SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-15-84763-00

DATE: 2018-12-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E E N:

ROZINA SAMNANI

Self-represented

Applicant

• and -

AKBAR GALMANI

Self-represented

Respondent

HEARD: January 11, 12, and 15, 2018, at Brampton, Ontario

Price J.

Reasons For Judgment

OVERVIEW

[1] After Rozina Samnani (“Ms. Samnani”) and Akbar Galmani (“Mr. Galmani”) were married in India in 2013, Mr. Galmani sponsored Ms. Samnani’s immigration to Canada. They began living together in March 2014, and separated after less than four months. There are no children of their marriage.

[2] Ms. Samnani began the present proceeding in October 2015, fifteen months after the parties separated. In her Application, she alleged that she was emotionally and verbally abused by Mr. Galmani and his family during the marriage. She claimed a divorce, spousal support, an unequal division of property or, in the alternative, an equalization payment, sale of family property, payment of a “Mahr” that Mr. Galmani had agreed to pay her if they separated, repayment of money that Mr. Galmani had demanded from her during their marriage, and the return of jewelry that he also demanded from her when she arrived in Canada.

[3] Mr. Galmani delivered an Answer in December 2015. He denied the abuse and alleges that Ms. Samnani married him to secure permanent resident status in Canada, and had to allege abuse in order to remain in Canada after separating from him within a year after he had sponsored her. He states that, as an Ismaili Muslim, he had no cultural expectations of “controlling” or dominating his wife. He denies having demanded money or jewelry from her and while he acknowledges receiving funds from her, states that this was her idea, to help her save her money, and that he returned some of the funds to her when she asked for them.

[4] The parties severed the claim for divorce and settled the issues of the jewelry and Mahr at the pre-trial hearings, leaving only the issues of return of “borrowed funds”, equalization of net family property, and spousal support for trial. The trial took place from January 11 to 15, 2018, after which the court reserved judgment. These reasons will address the issues raised in the trial.

BACKGROUND FACTS

The parties’ background

[5] Ms. Samnani is 35 years old. She is a citizen of India. After being employed there as a sales clerk and in a travel agency Ms. Samnani secured a visa for the United Kingdom where she earned a Masters of Arts degree in Human Resources from the University of Wales. After completing her studies she secured employment in London in hotel management, working in different branches of one hotel company for seven years, building up seniority and respect.

[6] Mr. Galmani is 41. He is a citizen of India and the U.K., where he earned a Bachelor of Commerce degree and worked in the hospitality industry. He immigrated to Canada in 2012 and is a permanent resident of this country. He has been employed as a warehouse worker, but has earned money in stock trades and is the co-owner of property in the U.K. and India from which he may earn additional income.

The parties’ marriage

[7] Mr. Samnani and Mr. Galmani were married in India on February 16, 2013. It was not an arranged marriage and the parties, who are Ismaili Muslims, signed a marriage contract whose terms required Mr. Galmani to pay a “Mahr” in the event the parties later separated.

[8] At the time of the wedding, Mr. Galmani was living in Canada and Ms. Samnani was living in the U.K. Following their wedding, Mr. Galmani returned to Canada and Ms. Samnani, who remained in the U.K., applied for permanent residence in Canada, sponsored by Mr. Galmani. Ms. Samnani’s application was accepted a year later, in February 2014. After a 1.5 month return in India, she came to Canada on March 25, 2014. The parties then began living together as husband and wife, but separated less than four months later. There are no children of the marriage.

The parties’ separation

[9] The parties separated on July 14, 2014, following 17 months of marriage, including their four months of co-habitation. At that time, Mr. Galmani was working as an order picker in a warehouse. Ms. Samnani, who was unemployed, moved to a shelter.

[10] After the parties’ separation, Ms. Samnani was granted a work permit in Canada. She secured a full-time job as a receptionist during the week on a one-year contract with a company that provided security for the Pan Am Games, and a part-time job on weekends in customer relations with Petro Canada, which she maintained for over a year, from August 20, 2014, to August 31, 2015, working seven days a week, and was able to earn between $43,000 and $47,000 per year.

[11] When Ms. Samnani’s one-year contract expired, she continued to work part-time (17 hours per week) at Petro-Canada until she secured her current employment as a receptionist for Massage Addict where, at the time of trial, she earned approximately $19,656 per year. Mr. Galmani provided no spousal support to Ms. Samnani until Snowie J. made a consent Order requiring him, in compliance with the parties’ marriage contract, to pay Ms. Samnani the Mahr in installments of $165 per month for 24 months, which added $1,980 to her annual income, for a total of $21,636.

[12] Ms. Samnani began the present proceeding by Application issued October 29, 2015, in which she claimed a divorce, the return or re-payment of jewelry and money she said Mr. Galmani demanded from her during the marriage, an unequal division of family property or equalization of net family property, and a contractual “Mahr” and/or spousal support.

[13] Mr. Galmani delivered his Answer in the proceeding on December 21, 2015. He also claimed a divorce, unequal division of net family properties, and, if the court ordered him to pay the Mahr, that he be permitted to pay it in installments.

[14] On October 25, 2016, Snowie J. presided at a settlement conference where the parties signed Interim Minutes of Settlement which severed their claims for divorce and dealt with the issues of the parties’ jewelry, and the Mahr. In the settlement, Mr. Galmani agreed to return Ms. Samnani’s jewelry and clothes and pay her the Mahr in 24 monthly installments of $165 by post-dated cheques.

[15] Ms. Samnani asserted at the trial that Mr. Galmani had failed to return a gold chain and 12 other items of jewelry pursuant to Snowie J.’s consent Order. Mr. Galmani asserted at the trial that he had returned the jewelry that was in his possession but that Ms. Samnani had failed to return some of his jewelry. I note, however, that the only jewelry that the Interim Minutes of Settlement required Ms. Samnani to provide to Mr. Galmani was his wedding/engagement band, which the Minutes state was already in his possession and that he was simply to retain. I therefore regard the issue of Mr. Galmani’s jewelry as settled.

[16] On March 9, 2017, Van Melle J. presided at a Trial Management Conference where she listed the issues for trial as spousal support, repayment of loaned monies, and equalization of net family property. She scheduled the trial to take place on the week of October 23, 2017.

[17] On April 3, 2017, André J. made an Order for the parties’ divorce, which took effect on May 4, 2017.

[18] On October 23, 2017, Van Melle J. conducted a Pre-Trial Conference. Van Melle J. noted only two remaining issues for trial, namely, whether Mr. Galmani owed Ms. Samnani money in repayment of a loan, and whether he should be ordered to pay spousal support to her. However, it appears that the issue of equalization of net family property also had not yet been resolved. Van Melle J. adjourned the trial to January 2018.

[19] A further pre-trial conference was conducted by Seppi J. on January 8, 2018, but the remaining issues could not be resolved. The trial began on January 11 and continued on January 12 and 15, 2018, whereupon the court reserved judgment.

ISSUES

[20] The court is asked to determine the following issues in the trial of this proceeding:

a) Did Ms. Samnani lend or otherwise provide money to Mr. Galmani that he is obliged to repay and, if so, what amount?

b) Does either party owe the other a payment to equalize their net family properties and should their property be divided unequally?

c) Is Ms. Samnani entitled to receive spousal support from Mr. Galmani and, if so, in what amount?

The order in which the Court will address the issues

[21] In Greenglass v. Greenglass, (2010), the Court of Appeal for Ontario held that, as a matter of law, the division of assets and equalization of net family property should always precede the determination of spousal support.[^1] The Court noted that there would be cases in which the division of assets and equalization of net family property would not affect a spouse’s entitlement to spousal support. The Court of Appeal stated, in this regard:

Section 15.2(4) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), provides a list of circumstances to consider when determining spousal support. This list includes the means of the parties. When determining a party’s means, all pecuniary resources must be taken into account, including capital assets: Leskun v. Leskun, 2006 SCC 25, [2006] 1 S.C.R. 920 at para. 29.

In Hartshorne v. Hartshorne, 2004 SCC 22, [2004] 1 S.C.R. 550, at para. 56, Bastarache J., writing for the majority, comments on the approach taken by the trial judge in that case as follows: “Beames J. first awarded spousal support and then reapportioned the family assets. In doing so, she considered the respondent’s need to become and remain economically independent and self-sufficient twice. This was an error in law.”

Here, the trial judge erred in the same way. Mr. Joseph, counsel for Ms. Greenglass, quite properly concedes the error but describes it as a matter of form over substance. He contends that this was a long-term marriage and Ms. Greenglass has a compelling case for indefinite spousal support; factoring in the equalization payment made little difference.

As will be seen, in the circumstances of this case, Mr. Joseph is correct. That said, the amount of the equalization payment and the impact of any potential income-generating potential associated with the assets with which each party is left will almost invariably affect the support analysis. As a matter of law, therefore, the calculation of the division of assets and resulting equalization payment must always precede any support analysis.[^2]

[Emphasis added.]

[22] Based on the foregoing, the court will address the property issues first, so that it can address the issue of spousal support in the light of its findings and disposition regarding the parties’ property in its consideration of their means and circumstances.

PARTIES’ POSITIONS

a) Did Ms. Samnani lend or provide money to Mr. Galmani that he is obliged to repay and, if so, what amount?

Ms. Samnani’s position

[23] Ms. Samnani asserts that early in the parties’ marriage, Mr. Galmani began insisting that she give him her money. She asserts that, following their wedding, and during the 1.5 years she spent in the U.K. awaiting her admission to Canada, she sent all of her disposable income to Mr. Galmani each month. She states that each time she was paid, Mr. Galmani called her and told her what she was permitted to keep and what she must transfer to him. She states that Mr. Galmani and his sister repeatedly told her that a good wife gives her money to her husband. It was made clear to her that if she refused, the marriage would be over, which was culturally unacceptable to Ms. Samnani at the time.

Mr. Galmani’s position

[24] Mr. Galmani asserts that it was Ms. Samnani who wanted to save money to pay off debts from their wedding and honeymoon, and the costs of her move to Canada and new clothing from India, by putting money into his account. He claims that she told him that she would have trouble saving otherwise. He denies that that he asked her to send him money or dictated the amounts or frequency of transfers to him. He acknowledges that he received approximately $12,180 from her, but says that he returned some of it to her when she requested it.

The court’s findings and disposition of the issue

[25] For reasons that follow, I find that Ms. Samnani sent $23,512.28 to Mr. Galmani in response to his demands, and that he returned $4,227.06. I find that Mr. Galmani owes Ms. Samnani $19,285.22 ($23,512.28 less the $4,227.06 he returned), and he will be ordered to repay that amount to her.

b) Does either party owe the other a payment to equalize their net family properties?

Ms. Samnani’s position

[26] Ms. Samnani claims an unequal division of family property or, in the alternative, an equalization payment from Mr. Galmani.

Mr. Galmani’s position

[27] Mr. Galmani makes the same claims against Ms. Samnani.

The Court’s findings and disposition of the issue

[28] After disallowing claims by Mr. Galmani that were unsupported by evidence, I find that his net family property on the date of separation was $32,866.60 There is no dispute that Ms. Samnani had no net family property on the date of separation.

[29] Mr. Galmani withheld property and funds from Ms. Samnani following their separation. The issue of the jewelry and clothes were dealt with in the consent Order of Snowie J. dated October 25, 2016, and although I find that he failed to return all of her property to her pursuant to the Order, the outstanding items and the funds that Ms. Samnani transferred to Mr. Galmani will be dealt with here by an Order for restitution. In these circumstances, an equalization payment will not be unconscionable.

[30] An Order will therefore be made that requires Mr. Galmani to pay additional restitution to Ms. Samnani in the amount of $3,000 for the items he failed to return to her, and an equalization payment in the amount of $23,152.97, being half the difference between their net family properties.

d) Is Ms. Samnani entitled to receive spousal support from Mr. Galmani and, if so, in what amount?

Ms. Samnani’s position

[31] Ms. Samnani argues that Mr. Galmani entered into a sponsorship agreement with the Government of Canada by which he undertook to support her financially for three years. She states that she is in desperate need of financial assistance from Mr. Galmani and that he is financially able to pay spousal support to her.

Mr. Galmani’s position

[32] Mr. Galmani states that he gave up his employment in order to travel to India in 2013 for the parties’ wedding, in 2014 to bring Ms. Samnani to Canada, and once after the parties’ separation when, believing that Ms. Samnani had taken advantage of him, he became depressed and, in spite of receiving medical treatment, eventually lost his employment and travelled to the U.K. for several months.

[33] Mr. Galmani argues that Ms. Samnani has a greater income than he does, that she does not require spousal support from him, and that he is currently unemployed and unable to pay support.

The Court’s findings and disposition of the issue

[34] The court finds that Ms. Samnani has suffered a loss of advantage as a result of the marriage and its breakdown and is in need of financial support which Mr. Galmani is capable of providing. She is entitled to spousal support from Mr. Galmani on both a compensatory and non-compensatory basis.

[35] The court imputes an income of $24,500 to Ms. Samnani and $37,500 to Mr. Galmani, and shall order Mr. Galmani to pay spousal support to Ms. Samnani in the mid-range SSAG amount of $619.79 per month for three years.

ANALYSIS AND EVIDENCE

a) Did Ms. Samnani lend or provide money to Mr. Galmani that he is obliged to repay and, if so, what amount?

[36] Ms. Samnani testified that following their wedding, and during his sponsorship of her, Mr. Galmani demanded that she transfer her disposable income to him. She further testified that Mr. Galmani induced her to send the funds to him by informing her, falsely, that the money was being used to pay down the mortgage on the property that both of them owned and would occupy when she arrived in Canada. She later learned that the property they would occupy was rented, not owned and that the only property on which he had given a mortgage was a home in the U.K. that he owned with a woman he describes as his business partner. Ms. Samnani seeks an Order of restitution requiring Mr. Galmani to return her funds to her.

[37] Mr. Galmani acknowledges that he received funds from Ms. Samnani but asserts that their intention was that he hold the funds for her to facilitate her savings.

Legal framework

[38] The Supreme Court of Canada, in Rathwell v. Rathwell, (1978), distinguished between the remedies of resulting trust and constructive trust in the context of claims made where one spouse had become enriched at the expense of the other.[^3] In resulting trusts, courts require a common intention, manifested by words or acts, that one of the parties is acquiring property as a trustee whereas, in constructive trusts, no intention is required.

[39] Dickson J., as he then was, noted in Rathwell 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 of the case. Dickson J. held that 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.[^4]

[Emphasis added.]

[40] In the Supreme Court’s later decision in Pettkus v. Becker, (1980), Dickson J., as he then was, writing for the majority, noted the difficulty in discerning evidence of common intention in these 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.[^5]

[Emphasis added.]

[41] Dickson J. would not infer or presume a common intention where the trial judge had found none, either express or implied, so the woman’s claim based on resulting trust failed. However, Dickson J. held that the wife’s claim based on constructive trust should succeed. In Rathwell, the Supreme Court held that three requirements must be satisfied for an unjust enrichment to exist: an enrichment, a corresponding deprivation, and an absence of any juristic reason for the enrichment. If these three elements are proven, the right to relief is made out.[^6] Justice Dickson re-affirmed these elements in Becker:

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.[^7]

[Emphasis added.]

[42] When applying the principle of constructive trust, Dickson J. stated:

The principle of unjust enrichment lies at the heart of the constructive trust. “Unjust enrichment” has played a role in Anglo-American legal writing for centuries. Lord Mansfield, in the case of Moses v. Macferlan, put the matter in these words: “… the gist of this kind of action is that the defendant, in the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money”. It would be undesirable, and indeed impossible, to attempt to define all the circumstances in which an unjust enrichment might arise… The great advantage of ancient principles of equity is their flexibility: the judiciary is thus able to shape these malleable principles so as to accommodate the changing needs and mores of society, in order to achieve justice. The constructive trust has proven to be a useful tool in the judicial armoury.[^8]

[Emphasis added.]

[43] Where the court finds that there has been an unjust enrichment in relation to 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 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 the services rendered and the property in which the trust is claimed.[^9] A constructive trust is appropriate, for example, where there is a finding of fraud in relation to the particular property.[^10]

[44] In Meditel Inc. v. Baldhead Systems Inc., (2010), the Divisional Court upheld a restitutionary claim for a repudiatory breach of contract. Swinton J. stated:

The appellant argues that the trial judge erred in ordering damages because she made an express finding that the parties had no consensus ad idem on the services to be provided and the scope of the project (see pages 10 and 12 of the reasons). Therefore, the appellant argues there was no contract between the parties…

While the appellant argues that the trial judge erred in ordering rescission, as the status quo ante could not be restored, we see no error of law in her order that Baldhead return the monies paid by Meditel. As Professor John McCamus stated in the Law of Contracts, "Restitution is available to the victim of a repudiatory breach where there has been a total failure of consideration" (at page 644). In effect, this is what the trial judge ordered.[^11]

Applying the legal principles to the facts of this case

[45] Ms. Samnani testified that she was residing in London when Mr. Galmani began his sponsorship proceeding. The application process took a year and a half to complete, and Ms. Samnani remained in London during that time. Ms. Samnani testified that while she was in London, she had to pay her salary to Mr. Galmani. She was paying her expenses and paid the remainder of her income to him. She states that Mr. Galmani additionally wanted her jewelry and other effects as a dowry from her.

[46] The transfers of funds that Ms. Samnani made to Mr. Galmani were clearly not in the nature of a gift. In Serra v. Serra, (2007), the elements of a gift were described as follows:

A gift is the voluntary transfer of property without consideration (Birce v. Birce (2001), 2001 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.)).[^12]

[Emphasis added.]

[47] Ms. Samnani asserts, and I find, that Mr. Galmani falsely represented to her that they owned a property together and that he was using the funds she was sending him to pay down the mortgage on it. Ms. Samnani further asserts, and I find, that in reliance on Mr. Galmani’s representations, she transferred funds to him that he only partially returned to her when she had a particular need requested money from him.

[48] I find that Mr. Galmani made a fraudulent misrepresentation of the facts to Ms. Samnani and that she did not receive the interest in property that she believed awaited her upon her arrival in Canada. The essential elements of a fraudulent misrepresentation are as follows:

(a) The misrepresentation complained of was made by the defendant;

(b) The misrepresentation is false;

(c) The defendant knew when making the statement, it was false or was recklessly uncaring whether it was true or false; and

(d) The representation induced the plaintiff to act to their prejudice.[^13]

[49] On the basis of these facts, I conclude that Ms. Samnani is entitled to restitution of her funds.

[50] Mr. Galmani acknowledges that Ms. Samnani transferred £11,550 to him, the equivalent of $18,480 CDN. He prepared a summary of these transfers, which he tendered as an exhibit. His summary additionally lists transfers of funds that he claims to have made to her in the U.K. He states that he sent £4,209 to her, which reduced the net amount he had received from her to £7,340, or approximately $12,000 CDN.

[51] Ms. Samnani tendered a list of her transfers of funds to Mr. Galmani, supported by her bank statements:

• November 19, 2012 £2,000

• January 2, 2013 £210

• April 5, 2013 £820

• June 3, 2013 £550

• July 4, 2013 £550

• July 30, 2013 £1,300

• September 2, 2013 £1,400

• October 7, 2013 £860

• November 15, 2013 £1,500

• November 15, 2013 £700

• December 5, 2013 £800

• January 13, 2014 £1,070

• February 3, 2014 £2,000

TOTAL: £13,760 or $23,512.28

[52] Ms. Samnani acknowledges that during this period, she received some transfers of funds from Mr. Galmani. Of these amounts, which totaled £5,472.51, two of them, totaling £3,025, were accompanied by instructions to give the funds to an Imam, as a prayer and blessing tithe called “dasond”. Ms. Samnani therefore states, and I find, that over the year and a half from October 31, 2012, to July 17, 2013, Mr. Galmani transmitted £2,447.51, or the equivalent of $4,277.06, for Ms. Samnani’s own benefit, the majority of which were transmitted to Ms. Samnani’s sister, Munira Samnani’s bank account and (two transmissions of £250 each) into Ms. Samnani’s friend’s account.

[53] Ms. Samnani disputes the other amounts that Mr. Galmani claims to have given her but did not. In particular:

• September 28, 2012: £210 was given to Ms. Samnani’s sister, in exchange for £355 in cash that she gave to Mr. Galmani for the engagement band after the transaction was completed.

• October 12, 2012: Ms. Samnani states £1,200 that Mr. Galmani claims to have given her at Birmingham Airport in the U.K. was never, in fact, given to her, as she went to the airport with him to see him depart, and never required money from him.

• January 2, 2013: Ms. Samnani states £210 that Mr. Galmani claims to have transferred in payment for his ring was never transferred as the purchase had already been made in cash by Ms. Samnani’s sister, Munira Samnani.

[54] I found Ms. Samnani’s evidence well supported and convincing. Mr. Galmani’s explanation for the funds he received from Ms. Samnani makes little sense, having regard to the fact that Ms. Samnani had her own bank account in the U.K. and had managed her funds without difficulty for the seven years she spent in that country before meeting Mr. Galmani. His explanation is also belied by the frequency of the transfers in lesser amounts back to Ms. Samnani. I find that these reflect the control that Mr. Galmani was insisting on in acting as Ms. Samnani’s paymaster and doling some of her own money back to her at his discretion.

[55] The transfers that Mr. Galmani acknowledges having received from Ms. Samnani are understated, as appears from her bank records, and Mr. Galmani has failed to discharge the evidentiary burden on him of proving the return of the disputed amounts to Ms. Samnani for her own benefit. The explanations he gives for the disputed transfers (“Wife need money” and “Wife needed money for friend”) are vague and lacking in the specifics that Mr. Galmani recorded for even the smallest amounts when he transferred funds at her request.

[56] For the foregoing reasons, I find that Mr. Galmani was enriched at Ms. Samnani’s expense and without any juristic reason. He owes Ms. Samnani $19,285.22 ($23,512.28 - $4,227.06), and will be ordered to pay restitution to her in that that amount.

b) Does either party owe the other a payment to equalize their net family properties?

[57] Each of the parties claims an unequal division of family property from the other or, in the alternative, a payment to equalize their net family properties.

Legislative framework

[58] The court’s determination regarding division of family property is governed by s. 5 of the Family Law Act, R.S.O. 1990, c. F.3 [FLA]. It provides, in part:

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) A spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) The fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) The part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) A spouse’s intentional or reckless depletion of his or her net family property;

(e) The fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) The fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) A written agreement between the spouses that is not a domestic contract; or

(h) Any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[Emphasis added.]

Jurisprudence

[59] The Court of Appeal set out the analysis required by s. 5 of the FLA in Von Czieslik v. Ayuso, (2007). Lang J.A., speaking for the Court, stated:

Property is equalized under the FLA through the three-step process set out by Cory J. in Rawluk v. Rawluk, 1990 152 (SCC), [1990] 1 S.C.R. 70. First, a court determines the ownership of property under s. 4. Second, it calculates the equalization payment under s. 5(1). Third, and only after a determination of the first two steps, will a court turn its mind to what Cory J. described as “a last avenue of judicial discretion” provided by s. 5(6) to award an amount having regard to a spouse’s unconscionable conduct. This approach of determining ownership, equalization, and unconscionability, in that order, was confirmed in Berdette v. Berdette (1991), 1991 7061 (ON CA), 3 O.R. (3d) 513 (C.A.).[^14]

[Emphasis added.]

[60] The Court in Von Czieslik held that s. 5(5) permits an award of up to 100% of a party’s net family property to the other spouse.[^15]

[61] In Williamson v. Williamson, (2016), Mitrow J. awarded the wife an unequal division of net family property on the ground that, following the parties’ separation, the husband had withdrawn substantial sums from the parties’ joint line of credit, secured by the matrimonial home, and provided no accounting of those funds to the wife. Mitrow J. stated:

The respondent’s lack of financial disclosure, and his reckless financial conduct in eroding the equity in the matrimonial home, has exacted a significant emotional toll on the applicant who is struggling to make ends meet and doing her best to maintain the matrimonial home as a residence for herself and the children.

I have little hesitation in concluding that the respondent’s reckless erosion of the applicant’s equity in the matrimonial home post-separation, without the applicant’s concurrence, renders it unconscionable to equalize the parties’ net family properties.[^16]

[Emphasis added.]

[62] Section 5(6) is not the exclusive means available to the court to achieve an equitable distribution of family property upon the parties’ separation. In Rawluk, Cory J. made the following statement regarding how ownership of property is to be determined under the FLA:

The Family Law Act, 1986 does not constitute an exclusive code for determining the ownership of matrimonial property. The legislators must have been aware of the existence and effect of the constructive trust remedy in matrimonial cases when the Act was proposed. Yet neither by direct reference nor by necessary implication does the Act prohibit the use of the constructive trust remedy.[^17]

[Emphasis added.]

Applying the legal principles to the facts of this case

(i) The jewelry and clothing

[63] Ms. Samnani testified, and I find, that within two days after she arrived in Canada, Mr. Galmani took the jewelry that he and his family had given to her at the time of their wedding. At some point, he also took several formal saris that Ms. Samnani had purchased for their wedding. He still had the jewelry and clothes in his possession when Ms. Samnani left the home.

[64] Ms. Samnani obtained a photograph of the jewelry and clothes and a signed acknowledgment from Mr. Galmani that he was retaining them. She explained how this came about and I accept the accuracy of her account. She states that she did not feel comfortable leaving the home with her belongings and she wanted to let Mr. Galmani know that she was leaving. She therefore remained there with a girlfriend, waiting for him, until he returned from work.

[65] Ms. Samnani testified that Mr. Galmani told her that he wanted the jewelry and clothing that he and his family had given her. In her Financial Statements, Ms. Samnani values the wedding jewelry at $6,090 and the clothing and formal saris that she had purchased at $5,000. Mr. Galmani permitted her to retain the jewelry that her own family had given her, which she valued at approximately $3,000.

[66] Prior to leaving, Ms. Samnani had consulted a lawyer for advice. She was advised to take a photograph of her jewelry if Mr. Galmani refused to let her leave with it. On July 14, 2014, prior to her departure, she told Mr. Glamani that she wanted proof of what he was retaining, and he signed an acknowledgment that she had prepared. It stated:

To whomsoever it may concern, this is to inform that I have received, Gold, clothes, cosmetics, shoes, bags and all gifts from Rozina. This is a proof of hardcopy what I have received today. She is leaving this house only with the clothes, jewelry and her cosmetics.

[67] In her Application dated October 26, 2015, drafted by a lawyer on her behalf, Ms. Samnani asserted that Mr. Galmani took the bulk of her jewelry and other belongings, including many of her clothes, after she arrived in Canada. At trial, Ms. Samnani stated that Mr. Galmani took her jewelry from her within days after she arrived in Canada, and when she separated from him, the jewelry was still in his possession.

[68] Mr. Galmani disputed Ms. Samnani’s account of their separation. He stated that on the date of separation, he was at work, suggesting that they could not have had the conversation that Ms. Samnani recounted and relied on. Mr. Galmani additionally tendered a letter dated June 19, 2015, that Ms. Samnani’s lawyer, Toni E. Wharton, had sent to him. He implied that the letter, which stated, “I understand that upon separation, you took Ms. Samnani’s jewelry and clothes…,” proved that he had not received Ms. Samnani’s jewelry and clothes when she arrived in Canada four months earlier.

[69] Ms. Samnani explained that when Ms. Wharton stated that upon separation, Mr. Galmani had “taken” Ms. Samnani’s jewelry, she meant that he had “retained” the jewelry that he had taken from her when she arrived in Canada.

[70] Later in his testimony, Mr. Galmani stated that on the day before Ms. Samnani left, he gave her her health card. On the following day, she informed him that she was leaving. He stated that he came home and she was ready with her backpack. This evidence supports Ms. Samnani’s testimony that there indeed was a conversation between them before she departed.

[71] Mr. Galmani later sought to deny that he had retained Ms. Samnani’s possessions. However, he eventually consented to an Order of Snowie J. dated October 25, 2016, requiring him to return the jewelry to her. I accept Ms. Samnani’s evidence that Mr. Galmani failed to return her gold chain and 12 other items of formal saris and purses, notwithstanding the Order requiring him to do so.

[72] Ms. Samnani’s testimony is consistent with the assertions she made in the Financial Statements that she swore in the proceeding. On March 18, 2015, Ms. Samnani swore a Financial Statement in which she stated that on the date of marriage, she was in possession of $3,000 in gift jewelry from her own parents. She additionally stated that on the date of their marriage, she was in possession of wedding jewelry received from Mr. Galmani’s family, which she valued at $6,090. Clothing, which she valued at $5,000, was in Mr. Galmani’s possession. The majority of those items were returned to her pursuant to the Order of Justice Snowie dated October 25, 2016, but one gold chain and about 12 items were not returned.

[73] Mr. Galmani, in his first Financial Statement, sworn December 21, 2015, does not explicitly acknowledge possession of the wedding jewelry, and assigned it a value of “TBD” (“to be determined”). However, in the Minutes of Settlement that the parties signed on October 25, 2016, he agreed:

Respondent shall provide to the Applicant, via counsel, her wedding clothing and jewelry, specifically including: one pair of Kaugan, two rings (twin ring), necklace earrings set, one mangan sutra, pendant and studs, and further pendant and studs if last items (further pendant and studs) are in his possession.

[74] Mr. Galmani, in his testimony, denied that he had demanded Ms. Samnani’s jewelry or retained it when she left. Yet it is evident from his acknowledgement and the parties’ later Minutes of Settlement, that he did retain it.

[75] The significance of Mr. Galmani appropriating Ms. Samnani’s jewelry and clothes when she arrived in Canada and refusing to return it to her when she left is not so much in the value of the items but the fact that such deprivation was used as an instrument of control. Depriving Mr. Samnani of it was an obstacle to her converting it into funds that would have given her some measure of independence when the parties were together and imposed an added financial hardship on Ms. Samnani when she left.

[76] I accept Ms. Samnani’s testimony that Mr. Galmani has failed to return all of her jewelry and clothes to her pursuant to the consent Order of Snowie J. dated October 25, 2016. As there is no practical way of enforcing his compliance to return the remainder of the items, he will be ordered to pay additional restitution to Ms. Samnani in the amount of $3,000.

(ii) The parties’ Net Family Property as reported in their Financial Statements

[77] In Ms. Samnani’s Financial Statement sworn March 18, 2015, she claims no Net Family Property. She states that on the date of separation, she had assets worth $4,403.94 in her possession, consisting of the jewelry, valued at $3,000 that had been gifted to her by her parents, and $1,403.94 in chequing accounts in Canada. Of that amount, the $3,000 of jewelry was excluded property and $17,260 was deducted for assets owned on the date of marriage, when she still had the $6,090 of wedding jewelry gifted to her by Mr. Galmani’s family, and $5,000 of clothing and personal belongings. Ms. Samnani’s account of her assets and liabilities did not change substantially from the time of her first Financial Statement to the final Financial Statement that she swore on December 4, 2017.

[78] In Mr. Galmani’s first Financial Statement, sworn December 21, 2015, also calculated his Net Family Property at nil. He valued his assets on the date of separation at $137,055.41, including :

• A 50% interest in a home at 214 Conniburrow Blvd, in Coniburrow, Milton Keynes, U.K., that he co-owned with Maria Janiina Chabura, estimated to have a value of £70,000, or $123,000 on the date of separation;

• Jewelry, which he valued at “TBD”;

• Savings and chequing accounts, which he valued at $12,855.41.

[79] Mr. Galmani deducts $245,236.58 from the value of his assets based on the following date of marriage assets:

• $101,250 as his 50% share of the U.K. property in Milton Keynes,

• $13,662.01 of household goods and personal belongings, which he said consisted of $4,500 of household furniture, $6,612.92 of “amanat” jewelry which he said he had given to Ms. Samnani, and $2,250 in jewelry which he said his parents had given to him for his wedding, and a $300 engagement ring that Ms. Samnani had given to him;

• $20,056.47 in savings, chequing, and investment accounts, and $15,304.50 which he stated was owed to him by Compass Group as back pay ($15,000) and by Altaf Mohamed (£203, or $304.50) less $80,110.94, being debts owed to Barclays Bank and Tesco Bank in the U.K. and Scotia Bank and HDFC Visa on the date of marriage.

And the following debts owed on the date of separation:

• $85,641.15 being his 50% of the mortgage on the U.K. property

• $31,122.08, owed to Barclay’s Bank;

• $32,880 owed to Tesco Bank in the U.K.

• $18,477.64 owed to his parents and brother in law;

[80] Based on the foregoing, he declared a negative $108,181.17 Net Family Property, which he adjusted to nil for the purpose of the calculation of Equalization Payment.

[81] In his final Financial Statement sworn September 21, 2017, Mr. Galmani declares a nil value for his Net Family Property but arrives at the calculation differently than in his first Financial Statement. In the final Statement, he declares the value of his property on the date of separation as $184,317.41, consisting of the following:

• $125,400 his interest in the U.K. home

• $45,062 his interest in the property in India

• $1,000 his household contents

• $12,855.41 his bank and investment accounts

[82] From the value of his assets, Mr. Galmani deducts his debts on the date of separation ($175,073.64, including $85,642.25 for his share of the mortgage on the U.K. property) and the net value of property owned on the date of marriage ($5,635.67), and excludes $53,312, being the value of his interest in the property in India, on the basis that it was inherited, leaving a negative balance of $49,703.90, which he adjusts to nil for the purpose of the calculation, as a spouse is not entitled to claim a negative Net Family Property.

[83] Between his first and final Financial Statements, Mr. Galmani had made the following changes:

• He deducted his 50% share ($85,672.25) of the mortgage on the U.K. property on the date of marriage, which he had omitted from his first Financial Statement, which reduced the deduction he claimed for date of marriage net assets;

• He increased the net value of his assets owned on the date of marriage by adding approximately $10,000 to the value of his bank accounts and investments, by disclosing several previously undisclosed accounts, the principal ones being account no. ***0700, a savings with a balance of $3,188.96 on the date of marriage and nil on the date of separation, and account no. ***1820, another savings account, which he stated was jointly owned with his mother, in which he acknowledged having an interest worth $6,975 on the date of marriage and nil on the date of separation.

• He valued his assets on the date of separation at $184,317.41 (an increase of $47,262 over the amount claimed previously), by adding 25% of the value of inherited family farmland in India, amounting to $45,062, but claimed an exclusion of the same amount, because it was inherited;

• He excluded the $8,250 of jewelry he said he had received from his parents and family at his wedding.

[84] As noted above, Mr. Galmani disclosed a number of bank and investment accounts in his final Financial Statement dated September 22, 2017 that he had not disclosed in his first Financial Statement. He first disclosed these accounts in his Financial Statement sworn February 27, 2017. The Financial Statements in February and September 2017 refer to the following previously undisclosed accounts in Part 4(c): Bank Accounts, Savings, Securities and Pensions:

• Bank Acc’t No. ***1820, DCB FD India – Savings – Middlesex which Mr. Galmani (the Respondent) states is owned 50% by him and 50% by his mother, Anwar Galmani;

• Bank Acc’t No. ***700, DCB FD India – Savings – India, referred to in Mr. Galmani, Sr.’s letter, which Mr. Galmani (the Respondent) states is owned 50% by him and 50% by his mother;

[85] In the February and September 2017 Financial Statements, Mr. Galmani ascribes the following values to his interest in all of the accounts, including those he says are beneficially owned entirely by himself:

• $30,221.28 on the date of marriage;

• $12,855.41 on the date of separation; and

• $2,609.79 on the date of the Financial Statement.

[86] Mr. Galmani gives no value to the two accounts he says are beneficially owned 100% by his mother, from which I infer that the values he gives for the jointly-owned accounts are the values of his interest only. Mr. Galmani disclosed the following balances of the accounts (including, presumably, both his own and his mother’s interest in the account) on the dates of marriage and separation as follows.

Account Date of Marriage Date of Separation

• 9422 $553.11 $4,336.43

• 9589 $7,523.76 $0

• 7783 $20.10 $3.10

• 4091 Nil $41.26

• 7833 $5,012.78 $7.36

• 2884: $2,790.40 (£1,744) $3,404.80 (£2,128)

• 3648: -$15.64 (-£10.40) $31.68 (£18)

• 7917: $48.12 (£30.08) $0.11 (£0.06)

• 0700:* $3,188.96 $0

• 1820:* $6,975.85 $0

• 4781: $322.40 $344.94

• 0054: $440 $600

• 0061: $440 $600

• 7375: $110 $270

• 7084: $110 $270

• 5841: $17,000 $38,181

TOTAL: $44,519.84 $48,090.68

[87] Mr. Galmani testified that before he went to India for the parties’ wedding, he gave his parents a general power of attorney. He states that while he was in India, he helped his parents with their banking. They were moving from India, and preparing to move to Canada. They were transferring their savings into a bank account, and Mr. Galmani was investing their money in shares. Mr. Galmani states that his share was 10%. Additionally, Mr. Galmani states that when he married, his brother in law wanted to invest but had no account, so Mr. Galmani acted as a vehicle for his brother’s investments.

[88] Mr. Galmani produced a letter dated September 10, 2017, from his father, Amirali Galmani, and other members of his family, “To whomever it may concern,” stating, in effect, that Mr. Galmani, Sr., his wife, and their younger son had been using account no. ***4781 as a “one family account” and that his wife has a Power of Attorney that allows her to deal with the account jointly with the Respondent, Akbar Galmani, since January 2004. Mr. Galmani Sr. states that he and his wife were transferring their funds, saving, and income into the account so that they could access the money from India over the internet. He states that they were planning to move to Canada and have since done so, and that their younger son moved to the U.K. in early 2014. He states that he is enclosing a spreadsheet of their transactions between February 2013 and July 2014. He adds that on their instructions, Mr. Galwani (the Respondent) had been investing their money with Trusted Shares Limited in Mumbai, India.

[89] The letter from Mr. Galmani Sr. is not admissible. It is hearsay and neither Mr. Galmani Sr. nor his wife or Mr. Galmani’s younger brother were called as witnesses to substantiate its contents. Mr. Galmani sought to rely on the letter to avoid an inference that all of the funds in the accounts that Mr. Galmani (the Respondent) disclosed, including the two he disclosed for the first time in his Financial Statement sworn February 27, 2017, belonged to him.

[90] I draw an adverse inference from Mr. Galmani’s unexplained failure to call his father or mother as witnesses, and conclude that their evidence, if given under oath, would not support his position. On this basis, I am attributing the full value of the balances in the accounts to Mr. Galmani for the purpose of calculating his Net Family Property. This adds little to the ultimate amount, as the balances of the previously undisclosed accounts on the date of marriage will be added to Mr. Galmani’s deductions from the value of his assets on the date of separation.

[91] Mr. Galmani produced, as a valuation of the U.K. property, an opinion letter dated November 12, 2015, from Wilson Peacock, Estate Agents, which suggests a price of £135,000 for the property, being the equivalent of $216,000.

[92] The same estate agent states that he would have listed the property at £150,000 in July 2014, with a view to a sale at £140,000 or slightly more, being the equivalent of $224,000. Another agent, Prim & Property, provided a letter dated September 5, 2017, giving prices at which other properties in the area sold between February 2013 and February 2014, ranging from £130,000 in February 2013, to £145,000 in February 2015.

[93] Although not, in themselves, admissible evidence, I will exercise my discretion and accept them as supporting Mr. Galmani’s admission that the value of his 50% interest in the property on the date of separation (July 14, 2014), was $125,400.

[94] I do not allow the following deductions claimed by Mr. Galmani as there was insufficient evidence to substantiate them:

• $15,000 he claims to have been owed by Compass Group as back pay on the date of marriage;

• $304.50 he says he was owed by Altaf Mohamed;

• $18,477.64 that Mr. Galmani claims for the debt he owed to his parents and brother in law;

• $4,000 for the Mahr, as this issue was settled by the parties before Snowie J.;

• $8,250 and $1,300 for jewelry owned on the date of marriage, as there was insufficient evidence to substantiate their values; and

• I do not allow the full amount of the mortgage of $85,642.25, as there was no adequate explanation given at trial for the fact that the mortgage, which was $74,679.33 on the date of marriage, increased to $85,642.25 on the date of separation, and declined again to $77,780.17 on the date of the Financial Statement (September 22, 2017). I will allow the deduction of the mortgage in the same amount as on the date of marriage, namely, $74,670.33.

[95] Based on the foregoing, I find that Mr. Galmani’s Net Family Property at separation was $32,866.60, being the difference between his assets and his debts at separation. His assets on separation (excluding the India property) totalled $174,490.68. His debts on separation totalled $141,624.08. Because his debts outweighed his assets on the date of the marriage, his net assets on the date of marriage was nil, for the purpose of this calculation. Thus, his net assets increased from nil to $32,866.60 over the course of the marriage.

[96] I find no basis upon which to depart from the equalization formula and to order an unequal division of family property.

[97] Based on the foregoing, Mr. Galmani will be required to make an Equalization payment to Ms. Samnani in the amount of $16,433.30.

c) Is Ms. Samnani entitled to receive spousal support from Mr. Galmani and, if so, in what amount?

Legislative framework

(i) Purpose of Spousal Support

[98] The Supreme Court of Canada, in Moge v. Moge (1992), held that the purpose of spousal support is to relieve economic hardship resulting from marriage or its breakdown. In her concurring reasons, McLachlan J., as she then was, stated:

… the judge’s order should…grant relief from any economic hardship arising from the breakdown of the marriage. The focus here, it seems to me, is not on compensation for what the spouses have contributed to or gained from the marriage. The focus is rather post-marital need; if the breakdown of the marriage has created economic hardship for one or the other, the judge must attempt to grant relief from that hardship.[^18]

[Emphasis added.]

[99] The Court further held, in M v. H, (1999), that the spousal support provisions of the FLA help protect the economic interests of individuals in intimate relationships. When a relationship breaks down, the support provisions help ensure that a spouse who has contributed to the couple’s welfare in intangible ways will not find himself or herself “utterly abandoned”.[^19]

(ii) General entitlement to support

[100] Mr. Galmani’s and Ms. Samnani’s marriage was of short duration and does not presumptively give rise to an entitlement to support to equalize their respective standards of living. As L’Heureux-Dubé, J. stated in Moge:

[M]arriage per se does not automatically entitle a spouse to support,” and the support provisions of the Divorce Act are not a “…general tool of redistribution which is activated by the mere fact of marriage.”[^20]

[101] Continuing, she stated:

“As marriage should be regarded as a joint endeavour, the longer the relationship endures, the closer the economic union, the greater will be the presumptive claim to equal standards of living upon its dissolution…”[^21] [Citations omitted.]

Basis of Spousal Support

[102] The courts, in interpreting sub-section 15.2(6) of the Divorce Act, have based orders for spousal support on: (a) compensatory, (b) contractual, and (c) non-compensatory considerations.

(i) Compensatory support

[103] Because marriage is a joint endeavour, spousal support orders are designed to be compensatory, to bring about an equitable sharing of the benefits and burdens of the relationship, having regard to all the circumstances, including the advantages each of the parties derived from their relationship.

[104] Conrad J.A. of the Alberta Court of Appeal held that:

Essentially, compensatory support intends that both spouses profit from the joint venture of marriage. The question is not what the disadvantaged spouse would have achieved had he or she not entered into the marriage. Rather the question is what was that spouse’s contribution to the marriage and was the other spouse advantaged by that contribution. If so, does equity demand a sharing of any advantage gained should the benefits of an advantaged spouse be apportioned. In practical terms, the issue will generally revolve around whether one spouse has gained an advantage in his or her ability to earn income or acquire assets that should be shared for at least some period of time.[^22]

[Emphasis added.]

[105] Compensatory support generally plays a lesser role in marriages of short duration than it does in longer marriages. However, this is not invariably the case. Ms. Samnani’s marriage to Mr. Galmani was of short duration, and produced no children, and her efforts during the parties’ short marriage do not appear to have produced an occupational advantage to Mr. Galmani, for which he might be obligated to compensate her.

[106] That said, Ms. Samnani left her successful career as a Front Desk Manager in the U.K. to marry Mr. Galmani. She had secure employment in the U.K. at the hotel where she had worked for seven years and was a valued employee.

[107] Ms. Samnani testified that in the U.K., when employed as a Front Desk Manager, she earned a salary of £14,589, or the equivalent of $24,750 CDN, from April 2012 to March 2013. From March 26, 2013: her salary increased to £20,000, or $34,000 CDN.

[108] In addition to her regular salary as a Front Desk Manager, Ms. Samnani earned tips, from tourists or from other companies, when she booked tours, or arranged transportation to the airport. The tips were paid in cash and were not taxed. Tips were paid to employees; commissions were paid to the Hotel Manager. She averaged £500 per month in tips and commissions, or £6,000 per year. That would increase her income to $44,000 per year.

[109] Ms. Samnani testified that her lifestyle in the U.K. was better than it has been in Canada since her separation from Mr. Galmani. In the U.K., she says, she was able to buy anything she needed. When she moved to Canada, she gave up a secure employment and her social life.

[110] Ms. Samnani moved to Canada, where her experience has been of little value to her. In spite of her best efforts, she was barely earning minimum wage at the time of the trial. She became dependent on her marriage to Mr. Galmani for a combined income that offered equivalent standard of living to the one she had given up in the U.K. In these circumstances, compensatory spousal support is appropriate, notwithstanding the short duration of her marriage.

(ii) Contractual entitlement

[111] Contractual entitlement flows from the express or implied agreement between the parties to the marriage. Mr. Galmani and Ms. Samnani had a reasonable expectation, from their marriage, that they would derive an equal benefit from their respective contributions to the marriage.

[112] Mr. Galmani asserts that the marriage was fraudulent, and conceived by Ms. Samnani as a means to gain entry to Canada. His opinions were not substantiated by the evidence at the trial. His argument, having no evidentiary basis, is based on pure speculation, and is not accepted.

(iii) Non-compensatory Support

[113] Non-compensatory support is a residual basis for ordering support “where it is fit and just to do so.” Ms. Samnani should be given a reasonable opportunity to find suitable employment for herself in the workplace. She has been hampered, in that regard, by Mr. Galmani’s failure to provide adequate support for her, and by his initial withholding of her jewelry and clothes.

Objectives of Spousal Support

[114] Orders for spousal support are designed to achieve the objectives set out in s. 15.2(6) of the Divorce Act, which holds that support orders should:

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

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

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

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.[^23]

[115] I will address each of these objectives, mindful of the admonition that no one objective predominates; rather, all four objectives must be balanced in the context of the circumstances of the particular case.[^24] I will then assess the considerations that emerge to determine an appropriate amount of support.

(i) Economic advantages or disadvantages from the marriage or its breakdown (s. 15.2(6)(a))

[116] Compensatory support is based on the economic advantage or disadvantage that each of the parties has derived from the marriage.[^25] I adopt my earlier comments in this regard and find that Ms. Samnani suffered a loss of economic advantage by reason of the marriage and separation which should be compensated by an Order for spousal support.

(ii) Economic Hardship (s. 15.2(6)(c))

[117] Courts have differed as to whether the term ‘hardship’, as used in the Divorce Act, refers to an inability to meet basic needs or should be more liberally interpreted to refer to an inability to meet the recipient’s needs considered in their context.[^26] Whichever interpretation prevails, Ms. Samnani has suffered economic “hardship” from the breakdown of her marriage to Mr. Galmani. Without financial support from him, she has been unable to meet her basic needs or to maintain a standard of living equivalent to that which the parties maintained during their marriage, and which Mr. Galmani has continued to enjoy since the parties’ separation, as reflected by his lengthy trip to the U.K.

(iii) Self-sufficiency (s. 15.2(6)(d))

[118] Section 15.2(6)(d) of the Divorce Act promotes the objective of economic self-sufficiency only if it is “practicable” to do so and where the objective can be realized “within a reasonable period of time”. The Court of Appeal pointed out in Fisher v. Fisher, (2008), that self-sufficiency, with its connotation of economic independence, is a relative concept.[^27] It should be interpreted not as the ability to meet basic expenses, but as the ability to support a standard of living that is reasonable, having regard to the economic partnership that the parties enjoyed and could sustain during cohabitation, and could reasonably anticipate afterward. It requires consideration of:

(a) The parties’ present and potential incomes;

(b) Their standard of living during cohabitation;

(c) The efficacy of any suggested steps to increase a party’s means;

(d) The parties’ likely post-separation circumstances (including the impact of equalization of their property);

(e) The duration of their cohabitation; and

(f) Any other relevant factors.[^28]

[119] The Court of Appeal stated in Fisher:

Self-sufficiency is often more attainable in short-term marriages, particularly ones without children, where the lower-income spouse has not become entrenched in a particular lifestyle, or compromised career aspirations. In such circumstances, the lower-income spouse is expected either to have the tools to become financially independent or to adjust his or her standard of living.

In contrast, in most long-term marriages, particularly in traditional long-term ones, the parties’ merger of economic lifestyles creates a joint standard of living that the lower-income spouse cannot hope to replicate, but upon which he or she has become dependent. In such circumstances, the spousal support analysis typically will not give priority to self-sufficiency because it is an objective that simply cannot be attained. See Linton at p. 27 O.R.[^29]

[Emphasis added.]

[120] Although Ms. Samnani’s marriage to Mr. Galmani was short, the disruption that Ms. Samnani suffered to her earning capacity cannot be viewed in isolation. She gave up an established career as a Front Desk Manager in the U.K. to marry Mr. Galmani. The marriage and its ensuing breakdown deprived her of the lifestyle that she enjoyed in India or the one that she reasonably expected as a result of her marriage to him.

[121] Mr. Galmani caused Ms. Samnani to become financially dependent on him by giving up her employment in the U.K. in return for his sponsorship of her immigration to Canada. It is unlikely that her standard of living, in the immediate future, will equal that which she was capable of earning for herself in the U.K., or that she could reasonably have anticipated during their marriage and which Mr. Galmani is still able to maintain for himself. The goal of self-sufficiency is not practicable for her at the present time, having regard to her limited income-earning capacity.

[122] Mr. Galmani does not claim that his wife is intentionally under-employed and the evidence does not support such a finding. Quinn J. noted in Thomas v. Thomas, (2003), that the obligation that s. 33(9)(c) of the FLA imposes on a claimant for spousal support to show that she has contributed to her own support does not require her to prove that she has made reasonable efforts to become self-supporting. It only requires her to establish that she took some reasonable steps.[^30] In Thomas, the wife was unemployed and the judge imputed income to her based on her failure to present a plan for her own support. Ms. Samnani, unlike the wife in Thomas, made substantial efforts to support herself, maintaining a grueling seven-day-a-week employment for as long as her one-year contract lasted, and immediately obtained alternative employment after that employment ended.

[123] In Mann v. Mann, (2009), Herman J. distinguished Thomas on the basis that the issue was not one of underemployment but whether reasonable efforts had been made to become self-supporting. The evidentiary onus in Thomas, he said, was to establish “that some reasonable steps have been taken”.[^31]

[124] Ms. Samnani secured what employment she could. It remains to be seen how long she will require support before she finds more suitable employment or can adjust her standard of living to one commensurate with her own income-earning ability. In the meantime, she should be given spousal support to enable her to enhance her skills to become self-sufficient.

(iv) Summary of Objectives

[125] In summary, then, Ms. Samnani pursued an independent career in the U.K. until Mr. Galmani agreed to sponsor her emigration to Canada, and undertook to the Government of Canada to support her for three years following her arrival. In giving up her economic self-sufficiency to marry Mr. Galmani, she suffered an economic disadvantage in the form of a compromised career. She cannot be expected to have achieved, in this short a time, the standard of living she was entitled to expect, based on the parties’ brief combined income. Taking the steps needed to secure suitable employment in Canada, commensurate with her background and skills, will eventually enable her to achieve self-sufficiency according to that standard of living, and she is entitled to the spousal support that she needs, and that Mr. Galmani is capable of providing, to pursue that path.

Factors to be Considered

[126] In addition to the objectives set out in sub-section 15.2(6) of the Divorce Act, the court must consider the factors listed in sub-section 15.2(4), namely, the “condition, means, needs and other circumstances” of each spouse, including the length of time they cohabited, the functions each performed during their relationship, and any order, agreement or arrangement they have made relating to the support of either spouse.

[127] McLachlin J., as she then was, stated in Bracklow:

[W]here the extent of the economic loss can be determined compensatory factors may be paramount. On the other hand “in cases where it is not possible to determine the extent of the economic loss of a disadvantaged spouse….the court will consider need and standard of living as the primary criteria together with the ability to pay the other party”: Ross v. Ross (1995), 168 N..R. (2d) 147, at page 156, per Bastarache, J. A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in light of the stipulated objectives of support, and exercise his or her discretion in a manner that equitably alleviates the adverse consequences of the marriage break down.[^32]

[Emphasis added.]

(i) Mr. Galmani’s ability to pay (s. 15.2(4) – His Means)

Mr. Galmani’s Line 150 Income

[128] Mr. Galmani testified that he emigrated from India to the U.K. in 2004. While in the U.K., he earned £14,000 to £14,500 per year.

[129] Mr. Galmani testified that in July 2012, he and a friend, Maria Chabura, became partners in the purchase of a property at 214 Conniburrow Blvd., Conniburrow, Milton Keynes, England. He stated that she wanted to buy the property and he had no money to invest. He therefore obtained two bank loans, for £25,000 each, secured by mortgages on the property, one for the down payment and one for the balance of the purchase price. They each paid equal amounts to the solicitor who assisted with the purchase. She was supposed to contribute £25,000, and was putting £1,300 to £1,600 into his account monthly, as her contribution to the mortgage.

[130] Mr. Galmani testified that he liked the U.K. but found the cost of living very high. In 2008, he decided to move to Canada to enhance his education, and applied for permanent residence. He received a job offer in October 2012, and moved to Canada. However, the visa process took longer than he had expected, and before he arrived, the position was taken. He searched for other available employment and in November 2012, found a position as a tool and dye maker. He applied at the end of December 2012, and received an offer in January 2013, for a position with benefits and future benefits.

[131] Mr. Galmani gave up that position, he says, in order to travel to India to marry Ms. Samnani. Upon his return to Canada, he secured employment with HCR Personnel Solutions.

[132] Mr. Galmani produced a letter dated April 10, 2013, from his employer, confirming that Mr. Galmani was at that time a registered employee of HCR Personnel Solutions Inc., working on a temporary assignment as a Machine Operator. He had been working for HCR since November 16, 2012, and was working approximately 40 hours per week, with overtime as required at a pay rate of $16.56 per hour. That translates to an annual income of $34,444.80 ($16.56 x 40 hours x 52 weeks).

[133] After separation, he worked for Pinacle, as a permanent employee taking orders. He states that he was unable to do the job. He quit and went to the U.K., in December 2014, as he says, “in order to survive”. After recovering, he returned to Canada in September 2015. There was no medical evidence that substantiates Mr. Galmani’s evidence regarding his depression or inability to work. I find that he was voluntarily unemployed for a period following the separation and that it would not be fair to base his income for support purposes on his reported income in 2015 as appears on Line 150 of his Notice of Assessment for that year.

[134] Mr. Galmani testified that following his return, he began focusing on his career. He registered for Humber Community College. In May 2015, he registered for a pre-apprentice program as an electrician. In August 2015, he secured employment with an electrical company. He began as a helper. In July 2017, they registered him as a pre-apprentice electrician and since then he has worked at $13 per hour now as entry level apprentice. His salary increased with minimum wage in January 2018.

[135] Mr. Galmani later secured permanent employment with HBJ Electrical, where he was employed at the time of the trial. He produced a bi-weekly pay stub from HBH Electrical for the week ended September 10, 2017, showing that he worked 70 hours and was paid $910, or $770.23 after deductions. There is no explanation as to why his hours were less than 40 per week. His hourly wage appears to have been $13 per hour, which translates to a salary of $520 per week or $27,040 per year, which accords with his Notice of Assessment for 2014.

[136] Mr. Galmani’s income for the purposes of spousal support is presumptively his Line 150 income based on his most recent Notice of Assessment. Mr. Galmani produced his Notices of Assessment for 2013 to 2015. They disclose the following Line 150 income:

• 2013 $23,805 (T4 only, showing empl’t income only).

• 2014 $27,572

• 2015 $23,336

• 2016 $15,753

[137] Mr. Galmani’s Line 150 income for 2015 is presumptively his income for support purposes, but it is not conclusive. If the evidence discloses that the amount reported at Line 150 of his Notice of Assessment would not be the fairest basis for determining his income, the court may either average his last three years of his income pursuant to s. 17 of the Federal Child Support Guidelines [FCSG], or impute an income to him pursuant to s. 19.[^33]

[138] Section 19 of the FCSG provides that, in appropriate circumstances, that is, where the methods set out in ss. 16 and 17 do not produce the fairest result, the court may decline to base its determination of the spouse’s income on their most recent Line 150 income, or on the average of their most recent three years of Line 150 income. Instead, the court may impute an alternative income pursuant to s. 19.

[139] In particular, the court may impute a greater income to Mr. Galmani under s. 19(1)(f) of the FCSG where, “the parent or spouse has failed to provide income information when under a legal obligation to do so”. The court may consider a qualified Income Valuator’s report in determining whether the payor spouse’s failure to provide financial disclosure pursuant to s. 19(1)(f) makes it unfair for the court to base its determination of the spouse’s income for support purposes on his Line 150 income.

[140] It is clear from the evidence that Mr. Galmani produced that he has a property in the U.K. that is occupied by his co-owner and is capable of being rented, if it is not, in fact, rented. Mr. Galmani has failed to produce evidence of the rental value of the property. I find that a rental value of $1,250 per month would be reasonable for a residential property of that value. While I do not base my assessment of its rental value on this, I note that the Zoopla site ascribes a rental value of £800, or $1,280 per month to 214 Conniburrow Blvd., Milton Keynes. $1,250 would be a modest rental amount for a property of its kind in Ontario. I impute half that amount, or $625 per month, or $7,500 per year, as Mr. Galmani’s share of the rental value of the property. I do not have any information about Mr. Galmani’s income tax bracket, so I will gross up the rental income by 25% to $9,375.

[141] Based on Mr. Galmani’s past income and the letter from his employer in 2013, I find that he is capable of earning $30,000 from his employment and impute a total of $39,375 to him for support purposes ($30,000 + rental income of $9,375 per year).

(ii) Ms. Samnani’s income (s. 15.2(4) – Needs)

[142] A determination of Ms. Samnani’s needs requires a consideration of her capacity to contribute to her own support,[^34] the measures available for her to become self-sufficient,[^35] and the length of time and the cost she will incur to take those measures.

[143] The parties do not own substantial property or a matrimonial home. The support that Ms. Samnani requires in order to establish herself independently should therefore not be reduced based on the availability of such resources to her.

[144] Almost immediately after the parties’ separation, Ms. Samnani secured two jobs from which, in combination, she was able to earn a livelihood. He had no references, so when job interviews resulted in an offer, she accepted the positions. She offered to produce all of the emails she sent in her efforts to find employment.

[145] Ms. Samnani’s first paid job in Canada was after the parties’ separation, in June 2014. From 2014 to 2015, she needed two jobs, and worked seven days per week, to earn enough income to sustain herself.

[146] She first secured a part-time position with Petro Canada, working weekends in customer service, earning $11.50 per hour for 12 to 17 hours per week. She was called when needed, and earned a maximum of $10,166 from that employment, for 17 hours per week x $11.50 = $195.50 per week.

[147] During the week, Ms. Samnani worked on a one-year contract in a reception/administration capacity for Contemporary Security, who provided security for the Pan American Games in 2015. The contract was from August 8, 2014, to August 30, 2015. That year, she earned $33,000 per year gross. From the combination of her part-time employment with Petro-Canada and her contract position with Contemporary Security, Ms. Samnani was able to earn a total between $43,100 and $47,000 that year.

[148] After Ms. Samnani’s contract position ended on September 1, 2015, she obtained another position with Petro Canada, earning $1,100 or $1,200 per month. At $1,150 per month x 12 months, her annual income from that position was $13,800 and with her part-time weekend employment, she was able to earn a total of $23,966 ($10,166 + $13,800) from September 1, 2015 to August 31, 2016.

[149] Ms. Samnani produced her Notices of Assessment for 2014 to 2017, which disclosed the following Total (Line 150) Income:

• 2014: $17,324

• 2015: $37,892

• 2016: $22,746

[150] After Ms. Samnani’s employment with Petro Canada ended, she secured her current position with Massage Addict, where she earned $14 per hour. She does not receive tips but receives a $5 bonus for selling memberships. Ms. Samnani’s income from her current employment depends on the business. On average, she worked 25 to 30 hours per week. At $14 per hour x 27 hours per week, her income was $378 per week, or $19,656 per year. That was her income at the time of trial. Her pay stub for September 1, 2017, showed an income-to-date of $12,646, representing an average of $1,580 per month for the eight months to that point. This translates to an annual income of $18,960.

[151] Ms. Samnani’s most recent financial statement, sworn December 4, 2017, discloses a deficit in her annual income. The difference between her expenses of $34,609.44 and her income of $22,646 was $11,963.44. She testified that to make up that deficit, she used a credit card, and loans from two friends. Her debts to friends at the time of the Statement were $10,780, and in addition, she owed $1,403.94 to two banks. Her debt at the time of separation was $129.67.

[152] The most current evidence of Ms. Samnani’s income is her earnings statement from Massage Addict, which indicates that she is barely earning minimum wage. From the date of separation until October 1, 2017, the minimum wage in Ontario was $11.40 per hour. Based on 36.5 hours per week, or 1752 working hours per year, that wage amounts to $19,972.80 per year. Since January 1, 2018, the minimum wage in Ontario has been $14 per hour. Based on the same number of working hours per year, that wage amounts to an annual income of $24,528. Based on the foregoing, I impute an income of $24,500 to Ms. Samnani.

[153] As noted above, marriage is not a guarantee of support upon separation or divorce. Nor should an entitlement to spousal support guarantee to either spouse the standard of living that they had during the marriage. However, in a short-term marriage where, as in the present case, one party has given up career opportunities to marry the other and assume care for the parties’ household, a significant disparity in standards of living is a strong indicator that a spousal support order would be appropriate.

[154] Ms. Samnani is not intentionally under-employed. She is earning what she can, having regard to the limitations of her Canadian work experience and locally recognized professional credentials.

Amount and Duration of interim Spousal Support

[155] The factors and objectives require a balancing of the parties’ circumstances, including the following:

(a) The seven-month duration of their marriage;

(b) His age of 31 and hers of 28, at separation;

(c) Their incomes and prospective incomes;

(d) The lack of future equalization of net family property;

(e) The stages of Mr. Galmani and Ms. Samnani in their careers;

(f) Their contributions to their marital standard of living;

(g) Their participation in household responsibilities;

(h) Their respective costs of living;

(i) The parties’ reasonable expectations, based in part on Mr. Galmani’s income during the marriage; and

(j) Ms. Samnani’s claim for compensatory support and her greater need for transitional support owing to her loss of her seniority as a Front Desk Manager in the U.K.

(iii) Duration of Cohabitation (s. 15.2(4)(a))

[156] The “condition, means, needs and other circumstances of each spouse” includes the duration of the parties’ cohabitation. In cases involving lengthy marriages, courts have typically made indefinite orders for spousal support. This is because after a long-term marriage, the dependent spouse is often of an age that makes it difficult to achieve economic self-sufficiency. In the present case, what Ms. Samnani needs is a period of spousal support that will give her enough breathing space to enhance her qualifications for employment equivalent to what she left in the U.K.

(iv) Functions Performed during Cohabitation (s. 15.2(4)(b))

[157] Ms. Samnani does not allege that she assumed household duties to an extent that they negatively affected her. However, the very fact that her marriage and immigration to Canada caused her to lose the security she had earned over the course of seven years of employment at a hotel in London gives rise to a similar inference of economic disadvantage to her.

(v) Any Order, Agreement, or Arrangement (s. 15.2(4)(c))

[158] Professor James G. McLeod has observed in an annotation to Poelen v. Poelen, (2000), that there is surprisingly little authority on the effect of immigration sponsorship agreements on a spouse’s support rights.[^36] The Court of Appeal for Ontario, in Nahatchewitz v. Nahatchewitz, (1999), noted that a sponsorship agreement is relevant to a judge’s decision to award lump sum support following the breakdown of a short-term marriage, but did not elaborate.[^37] Other decisions, also, have stated that the sponsorship agreement is relevant.[^38] Others indicate that the agreement creates “additional responsibility” on the part of the sponsoring spouse.[^39] Two decisions state that it would be unreasonable for the spouse in need to have to rely on public assistance when the other has signed a sponsorship undertaking.[^40]

[159] In Achari v. Samy, (2000), Oppal J. held that the sponsorship agreement is “very much relevant in determining entitlement” to support.[^41] In that case, the husband had signed an undertaking to Citizenship and Immigration Canada to support his wife for ten years. The agreement provided that separation or divorce did not cancel the sponsorship obligations. Oppal J. found that the husband had agreed to provide for his wife’s essential needs and that she had relied on that agreement when she left Fiji to immigrate to Canada. In addressing the impact of the agreement, Oppal J. stated that the undertaking could not be ignored in relation to the sponsor husband’s obligation to his wife since to do so “would render it meaningless.” He further stated that “it would be contrary to public policy to permit a person who has given an undertaking to provide support for a spouse to simply ignore the legal obligation to do so”.^42

[160] Oppal J. held, however, that the duration of support was not determined by the sponsorship agreement. He stated that “the agreement, which bound the husband for ten years, could not supersede the specific laws that deal with maintenance” and “cannot impose obligations greater than those imposed by the family law”. He said: “The sponsorship agreement must be considered together with the general principles applicable to spousal maintenance.”^43 Oppal J. ordered spousal support for an indefinite period of time until the wife achieved financial self-sufficiency and provided that the order could be reviewed when self-sufficiency was achieved, or a year after the order, whichever occurred first.

[161] In Camilleri, (2000),[^44] the husband signed the sponsorship agreement five weeks after the couple had signed a marriage contract stipulating that they both waived rights to spousal support. Langdon J. held that the legal effect of the sponsorship agreement “was to undo the support waiver” in the marriage contract.[^45] He also held that the effect of the agreements - “the marriage contract as amended by the sponsorship agreement” - was unconscionable, since the husband was not paying court-ordered interim support and the wife had difficulty obtaining gainful employment and achieving self-sufficiency due to her immigration status.[^46] The support obligations under the sponsorship agreement did not become effective until she was awarded permanent residence status, which had not yet happened at the time of the support application. Langdon J. relied on the husband’s obligations under the sponsorship agreement to vary the marriage contract and ordered support due to the unconscionable results of the agreements.[^47]

[162] Based upon the wording of the sponsorship agreement in Camilleri, Langdon J. found that it was an agreement between the sponsor and the immigrant, rather than between the sponsor and the government. Based on the references to the agreement in the reported decisions, their wording may vary. In most of the decisions cited above, the precise text is not provided.

[163] Other decisions that address the issue of the parties to the agreement – including those mentioned above – characterize the sponsorship agreement as an undertaking to the Government of Canada. The distinction between the sponsor’s obligation to the Government and the obligation to the spouse is not a critical one since, as stated in Thind, what is now s. 15.2(4)(c) of the Divorce Act “allows the court to consider any arrangement made relating to the support of the spouse” and does not specify the types of agreements, or the parties to such agreements.[^48]

[164] That the immigrant spouse is not a party to the sponsorship agreement may mean that he or she cannot directly enforce the contract; however, the agreement is nonetheless relevant to the determination of spousal support obligations and entitlements on a spousal support application.

[165] Langdon J.’s decision in Camilleri was appealed to the Divisional Court. Lane J. confirmed that the trial judge had considered all the relevant factors in determining support. The sponsorship agreement was not central to the Divisional Court’s decision, but Lane J. noted that a judge is “expressly required” to consider a sponsorship agreement on a motion for spousal support.[^49]

[166] I have considered the above principles with reference to the marriage of Ms. Samnani and Mr. Galmani. I find that Mr. Galmani obliged himself in his immigration sponsorship agreement to support his wife. No evidence was provided as to the precise terms of the sponsorship agreement. It is not disputed, however, that Mr. Galmani undertook to support his wife for three years following her arrival in Canada, and agreed to reimburse any public authority from which she received public assistance. The jurisprudence makes it clear that it is the existence of such an undertaking, and not its precise terms, that are “very much relevant” to the determination of support, and that obligate the sponsor to support his/her immigrant spouse.

[167] Sponsors’ undertakings to Citizenship and Immigration Canada must be meaningful, legal obligations. I find that Mr. Galmani’s sponsorship agreement is an agreement within the meaning of s. 15.2(4)(c) of the Divorce Act and is a basis upon which the court should find Mr. Galmani obligated to pay spousal support to his wife.

(vi) The Spousal Support Advisory Guidelines

[168] The B.C. Court of Appeal has characterized the Spousal Support Advisory Guidelines [SSAG] as a “useful tool.” It has recognized that, unlike the FCSG, the SSAG are neither legislated nor binding, but advisory. The parties, their lawyers, and the courts are not required to employ them. As well, the Guidelines continue to evolve; they are a work in progress, subject to revision.[^50]

[169] It is not fair, in many cases, to base the amount of spousal support on the SSAG. As the Court of Appeal noted in Fisher, they do not help in atypical cases.[^51] As the Court further noted in Fisher, the reasonableness of an award produced by the SSAG must always be balanced with the circumstances of the individual case, including the particular financial history of the parties during the marriage and their likely future circumstances.

[170] The SSAG are a useful “cross-check” for spousal support, on the basis that they “help in the long run to bring consistency and predictability to spousal support awards”, encourage settlement, and allow parties to “anticipate their support responsibilities at the time of separation.”[^52]

[171] Based on Mr. Galmani’s annual income of $39,375 and Ms. Samnani’s annual income of $24,500, the SSAG produce a range of spousal support from $19 per month to $25 per month, with a mid-range amount of $22 per month. Calculating the marriage as one year long, the SSAG suggests spousal support should be payable for 0.5 to 1 years. Spousal support in that mid-range amount would leave Mr. Galmani with 59.6% of the parties’ collective Net Disposable Income and would leave Ms. Samnani with 40.4%. I find these calculations to be inappropriate for the present case.

[172] In this case, I must consider the SSAG amount in the context of an immigration sponsorship agreement where Mr. Galmani agreed to support Ms. Samnani for three years. The use of the SSAG must be moderated in exceptional cases in order to prevent them from becoming instruments of unfairness.

[173] The Advisory Guidelines state:

During the feedback process we did hear criticisms in some parts of the country that the amounts produced by the formula in shorter marriage cases were "too low". In some of these cases, there was a failure to consider the compensatory exception — the exception for disproportionate compensatory claims in shorter marriages. In these cases, one spouse may have experienced a significant economic loss as a result of the marriage, by moving or by giving up employment, for example.

In other, non-compensatory cases, the formula was criticized as not providing enough support for the transition from the marital standard of living back to a lower standard of living based upon the recipient’s earning ability.

In the end, we concluded against any change to the basic structure of the formula. In the majority of cases across the country the formula works well for short marriages without children, which under current law typically give rise to very limited support obligations, if entitlement is found at all. The modest amounts generated by the formula are typically restructured into a lump sum or into a very short transitional award. In most of these cases, the recipient has a base income, which is supplemented by spousal support.…

We do recognize, however, that there is a specific problem for shorter marriages where the recipient has little or no income. In these shorter marriage cases, the formula may generate too little support for the low income recipient even to meet her or his basic needs for a transitional period. The amount required to meet those basic needs will vary from big city to small city to town to rural area. Whether restructuring provides a satisfactory outcome, i.e. more support for a shorter time, will depend upon where the recipient lives. Thus the problem for these short-to-medium-marriage-low-income cases is most acute in big cities.

We did not wish to change the structure of the formula itself for this one sub-set of cases. The best approach to these cases was to create a carefully-tailored exception — the basic needs/undue hardship exception for short marriages.[^53]

[174] The SSAG itemize a series of exceptions which, although not exhaustive, are intended to help lawyers and judges frame and assess departures from the formulae. The exceptions allow appropriate consideration of the factual circumstances in individual cases. The exceptions listed include “compelling financial circumstances in the interim period” and “basic needs/hardship”.[^54]

[175] The spousal support amounts that result from applying the formulae would not be fair in Ms. Samnani’s case for the following reasons:

(a) This was a marriage of very short duration, which creates a strong downward effect on both the amount and duration of Ms. Samnani’s spousal support entitlement. This effect, which is built into the SSAG calculations, is consistent with the case law, which holds that marriages of short duration can have a substantial impact on the period of time for which support may be ordered, as well as the amount of spousal support to be paid.[^55]

(b) The principal of lesser entitlement after short marriages arose, for the most part, in the context of marriages in Canada, of spouses who were employed in this country, and who were readily able to return to their previous work here if, indeed, they ever left such work. Ms. Samnani’s circumstances are distinguishable from those of other marriages of short duration. She faces entry into a workplace that does not accept her experience from the U.K. or the work experience she acquired there, one that is unfamiliar to her and more difficult for her to navigate than the one she would have faced if her marriage had not entailed emigration to Canada. She also faces the special challenges of linguistic and cultural adjustment.

(c) Ms. Samnani interrupted her career in order to marry Mr. Galmani and migrate to Canada. She will require more time to re-enter the workforce at the level she occupied in the U.K. if she had achieved her qualifications and held employment in this country before the parties’ marriage.

(d) There is a significant discrepancy between the parties’ respective income and circumstances. Mr. Galmani’s income is 60% greater than that of Ms. Samnani.

[176] For the foregoing reasons, I find that Ms. Samnani is entitled to receive spousal support that would equalize her income with Mr. Galmani’s for three years. The total of their imputed incomes is $63,875 ($24,500 + $39,375). Half that is $31,937.50. Therefore, Mr. Galmani must pay Ms. Samnani $7,437.50 per year to equalize their incomes. That works out to $619.79 per month.

Costs

[177] Until March 2017, Ms. Samnani was represented by a lawyer on a Legal Aid Certificate, for which Legal Aid Ontario requires her to pay $8,000, inclusive of fees, HST, and disbursements. After that, she was able to retain a lawyer privately, for which her costs were $4,000, inclusive of HST and disbursements. While her Legal Aid lawyer charged a greater amount, Ms. Samnani claims only the amount that Legal Aid Ontario requires her to pay. Accordingly, she claims costs in the amount of $12,000 ($8,000 + $4,000).

[178] Mr. Galmani’s costs were $16,500, inclusive of fees, HST, and disbursements.

[179] Ms. Samnani’s costs are reasonable and proportionate to those that Mr. Galmani incurred to oppose her claims.

CONCLUSION AND ORDER

[180] For the foregoing reasons, it is ordered and adjudged that:

1. Mr. Galmani shall forthwith pay to Ms. Samnani the following amounts:

(a) $19,285.22 as restitution of the amount he received from her that he has not returned;

(b) $3,000.00 as restitution for the gold chain and clothing that he failed to return to her;

(c) $16,433.30 as an equalization of the parties’ Net Family Property.

2. Mr. Galmani shall additionally pay to Ms. Samnani, beginning January 1, 2019, and continuing on the first of every month thereafter for three years, $619.79 per month, based on his income of $39,375 per year and Ms. Samnani’s income of $24,500 per year.

3. If the parties are unable to agree on costs, they shall submit written arguments, not to exceed four pages, and a Costs Outline, by December 31, 2018.

Price J.

Released: December 10, 2018

COURT FILE NO.: FS-15-84763-00

DATE: 2018-12-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

ROZINA SAMNANI

Applicant

• and -

AKBAR GALMANI

Respondent

REASONS FOR JUDGMENT

Price J.

Released: December 10, 2018

[^1]: Greenglass v. Greenglass, 2010 ONCA 675 at para. 44.

[^2]: Greenglass at paras. 41-44.

[^3]: Rathwell v. Rathwell, 1978 3 (SCC), [1978] 2 S.C.R. 436.

[^4]: Rathwell at p. 454-455.

[^5]: Pettkus v. Becker, 1980 22 (SCC), [1980] 2 S.C.R. 834 at pp. 843-844.

[^6]: Rathwell at p. 455.

[^7]: Becker at p. 848.

[^8]: Pettkus at pp. 847-48.

[^9]: Peter v. Beblow, 1993 126 (SCC), [1993] 1 S.C.R. 980 at p. 997.

[^10]: Soulos v. Korkontzilas, 1997 346 (SCC), [1997] 2 S.C.R. 217, at paras. 20, 43.

[^11]: Meditel Inc. v. Baldhead Systems Inc., 2010 ONSC 2302 (Div. Ct.) at paras. 2, 6.

[^12]: Serra v. Serra, 2007 2809 (ON SC), [2007] O.J. No 446, rev’d on different grounds 2009 ONCA 105, 93 O.R. (3d) 161, additional reasons 2009 ONCA 395.

[^13]: Dominion of Canada General Insurance Co. v. MD Consult Inc., 2013 ONSC 1347 at para. 16.

[^14]: Von Czieslik v. Ayuso, 2007 ONCA 305 at para. 28.

[^15]: Von Czieslik at para. 58.

[^16]: Williamson v. Williamson, 2016 ONSC 1180 at paras. 25-26.

[^17]: Rawluk v. Rawluk, 1990 152 (SCC), [1990] 1 S.C.R. 70 at p.97.

[^18]: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813 at p. 879.

[^19]: M v. H., 1999 686 (SCC), [1999] 2 S.C.R. 3 at para. 66.

[^20]: Moge at p. 864.

[^21]: Moge at p. 870.

[^22]: Corbeil v. Corbeil, 2001 ABCA 220 at para. 45.

[^23]: Divorce Act, R.S.C. 1985, C. 3 (2nd supp.).

[^24]: See Miglin v. Miglin, 2003 SCC 24, [2003] 1 SCR 303 at para. 39.

[^25]: Moge at pp. 865-866.

[^26]: Fisher v. Fisher, 2008 ONCA 11 at para. 49.

[^27]: Fisher at para. 51.

[^28]: Fisher at para. 53.

[^29]: Fisher at paras. 54-55.

[^30]: Thomas v. Thomas, 2003 64346 (ON SC), [2003] O.J. No. 5401 at para. 74.

[^31]: Mann v. Mann, [2009] O.J. No. 1960 (Sup. Ct.) at para. 17.

[^32]: Bracklow at para. 36.

[^33]: Federal Child Support Guidelines, SOR/97-175.

[^34]: Family Law Act, s. 33(9)(c).

[^35]: Family Law Act, s. 33(9)(g).

[^36]: Poelen v. Poelen, 2000 ABQB 528, 2000 CarswellAlta 784 (“Annotation” in WestLaw version).

[^37]: Nahatchewitz v. Nahatchewitz, 1999 787 (ON CA), 123 O.A.C. 319, 178 D.L.R. (4th) 496 (C.A.).

[^38]: Thind v. Thind (1988), 1987 2973 (BC SC), 14 R.F.L. (3d) 165 (B.C. S.C.); Lee v. Lee (1986), 1986 1806 (AB KB), 3 R.F.L. (3d) 172 (Alta. Q.B.); Sarai v. Sarai, [1999] B.C.J. No. 2786 (B.C. S.C.).

[^39]: Szczur v. Szczur, [1999] A.J. No. 1523 (Alta. Q.B.); Camilleri v. Camilleri, 2000 22465 (ON SC), [2000] O.J. No. 4136 (Sup. Ct.); Achari v. Samy (2000), 2000 BCSC 1211, 9 R.F.L. (5th) 247 (B.C. S.C.); Poelen.

[^40]: Ferron v. Ferron (1997), 1997 11548 (ON CJ), 31 R.F.L. (4th) 26 (Ont. Prov. Div.); Anilevska v. Meheriuk, 2001 ABQB 378, [2001] A.J. No. 584 (Alla. Q.B.).

[^41]: Achari v. Samy, 2000 BCSC 1211, 9 R.F.L. (5th) 247 (B.C. S.C.) at para. 13.

[^44]: Camilleri v. Camilleri, 2000 22465 (ON SC), [2000] O.J. No. 4136 (Sup. Ct.).

[^45]: Camilleri at para. 21.

[^46]: Camilleri at para. 29.

[^47]: Camilleri at para. 15.

[^48]: Thind at p. 182.

[^49]: Camilleri v. Camilleri, 2001 60971 (ON SCDC), [2001] O.J. No. 2602 (Div. Ct.) at para. 18.

[^50]: Yemchuk v. Yemchuk, 2005 BCCA 406 at para. 64.

[^51]: Fisher at para. 96.

[^52]: Fisher at para. 100.

[^53]: Spousal Support Advisory Guidelines, (Ottawa: Dept. of Justice, 2008), Chapter 7.4.2.

[^54]: SSAG, Chapter 12.

[^55]: Watts v. Watts, 2011 ONCJ 104 at para. 69.