minicounsel

Footnotes

Exhibit 28 at the Trial
Exhibit 1 at the trial
Exhibit 62 at the trial
Exhibit 62 at the Trial
Exhibit 63 at the trial
Exhibit 74 at the trial
Exhibit 97 at the trial
Exhibit 58 at the trial
Exhibit 59 at the trial
Exhibit 55 at the trial
Exhibit 109 at the trial
Exhibit 56 at the Trial
Justice Emery’s Trial Scheduling Endorsement Form was entered as Exhibit 60 at the trial.
Exhibit 120 at the trial
Exhibit 121 at the Trial
Exhibit 45 at the Trial
Exhibit 122 at the Trial
Exhibit 124 at the Trial
Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436.
Rathwell, supra, at 451.
Rathwell, supra.
Becker v. Pettkus, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834.
Becker, supra, at paras. 22 and 26
Becker, supra, at para. 38.
Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, per Cory J., at para. 84.
Peter, supra, at para. 26.
Soulos v. Korkontzilas, 1997 CanLII 346 (SCC), [1997] 2 SCR 217, at paras. 20, 43.
Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38, at paras. 31-32.
Exhibit 107 at the trial
Exhibit 108 at the trial
Segraves (otherwise Fralick) v. Fralick, 1951 CanLII 97 (ON CA), citing Inverclyde (otherwise Tripp) v. Inverclyde, [1931] P. 29; Rayden on Divorce, 5th ed. 1949, pp. 43-4.
Exhibit 51 at the trial.
Exhibit 108 at the trial
Exhibit 103 at the trial
Exhibit 116 at the trial
Exhibit 115 at the trial
Exhibit 28 at the Trial
Exhibit 114 at the trial
Serra v. Serra, 2007 CarswellOnt 665 (W.L. Can.), rev’d on different grounds 2009 ONCA 105, 93 O.R. (3d) 161, additional reasons 2009 ONCA 395, 66 R.F.L. (6th) 40.
Ms. Hardayal tendered a T4 slip for 2001 on an account at the Bank of Montreal in the names of Mr. Asrula, his mother, and his niece, listing his address as 74 Cheviot Crescent.⁴¹
Exhibit 9 at the trial
Exhibit 8 at the trial
Exhibit 100 at the trial
Part of Exhibit 45 at the Trial
Part of Exhibit 45 at the Trial
The Amendment and Agreement for Optional Extras being part of Exhibit 45
Exhibit 45 at the Trial
Exhibit 44 at the Trial
Exhibit 54
Exhibit 55 at the trial
The Account History was Exhibit 95 at the trial
Bardouniotis v. Trypis, 2010 ONSC 4466, at para. 9
Manchanda v. Thethi, 2016 ONSC 3776, at para. 22
Murray v. Murray, 2010 ONSC 4278, at para. 52
Parker v. Parker, 2008 ONSC 54323, paras. 35 & 49
Exhibit 10 at the trial
Exhibit 9 at the trial
Exhibit 8 at the trial
Exhibit 6 at the trial
Exhibit 7 at the trial
Exhibit 3 at the trial
Exhibit 4 at the trial
Exhibit 127 at the trial
Exhibit 14 at the trial. The letter from Mr. Asrula to Mr. Cohen dated Feb 26, 2009, five years after the closing in 2004, regarding the 49% later, was entered as Exhibit 98 at the trial.
Child Support Guidelines, O Reg 391/97; N.L. v. B.P., 2000 ONSC 22516, para. 40; Ménage v. Hedges, 1987 ONSC 5234, para. 91; Manning v. Manning, 2004 ONSC 4790, para. 7
Exhibit 15 at the trial
Exhibit 15 at the trial
Exhibit 94 at the trial
Exhibit 46 at the Trial
Exhibit 47 at the Trial
Exhibit 48 at the Trial
Exhibit 93 at the trial
Exhibit 94 at the trial
Exhibits 48 and 46 and 100 at the trial
Exhibit 30 at the Trial
Tab 4 of Exhibit 100 at the Trial
Exhibit 31 at the Trial
Exhibit 34 at the Trial
Exhibit 112 at the trial
Exhibit 113 at the trial
Exhibit 57 at the trial
Exhibit 32 at the Trial
Family Law Act, RSO 1990, c F.3
Federal Child Support Guidelines, S.O.R. 97-175, s. 3.
S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231. [D.B.S.]. Also: W.(L.J.) v. R.(T.A.); Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37
D.B.S., at para. 97.
D.B.S., at para. 99.
D.B.S., at para. 116.
D.B.S. , at para. 125.
CED Family Law - Divorce VI.8.(b) at §657
Moore v. Fernandes, 2001 CanLII 28263 (ON SC), [2001] O.J. No. 5192 (Sup. Ct.), para. 8
S. (N.T.) v. B. (K.J.), 2007 BCSC 1895, paras. 27-28
Karajian v. Karajian, 2012 ONSC 4921, Eberhard J., at para. 44
Henderson-Jorgensen v. Henderson-Jorgensen, 2013 ABQB 213, Wilson J., at paras. 15-16
Federal Child Support Guidelines, s. 7
Adapted from Titova v. Titov, 2012 ONCA 864, at para. 23.
In Wawzonek v. Page, 2015 ONSC 4374, Justice Pazaratz says, at para. 198, that the tax considerations should come before consideration of the child’s contribution.
Wawzonek v. Page, 2015 ONSC 4374, at para. 198.
Terry v. Moyo, 2013 ONCJ 364, at para. 29.
MacNeil v. MacNeil, 2013 ONSC 7012, paras. 31 to 34.
Bordin v. Bordin, 2015 ONSC 3730, at para. 116.
Exhibit 23 at the Trial
Part of Exhibit 77 at the Trial
Exhibit 24 at the Trial
Exhibit 25 at the Trial
Exhibit 21 at the Trial
Exhibit 22 at the Trial
Part of Exhibit 77 at the Trial
Part of Exhibit 77 at the Trial
Exhibit 26 at the Trial
Exhibit 16 at the Trial
Exhibit 18 at the Trial
Exhibit 18 at the Trial
Exhibit 20 at the Trial
Exhibit 27 at the Trial
Exhibit 19 at the Trial
Exhibit 17 at the Trial
Part of Exhibit 77 at the Trial
Exhibit 18 at the Trial
Exhibit 20 at the Trial
Exhibit 27 at the Trial
Rotondi v Rotondi, 2014 ONSC 1520, paras. 28 to 41
Exhibit 42 at the Trial
Exhibit 105 at the Trial
Exhibit 125 at the Trial
Exhibit 131 at the Trial
Exhibit 132 at the Trial
Exhibit 133 at the Trial
Exhibit 92 at the Trial
Exhibit 43 at the Trial
Exhibit 91 at the trial
Exhibit 29 at the trial
Exhibit 90 at the trial
Exhibit 38 at the Trial
Exhibit 39 at the Trial
Exhibit 40 at the Trial
Exhibit 126 at the trial
Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at 442.
Exhibit 87 at the trial
Morningstar v. Holley, 2007 CanLII 2359 (ON SC), at paras. 5-7, 9.
Exhibit 10 at the trial
Boisvert v. Boisvert, 2007 CanLII 24073 (ON SC), 40 R.F.L. (6th) 158, para. 48.
Exhibit 118 at the trial
Exhibit [137]

DATE: 2018-11-20

Self-represented

Applicant

and -

Self-represented

Respondent

HEARD: March 21 to 24, June 12, July 10, and August 2, 2017, at Brampton, Ontario

OVERVIEW

1Drupatie Hardayal (“Ms. Hardayal”) and Goolsair Asrula (“Mr. Asrula”) celebrated their wedding with family and friends in 1986. Their marriage was invalid, as Ms. Hardayal was married to someone else at the time. She says that her mother insisted on the ceremony because Ms. Hardayal was pregnant at the time with Mr. Asrula’s child.

2Ms. Hardayal was later divorced from her husband, but she and Mr. Asrula never legally married. They remained together for 23 years and had four children together. They eventually separated in 2008, after which Ms. Hardayal began the present proceeding. They continued to live under the same roof until January 2011, when Mr. Asrula left the home.

3The proceeding was tried, at intervals, from March 21 to August 2, 2017, after which the Court reserved judgment. It soon became evident that the parties’ sham wedding had been a harbinger of a pervasive deception that undermined the marriage and later dominated the trial. In the face of conflicting evidence and a lack of full financial disclosure, the Court must determine the parties’ respective entitlement to the home they occupied during their relationship, their respective obligations for their joint line of credit, and Ms. Hardayal’s entitlement, if any, to child support for the parties’ children, now 18 to 31 years old, and to spousal support.

BACKGROUND FACTS

The parties’ relationship

4The parties were born in Guyana. They met in Canada in 1983, when Ms. Hardayal was 18, (born March 14, 1965), and Mr. Asrula was 22, (born September 8, 1961). They were friends for a short time, then became intimate, and in about February 1986, Ms. Hardayal became pregnant with their first child.

5The parties celebrated their wedding at a Hindu ceremony with family and friends in Toronto in April 1986. The marriage was invalid because, at the time of the ceremony, Ms. Hardayal was married to another man, Rohit Phagu. Ms. Hardayal testified that her mother insisted on the ceremony because Ms. Hardayal was pregnant at the time with Mr. Asrula’s child, who was born 7 months later.

6Ms. Hardayal and Mr. Asrula remained together for 23 years, separating on November 30, 2008. Ms. Hardayal was then 43; Mr. Asrula was 47.

7The parties have four children, all of whom continued to reside with Ms. Hardayal when the parties separated. At the time of the trial, the elder two children had left Ms. Hardayal’s home and were residing with Mr. Asrula. The children are:

a) Nashan Asrula, who is 31 (born November 10, 1986)

b) Anthony Asrula, who is 28 (born April 17, 1990)

a) Merissa Asrula, who is 22 (born August 13, 1996)

b) Alyssa Asrula, who is 19 (born July 1, 1999)

The criminal proceeding

8The parties’ relationship was a difficult one. Ms. Hardayal summoned the police to their home more than 25 times with complaints of violence by Mr. Asrula. Mr. Asrula denies her allegations, and attributes the frequent calls to the police to Ms. Hardayal’s controlling personality and the fact that she lies to anyone, including the authorities.

9In March 1991, Ms. Hardayal alleged that Mr. Asrula had damaged furniture in their home with a “cutlass”, and then chased her and the children outside. She claims that neighbours saw this and called the police. Mr. Asrula was arrested and incarcerated for a month. He eventually secured his release on $5,000 bail. Ms. Hardayal and the children then moved to a Women’s Shelter.

The civil proceeding and sale of 74 Cheviot Crescent

10On March 22, 1991, while a trial of the criminal charge was pending, Mr. Asrula and his brother, Mohammed Asrula, began a civil action in the Ontario Court (General Division) in which they sought a declaration that Ms. Hardayal had no beneficial interest in the parties’ jointly owned home at 74 Cheviot Crescent in Brampton, possession of the home, and damages (“the civil action”).

11In her Statement of Defence and Counterclaim dated April 18, 1991, Ms. Hardayal sought an Order for interim exclusive possession of the home until it could be sold, and an Order that the proceeds of sale be divided equally between her and Mr. Asrula. She additionally claimed custody of the parties’ then two children and child support for them. She attributed the parties’ separation to Mr. Asrula’s physical and emotional abuse of her, and stated that she and the parties’ children had moved to a women’s shelter. Ms. Hardayal was unemployed at the time, and acknowledged that she had not contributed financially to the acquisition of 74 Cheviot Crescent. She stated that when she began living with Mr. Asrula, she had approximately $10,000.00 which was “invested in family expenses”.

12On hearing Ms. Hardayal’s motion for interim relief on April 26, 1991, Speigel J. made an Order granting her interim custody of the children, exclusive possession of 74 Cheviot Crescent, and child support in the amount of $800 per month.

13In an affidavit sworn May 17, 1993, Ms. Hardayal stated she had, by then, returned to her previous employment at Knob Hill Farms in Scarborough where she earned $17,160.00 per year. On June 14, 1993, Caswell J. made a consent Order directing sale of 74 Cheviot Crescent, and granting Ms. Hardayal exclusive possession of the home until its sale. The Order required Ms. Hardayal to pay the costs of the motion in the amount of $1,000.00.

14Justice Caswell stayed the collection of child support ordered by Speigel J. She ordered Ms. Hardayal to pay the mortgage and utilities on 74 Cheviot Crescent until it was sold, and directed that that Ms. Hardayal not be required to pay occupation rent because Mr. Asrula had not paid her any support.

The parties’ reconciliation

15When the criminal charge against Mr. Asrula was resolved, Mr. Asrula was placed on probation with a condition that he not have contact with Ms. Hardayal. He married another woman, but that marriage ended in divorce after a short time. When Mr. Asrula’s probation ended, he and Ms. Hardayal reconciled and they resumed cohabitation in 1994. Merissa Asrula was born on August 13, 1996, and Alyssa Asrula was born July 1, 1999.

16The parties separated again in 2000 but continued to live under the same roof. Mr. Asrula occupied a basement apartment at their home at 74 Cheviot Crescent. On March 6, 2000, the parties, both represented by lawyers, entered into a Cohabitation Agreement giving Ms. Hardayal custody of the four children, with access by Mr. Asrula.

17The Cohabitation Agreement provided that 74 Cheviot Crescent would not be sold without the consent of both parties, and that Mr. Asrula would pay the mortgage of $1,200.00 per month in lieu of child support until the mortgage was paid off. Thereafter, he would pay child support of $800.00 per month.¹ On June 30, 2000, Kruzick J. made a final consent Order on those terms.

The parties’ acquisition of 5 Nelly Court, Brampton

18In 2004, the parties sold 74 Cheviot Crescent and bought a home at 5 Nelly Court in Brampton (“Nelly Court”) from the builder. Ms. Hardayal signed the Agreement of Purchase and Sale and applied for a mortgage to finance the purchase. She retained a lawyer, David Cohen, and instructed him to register the title in the parties’ names as tenants in common, with 99% in her name and 1% in Mr. Asrula’s name. Mr. Cohen prepared the transfer and mortgage and related documents, giving effect to that allocation. The documents were not given to Mr. Asrula until the afternoon of the closing, when he signed them, for reasons that are in dispute.

Mr. Asrula’s departure from the home

19On November 30, 2008, Ms. Hardayal summoned the police again with a further complaint against Mr. Asrula. Mr. Asrula was not charged, but the police advised him to leave the home for a short time. He later resumed living in the basement apartment until January 5, 2011. At that point, Ms. Hardayal complained to the police again, and Mr. Asrula finally moved to a shelter. This time, he did not return.

The present proceeding

20Because Ms. Hardayal requested an adjournment at the outset of the trial, which was denied, and because some of the interim orders are relevant to Ms. Hardayal’s claim for child support, I will set out the history of the proceeding, and its attendant delays, with greater detail than would otherwise be necessary.

a) Beginning of proceeding and transfer to the Superior Court

21Ms. Hardayal began the present proceeding in the Ontario Court of Justice in 2009. During the proceeding there, disclosure was ordered and Ms. Hardayal was ordered to pay Mr. Asrula’s costs in the amount of $3,000.00. On August 13, 2009, Baldock J. made an Order transferring the proceeding to the Superior Court. As far as I can determine, Ms. Hardayal never paid the costs that were awarded to Mr. Asrula in the Ontario Court.

b) Renewal of mortgage and interim child support orders

22On March 15, 2011, Kruzick J. made an Order allowing Ms. Hardayal to renew the parties’ mortgage on 5 Nelly Court. Justice Kruzick directed that if Mr. Asrula refused to sign, his signature and consent were to be dispensed with. The Order required each of the parties to contribute equally to mortgage payments until further order, and required Mr. Asrula to pay Ms. Hardayal’s costs of the motion in the amount of $1,000.00.

c) Early Case Conference and Order of Snowie J.

23At an Early Case Conference on April 11, 2011, neither Mr. Asrula nor his lawyer attended. Mr. Asrula now asserts that he was not given notice of the Conference, which Ms. Hardayal disputes.

24At the Conference, Snowie J. made an Order requiring Mr. Asrula to pay temporary child support of $1,485.00 per month for the parties’ four children from April 11, 2011, until Ms. Hardayal’s motion for child support was heard. The amount was based on Mr. Asrula’s disclosed income of $64,402.00. Justice Snowie ordered Mr. Asrula to pay Ms. Hardayal’s costs of the conference, fixed at $2,000.00.

d) Motions for child support

25On the return of Ms. Hardayal’s motion on February 12, 2013, the parties signed Minutes of Settlement. The Minutes provided that, on a temporary and without prejudice basis, retroactive to September 11, 2012, Mr. Asrula would pay child support of $906.00, being the table amount for the parties’ two minor children under the Federal Child Support Guidelines (“the FCSG”, or “the Guidelines”). Justice Tzimas made a consent Order on those terms.

e) Pleadings, disclosure, and trial scheduling

26Justice Tzimas additionally set the following timetable:

(a) The parties would exchange financial statements by March 15, 2013;

(b) Mr. Asrula would deliver his Answer and Affidavit in support of custody/access by March 31, 2013;

(d) Ms. Hardayal would produce proof of the s. 7 expenses she was claiming, with legible receipts verifying payment.

27Justice Tzimas adjourned Ms. Hardayal’s motion for child support to May 27, 2013, to be heard as a long motion, and ordered Mr. Asrula to comply with outstanding costs orders by May 1, 2013.

28On July 22, 2014, at Mr. Asrula’s request, Donoghue J. adjourned Ms. Hardayal’s motion for child support a further week to July 29, 2014, to enable Mr. Asrula to retain counsel. On July 29, 2014, Edwards J. ordered the parties to make full financial disclosure within 30 days, granted them leave to conduct questioning, scheduled a Trial Management Conference for October 29, 2014, and adjourned Ms. Hardayal’s motion for child support to the trial judge.

29The Trial Management Conference was adjourned from October 29, 2014, to June 22, 2015, when it proceeded before Emery J. Justice Emery set a timetable for the remaining steps to be taken before trial. He ordered:

(a) amended pleadings and up-dated Financial Statements to be delivered by July 23, 2015;

(b) Trial Records to be delivered 30 and 15 days before trial; and

30On July 27, 2015, Daley J. found that the parties had not completed their disclosure. He adjourned the trial, first to September 14, 2015, then to December 14, 2015, and then to February 22, 2016, to be spoken to.

31On February 22, 2016, Mr. Asrula was granted a further adjournment to enable him to retain counsel. The parties advised the court that a trial was required for the issues of equalization and child support only, and would require 2 days. The court scheduled the trial for the week of November 21, 2016.

32On November 21, 2016, Van Melle J. conducted a Pre-Trial Conference. Ms. Hardayal asked for a further adjournment of the trial as she had just retained a new lawyer, Samir Suri. Neither party had filed a Trial Record. Justice Van Melle adjourned the proceeding to March 20, 2017, for a 2 day trial, peremptory to both parties, and ordered the parties to deliver their Trial Records by February 1 and February 15, 2017. On February 17, 2017, Lemon J. gave Ms. Hardayal further time to file her Trial Record.

f) Ms. Hardayal’s renewed request to adjourn the trial

33At a further Pre-Trial Conference on March 20, 2017, with the trial scheduled to begin that week, Ms. Hardayal asked for a further adjournment to enable her to retain new counsel. Baltman J. refused her request, advising the parties that any further adjournment would be in the discretion of the trial judge. She directed the parties to attend the following day for the beginning of their trial.

34On March 21, 2017, Ms. Hardayal attended court with a lawyer, Shilpa Mehta, acting as her agent. She renewed her request to adjourn the trial in order to await the return of her file from her previous lawyer, Karen Dosanjh. She stated that she had requested her file from Ms. Dosanjh in mid-February and had followed up her request on March 20th, 2017, after Baltman J. had denied her request for an adjournment. She stated that Ms. Dosanjh had told her that she required four weeks to retrieve the file from “the archives”. She further stated that she could retain Ms. Mehta immediately, but that Ms. Mehta needed her file to prepare for the trial.

35The Court, on speaker phone from the courtroom, telephoned Ms. Dosanjh to ascertain the reason for the delay in returning Ms. Hardayal’s file. Ms. Dosanjh stated that she had returned Ms. Hardayal’s entire file to her nine months earlier, on June 3, 2016. She additionally stated that Ms. Hardayal had telephoned her on March 20th, after appearing before Baltman J., and told her that she would be asking to adjourn the trial on the ground that she needed documents from her file from Ms. Dosanjh. She asked for a letter from Ms. Dosanjh to that effect. Mr. Dosanjh stated that she told Ms. Hardayal that she would have “serious issues” if Ms. Hardayal sought an adjournment on that basis.

36The court denied Ms. Hardayal’s request for a further adjournment of the trial, and Ms. Mehta declined to represent her at the trial. Both parties proceeded to trial on March 22, 2017 self-represented.

37On March 22, Ms. Dosanjh sent to the court a copy of a Release that Ms. Hardayal had signed in June 2016, acknowledging receipt of her file, the contents of which were itemized.² The Release was entered as the first exhibit at the trial.

38The trial lasted 6 days, at intervals from March 22 to August 2, 2017. The Court then reserved judgment.

THE ISSUES

39The Court must determine the following issues:

a) What are the parties’ respective entitlements to Nelly Court?

b) What are the parties’ obligations to repay their $100,000.00 joint line of credit?

c) What is Ms. Hardayal’s entitlement, if any, to retroactive child support for the parties’ four children, and to ongoing child support for the two youngest children, who are now 19 and 22 years old?

d) What contribution, if any, should Mr. Asrula be required to make to the children’s special and extraordinary expenses?

e) What spousal support, if any, should Mr. Asrula be required to pay to Ms. Hardayal?

The additional issue of Ms. Hardayal’s inheritance

40In her opening statement to the Court, Ms. Hardayal stated that she was claiming the return of $52,000.00 that she had inherited from her mother and had given to Mr. Asrula to invest in stocks. She stated that Mr. Asrula had never returned the funds to her.

41The Court noted that Ms. Hardayal had not claimed a return of investment funds in her Application, nor included such a claim in her Trial Management Conference brief or Pre-Trial Conference brief, among the issues to be determined at trial. As it would have been unfair to Mr. Asrula to require him to defend that claim without prior notice, the Court held that it would not determine that issue, and would not allow evidence in relation to it except to the extent that such evidence was relevant to the parties’ other claims.

POSITIONS OF THE PARTIES AND SUMMARY OF FINDINGS

g) Entitlement to 5 Nelly Court in Brampton

Ms. Hardayal’s position

42As noted above, the title to 5 Nelly Court was registered in the names of the parties as tenants in common, with Ms. Hardayal owning 99% and Mr. Asrula owning 1%. Ms. Hardayal asserts that Mr. Asrula’s name was on title only to facilitate mortgage financing, and that the parties never intended him to have a beneficial interest in the property, as he had not contributed financially to its acquisition. Additionally, she asserts that she alone paid the mortgage, property tax, and home insurance from 2004, when the property was purchased, until the trial, in 2017. She asks that Mr. Asrula’s name be removed from the title to the property and from the mortgage on it.

Mr. Asrula’s position

43Mr. Asrula asserts that 5 Nelly Court was purchased, in large part, with the $115,000.00 net proceeds of sale of 74 Cheviot Crescent in Brampton, which the parties’ jointly owned, but which he alone had paid for. He claims re-imbursement of the $115,000.00 and 50% of the balance of the net proceeds of sale of 5 Nelly Court.

44Mr. Asrula acknowledges that he was shown as only a 1% owner of Nelly Court to facilitate mortgage financing and to protect the property from a potential claim against him by the Canada Revenue Agency, arising from a tax audit that was ongoing when the purchase of Nelly Court was closing. However, he says that Ms. Hardayal agreed at that time that a further 49% would be transferred to him later, to make them equal owners.

45Mr. Asrula claims a constructive trust interest in half of Ms. Hardayal’s share of 5 Nelly Court, based on the greater contribution he made to its purchase, and on the fact that he paid or contributed to the carrying costs of the property following its purchase. He stated that Ms. Hardayal had an ATM card for his TD Canada Trust account, into which his salary was deposited, and used the card freely to transfer funds to an account of her own, from which she paid the carrying costs of the house.

This Court’s findings and disposition of the issue

46I find that the each of the parties has an equal beneficial interest in the property at 5 Nelly Court, and that Ms. Hardayal holds 49% of the registered interest in trust for Mr. Asrula. I find that Ms. Hardayal derived the funds she used to pay the $40,000.00 deposits for the purchase of the property in part from transfers from Mr. Asrula’s bank account, for which she possessed an ATM card. The parties paid the balance of the down-payment from bridge financing from TD Canada Trust, in the form of a temporary increase in their joint Line of Credit.

47The bridge financing was later repaid with part of the net proceeds of sale of the parties’ jointly owned property at 74 Cheviot Crescent. A further $67,888.05 of the net proceeds of that property was paid to Ms. Hardayal, who appropriated those funds for her own use. The balance of the purchase price was financed with a mortgage from TD Canada Trust.

48The property at 5 Nelly Court will be sold and the proceeds divided equally between the parties, subject to a deduction of $52,711.35 from Ms. Hardayal’s share, representing the $67,888.05 she retained from the sale of 74 Cheviot Crescent, less the deficit of $10,000.00 in Mr. Asrula’s $20,000.00 share of the deposits paid for 5 Nelly Court and $5,176.70 that was paid from the proceeds of 74 Cheviot Crescent to Legal Aid Ontario to discharge its lien for Mr. Asrula’s legal fees.

h) Line of Credit

Mr. Asrula’s position

49Mr. Asrula seeks an Order requiring Ms. Hardayal to repay the parties’ $100,000.00 joint Line of Credit at TD Canada Trust, described as a “Home Equity Loan”. He states that the Line of Credit was to have been used only for joint investments or for the children’s education, but that Ms. Hardayal used it for her own investments, which she later failed to disclose to him or to the Court.

50Mr. Asrula claims reimbursement of the amounts that Ms. Hardayal withdrew from the Line of Credit without his consent, both when the parties resided at 5 Nelly Court and after he moved out in January 2011. Alternatively, he claims those amounts as a credit against his child support obligations. Additionally, he seeks an Order requiring Ms. Hardayal to remove his name from the joint Line of Credit.

Ms. Hardayal’s position

51Ms. Hardayal acknowledges that she withdrew funds from the joint Line of Credit and offers to re-pay 50% of the $100,000.00 balance outstanding. She says that she used the funds to pay for the children’s post-secondary education, and family vacations, and to buy a bed for Mr. Asrula’s use in the basement of 5 Nelly Court when he was living there.

52Each of the parties asks that an adverse inference be drawn against the other for their failure to comply with court orders for financial disclosure. Mr. Asrula maintains that he complied with the disclosure orders but that Ms. Hardayal did not. He submitted copies for his Requests for Information and of the disclosure brief that he produced to Ms. Hardayal prior to trial.

53Ms. Hardayal asserts that she provided any requested documents to her then lawyer, Ms. Dosanjh, who was responsible for transmitting them to Mr. Asrula. She alleges that Ms. Dosanjh failed to return some of her documents to her, as a result of which she is now unable to produce them. These presumably include the monthly statements for her chequing account at the Bank of Nova Scotia upon which she drew the cheques for deposits on the purchase of 5 Nelly Court, and which she used to pay the carrying costs and other expenses of that property, and to pay the balances owing on the credit card she used to pay the children’s expenses, including the costs of their post-secondary education expenses.

The Court’s findings and disposition of the issue

54I find that Ms. Hardayal was responsible for virtually all of the transfers and withdrawals from the joint Line of Credit after it was renewed following the purchase of 5 Nelly Court in 2004. Many of the transfers were to Ms. Hardayal’s personal bank account. While I find that Ms. Hardayal used a substantial portion of the funds from the Line of Credit for her own benefit, she also used a substantial portion of them to pay the carrying costs of the parties’ jointly owned property at 5 Nelly Court. For that reason, having regard to the fact that half of that property will be vested in Mr. Asrula, I find that the parties should be equally responsible for paying the outstanding balance of the Line of Credit. The Court will order that the Line of Credit be repaid from the proceeds of sale of 5 Nelly Court before the distribution of the balance to the parties.

i) Child support

Ms. Hardayal’s position

55Ms. Hardayal asserts that Mr. Asrula failed to pay the full amount of child support that he owes. She claims retroactive child support for all four children from when the parties separated on November 30, 2008, including the temporary support ordered by Snowie J. on April 11, 2011, and the temporary without prejudice support ordered by Tzimas J. on September 11, 2012, for the two minor children, less a credit for the support that Mr. Asrula paid.

56As noted above, Snowie J.’s Order required Mr. Asrula to pay $1,485.00 per month beginning April 11, 2011, for the support of the parties’ four children. Justice Tzimas’ consent Order dated February 12, 2013, on a without prejudice basis, reduced the support to $906.00, retroactive to September 11, 2012, payable for the two minor children only.

57Ms. Hardayal claims ongoing child support for the youngest child, Alyssa, and for the eldest two children, Neshan and Anthony, while they were enrolled in post-secondary studies at Laurier University/Humber College, and York University, respectively.

Mr. Asrula’s position

58Mr. Asrula asserts that after the parties separated in 1991, and until they resumed cohabitation in 1994, child support was governed by their Cohabitation Agreement, which required Mr. Asrula to pay $1,200.00 per month for the mortgage in lieu of child support until the mortgage was paid in full, and $800.00 per month for child support thereafter. The mortgage was not paid in full until 74 Cheviot Crescent was sold in August 2004.

59Mr. Asrula states that when the parties resumed cohabitation in 1994, he gave Ms. Hardayal an ATM card for his bank account at TD Canada Trust into which his salary was deposited so that she could withdraw the $1,200.00 per month, but that she fraudulently withdrew greater amounts, and at times his full salary, instead. He says that he additionally made contributions toward household expenses and payments directly to the children.

60Mr. Asrula claims that while he paid the mortgage on 74 Cheviot Crescent, which was to have been in lieu of child support, Ms. Hardayal also received child support that the Family Responsibility Office garnished from his salary pursuant to Tzimas J.’s consent Order dated February 12, 2013, for child support of $906.00, with the result that she received double the amount she was entitled to receive.

61Mr. Asrula claims that he overpaid child support for the above reasons, and continued paying support for the eldest children after they were adults and self-sufficient. He says that Ms. Hardayal has never produced proof that the eldest children, after becoming adults, were financially dependent on her and eligible for child support. He claims reimbursement for over-payments of child support for those reasons.

62Mr. Asrula acknowledges his continuing obligation to pay child support for the parties’ youngest child, Alyssa, who was 17 at the time of the trial. He says that that Alyssa’s support, up to the age of 18, should be in the table amount of $556.00 per month, based on his income of $60,000.00. He seeks an Order terminating his child support obligations for all four children, retroactive to when they reached the age of 18, and claims a credit for his over-payments, and for the duplicate payments he made beginning April 2011, against his ongoing child support obligation.

The Court’s findings and disposition of the issue

63I find that Neshan continued to be a “child of the marriage” within the meaning of the Family Law Act while he attended Laurier University, with some interruptions, for a year and a half, from September 2005 to April 2007, and for a further two years while he attended Humber College from September 2007 to September 2009, when Neshan was 22 years old.

64I find that Anthony was likely in full time attendance at the Faculty of Arts and Professional Studies at York University for three years, from September 1, 2008, to April 30, 2011. When he completed that program, he had just turned 21, and I find that he ceased to be a child of the marriage at that time.

65Because Neshan ceased to be a child of the marriage in September 2009, when he was 22, and Anthony ceased to be on April 30, 2011, when he was 21, and because the parties were living under the same roof until January 2011, and Ms. Hardayal did not apply for and obtain an Order for child support until April 11, 2011, and by the beginning of the next month, neither child was still a child of the marriage, I find that Anthony was never entitled to receive child support from Mr. Asrula. The fact that Neshan and Anthony were living with Mr. Asrula during that period is a further reason why Ms. Hardayal should not have received child support for them.

66I find, that Merissa was enrolled in a four year program of post-secondary studies from the Fall of 2014 until her graduation in April 2018, attending full-time, or close to full time, throughout. She continued to be financially dependent on her parents throughout her studies, and was therefore a child of the marriage until April 2018. As Merissa was principally resident with Ms. Hardayal during her studies, Ms. Hardayal is entitled to child support for her from April 2011 until April 2018.

67I find that beginning in September 2017, Alyssa would be attending a nursing program at the University of Guelph/Humber, where she does not need to be in residence. Ms. Hardayal was unsure as to the length of her program, so I will make a generally worded Order requiring Mr. Asrula to pay child support to Ms. Hardayal for so long as Alyssa continues to be enrolled in that program.

68Because Tzimas J. ended child support for Neshan and Anthony retroactive to September 11, 2012, and the FRO made the appropriate adjustments for the period from that date onward, there was an over-payment of child support for Neshan and Anthony up to that point. During the period when Neshan and Anthony were no longer children of the marriage, Mr. Asrula should have been paying $906.00 per month. The difference between that amount and the $1,485.00 that was garnished from his salary from April 2011 to September 2012 for the support of all four children was $579.00 ($1,485.00 and $906.00). For the 17 months, the overpayment amounted to $9,843.00. As I do not have income information form Mr. Asrula after 2015, and his income remained fairly constant up to that point, I do not propose to make annual adjustments to the child support he was required to pay for two children up until December 2018.

j) Special and extraordinary expenses

Ms. Hardayal’s position

69Ms. Hardayal claims half the payments she made for the children’s orthodontic expenses, and for Neshan’s studies at Laurier University/Humber College, and for Anthony’s studies at York University.

Mr. Asrula’s position

70Mr. Asrula denies that Ms. Hardayal paid any post-secondary education expenses for the children, directly or indirectly. He states that the children paid for their own education, and also paid rent to Ms. Hardayal when they resided with her.

The Court’s findings of fact and determination of the issue

71Based on Mr. Asrula’s imputed income of $64,586.00 per year and Ms. Hardayal’s imputed income of $46,356.61, I find that Mr. Asrula’s income represents 58.2% of the parties’ collective income.

72I find that Mr. Asrula contributed, or funded, the payments for Neshan’s education until January 2011, when he left 5 Nelly Court. By that time, Neshan had completed his studies, was employed, and was no longer a child of the marriage.

73I find that Anthony obtained Student Loans which he used to pay some of the university costs of $15,000.00 per year for three years, but that the loans were insufficient to pay the entire amount. In any event, the loans have to be repaid and should not reduce the parties’ obligation to contribute to the payment of Anthony’s tuition.

74The fact that Anthony ultimately dropped out of his program does not disqualify him for the proportional contribution Ms. Asrula was obliged to make to the payment of his university expenses. The fact that Anthony is employed and able to contribute to his school expenses does not relieve Mr. Asrula or Ms. Hardayal of their obligation to contribute to the payment of such expenses for the period when he was financially dependent on them. I find that those expenses should be borne by Mr. Asrula and Ms. Hardayal in proportion to their respective incomes. Mr. Asrula will therefore be ordered to pay $26,190.00 to Anthony, being 58.2% of Anthony’s tuition of $45,000.00 for three years’ university.

75I find that Mr. Asrula’s concerns as to whether Ms. Hardayal paid Anthony’s school expenses are justified and, in those circumstances, the Court will order that each party’s proportionate contribution to Anthony’s s. 7 expenses shall be paid from their respective share of the net proceeds of sale of 5 Nelly Court directly to Anthony.

76Merissa received a scholarship that reduced the net cost of her post-secondary studies to $23,267.96. Additionally, Mr. Asrula paid $565.78 for Marissa’s lap top and Ms. Hardayal made a $500.00 Credit Card payment on January 15, 2016. Those amounts will be added to Merissa’s s. 7 expenses, to produce a total of $24,333.74. Mr. Asrula will be required to contribute $14,162.24, being 58.2% of the total, less a credit for the $565.78 he paid for her lap top computer. As with Anthony’s expenses, each party’s proportionate contribution to the payment of Merissa’s expenses will be paid to her from their respective shares of the net proceeds of sale of 5 Nelly Court.

77I find that Alyssa will continue to be a child of the marriage and entitled to child support until she completes her nursing program. Based on Mr. Asrula’s most recent income of $64,586.00 per year, he will be ordered to pay $984.00 per month in child support for Alyssa until that time, subject to annual adjustments for increases in his income.

78As noted above, Ms. Hardayal was unsure as to the duration of Alyssa’s nursing program at the University of Guelph/Humber. Each parent will be ordered to contribute to her education expenses in proportion to their incomes. Mr. Asrula may make his contribution directly to Alyssa.

79Additionally, I find that the expenses that were incurred for Alyssa following Mr. Asrula’s departure from the home, in the amount of $13,843.00, are special and extraordinary expenses within the meaning of s. 7 of the Guidelines. Mr. Asrula will be required to contribute $8,056.63, being his 58.2% share to these expenses and, for the same reasons, each party’s proportionate contribution to the payment of Alyssa’s expenses will be paid from their respective shares of the net proceeds of sale of 5 Nelly Court.

k) Spousal support

Ms. Hardayal’s position

80Ms. Hardayal claims spousal support based on the fact that the parties were together for 22 years, from 1986 to 2008, during which she says they assumed traditional roles. She says that she was primarily responsible for the care of the parties’ children and for the household while maintaining full time employment and using her earnings to support the family. She says that Mr. Asrula invested his earnings for his own benefit.

81Ms. Hardayal claims that she suffered economic disadvantage as a result of the parties’ relationship, by not having been able to return to school, upgrade her skills, and secure better employment. She states that from September 1995, until the parties separated, she was employed as a front-end manager at Walmart, where she earned $48,000.00 per year in 2009, but that that employment ended in 2014. Mr. Asrula was employed as a Band Saw Operator at New Zealand Lamb, where he earned $81,000.00 per year in 2007, and Ms. Hardayal claims that he has not disclosed his earnings since that time.

Mr. Asrula’s position

82Mr. Asrula denies that Ms. Hardayal is entitled to any spousal support. He asserts that she never contributed to household expenses when the parties lived together. Rather, she invested her earnings for her own benefit. He states that she failed to disclose those investments, or her pension or stock options from Walmart, in her financial statements, and failed to disclose the financial contribution that the parties’ adult children, who resided with her, made to her household.

The Court’s findings and disposition of the issues

83I do not find a basis, on either compensatory or non-compensatory grounds, for Ms. Hardayal’s claim for spousal support. Her conduct toward Mr. Asrula undermined any prospect of a common enterprise between them in their relationship and Ms. Hardayal secured her financial advantages from Mr. Asrula, at his expense, during the relationship. Her claim for spousal support will therefore be dismissed.

ANALYSIS AND EVIDENCE

l) Who provided disclosure and who is telling the truth?

84Each of the parties challenges the other’s credibility and disputes whether full financial disclosure was provided. In light of the conflicting evidence regarding the substantive issues – who paid for the acquisition and maintenance of 5 Nelly Court, who drew funds from their joint line of credit and what were the funds used for, and what was paid for the children’s support and who paid their dental and educational expenses – I will address the issues of credibility and disclosure at the outset.

The disclosure orders made by the Court

85On February 12, 2013, Tzimas J. made an Order regarding disclosure, as follows:

The parties shall exchange financial statements by March 15, 2013. The Applicant, Drupatie Hardayal, shall provide full proof of all s. 7 expenses incurred on behalf of any minor children, including proof of all submissions of dental expenses to her extended health carrier (Manulife). She shall also provide legible receipts and state clearly the contact details for verification of s. 7 expenses. These are to also be provided by March 15, 2013.
The parties shall exchange requests for information on or before March 31, 2013, and shall provide all reasonable requested information on or before April 30, 2013.

[Emphasis added]

86On July 29, 2014, Edwards J. made an Order which provided, in part, “Full disclosure shall be made by both parties within 30 days.”

87At the Trial Management Conference on June 22, 2015, Emery J. ordered the parties to exchange updated financial statements by July 23, 2015. He noted, on the Trial Scheduling Endorsement Form, that disclosure had been completed or, if not, “counsel for each party shall forthwith provide any pleading and motion record material to the other to be copied at the other’s expense.” Under the heading, “Follow-up arising from the Trial Management Conference”, Emery J. ordered that the parties were “to discuss issues once further disclosure obtained.” He further ordered that “Either party may bring a motion on proper notice for disclosure re the L/C (Line of Credit) or the property at 5 Nelly Court.” No motions appear to have been brought.

88On July 27, 2015, when Daley J. adjourned the proceeding to September 14, 2015, to be spoken to, he added, “Disclosure to be resolved by this TBST (to be spoken to) date and trial dates scheduled.”

The disclosure made by Mr. Asrula

89Ms. Dosanjh testified that on March 19, 2013, she sent a letter of that date to Mr. Asrula’s first lawyer, Abby Vimal, with a Request for Information in Form 20.³ The Request sought the following documents:

Copies of all income tax returns from 2008 to present with attachments, including all Notice of Assessments and Reassessments from 2008 to the present.
Copies of all bank statements from all bank accounts held by [Mr. Asrula] or which [Mr. Asrula] has control over from 2008 to present.
Copies of all credit card statements for all credit cards held by [Mr. Asrula] from 2008 to present.
Copies of [Mr. Asrula’s] most recent Equifax or TransUnion Credit Report.
Copies of all closing documents and reporting letter from the purchase of the home 5 Nelly Court, including a copy of the mortgage application.
A letter from [Mr. Asrula’s] employer, confirming his employment, rate of pay, length of employment, etc.
Copies of all GICs, RRSPs, Pensions and other investments and savings held or controlled by [Mr. Asrula].
Full documentary disclosure and details, including, but not limited to, articles of incorporation, tax returns and financial statements for all corporations, partnerships or sole proprietorships [Mr. Asrula] owns, in whole or in part, or that he controls, or that anyone is holding for him.
Statement of Stock from Dundee Security from 2008 to present.
Statements from TD Waterhouse from 2008 to present.
Any further disclosure as requested by [Ms. Hardayal] from time to time and as may arise from the disclosure provided in items 1-10.

90When Ms. Hardayal asked Ms. Dosanjh, at the trial, whether Mr. Asrula had produced the documents requested in her Request for Information, Ms. Dosanjh replied that she would have to look at her file to say. She stated that Mr. Asrula’s second lawyer, Robert McQueen, had sent disclosure but, without looking at the file, she was unable to say whether he had complied with all of the disclosure requests.

91Ms. Dosanjh stated that her recollection was that, at some point, Mr. Asrula had not complied with the disclosure orders. She stated that she was unable to provide the details of the non-compliance without examining her file, and did not know what documents were produced after her retainer ended on June 3, 2016, a year before the trial began.

92I have reviewed the documents that the parties tendered at the trial, including Mr. Asrula’s disclosure brief, which he says he produced to Ms. Hardayal before the trial. I am satisfied that the documents Ms. Dosanjh requested, on behalf of Ms. Hardayal, were produced, with the possible exception of Mr. Asrula’s “most recent Equifax or TransUnion Credit Report”, which Mr. Asrula states did not exist.

93Ms. Hardayal, at trial, did not request any particular documents that she claimed had not been produced to her. She argued, however, that Mr. Asrula had failed to comply with some of the court orders that required him to deliver financial statements and documents. She stated that he had not produce his Tax Returns and Notices of Assessment, and that she had no information regarding his income since 2007, when he was employed at New Zealand Lamb as a band saw operator, earning $81,000.00.

94I note that the Respondent’s Trial Record, which Mr. Asrula delivered, contains, among other documents, his financial Statement sworn March 13, 2013. The Continuing Record contains Mr. Asrula’s Affidavit sworn July 24, 2014, attaching, as Exhibit “F” a copy of his most recent paystub, together with his up-dated Financial Statement, sworn July 24, 2014. The Earnings Statement from New Zealand Lamb Company Ltd. is dated July 17, 2014. I therefore reject Ms. Hardayal’s evidence regarding Mr. Asrula’s failure to comply with his disclosure obligations.

95I found Mr. Asrula’s evidence to be, on the whole, credible. He lacked some of the records he needed to substantiate his assertions but gave reasonable explanations for the deficiencies, in large part based on Ms. Hardayal’s failure to produce the records that were in her possession at one time, and that I believe were within in her power and control when she was first asked for them.

The disclosure made by Ms. Hardayal

96As noted above, Tzimas J., in her Order dated February 12, 2013, ordered the parties to exchange requests for information on or before March 31, 2013, and to provide all reasonable requested information on or before April 30, 2013. I am unable to determine whether Mr. Asrula’s then lawyer, Ms. Vimal, served a Request for Information by March 31, 2013.

97In Ms. Dosanjh’s letter to Ms. Vimal dated March 19, 2013,⁴ enclosing her Request for Information, Ms. Dosanjh attached “copies of my client’s receipts with respect to the children, closing documentation with respect to 5 Nelly Court, and also find attached a form for the cancellation of the Insurance with respect to the joint Line of Credit.” The letter attached the following documents pertaining to the children’s expenses:

A Standard Information Form from Alyssa’s orthodontist, David Shearer, D.D.S., D. Ortho., setting out an estimated fee of $5,885.00, and confirming that an initial amount of $430.00 of the total had been paid, leaving a balance of $5,260.00 outstanding.
A Financial History from Dr. Shearer, setting out fees paid and installments due for Merissa Asrula in the total amount of $7,775.00 to March 21, 2012.
A Standard Information form from Dr. Shearer for services for Ms. Hardayal herself, amounting to $5,595.00 for “a dentoalveolar malocclusion due to severe maxillary protrusion characterized by crowding” (a misalignment between the teeth of the two dental arches when they approach each other as the jaws close).
Undated soccer registrations for Merissa and Alyssa, with a registration fee of $155.00 for each.
Receipts for Coffey’s Danc’n Place Ltd., as follows:

August 30, 2008, for 1st term fees for ballet: $120.00, and
May 1, 2010, for A & M Asrula for dance fees: $500.00.

Statement from Coffey’s Danc’n Place Ltd. dated May 13, 2010, confirming that the fee for Alyssa and Merissa for the 2009 season (September to December) was paid in full, in the amount of $389.10.
Receipts from Shangri-La Academy of Fine Arts, as follows:

Feb. 17, 2011, for fees in Oct/10 to Feb./11: $300.00;
May 5, 2011, for 4 classes for Merissa and Alyssa in March and April: $100.00;
July 7, 2011, for 3 classes in each of May, June, and July: $200.00.
Sept. 24, 2011: Classes for Merissa & Alyssa from Aug 1 to Sept. 22, 2011: $100.00;
Oct. 27, 2011: Classes for Merissa and Alyssa in September and October: $100.00
Nov. 24, 2011: Classes for Merissa and Alyssa in October and November: $100.00
Aug. 2, 2012: Classes in May, July, and August: $120.00.

Invoices from Wilfrid Laurier University for Neshan Asrula, as follows:

Sept. 12, 2005: $831.20
April 20, 2006: $1,849.20
Dec. 15, 2016: $2,511.00.

A receipt from Parks and Recreation Brampton dated December 17, 2008, shows that $54.45 paid for Alyssa for 2009 was paid by VISA.
Receipts from Parks and Recreation Brampton for 2009 showing that $174.00 was paid by VISA on February 22, 2009, for Ms. Hardayal and Alyssa, and the portion for Alyssa, in the amount of $76.50, was refunded on May 2, 2009.

98Ms. Dosanjh additionally introduced the following:

Photocopies of the front side of a series of cheques from Ms. Hardayal to Mattamy Homes, the builder/vendor of 5 Nelly Court, as follows:

March 2, 2004: $5,000.00
April 10, 2003: $10,000.00
May 10, 2003: $10,000.00
Sept. 15, 2003: $2,100.00
Oct 24, 2003: $5,000.00
Nov. 8, 2003: $5,000.00
Dec. 8, 2003: $5,901.9⁵

Letter from the Executive Vice-President, Human Resources, of Walmart Canada Corp., dated May 12, 2014, which was entered as an exhibit.⁶ The letter confirms that Ms. Hardayal was employed by Walmart as a Front End Manager from September 25, 1995, to May 2014. Her employment was terminated due to national restructuring.

99On November 20, 2013, Ms. Vimal sent a Request for Information of that date to Ms. Dosanjh, requesting that Ms. Hardayal produce the following documents within 15 days:

A corrected affidavit listing Ms. Hardayal’s “full financials with corroborating statements from January 2004 onwards containing full details of all her RRSPs, pensions, TFSAs, GICs and bank statements.”
Statement from TD listing all assets of [Ms. Hardayal] held with that institution since 2004 onwards (jointly or separately).
Full details of her extended health plan available through Ms. Hardayal’s} employer and confirmation that [Mr. Asrula] and minor children are covered;
Details of all stock purchases by [Ms. Hardayal] and value of stock portfolio;
Details of where funds were transferred to and from line of credit;
Bank statements and line of credit statements from 2004 onwards;
Details of all incurred special expenses claims including a summary of same, the name, address and phone number of service provider as well as an authorization to the service provider to release information directly to me.
All notices of Assessment for the two adult children from the time that they turned 18 onwards;
Tuition receipts and proof that the adult children were enrolled in full-time education after they turned 18;
Proof of [Ms. Hardayal’s] contribution towards the adult children’s tuition and other special expenses;
Proof of where the adult children were living from the date of separation onwards;
An order requiring [Ms. Hardayal] to disclose and provide disclosures of all transfers from the secured line of credit.⁷

[Emphasis added]

100It is not disputed that Ms. Vimal faxed the Request for Information dated November 20, 2013, on that date, and that Ms. Dosanjh received it. Ms. Dosanjh responded to the Request for Information on December 3, 2013.⁸

101In her letter of reply, Ms. Dosanjh stated that Ms. Hardayal had attended all major banks to request the statements as requested, but was advised that it would not be possible to obtain bank statements as far back as 2004. Ms. Dosanjh attached Ms. Hardayal’s signed authorization to Ms. Vimal to obtain the bank statements she required. She added, “[W]e are in the process of obtaining all other requests in your Request for Information and we anticipate having the documents forwarded to your office within the next 30 days.” On the following day, December 4, 2013, Ms. Vimal faxed a Notice of Change of Representation to Ms. Dosanjh,⁹ which stated that Mr. Asrula was now representing himself.

102On June 11, 2014, Mr. Asrula’s second lawyer, Mr. McQueen, faxed a letter to Ms. Dosanjh, stating that Mr. Asrula had advised him that his former lawyer had served a Request for Information on November 20, 2013, a copy of which he enclosed.¹⁰ Mr. McQueen stated that Mr. Asrula had not received the documents requested, that Mr. McQueen required them for the long motion to be heard on July 9, 2014, and that he would be requesting an adjournment to await their receipt. Mr. McQueen sent further letters to Ms. Dosanjh dated July 31, September 15, and September 26, 2014, requesting the disclosure that Ms. Vimal had requested in her Request for Information dated November 20, 2013.¹¹

103In his letter dated September 26, 2014, in anticipation of the Trial Management Conference on October 29, 2014,¹²Mr. McQueen noted that on June 11, 2014, he had sent the Request for Information dated November 20, 2013, and had sent a further letter on July 31, 2014, requesting additional information about Ms. Hardayal’s termination of employment, and still had not received a response either to the Request or the letter.

104Additionally, Mr. McQueen requested further documents relating to the children’s means and expenses, including Merissa’s post-secondary education information, a copy of her most recent pay stub, information regarding her scholarship, the courses that Merissa was taking at Humber College and any application she had made with respect to financial assistance. He also requested a copy of Mr. Cohen’s Trust Ledger and Statement of Adjustments for the sale of 74 Cheviot Crescent and the purchase of 5 Nelly Court.

105Ms. Vimal’s Request for Information was proper and the documents requested in it were relevant. On July 29, 2014, Edwards J. made an Order which provided, in part, “Full disclosure shall be made by both parties within 30 days.” That disclosure included the bank statements that were requested on November 20, 2013, and later repeated many times.

106In a further letter dated June 23, 2015, to Ms. Dosanjh, Mr. McQueen enclosed the Trial Scheduling Endorsement Form that Emery J. had completed at the Trial Management Conference the previous day. He requested, pursuant to Emery J.’s endorsement, a list of the documents she required so that he could comply with the Order. Justice Emery had written, “Counsel for each party shall forthwith provide pleadings and motion record material to the other to be copied at the other’s expense.” He directed a further Trial Management Conference “to discuss issues once further disclosure obtained”, and provided, “either party may bring a motion on proper notice for disclosure re the L/C [Line of Credit] or the property at 5 Nelly Court.”¹³

107In order to determine whether Ms. Hardayal produced the documents requested in Mr. Asrula’s Request for Information, it is necessary to examine the responses she and Ms. Dosanjh gave to the questions that Mr. Asrula asked them after Ms. Hardayal’s request for a further adjournment of the trial was denied on March 21, 2017. I first turn to what occurred in relation to that request for adjournment, as it is relevant to the questioning of Ms. Hardayal and of Ms. Dosanjh that followed beginning March 23, 2017.

Ms. Hardayal’s request for an adjournment of the trial

108On March 21, 2017, the day the trial was scheduled to begin, Ms. Hardayal, accompanied by a lawyer, Shilpa Mehta, as her agent, renewed the request she had made to Baltman J. the previous day for a further adjournment of the trial. She explained that she was awaiting the return of her file from her former lawyer, Karen Dosanjh. She stated that she had spoken with Ms. Dosanjh the previous day, and Ms. Dosanjh had told her that her file was “in the archives” and that she would require four weeks to return it to her.

109The Court telephoned Ms. Dosanjh, who spoke to the Court on speaker phone in the presence of both parties. The Court explained to Ms. Dosanjh that Ms. Hardayal had requested an adjournment of the trial because she needed her file from Ms. Dosanjh, and had reported that Ms. Dosanjh had told her that she would require four weeks to retrieve it from the archives.

110Ms. Dosanjh informed the Court that she had returned Ms. Hardayal’s entire file to her the previous year. She added that Ms. Hardayal had telephoned her the previous afternoon, after appearing before Baltman J., and had told her that in order to obtain an adjournment of the trial, she would be telling the court that she needed documents from her file from Ms. Dosanjh. She asked Ms. Dosanjh to provide a letter to her confirming that, so that she could present it to the court. Ms. Dosanjh refused, and told Ms. Hardayal that she would have “serious issues” if she requested an adjournment of the trial by misrepresenting the facts in that manner.

111The Court asked Ms. Dosanjh whether Ms. Hardayal had signed an acknowledgment of her receipt of her file the previous year, and Ms. Dosanjh replied that she had. The Court asked if the acknowledgment was itemized as to the items Ms. Hardayal had received, and Ms. Dosanjh replied that it was. The Court asked if she would send a copy of that receipt to Ms. Hardayal, and she replied that she would. Ms. Hardayal gave Ms. Dosanjh her e-mail address for that purpose.

112The Court denied Ms. Hardayal’s request for a further adjournment of the trial and ordered that the trial would begin the following day. On the morning of March 22, 2017, Ms. Dosanjh’s secretary, Glenda Lewis, e-mailed a copy of the following documents to my judicial secretary:

(a) A Notice of Change of Representation that Ms. Hardayal had signed on May 13, 2016;

(b) A Full and Final Release that Ms. Hardayal had signed on June 3, 2016, listing the documents that had been returned to her.

When the trial began on March 22, 2017, the Court entered Ms. Lewis’ e-mail and the accompanying documents as the first exhibit at the trial.

113On March 23, 2017, when cross-examining Ms. Hardayal on the source of funds she had used to pay the deposits, amounting in total to $40,000.00, for the purchase of 5 Nelly Court, Mr. Asrula asked Ms. Hardayal to produce the bank statements for her account at the Bank of Nova Scotia upon which she had drawn the cheques. Initially, Ms. Hardayal replied that she had never been asked for those bank statements until March 20, 2017, the night before the trial was to begin. She stated that TD Canada Trust had pulled her account statements from 2003 onward, but that she was unable to get her statements from the Bank of Nova Scotia, which retained their records for only 7 years.

114Mr. Asrula confronted Ms. Hardayal with the Request for Information that his lawyer had sent to hers on November 20, 2013, in which he had requested all of the monthly statements for all of her bank accounts from 2004 onward. Ms. Hardayal acknowledged that she had received the request, and stated that her then lawyer, Ms. Dosanjh, would have produced the documents requested to Mr. Asrula’s lawyer. Mr. Asrula stated that he had not received them.

115The Court explained to Ms. Hardayal that the onus was on her to produce her bank statements and that, if she failed to do so, or give a reasonable explanation for not doing so, the Court could draw an inference that they would not have been favourable to her position. The Court suggested that she might wish to speak with Ms. Dosanjh if she needed her to testify regarding the production of the documents. The Court recessed from 4:50 p.m. to 5:12 p.m. to give her an opportunity to telephone Ms. Dosanjh for that purpose.

116When Court resumed after the recess, Ms. Hardayal stated that Ms. Dosanjh had asked the Court to call her. The Court called Ms. Dosanjh, again on speaker phone from the courtroom. Ms. Dosanjh advised the Court that she would be returning that night from Florida and would be able to attend court by noon the following day. The court advised her that it would be able to hear her testimony at 2:00 p.m. on March 24th.

117When Ms. Dosanjh testified on the afternoon of March 24, 2017, she identified the documents that her secretary had sent to the Court on March 22, which had been entered as an exhibit. She stated that Ms. Hardayal had signed the “Full and Final Release” on June 3, 2016, 3 weeks after she had been allowed to examine the contents of her file. She identified the itemized list of the file’s contents, which Ms. Dosanjh said had accompanied the Release.

118The list of the file’s contents included orders and pleadings, correspondence between counsel, and a “Document Book”, containing documents that the client had provided to Ms. Dosanjh for any motions or in preparation for trial. The final paragraph of the Release contained an acknowledgment that all of the documents had been returned to Ms. Hardayal.

119Ms. Dosanjh testified that when her office gives a client their file, they ensure that the client has an opportunity to examine the file and ensure that he/she has received all of it. She stated that on May 13, 2016, her Legal Assistant of 9 years, Ms. Lewis, had given Ms. Hardayal an opportunity to examine her file, and gave her the draft Release with the itemized list of contents and the Notice of Change in Representation by which Ms. Hardayal stated that she would be representing herself. Ms. Hardayal had then re-attended at Ms. Dosanjh’s office on June 3, 2016, signed the Release and Notice of Change in Representation, and was given the box containing her file.

120Ms. Dosanjh testified that the next time she heard from Ms. Hardayal was in November 2016, when Ms. Hardayal telephoned and asked if she could retain Ms. Dosanjh to represent her at the trial, which was imminent. Ms. Dosanjh had the impression that the trial was scheduled to proceed in December. Ms. Dosanjh told Ms. Hardayal that a motion to adjourn the trial would be necessary in order for her to resume her representation of her.

121Ms. Hardayal told Ms. Dosanjh that her son had a form of cancer, and Ms. Dosanjh advised her that the Court would likely be sympathetic. Ms. Dosanjh testified that she believed that if documents were missing from the box that was returned to Ms. Hardayal, Ms. Hardayal would have advised her and the Court of this at that time, as an additional reason for the adjournment. She made no mention of missing documents to Ms. Dosanjh, and that was not the reason the adjournment was requested, as appears from the endorsement Van Melle J. made on November 23, 2016.

122Ms. Hardayal later informed Ms. Dosanjh that she had been granted the adjournment she requested. That was the last communication Ms. Dosanjh received from Ms. Hardayal until Monday, March 20, 2017, when she received a call from Ms. Hardayal on her cell phone. Ms. Hardayal told her that her trial was the following day, and that she intended to request an adjournment. Ms. Hardayal told her that she had just opened the box containing her file the day before, and that there were documents missing. She asked if Ms. Dosanjh could give her a letter saying that she would look through her file for documents that had not been returned to her.

123Ms. Dosanjh told Ms. Hardayal that she would have great issues if Ms. Hardayal sought an adjournment on the basis that she had not received documents from her file. She said she would not allow it to be seen that she was withholding documents from her client.

Ms. Hardayal’s efforts to impeach Ms. Dosanjh’s credibility

(i) Ms. Hardayal’s initial failure to cross-examine Ms. Dosanjh

124Ms. Hardayal did not challenge Ms. Dosanjh’s evidence when she testified on March 24, 2017. However, after she and Mr. Asrula had completed their questioning of Ms. Dosanjh, and Ms. Dosanjh had been excused and left the courthouse, Ms. Hardayal sought to impeach her credibility by testifying concerning conversations she had had with Ms. Dosanjh before she testified.

125The Court explained to Ms. Hardayal the rule in Browne v. Dunn, (1893), 6 R. 87 (H.L. (Eng.), which precluded her from offering evidence designed to impeach Ms. Dosanjh’s credibility without having confronted Ms. Dosanjh with that evidence when she testified. Because Ms. Hardayal was representing herself, the Court gave her the opportunity to re-call Ms. Dosanjh for further cross-examination on a later date.

(ii) Ms. Hardayal’s allegation that Ms. Dosanjh had sought to demand fees to attend as a witness

126When Ms. Dosanjh resumed her testimony on August 2, 2017, Ms. Hardayal first sought to impeach her credibility by suggesting that she had improperly demanded payment of professional fees for attending as a witness on March 24, 2017. She suggested to Ms. Dosanjh that on the evening of March 23, Ms. Dosanjh had sent her a text message asking her to call her regarding her attendance the following day. When Ms. Hardayal called, she said, Ms. Dosanjh had demanded payment for attending as her lawyer, when the court had required her to attend as a witness.

127Ms. Dosanjh explained that when the Court telephoned her on the afternoon of March 23, 2017, it was only to make arrangements for Ms. Hardayal to contact her by telephone, and to ensure that she would be available for that purpose. It had not ordered her to attend. Ms. Hardayal had then called her and asked her to attend court the following day to give evidence.

128Ms. Dosanjh stated that she told Ms. Hardayal that it was “a brazen lie” for her to have said that Ms. Dosanjh had not returned her entire file to her. She advised Ms. Hardayal that she was not going to allow her to “throw her under the bus”. She told the Court that she had returned Ms. Hardayal’s file to her and, when asked to do so, she had sent an e-mail to Ms. Hardayal with the acknowledgment of receipt that she had signed.

129Ms. Dosanjh stated that she explained to Ms. Hardayal on March 23 that she was in Florida with her family for March break, and that if Ms. Hardayal wanted her to attend court the following day, Ms. Dosanjh would have to get a plane ticket in Florida, the cost of which would be Ms. Hardayal’s responsibility. Ms. Hardayal agreed to do so. Ms. Hardayal had not served a summons on her, and had asked her to attend on an urgent basis, as a favour to her.

130Ms. Dosanjh advised Ms. Hardayal that she would like to speak to the judge and asked Ms. Hardayal to ask the Court to call her. When the Court did so, she informed the Court that she could attend the following afternoon. The Court told her that it would be able to hear her evidence at 2:00 p.m. on March 24th. Ms. Dosanjh thereupon got on a “red-eye” flight back to Toronto.

131Ms. Hardayal asked Ms. Dosanjh about a text she had sent to her the morning she returned, asking her to call Ms. Dosanjh about her attendance in court the following day. Ms. Dosanjh stated in the ensuing telephone call, she had asked Ms. Hardayal to let her know of any documents she wanted Ms. Dosanjh to bring to court when she attended. She added that the payment she had requested when she arrived at court was only the reimbursement of the cost of her flight. She had not charged Ms. Hardayal any fee for professional services, as she had attended as a witness, not as Ms. Hardayal’s lawyer.

(iii) Ms. Hardayal’s allegation that her signature on the Release was forged and that she did not receive her file on June 3, 2015

132In her cross-examination of Ms. Dosanjh, Ms. Hardayal further suggested that when she had called Ms. Dosanjh on May 13, 2016, Ms. Dosanjh had told her that she had to pay her and that she had put a lien on her house. She added that when she had attended at Ms. Dosanjh’s office on June 3, 2016, Ms. Dosanjh’s secretary had demanded that she sign the Notice of Change in Representation.

133Ms. Hardayal suggested to Ms. Dosanjh that she did not receive her file on June 3, 2016, as she did not have the $35,000 that Ms. Dosanjh demanded. Ms. Hardayal did not say when she did receive her file, but maintained that she did not examine its contents until March 20, 2017, when she allegedly saw that there were documents missing.

134Ms. Hardayal showed Ms. Dosanjh the “Full and Final Release”, with attached list of file contents, the Release containing an initial that Ms. Dosanjh identified as Ms. Hardayal’s.¹⁴ Ms. Hardayal then showed her the Notice of Change in Representation, which also appeared to be initialed by Ms. Hardayal.¹⁵ Ms. Hardayal suggested to Ms. Dosanjh that the initials on the two documents were different, and that Ms. Dosanjh had hesitated when asked whether they were the same.

135Ms. Dosanjh denied Ms. Hardayal’s suggestion. She attributed her hesitation to the fact that Ms. Hardayal had given her multiple documents to examine at once. I found Ms. Dosanjh’s hesitation to be momentary, and her explanation to be reasonable. Although the initials on the two documents differ somewhat, the difference is not so marked as to support a conclusion that they were made by different persons.

136Ms. Hardayal asserted that she could fake anyone’s signature, and suggested that Ms. Dosanjh had forged her initials on the “Full and Final Release”. She further suggested to Ms. Dosanjh that she [Ms. Hardayal] is known as Patsy [Drupatie] and has always signed her name in that manner. Ms. Dosanjh replied that Ms. Hardayal was making a desperate attempt to minimize her attempt to deceive the court. She stated that no one had ever accused her of forging a signature, and characterized the allegation that she had done so as ridiculous and unfortunate, and a flagrant attempt to gain an advantage in the proceeding.

137I pause here to observe that Ms. Hardayal also initialed documents entitled Schedules L and P in the file containing her Agreement of Purchase and Sale for 5 Nelly Court, which she herself produced, and whose authenticity is not in dispute.¹⁶ The initials on those documents and the ones on the Release and Notice of Change in Representation are not dissimilar. I reject Ms. Hardayal’s assertion that she always signs documents with her full name, and reject her allegation that Ms. Dosanjh forged her initials on the Release and Notice of Change in Representation.

138Ms. Dosanjh testified that although the Release and the Notice of Change of Representation bear different dates, they were, in fact, signed at the same time. She explained that both documents were given to Ms. Hardayal on May 13, 2016, when her file was given to her to examine.

139Ms. Dosanjh stated that on May 31, 2016, when her office had not heard back from Ms. Hardayal for two weeks after giving her the Release and the Notice of Change in Representation on May 13, Ms. Dosanjh’s Legal Assistant, Glenda Lewis, had sent her an e-mail, stating that because they had not heard from her, they would be filing her Notice of Change in Representation in court on June 1, 2016. Ms. Hardayal replied the following day, stating that she would attend at Ms. Dosanjh’s office on Friday, June 3rd at 9:00 a.m.

140Ms. Lewis sent Ms. Hardayal a further e-mail the following day, June 1, 2016, saying that she would not be in the office at 9:00 a.m., and asking Ms. Hardayal to attend at 11:00 a.m. instead. Ms. Hardayal wrote back the same day, saying, “No worries, Glenda.” Ms. Dosanjh tendered the e-mails, which were entered as an exhibit.¹⁷

141Ms. Dosanjh stated that when Ms. Hardayal attended at her office on June 3, 2016, she signed both the Notice of Change in Representation, which contained the typed date, May 13, 2015, and the Release, on which she handwrote the date June 3rd, 2016, whereupon the box containing her file was released to her.

142Ms. Dosanjh explained that Glenda Lewis has been her Legal Assistant for the past 9 years. When a client is in the office and Ms. Dosanjh is not, Glenda will sign as a witness to the client’s signature and would give the file to the client. Although Ms. Dosanjh could not attest personally to the fact that Ms. Hardayal had initialed the documents, as she was not present at the time, I am satisfied, based on the chain of e-mails, and the undisputed fact that Ms. Hardayal did receive her file, that she received it on June 3, 2015, and that it was likely she who initialed the “Full and Final Release” that day. The Release states, in part:

I, Drupatie Hardayal, am in possession of the contents of my file in its entirety, which has been provided to me by Dosanjh Law Office, the receipt and sufficiency/satisfaction of which is acknowledged by the Releasor.

[Emphasis added]

143Ms. Hardayal testified that on March 20, 2017, she told Ms. Dosanjh that she was going to ask for an adjournment by saying that she needed Ms. Dosanjh to give her papers that were missing from her file. She stated that the documents listed in the attachment to her “Full and Final Release” were not, in fact, in the box that was given to her. For the following reasons, I do not believe this:

(a) The attachment to the Release is clearly an inventory of the contents of Ms. Hardayal’s file.

(b) Ms. Dosanjh had no reason to retain documents from Ms. Hardayal’s file, as she had ceased to represent her.

(c) If Ms. Dosanjh was asserting a solicitor’s lien against Ms. Hardayal’s file, she would have retained the entire file, not selected documents from it.

(d) It is unlikely that Ms. Hardayal would not have examined the contents of her file before attending court on March 20, 2017, and if she did examine it, it is likely that she would have relied on the missing documents on November 21, 2016, and on March 20, 2017, as a basis for requesting an adjournment.

(iv) Ms. Hardayal’s allegation that she complained to Ms. Dosanjh of the missing documents at her first opportunity

144Ms. Dosanjh testified that in November 2016, when Ms. Hardayal telephoned her regarding her first request for an adjournment of the trial, she did not say that documents were missing from her file, or that she needed papers from her file from Ms. Dosanjh.

145Ms. Hardayal challenged Ms. Dosanjh’s assertion that she had telephoned Ms. Dosanjh in November 2016 to discuss requesting an adjournment of her trial. She suggested to Ms. Dosanjh that the first time they spoke after Ms. Dosanjh had ceased to represent her was on March 20, 2017, when Ms. Hardayal called and requested her missing documents.

146Ms. Dosanjh denied Ms. Hardayal’s assertion. She repeated that Ms. Hardayal contacted her in November 2016, when the trial was imminent. She discussed retaining Ms. Dosanjh to represent her at trial. Ms. Hardayal told her at that time that she was not prepared to proceed to trial at that time, and was going to request an adjournment on the basis that one of her sons had to be in hospital for medical treatment. Later, after attending in court, she informed Ms. Dosanjh that the court had granted her the adjournment.

147For the following reasons, I accept Ms. Dosanjh’s testimony that Ms. Hardayal called her in November 2016:

(a) It was not the first time that Ms. Hardayal considered restoring Ms. Dosanjh’s retainer after it had been terminated. The court file discloses that on January 28, 2013, after being represented by Ms. Dosanjh since the beginning of the proceeding in 2011, Ms. Hardayal delivered a Notice of Change in Representation, stating that she would be representing herself. She then filed a further Notice of Change in Representation on February 7, 2013, re-appointing Ms. Dosanjh to represent her.

(b) After Ms. Dosanjh ceased to represent Ms. Hardayal on June 3, 2016, the trial, which had been scheduled to take place on June 20, 2016, was adjourned to the week of November 21, 2016. On November 21, 2016, Van Melle J. further adjourned it, at Ms. Hardayal’s request, to the week of March 20, 2017. Ms. Dosanjh had no way of knowing that the trial had been adjourned from June 20, 2016, or that it had been further adjourned on November 21, 2016, at Ms. Hardayal’s request. Yet, those facts are consistent with Ms. Dosanjh’s evidence that Ms. Hardayal telephoned her in November and told her that she was not ready to proceed to trial at that time and was going to be requesting an adjournment, and that she later telephoned to tell her that the adjournment had been granted.

(c) Justice Van Melle’s endorsement on November 21, 2016, states that Ms. Hardayal had just retained new counsel, and that neither party had filed a trial record. That is consistent with Ms. Dosanjh’s evidence that Ms. Hardayal told her in November that she wasn’t ready for trial and discussed with her the possibility of retaining Ms. Dosanjh to represent her at the trial.

148Having regard to the fact that the trial was scheduled to take place on the week of November 21, 2016, I find it unlikely that Ms. Hardayal did not, at that time, examine the contents of the box that Ms. Dosanjh had given her. It is also unlikely that if she did examine the contents, she did not notice that there were documents missing, and mention that to Ms. Dosanjh, or to the court in support of her request for an adjournment. Justice Van Melle’s endorsement on November 21, 2016, makes no mention of Ms. Hardayal needing her file, or any documents from it.

149When Ms. Hardayal was asked why she had not examined her file before March 20, 2017, she replied that when she received the file, she took it directly to her next lawyer, who asked for the missing documents. The endorsement of Van Melle J. on November 21, 2016, states that Ms. Hardayal had just retained new counsel, S. Suri, who accompanied her on that date. If Ms. Hardayal immediately took her file to her new lawyer in November 2016, it is likely that she would have asked Ms. Dosanjh for the missing documents at that time. I find that she did not raise the issue of missing documents when she requested an adjournment from Baltman J. on March 20, 2017. She did not raise the issue until she called Ms. Dosanjh after her request was refused, and in order to obtain a letter that she could use in support of a renewed request for adjournment the following day.

(v) Ms. Hardayal’s allegation that Ms. Dosanjh had not itemized the contents of her file

150Ms. Hardayal challenged Ms. Dosanjh’s assertion that she had itemized the contents of her file on the basis that there was a copy of Ms. Dosanjh’s trust ledger in the box, which does not appear on the list that accompanied the Release.

151Ms. Dosanjh stated that she put everything on the list in the box, and that the box was given to Ms. Hardayal when she attended on June 3, 2016. Ms. Hardayal asked Ms. Dosanjh whether she gave her pages of her trust account. Ms. Dosanjh did not recall doing so. Ms. Hardayal showed her a photocopy of pages from her trust account for January and February 2011, which she stated was the box when it was returned to her. Ms. Dosanjh acknowledged that she did not know why Ms. Hardayal had received those pages or how they got into the box.

152I do not regard the presence of the photocopied pages of Ms. Dosanjh’s trust ledger from 2011 to be significant. They may have been placed there accidentally, as it did not belong there. Their presence does not negate the fact that what did belong in the file was itemized on the list, and that Ms. Dosanjh returned the file to Ms. Hardayal.

(vi) Ms. Hardayal’s allegation that Ms. Dosanjh extorted money from her and implied favouritism toward her by the Court

153Ms. Hardayal suggested to Ms. Dosanjh that when she came to court on March 24th, she asked Ms. Hardayal to sign two papers. She stated that she had signed the papers without knowing what they were. Ms. Hardayal appeared to be implying that Ms. Dosanjh had surreptitiously caused her to sign the Final Release or Notice of Change in Representation when they met at court. However, Ms. Dosanjh had sent the signed documents to the Court on March 22, 2017, the morning after the Court had spoken to her from the courtroom.

154Additionally, Ms. Hardayal suggested that Ms. Dosanjh demanded money from her and said, “If you don’t pay, you could lose your home, Patsy; What I’m going to tell the judge, he will believe.” She stated that Ms. Dosanjh told her that she and the judge had had a long working relationship and that he liked her and would believe what she said.

155Ms. Hardayal suggested to Ms. Dosanjh that when she called Ms. Dosanjh in response to the text message she had received on March 23 at 7:09 p.m. regarding Ms. Dosanjh’s attendance the following day, she told Ms. Dosanjh that she was only required to pay her a $53 witness fee, but that Ms. Dosanjh had demanded $2,000 to attend as her lawyer.

156Ms. Dosanjh stated that:

(a) She and Ms. Hardayal had had a conversation when Ms. Dosanjh arrived at court on March 24, 2017, and that Ms. Hardayal had left to get documents from her car. At no time did they talk about having any documents signed, and Ms. Dosanjh did not have anything for Ms. Hardayal to sign.

(b) Ms. Dosanjh did not tell Ms. Hardayal that she and the judge had had a long working relationship, or that the judge liked her, or that he would believe everything she said. She stated that she may have told Ms. Hardayal that the judge was very thorough and detailed and would listen to what she had to say.

(c) Ms. Dosanjh acknowledged that she had received a cheque from Ms. Hardayal in the amount of $1,500.00. She stated that the cheque was to reimburse her for her flight from Florida to Toronto when, at Ms. Hardayal’s request, she interrupted her March break vacation with her family at her home in Florida to return to Brampton to testify on March 24, 2017, before returning to Florida to re-join her family.

157Ms. Hardayal played an audio tape recording that she had surreptitiously made of her telephone conversation with Ms. Dosanjh on March 22, 2017. Ms. Dosanjh is heard to say:

I’ve got to get on a flight to come back. I’m going to go to my office to go through boxes. I’m coming to give evidence in your case, as a favour. As a lawyer, it is privileged. If you subpoena a witness they have to come. Because I was your lawyer, we never take the stand to talk about the case. Only because the judge asked me to help you out as a favour to you. It is entirely your call.

158Ms. Hardayal played a further audio tape recording that she had surreptitiously made of her conversation with Ms. Dosanjh on March 24, 2017. In it, Ms. Dosanjh does not, in fact, say that the judge “liked her,” or that he would “believe everything she said”. In the recording, Ms. Dosanjh is heard to say that the judge was a careful judge who would listen to what she said. She is heard to ask Ms. Hardayal for a cheque, which Ms. Hardayal gave her.

159Ms. Dosanjh testified that she told Ms. Hardayal that the amount she would require to return to Canada on March 24th was $1,500.00 plus HST. She had not told her that she would be attending as Ms. Hardayal’s lawyer or demanded a fee for doing so. Ms. Dosanjh produced the cheque she had received from Ms. Hardayal, which was for $1,500.00.¹⁸ Ms. Hardayal mis-dated it March 15, 2017.

160Following Ms. Dosanjh’s testimony, Ms. Hardayal resumed testifying. She stated that on March 23, she received a text from Ms. Dosanjh, asking her to call, and that on March 24, she called Ms. Dosanjh, who asked her for $2,000.00 or, if cash, $1,500.00. She repeated that Ms. Dosanjh had told her that the judge “liked her and would believe anything she said.” She stated that it was in a different call that Ms. Dosanjh had demanded $2,000.00 from her.

161I reject Ms. Hardayal’s testimony regarding her conversations with Ms. Dosanjh. I find that Ms. Dosanjh made only a single request for payment, and that the amount discussed was $1,500.00, which was to reimburse Ms. Dosanjh for her flight. Ms. Dosanjh’s testimony in that regard is supported by the tape recording that Ms. Hardayal herself produced, and by the cheque that Ms. Dosanjh tendered in evidence.

162Ms. Hardayal offered an explanation of her March 20, 2017, telephone call to Ms. Dosanjh, which was that it was simply to ask for a letter setting out the same kind of explanation that Ms. Dosanjh had made on her behalf previously when she represented Ms. Hardayal, on occasions when Ms. Hardayal was unable to appear in court. I reject Ms. Hardayal’s explanation for the following reasons:

(a) Ms. Hardayal told Baltman J. on March 20, 2017, that she was asking for an adjournment for the purpose of retaining new counsel, not so that she could obtain missing documents from her former lawyer. She gave the latter explanation only on the following day, after Baltman J. had refused her request.

(b) Ms. Hardayal told the Court on March 21, 2017, that Ms. Dosanjh had told her that she would provide her file to her and would need four weeks to retrieve it from “the archives”. I find that Ms. Dosanjh did not tell her anything of the kind. Ms. Dosanjh testified that she told Ms. Hardayal that it was a blatant lie for Ms. Hardayal to say that she had not returned some of her documents to her and that she would not allow Ms. Hardayal to “throw her under the bus.” I find that Ms. Hardayal invented the statement she attributed to Ms. Dosanjh as a means of securing the adjournment that she had requested on a different basis on March 20, 2017, and which the Court had refused.

(vii) Conclusions regarding Ms. Hardayal’s credibility

163I observed Ms. Hardayal carefully as she gave her testimony, especially when she testified immediately after Ms. Dosanjh had given her testimony about the return of her file and their later conversations. When Ms. Hardayal asserted that Ms. Dosanjh had told her that she had had a “long working relationship” with the judge, and that he would believe everything she said, I asked her whether Ms. Dosanjh had said those exact words in the call that she had recorded, or whether Ms. Hardayal was giving that interpretation of her words. At first, she replied that Ms. Hardayal had used those exact words. When the Court pointed out to Ms. Hardayal that those words cannot be heard in the tape recording she had played, in which Ms. Dosanjh had said that the judge would “listen” to what she said, not that he would “believe” what she said, Ms. Hardayal then pivoted, and said that it was in another telephone conversation, which Ms. Hardayal had not recorded, that Ms. Dosanjh had said that the judge would believe what she said.

164I find that the words Ms. Hardayal attributed to Ms. Dosanjh, implying that Ms. Dosanjh had sought to trade on an alleged “long working relationship” with the judge, and stating that the judge “liked her” and “would believe everything she said” were intended to provoke the Court’s disapproval of Ms. Dosanjh and a desire to distance itself from her and reject her testimony. When Ms. Hardayal was confronted with the fact that her recording did not reflect the words she attributed to Ms. Dosanjh, she blithely changed her testimony as to whether it was the conversation she had recorded or another conversation in which Ms. Dosanjh had used the words that Ms. Hardayal attributed to her.

165It is inherently unlikely that Ms. Dosanjh would seek to retain copies of bank statements and other records belonging to Ms. Hardayal after her retainer was at an end. There was no reason for her to lie about what documents were returned to Ms. Hardayal or, especially, to forge Ms. Hardayal’s signature on the Release/Acknowledgment of Receipt that she had prepared for her to sign, or to withhold documents that she had included on the list she gave Ms. Hardayal and return the remainder of her file to her.

166I have no doubt whatsoever that Ms. Dosanjh did not tell Ms. Hardayal that she would retrieve her file from any archives, and would need four weeks to do so. I find that Ms. Hardayal lied in telling the Court that Ms. Dosanjh had told her this, and persisted in her lie even when faced with the Release that she had signed and the itemized list of her file contents, seeking to explain that evidence away by discrediting Ms. Dosanjh as a witness, accusing her of forging her initials on the Release, and of lying to the court.

167I did not find Ms. Hardayal’s testimony to be at all credible. Where her evidence differs from the evidence given by Ms. Dosanjh, in particular, I prefer the evidence of Ms. Dosanjh. I find that Ms. Hardayal’s lies to the Court lend support to Mr. Asrula’s assertion, made in his opening statement, that she is a person who will lie to anyone, including those in authority.

Ms. Dosanjh’s testimony regarding Ms. Hardayal’s disclosure

168As noted above, Mr. Asrula cross-examined Ms. Hardayal on March 23, 2017, regarding the funds she had used to pay the deposits for the purchase of 5 Nelly Court. Ms. Hardayal produced photocopies of the front side of cheques, amounting to $40,000.00, which she said she drew on her account at the Bank of Nova Scotia. She testified that she had opened the account in “1980 something,” and that it was now closed. She did not say when it was closed.

169Mr. Asrula asserted that he and Ms. Hardayal had transferred funds from his own account at TD Canada Trust, directly or indirectly, to the account on which the cheques were drawn. He suggested to Ms. Hardayal that her bank statements for her account at the Bank of Nova Scotia would show the funds she had received from him and deposited to that account.

170Initially, Ms. Hardayal denied that she had ever been asked for the Bank of Nova Scotia statements before March 20, 2017, the night before the trial. She stated that the TD Canada Trust had pulled her account statements from 2003 onward, but that she was unable to get her statements from the Bank of Nova Scotia, which retained records for only 7 years. She did not state when she requested the statements, or produce any evidence supporting the assertion that Ms. Dosanjh had attributed to her that she had done so.

171When confronted with the Request for Information dated November 20, 2013, that Ms. Vimal had sent to Ms. Dosanjh, which Mr. McQueen had followed up with letters on June 11, July 31, September 15, and September 26, 2014, and which requested “Bank statements and line of credit statements from 2004 onwards,” to be produced within 14 days, Ms. Hardayal acknowledged that she had been asked to produce the bank statements in 2013. She stated that whatever was done or not done at that time was Ms. Dosanjh’s responsibility. This prompted the Court to advise Ms. Hardayal of the adverse inference it could draw from her failure, without a reasonable explanation, to produce the bank statements, which prompted Ms. Hardayal to call Ms. Dosanjh as a witness.

172When Mr. Asrula asked Ms. Hardayal, on March 23, 2017, to produce her monthly statements for the Bank of Nova Scotia chequing account, Ms. Hardayal testified that she had not looked at the contents of the box that she had received from Ms. Dosanjh until March 20, 2017, and would have to go through it to find the bank statements. She undertook to do so, and later reported that she had not found them. She then attributed their absence to the fact that there were documents missing from her file when Ms. Dosanjh returned it to her. She stated that she had given Ms. Dosanjh any documents she had requested, and that it was Ms. Dosanjh’s responsibility to forward them to Mr. McQueen.

173Ms. Dosanjh’s reply to Ms. Vimal’s Request for Information dated November 20, 2013, was that Ms. Hardayal had requested the bank statements from the Bank and that they were no longer available. Ms. Hardayal gave no evidence as to what she did with the monthly statements she had received from the Bank, or as to when she request copies from the Bank, or when she closed the account. When Ms. Dosanjh testified on March 24, 2017, she stated that any time she was asked for a document, and Ms. Hardayal provided it to her, she sent it to Mr. Asrula or his lawyer. There was no reason, she said, for her to hold it back.

174Ms. Dosanjh testified that during her retainer, she sent all requests she received from Mr. Asrula’s lawyer to Ms. Hardayal, together with any of her own correspondence refusing the requests. She sent any documents she received from Ms. Hardayal to Mr. Asrula’s lawyers. There were some documents requested, she said, that were not produced because Ms. Hardayal took issue with them. One such document was Ms. Hardayal’s record of employment/severance, which Mr. McQueen wanted in order to determine whether Ms. Hardayal had been offered another job.

175Ms. Dosanjh testified that there were no follow up requests that she could recall, up to June 2016, when she ceased to be Ms. Hardayal’s lawyer, arising from the documents she had produced. She was unable to say what documents Mr. Asrula had requested that were refused. More important, she stated that she would not know what documents Ms. Hardayal had in her possession that she had not provided to her.

176Ms. Dosanjh stated that because her office had prepared a trial disclosure book, they ensured that any documents that had been provided were served on Mr. Asrula’s lawyer. Both parties were ordered to send a copy of their documents to the other lawyer. She stated that the Document Book that she sent to Ms. Asrula’s lawyer contained Walmart records and certain bank statements. She wasn’t able to say whether it contained the monthly statements from the Bank of Nova Scotia account.

177Ms. Dosanjh testified that following disclosure, the parties were moving ahead to trial when Mr. McQueen, Mr. Asrula’s second lawyer, was removed from the record on July 23, 2014. Mr. Asrula had then requested a copy of the documents that had been sent to his lawyers. Ms. Dosanjh took the position that he would have to pay her costs of photocopying and she would then provide the documents to him. It was not clear from her testimony whether he paid or whether she produced a further copy of the documents to him.

178In his cross-examination of Ms. Hardayal, Mr. Asrula suggested that there were many requests for disclosure regarding the expenses of the adult children, their income, and their bank statements, that would disclose who was actually paying the expenses, that she had not complied with. Ms. Hardayal replied that she had records for the expenses. She stated that she had paid them with her MasterCard, and that she still had the MasterCard statements. When told that she was required to produce them, she brought them to court the following day and produced them.

179The monthly statements from Ms. Hardayal’s account at the Bank of Nova Scotia upon which she says she drew the cheques for the deposits for 5 Nelly Court, and from which she says she paid her MasterCard bills, were requested in Ms. Vimal’s Request for Information dated November 20, 2013. In spite of numerous follow up requests, they were never produced.

180It is unfortunate that Ms. Dosanjh delegated to Ms. Hardayal the task of obtaining the records that Mr. Asrula requested. It is natural for a litigant to want to undertake the task of obtaining his or her records from non-parties in order to avoid the expense of having the lawyer do so. However, allowing a client to do this can compromise the integrity of potential evidence and its continuity from the point when it is the custody of the non-party to the point when it is received by the requesting litigant or his/her lawyer. The obtaining of a document by the lawyer for the litigant who has been asked or ordered to produce it provides some assurance to the requesting litigant that it is being produced in the same form in which the non-party had it.

181Additionally, delegating this task to the client increases the risk that the steps necessary to obtain the documents will not be taken, or that there will be insufficient or improper follow-up that will result in the document not being produced, or not being produced in a timely manner. In the present case, that risk was increased by the fact that Ms. Dosanjh ceased to be Ms. Hardayal’s lawyer in June 2016.

182Giving an authorization to the requesting litigant or his/her lawyer to obtain the records themselves is not an adequate substitute for the requested litigant’s lawyer obtaining the records from the non-party and producing them to the requesting litigant. In this case, Ms. Vimal ceased to be Mr. Asrula’s lawyer on the day after Ms. Dosanjh sent her letter to Ms. Vimal. As a result, the authorizations, which named Ms. Vimal, and not Mr. Asrula, as the person to whom the records were to be produced, ceased to have any value.

183Ms. Hardayal asked Ms. Dosanjh whether she had sent all disclosure to Ms. Vimal that she had requested. Ms. Dosanjh replied that she was unable to confirm that. She stated that if Ms. Vimal or Mr. McQueen asked for a document, Ms. Dosanjh would have asked Ms. Hardayal for it and if Ms. Hardayal had provided it, she would have sent it to Ms. Vimal or Mr. McQueen. She could not say what documents Ms. Vimal requested that she did not produce, or what documents were in Ms. Hardayal’s possession that she did not provide to Ms. Dosanjh.

184Ms. Hardayal claims that she did not examine the contents of her file when Ms. Dosanjh returned it to her, or later, until a day before the trial began. She claims that when she did examine it, there were documents missing. For the reasons stated above, I reject her evidence in this regard, and find that it was calculated to deflect responsibility from herself for her failure to produce the bank statements onto Ms. Dosanjh.

185Ms. Dosanjh testified that that she takes great issue with Ms. Hardayal’s assertion that some of the documents in her file were not returned to her, or that she had thought she had received documents that she had not received. She notes that Ms. Hardayal received her office’s request to attend and sign the Release three weeks after she had been given the opportunity to examine her file and that she was given the list of its contents, and attended three weeks later and signed the acknowledgement that she had received the entire file. To come back a year later and say she didn’t receive all of the documents was, in Ms. Dosanjh’s view, unacceptable. I agree.

186It is no answer for Ms. Hardayal to say that the responsibility of producing the documents that Mr. Asrula and his lawyer requested belonged to Ms. Dosanjh. Whether or not Ms. Dosanjh complied with her professional obligations to Ms. Hardayal is not for this Court to decide. However, the fact that Ms. Dosanjh was her lawyer at the time did not relieve Ms. Hardayal of her own disclosure obligations or of the risk that not complying with them entailed, especially having regard to the fact that Ms. Dosanjh ceased to be her lawyer almost a year before the trial began.

187I do not accept Ms. Hardayal’s statement to Ms. Dosanjh that she tried to obtain her monthly statements from the Bank of Nova Scotia but was unable to do so because of their retention period. On November 20, 2013, she was asked to produce all her bank statements “from 2004 onward.” She did not tender any evidence as to when she made a request to the Bank, or any independent evidence as to the Bank’s response. She did not tender any evidence confirming when she closed her account, or what the Bank’s retention period was, or produce any monthly statements, even for the 7 year period immediately preceding November 20, 2013, when Ms. Vimal requested them.

188I find that Ms. Hardayal did not fully comply with the Request for Information that Ms. Vimal sent to Ms. Dosanjh on November 20, 2013, and that Ms. Dosanjh passed along to Ms. Hardayal at that time. If she had done so, many of the factual issues that arose during the trial could likely have been avoided. I draw an adverse inference from Ms. Hardayla’s failure to produce the records, including the monthly statements for her Bank of Nova Scotia account, that they would not support the positions Ms. Hardayal takes in the proceeding.

m) What are the parties’ entitlements to 5 Nelly Court?

Jurisprudence

189The Supreme Court of Canada gave guidance on the approach to be taken to claims based on resulting and constructive trusts in Rathwell v. Rathwell (1978).¹⁹ In that case, the parties married in 1944 and for the next 30 years, engaged in farming. They opened a joint bank account into which they deposited all monies they received and from which they paid their expenses. They used the funds in the account to make a down payment on their farm, which was registered in Mr. Rathwell’s name alone. They did not discuss the beneficial ownership of the property, except to say that it was “ours”. They worked together as husband and wife in the farming business, Mrs. Rathwell doing the chores, gardening, preparing meals, providing transportation for hired help, keeping records, and raising and educating the parties’ four children.

190The Supreme Court of Canada held that Mrs. Rathwell was entitled to succeed, whether based on the doctrine of resulting trust or the doctrine of constructive trust. The Court distinguished between the two forms of trust. It stated that to establish a resulting trust, a party must prove a common intention, manifested by words or acts, that the party not on title acquire a beneficial interest in the property. For constructive trusts, no intention is required.

191Dickson J. noted that resulting trusts are as firmly grounded in the settlor’s intent as are express trusts, but with the difference that the intent is inferred or presumed as a matter of law from the circumstances.²⁰ A constructive trust is imposed irrespective of intention:

Where a common intention is clearly lacking and cannot be presumed, but a spouse does contribute to family life, the court has the difficult task of deciding whether there is any causal connection between the contribution and the disputed asset. It has to assess whether the contribution was such as enabled the spouse with title to acquire the asset in dispute. That will be a question of fact to be found in the circumstances of the particular case. If the answer is affirmative, then the spouse with title becomes accountable as a constructive trustee. The court will assess the contributions made by each spouse and make a fair, equitable distribution having regard to the respective contributions. The relief is part of the equitable jurisdiction of the court and does not depend on evidence of intention.

The constructive trust, as so envisaged, comprehends the imposition of trust machinery by the court in order to achieve a result consonant with good conscience. As a matter of principle, the court will not allow any man unjustly to appropriate to himself the value earned by the labours of another. That principle is not defeated by the existence of a matrimonial relationship between the parties; but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation, and the absence of any juristic reason such as a contract or disposition of law, for the enrichment.

[Emphasis added.]

192In Rathwell, the Supreme Court held that three requirements must be satisfied for a constructive trust to arise based on unjust enrichment: an enrichment, a corresponding deprivation, and an absence of juristic reason for the enrichment. If these three elements are proven, the right to relief is made out.²¹

193The Supreme Court dealt with trusts again in Becker v. Pettkus (1980).²² There, the parties were in a common law relationship for 20 years. The woman supported them for the first five years while the man saved to acquire a farm. She did farm work and helped the man to acquire and maintain a beekeeping business. The man used profits from the beekeeping business to buy additional land on which he built a home. The woman sought a declaration that she was entitled to half the property acquired through their joint efforts. Justice Dickson, for the majority, noted the difficulty in discerning evidence of common intention in such cases.

…The sought-for “common intention” is rarely, if ever, express; the courts must glean “phantom intent” from the conduct of the parties. The most relevant conduct is that pertaining to the financial arrangements in the acquisition of property. Failing evidence of direct contribution by a spouse, there may be evidence of indirect benefits conferred: where, for example, one partner pays for the necessaries while the other retires the mortgage loan over a period of years, Fibrance v. Fibrance, [1957] 1 All E.R. 357.

Although the resulting trust approach will often afford a wife the relief she seeks, the resulting trust is not available, as Professor Waters points out, at p. 374: “where the imputation of intention is impossible or unreasonable”. One cannot imply an intention that the wife should have an interest if her conduct before or after the acquisition of the property is “wholly ambiguous”, or its association with the alleged agreement “altogether tenuous”. Where evidence is inconsistent with resulting trust, the court has the choice of denying a remedy or accepting the constructive trust.²³

[Emphasis added.]

194Justice Dickson would not infer a common intention where the trial judge had not found one, express or implied, so the woman’s claim based on resulting trust failed. However, he held that the wife’s claim based on constructive trust should succeed. Justice Dickson re-affirmed the elements necessary to establish a constructive trust, as established earlier in Rathwell:

How, then, does one approach the question of unjust enrichment in matrimonial causes? In Rathwell I ventured to suggest there are three requirements to be satisfied before an unjust enrichment can be said to exist: an enrichment, a corresponding deprivation and absence of any juristic reason for the enrichment. This approach, it seems to me, is supported by general principles of equity that have been fashioned by the courts for centuries, though, admittedly, not in the context of matrimonial property controversies.²⁴

[Emphasis added.]

195In Peter v. Beblow (1993), the Supreme Court again considered a common law spouse’s claim for a constructive trust. Justice Cory noted that the absence of a juristic reason for enrichment involves an objective test:

The parties entering a marriage or a common law relationship, will rarely have considered the question of compensation for benefits. If asked, they might say that because they loved their partner, each worked to achieve the common goal of creating a home and establishing a good life for themselves. It is just and reasonable that the situation be viewed objectively and that an inference be made that, in the absence of evidence establishing a contrary intention, the parties expected to share in the assets created in a matrimonial or quasi-matrimonial relationship, should it end.²⁵

[Emphasis added.]

196Where the court finds that there has been an unjust enrichment in the acquisition or preservation of property, it exercises discretion as to whether to order a payment of money to the aggrieved party, or an actual interest in the property. A constructive trust interest in the property itself is available only when a monetary remedy is inadequate, and where there is a link between funds paid or services rendered and the property in which the trust is claimed.²⁶ The remedy is appropriate, for example, where there is a finding of fraud in relation to the particular property.²⁷

197In Peter v. Beblow, the Supreme Court restored the judgment of the trial judge, who had awarded the common law wife the property, which she had expended her labour to improve, as restitution for her contribution over the course of the parties’ 12 year relationship. The court held that monetary damages would not be sufficient to compensate her, and that there was a sufficient link between the property and her contribution.

198In Sorochan v. Sorochan (1986), the Supreme Court held that the constructive trust remedy should not be confined to cases where the applicant contributed to the acquisition of the property; it was enough if she had contributed to the "preservation, maintenance, or improvement of the property," so long as the services rendered have a "clear proprietary relationship." That relationship was established where the applicant’s contributions prevented the property from declining in value.²⁸

199In Morningstar v. Holley (2007), Henderson J. rejected the husband’s argument that his common law spouse, if successful, should not acquire an interest in the property, and was entitled only to a share of the equity, and would be fully protected if the property were sold and the proceeds held in trust to satisfy a future judgment in her favour. Justice Henderson held that it was open to the trial judge to grant the spouse an actual interest in the property. He stated:

I do not agree with the applicant’s position on that point. If a trial Judge finds that there has been unjust enrichment of the applicant, it is open to the trial Judge to choose an appropriate remedy. The trial Judge may simply choose to order that the applicant pay a sum of money to the respondent, or the trial Judge may grant an interest in the property to the respondent in the form of a constructive trust. See the case of Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, at para. 21.

[Emphasis added]

Applying the legal principles to the facts of this case

200The parties had only modest assets when they began living together in 1986 or 1987. The property they acquired at 5 Nelly Court in 2004 was the last of a series of properties that they owned, individually or together, during the relationship. The central dispute in the proceeding, insofar as property is concerned, is what contribution each of the parties made to the acquisition of 5 Nelly Court, and to its maintenance, and what their intentions were as to their respective interests when the property was purchased.

201Mr. Asrula asserts that he derived his contributions to the purchase of 5 Nelly Court, in large part, from funds he realized from the sale of their earlier homes, as he rolled the sale proceeds of one home into the purchase of the next. Because the sale of the parties’ previous home, at 74 Cheviot Crescent in Brampton, closed 4 ½ months after the purchase of 5 Nelly Court, the parties “bridge financed” the purchase of 5 Nelly Court in the interval. They dispute the details of that financing, and make conflicting claims as to their respective obligations for the joint line of credit from which part of the financing was derived.

202Upon carefully examining the way in which 5 Nelly Court was purchased, and part of its financing was re-paid with the proceeds of sale of their earlier home 4 ½ months later, I find that Mr. Asrula’s contribution to the acquisition of 5 Nelly Court was at least equal to that of Ms. Hardayal, and that both of them intended, or should have intended, him to have an equal interest in the home. The only reasons that intention was not reflected in the way title came to be held by them, with 1% held by Mr. Asrula and 99% held by Ms. Hardayal, was that:

(a) Mr. Asrula wanted to protect the home from potential claims that the Canada Revenue Agency might make against him, arising from a tax audit that was ongoing when the purchase of 5 Nelly Court was closing; and

(b) Ms. Hardayal was controlling the purchase process for 5 Nelly Court, and exploited that control to her advantage.

203Because Mr. Asrula derived his contribution to the purchase of 5 Nelly Court from the sale proceeds of the earlier homes that Mr. Asrula or both the parties had owned, and the parties dispute the interests that each of them had in those homes, and what was done with the sale proceeds when they were sold, it is necessary to review the history of their finances, and their respective contributions to the acquisition and maintenance of each of the homes, in order to determine what their respective contributions were to 5 Nelly Court, and what their intentions were as to their respective interests in that property.

204For the reasons that follow, I find that Mr. Asrula was entitled to the entire equity in 74 Cheviot Crescent, and that the parties intended, or should have intended, to give him a 50% beneficial interest in 5 Nelly Court based on his contribution of the sale proceeds of Cheviot Crescent to the acquisition of Nelly Court by means of the joint Line of Credit that was used to finance the purchase of both properties. Ms. Hardayal was enriched by registering 99% of the title to 5 Nelly Court in her name, Mr. Asrula suffered a corresponding deprivation by the registering of only 1% of the title in his name, having regard to his financial contribution to the acquisition of the property, and there was no juridical reason for the enrichment. I find that, owing to the increase in the value of the property, monetary damages cannot be determined based on the evidence before me and would not be an adequate remedy. I will therefore order that 50% of 5 Nelly Court be vested in Mr. Asrula, and that the property will be sold and the net proceeds divided equally between the parties, subject to the other terms of this judgment.

(i) The parties’ early relationship

205The facts asserted by Ms. Hardayal and Mr. Asrula are in such dispute that it is necessary, in order to place my findings in context, to review the history of their financial relationship.

206The parties came from Guayan to Canada, when each of them was about 18 years old. Ms. Hardayal says she came with savings of about $10,000.00; Mr. Asrula says that he came with savings of about $16,000.00. They met at a bus stop in Canada in 1983, when Ms. Hardayal was about 19 years old and Mr. Asrula was about 22.

(ii) Purchase of 241 Melrose Street in Toronto

207In November 1984, Mr. Asrula bought a triplex property at 241 Melrose Street in Etobicoke for $105,900.00. He made a down payment of $15,600.00, and financed the balance with a $79,000.00 mortgage loan from Premier Trust Company. Ms. Hardayal asserts that she had an interest in the property, which Mr. Asrula denies. For the reasons that follow, I find that she did not have an interest in that property.

208Ms. Hardayal initially testified that she gave her savings to Mr. Asrula when he bought 241 Melrose. She was unable to remember how much savings she had. When Mr. Asrula testified that he made a down-payment of $15,600.00, Ms. Hardayal asserted that she had given him $8,000.00, which he denied. She stated that, in return, he promised to put her name on title but failed to do so. Mr. Asrula denies making such a promise to her.

209Mr. Asrula testified that he paid the down payment of $15,600.00 himself. He says that he had savings of $16,000.00 when he came to Canada in March 1980, and used those funds to buy 241 Melrose. By 1986, when he and Ms. Hardayal began thinking of living together, he had already bought 214 Melrose Street two years earlier.

210Mr. Asrula suggested to Ms. Hardayal that when they began living together, she told him that she had saved $25,000.00 and that while they had many discussions on the subject, she never brought the money into their relationship. At first, she told him that she was investing her money with her parents. He was agreeable to that, as he was able to manage his own finances, and thought that it was better for their relationship if she saved her money. She later told him that she was going to lend her savings to her brother and sister, at 3% interest, which was also agreeable to him.

211Mr. Asrula testified that Ms. Hardayal loaned her savings to her sister in the 1990’s, early in their relationship. This assertion was uncontradicted by Ms. Hardayal. Mr. Asrula also tendered two T5 slips that Ms. Hardayal had received from the CIBC in 1992 for income she had received from her sister, G. Gomati Chetram, in the amount of $164.20 and $112.59, respectively.³⁰ He also tendered a bank draft for $41,322.82 dated October 30, 1996, from Ms. Chetram to Ms. Hardayal. Mr. Asrula believes that the draft was a repayment of the loan Ms. Hardayal made to her sister, with accrued interest.³¹

212For the following reasons, I find that Ms. Hardayal did not contribute to the purchase of 241 Melrose Street:

(a) Mr. Asrula immigrated to Canada from Guyana in March 1980, when he was 18, and was employed for at least four years before 1984, when he bought 241 Melrose Street. I believe his testimony that he had funds when he came to Canada, and that after four years of employment, he was able to make the down payment of $15,600.00 himself.

(b) Ms. Hardayal stated in her affidavit, sworn April 15, 1987, that she did not separate from Mr. Phagu and begin living with Mr. Asrula until January 1987. That was over two years after Mr. Asrula bought his house at 241 Melrose Street in Etobicoke.

(c) Ms. Hardayal stated in her affidavit that she began living with Mr. Asrula at 50 Lothertan Pathway, Unit #411, in Toronto, not at 241 Melrose Street.

(d) The parties’ first child, Neshan, was born in November 1986, and was likely conceived early that year. That was shortly after they became intimate and before they participated in the wedding ceremony in April 1986. By that time, more than a year had passed since November 1984, when Mr. Asrula bought 241 Melrose Street.

(e) When Mr. Asrula bought 241 Melrose, the parties had known each other for only a year. Ms. Hardayal was only about 19 and at the trial, could not recall, initially, what savings she had at that time. She acknowledged in her Statement of Defence and Counterclaim in 1991 that when she began living with Mr. Asrula in about 1986, she had savings of only $10,000.00, which she invested “for family expenses”.

(a) I accept Mr. Asrula’s testimony that Ms. Hardayal invested her savings with her family, as evidenced by the T5 slips she received in 1992, evidencing interest she received on her sister’s account, and the bank draft she received from her sister in 1996 in relation to funds invested with her. She therefore did not have the money to invest in 241 Melrose.

(iii) The parties’ wedding ceremony

213I will address the factual issue of whether Mr. Asrula was aware, when he participated in the wedding ceremony that Ms. Hardayal was already married as the fact has relevance to the issue of whether Ms. Hardayal acquired an interest in 241 Melrose Street by contributing to the payment of carrying costs and household expenses there. It also has some relevance to my findings regarding Ms. Hardayal’s credibility.

214Ms. Hardayal testified that she and Mr. Asrula began living together on April 19, 1986, after participating in a wedding ceremony on that date. The marriage of Mr. Asrula and Ms. Hardayal was invalid, as Ms. Hardayal was married to another man, Rohit Phagu, at the time.³²The parties differ as to whether Mr. Asrula was aware of her marriage to Mr. Phagu when they participated in their wedding ceremony.

215Mr. Asrula denies that he knew of Ms. Hardayal’s marriage when he participated in the wedding ceremony. He testified that when Ms. Hardayal became pregnant, he asked her what she was going to do with the baby. When they went to the doctor, he proposed that they get married because that’s what he wanted, and he wanted her to keep the child.

216Mr. Asrula was unmarried. He says that his intention was to marry Ms. Hardayal. He thought that they were going to sign marriage documents at the ceremony. He only learned later that she was unable to do so because she was married to someone else at the time. He says that Ms. Hardayal disclosed her marriage to him in 1987, after she was divorced from her husband.

217Ms. Hardayal testified that she was divorced from her husband, Rohit Phagu, on July 12, 1987. She tendered a Divorce Certificate issued by the Superior Court in Toronto on August 27, 2015.³³ This is a puzzling document for two reasons. First, it is based on an affidavit sworn almost twenty years earlier, on April 15, 1987. Second, it certifies that the divorce, granted on June 11, 1987, dissolved a marriage that took place four months later, on October 12, 1987.

218This Court’s file of the Toronto divorce proceeding, in which the certificate was issued, contains an Order of O’Connell J. dated November 24, 1994, on a motion by Mr. Phagu, to amend the Divorce Judgment and Certificate of Divorce on the basis of an accidental slip made in the originals. The Order amended the Judgment, which stated that the parties were married on October 12, 1987, to read that the parties were married on October 12, 1985. The divorce still took effect almost two years later, on July 12, 1987. The correction was apparently overlooked when Ms. Hardayal obtained her certificate in 2015.

219For the following reasons, I accept Mr. Asrula’s evidence that he did not know of Ms. Hardayal’s marriage until after she obtained her divorce:

(a) Neither Ms. Hardayal nor Mr. Asrula testified that they discussed her marriage to another man when they discussed her pregnancy. It is unlikely that if Mr. Asrula had been aware that Ms. Hardayal was married, they would not have discussed it at that time.

(b) Ms. Hardayal testified that it was at her mother’s insistence that she and Mr. Asrula participate in the wedding ceremony in Toronto in April 1986. It is unlikely that Ms. Hardayal’s mother would have insisted on the wedding ceremony with Mr. Asrula knowing that she was married to Mr. Phagu at the time. It is also unlikely that Mr. Asrula would have agreed to participate in the ceremony had he known. It is more likely that Ms. Hardayal disclosed the marriage to him in 1987, after they had participated in the wedding ceremony, and after Mr. Phagu had obtained his divorce from her, when she could minimize to Mr. Asrula the importance of her previous marriage.

(c) On Ms. Hardayal’s own evidence, given under oath in April 1987, she did not separate from Mr. Phagu and begin living with Mr. Asrula until January 1987, nine months after her wedding ceremony with Mr. Asrula. Mr. Phagu’s petition was based on Ms. Hardayal’s admitted adultery with Mr. Asrula, which Ms. Hardayal, in her affidavit, stated took place in January 1987, when she separated from Mr. Phagu and began living with Mr. Asrula at 50 Lothertan Pathway, Unit #411, in Toronto.

(iv) The parties’ residence at 241 Melrose Street

220Ms. Hardayal asserts that she helped pay the carrying costs of 241 Melrose Street. Mr. Asrula denies this. For the following reasons, I find that Ms. Hardayal did not make a meaningful contribution to the payment of those costs:

(a) In 1984, when Mr. Asrula bought 241 Melrose Street, only his name was on the Agreement of Purchase and Sale. He had not met Ms. Hardayal at that time.

(b) It is undisputed that Mr. Asrula maintained steady employment throughout the parties’ relationship. I find that he was capable of carrying the property at 241 Melrose Street without financial help from Ms. Hardayal.

(c) It is undisputed that Ms. Hardayal was unemployed or not fully employed at intervals in the early years of her relationship with Mr. Asrula. At the time of Mr. Asrula’s civil action against her in 1991, Ms. Hardayal asserted that she was unemployed. Her eldest child, Neshan, was then 4 years old and Anthony was 1 year old. I find that Ms. Hardayal’s circumstances did not enable her to make a meaningful contribution to the carrying costs of 241 Melrose Street at that time.

(d) There is evidence that supports Mr. Asrula’s assertion that Ms. Hardayal invested her earnings rather than using them to pay the carrying costs of 241 Melrose Street. Mr. Asrula testified that Ms. Hardayal told him that she was lending her savings to her sister, repayable with interest. I have referred to the T5 slips from 1992 and the bank draft from Ms. Hardayal’s sister, Gomati Chetram, which support Mr. Asrula’s testimony regarding the loan Ms. Hardayal made to her sister, which appears not to have been repaid until 1996.

(e) Mr. Asrula denied Ms. Hardayal’s suggestion that the tenants at 241 Melrose did not pay their rent and that he went to court to evict them and asked Ms. Hardayal for money to pay the mortgage. Ms. Hardayal or her former lawyer, Ms. Dosanjh, could have obtained the records of such a proceeding from the Landlord and Tenant Tribunal. Ms. Hardayal tendered no such evidence at the trial.

(f) Mr. Asrula testified that 241 Melrose Street was a triplex and that when he bought the property, all the units were rented. For that reason, he and Ms. Hardayal initially resided at his mother’s home for a short time. Ms. Hardayal does not deny that they did so. In April 1987, when Ms. Hardayal swore her affidavit in her divorce proceeding with Mr. Phagu, she stated that in January 1987, when she and Mr. Asrula began living together, they were residing at 50 Lothertan Pathway, Unit #411, in Toronto, not 241 Melrose Street.

(g) Mr. Asrula testified that after the parties had lived at his parents’ home for a time, the basement apartment of 241 Melrose Street became vacant, and he and Ms. Hardayal moved in. He states that he used the rent from the remaining 2 units, and his employment income, to pay the mortgage and his living expenses. If the other units were not generating rental income, it is unlikely that Mr. Asrula and Ms. Hardayal would have moved into the basement apartment. It is more likely that they would have continued residing with his parents and rented the basement apartment to generate rental income.

(h) Mr. Asrula denied Ms. Hardayal’s suggestion that his sister, Rupinder, and her husband, who lived on the main floor of 241 Melrose Street, were unemployed and did not pay rent. Mr. Asrula testified that one of the units on the main floor, which was initially rented, later became vacant, whereupon he rented the apartment to his sister and her husband. He states, and I accept, that his sister was employed, and that her husband worked as a taxi driver. He states that they always paid rent during their occupancy of the apartment at 241 Melrose Street. If Mr. Asrula’s sister and her husband were unemployed and incapable of paying rent, it is unlikely that Mr. Asrula would have invited them to live at 241 Melrose Street. It is more likely that they would have resided at Mr. Asrula’s parents’ home, as Mr. Asrula and Ms. Hardayal did before moving to 241 Melrose Street.

(i) Mr. Asrula denied Ms. Hardayal’s suggestion that she was employed at a second job when on maternity leave after Nesham’s birth on November 10, 1986, or that she contributed to paying the bills at 241 Melrose Street. He acknowledged that a tenant living in one of the units at 241 Melrose Street had a child, and that Ms. Hardayal offered to baby-sit for her, but he denies that she earned income in that manner or contributed earnings from such employment to pay the carrying costs or household expenses at 241 Melrose Street. Ms. Hardayal did not offer testimony from any employer or records of employment or income earned, or evidence of payments she made to mortgagees or the City or Mr. Asrula during that period.

(j) Ms. Hardayal cross-examined Mr. Asrula about their relationship during his ownership of 241 Melrose Street. He replied that they argued often and that Ms. Hardayal frequently called the police. At one point, he tried to “move on” from the relationship, and that they had “many on and off relationships” with others. He acknowledged that at one point, in 1988, he married another woman, which marriage ended in divorce in 1989. In those circumstances, it is unlikely that Ms. Hardayal would have contributed willingly to paying the carrying costs at 241 Melrose Street without owning an interest in it.

(v) Sale of 241 Melrose Street and purchase of 41 Wildercroft Avenue

221On January 16, 1988, Mr. Asrula signed an Agreement for the sale of 241 Melrose Street. The sale closed on April 8, 1988, resulting in sale proceeds of $265,000.00.

222Ms. Hardayal suggested to Mr. Asrula that her name was on the Agreement to sell 241 Melrose Street. I accept Mr. Asrula’s explanation that this resulted from an error by the realtor who prepared the Agreement, who had mistakenly assumed that Ms. Hardayal was a co-owner because she and Mr. Asrula were living together there. That fact is not dispositive of whether she had an interest in the property. She was not a co-owner, and her name was not on the deed transferring the property to the purchaser.

223On April 29, 1988, Mr. Asrula bought 41 Wildercroft Avenue in Brampton for $173,000.00. He sold the property a year later for $229,900.00 on April 17, 1989. For the reasons that follow, I find that Ms. Hardayal did not contribute to the acquisition of 41 Wildercroft Avenue or have a beneficial interest in it.

(a) Mr. Asrula testified that when he lived at 241 Melrose Street, his sister was living in Brampton, where houses were cheaper. He looked for homes in Brampton, and found one at 41 Wildercroft Avenue. He offered Ms. Hardayal 50% of the property if she wanted to contribute 50% of the down payment. She declined.

(b) Mr. Asrula testified that he took Ms. Hardayal to see a lawyer before buying 41 Wildercroft Avenue, to encourage her to join him in the purchase. The lawyer advised Ms. Hardayal that she would likely not have an interest in the property if she did not contribute to its acquisition and was not on title. Ms. Hardayal declined to contribute, and Mr. Asrula obtained a loan from one of his brothers for the down-payment.

(c) In her cross-examination of Mr. Asrula, Ms. Hardayal suggested that in his civil action against her in 1991, he had stated that he and his brother each owned 50% of 41 Wildercroft Avenue, as well as 74 Cheviot Crescent in Brampton. I accept Mr. Asrula’s explanation for this, to the effect that he needed his brother’s name on the deed to 41 Wildercroft Avenue to obtain a loan to finance the purchase.

(d) It is undisputed that Mr. Asrula and Ms. Hardayal lived together at 41 Wildercroft Avenue in Brampton for a short period of time. When Mr. Asrula bought the property, he was working in Toronto. He commuted to Brampton until he found work there. He then sold 241 Melrose Street in Toronto and bought 41 Wildercroft Avenue in Brampton. I find that his purchase of the property was not motivated by, or dependent on, the prospect that Ms. Hardayal might contribute to the purchase.

(e) Mr. Asrula testified that Ms. Hardayal complained that she was not on the title of 41 Wildercroft Avenue. When cross-examining Mr. Asrula, Ms. Hardayal suggested that the realtor who helped him close the purchase told them that her name should be on title, in the event something happened to him. Mr. Asrula stated that he did not remember the realtor saying that. In any event, the realtor’s statement, if made, is not dispositive of whether Ms. Hardayal had an interest in the property, or was entitled to an interest.

(f) Mr. Asrula testified that he used his own employment earnings to pay the mortgage, utilities, and household expenses for 41 Wildercroft Avenue. He denied receiving help from Ms. Hardayal, or telling her that that she would have an interest in the property.

(g) Mr. Asrula testified that although Ms. Hardayal did not invest any funds in the acquisition of 41 Wildercroft Avenue, she nevertheless complained that she was not named on title. I accept his evidence that this was one reason why he proposed that they buy 74 Cheviot Crescent together, to give her a further opportunity to contribute to the purchase of a property that they would own together.

(h) Ms. Hardayal acknowledges that she consulted a lawyer about the fact that Mr. Asrula’s brother’s name was on the title of 41 Wildercroft Avenue and hers was not. The lawyer explained to her that because Mr. Asrula’s brother’s name was on title, he could claim a 50 % ownership interest in the property. This is likely what gave rise to her complaint that her name was not also on the title.

(i) Mr. Asrula denied Ms. Hardayal’s suggestion that they intended that he use “his share” of the proceeds of 241 Melrose Street to buy a property at 168 Richvale Drive for him and that she use “her share” to buy 41 Wildercroft Avenue for herself. I find that this was unlikely for the following reasons:

Ms. Hardayal did not contribute to the acquisition or maintenance of 241 Melrose Street and had no interest in it;
Mr. Asrula acknowledged that he used $15,000.00 of the sale proceeds from 241 Melrose Street as a deposit toward the purchase of a home on Richvale Drive, in Brampton, near where Ms. Hardayal’s sister lived. He explains that the purchase was speculative and he was unable to raise the funds he needed to close, so he “walked away” from the transaction, and lost his deposit.
The $15,000.00 that Mr. Asrula paid as a deposit for the Richvale Drive property was relatively small compared to the $115,000.00 down payment he made on 74 Cheviot Crescent;
Mr. Asrula did not follow through on his purchase of Richvale Drive, which he likely would have done if he had invested his entire share of the proceeds of sale of 241 Melrose Street in that purchase.

(j) I find that Mr. Asrula sold 41 Wildercroft Avenue with the intention of buying a property in both his and Ms. Hardayal’s names, on condition that they contribute equally to its acquisition. He testified that by the time he sold 41 Wildercroft Avenue, market prices had risen sharply, so he and Ms. Hardayal rented accommodation until they could find a new home that they could afford.

(vi) Purchase of 74 Cheviot Crescent

224On April 17, 1989, Mr. Asrula sold 41 Wildercroft Avenue for $229,900.00, most of which was used to repay the mortgage on that property. On October 16, 1989, Mr. Asrula used $40,000.00 of the net sale proceeds as a down payment for the purchase of 74 Cheviot Crescent for $215,000.00. The balance of the purchase price was financed by a loan from TD Canada Trust, secured by the property.

225As noted above, Ms. Hardayal had complained that Mr. Asrula and his brother were on the title of 41 Wildercroft Avenue but that she was not. Mr. Asrula testified that when he was about to close the sale of 41 Wildercroft Avenue and the purchase of 74 Cheviot Crescent, he discovered that his records for the two transactions were missing. He found them about a week later among Ms. Hardayal’s belongings. He states that, at the time, Ms. Hardayal was ready to leave their relationship, and he concluded that she had used the records to seek a second opinion from another lawyer as to whether she had a claim to either property.

226Ms. Hardayal acknowledges that she consulted a lawyer about the fact that Mr. Asrula’s brother’s name was on the title of 41 Wildercroft Avenue. The lawyer explained to her that because Mr. Asrula’s brother’s name was on title, he could claim a 50 % ownership interest in the property.

227Mr. Asrula testified that before his purchase of 74 Cheviot Crescent closed in 1989, Ms. Hardayal asked him to put both their names on the title. She said that she would use her savings, and her divorce settlement from Mr. Phagu, who had divorced her in 1987, to contribute $40,000.00 to the down-payment. Mr. Asrula testified that on the day his purchase of 74 Cheviot Crescent closed, Ms. Hardayal did not pay her promised share of the purchase price, but promised to pay it to him in the future. As a result, he allowed her name to remain on the deed.

228For the following reasons, I find that Ms. Hardayal made no financial contribution to the acquisition of 74 Cheviot Crescent in 1989:

(a) The record of this Court in Mr. Phagu’s divorce from Ms. Hardayal discloses that there were no children of that marriage and no claims for property or support. Additionally, the parties confirmed that there were no domestic contracts and no other court proceedings between them. It is therefore unlikely that there was any “settlement” from the marriage for Ms. Hardayal to invest in the purchase of 74 Cheviot Crescent.

(b) I find that Ms. Hardayal likely left her savings invested in her loan to her sister, as appears from the copy of the bank draft for $41,322.82 dated October 30, 1996, from her sister to her, representing the repayment of the funds.³⁴

(c) I accept Mr. Asrula’s testimony that based on Ms. Hardayal’s promise to contribute $40,000.00 to the $115,000.00 down payment for 74 Cheviot Crescent, he had intended to contribute $40,000 himself and to draw the balance of $60,000.00 from their line of credit. When Ms. Hardayal reneged on her promise, Mr. Asrula persuaded his brother to add his name to the mortgage. It is not clear that Mr. Asrula’s brother advanced any funds for the purchase of 74 Cheviot Crescent and I make no finding in that regard. Mr. Asrula testified that he ended up drawing $100,000.00 from the joint Line of Credit, instead of $60,000.00, to make up for the lack of Ms. Hardayal’s $40,000.00 contribution.

(d) In her response to Mr. Asrula’s action in April 1991, Ms. Hardayal did not allege that she had contributed financially to the acquisition of 74 Cheviot Crescent. She stated that she had had only $10,000.00 when she began living with Mr. Asrula, which had been “invested in family expenses”.

(a) Ms. Hardayal acknowledged in her Defence and Counterclaim in April 1991 that she was unemployed at that time. There is no evidence that she was regularly employed until May 17, 1993, when she swore an affidavit in the civil action, stating that she was then employed at Knob Hill Farms.

(b) Ms. Hardayal acknowledged in 1991 that “When 41 Wildercroft was sold those proceeds were invested by the plaintiff [Mr. Asrula] in 74 Cheviot Crescent, Brampton.” Ms. Hardayal relied on an intention of the parties that the property would belong equally to them, and on the doctrine of constructive trust, to support her claim in the 1991 action.

229Ms. Hardayal sought to impeach Mr. Asrula’s credibility by suggesting to him that he had falsely asserted, in reliance on an agreement he had used in the 1991 action, that his brother was an owner of the property. Ms. Hardayal showed Mr. Asrula an agreement dated July 10, 1992, which he and his brother had signed, stating that each of them owned 50% of 74 Cheviot Crescent. The Agreement states, in part:

Fifty percent of this home belongs to Mohamed Asrula, and the only reason he is not on the title is because of the banks refusal to add a third part on the mortgage.

The down payment of 74 Cheviot Crescent came from the sale of 41 Wildercroft in Brampton, owned by Mohamed Asrula and Goolsair Asrula.³⁵

230Mr. Asrula acknowledged that he and his brother consulted a lawyer who prepared the agreement on July 10, 1992, which they signed, and that he had relied on the agreement in his 1991 action.

231Ms. Hardayal acknowledged, in her Statement of Defence and Counterclaim in 1991, and in the affidavit she swore on April 19, 1991, that Mr. Asrula borrowed funds from his brother to meet the expenses of 241 Melrose Street and in return agreed to give his brother a 30% interest in the property. She stated that when the Melrose Street property was sold,

Mohammed Asrula received his 30% interest in the property. The Plaintiff then purchased a further house municipally known as 41 Wildercroft, Brampton. Title in this property was registered in the names of the Plaintiffs [Mr. Asrula and his brother] to assist the Plaintiff Asrula Goolsair in getting his mortgage financing. In fact, Mohammed Asrula had no beneficial interest in this property. When 41 Wildercroft was sold those proceeds were invested by the Plaintiff in 74 Cheviot Crescent.

232There is no evidence before me, apart from the parties’ own testimony, as to whether, in fact, Mr. Asrula’s brother received his share of the proceeds of 241 Melrose Street when it was sold, or whether his co-ownership of 41 Wildercroft Avenue was solely to facilitate financing or, additionally, represented an amount that was still owing to him. Nevertheless, it is not disputed that the proceeds of sale of the Melrose Street property were invested in 41 Wildercroft Avenue property, in which both Mr. Asrula and his brother were on title, and that the proceeds of sale of 41 Wildercroft were used to buy 74 Cheviot Crescent.

233Mr. Asrula sought to rely on his brother’s past financial assistance to him in his 1991 Statement of Claim, in which he claimed exclusive possession of 74 Cheviot Crescent and a declaration that Ms. Hardayal had no beneficial interest in the property.³⁶ There is insufficient evidence for me to determine the bona fides of the agreement between Mr. Asrula and his brother that Mr. Asrula relied on in 1991. However, his reliance on that agreement at that time does not substantially undermine his position that Ms. Hardayal had a beneficial interest in 74 Cheviot Crescent. I find that Mr. Asrula acquired that property with the savings he derived from 241 Melrose Street and 41 Wildercroft Avenue, and that Ms. Hardayal reneged on her promise to contribute to its purchase.

234When cross-examining Mr. Asrula, Ms. Hardayal suggested that he had forged her name on the mortgage for 74 Cheviot Crescent.³⁷ He denied this. Ms. Hardayal also accused her previous lawyer, Ms. Dosanjh, of forging Ms. Hardayal’s signature on the release/receipt that was signed when Ms. Dosanjh returned her file to her. In both instances, the onus was on Ms. Hardayal to prove forgery. She offered no evidence to support her allegation, and I reject it in both cases.

(e) Maintenance of 74 Cheviot Crescent

235For the reasons that follow, I find that Ms. Hardayal did not make a meaningful contribution to payment of the carrying costs of 74 Cheviot Crescent.

236Mr. Asrula and Ms. Hardayal owned 74 Cheviot Crescent for 15 years, from 1989 until August 2004. During that period, their three youngest children were born in 1990, 1996, and 1999. In the 1991 civil action, Ms. Hardayal swore an affidavit on April 18, 1991, in which she stated that she had been employed as a cashier at Knob Hill Farms, earning $400 per week gross, but had to give up that job when the parties separated on March 27, 1991, to look after the children. She had taken a leave of absence but hoped to return to work when her situation stabilized. By the time she swore her later affidavit on May 17, 1993, she was again employed at Knob Hill Farms.

237From September 1995 to May 2014, Ms. Hardayal was employed as a front-end manager at Walmart, as appears from the letter dated July 10, 2017, from Walmart’s Corporate Counsel. Although that evidence does not cover fully the entire period of the parties’ relationship, I find that for at least 11 of the 15 years when Mr. Asrula and Ms. Hardayal owned 74 Cheviot Crescent, she was capable of contributing financially to the cost of maintaining it. The issue, therefore, is whether she did so.

238In the 1991 civil action, Ms. Hardayal did not assert, in her Defence and Counterclaim or affidavits, that she paid the mortgage, property tax, or home insurance on 74 Cheviot Crescent. She stated only that “The Defendant [Ms. Hardayal] worked for various periods of time during the course of the relationship and [her] funds went into paying for family expenses.”

239In the Financial Statement Ms. Hardayal swore on April 18, 1991, she did not claim the mortgage, property taxes, or home insurance, as expenses in her Financial Statement, sworn June 10, 1993. In Mr. Asrula’s affidavit sworn March 10, 1993, he stated, in reference to the Order of Speigel J. dated April 26, 1991:

There was no mention in the said order of any obligation by the defendant or myself to pay the carrying costs of the matrimonial home [sic], namely, the mortgage payments, realty taxes, and fire insurance. Accordingly, as a result of such oversight and due to the defendant’s express refusal to pay such carrying costs, I have been required to pay the same since May 1991.
I have therefore been paying $1,031.00 per month for mortgage payments as well as assuming responsibility for the realty taxes of approximately $2,400.00 per annum….

240As noted above, Caswell J. made an Order on June 14, 1993, with the consent of the parties, requiring Ms. Hardayal to pay the mortgage and utilities on the home until it was sold, and requiring each of the parties to pay half the mortgage arrears and realty taxes from the proceeds of sale, although there is no evidence that that was done. Justice Caswell’s Order relieved Ms. Hardayal of paying occupation rent because Mr. Asrula had not paid support. It is not disputed that the parties reconciled in 1994, and that the civil action languished. I find, on a balance of probabilities that the parties ceased to conform to Caswell J.’s Order after they reconciled. Indeed, upon their resumption of cohabitation, it would not have made sense for them to do otherwise.

241Merissa was born in 1996 and Alyssa was born in 1999. The parties separated again in 2000 but continued to live under the same roof, with Mr. Asrula occupying the basement apartment of 74 Cheviot Crescent. I accept Mr. Asrula’s evidence that when the parties resumed cohabitation in 1994, he gave Ms. Hardayal an ATM card for his bank account into which his salary was deposited, and that she used that card to transfer funds to her account and used those funds to pay the carrying costs and other expenses associated with the home.

242On March 6, 2000, the parties, both represented by lawyers, entered into the Cohabitation Agreement, and consented to the Order of Kruzick J. on June 30, 2000, which incorporated the terms of the Agreement. The Order required Mr. Asrula to pay the mortgage of $1,200.00 per month in lieu of child support until the mortgage was paid off and, thereafter, to pay child support in the amount of $800.00 per month.³⁸

243Mr. Asrula testified that he funded the mortgage payments on 74 Cheviot Crescent from the time the parties reconciled in 1994 until August 2004, when the property was sold. In support of his testimony, he tendered A “Deposit Account History” from January 1, 2003 to April 11, 2013, for his bank account #3113264 at TD Canada Trust, for which he says he gave Ms. Hardayal an ATM card, and which he says she used to find the mortgage payments. The Account History sets out the credits and debits to the account.

244The Account History for the period from January 1, 2003, to August 2004, when 74 Cheviot Crescent was sold, discloses that the mortgage payments were made from that account, almost entirely from deposits of Mr. Asrula’s pay from New Zealand Lamb. The debits for “TD Mortgage”, beginning January 2, 2003, are in the amount of $1,574.44 per month. There are, additionally, numerous withdrawals, in even numbers $100 to $400. There are also transfers to a Wal-Mart account, in January, every month from May to September, and December, which I find likely belonged to Ms. Hardayal, who was employed at Wal-Mart. Those records support my finding that Ms. Hardayal had access to Ms. Asrula’s bank account and used it to transfer funds to her own account and to pay the mortgage on 74 Cheviot Crescent.

245As discussed below, in my reasons for judgment regarding child support, Mr. Asrula should not have been required to continue paying child support, or the full mortgage payments in lieu of child support, after the parties resumed co-habitation. However, no motion was made to vary Justice Caswell’s order, and Ms. Hardayal continued to use her ATM card for Mr. Asrula’s TD Canada Trust account to pay the mortgage, and that account was supplied almost exclusively from Mr. Asrula’s pay.

246Mr. Asrula testified that Ms. Hardayal often withdrew more than $1,200.00, and sometimes as much as his full salary, from his account. He acknowledges there were some bills, such as for home insurance, Rogers, etc. that Ms. Hardayla paid from both their incomes, and the bank statements that were tendered support that conclusion.³⁹ Ms. Hardayal could not have paid the bills, and certainly not the mortgage, property tax, and home insurance, from her income alone. The mortgage payments alone were $1,200.00 per month, or $14,400.00 per year. Ms. Hardayal’s total annual income from Knob Hill Farms was only $17,160.00.

247It is not disputed that Ms. Hardayal paid some of the bills for utilities and household expenses at 74 Cheviot Crescent. I find that the amounts she paid were exceeded by the amounts Mr. Asrula paid, or that Ms. Hardayal withdrew from his account. Additionally, I find that the value Ms. Hardayal derived from her occupation of 74 Cheviot Crescent exceeded the financial contributions she made to maintaining it.

248In the 1991 civil action, Caswell J. made an Order on June 14, 1993, granting Ms. Hardayal exclusive possession of the property and relieving her from paying occupation rent because Mr. Asrula had not paid support. I have found that when the parties reconciled in 1994, most of the expenses Ms. Hardayal paid were funded by transfers or withdrawals from Mr. Asrula’s account. While no evidence was tendered as to the rental value of the area she occupied during the periods when Mr. Asrula occupied the basement, there is scant evidence of expenses she paid that were not funded by Mr. Asrula. I therefore infer that whatever the value of her occupation, it exceeded the expenses she paid from her own resources.

(f) Did Mr. Asrula have a resulting trust or constructive interest in Ms. Hardayal’s share of the proceeds of 74 Cheviot Crescent?

249For the following reasons, I find that Ms. Hardayal held her interest in 74 Cheviot Crescent in a constructive trust for Mr. Asrula:

(a) Mr. Asrula did not intend to gift an interest in 74 Cheviot Crescent to Ms. Hardayal. During their relationship, the parties sought to preserve their separate financial resources, and protect them from encroachment by the other. Each resented the other for what they regarded as failures to contribute fairly to their household.

(b) The Court in Serra v. Serra (2007), described the elements of a gift as follows, at para. 92:

A gift is the voluntary transfer of property without consideration (Birce v. Birce (2001), 2001 CanLII 8607 (ON CA), 56 O.R. (3d) 226 (Ont. C.A.) at para. 17). It has the following elements: intention to transfer property; certainty as to the property to be transferred; certainty as to the recipient of the gift; and delivery and perfection of the gift by doing everything necessary to effect an irrevocable transfer (Ruwenzori Enterprises Ltd. v. Walji, [2004] B.C.J. No. 1147 (B.C. S.C.)).⁴⁰

[Emphasis added.]

(c) Ms. Hardayal’s promise to pay $40,000.00 toward the purchase price for 74 Cheviot Crescent, and Mr. Asrula’s continued requests that she do so, are consistent with the parties’ pattern of protecting their separate resources. Those facts support the conclusion that Mr. Asrula did not intend to gift half of the property to Ms. Hardayal.

(d) For much of the time from 1991, when Mr. Asrula was first forced to leave 74 Cheviot Crescent, until 2004, when the property was sold, Ms. Hardayal and the children occupied the majority of the home, Mr. Asrula being relegated to the basement. I find that the value Ms. Hardayal derived from her occupation far exceeded the amounts she paid toward the carrying costs and household expenses.

(e) The parties’ relationship, and the manner in which they managed their financial affairs, does not support a conclusion that Ms. Hardayal became entitled to the interest Mr. Asrula gave to her, on the condition of her promised contribution to the cost of acquiring the property, when that condition was never fulfilled. Doing so would reward Ms. Hardayal for what I find was a calculated effort to deprive Mr. Asrula of his savings and would result in an injustice to him.

(a) Based on the fact that Ms. Hardayal did not contribute financially to the acquisition of 74 Cheviot Crescent, and did not contribute meaningfully to the payment of the carrying costs or other expenses associated with ownership of the home from 1989 to 2004, and derived a value from her occupation of the property that exceeded such payments as she made from her own resources, I find that Ms. Hardayal held her interest in the property in trust for Mr. Asrula.

(b) Recognizing a beneficial interest by her in the property would result in an unjust enrichment of her and a corresponding deprivation of Mr. Asrula, without any juridical reason.

(g) Sale of Cheviot Crescent

250Mr. Asrula and Ms. Hardayal lived at 74 Cheviot Crescent from 1989 to 2004.⁴¹ After many arguments between them over who owned the property and who should be paying the expenses associated with it, Mr. Asrula decided that they should move to a larger home in respect of which Ms. Hardayal would contribute to the acquisition from her own resources. They selected a new home being built at 5 Nelly Court in Brampton.

(h) Purchase of 5 Nelly Court

251On March 3, 2003, Ms. Hardayal signed an Agreement of Purchase and Sale to purchase 5 Nelly Court from the builder, Mattamy (Castlemore) Limited. The Agreement closed more than a year later, on April 8, 2004. In the meantime, the Agreement required deposits totalling $25,000.00 to be paid toward the purchase.

252Mr. Asrula testified that the parties contributed equally to the purchase of 5 Nelly Court; Ms. Hardayal testified that she alone made the purchase. For the reasons that follow, I find that the parties contributed equally to the purchase.

The closing of the purchase of 5 Nelly Court

253The purchase of 5 Nelly Court closed on April 8, 2004, four and a half months before the sale of 74 Cheviot Crescent closed on August 23, 2004. Mr. Asrula explained that the purchaser of 74 Cheviot Crescent was unable to pay the full purchase price at once, which delayed the closing of the sale of that property. Owing to the fact that the closing of the sale of 74 Cheviot Crescent occurred four and a half months after the purchase of 5 Nelly Court closed, a large part of the purchase price of 5 Nelly Court had to be financed during the interval.

254Ms. Hardayal called, as a witness at the trial, David M. Cohen, the real estate lawyer she retained to complete the purchase of 5 Nelly Court. Ms. Hardayal retained him in about February 2004, to close the parties’ purchase of 5 Nelly Court two months later. At her request, Mr. Cohen prepared the mortgage that would secure the parties’ loan from the Toronto-Dominion Bank to finance the purchase. Later, Ms. Hardayal also retained Mr. Cohen to close the parties’ sale of 74 Cheviot Crescent.

255Ms. Hardayal gave Mr. Cohen the Agreement of Purchase and Sale for 5 Nelly Court, which she had signed more than a year earlier, on March 3, 2003.⁴² Only the names of Ms. Hardayal and the builder/vendor, Mattamy (Castlemore) Limited, were on the Agreement, so Mr. Cohen initially prepared the transfer from Mattamy (Castlemore) Limited to Ms. Hardayal alone. Ms. Hardayal had not given him instructions at that point to include Mr. Asrula on the title to the property.

256Mr. Cohen stated that Ms. Hardayal initially asked Mattamy (Castlemore) Limited to extend the closing to the end of June as she was going to get a $100,000.00 loan from her brother. The builder/vendor was prepared to extend, with conditions, as appears from a letter from its lawyer, Harvey Joseph, dated February 11, 2004.[43] However, Ms. Hardayal then instructed Mr. Cohen to abandon the request for extension, and proceed with bank financing.

257Ms. Hardayal gave Mr. Cohen a letter of instruction from the Toronto-Dominion Bank, dated April 7, 2004. The Bank’s letter identifies Ms. Hardayal and Mr. Asrula as the borrowers, the loan being for $180,000.00. Headed “Solicitors Instructions”, the letter states, in part:

The Bank relies solely on you to ensure that the Mortgage is prepared in accordance with this Instruction letter. You assume sole responsibility for the accuracy and validity of all documents, including the Mortgage. In addition, you assume sole responsibility to confirm the identity of the Mortgagor(s) (who may not be all the Borrower(s) identified above) and Guarantor(s), if any, and to retain evidence of such confirmation of identity in your file. As the Bank’s legal counsel, you will ensure that all of the Bank’s interests are as Mortgagees are valid and appropriately secured.

[Emphasis added]

258The Bank’s letter instructed Mr. Cohen to show both parties as mortgagors on the mortgage.⁴⁴ This entailed also showing them as owners on the transfer of the property from Mattamy (Castlemore) Limited. Mr. Cohen explained that he had to prepare the transfer and the mortgage in accordance with the Bank’s instructions as, otherwise, the Bank would not advance the funds under the mortgage.

259Until Ms. Hardayal gave Mr. Cohen the Bank’s letter of instruction, he was not aware that Mr. Asrula was to have an interest in 5 Nelly Court. In fact, he had no knowledge of Mr. Asrula at all until Ms. Hardayal brought him to Mr. Cohen’s office on the afternoon of April 8, 2004, the day the purchase was to close. Mr. Cohen does not remember meeting Mr. Asrula, or having any contact with him, before then.

260At the trial, Mr. Asrula tendered Mr. Cohen’s Statement of Adjustments for the purchase, prepared on March 26, 2004.⁴⁵ It discloses that the Total Sale Price was $365,226.03, consisting of:

(a) Sale price, as per the Agreement

Of Purchase and Sale and Amendments: $355,990.00

(b) Purchased Extras, as set out in

Separate agreement: $24,494.44

Hydro inspection, water meter

installation, and New Home Warranty

Program fee, and GST less a GST rebate.

261The Statement of Adjustments additionally provides for a development charge of $16,734.86, and an amount of $79.55 being allowed the vendor, for a total purchase price of $382,040.44.

262The Statement of Adjustments sets out that the payments, in the total amount of $382,040.44, consisting of the following:

(a) Deposits: $25,000.00

(b) Deposits for extras: $14,592.47

263Ms. Hardayal tendered, as part of her evidence at trial, an Amendment of Agreement of Purchase and Sale, which she and the builder/vender had signed on June 23 and 24, 2003, which provided for an increase of the purchase price from $334,990.00 to $355,990, including a $1,000.00 administration fee.⁴⁶ Additionally, there were two Agreements for Optional Extras, as follows:

(a) Agreement dated September 15, 2003, for $18,088.21⁴⁷

(b) Agreement dated September 25, 2003, for $3,073.04.⁴⁸

264It is not clear, from the foregoing evidence, how the two “Agreements for Optional Extras”, amounting to $21,161.25, relate to the “Purchased Extras” of $24,494.44” referred to in Mr. Cohen’s Statement of Adjustments, or the deposits for extras, in the amount of $14,592.47, referred to in the Statement of Adjustments. It was evident that Mr. Cohen’s file, which contained only the documents Ms. Hardayal gave him, did not include all of the documents pertaining to the purchase. Ms. Hardayal tendered no evidence to explain the final cheque for $2,100.00.

265Mr. Cohen’s Ledger Statement discloses that $352,963.70 was paid on closing, consisting of the following:

(i) Balance due on closing purchase: $342,447.97

(ii) Land Transfer Tax and registrations: $3,968.68

(iii) Registration of transfer and mortgage: $141.40

(iv) Registration of new deed and executions: $92.70

(v) Title Insurance premium: $170.00

(vi) Ontario Legal Aid: $5,176.70

(to discharge a lien for Mr. Asrula’s

legal aid lawyer’s fees)

(vii) Mr. Cohen’s account: $959.06

(viii) Balance paid to the parties: $7.19

266The Ledger Statement discloses that the above balance owing, in the amount of $352,963.70, was paid as follows:

(a) Proceeds of TD Bank mortgage loan: $180,000.00

(b) Received in trust from the parties: $172,787.00

Payment of the deposits and down-payment on 5 Nelly Court

267Mr. Cohen had no knowledge of how Ms. Hardayal acquired the funds for the deposits of $25,000.00, or the additional deposits of $14,000.00 for extras, or the balance of $172,787.00 for the down payment, in addition to the $180,000 mortgage from the Toronto Dominion Bank. His records disclosed only that the payments were made.

268At the trial, Ms. Hardayal tendered the Agreement of Purchase and Sale dated March 2, 2003, which was accepted March 3, 2003.⁴⁹ It states that the purchase will be completed on April 8, 2004. It states that the then purchase price of $334,990.00 would be paid by deposits of $25,000.00, and a balance of $309,990.00. It breaks down the deposits as follows:

Payable by cheque by March 2, 2003: $5,000.00

Payable by post-dated cheque by April 10, 2003: $10,000.00

Payable by post-dated cheque by May 10, 2003: $10,000.00

269Ms. Hardayal testified that she alone paid the deposits, in the full amount of $25,000.00. She tendered photocopies of the faces of four cheques. The first three cheques were drawn on her account #69074-23 at the Bank of Nova Scotia; the last was drawn on her account #2117-3123324 at the Toronto-Dominion Bank:

March 2, 2003: $5,000.00

April 10, 2003: $10,000.00

May 10, 2003: $10,000.00

Sept. 15, 2003: $2,100.00.⁵⁰

270The Agreement of Purchase and Sale does not refer to the last payment of $2,100.00.

271Mr. Asrula showed photocopies of the faces of six cheques, amounting in total to $40,000 that Ms. Hardayal appears to have given to Mattamy Homes for 5 Nelly Court.⁵¹

(a) October 24, 2003: $5,000.00

(b) December 8, 2003: $5,901.97

(d) March 2, 2003: $5,000.00

(e) April 10, 2003: $10,000.00

(f) May 10, 2003: $10,000.00

272The cheques appear to comprise the initial deposits of $25,000.00, set out in the Agreement of Purchase and Sale, the additional deposits of $14,000.00, required by the Agreements for Extras, and a $1,000.00 administrative fee for the extras, provided for in one of the Agreements for Extras. The cheques were drawn on the same account at the Bank of Nova Scotia that Ms. Hardayal testified she opened in “1980 something”, which she says is now closed.

273Mr. Asrula states that he transferred those funds to Ms. Hardayal and that she sent the cheques. He suggested to Ms. Hardayal that the monthly statements on the account on which she drew the cheques would show the transfers from his account to hers.

274As noted above, Ms. Hardayal initially stated that she was never asked for the statements from the Bank of Nova Scotia before the night before the trial. She stated that she had been able to get her statements from TD Canada Trust from 2003, but that she was unable to get her statements from the Bank of Nova Scotia because they retain records for only 7 years.

275Mr. Asrula confronted Ms. Hardayal with the Request for Information in Form 20, dated November 20, 2013, that his then lawyer, Abby Vimal, had sent to Ms. Hardayal’s then lawyer, Ms. Dosanjh.⁵² The Request was for “Bank statements and line of credit statements from 2004 onwards,” to be produced within 14 days. Mr. Asrula stated that he had never received the Bank of Nova Scotia statements.

276Ms. Hardayal then acknowledged that she had been asked to ask to produce the records in 2013. She stated that whatever was done or not done at that time was Ms. Dosanjh’s responsibility. As noted above, Ms. Dosanjh had replied to Ms. Vimal that Ms. Hardayal had requested her bank statements but had been unable to obtain them. She stated that she gave Ms. Vimal whatever Ms. Hardayal gave her. For the reasons stated above, I reject Ms. Hardayal’s explanation for her failure to produce the statements from her account at the Bank of Nova Scotia and find that, if produced, they would not have supported her position.

277Mr. Asrula testified that he paid half of the deposits. He states that, for his share of the deposits, he liquidated two of his “leveraged investments” (meaning investments financed by his debts). He tendered a photocopy of a “Deposit Account History” for an account # 3111946 at Branch 2117 of TD Canada Trust, which he said he operated. This was the same branch where he operated other accounts, including #3113264, for which he tendered Deposit Account Histories from January 2, 2003, to December 31, 2008, the ATM for which he says he gave to Ms. Hardayal.

278The Account History for account #3111946 from March 12 to April 15, 2003, shows a cash withdrawal of $10,000.00 on April 10, 2003, the same day Ms. Hardayal wrote her cheque for $10,000.00 to Mattamy Homes.”⁵³ Ms. Hardayal failed to produce the monthly statements, or account history, for Scotiabank account #69074-23 upon which she drew her cheque for $10,000.00 to Mattamy Homes. Those statement might have disclosed the source of the funds she used to make those payments. I draw an adverse inference from her failure to produce those statements, and find that the funds were derived from withdrawals from Mr. Asrula’s account, and that this represented part of his contribution to the deposits paid to Mattamy Homes.

279I infer that Mr. Asrula paid at least $10,000.00 of the deposits. There was no banking evidence from either party as to the source of the remaining $15,000.00 deposits, or of the $14,000.00 deposits for extras.

280Mesbur J., in Bardouniotis v. Trypis, (2010), stated:

Disclosure, of course, is critical to the court’s task of fact-finding, particularly where, as here, there are significant credibility issues. In these circumstances of deliberate non-disclosure I draw an adverse inference against Mr. Trypis and accept little of what he says on contentious issues unless corroborated by independent, credible evidence.⁵⁴

[Emphasis added.]

281I adopt the comments made by Myers J. in Manchanda v. Thethi, (2016), regarding parties who fail to disclose financial information:

A party should not have to endure order after order after order being ignored and breached by the other side. A refusal to disclose one’s financial affairs is not just a mis-step in the pre-trial tactical game that deserves a two minute delay of game penalty. Failure to disclose is a breach of the primary objective. Especially if it involves breach of a court order, a party who fails to disclose evinces a determination that he or she does not want to play by the rules. It is time to oblige such parties by assessing a game misconduct to eject them from the proceeding.⁵⁵

[Emphasis added.]

282In Murray v. Murray, (2010), Milanetti J. held that a persistent failure to abide by court orders, and a lack of a credible explanation for doing so gives rise to an adverse inference: “I have drawn an adverse inference against Mr. Murray for his persistent failure to abide by court orders and his lack of a credible explanation for so doing.”⁵⁶

283In Parker v. Parker, (2008), D.C. Shaw J. similarly rejected the wife’s evidence that she had used her own funds to make the down payment on the matrimonial home. He found more plausible the husband’s evidence that his wife’s contribution to the matrimonial home’s down payment was in fact his own.⁵⁷ In that case, the wife’s financial statements did not disclose an ability to pay, and the money was from a joint account. In the absence of the bank statements that Ms. Hardayal failed to produce, I find that the source of the funds for the deposits derived at least equally from Mr. Asrula.

284The balance of the purchase price was paid with the $180,000.00 proceeds of the loan from T-D Canada Trust to both parties, secured by the mortgage Mr. Cohen prepared,⁵⁸ and a bank draft for $172,000.00. A photocopy of the bank draft was tendered at the trial.⁵⁹

285Mr. Asrula testified that the $172,787 came from the parties’ joint line of credit. The line of credit was initially $100,000, but TD Canada Trust expanded it to $172,787 to provide “bridge financing” to permit the purchase of 5 Nelly Court to close on April 8, 2004. TD Canada Trust paid one cheque to Mattamy Homes for $180,000.00, which represented the mortgage proceeds, and a bank draft for $172,787.00, from the parties’ joint Line of Credit.

286Ms. Hardayal’s evidence does not differ substantially from that of Mr. Asrula regarding the source of the $172,787.00 payment. In Ms. Hardayal’s affidavit sworn November 27, 2013, she states:

I purchased 5 Nelly Court, Brampton, Ontario, on April 8, 2004. The Solicitor was David Cohen. The deposit for this home was paid solely by me, and the balance payable in the amount of $172,787.00 was withdrawn from the line of credit on 74 Cheviot Crescent which reflected my entire share in the home that was listed to sell. Thus, the balance payable was entirely my share in the home which was used to purchase 5 Nelly Court, Brampton, Ontario.

[Emphasis added]

287I have found that Mr. Asrula owned the entire equity in 74 Cheviot Crescent. I will have more to say below about the parties’ joint TD Canada Trust Line of Credit from which Ms. Hardayal drew the $172,787.00 for the balance of the down payment for 5 Nelly Court. It suffices to say, at this point, that Mr. Asrula’s contribution to the purchase price for 5 Nelly Court included the equity that secured the line of credit from which the $172,787.00 was drawn, and his liability on that Line of Credit and on the $180,000.00 mortgage, and the $10,000.00 that, at a minimum, that was derived from his funds to pay the deposit on April 10, 2003.

288The Bank’s letter of instruction to Mr. Cohen does not specify how the interests in 5 Nelly Court were to be allocated between Ms. Hardayal and Mr. Asrula. The percentage “99%” and “1%” appear in handwriting on the letter, above the names of Ms. Hardayal and Mr. Asrula. Mr. Cohen offered no evidence as to whose handwriting is on the letter, or as to who was the source of the information or instruction regarding that division.

289Mr. Cohen stated that he was not aware of the 99% and 1% division of title before Ms. Hardayal gave him the Bank’s letter of instruction dated April 7, 2004.⁶⁰ He agreed with Mr. Asrula’s suggestion that the Bank doesn’t care about the proportions of ownership each of the parties received. Both parties were fully liable on the mortgage, so both names were required to appear as owners on the transfer. That is what the Bank’s letter of instruction stated. Mr. Cohen further agreed that the proportions of ownership also did not matter to him.

290When questioning Mr. Cohen, Ms. Hardayal produced an Acknowledgment and Direction to register the property in the names of both Ms. Hardayal and Mr. Asrula,⁶¹ and the Transfer itself, which he identified.⁶² Mr. Cohen testified that the parties signed the following documents, which were entered as exhibits:

(a) An acknowledgement to the Toronto-Dominion Bank regarding the financing of the purchase.⁶³

(b) A consent, acknowledging that they had the right to independent legal advice and consented to his acting for both parties.⁶⁴

(c) An Acknowledgement and Direction to be registered on a future date, to transfer the property to Ms. Hardayal alone, when she qualified for financing.

291Mr. Cohen testified that whenever he has a client sign a document, he explains what the document is. He testified that he would have explained the documents, including the Acknowledgment and Direction, to Ms. Hardayal and Mr. Asrula, and told them that they both were to be on title. Mr. Cohen testified that the nature of the transaction didn’t matter to him, and he did not remember whether Mr. Asrula had ever told him that he was to be only a 1% owner.

292Mr. Asrula identified his signature on the Acknowledgment and Direction, which stated that the title was to be in Ms. Hardayal’s name for 99% and in his name for 1%. The Acknowledgement and Direction was entered as an exhibit at the trial.⁶⁵

293Mr. Asrula noted that the document is dated April 8, 2004, the same date as the closing. He had never met Mr. Cohen before that. There had been no discussions about Ms. Hardayal having a 99% in the property. He was shown the Acknowledgment only 10 minutes before the closing, and he was shocked. At that point, he said, he felt that he had no choice but to sign the document, as the alternative would have been to abandon the transaction, which would have left their children “on the street”.

294Because of Mr. Asrula’s work schedule, he was not able to attend at Mr. Cohen’s office until 10 minutes to 4:00 p.m. He had trusted Ms. Hardayal to instruct Mr. Cohen to prepare the title to them as tenants in common with equal interests. He did not learn until he arrived that the title was to be 1% in his name.

295Mr. Asrula stated that he felt tremendous pressure from the risk that the builder would take the property back if they did not close the property that day, because its value had increased from the time they had entered into the agreement to purchase it. Additionally, he was worried about the dislocation that their children would experience if they sold their existing home on Cheviot Crescent without having a new home to move to. He had always provided a home for them since they were born.

296Mr. Asrula testified that Ms. Hardayal promised that he would be given his remaining 49%. He has no evidence corroborating the promise, although he sent a letter to Mr. Cohen five years later, on February 26, 2009, in which he made reference to it. Mr. Cohen acknowledged that he received the letter, in which Mr. Asrula stated that he had had a dispute with the Canada Revenue Agency, and that he and Ms. Hardayal had agreed that he would hold 1% of the property until the dispute was resolved, whereupon 50% of the title would be put in Mr. Asrula’s name.⁶⁶ Mr. Cohen had no knowledge of the agreement before receiving the letter.

297Mr. Asrula explained that the assessment from CRA was for child support he had paid pursuant to the Order made in the 1991 civil action. Under the legislative regime that prevailed before the Child Support Guidelines came into effect on January 1, 2002, a payor spouse was entitled to claim child support he had paid as a deduction from his income and the recipient was required to report it as income.⁶⁷ Ms. Hardayal had not reported the support she had received, which triggered an audit.

298Ultimately, Mr. Asrula submitted the child support Order that the Court had made in 1991, and the CRA withdrew its claim against him. However, the audit was still ongoing when the parties were buying 5 Nelly Court. The desirability of protecting the property from a potential judgment against him by the CRA, if the outcome of the audit had been unfavourable to him, was an additional reason for him to acquiesce in the allocation of title that Ms. Hardayal had directed. Nevertheless, the allocation did not reflect the contributions the parties made to the acquisition of the property, or the intention that Mr. Asrula, at least, had as to the interest he was acquiring.

299Mr. Cohen had no knowledge of an agreement between Ms. Hardayal and Mr. Asrula regarding the interest each would eventually have in 5 Nelly Court. As far as he understood from Ms. Hardayal, Mr. Asrula’s name was to be on the transfer only to facilitate the financing, and that he would be holding the 1% as a bare trustee.

300Under cross-examination by Mr. Asrula, Mr. Cohen acknowledged that he did not remember whether Mr. Asrula ever told him that he was to be only a 1% owner. He stated that he did not remember Mr. Asrula walking out of his office at the Bramalea City Centre, or Ms. Hardayal saying that 49% would later be transferred to Mr. Asrula. His understanding was that 99% of the title was being registered in Ms. Hardayal’s name because she provided all of the funds for the purchase, although he appears to have received that information from Ms. Hardayal. It is not surprising that Mr. Cohen’s memory of this transaction, made 13 years earlier, among many in which he was retained to act, was less complete than Mr. Asrula’s for whom it was more unique. For these reasons, where Mr. Cohen’s recollection differs from Mr. Asrula’s, I prefer Mr. Asrula’s evidence.

301At the close of the transaction, title was registered in the names of Ms. Hardayal and Mr. Asrula as joint tenants, with 99% in Ms. Hardayal’s name, and 1% in Mr. Asrula’s name. Mr. Cohen did not know whether he kept a copy of the Transfer, or whether it was given to Ms. Hardayal as part of her closing documents. It was not in Mr. Cohen’s file.

(i) The closing of the sale of 74 Cheviot Crescent

302Mr. Asrula testified that 74 Cheviot Crescent was sold for $259,000.00. From that amount, $172,787.00 was disbursed to repay the bridge loan that the parties had obtained from TD Canada Trust for the purpose of closing the purchase of 5 Nelly Court by means of a temporary increase in the $100,000.00 line of credit that was secured by 74 Cheviot Crescent.

303Ms. Hardayal does not contradict this explanation. When asked whether the $172,787.00 from the sale of 74 Cheviot Crescent was used to pay off the joint line of credit, she replied that she could not remember. As noted above, she acknowledged in her affidavit sworn November 27, 2013, that, “the balance payable [for the purchase of 5 Nelly Court] in the amount of $172,787.00 was withdrawn from the line of credit on 74 Cheviot Crescent”.

304This payment should have left a balance of $86,213.00 from the proceeds of sale of 74 Cheviot Crescent. However, $75,445.90 was received from the purchaser, as appears from Mr. Cohen’s Client Ledger for the sale.⁶⁸ No explanation was offered for this difference. I infer that there were further draws of $10,767.10 from the line of credit between the purchase of 5 Nelly Court and the sale of 74 Cheviot Crescent which were discharged from the purchaser’s initial payment.

305Of the $74,445.90 that Mr. Cohen received from the purchaser of 74 Cheviot Crescent on August 23, 2004, $6,085.00 was paid to the realtor for real estate commission on the sale. This disbursement appears on Mr. Cohen’s Client Ledger for the sale.⁶⁹ This left $67,888.05 that Mr. Cohen paid to Ms. Hardayal and Mr. Asrula jointly on August 23, 2004, and $975.92 that was applied to Mr. Cohen’s account for fees and disbursements in relation to the sale.

306Mr. Cohen testified that he prepared the cheque for $67,888.05, representing the net proceeds of sale of Cheviot Crescent. He made the cheque payable to both parties, but does not remember to whom he gave the cheque. Mr. Asrula testified that the cheque was given to Ms. Hardayal, who endorsed it without telling him where it was deposited. This is supported by the fact that it was Ms. Hardayal who retained Mr. Cohen for both the purchase of 5 Nelly Court and the sale of Cheviot Crescent, and who was the one who gave him instructions throughout. Mr. Asrula’s assertion was not contradicted by Ms. Hardayal, and I accept Mr. Asrula’s evidence that it was Ms. Hardayal who received the funds.

307The bank records do not disclose what Ms. Hardayal did with the $67,888.05 that she received from the sale of Cheviot Crescent. A clue, however, appears from the evidence she gave in her affidavit sworn November 27, 2013. In paragraph 18, she states, regarding the balance of the down payment made for the purchase of 5 Nelly Court:

The deposit for this home was paid solely by me and the balance payable in the amount of $172,787.00 was withdrawn from the line of credit on 74 Cheviot Crescent, which reflected my entire share in the home that was listed to sell. Thus, the balance payable was entirely my share in the home which was used to purchase 5 Nelly Court, Brampton, Ontario.

308As noted above, I have found that Ms. Hardayal was not, in fact, entitled to the equity in 74 Cheviot Crescent, and was therefore not entitled to either the $172,787.00 that was drawn from the parties secured Line of Credit, and discharged by the purchaser’s first payment for 74 Cheviot Crescent, nor the remaining $67,888.05 from the purchaser’s final payment, which Mr. Cohen gave to her on August 23, 2004. However, because Ms. Hardayal considered herself entitled to the $172,787.00, she opened a new Line of Credit in the amount of $180,000.00, secured by 5 Nelly Court, which she considered “her property”, and she additionally kept the $67,888.05. The new Line of Credit appears on the Deposit Account History for the Line of Credit account #3271376 CRL at Branch 2124 of TD Canada Trust for September 29, 2004, where it is stated: “Line of Credit Open”, with a nil credited on September 29, and a debit of $180,000.00 the same day.

309Mr. Asrula suggested to Ms. Hardayal that the Home Equity Line of Credit was used as a mortgage, (for the purpose of the bridge financing required to close the purchase of 5 Nelly Court), and that no one could use it for other purposes because of a restraint that the Bank had placed on it. She stated that she did not remember that. She stated that she did not remember signing something agreeing that they could not use it.

310Mr. Asrula asked Ms. Hardayal whether she recalled that the Home Equity Line of Credit was reduced to a nil balance when the first payment was made for 74 Cheviot Crescent, in the amount of $172,000.00. She replied that she is unable to recall this. Having regard to her earlier affidavit, I reject Ms. Hardayal’s testimony in this regard.

311Ms. Hardayal testified that she paid $40,000 from her account as a down payment on Nelly Court. Mr. Cohen testified that $25,000 was paid as a down-payment. However, the Statement of Adjustments discloses that, additionally, $14,000 was paid as a deposit toward extras that were agreed upon following the signing of the initial Agreement of Purchase and Sale. The Extras Agreement required those deposits to be paid within 5 days. Ms. Hardayal has not disclosed the records of the payments, likely because doing so would disclose the source from which she derived the funds she used to make the payments. However, it is clear from the Statement of Adjustments that those additional deposits were paid prior to the closing of the purchase, as the purchasers were given credit for them.

312Of the $40,000.00 that comprised both the $25,000.00 deposits required by the initial Agreement of Purchase and Sale and the $14,000.00 plus the $1,000.00 administrative fee, Mr. Asrula has proved to my satisfaction that his account was the source of at least $10,000.00. As he was equally responsible for the payment of the total $40,000.00 deposits, he remained responsible for a further $10,000.00. Because Ms. Hardayal kept the net proceeds of $67,888.05 from the sale of 74 Cheviot Crescent, which belonged to Mr. Asrula, $10,000.00 of that amount will be deducted to make up the deficiency in Mr. Asrula’s required ½ contribution of $20,000.00 to the $40,000.00 deposits for 5 Nelly Court. A further $5,176.70 will be applied as re-payment of the Legal Aid Ontario lien that was discharged by the parties’ joint line of credit in the purchase of 5 Nelly Court. The balance of $52,711.35 of the $67,888.05 that Ms. Hardayal received from the net sale proceeds of 74 Cheviot Crescent will be deducted from Ms. Hardayal’s share of the net proceeds of sale of 5 Nelly Court and shall be paid to Mr. Asrula.

(j) Maintenance of 5 Nelly Court

313When Mr. Asrula returned to 5 Nelly Court in 2010, there were two mortgage payments made, on September 13 and September 16, 2010, for $1,040 and $760, respectively, from Mr. Asrula’s account #3113264 at TD Canada Trust.⁷⁰

314Ms. Hardayal testified that Mr. Asrula was living at 5 Nelly Court, but never paid any of the property tax, insurance, utility, repairs on home. She tendered the bills as an exhibit and testified that she paid the bills from her bank account. The Line of Credit statements showing the payments made from 2004 to 2017 were marked as another exhibit.⁷¹

315Ms. Hardayal stated that she wants Mr. Asrula to reimburse to her the expense she paid for home insurance. She states that she made the insurance payments in 2013, and was having trouble making the payments. These included premiums for life Insurance that Mr. Asrula put on. They amount in total to $9,100.00. The bills were entered as an exhibit.⁷²

316Ms. Asrula tendered monthly bank statements to show that she paid the mortgage, home insurance, and property tax.⁷³ She calculated the totals of these payments as follows:

a) Property tax 2004 to date: $80,600.

b) Home insurance: $9,100

c) Mortgage insurance on Line $12,480

d) Mortgage payment $230,400.

e) Line of Credit: $62,088

317Mr. Asrula testified that he deposited his entire earnings to the account no. 3113264 at TD Canada Trust. Mr. Asrula testified, and I accept, that while living at 5 Nelly Court, he found the fights between him and Ms. Hardayal to be unbearable. For this reason, he permitted her to continue using the ATM card on his account at T-D Canada Trust to enable her to access his pay, in the hope of avoiding conflict between them.

318Mr. Asrula asserts that Ms. Hardayal was able to save substantial amounts by withdrawing funds from his account and, after 2004, from the parties’ new joint line of credit. He testified that on March 25, 2011, Ms. Hardayal had a portfolio of assets from TD Canada Trust in the amount of $49,656.20.

319The Account Histories for Mr. Asrula’s account show the breakdown of payments for Cheviot Crescent and Nelly Court:

(a) In 2003, the year before the parties sold 74 Cheviot Crescent and bought 5 Nelly Court, $23,616.60 was paid from Mr. Asrula’s account for Cheviot Crescent. $865 was transferred to an account at Walmart that was likely Ms. Hardayal’s. $300 was paid to the orthodontist who treated Ms. Hardayal and the children.

(b) In 2004, the year 74 Cheviot Crescent was sold and 5 Nelly Court was purchased, $4,723.32 was paid for the mortgage, presumably for 74 Cheviot, $2,232.24 was transferred to the account at Walmart, and there were other transfers of $2,060.00.

(c) In 2005, the year after the parties began living at 5 Nelly Court, there were ATM withdrawals of $28,472, and a transfer of $5,027.03 to the account at Walmart: $5,027.03.

(d) In 2006, there were ATM withdrawals of $26,900, transfers of $1,186.91 to the account at Walmart, and additional transfers of $1,560.

(e) In 2007, there were ATM withdrawals of $28,750, and $881 transferred to the account at Walmart.

(f) In 2008, there were ATM withdrawals of $23,036, $661.95 transferred to the account at Walmart, and other transfers of $4,600.00.⁷⁴

320When Mr. Asrula returned and resumed living with Ms. Hardayal in 2010, there were 2 mortgage payments that appear on the statements for the account: one on Sept. 13, for $1,040.00 and one on Sept. 16, for $760.00. These statements were entered as an exhibit.⁷⁵

321Based on the foregoing, I find that Ms. Hardayal did access Mr. Asrula’s account and that funds from that account were transferred to pay the mortgage on 74 Cheviot Crescent until it was sold, and that later, until Mr. Asrula left 5 Nelly Court in 2011, funds were withdrawn by the ATM for the same purpose. Additionally, as will be seen below in my discussion of the parties’ $100,000.00 joint Line of Credit, Ms. Hardayal employed funds from that account to pay the carrying costs on 5 Nelly Court.

(d) Conclusion

322I find that Ms. Hardayal likely assured Mr. Asrula that the only reason she had instructed Mr. Cohen to register only 1% of the title in him was to protect the property from the claims of the Canada Revenue Agency and that she would transfer a further 49% to him when the audit was completed. As to whether that was her actual intention I cannot say. It was certainly Mr. Asrula’s intention and I find that he likely believed that it was hers also.

323In any event, Ms. Hardayal was enriched by registering 99% of the title to 5 Nelly Court in her name. Mr. Asrula suffered a corresponding deprivation by the registering of only 1% of the title in his name. There is no juridical reason for this allocation of the title, having regard to the fact that Mr. Asrula contributed at least $10,000.00 to the deposits of $25,000.00, the full $172,000 of the equity from the sale of 74 Cheviot Crescent, and liability for the $180,000.00 mortgage on 5 Nelly Court.

324I find that, owing to the increase in the value of the property, monetary damages cannot be determined based on the evidence before me and would not be an adequate remedy. I will therefore order that 50% of the property be vested in Mr. Asrula, and that the property should be sold and the net proceeds divided equally between the parties, subject to the other terms of this judgment.

n) What are the parties’ obligations to repay their $100,000.00 joint line of credit?

Ms. Hardayal’s use of the new joint line of credit after September 29, 2004

325Mr. Asrula was able to obtain and filed the “Deposit History” for the new joint line of credit, which sets out both the amounts debited and credited to the account from September 2004 onward. He did not have Ms. Hardayal’s bank records for that period, which the court would have required in order to determine the extent to which and manner in which Ms. Hardayal employed the Line of Credit to invest on her own account and pay her own personal expenses.

326As noted above, the parties’ TD Canada Trust joint Line of Credit, Account #3271376 CRL at Branch 2124, opened on September 29, 2004, with a nil balance and the entry, “Line of Credit Open” after the previous Line of Credit was repaid from the proceeds of sale of 74 Cheviot Crescent.

327The balance of the new Line of Credit increased to $180,000.00 on February 16, 2006 and was then paid back down to a nil balance, apparently from a re-financing of 5 Nelly Court, and was apparently restricted to $100,000.00 at that time. The issue in this proceeding is who is responsible for the $100,000.00 balance that accrued in that account after February 16, 2006.

Mr. Asrula’s use of the new joint line of credit after March 1, 2006

328Ms. Hardayal initially alleged that Mr. Asrula had used the parties’ new home equity joint Line of Credit at least twice to pay his own bills. Mr. Asrula challenged that assertion and asked her to produce the records substantiating it. She stated that she had been unable to find the statements that showed this.

329The Court invited Ms. Hardayal to review the statements for the TD Canada Trust Line of Credit account #3271376 CRL, marked as exhibits at the trial,⁷⁶ and identify the two transactions in which she alleges that Mr. Asrula used the account to pay his own bills. She reviewed the statements and stated that and was unable to do identify them.

330Later, Ms. Hardayal tendered to Mr. Asrula a single page from a “Deposit Account History” for Mr. Asrula’s account #311946 MBA at branch number 2117, which showed a payment of $2,509.00 on January 4, 2006, corresponding to an entry of the same amount, on the same date, on the Deposit Account History for the parties’ new joint line of credit #3271376 CRL at Branch 2124.⁷⁷This transaction took place before the re-financing in mid-February 2006 that returned the Line of Credit balance to nil. It did not take place during the period when the current $100,000 balance accrued, the responsibility for which was the issue in the trial.

331The entry in Mr. Asrula’s account, which appears to be a chequing account, is a debit, and the entry on the parties’ joint line of credit account is a credit. Thus, the two statements show that Mr. Asrula transferred funds from his own chequing account #3111946 to the parties’ joint line of credit #3271376, apparently because the balance on the latter account had exceeded the $180,000.00 limit that existed for that account at the time, to $182,447.08, and needed to be reduced.

332Ms. Hardayal additionally confronted Mr. Asrula with a payment of $3,611.84 for VISA that is shown on the Deposit Account History for the Line of Credit account no. 3271376 CRL on October 1, 2007,⁷⁸which corresponds to the amount and date of a payment shown on his TD Bank Line of Credit statement of September 29, 2007.⁷⁹ She suggested that this entry demonstrated that Mr. Asrula was using the joint Line of Credit to pay his own bills.

333Mr. Asrula appeared to be genuinely surprised at this transaction. He replied that he was not aware that funds had come from the Line of Credit in this transaction. He stated that when he used a line of credit to pay his bills, he normally used one of his own two personal lines of credit. He allowed that the transaction in question may have been an error and stated that if it was, he was prepared to correct it.

334I observed at the time that this appeared to be an isolated transaction and that I found Mr. Asrula’s answer to be a reasonable explanation. On later reviewing the page of the Deposit Account History that contained the debit of $3,611.84, I noticed that it preceded by only two days a transfer of a much larger amount, $70,392.52, which does not appear to correspond to any of the bank records tendered. That transfer increased the balance of the Line of Credit to $100,000.00 where it remained, with only minor variations, until December 28, 2007, when the account was credited with an equally mysterious amount of $72,000.00.

335Ms. Hardayal appears to have been, with the one relatively minor exception on October 1, 2007, the only person who used the Line of Credit account. The parties were residing under the same roof at the time, and Ms. Hardayal appears to have had access to Mr. Asrula’s mail, including his VISA statements. The statement that Ms. Hardayal relied on and tendered at the trial was an original statement, not a copy produced by Mr. Asrula, and there was no explanation offered as to how it came into Mr. Hardayal’s possession.⁸⁰ I wondered that that transfer may have been made by Ms. Hardayal herself, to create confusion as to which of the parties made the much larger transfer two days later.

336This is somewhat speculative, and I do not rely on it as a basis for my finding as to the parties’ respective liability for the amount owing on the Line of Credit. However, I find it a plausible explanation. In any event, Ms. Hardayal acknowledged that the VISA payment of $3,611.84 was the only transaction she was able to find in which an expense of Mr. Asrula’s was paid from the joint Line of Credit.

337She stated that it was also used to pay the legal aid fees of $5,547 that Mr. Asrula paid for his lawyer. This latter assertion was disproved by the fact that Legal Aid Ontario registered a lien against 74 Cheviot Crescent, which was discharged from the proceeds of sale of that property, as noted above, as appears from Mr. Cohen’s records.

338I find that, apart from one instance, which I am satisfied was not an intentional use of the joint Line of Credit by Mr. Asrula, I am satisfied that Mr. Asrula did not use the joint Line of Credit after the sale of 74 Cheviot Crescent, and that it was Ms. Hardayal who incurred the $100,000.00 debt that accrued after March 1, 2006, which is the issue in this trial. Ms. Hardayal will be fully responsible for repaying that balance from her share of the net proceeds of sale of 5 Nelly Court.

339Ms. Hardayal alleged that Mr. Asrula employed the joint Line of Credit to amass investments. Mr. Asrula tendered a handwritten list of his investments dated January 31, 2006.⁸¹ He stated, and I accept, that it sets out roughly where he was, financially, at that time. His total assets were approximately $341,000.00, including his portfolio from Dundee Securities, in the amount of $73,000. His holdings of MacKenzie were $14,000. TD $71,000. AIG and London Life. He explained that his investments at Dundee Securities were leveraged by loans.

340Mr. Asrula identified a further assessment from the TD Bank dated February 3, 2007, listing his assets and liabilities.⁸² His total assets, after liabilities, were $136,608.42. He stated that this was an accurate statement of his assets at that time, and the securities listed were leveraged investments, purchased with money that he had borrowed from TD Canada Trust.

341As noted above, I find that Ms. Hardayal, after seeing the parties’ joint line of credit, which had been drawn up to $172,000, secured by 74 Cheviot Crescent, in order to enable them to close the purchase of 5 Nelly Court on April 8, 2004, before the sale of 74 Cheviot Crescent closed on August 23, 2004, repaid from the proceeds of sale of 74 Cheviot Crescent, opened a new joint line of credit and immediately drew $180,000.00 from it.

342For the reasons that follow, I find that thereafter, Ms. Hardayal employed the new joint line of credit as her own personal bank account, drawing on it for purposes that she did not fully disclose. She also used Mr. Asrula’s account #3113264 at Canada Trust, into which his salary was deposited, in a similar fashion.

Ms. Hardayal’s use of the Line of Credit after March 1, 2006

343The Line of Credit still had a nil balance on March 1, 2006. Mr. Asrula showed Ms. Hardayal a list of her withdrawals thereafter, totalling $100,000.00. She acknowledged making the withdrawals on the list, which was entered as an exhibit.⁸³

344Withdrawals of $5,000.00 and $3,000 were made on November 15 and 17, 2006, bringing the balance to $8,000.00. On February 15, 2007, after minor transactions, a debit memo in the amount of $2,003.81 and a cash withdrawal of $1,800.00 increased the balance to $12,363.95 and a further transfer of $1,000.00 on March 9, 2007, increased it to $13,452.46. Then from June 7 to 15, 2007, there were a series of debits in rapid succession, as follows:

June 7, 2007: Visa Payment: $3,000.00
June 7, 2007: Transfer: $1,000.00
June 7, 2007: Cash Withdrawal: $2,000.00
June 15, 2007: Cash Withdrawal: $2,500.00
June 15, 2007: Transfer: $1,000.00

345These transactions brought the balance to $23,007.09. After two further debits on August 7 and 21, 2007, a VISA payment of $1,526.20 and a Cash Withdrawal of $1,100.00, which, with minor transactions, brought the balance to $25,550.07, a major transfer of $70,392.52 on October 3, 2007 increased the balance to the credit limit of $100,000.00.

346While $72,000.00 was restored to the account two months later, on December 28, 2007, which reduced the balance back to $28,000.00, three further transfers over a five month period increased the balance back to $100,000.00, where it remained, with small variations, ever since. Those transfers were as follows:

July 14, 2008: Transfer: $30,000.00
November 3, 2008: Transfer: $37,888.82
December 2, 2008: Transfer: $17,000.00

347Ms. Hardayal acknowledged that on July 14, 2008, she transferred $30,000 from the Home Equity Line of Credit to her account. She states that she “put it back in” but I see no evidence of that. Her withdrawal of that amount, and other minor transactions, increased the balance of the Line of Credit that day from $27,333.26 to $61,837.13. It remained at that level until November 3, 2008.

348The last two of the foregoing transfers occurred contemporaneously with the conflict between the parties that culminated in Ms. Hardayal summoning the police and having Mr. Asrula removed from 5 Nelly Court on November 30, 2008. Ms. Hardayal acknowledged at trial that on December 2, 2008, it was she who transferred another $17,000 from the Line of Credit. There were no transfers back to the account.

349Ms. Hardayal stated that she repaid these transfers but she does not remember when she did so or how long after she withdrew the amounts she repaid them. In fact, while there are a number of withdrawals and immediate deposits of the same amount, these are followed by transfers of the large amounts that are not restored.

350Ms. Hardayal stated that she used some of the funds from the Line of Credit to help the children out because she did not have a car when Mr. Asrula left in 2008 and took the “other car”. She stated that in 2005 or 2006, she bought a Nissan Altima car, which she sometimes loaned to Mr. Asrula. The receipt for $20,600 for the car was entered. Ms. Hardayal stated that the money for the car purchase came from the Line of Credit, but she was unable to identify any withdrawal or transfer from the Line of Credit that corresponded to it.

351Later, under cross-examination by Mr. Asrula, Ms. Hardayal acknowledged that she owned two cars when Mr. Asrula left 5 Nelly Court in January 2011. Ms. Hardayal acknowledged that the parties had two cars when Mr. Asrula left 5 Nelly Court. When Mr. Asrula suggested to her that both vehicles were registered in her name, she would not answer directly. She acknowledged that at one time, both vehicles were in her name, as the insurer would not accept insurance premiums from someone who was not the registered owner. However, she stated that at some point, she transferred ownership of one of the cars to Anthony. She says that she does not remember whether that was before or after Mr. Asrula left.

352Mr. Asrula suggested to Ms. Hardayal that he asked for her permission to use one of the cars and that she refused. She denied that Mr. Asrula ever asked to borrow one of the cars. She stated that he always had one of the vehicles to drive to work. It was unclear whether she was referring to the period before or after Mr. Asrula left 5 Nelly Court.

353Mr. Asrula suggested to Ms. Hardayal that she left one of the cars in the driveway with the keys in it, but removed the insurance from that vehicle, with the result that he was unable either to pay the insurance or to drive it legally, as it was not insured. Ms. Hardayal replied that Mr. Asrula drove one of the cars without insurance, and that otherwise, he would not have been able to get the parking tickets he did. She stated that the reason there was no insurance on the car was that he had failed to pay parking tickets issued while the car was in his possession.

354It is difficult to reconcile Ms. Hardayal’s assertion that Mr. Asrula refused to pay the car insurance with the undisputed fact that he was not the registered owner and her testimony that the insurer would not accept premiums from anyone other than an owner. It is also difficult to reconcile her reliance on the fact that Mr. Asrula was driving without insurance because he was receiving parking tickets with her assertion that he lost the car insurance by failing to pay the parking tickets.

355Ms. Hardayal stated that Mr. Asrula called her and said, “You can come pick up the car at Westwood Mall; the keys are under the mat and the car is open.” She stated that she went and got the car, which was “full of garbage.” She did not provide sufficient detail for the Court to know whether she meant “litter” or “garbage” in the sense that would render the car unusable. In any event, it is clear from both parties’ testimony that when Mr. Asrula was unable to drive the car legally, he told her that he was going to buy his own car. Ms. Hardayal testified that when Anthony got his licence, she paid for new tires and new brakes and signed the car over to him. She claims she does not know whether that was before or after Mr. Asrula left 5 Nelly Court. I find that assertion highly improbable and find that Ms. Hardayal signed the car over to Anthony after Mr. Asrula left.

356I find that after Mr. Asrula left 5 Nelly Court, both he and Ms. Hardayal bought cars for themselves. However, Ms. Hardayal acknowledges that she withdrew funds from the joint Line of Credit to make her purchase. Mr. Asrula appears to have employed his own resources. I do not find that Ms. Hardayal’s use of the funds for her purchase was for a family purpose.

357While Ms. Hardayal suggested that she used some of the money withdrawn from the joint Line of Credit to pay orthodontist’s charges for Merissa and Alyssa, Mr. Asrula denied this and Ms. Hardayal did not provide any evidence substantiating the use of the funds for that purpose. There is also no evidence that Ms. Hardayal used any substantial amount from the Line of Credit to pay Neshan’s university fees. Ms. Hardayal made no attempt to reconcile the records of Neshan’s education expenses with the transfers and withdrawals from the Line of Credit.

358Ms. Hardayal initially maintained that she withdrew only about $20,000 from the parties’ joint TD Bank Line of Credit. She states that both the parties were working. Mr. Asrula left to his mother’s home in Toronto with the car and she had no means of taking the children to their activities. She says that he got parking tickets and she used the Line of Credit to pay them. She tendered parking tickets, all arising after the parties’ separation, and all paid from the Line of Credit, as an exhibit.⁸⁴

359When it developed that the withdrawals from the joint Line of Credit were significantly greater than $20,000.00, and that Mr. Asrula had not, in fact, withdrawn any substantial amounts from the account, Ms. Hardayal acknowledged that she had made other withdrawals, which she then alleged were for family purposes. She testified that they used the funds to attend two family vacations, one at Disney World and one in Cuba, although Mr. Asrula says the latter cost only $1,500.00.

360Ms. Hardayal additionally stated that the parties used the joint Line of Credit to purchase 5 bedroom sets for herself, for Mr. Asrula, and for the children, as Mr. Asrula had suggested throwing out the others. She stated that the Line of Credit was also used for a heater, and for Neshan’s legal fees, when he was in trouble with the law, as Mr. Asrula suggested that they retain a lawyer for him.

361While Ms. Hardayal may have used some of the funds from the joint Line of Credit in other ways that benefitted the children, or even Mr. Asrula, I find that those instances were relatively modest exceptions to the pattern that emerges, of Ms. Hardayal using the joint Line of Credit as her own personal bank account, from which she drew significant sums not directly paid for family purposes, and disposed of in a manner that she has not disclosed.

362I am not persuaded that a substantial portion of the funds that Ms. Hardayal withdrew or transferred from the joint Line of Credit were for the benefit of the family, save and except that she used the funds she transferred to her own account to pay the carrying costs for the parties’ jointly owned property at 5 Nelly Court. For example, on November 3, 2008, there is a credit to Ms. Hardayal’s bank account #3123324 MBA in the amount of $37,888.82, mirroring a transfer out of the joint Line of Credit in the same amount on the same date. On November 7, November 14, November 21, and November 28, 2008, Ms. Hardayal paid $350.00 from that account to pay the TD mortgage on 5 Nelly Court.

363I am satisfied, based on those payments, that Ms. Hardayal was using a portion of the funds she withdrew from the joint Line of Credit to pay the carrying costs of 5 Nelly Court. It would not be practicable for the Court to compare all of the transfers out of the joint Line of Credit and into Ms. Hardayal’s account with the payments of mortgage, property tax, and home insurance that Ms. Hardayal made from her account, and having regard to the fact that I am equalizing the parties’ interests in 5 Nelly Court, I find that each of the parties should be responsible for half the amount outstanding on the joint Line of Credit.

o) What Child Support and contribution to s. 7 expenses should be paid?

364As the evidence of when the children, or some of them ceased to be children of the marriage comprised, in large part, the expenses incurred for their education, I will deal with the issues of child support and s. 7 expenses together.

Child support

Legislative framework

365The Family Law Act contains the following provisions regarding a parent's obligation to support a child of the marriage:

31.(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.⁸⁵

366In determining what amount of child support is appropriate in the present case, I have considered s. 3 of the Guidelines, which states:

3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

(b) the amount, if any, determined under section 7.⁸⁶

367Child support may be ordered retroactively to cover at least the period of time from when the applicant notified the payor spouse of her intention to claim such support.

Jurisprudence

368In D.B.S. v. S.R.G., (2006), the Supreme Court of Canada comprehensively addressed how the court should determine claims for “retroactive child support.”⁸⁷ Bastarache J. began his majority reasons by pointing out that the word “retroactive” in relation to child support is a misnomer, because such support is only retroactive in the sense that it had not been ordered to be paid during the relevant period, even though it was owed in accordance with the Guidelines. Before discussing the factors a court was to consider prior to ordering retroactive child support, he stressed that such awards should not be seen as exceptional. He stated:

It cannot only be exceptional that children are returned the support they were rightly due. Retroactive awards may result in unpredictability [for the payor parent], but this unpredictability is often justified by the fact that the payor parent chose to bring that unpredictability upon him/herself. A retroactive award can always be avoided by appropriate action at the time the obligation to pay the increased amounts of support first arose.⁸⁸ [Emphasis added.]

369Bastarache J. identified four factors that the court should consider when determining whether to order a retroactive award:

(1) unreasonable delay by the recipient parent in applying for the support;

(2) conduct of the payor spouse;

(3) circumstances of the child; and

(4) hardship occasioned by the retroactive award. [Emphasis added.]

370Justice Bastarache indicated that none of these factors is decisive, and that “a court should strive for a holistic view of the matter and decide each case based on its particular factual matrix”.⁸⁹

371Justice Bastarache stated the following regarding the hardship that retroactive support orders may cause:

I agree with Paperny, J.A., who stated in D.B.S. that courts should attempt to craft the retroactive award in a way that minimized hardship (paras. 104 and 106). Statutory regimes may provide judges with the option of ordering the retroactive award as a lump sum, a series of periodic payments, or a combination of the two: see, e.g., s. 11 of the Guidelines. But I also recognize that it will not always be possible to avoid hardship. While hardship for the payor parent is much less of a concern where it is the product of his/her own blameworthy conduct, it remains a strong one where this is not the case.⁹⁰ [Emphasis added]

372Justice Bastarache concluded:

The proper approach [for determining the date of retroactivity] can therefore be summarized in the following way: payor parents will have their interest in certainty protected only up to the point when that interest becomes unreasonable. In the majority of circumstances, that interest will be reasonable up to the point when the recipient parent broaches the subject, up to three years in the past. However, in order to avoid having the presumptive date of retroactivity set prior to the date of effective notice, the payor parent must act responsibly: (s)he must disclose the material change in circumstances to the recipient parent. Where the payor parent does not do so, and thus engages in blameworthy behaviour, I see no reason to continue to protect his/her interest in certainty beyond the date when circumstances changed materially. A payor parent should not be permitted to profit from his/her wrongdoing.⁹¹ [Emphasis added]

373The CED notes that where spouses continue to live under the same roof, an application for interim child support and custody may be denied.⁹² The cases cited are from 1971 to 1988, but I find no reason to conclude that the principles do not continue to apply under the Family Law Act, enacted in 1990.

374In Moore v. Fernandes, (2001), Aston J. upheld this principle at para. 8, concluding that the Guidelines establish support for those living apart and presume that the spouse will maintain the child’s standard of living while sharing accommodation. He stated:

It is not necessary to determine the husband’s income or to identify a specific amount for child support because the parties continue to reside under the same roof. The Child Support Guidelines, S.O.R./97-175 and, in particular, the tables, presuppose the person required to pay child support is residing separately from the children. The Guidelines assume that a parent sharing his or her accommodation with the children on a day-to-day basis meets his or her child support responsibility by sharing a certain standard of living with the children in the home, according to that person’s ability to provide. I assume the husband will continue to provide for the children as he has in the past because he is claiming custody and it will reflect badly on him if he does not do so. Furthermore, the amount now ordered is only a term of an adjournment granted to allow the husband to meet his disclosure obligations.⁹³

375In S. (N.T.) v. B. (K.J.), (2007), Ehrcke J. of the B.C. Supreme Court also denied a woman’s request for interim child support on the basis that the separated husband was paying all expenses in the home they continued to live in.⁹⁴ The woman requested an interim order to allow her to move out, but Ehrcke J. rejected that claim, saying she had enough income on her own.

376This is not a case, such as Karajian v. Karajian, (2012), where the evidence supports a conclusion that Mr. Asrula failed to pay, directly or indirectly, as much toward household expenses as he would have been required to pay in child support had the parties lived in separate households. In Karajian, Eberhard J. said, of a father who had been living under the same roof as his separated wife and their children: “All that can be said is that he did make many payments which chiefly served to maintain the premises but much less than was required to meet the daily needs of the wife and children.” Eberhard J. noted the difficult in calculating what the husband had paid, but estimated that if he had paid half the amount needed under spousal support and child support Guidelines, he’d have been paying double the spousal support amount. Eberhard J. does not give a detail calculation, but ordered retroactive spousal support at half the amount that would have been required for such support since the parties had separated.⁹⁵

377In Henderson-Jorgensen v. Henderson-Jorgensen, (2013), the Alberta Queen’s Bench denied an ex-wife’s request for retroactive child support while the parties were still cohabitating, finding that she had drawn on the joint accounts.⁹⁶

Special and Extraordinary Expenses

Legislative framework

378The contribution that parents are required to make to their children's education costs is governed by s. 7 of the Guidelines:

(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:

(a) Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

(b) That portion of the medical and dental insurance premiums attributable to the child;

(c) Health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

(d) Extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

(e) Expenses for post-secondary education; and

(f) Extraordinary expenses for extracurricular activities.

(1.1) For the purposes of paragraphs (1)(d) and (f), the term “extraordinary expenses” means

(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

(ii) the nature and number of the educational programs and extracurricular activities,

(iii) any special needs and talents of the child or children,

(iv) the overall cost of the programs and activities, and

(v) any other similar factor that the court considers relevant.

Sharing of expense

(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

Subsidies, tax deductions, etc.

(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.⁹⁷

[Emphasis added]

379The well-established test for whether an expense is extraordinary is whether it is "reasonable and necessary", having regard to the parents' individual and collective means. The court must assess whether the expense is objectively sensible for this particular separated family. It considers a number of factors, including the parties' historic spending patterns.

380Once having determined that an expense is extraordinary, having regard to the parties' joint income, and that it is reasonable and necessary, having regard to the means and circumstances of the parents and child, the court must, pursuant to s. 7, apportion responsibility for the expense in proportion to the parties' incomes.

Jurisprudence

381In Titova v. Titov, in 2012, the Court of Appeal for Ontario set out the procedure courts must apply when determining whether to award special and extraordinary expenses pursuant to s. 7 of the Federal Child Support Guidelines, as follows:⁹⁸

Calculate each party’s income for child support purposes
Determine whether the claimed expenses fall within one of the enumerated categories of s. 7
Determine whether the claimed expenses are necessary “in relation to the child’s best interests”
Determine whether the claimed expenses are reasonable “in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation”
If the expenses fall under s. 7(1)(d) or (f) of the Guidelines, the trial judge determines whether the expenses are “extraordinary”.
Consider what amount, if any, the child should reasonably contribute to the payment of these expenses
Apply any tax deductions or credits.⁹⁹

[Emphasis added.]

382Having completed this exercise, the court must then determine how the balance of the expenses should be apportioned between the parties.¹⁰⁰

Factors Relevant to “Reasonableness”

383In Terry v. Moyo, in 2013, Justice O`Connell of the Ontario Court of Justice adopted six factors relevant to determining the reasonableness of a s.7 expense, as enunciated by the Manitoba Court of Appeal in 2002. They include:

The combined income of the parties;
The fact that two households must be maintained;
The extent of the expense in relation to the parties' combined level of income;
The debt position of the parties;
Any prospects for a decline or increase in the parties' means in the near future; and
Whether the non-custodial parent was consulted regarding the expenditure prior to the expense being incurred.¹⁰¹

384The test set out in section 7(1.1) takes account of the spouse’s income and the amount of child support to be received. In MacNeil v. MacNeil, in 2013, Gauthier J. succinctly sets out the jurisprudence interpreting “extraordinary”:

The real issue is whether the expenses are “extraordinary.”

The question of how to determine whether expenses are “extraordinary” was specifically addressed at paragraph 28 of Titova, based on a British Columbia Court of Appeal decision from 1998:

It also does not appear that the trial judge turned her mind to the question of whether the expense for items such as school books and school registration qualified as “extraordinary”. As set out in McLaughlin v. McLaughlin (1998), 1998 CanLII 5558 (BC CA), 167 D.L.R. (4th) 39 (B.C.C.A.) at para. 64, the use of the word “extraordinary” in s. 7 implies that ordinary expenses are intended to be covered by the basic table amounts.

This interpretation of “extraordinary” is consistent with the Ontario Court of Appeal decision in Ostapchuk v. Ostapchuk, 2003 CanLII 57399 (ON CA), [2003] O.J. No. 1733, 64 O.R. (3d) 496, where s. 7 expenses were described as “special or extraordinary expenses that are determined to be additional costs of raising a child that are not incorporated in the table amounts.” (para 13).

[Emphasis added]

“Extraordinary” expenses were described as “unusual”, or “disproportionate” by the Manitoba Court of Appeal in Andries v. Andries, 1998 CanLII 14093 (MB CA), [1998] M.J. No. 196, 159 D.L.R. (4th) 665:

An expense for an extra-curricular activity is extraordinary only where it is disproportionate to the usual costs associated with that particular activity. The income of the parties is irrelevant in determining whether an expense is extraordinary. It is only if the expense is otherwise found to be extraordinary, in the sense of being unusual or exceptional according to an objective standard, that one looks to the incomes of the parties to determine whether the expense is reasonable and in accord with the spending patterns of the parties prior to the separation.¹⁰²

[Emphasis added.]

385In Bordin v. Bordin, (2015), Horkins J. stated the considerations as follows:

An extraordinary expense is one that given the combined income of the parties would not be incurred for the children as a matter of course (see Celotti v Celotti, [2007] O.J. No. 2538 (S.C.); Park v Thompson, 2005 CanLII 14132 (ON CA), [2005] O.J. No. 1695 (C.A.)).¹⁰³

386In Boisvert v. Boisvert, (2007), Whitten J. noted at para. 48:

Section 7(1.1)(a) appears to exclude expenses that would reasonably be expected to be covered by a combination of the custodial parent’s income and the Guideline amount received by that parent. Section 7(1.1)(b)(i) provides that if s. 7(1.1)(a) is not applicable, the court could still exclude such an expense if that expense was disproportionate and not economically justifiable given the income of and support received by the custodial parent. This section includes as factors for consideration the nature and number of extra-curricular activities, their cost, and any other factors considered relevant by the court. The overall thrust of section 7(1.1)(b) appears to be to exclude activities which would be beyond the lifestyle and economic means of the children and their parents. That cannot be said about a claim for extra-curricular activities such as Beavers, gymnastics, sport ball and day camp. These are all extra-curricular activities which are age appropriate and are modest means of developing the socialization and athleticism of young children.[104] [Emphasis added.]

Applying the legal principles to the facts of the present case

(i) Are Nashan, Anthony, Merissa, and Alyssa “children of the marriage” within the meaning of the Family Law Act?

387Ms. Hardayal and Mr. Asrula were together for 20 years. At the time of the trial, three of the children were adults, Neshan, who was 30, was successfully self-employed as a barber and was about to be married. Anthony, who was 26, was employed for Parks and Recreation, Merissa, who was 22, was to graduate from College in April 2018, and was employed but still living with Ms. Hardayal, and Alyssa, who had just turned 18, was still living with Ms. Hardayal, and was about to begin a nursing program at College in the Fall of 2017.

388The parties agreed that the three older children were now independent and that only Alyssa was still dependent and entitled to child support. The parties differed as to when the three eldest children became independent. I therefore turn to the evidence relevant to that issue.

389Ms. Hardayal testified that when the parties were living together in 1993 or 94, she doesn’t remember whether she cancelled child support. She wants to claim child support from the time when she cancelled child support, but she is not claiming child support for the period when the parties were living under the same roof.

390She says the parties had had disputes over child support “forever”. She did not remember whether Mr. Asrula was paying child support when they lived together. She claims support from the date when Snowie J.’s Order for temporary child support for all 4 children was superseded by Tzimas J.’s temporary and without prejudice Order dated February 12, 2013, for support for the four children, but wants to claim such support from that point onward.

391Because Tzimas J., in her Order, differentiated between Neshan and Anthony, on one hand, and Merissa and Alyssa, on the other, and it is necessary now to reconcile the temporary Orders with the Order being made now, I will also differentiate between the two older children and the two younger ones in these reasons.

(ii) Neshan and Anthony Asrula

Neshan Asrula

392Neshan Asrula is now 32 years old. He was born November 10, 1986. At the time of the trial, he was engaged, and had a full-time job.

393Ms. Hardayal does not claim ongoing child support for Nesham, but asks that Mr. Asrula be ordered to make a retroactive contribution to Nashan’s past s. 7 expenses.

394Ms. Hardayal testified that Neshan lived with her while he attended Sir Wilfred Laurier University (“Laurier”) for 4 years. She says that she had to pay his tuition, rent, and the cost of his books and supplies. After 4 years, Neshan dropped out of Laurier. He said, “I can’t do this anymore.” He moved to Brampton and attended Humber College.

395Ms. Hardayal tendered the following records in support of the expenses she says she incurred:

a) Invoice from Laurier to Neshan dated Sept. 12, 2005, (due September 29) for a full-time program in Honours Business Administration from September to December 2005.¹⁰⁵ The Invoice shows a balance of $831.20 due, and is stamped “Paid” on October 7, 2005. She later tendered MasterCard statements in her name, which show a payment for Neshan for Wilfred Laurier Oct. 2, 2005 in the amount of $1,000.¹⁰⁶

b) It shows a balance of $795.87 from the last statement, a payment of $593.46 by Non-Certified Cheque in September, and several new charges, the largest being one for $684.45 for undergraduate tuition.

c) Invoice from Laurier to Neshan dated March 28, 2006, (due April 20, 2006), for a part-time program in Honours Business Administration from May to September 2006.¹⁰⁷ The Invoice shows a balance of $1,424.66 from the last statement, an electronic payment of $1,600 in January 2006, and several new charges, the largest being $1,876.40 for undergraduate tuition for the Spring term, and a new balance of $1,849.20. There is no evidence of payment.

d) Invoice from Laurier to Neshan dated June 1, 2006 (due June 16, 2006), for a part-time General BA program in the Faculty of Arts with No Major, from May to September 2006.¹⁰⁸ The invoice shows a balance of $1,922.32 from the last statement, an electronic payment of that amount, and new charges for a Distance Education textbook fee and Distance Education administrative fee, and a new balance of $88.00.

e) Invoice from Laurier to Neshan dated July 18, 2006 (due August 25, 2006) without attribution to a particular program or term.¹⁰⁹ The invoice shows a balance of $89.10 from the last statement, a Distance Education Administrative fee of $18.00, and a new balance of $18.00.

f) Invoice from Laurier to Neshan dated Nov. 20, 2006 (due December 15, 2006), for Full-Time General BA program in the Faculty of Arts with No Major from January to April 2007.¹¹⁰ The Invoice shows a balance of $2,762 from the last statement, a payment of that amount, and new charges, including $2,175 for undergraduate tuition, and a new balance of $2,511.00. Ms. Hardayal later tendered a MasterCard statement showing a payment of a balance of $16.04 for a business course for Neshan at Laurier dated Sept 21, 2007.¹¹¹

396Based on the foregoing evidence, I find that Neshan attended Laurier with some interruptions for a year and a half, from September 2005 to April 2007. The records disclose that he attended a full-time Honours Business Administration program from September to December 2005, followed by a part-time Honours Business Administration program from May to September 2006. He appears to have transferred during that semester (May to September 2006) to a part-time General BA program in the Faculty of Arts with No Major, and continued that program on a full-time basis from January to April 2007. It is unclear what period of attendance Ms. Hardayal’s MasterCard charge dated Sept 21, 2007 for a $16.04 balance for a business course related to but on a balance of probability, I find that Neshan transferred out of the business course during the May to September 2006 semester, and that this was a residue that was not paid until the following year, when Neshan dropped out of his Arts program, and perhaps in order to secure his transcript for the purpose of his enrollment at Humber College.

397Ms. Hardayal stated that there was no interruption in Neshan’s studies between his attendance at Laurier and his attendance at Humber College. After leaving Laurier, Neshan attended an academic program at Humber College for 2 years. Ms. Hardayal initially stated that he received a diploma, certificate, or degree from Humber College. Later, she acknowledged that Neshan left Humber without receiving a degree, diploma, or certificate, as he said he wanted to open a barber shop.

398Ms. Hardayal stated that she had the bills for Neshan’s attendance at Humber College. However, she tendered only a MasterCard statement showing a payment of $282.15 to Humber College dated Jan. 9, 2008,¹¹² and an invoice from Humber College for $306.00 dated Sept. 9, 2009, the latter for tuition and mandatory fees for a 3 credit course in politics entitled, “War and Terrorism”.¹¹³

399I find that Neshan likely attended Humber College from September 2007 to sometime in September 2009.

Anthony Asrula

400Anthony is now 28 years old. He was born April 17, 1990, and graduated from high school in 2007, at the age of 17. Ms. Hardayal testified that he attended York University from September 2008 to at least April 2013. She says that he lived with her at 5 Nelly Court during the entire period of his studies at York.

401Ms. Hardayal acknowledged that Anthony is currently employed on a part-time basis. He was previously employed at Walmart, but Ms. Hardayal does not remember the dates. He now is employed part-time by the City of Brampton. She does not know that he is employed at a barber shop on weekends.

402Ms. Hardayal testified that Anthony has a current debt for his school expenses. She stated that Anthony told her that he had loans for his school expenses. She does not know the amount or whether he re-paid them. When asked by Mr. Asrula, she replied that she did not remember whether Anthony was going to cash in his stock to pay his school debt.

403Ms. Hardayal tendered the following evidence of the expenses she incurred in relation to Anthony’s post-secondary studies:

(vi) September 1, 2008, to June 2, 2009

404Ms. Hardayal produced a letter from Joanne Duklas, University Registrar, York University, dated August 26, 2009. The letter certifies that Anthony was enrolled and registered as a full-time student, in year 1 of a 4-year Honours Bachelor of Arts degree program in the Faculty of Arts at York University.¹¹⁴ The letter states that the Fall/Winter 2008-2009 academic session, which began on September 1, 2008, would normally have ended on April 30, 2009, but for a labour disruption, which resulted in a temporary suspension of academic activities. When the disruption ended, sessional dates were revised, and the Fall/Winter 2008-2009 academic session ended June 2, 2009.

405Ms. Hardayal produced a Student Account Statement dated February 18, 2009, from York University.¹¹⁵ The Statement indicates that the balance of Anthony’s account was then $5,129.39, after Anthony dropped a 3 credit-hour course on February 14, 2009, with the Code AS/LING 2450 (Linguistics and the Law), which could not be taken for credit with a similar course, AP/LING 2450, in the Faculty of Liberal Arts and Professional Studies).

406Ms. Hardayal testified that she gave the Statement to Mr. Asrula in 2009, but he failed to pay it, and Anthony ended up not attending.

(ii) September 1, 2009 to April 30, 2010

407Ms. Hardayal produced a letter dated October 13, 2009, from Nicole Joseph, a Student Accounts Service Representative in the Student Accounts Office of York University.¹¹⁶ The letter stated that Anthony had an overdue balance owing to the University at that time in the amount of $14,720.80. The Office required Anthony to settle his account by October 29, 2009, failing which the Office said that it would send his account to collection.

408Ms. Hardayal testified that she paid $1,700.00 to get Anthony back into school in 2009, and then paid a further $5,000.00. She stated that the documents were in the Trial Record. A review of both parties’ Trial Records failed to disclose evidence of those payments.

409Ms. Hardayal produced a letter dated January 5, 2010, from Nicole Joseph, a Collections Assistant in the Student Accounts Office of York University.¹¹⁷ The letter, marked “Final Notice”, indicated that Anthony’s student account balance of $15,166.86 had been outstanding for some time and warned that if was not paid by January 22, 2010, the Accounts Office would send the account to an external collection service.

410Ms. Hardayal testified that she paid $5,800 to York University on May 10, 2010. She tendered a Student Account Statement dated April 18, 2010, from York University to Anthony.¹¹⁸ The Statement discloses a balance of $5,958.32 owing on March 18, 2010, and a payment of $5,800.00 at a Bank on April 19, 2010, and a late fee assessment of $1.58, leaving a new balance of $159.90 on April 20, 2010.

(iii) September 1, 2010 to April 30, 2011

411Ms. Hardayal produced a letter dated March 9, 2011, from the Ms. Duklas, then the Assistant Vice-President of Enrolment Management and University Registrar at York University.¹¹⁹ The letter certifies that Anthony was then enrolled and registered as a full-time student in the Faculty of Liberal Arts and Professional Studies for the Fall/Winter 2010-2011 academic session, which began September 1, 2010 and would end on April 30, 2011.

412Ms. Hardayal testified that Anthony obtained a letter from York University in the Fall of 2010, stating that he was enrolled in the faculty of Arts and Professional Studies. As result of receiving that letter, Ms. Hardayal called the University, and Anthony authorized the staff to speak to her. She asked if she could pay in installments of $1,700.00. They allowed Anthony to attend on that basis, but Ms. Hardayal says that she was unable to afford the payments.

iv) September 1, 2011, to April 30, 2012

413Ms. Hardayal testified that Anthony wanted to attend law school and was taking law courses at York University. Beginning in 2011, he attended three years of a 4 year program after completing high school. He obtained a student loan for the courses he completed. Ms. Hardayal stated that she has been unable to re-pay the balance of that loan, amounting to between $5,000.00 and $7,000.00.

v) September 1, 2012, to April 30, 2013

414Ms. Hardayal produced a Student Account Statement dated January 18, 2013.¹²⁰ The Statement discloses that a balance of $2,544.71, due December 19, 2012, had not been paid, and that after interest charges of $25.45, Anthony’s new balance was $2,570.00.^16

415Based on the foregoing evidence, I find that Anthony likely attended a full-time program in the Faculty of Arts and Professional Studies at York University for three years, from September 1, 2008, to April 30, 2011. When he completed the program, he had just turned 21. I find that he ceased to be a “Child of the Marriage” within the meaning of the Family Law Act at that time.

Child support for Neshan and Anthony

(iii) Neshan’s entitlement to child support

416Ms. Hardayal asserts that Mr. Asrula failed to pay the full amount of child support that he owes. She claims retroactive child support for all four children from when the parties separated on November 30, 2008, including the support ordered by Snowie J. on April 11, 2011, and the support ordered by Tzimas J. on September 11, 2012, for the two minor children, less a credit for the support that Mr. Asrula paid.

417As noted above, Snowie J.’s Order required Mr. Asrula to pay $1,485.00 per month beginning April 11, 2011, for the support of the parties’ four children. Justice Tzimas’ consent Order dated February 12, 2013, on a without prejudice basis, reduced the support to $906.00, retroactive to September 11, 2012, payable for the two minor children only.

418Ms. Hardayal claims ongoing child support for Neshan for the period when he was enrolled at Laurier University/Humber College.

419Based on the jurisprudence reviewed above, Mr. Asrula will not be required to pay child support for any of the children up to January 2011, when the parties were living under the same roof. In the present case, I find that Ms. Hardayal did draw from Mr. Asrula’s account and the parties’ joint Line of Credit to pay both household expenses and the children’s expenses. Indeed, she acknowledges having withdrawn funds from the joint Line of Credit and says that she used them, in part, to pay Neshan’s expenses at Laurier.

420While Snowie J. ordered Mr. Asrula to pay child support for all four children beginning April 11, 2011, Tzimas J., in her Order of February 12, 2013, reduced the support and made it payable for only the two minor children, retroactive to September 11, 2012. While this Order was “without prejudice” and does not bind me, I find that the reduction was based on the fact that by September 11, 2012, at least, neither Neshan nor Anthony was enrolled in post-secondary studies, or dependent on their parents, and they were therefore no longer “Children of the Marriage” within the meaning of the Family Law Act. I find that Neshan ceased to be dependent when he dropped out of his program at Humber College in September 2009. At that time, the parties were still residing under the same roof and Ms., Hardayal was not entitled to child support.

421Mr. Asrula claims a reimbursement or credit for the over-payment of temporary child support he made for Neshan pursuant to Snowie J.’s Order dated April 11, 2011. Because Tzimas J. eliminated child support for Neshan and Anthony retroactive to September 11, 2012, and the FRO made the appropriate adjustments for the period from that date onward, I must consider whether there was an over-payment of child support for Neshan from April 11, 2011, to September 11, 2012.

422I have found that Neshan ceased to be a Child of the Marriage in September 2009. He was 22 years old at that time and no longer enrolled in post-secondary studies. Ms. Hardayal was therefore no longer entitled to receive child support for him. The difference between the $1,485.00 that was garnished from Mr. Asrula’s salary from April 2011 to September 2012 and the child support he should have paid during that period was $579.00 ($1,485.00 and $906.00). Part of that difference is attributable to Anthony.

(ii) Anthony’s entitlement to child support

423Because the parties were living under the same roof until January 2011, and Anthony discontinued his studies on April 30, 2011, 19 days after Snowie J. made the first Order for temporary child support on April 11, 2011. By that time, he was 21 years old and no longer entitled to child support. Because the parties were living under the same roof until January 2011, and Ms. Hardayal did not apply for and obtain an Order for child support until April 11, and by the beginning of the next month, Anthony was 21 and no longer in school, I find that Anthony was never entitled to receive child support from Mr. Asrula.

424Mr. Asrula testified that in December 2011, Ms. Hardayal removed Neshan and Anthony from her home. They lived in a basement apartment at 34 Larkspur Road, Brampton. They contacted Mr. Asrula and he went to live with them, at their request. When he moved in, he gave up his rental unit. He calculates that he paid $9,843.00 during the 8 months from December 1, 2011, to July 31, 2013, when the parties’ two adult sons were living with him. The fact that Neshan and Anthony were living with Mr. Asrula during that period is a further reason why Ms. Hardayal should not be entitled to have received child support for them.

425Mr. Asrula claims a reimbursement or credit for the over-payment of temporary child support he made for Anthony pursuant to Snowie J.’s Order dated April 11, 2011. Because Tzimas J. eliminated child support for Neshan and Anthony retroactive to September 11, 2012, and the FRO made the appropriate adjustments for the period from that date onward, such over-payment of Anthony’s support as occurred was for the period from April 11, 2011, to September 11, 2012.

426I have found that Neshan ceased to be a Child of the Marriage in September 2009. He was 22 years old at that time and no longer enrolled in post-secondary studies. Anthony ceased to be a Child of the Marriage on April 30, 2011. He was 21 years old at that time and no longer enrolled in post-secondary studies. Ms. Hardayal was therefore no longer entitled to receive child support for either Neshan or Anthony.

427Based on the foregoing, the full difference of $579.00 per month between the $1,485.00 per month that was garnished from Mr. Asrula’s salary from April 2011 to September 2012 for support for all four children, and the $906.00 per month that he should have been required to pay during that period as support for the two younger children alone was an over-payment. For the 17 months, the overpayment amounted to $9,843.00.

Neshan’s and Anthony’s s. 7 expenses

(i) Neshan’s s. 7 expenses

428Mr. Asrula testified that when the parties lived under the same roof at 5 Nelly Court, until January 2011, Neshan’s expenses were paid from the parties’ combined income. He said that he contributed to the payment of Neshan’s fees at Laurier for the 1 ½ years he attended there. Neshan had finished school and was employed by 2011, when Mr. Asrula left the home.

429Ms. Asrula stated that Neshan currently has no debt for his school expenses that he is aware of. Ms. Hardayal acknowledged that Neshan worked to contribute to the payment of his own s. 7 expenses. She stated that she did not get in touch with him for the purpose of the trial.

430Mr. Asrula suggested to Ms. Hardayal that she must match the receipts she has tendered with the payments she says she made, to enable the Court to determine which expenses Neshan has paid himself, from his own earning and which, if any, Neshan himself paid. He pointed out that his lawyer sent letters dated November 20, 2013, and Sept. 26, 2014, requesting the records of the s. 7 expenses she had paid and that she did not provide the details of the payments and whether the children had contributed.

431When Ms. Dosanjh testified, she identified invoices from Wilfrid Laurier University for Neshan, as follows:

a. Sept. 12, 2005: $831.20

b. April 20, 2006: $1,849.20

c. Dec. 15, 2016: $2,511.00.

432These were the same invoices that Ms. Hardayal tendered.

433Ms. Hardayal testified that she could relate the invoices for Neshan’s expenses to the draws from her Line of Credit. However, when asked to do so, she was unable to. She acknowledged that she could not have supported four children on her income of $800 per month. The expenses she paid included the children’s food and their medical expenses, as Mr. Asrula had cancelled his medical/dental insurance coverage under his group benefits at work. She was forced to obtain an order from court requiring Mr. Asrula to maintain coverage for Neshan under his employment benefits.

434The invoices that Ms. Hardayal tendered were addressed to Neshan, not to her, and do not disclose who paid them. Ms. Hardayal, though asked many times to produce proof of her payments of the children’s expenses, tendered only MasterCard statements in her name for a payment to Wilfred Laurier dated Oct. 2, 2005 in the amount of $1,000,¹²¹ and a payment to Humber College $282.15 dated Jan. 9, 2008. I draw a negative inference from Ms. Hardayal’s failure to produce her bank statements used to pay the balances of her MasterCard and accept Mr. Asrula’s testimony that he contributed, or funded, the payments for Neshan until January 2011, when he left 5 Nelly Court. By that time, Neshan had completed his studies, was employed, and was no longer a “Child of the Marriage” within the meaning of the Family Law Act.

(ii) Anthony’s s. 7 expenses

435As noted above, the letter dated October 13, 2009, The Student Accounts Office of York University¹²² stating that Anthony had an overdue balance of $14,720.80 owing to the University at that time, after the beginning of Anthony’s second year of studies (2009 to 2010), and the letter dated January 5, 2010, from the Student Accounts Office of York University,¹²³indicating that it would be sending Anthony’s account balance of $15,166.86 to a collection service if it was not paid by January 22, 2010, and the Statement dated April 18, 2010,¹²⁴ indicating that all but $159.90 had been paid, support the conclusion that $29,727.76 was paid. There is no evidence as to whether the $14,720.80 that was owing in October 2010 was referable only to the 2009 to 2010 year, or included an unpaid balance from the previous year, but having regard to the fact that $15,166.66 was owing the following January (January 5, 2010), I find that it is most likely that the amounts paid were approximately $15,000.00 per year.

436All the letters and Statements were addressed to Anthony, not Ms. Hardayal, and there is no evidence before me as to who paid the amounts owing. Ms. Hardayal testified that she paid Anthony’s fees, or some of them, from the joint Line of Credit, but she also testified that she has been unable to re-pay the balance of loans that Anthony had obtained for his university expenses, amounting to between $5,000.00 and $7,000.00. I infer from this evidence that Anthony obtained Student Loans which he used to pay some of the university costs of $15,000.00 per year but that the loans were not sufficient to pay the entire amount.

437Mr. Asrula opposes Mr. Hardayal’s claim for a contribution from him to Anthony’s school costs on the basis that:

a) The money he paid, presumably for child support, was supposed to be used for Anthony’s school costs and was not.

b) Anthony dropped out.

c) Anthony is employed and can pay his costs himself.

d) The records Ms. Hardayal tendered as evidence were not previously disclosed to him and are inadmissible.

e) The records do not indicate whether it was Ms. Hardayal or Anthony himself who made the payments and, if it was Ms. Hardayal, whether Anthony reimbursed her.

438The fact that Anthony ultimately dropped out of his program does not disqualify him for the proportional contribution Ms. Asrula was obliged to make to the payment of his university expenses.¹²⁵ The money that Mr. Asrula paid for child support was not supposed to be spent on his education expenses. His tuition was a greater amount than Ms. Hardayal would be expected to pay from her child support alone. It was a special and extraordinary expense which, by its very nature, is separate from child support.

439The fact that Anthony is employed and able to contribute to his school expenses does not relieve Mr. Asrula or Ms. Hardayal of their obligation to contribute to the payment of such expenses for the period when he was financially dependent on his parents. While it is true that Ms. Hardayal bears the onus of establishing her entitlement to child support, including her entitlement to a contribution to Anthony’s s. 7 expenses, I am mindful of the fact that Neshan and Anthony left Ms. Hardayal’s household in December 2011 and since then, their relationship with Mr. Asrula has apparently been as close or closer than it has been with Ms. Hardayal. In these circumstances, it was incumbent on Mr. Asrula to establish what Anthony’s income was and his capacity to contribute to the payment of his own university expenses. In the absence of such evidence, I find that those expenses should be borne by Mr. Asrula and Ms. Hardayal in proportion to their respective incomes.

440Mr. Asrula argues that Ms. Hardayal failed to produce the evidence of Nesham’s and Anthony’s school expenses. I find that Ms. Dosanjh produced at least some of that evidence to Mr. Asrula’s then lawyers.

441Mr. Asrula notes that the school records Ms. Hardayal tendered do not indicate whether it was Ms. Hardayal or Anthony himself who made the payments and, if it was Ms. Hardayal, whether Anthony reimbursed her. Having regard to Ms. Hardayal’s lack of credibility, and her disposition of the proceeds of sale of 74 Cheviot Crescent and of the parties’ joint Line of Credit, Mr. Asrula’s concerns as to whether Ms. Hardayal paid Anthony school expenses is justified. In these circumstances, it is appropriate to order Mr. Asrula to pay his contribution to Anthony’s s. 7 expenses directly to Anthony.

Merissa Asrula

442Merissa is now 22 years old. She was born August 13, 1996. It is not in dispute that Merissa enrolled in post-secondary studies after completing High School. There was no interruption in her studies. After graduating from High School, she enrolled in a Criminal Justice program at Sir Wilfred Laurier University/Humber College.

443Ms. Hardayal testified that Merissa was attending school full time at the time of the trial. She stated that Merissa had never been employed, as she and Ms. Hardayal had not permitted any of the children to be employed until they were 18 and Merissa had been enrolled in full-time studies since she had completed High School. She stated that she was helping Merissa financially and had struggled to keep Merissa in school, as Mr. Asrula had never contributed to the payment of Merissa’s school fees.

444In his cross-examination of Ms. Hardayal, Mr. Asrula disputed her assertion that she and Mr. Asrula had not permitted any of their children to obtain employment until they were 18. He stated that they had expected the children to obtain employment from the age of 16 and to contribute to their own post-secondary education. There was no independent corroboration of the parties’ conflicting assertions as to whether, and to what extent, Merissa had been employed during her studies.

445Mr. Asrula initially took the position that Merissa had ceased to be a Child of the Marriage by the time of the trial. He claimed to know that Merissa was employed and stated that he was “pretty sure” that she had paid her education expenses herself. He stated that he had attended at what he believed to be Merissa’s work place, Metha and Baratz, a law firm in Brampton, and believed that Merissa had begun working there on January 1, 2015. On July 10, 2017, in cross-examination, Ms. Hardayal acknowledged that Merissa was by then working full time and paying all of her own school expenses.

446Ms. Hardayal stated that she was not aware of what Merissa’s school expenses were, or whether she received scholarships for her post-secondary education. She was also not aware of any debt that Merissa had incurred for her school expenses. She stated that the payments she had made appear on her MasterCard credit card statements.

447When cross-examining Ms. Hardayal, Mr. Asrula stated that he had requested the documents supporting the payments Ms. Hardayal claimed to have made for the children’s education, and that she had not produced them. With regard to Merissa’s schooling, he stated that he required a record of the expenses and Ms. Hardayal’s bank statements showing the payments she had made.

448The following day, Ms. Hardayal brought some records of Merissa’s school expenses. These consisted of Tuition and Enrollment Certificates (T2202A), issued by the Registrar’s Office of the University of Guelph to Merissa, certifying that she had paid tuition and fees for qualifying courses that were eligible to be claimed on her income tax return to the Canada Revenue Agency. The Certificates, which were entered as an exhibit,¹²⁶ disclosed the following payments:

2014: $3,414.00
2015: $6,924.83
2016: $7,345.24

449Mr. Asrula noted that the Certificates Ms. Hardayal produced did not disclose whether Merissa was in full-time or part-time attendance during any of the three years. He suggested that she needed only two credits each semester to remain enrolled. He stated that he knew she was working full-time and was attending summer classes also. There was no evidence as to Merissa’s course load or credits during each of the years of her program.

450When Mr. Asrula testified, he stated that he had attended at the University of Guelph/Humber College, to obtain information about Merissa’s enrollment. He spoke with a Laura Joseph in the Registrar’s Office, and gave her Merissa’s student number. However, Ms. Joseph was unable to give him any information, citing privacy concerns and stating that the school required a Court Order authorizing it to release the information.

451With a disclosure order made at the trial, Mr. Asrula was able to obtain from the University of Guelph/Humber College a Transcript of Merissa’s Academic Record,¹²⁷ and the University’s student financial record for Merissa for the four years she was in attendance there.¹²⁸ These records are entered as exhibits.

452Based on the records he obtained from the University, Mr. Asrula acknowledged that Merissa was still a Child of the Marriage and dependent on the parties for financial support. Merissa’s education expenses had been paid until September 2017, which was when the last payment was due. When the trial ended on August 2, 2017, Merissa was entering her final semester. She was to graduate in April 2018.

453Ms. Hardayal asserted that after graduating from her Criminal Justice Program, Merissa would enter a Master’s program. There was no independent confirmation of this through evidence given at the trial.

454I find, based on Merissa’s transcript and the amounts paid for her tuition, and the fact that she entered her program in the Fall of 2014, and entered her final year of the four-year program in the Fall of 2017, that she has been attending full-time, or close to full time throughout. I therefore find that she continued to be financially dependent throughout her studies, and was a “Child of the Marriage” within the meaning of the Family Law Act until her graduation in April 2018.

455As Merissa has been principally resident with Ms. Hardayal during her studies, Ms. Hardayal is entitled to child support for her until April 2018.

456The record that Mr. Asrula obtained from the University of Guelph-Humber discloses that the total cost of Merissa’s studies was $26,267.96, less a $3,000 Entrance Scholarship. The scholarship reduced the net cost of her post-secondary studies to $23,267.96. Mr. Asrula acknowledged that he is responsible for paying half that amount.

457Mr. Asrula Notes that only one of the payments listed on the record from the University, in the amount of $500.00 on January 15, 2016, was made by credit card. The others were made by Bank Transfers. He notes that Ms. Hardayal’s records disclose only two payments that she appears to have made in connection with Merissa’s studies. Mr. Asrula questioned whether Ms. Hardayal had actually given Merissa any financial assistance, or was simply using her MasterCard to remit funds that Merissa had given her, or for which Merissa later reimbursed her.

458Mr. Asrula suggested to Ms. Hardayal that in 2013, she was charged with assaulting Merissa, based on Merissa’s allegation that Ms. Hardayal had hit her with a shoe heel. He suggested that Ms. Hardayal had told Merissa at that time that as long as she lived, she would never pay Merissa’s tuition again. Ms. Hardayal replied that she was never charged with assault. She stated that it was Neshan and Anthony who were involved in the incident with Merissa. She also denied that she had said that she would never again pay Merissa’s tuition.

459Ms. Hardayal was shown a Promise to Appear that she had signed on October 2, 2013, in which it is stated, “I understand that it is alleged that I have committed: Assault with a Weapon x2, contrary to Section 267(a) of the Criminal Code of Canada.”¹²⁹ She acknowledged that it was her signature on the document. She then acknowledged that she was subject to a condition, but stated that she did not know whether she was charged.

460Ms. Hardayal was shown an Information sworn October 9, 2013, which disclosed that on February 18, 2014, she pleaded guilty and was found guilty of count number 3 on the Information, which alleged that:

Drupatie Hardayal, (1965/03/14) of 5 Nelly Court, Brampton, Ontario, on or about the 1st day of October in the year 2013, at the City of Brampton, in the said Region, did in committing an assault on Merissa Asrula, use a weapon, to wit: a shoe, contrary to section 267(a) of the Criminal Code of Canada.¹³⁰

461The Promise to Appear and Information were entered as exhibits, together with the Weapons Prohibition and the Victim Fine Surcharge that were imposed on March 6, 2014.¹³¹ Ms. Hardayal stated that she did not remember the Victim Fine Surcharge. The record of the charge against Ms. Hardayal does not corroborate Mr. Asrula’s allegation that Ms. Hardayal told Merissa that she would not pay for any of her tuition. However, combined with Ms. Hardayal’s denial that she was ever charged, it lends some support to Mr. Asrula’s assertion, and weakens Ms. Hardayal’s denial of it.

462Notwithstanding this further erosion of Ms. Hardayal’s credibility, I am not prepared to find that she contributed nothing to Merissa’s post-secondary education expenses. Mr. Asrula states that he is prepared to contribute half of the payment of those expenses, but wants to contribute it directly to Merissa to reimburse her, rather than paying the money to Ms. Hardayal. He testified that he had already helped Merissa in the payment of her education expenses, and was prepared to continue doing so.

463Mr. Asrula testified that on September 24, 2011, he paid $565.78 for Marissa’s lap top. The receipt was entered as an exhibit.¹³² This expense was incurred after Mr. Asrula left 5 Nelly Court in January 2011, and it qualifies as a special and extraordinary expense. I will therefore add it to Merissa’s s. 7 expenses and will credit it to Mr. Asrula’s obligation to contribute to the total amount of $23,833.74 ($565.78 + $23,267.96). I will credit Ms. Hardayal with the $500.00 credit card payment she appears to have made on January 15, 2016.

464Mr. Asrula is obviously highly suspicious of Ms. Hardayal, and wishes to make his proportional contribution to the payment of Merissa’s s. 7 expenses directly to her. Based on the evidence before me, I am satisfied that there are grounds for permitting him to do so.

465There was some evidence at trial regarding car payments of $90 that Ms. Hardayal claimed to have made for Merissa. Under cross-examination, she showed Visa receipt for $90 for such a payment. However, the evidence was not sufficient to satisfy me as to the nature of the expense or as to whether it was ultimately paid by Ms. Hardayal.

Alyssa Asrula

466Alyssa is 19 years old. She was born July 1, 1999. At the time of trial, she was in grade 12 at Cardinal Ambrozic Catholic Secondary School High School in Brampton. She had been accepted by three schools and wished to attend a nursing program in September 2017. Her first acceptance was from York University, who offered her a $1,000 scholarship. She wanted to attend York University, but would have to have been in residence there. She had therefore decided to attend a nursing program at the University of Guelph/Humber, where she would not need to be in residence.

467Ms. Hardayal did not know the duration of Alyssa’s program, or whether a semester will be three or six months. She expected to receive the papers by May. It was never in dispute between the parties that Alyssa continues to be financially dependent on her parents and a child of the marriage within the meaning of the Family Law Act. I find that she will continue to be entitled to child support until she finishes her nursing program.

468Based on Mr. Asrula’s most recent income of $64,586.00 per year, he will be ordered to pay $984.00 per month in child support for Alyssa.

469Ms. Hardayal tendered the record from Guelph/Humber for Alyssa’s 1st semester, in the amount of $7,534.92, which was entered as an exhibit.¹³³ She testified that she had to spend $40 every 2 weeks for school busses for Merissa and Alyssa for the duration of their studies at Guelph/Humber.

470Mr. Asrula testified that he has always contributed to the payment of the children’s expenses. He produced a bank draft to Alyssa dated July 3, 2015, in the amount of $2,500.00 for her 16th birthday. The draft was entered as an exhibit.¹³⁴ He stated that Alyssa had said that she would save the money to go to school. This evidence alone does not satisfy me that Alyssa has substantial resources of her own to contribute to the cost of her education. I therefore do not propose to make a deduction from the parties’ obligation to contribute, collectively, the entirety of her education costs.

471Ms. Hardayal testified that she paid additional expenses for Merissa and Alyssa for which she claims contribution as s. 7 expenses. She stated that she paid all of the expenses with her MasterCard. She tendered the receipts from the service providers, which were entered as exhibits.¹³⁵ The majority of the expenses pre-date January 2011, when Mr. Asrula left 5 Nelly Court. The balance amount to $1,250.00 and consist of the following:

a) $100.00 Shangri-La Academy of Fine Arts: Feb. 10, 2011;

b) $100.00 Dance 4 classes in March and April: May 5, 2011;

c) $200.00 Dance classes Merissa and Alyssa: July 7, 2011;

d) $100.00 Merissa and Alyssa dance, paid Sept. 22, 2011;

e) $100.00 Merissa and Alyssa dance: paid Oct. 27, 2011;

f) $100.00 Merissa and Alyssa dance: paid Nov. 24, 2011;

g) $105.00 Merissa and Alyssa dance: paid April 1, 2012

h) $120.00 Merissa and Alyssa Dance: paid Aug 2, 2012;

i) $25.00 Alyssa for Dance classes: paid Dec. 20, 2012;

j) $5,005.00 Orthodontic for Alyssa, paid Dec. 13, 2012 to July 14, 2014

k) $7,888.00 Orthodontry for Merissa

$13,843.00 TOTAL

472I find that these remaining expenses, incurred following Mr. Asrula’s departure from the home, are special and extraordinary expenses within the meaning of s. 7 of the Guidelines. Mr. Asrula will be required to contribute his proportional share to these expenses.

d. Mr. Asrula’s claim for reimbursement of overpayments of child support

473As noted above, Snowie J.’s Order required Mr. Asrula to pay $1,485.00 per month beginning April 11, 2011, for the support of the parties’ four children. Justice Tzimas’ consent Order dated February 12, 2013, on a without prejudice basis, reduced the support to $906.00, retroactive to September 11, 2012, payable for the two minor children only.

474Mr. Asrula claims that while he paid the mortgage, which was to have been in lieu of child support, Ms. Hardayal also received child support that the Family Responsibility Office garnished from his salary pursuant to Tzimas J.’s consent Order dated February 12, 2013, for child support of $906.00, with the result that she received double the amount she was entitled to receive. Mr. Asrula is being given credit for the amounts garnished from his salary against his child support obligations. The funds that Ms. Hardayal used to pay the mortgage, at least after Mr. Asrula returned to the home in 2010, came principally from the joint Line of Credit, by means of the withdrawals for which she is being held responsible to repay, and benefited both parties, through their joint ownership of 5 Nelly Court.

475Mr. Asrula claims that he overpaid child support for the above reasons, and continued paying support for the eldest children after they were adults and self-sufficient. His overpayment is being accounted for and will be deducted from Ms. Hardayal’s share of the net proceeds of sale of 5 Nelly Court and paid to Mr. Asrula. Mr. Asrula says that Ms. Hardayal has never produced proof that the eldest children, after becoming adults, were financially dependent on her and eligible for child support. He claims reimbursement for over-payments of child support for those reasons. I am satisfied that Nashan and Anthony were dependent, even if they managed to scrape by with loans and part-time employment.

476The FRO Statement of Arrears discloses that Mr. Asrula’s payments of child support are up-to-date.[136] Ms. Hardayal tendered a Statement of Arrears from the Family Responsibility Office.[137] The 7 pages show the support payments made from 1991 to January 2017. The child support owing on January 19, 2017, was $1,393.52. They had four children but Ms. Hardayal testified that she was only receiving child support for two of them. Mr. Asrula’s tendered a calculation of his claim for child support adjustments.¹³⁸

477The Statement dated July 4, 2017, showed arrears $2,000. However, Mr. Asrula gave a satisfactory explanation, in that the entry reflects a delay that sometimes occurs when his employer has not yet received a garnishment notice, which it requires in order to remit a payment.

478Mr. Asrula stated that Ms. Hardayal forced the parties’ 2 adult children to leave 5 Nelly Court, which resulted in their coming to live with Mr. Asrula. As noted above, those children were adults, and Mr. Asrula is being given credit for his overpayment of support in relation to them.

Mr. Asrula argued that Ms. Hardayal received child support under two different Orders, referring to the same children, one Order made in 1991 by the Ontario Court of Justice, and the other Order was made by this Court in April 2011. I am not satisfied that the FRO collected support under both Orders but this Court will direct the FRO to analyze its statement for Mr. Asrula’s account and if there was a collection of support under both Orders, to make the necessary adjustment.

(vi) What amount of s. 7 expenses did Ms. Hardayal incur?

Mr. Asrula’s evidence that he paid the children’s expenses

479Mr. Asrula suggested that Ms. Hardayal also stated that she would save child the tax credits for all 4 children. If the children didn’t use it the money for their education, it could be used for post.

The children’s payment of their own s. 7 expenses

480Ms. Hardayal maintained that she paid, and continues to pay, all of the children’s expenses. She states that she has all the bills, and the record of what she is paying from her account. Mr. Asrula stated that he needed the statements from the accounts from which Ms. Hardayal paid the expense, to satisfy himself that the children were not paying her money to reimburse her for the expenses she paid. Ms. Hardayal produced her MasterCard statements, but failed to produce them before trial, and failed to produce the monthly statements from her bank statements which she used to pay the credit card balances.

Mr. Hardayal’s voluntary contributions to the children’s expenses

481As noted above, Mr. Asrula testified, and I find, that following the parties’ separation in 1991, and before they resumed cohabitation in 1994, the parties entered into a cohabitation agreement, (“the Cohabitation Agreement”), which provided that he was to pay $1,200.00 toward the mortgage in lieu of child support.

482Mr. Asrula further testified, and I further find, that when the parties resumed cohabitation in 1994, the agreement was he would deposit all of his income to his TD Canada Trust account and she would pay the mortgage, property tax, home insurance and household bills, by ATM withdrawals from his TD Canada Trust account. Mr. Asrula stated that he gave Ms. Hardayal an ATM card so that she could withdraw the $1,200.00 per month from his account no. 3113264, but that she sometimes withdrew his full salary. Mr. Asrula stated that he was trying to make the family work and was willing to do that as long as they were together.

483Mr. Asrula produced his account history, beginning in 2003, and a breakdown of withdrawals, which was entered as an exhibit. As noted above, Ms. Hardayal was employed at Walmart, beginning in 1995. Mr. Asrula’s Account History disclose transfers to an account at Walmart, which I find was likely Ms. Hardayal’s account.

(a) What proportion of s. 7 expenses should each party contribute?

Mr. Hardayal’s income

484Mr. Asrula filed a Financial Statement sworn March 13, 2013, in which he reported his annual income as $46,265.28, and his previous year’s income as $60,744.84. He reported his yearly expenses as $83,987.16. He reported that his debts had increased only $1,700.00 from the date of separation to the date he swore his Financial Statement.

485Mr. Asrula later filed a Financial Statement sworn July 20, 2015, which reported that his annual income was $63,996.00 and that his income the previous year was $64,000.00. His expenses were now reported at $62,398.80. His debts had increased $7,000.00 from the date of separation to the date of the Statement. He attached Notices of Assessment for 2011 to 2013, which disclose the following total (Line 150) Income:

2011: $60,984.00
2012: $62,237.00
2013: $64,586.00

486Mr. Asrula additionally attached an Earnings Statement from New Zealand Lamb Company Ltd., for the period ended July 11, 2014, showing his year to date income at $33,225.95. On a pro-rata basis, his income for that period of 6.5 months, translates to $5,111.68 per month, or $61,340.21, which is consistent with his previous three years’ earnings.

487Based on the foregoing, I find that the most reliable indication of Mr. Asrula’s earning capacity is his 2013 Notice of Assessment, and I impute an income to him of $64,586.00 per year.

Ms. Hardayal’s income

488Ms. Hardayal filed a Financial Statement sworn February 3, 2011,¹³⁹ in which she stated that her income from Wal-Mart was $16,363.20, and had been $48,002.00 the previous year. She stated that her expenses were $123,944.76, but that her debts had not increased from the date of separation, which she said was November 30, 2008, and the date of the Financial Statement. She attached Notices of Assessment for 2007 to 2009, which disclosed the following Total (Line 150) income:

2007: $45.370.00
2008: $44,283.00
2009: $48,002.00

489Ms. Hardayal filed a further Financial Statement sworn March 25, 2011,¹⁴⁰ in which she stated that she was still employed by Wal-Mart. She reported the same income as in the previous Financial Statement, and the same amount of expenses.

490Ms. Hardayal filed a third Financial Statement sworn March 26, 2013,¹⁴¹in which she again stated that she was employed by Wal-Mart. This time, she reported her income at $38,323.20, and an income of $46,356.61 for the previous year. She reported that her expenses were $139,668.00 and that her debts had increased by $3,872.46 from November 30, 2008, to the date of the Statement.

491Ms. Hardayal received severance for 18 months or 2 years or 18 months after her employment was terminated in 2014. She was unable to remember if it was a year, 18 months or 2 years that she continued receiving severance. After consulting Walmart, she testified that her last payment from Walmart was on April 2, 2015.

492Ms. Hardayal testified that she was out of work for a five or six months. Then she employed at Tim Horton’s for a month. After that, she went into training but wasn’t offered a job. Then she was employed full-time at Dollarama at a salary of $20 per hour for 40 hours per week. A total salary of $40,000.

493Mr. Asrula noted that Ms. Hardayal’s employment record from Walmart,¹⁴²which was entered as an exhibit, discloses that Ms. Hardayal received:

a) $16,204.48 in severance paid.

b) Her final pay on May 16, 2014.

c) Pay in lieu of notice in the amount of $6,481.79.

d) A retirement allowance of $16,394.25.

e) An entitlement to a pension of $36,554.29 as of June 25, 2014, locked in until she reaches retirement age.

494As this was the last financial information that Mr. Hardayal submitted, I impute income to her in the amount of $46,356.61, based on her last year of full employment (2014). I find that she is qualified as a manager and capable of earning at least that amount.

495Based on Ms. Hardayal’s imputed income of $46,356.61 and Mr. Asrula’s imputed income of $64,586.00 per year, I find that Mr. Asrula’s income represents 58.2% of the parties’ collective income.

496While I accept that the children had school expenses, I am not satisfied that Ms. Hardayal incurred or paid those expenses. Mr. Asrula will therefore be ordered to contribute his share of the expenses by paying the children directly.

p) Is Ms. Hardayal entitled to spousal support and, if so, in what amount?

Legislative framework

(i) Jurisdiction to award spousal support

497The Family Law Act, R.S.O. 1990, c. F.3 gives the court a broad discretion to make awards of periodic or lump sum spousal support, or both. Sections 34(1)(a) and (b) of the Family Law Act provides:

34(1) In an application under section 33, the court may make an interim or final order,

(a) requiring that an amount be paid periodically, whether annually or otherwise and whether for an indefinite or limited period, or until the happening of a specified event; [and]

(b) requiring that a lump sum be paid or held in trust.

[Emphasis added.]

(ii) Purposes of spousal support order

498 Section 33(8) of the Family Law Act sets out the purposes of a spousal support order, as follows:

33(8) An order for the support of a spouse should,

(a) recognize the spouse's contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

[Emphasis added]

(iii) Factors to be considered

499 Section 33(9) of the Family Law Act sets out the factors which the court should consider when asked to make an order for spousal support. The following factors are relevant to Ms. Hardayal’s Application:

33(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant's and respondent's current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(d) the respondent's capacity to provide support;

(e) the dependant's and respondent's age and physical and mental health;

(f) the dependant's needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent's career potential;

(k) Repealed.

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse's earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family's support,

(v.1) Repealed.

(vi) the effect on the spouse's earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependant to support, other than out of public money.

Conduct

(10) The obligation to provide support for a spouse exists without regard to the conduct of either spouse, but the court may in determining the amount of support have regard to a course of conduct that is so unconscionable as to constitute an obvious and gross repudiation of the relationship.

[Emphasis added.]

Jurisprudence

Basis for entitlement to spousal support

500The Supreme Court of Canada in Bracklow (1999) set out three conceptual bases for entitlement to spousal support, namely, compensatory, contractual, and non-compensatory.¹⁴³ The Court distinguished the compensatory from the non-compensatory basis as follows:

39 ...Under the Divorce Act, compensation arguments can be grounded in the need to consider the "condition" of the spouse; the "means, needs and other circumstances" of the spouse, which may encompass lack of ability to support oneself due to foregoing career opportunities during the marriage; and "the functions performed by each spouse during cohabitation", which may support the same argument. ...

40 ...To be sure, these factors may support arguments based on compensation for what happened during the marriage and its breakdown. But they invite an inquiry that goes beyond compensation to the actual situation of the parties at the time of the application. Thus, the basic social obligation model may equally be seen to occupy the statutory provisions.

41 Section 15.2(6) of the Divorce Act, which sets out the objectives of support orders, also speaks to these non-compensatory factors. The first two objectives -- to recognize the economic consequences of the marriage or its breakdown and to apportion between the spouses financial consequences of child care over and above child support payments -- are primarily related to compensation. But the third and fourth objectives are difficult to confine to that goal. "[E]conomic hardship . . . arising from the breakdown of the marriage" is capable of encompassing not only health or career disadvantages arising from the marriage breakdown properly the subject of compensation (perhaps more directly covered in s. 15.2(6)(a): see Payne on Divorce, supra, at pp. 251-53), but the mere fact that a person who formerly enjoyed intra-spousal entitlement to support now finds herself or himself without it. Looking only at compensation, one merely asks what loss the marriage or marriage breakup caused that would not have been suffered but for the marriage. But even where loss in this sense cannot be established, the breakup may cause economic hardship in a larger, non-compensatory sense. Such an interpretation supports the independent inclusion of s. 15.2(6)(c) as a separate consideration from s. 15.2(6)(a). Thus, Rogerson sees s. 15.2(6)(c), "the principle of compensation for the economic disadvantages of the marriage breakdown as distinct from the disadvantages of the marriage", as an explicit recognition of "non-compensatory" support ("Spousal Support After Moge", supra, at pp. 371-72).

42 Similarly, the fourth objective of s. 15.2(6) of the Divorce Act -- to promote economic self-sufficiency -- may or may not be tied to compensation for disadvantages caused by the marriage or its breakup. A spouse's lack of self-sufficiency may be related to foregoing career and educational opportunities because of the marriage. But it may also arise from completely different sources, like the disappearance of the kind of work the spouse was trained to do (a career shift having nothing to do with the marriage or its breakdown) or, as in this case, ill-health.

[Emphasis added.]

501In the present case, I am unable to find a basis, on either compensatory or non-compensatory grounds, to order spousal support for Ms. Hardayal. As far as I can determine, she made life extremely difficult for Mr. Asrula, and was so focused on her own financial advancement as to undermine any prospect of a “shared enterprise” from their relationship.

502Although the parties have four children, I do not find that Ms. Hardayal was disadvantaged by the role she assumed in the relationship, and find that Mr. Asrula likely shared an equal portion of household and child-rearing duties.

503While Mr. Asrula appears to have prospered through his investments, I find that it is likely Ms. Hardayal did also, but that she has made it impossible to quantify her gain, owing to her failure to make full financial disclosure. I find that Ms. Hardayal has likely created for herself a sufficient financial cushion that she was able to sustain herself until she secures suitable alternative employment similar to that which she had for many years as a front-line manager at Walmart.

504In these circumstances, Ms. Hardayal’s claim for spousal support will be dismissed.

q) Security for child support

505In his financial statement, Mr. Asrula says he pays $486 for life insurance. Ms. Hardayal asked him who the beneficiary of the policy is. He testified that when the children were minors, she was named as beneficiary in trust for them. When he moved out, he made his brother the beneficiary, followed by a period after separation when he named his two older brothers as beneficiaries, with instructions to use the proceeds for the children. When the children became adults, he changed it to 25% for each of the four children. That is the current designation, and I find it to be appropriate and adequate.

r) Costs

506Ms. Hardayal asserts that she has never received any of the costs that the court ordered Mr. Asrula to pay her. Mr. Asrula tendered a copy of the draft for $3,000 that he sent to Ms. to Dosanjh on May 23, 2013, in payment of the costs order made at that time.¹⁴⁴ He states that is the only costs order made against him.

507Success was divided at the trial. Mr. Asrula was successful in his claim for entitlement to a half interest in 5 Nelly Court. Ms. Hardayal was successful in avoiding an Order requiring her to repay the entire $100,000 Line of Credit. The parties’ success on child support was divided, with Mr. Asrula slightly more successful, but Ms. Hardayal being successful in her claim for child support for Alyssa, and for a proportional share of the children’s s. 7 expenses, although Mr. Asrula was successful in securing an Order permitting him to pay his contribution directly to the children.

508In these circumstances, there will be no Order for costs.

CONCLUSION AND ORDER

509For the reasons set out above, it is ordered that:

The parties shall, by November 30, 2018, agree upon and retain Hendren Appraisals Inc., or such other certified property valuator as the parties may agree upon in writing by that date, to provide an up-to-date valuation of the property municipally known as 5 Nelly Court, Brampton (“the Property”). The cost of the valuation shall be paid initially by Mr. Asrula. The cost of the valuation shall ultimately be shared equally by the parties and reimbursed to Mr. Asrula from the net proceeds of sale of the home.
The parties shall, by December 15, 2018, agree upon and retain a real estate agent to sell the Property. If the parties are unable to agree, by that date, on a listing agent, they may after that date each sign a non-exclusive listing agreement with a realtor of their choice and, in that event, shall forthwith fax to the other party’s solicitor a copy of the listing agreement they have signed.
The house shall be listed for sale by December 31, 2018. The parties shall, before that date, agree, in consultation with the real estate agent or agents, on an initial listing price.
In the event of disagreement as to the selection of real estate agent (or valuator) or as to the listing price, or as to any matter in relation to the sale of the house, either may seek directions from this court, which may be by motion on short notice, in the form of a letter from counsel, with appropriate attachments, for hearing by me by telephone conference, between 9:00 and 10:00 a.m. on a date when I am sitting, to be arranged in advance with my judicial secretary.
In consultation with the real estate agent or agents, the parties shall take reasonable steps to ready the house for sale. These steps shall be completed by December 31, 2018. The cost of these steps shall be paid by Mr. Asrula, being the party best able to pay for them at this time, who shall be reimbursed for them from the proceeds of sale of the house, up to the amount of $3,000.00, unless the parties agree in advance and in writing to a greater amount.
The parties shall take all reasonable steps to facilitate and complete the process of selling the house. If either party fails to comply with this paragraph, the other party may apply to this court to dispense with the non-cooperating party’s participation in the process of selling the house, which application may be in accordance with paragraph 4 of this Judgment.
In the event that either party enters into an agreement to purchase the house, that party will be responsible for all of the costs of the sale, including the real estate commission and assumption of any liens.
The net proceeds of sale of the property after payment of taxes, real estate commission, legal fees of the sale and standard adjustments, and after reimbursement of the costs referred to in paragraphs 1 and 5, shall be applied to pay the balance of the parties’ joint line of credit at TD Canada Trust, and that account shall then be closed.
The balance remaining of the net proceeds of sale of 5 Nelly Court after the re-payment of the mortgage and joint line of credit, property taxes, legal fees for the sale, and standard adjustments, shall be divided equally between the parties, subject to the following deductions, and until that time, shall be held in trust in an interest-bearing account by the parties’ real estate solicitor pending written agreement of the parties or further court orders:

(a) The following amounts shall be deducted from Ms. Hardayal’s share of the net proceeds of sale:

(i) $9,843.00, being the amount of Mr. Asrula’s overpayment of child support, shall be deducted from her share of the net proceeds of sale and paid to Mr. Asrula;

(ii) $52,711.35, representing the $67,888.05 Ms. Hardayal retained from the sale of 74 Cheviot Crescent, less the deficit of $10,000.00 in Mr. Asrula’s $20,000.00 share of the deposits paid for 5 Nelly Court and $5,176.70 that was paid to Legal Aid Ontario from the proceeds of the $180,000.00 mortgage or the $172,787.00 temporarily increased joint Line of Credit at the time of the closing of the purchase of 5 Nelly Court to discharge its lien for Mr. Asrula’s legal fees, shall be deducted from Ms. Hardayal’s share of the net proceeds of sale and paid to Mr. Asrula;

(iii) $18,810.00, being 41.8% of Anthony’s tuition of $45,000.00 for three years university, based on the proportion that Ms. Hardayal’s imputed income of $46,356.61 bears to the parties’ collective income of $110,942.61, shall be deducted from Ms. Hardayal’s share of the net proceeds of sale and paid to Anthony Asrula;

(iv) $10,171.50, being Ms. Hardayal’s 41.8% share of the total of Merissa Asrula’s school expenses, less a credit for the $500.00 Ms. Hardayal paid with her credit cards, all be deducted from Ms. Hardayal’s share of the net proceeds of sale and paid to Merissa Asrula;

(v) $5,786.37, being Ms. Hardayal’s 41.8% share of Merissa’s and Alyssa’s listed s. 7 expenses of $13,843.00, shall be deducted from Ms. Hardayal’s share of the net proceeds of sale and paid to Alyssa Asrula;

(b) The following amounts shall be deducted from Mr. Asrula’s share of the net proceeds of sale:

(i) $26,190.00, being 58.2% of Anthony’s tuition of $45,000.00 for three years’ university, based on the proportion that Mr. Asrula’s imputed income of $64,586.00 bears to the parties’ collective income of $110,942.61, Ms. Hardayal’s imputed income being $46,356.61 per year, shall be deducted from Mr. Asrula’s share of the net proceeds of sale and paid to Anthony Asrula;

(ii) $14,162.24, being Mr. Asrula’s 58.2% share of the total of Merissa Asrula’s school expenses, amounting to $24,333.74, less a credit for the $565.78 Mr. Asrula paid for her laptop computer, shall be deducted from Mr. Asrula’s share of the net proceeds of sale and paid to Merissa Asrula;

(iii) $8,056.63, being Ms. Asrula’s 58.2% share of Merissa’s and Alyssa’s listed s. 7 expenses of $13,843.00, shall be deducted from Mr. Asrula’s share of the net proceeds of sale and paid to Alyssa Asrula;

Mr. Asrula shall pay ongoing child support to Ms. Hardayal for Alyssa Asrula in the amount of $984.00 per month based on his 2014 income of $64,586.00 per year beginning December 1, 2018, subject to annual increases based on increases in his income.
The Family Responsibility Office shall check its account for Mr. Asrula to ascertain whether his salary was garnished under the Order made by the Ontario Court of Justice after August 13, 2009, when Baldock J. made an Order transferring the proceeding to this Court and, particularly, after April 11, 2011, when Snowie J. made her support order in this Court. If there was a double collection after April 11, 2011, it shall adjust Mr. Asrula’s account accordingly to give him credit for any amount collected from him under the Ontario Court Order after that date.
Mr. Asrula shall pay to Alyssa Asrula his proportional share of 58.2% of Alyssa’s tuition for her nursing program at the University of Guelph/Humber College, based on the record provided by the Financial Services Department of the said University, and the same percentage of other documented special and extraordinary expenses, and Ms. Hardayal shall pay to Alyssa her proportional share of 41.8% of the said expenses.
There shall be no spousal support paid.
Mr. Asrula and Ms. Hardayal each shall provide a copy of this Order, once signed and entered, to Anthony, Merissa, and Alyssa Asrula and shall, within 30 days of the entry of the Order, produce to each other confirmation, in affidavit form, that they have complied with the terms of this Order in so far as giving or sending a copy of the Order to Anthony, Merissa, and Alyssa Asrula.
There shall be no order as to costs.

Price J.

Released: November 20, 2018

COURT FILE NO.: FS-11-640-00

DATE: 2018-11-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DRUPATIE HARDAYAL

Applicant

and -

GOOLSAIR ASRULA

Respondent

REASONS FOR DECISION

Price J.

Released: November 20, 2018

Footnotes

Exhibit 28 at the Trial
Exhibit 1 at the trial
Exhibit 62 at the trial
Exhibit 62 at the Trial
Exhibit 63 at the trial
Exhibit 74 at the trial
Exhibit 97 at the trial
Exhibit 58 at the trial
Exhibit 59 at the trial
Exhibit 55 at the trial
Exhibit 109 at the trial
Exhibit 56 at the Trial
Justice Emery’s Trial Scheduling Endorsement Form was entered as Exhibit 60 at the trial.
Exhibit 120 at the trial
Exhibit 121 at the Trial
Exhibit 45 at the Trial
Exhibit 122 at the Trial
Exhibit 124 at the Trial
Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436.
Rathwell, supra, at 451.
Rathwell, supra.
Becker v. Pettkus, 1980 CanLII 22 (SCC), [1980] 2 S.C.R. 834.
Becker, supra, at paras. 22 and 26
Becker, supra, at para. 38.
Peter v. Beblow, 1993 CanLII 126 (SCC), [1993] 1 S.C.R. 980, per Cory J., at para. 84.
Peter, supra, at para. 26.
Soulos v. Korkontzilas, 1997 CanLII 346 (SCC), [1997] 2 SCR 217, at paras. 20, 43.
Sorochan v. Sorochan, 1986 CanLII 23 (SCC), [1986] 2 S.C.R. 38, at paras. 31-32.
Exhibit 107 at the trial
Exhibit 108 at the trial
Segraves (otherwise Fralick) v. Fralick, 1951 CanLII 97 (ON CA), citing Inverclyde (otherwise Tripp) v. Inverclyde, [1931] P. 29; Rayden on Divorce, 5th ed. 1949, pp. 43-4.
Exhibit 51 at the trial.
Exhibit 108 at the trial
Exhibit 103 at the trial
Exhibit 116 at the trial
Exhibit 115 at the trial
Exhibit 28 at the Trial
Exhibit 114 at the trial
Serra v. Serra, 2007 CarswellOnt 665 (W.L. Can.), rev’d on different grounds 2009 ONCA 105, 93 O.R. (3d) 161, additional reasons 2009 ONCA 395, 66 R.F.L. (6th) 40.
Ms. Hardayal tendered a T4 slip for 2001 on an account at the Bank of Montreal in the names of Mr. Asrula, his mother, and his niece, listing his address as 74 Cheviot Crescent.⁴¹
Exhibit 9 at the trial
Exhibit 8 at the trial
Exhibit 100 at the trial
Part of Exhibit 45 at the Trial
Part of Exhibit 45 at the Trial
The Amendment and Agreement for Optional Extras being part of Exhibit 45
Exhibit 45 at the Trial
Exhibit 44 at the Trial
Exhibit 54
Exhibit 55 at the trial
The Account History was Exhibit 95 at the trial
Bardouniotis v. Trypis, 2010 ONSC 4466, at para. 9
Manchanda v. Thethi, 2016 ONSC 3776, at para. 22
Murray v. Murray, 2010 ONSC 4278, at para. 52
Parker v. Parker, 2008 ONSC 54323, paras. 35 & 49
Exhibit 10 at the trial
Exhibit 9 at the trial
Exhibit 8 at the trial
Exhibit 6 at the trial
Exhibit 7 at the trial
Exhibit 3 at the trial
Exhibit 4 at the trial
Exhibit 127 at the trial
Exhibit 14 at the trial. The letter from Mr. Asrula to Mr. Cohen dated Feb 26, 2009, five years after the closing in 2004, regarding the 49% later, was entered as Exhibit 98 at the trial.
Child Support Guidelines, O Reg 391/97; N.L. v. B.P., 2000 ONSC 22516, para. 40; Ménage v. Hedges, 1987 ONSC 5234, para. 91; Manning v. Manning, 2004 ONSC 4790, para. 7
Exhibit 15 at the trial
Exhibit 15 at the trial
Exhibit 94 at the trial
Exhibit 46 at the Trial
Exhibit 47 at the Trial
Exhibit 48 at the Trial
Exhibit 93 at the trial
Exhibit 94 at the trial
Exhibits 48 and 46 and 100 at the trial
Exhibit 30 at the Trial
Tab 4 of Exhibit 100 at the Trial
Exhibit 31 at the Trial
Exhibit 34 at the Trial
Exhibit 112 at the trial
Exhibit 113 at the trial
Exhibit 57 at the trial
Exhibit 32 at the Trial
Family Law Act, RSO 1990, c F.3
Federal Child Support Guidelines, S.O.R. 97-175, s. 3.
S.(D.B.) v. G.(S.R.), 2006 SCC 37, [2006] 2 S.C.R. 231. [D.B.S.]. Also: W.(L.J.) v. R.(T.A.); Henry v. Henry; Hiemstra v. Hiemstra, 2006 SCC 37, [2006] S.C.J. No. 37
D.B.S., at para. 97.
D.B.S., at para. 99.
D.B.S., at para. 116.
D.B.S. , at para. 125.
CED Family Law - Divorce VI.8.(b) at §657
Moore v. Fernandes, 2001 CanLII 28263 (ON SC), [2001] O.J. No. 5192 (Sup. Ct.), para. 8
S. (N.T.) v. B. (K.J.), 2007 BCSC 1895, paras. 27-28
Karajian v. Karajian, 2012 ONSC 4921, Eberhard J., at para. 44
Henderson-Jorgensen v. Henderson-Jorgensen, 2013 ABQB 213, Wilson J., at paras. 15-16
Federal Child Support Guidelines, s. 7
Adapted from Titova v. Titov, 2012 ONCA 864, at para. 23.
In Wawzonek v. Page, 2015 ONSC 4374, Justice Pazaratz says, at para. 198, that the tax considerations should come before consideration of the child’s contribution.
Wawzonek v. Page, 2015 ONSC 4374, at para. 198.
Terry v. Moyo, 2013 ONCJ 364, at para. 29.
MacNeil v. MacNeil, 2013 ONSC 7012, paras. 31 to 34.
Bordin v. Bordin, 2015 ONSC 3730, at para. 116.
Exhibit 23 at the Trial
Part of Exhibit 77 at the Trial
Exhibit 24 at the Trial
Exhibit 25 at the Trial
Exhibit 21 at the Trial
Exhibit 22 at the Trial
Part of Exhibit 77 at the Trial
Part of Exhibit 77 at the Trial
Exhibit 26 at the Trial
Exhibit 16 at the Trial
Exhibit 18 at the Trial
Exhibit 18 at the Trial
Exhibit 20 at the Trial
Exhibit 27 at the Trial
Exhibit 19 at the Trial
Exhibit 17 at the Trial
Part of Exhibit 77 at the Trial
Exhibit 18 at the Trial
Exhibit 20 at the Trial
Exhibit 27 at the Trial
Rotondi v Rotondi, 2014 ONSC 1520, paras. 28 to 41
Exhibit 42 at the Trial
Exhibit 105 at the Trial
Exhibit 125 at the Trial
Exhibit 131 at the Trial
Exhibit 132 at the Trial
Exhibit 133 at the Trial
Exhibit 92 at the Trial
Exhibit 43 at the Trial
Exhibit 91 at the trial
Exhibit 29 at the trial
Exhibit 90 at the trial
Exhibit 38 at the Trial
Exhibit 39 at the Trial
Exhibit 40 at the Trial
Exhibit 126 at the trial
Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420, at 442.
Exhibit 87 at the trial
Morningstar v. Holley, 2007 CanLII 2359 (ON SC), at paras. 5-7, 9.
Exhibit 10 at the trial
Boisvert v. Boisvert, 2007 CanLII 24073 (ON SC), 40 R.F.L. (6th) 158, para. 48.
Exhibit 118 at the trial
Exhibit [137]

Hardayal v. Asrula, 2018 ONSC 6948

Case Summary

OVERVIEW

BACKGROUND FACTS

THE ISSUES

POSITIONS OF THE PARTIES AND SUMMARY OF FINDINGS

ANALYSIS AND EVIDENCE

q) Security for child support

r) Costs

CONCLUSION AND ORDER

Footnotes

Hardayal v. Asrula, 2018 ONSC 6948

Case Summary

OVERVIEW

BACKGROUND FACTS

THE ISSUES

POSITIONS OF THE PARTIES AND SUMMARY OF FINDINGS

ANALYSIS AND EVIDENCE

q) Security for child support

r) Costs

CONCLUSION AND ORDER

Footnotes

Cited By (1 case)

Diamond v. Berman, 2020 ONSC 1566

Cited By (1 case)

Diamond v. Berman, 2020 ONSC 1566