all applications for financing since 2014, but he has not provided same.

[28] Mr. Majumder personally or on behalf of a corporation in which he has an interest, has applied and received the following credit facilities, according to the wife’s evidence and not denied:

Registered Owner	Lender	Amount
Husband - Matrimonial Home Ascoli Drive, Hamilton, Ontario Charge	Home Trust Company	$610,764
Charge	1645532 Ontario Ltd.	$130,000
Husband - Investment Condo Cameron Street, Toronto, Ontario Charge	MCAP Service Corporation	$338,400.00
Charge	Gurwinder Kalra	$49,999.00
Husband - Brunel Court, Toronto, Ontario Charge	Royal Bank of Canada	$364,000.00
Pesco Petroleum Inc. 2493451 Ontario Inc. Husband & Sharif Ahmed Vaughan Road, York, Ontario Charge	Mijar Limited	$3,000,000
Charge	1461030 Ontario Inc.	$400,000
Charge	First Source Financial Management	$4,225,000
YMJ Petroleum Inc. 2546378 Ontario Inc Husband Metcalfe Street East, Strathroy, Ontario Charge	B & M Handelman Investments Ltd.	$2,400,000
Charge	2398804 Ontario Inc.	$550,000
Charge	2398804 Ontario Inc.	$800,000
Charge	RBC	$2,902,500
Loans in 2016 Total		$7,989,000
Loans in 2017 Total		$4,879,163

[29] The 2017 Pesco Pump Ltd. T2 year ending on January 1st, shows a capital dividend balance of $116,579 (page 37). As Mr. Majumder failed to provide the 2018 T2 or Financial Statement, it is unknown whether a dividend was paid out. The balance sheet of the T2 (page 42) shows that there was $185,000 in cash. While the gas station was sold in November 2016, the entity appears to still hold at least cash, which is available to pay out to Mr. Majumder as a 50% shareholder or alternatively, has been paid out to Mr. Majumder in full or in part. Mr. Majumder has not provided any documentary support showing that he has divested himself of his beneficial and/or legal interest in this entity.

[30] The documentary disclosure available supports an imputed annual income at least of $200,000.00. This does not factor in any personal expenses paid by the corporations that are not treated as a taxable benefit to Mr. Majumder. Additionally, Mr. Majumder pocketed 100% of the parties’ sale proceeds from their investment condo and all the net rental income. The full capital gain on the sale of the property is unknown. He appears to have extensive means (capital assets) which do not appear to have been fully disclosed.

[31] Section 15.2(4) of the Divorce Act provides that, in making a spousal support order, “the court shall take into consideration the condition, means, needs and other circumstances of each spouse …” “Means” is to be given an expansive interpretation such that it includes “all pecuniary resources, capital assets, income from employment or earning capacity, and other sources from which the person receives gains or benefits”: Mason v. Mason, 2016 ONCA 725, at para. 68. There is discretion to impute an income to a payor for the purposes of spousal support when financial disclosure is incomplete: Down v. Down (2012), CarswellBC No. 3977 (S.C.), at para. 28.

[32] Evidence of a party’s lifestyle is an important consideration in determining whether it is appropriate to impute income: Bak v. Dobell, 2007 ONCA 304, [2007] O.J. No. 1489 (Ont. C.A.), at para. 41. If a payor fails to disclose income information as required by him or her to determine support, a payor assumes the risk of a court attributing income to him or her, accurately or otherwise, based on a reconstruction of the payor’s gross income for support purposes. Payors who wish to avoid same should adduce the necessary evidence in support of his or her income for support purposes. Crosbie v. Crosbie, [2012] O.J. No. 3433 (Ont. C.A.), at paras. 20.

[33] With respect to the imputation of income to a payor, the same considerations apply to the imputation of income for spousal support purposes as for child support purposes: Cherry-Francey v. Francey, [2012] O.J. No. 1537 (S.C.J.), at paras. 94-96. The fundamental principle underlying section 19 of the Child Support Guidelines is that the Court is required to estimate the actual means which the payor has available for support. It is the payor’s available income considered, not simply income for tax purposes.

[34] Section 19 of the Guidelines permits the court to impute such an 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, (e) the spouse’s property is not reasonably utilized to generate income; (f) the spouse has failed to provide income information when under a legal obligation to do so; and (g) the spouse unreasonably deducts expenses from income.

[35] As a result, I impute income in the amount of $200,000 to the husband for the purposes of this interim spousal support motion. The income of the wife is $36,000.00.

[36] In the circumstances of this case, I do not consider that the SSAG’s provide appropriate guidance. In The Spousal Support Advisory Guidelines: A New and Improved User Guide to the Final Version, Professors Carol Rogerson and Rollie Thompson note specifically that some of the identified exceptions to the SSAG may be relevant in short marriages involving immigration sponsorship agreements, justifying a departure from the formula ranges. See: Carty-Pusey v. Pusey, 2015 ONCJ 382.

[37] The SSAGs expressly recognize that it may create specific problems for short marriages without children where the recipient has little or no income, as some short marriages can involve a large compensatory claim disproportionate to the length of marriage. An immigration agreement is a strong factor in favour of ordering support. Short marriages involving immigration sponsorship agreements raise unique issues under the SSAGs: Niranchan v. Nadarajah, 2015 ONCJ 149 (S.C.J.) at para 54, Carty-Pusey v. Pusey, 2015 ONCJ 382 para 47.

[38] The wife has submitted a reasonable expenses budget of $3,643.53, plus $2,000.00 housing, for a total of $5,643.53 per month. In order to meet this amount (net), the wife calculates she requires spousal support of $4,595.00 per month from the husband, presuming she continues to earn $36,000 per annum as she has done since February, 2018. This is a reasonable needs based approach in the circumstances, and I so order. The husband concedes entitlement. The support should commence as at the date of the Answer, May 19, 2018. Given the sponsorship agreement, the early notice of the support claim, the concession as to entitlement, and the need of the wife, I find that retroactive support to date of separation (October 20) should also be paid, on a lump sum basis.

[39] The wife claims that in order to sustain the lifestyle during marriage, the parties spent $34,933.78 per month, or $419,205.36 (net) per annum. Where the payor spouse has the ability to pay, a dependent whose pattern of dependency developed during the marriage is entitled to maintain the lifestyle that he or she became accustomed to during cohabitation pending trial or resolution. Where the lifestyle during cohabitation was a lavish one, this can result in large interim support awards (Lebovic v. Lebovic, (2001), 15 R.F.L. (5th) 115 (Ont. S.C.); Lakhani v. Lakhani, (2003), 43 R.F.L. (5th) 125 (Ont. S.C.)). In the circumstances of this case, where the period of marriage was 10 months, I do not find that a pattern of dependency developed during the 10 month marriage to maintain a lavish lifestyle on an interim basis.

Sponsorship File

[40] The parties retained Mr. Majumder’s family’s lawyer, Paltu Sikder, to assist with Ms. Rahman’s application to become a permanent resident under the Spouse in Canada Class.

[41] As part of this sponsorship agreement, Mr. Majumder undertook to support Ms. Rahman for a period of three years. Ms. Rahman believes the final forms and undertaking were executed in or about June 2017. However, she does not have a copy of the undertaking and forms.

[42] Ms. Rahman’s lawyers have made numerous requests from Mr. Sikder for the disclosure of the parties’ immigration file. Initially, Mr. Sikder did not recall that Ms. Rahman was his client. He then subsequently provided a bill in the amount of $2,894.28 (including 110 pages of photocopying). Ms. Rahman had never received a previous bill, nor does she have the funds necessary to pay Mr. Sikder’s account. Ms. Rahman understood that Mr. Majumder paid Mr. Sikder $1,000.00 on or about May, 2017 by credit card. However, Mr. Sikder has not produced his file on the basis of non-payment. I direct the husband to obtain and produce the sponsorship agreement executed by him, and the file from Mr. Sikder, within 30 days. He is to pay the outstanding bill, and provide a complete copy of the file to the wife within 30 days. As the party signing the sponsorship agreement, it is his obligation to produce the agreement. The court needs to see the agreement. The wife is to provide any consent/direction as required.

[43] Given Ms. Rahman’s apparently precarious immigration situation, the parties must proceed on an expedited timeline to resolve all outstanding property issues. The parties are directed to obtain a case conference date in September, 2018 to deal with: (a) outstanding financial disclosure issues; and (b) a schedule to trial.

[44] Ms. Rahman is entitled to costs. The parties have provided me with their offers to settle and costs outlines, which I will review.

Justice Kristjanson

Date: August 23, 2018

NOTE: This endorsement has been edited subsequent to the release to the parties to remove data identifiers including bank account numbers, street numbers, PIN numbers and charge numbers.