Court File and Parties
COURT FILE NO.: FC-10-1374-1 DATE: 2018/12/28
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Munawar Sultana Applicant – and – Ataur Rehman Mohammed Respondent
Counsel: Diana Aoun, Counsel for the Applicant Self-represented
HEARD: November 30 and December 3 to 6, 2018
REASONS FOR JUDGMENT
Justice Engelking
[1] The Applicant, Ms. Sultana, commenced her application on November 3, 2016. She seeks orders with respect to a divorce, custody and access to the two children of the marriage, and support for herself and the children. She seeks this relief pursuant to the Divorce Act [1]. While her application does not reference a specific claim to retroactive support, in the orders sought portion of the application, Ms. Sultana requests an order for “child support arrears owing from the date of separation”. Ms. Sultana also seeks a restraining order and equalization of the parties Net Family Property (NFP) pursuant to the Family Law Act [2].
[2] On November 29, 2018, the parties provided me with a copy of a draft order both parties had approved as to form and content which resolved the issues of custody, access and primary residence of the children, as well as Ms. Sultana’s ability to obtain passports and travel with the children without the consent of Mr. Mohammed, non-removal of the children from the jurisdiction of Ottawa by Mr. Mohammed and the latter not attending Ms. Sultana’s residence or place of employment.
[3] Additionally, over the course of the proceeding, Ms. Sultana withdrew her claim for spousal support. Both parties also indicated that they consented to a divorce. However, evidence was led during the trial that Mr. Mohammed has obtained a divorce in India, which to my knowledge, has not been set aside. Although Ms. Sultana’s claims for custody and support have been made pursuant to the Divorce Act, this court would have authority to deal with such claims under the Children’s Law Reform Act [3] and the Family Law Act. Under the circumstances, on the court’s own motion, Ms. Sultana’s pleadings are, therefore, amended to include claims for custody, access and child support under the CLRA and the FLA.
[4] On the first day of trial, November 30, 2018, after the parties had both provided opening statements, and after Ms. Sultana’s testimony began, Mr. Mohammed requested an adjournment of the trial, indicating that he wished to retain counsel. I declined to adjourn the trial and provided Mr. Mohammed with the following reasons for doing so:
- Mr. Mohammed did not ask for an adjournment of the trial before it began but only did so after hearing some of Ms. Sultana’s evidence;
- Mr. Mohammed did not provide any evidence upon which an order adjourning the trial could be based;
- Mr. Mohammed’s previous counsel was removed as counsel of record several months previously, in July of 2018, and he had four months to retain new counsel, if he wished to do so; and,
- Mr. Mohammed had requested an adjournment of the trial at the Assignment Court on November 2, 2018, ostensibly for the same reason, and his request was denied by Justice Shelston.
[5] I provided Mr. Mohammed with a copy of a Superior Court of Justice, Family Court Ottawa, “Memorandum to Self-Represented Litigants” dated December 7, 2016, to assist him with his conduct of the trial.
[6] On the second day of the trial, Mr. Mohammed appeared and indicated that he was not prepared to cross-examine Ms. Sultana, notwithstanding that I had advised him on the close of the day on November 30, 2018 that this would be the next step in the proceeding. I provided Mr. Mohammed with approximately an hour and a half to prepare to cross-examine Ms. Sultana upon the completion of her testimony-in-chief.
[7] Mr. Mohammed indicated at this point that he was no longer agreeing to the settlement he had entered into regarding custody and access of the children, as set out in the approved draft order. I advised Mr. Mohammed that given the settlement, these issues were no longer before the court in the trial. I recommended that Mr. Mohammed seek legal advice with respect to the proper course of action to be taken if he wished to seek to set aside that settlement.
[8] Upon recommencement of the trial, Mr. Mohammed appeared with a number of documents upon which he sought to rely, many of which had never been disclosed to Ms. Sultana’s counsel. This was despite the fact that there had been a Trial Scheduling Endorsement Form executed by Justice Shelston in February of 2018 requiring the parties to serve all of their documentary evidence at least 30 days in advance of the trial, and that Ms. Sultana’s counsel had been requesting some of these documents from either Mr. Mohammed’s counsel or Mr. Mohammed directly for a number of months. Given this, I granted a further recess of approximately two hours for Mr. Mohammed to provide disclosure of his documentary evidence to Ms. Sultana’s counsel.
[9] Upon recommencement of the trial for a second time, Ms. Sultana’s counsel requested further time to review the approximately two inch stack of documents Mr. Mohammed had provided, and indicated that Mr. Mohammed was stating to her that he would be providing more documents the next day and the day after.
[10] At this point, I adjourned the trial until the morning of December 4, 2018, and ordered Mr. Mohammed to provide any and all documentary evidence upon which he intended to rely to Ms. Sultana’s counsel by no later than 5:00 p.m. on December 3, 2018. I advised Mr. Mohammed that no further indulgences would be granted, and that any documentary evidence upon which he hoped to rely not provided by 5:00 p.m. on December 3, 2018 would not be considered by the court. The trial recommenced on December 4, 2018 at 10:00 am.
[11] The remaining issues for trial, ultimately, were:
- What was the parties’ date of separation?
- What is the appropriate quantum of child support to be paid by Mr. Mohammed to Ms. Sultana, both retroactive and on-going?
- What is the appropriate amount of section 7 and extraordinary expenses that Mr. Mohammed should be paying, both retroactively and on-going?
- What, if any, is the equalization payment owed by one party to the other?
[12] For the following reasons, I find that the parties’ date of separation is October 29, 2015; child support arrears for 2016 are fixed at $12,072, less a credit for $2,000, for a total amount of arrears owing for 2016 of $10,072; child support arrears for 2017 are fixed at $11,617; on-going child support is payable by Mr. Mohammed in the amount of $966 per month commencing January 1, 2018, less a credit of $800; Mr. Mohammed is responsible for 50% of the children’s section 7 and extraordinary expenses as outlined below; and Mr. Mohammed owes Ms. Sultana an equalization payment of $15,552.82.
Background Facts
[13] The parties were married on July 5, 2008 in Hybrabad, India. They lived together in Hybradad for approximately nine months while Ms. Sultana, a Canadian citizen, sponsored Mr. Mohammed to come to Canada. They came to Canada in April of 2009, and settled in Toronto sometime shortly thereafter.
[14] Two children were born of the marriage, Ayaan Rehman born January 21, 2010, and Armaan Rehman born August 23, 2012.
[15] The parties separated for a period of time – Mr. Mohammed says in September of 2009 and Ms. Sultana says in early 2010 – and reconciled in June of 2011. They separated for a final time in either October of 2015, according to Ms. Sultana, or January of 2016, according to Mr. Mohammed.
[16] Mr. Mohammed has an undergraduate degree in Computer Science from Osmania University in India from 1999, and a Diploma as a Computer Software Engineer from Nordic College in Toronto from 2004. Ms. Sultana has an undergraduate degree in Business from Concordia University from 2002. At the time of the marriage, Mr. Mohammed was working in Information Technology (IT) in India, although there is a dispute between the parties regarding for whom he worked.
[17] At the time of separation, Mr. Mohammed was working as an IT consultant with a company called Tek Tree on a project in Austin, Texas. Also at separation, the children remained in the primary care of Ms. Sultana and had only sporadic and limited access to Mr. Mohammed.
[18] Ms. Sultana has been employed as an outside sales representative with a company she did not want to name since September of 2017. Ms. Sultana’s evidence is that she does not want Mr. Mohammed to know for whom she works as in the past he has called her or had others call her at work and tell her to give into his demands, or she has found friends of Mr. Mohammed in her work parking lot at the end of the day telling her to agree to Mr. Mohammed’s demands. Mr. Mohammed did not challenge Ms. Sultana’s evidence in this regard. Ms. Sultana’s Notice of Assessment for 2017 indicates that her Line 150 income for that year was $54,750. Her Line 150 income was $51,938 in 2016 and $56,792 in 2015.
[19] Mr. Mohammed’s employment and income over the years are issues in great dispute, and will be discussed later.
Issue #1 - What is the parties’ date of separation?
[20] Ms. Sultana’s evidence was that the parties separated on October 29, 2015, when Mr. Mohammed moved to Austin, Texas on a permanent basis. Mr. Mohammed began employment with Tek Tree in or about August of 2015, and had been in Austin prior to separation. Mr. Mohammed officially relocated to Texas for work on October 29, 2015.
[21] Ms. Sultana’s evidence was that there were difficulties in the marriage from the outset. She described Mr. Mohammed as abusive and controlling, particularly as it pertained to the family’s finances. Ms. Sultana stated that Mr. Mohammed “forced” her to give him access to her personal bank accounts, and that over the course of the marriage, he moved money as he pleased. While Mr. Mohammed denied being abusive, both parties gave evidence that by the end of October of 2015, their relationship was poor. Despite this, it was Mr. Mohammed’s evidence that he continued to return to Ottawa on a monthly basis to visit with Ms. Sultana and the children, and that when he did so in November and December of 2015 and January of 2016, he stayed in the matrimonial home and they continued to be a family. Mr. Mohammed indicated that this was the case until January 3, 2016, which he identifies as the date of separation, although he gave no evidence as to what occurred on that date or why he identified it to be the date of separation.
[22] Mr. Mohammed testified that he and Ms. Sultana were still communicating in November and December of 2016, and that prior to his departure on October 29, 2015, they were making plans together as a family. His evidence was somewhat contradictory in this regard, as he indicated that they were planning to purchase a home in Ottawa, while they were at the same time planning to relocate to Austin. To demonstrate that the parties were still in a relationship, Mr. Mohammed relied on the following:
(a) an email from Ms. Sultana confirming that she had a meeting regarding a mortgage; (b) an email from Ms. Sultana dated November 9, 2015 forwarding to him a quote from Transport Solutions Inc. about the cost of moving his Honda CR-V to Austin; and, (c) an email from Ms. Sultana dated November 16, 2015 seeking confirmation that she and the children were covered by Mr. Mohammed’s medical insurance.
[23] Ms. Sultana, however, was of the view that the relationship was over by the time Mr. Mohammed moved to Texas on October 29, 2015. She stated that while Mr. Mohammed did return to Ottawa to visit the children, he did not stay with them at the matrimonial home. She indicated that she did not know where he stayed, but believed it to be with friends, at hotels or AirBnB’s. Ms. Sultana relied on two documents, both emanating from Mr. Mohammed, to support the fact that the relationship was over in October of 2015. The first was an email to her from Mr. Mohammed dated February 5, 2016 in which he indicated: “We are separated since Oct 2015, Finally, I am giving you first divorce (Talaq) by Islamic Sharia Law.” The second document upon which Ms. Sultana relies to establish the date of separation is a “Legal Notice” dated February 24, 2016 that she received from Mr. Mohammed’s lawyer in Hyderabad, India, in which the following is stated: “3. My client states that till [sic] Oct, 2015 though you resided with my client with your children, but your parents interfered in your matrimonial life from time to time, and you under their influence left the matrimonial life when my client got a new job at U.S.A. ” (Emphasis is added).
[24] The date of separation is significant for two reasons. The first is that the Child Tax Benefit was being deposited into a personal account of Mr. Mohammed (RBC ending in 6667) until February of 2016. If they were separated, it should have gone to Ms. Sultana based on her sole care of the children. The second reason is that Ms. Sultana alleges that in November of 2015 Mr. Mohammed used a credit card which was in her name without her authorization. Her position is that Mr. Mohammed’s use of the card created a post-separation debt of $6500 CAD, for which he alone should be responsible. Mr. Mohammed’s position is that this debt, which he admits incurring, was incurred prior to separation.
[25] The most compelling evidence regarding the date of separation are Mr. Mohammed’s admissions in both his email to Ms. Sultana of February 4, 2016 and his counsel’s letter to Ms. Sultana of February 24, 2016, that the separation occurred in October of 2015. Mr. Mohammed also indicated in his 2015 Tax Summary Return that his marital status for that tax year was “separated”. Based on all of the evidence before me, including that Mr. Mohammed flew to Austin on October 29, 2015, I find that the date of separation was October 29, 2015.
[26] From that date forward, the children remained in the sole primary care of Ms. Sultana, and she was entitled to receive the Universal Child Tax Benefit [4] for them.
Issue #2 – What is the appropriate quantum of retroactive and on-going child support payable by Mr. Mohammed?
[27] Child support was by far the most contentious issue at trial, the reason being that a determination of the quantum of child support payable by Mr. Mohammed required a determination of his income in the operative years, and the parties had vastly different positions with respect to this issue. Ms. Sultana’s position was that Mr. Mohammed was employed in IT over the course of the marriage and that he is capable of making at least $75,000 per year. She seeks income imputed to him of $75,000 per year. Mr. Mohammed’s position was that he has only worked in IT for brief periods, being in India prior to marriage, for eleven months at the end of 2015 and beginning of 2016, and again in India in 2018. He states that he has only been employed at “odd jobs” over the years, which included employment at Mac’s Milk, Walmart, 7-11 and delivering pizzas, the latter of which he indicated he is currently doing in Toronto.
[28] Ms. Sultana’s evidence was that Mr. Mohammed was working in IT for IBM in India at the time of their marriage in 2008. She states that Mr. Mohammed represented himself as having a good income, some savings and some real estate. She stated that Mr. Mohammed, who had studied in Canada between 2002 and 2006, wished to return to Canada because he would have better job opportunities and higher pay. Ms. Sultana indicated that after their move to Canada in April of 2009, Mr. Mohammed found a job in January of 2010, again in IT working for a company called DMC in Toronto. Ms. Sultana’s evidence was, in fact, that Mr. Mohammed was always working in IT thereafter, usually from home. She indicated that Mr. Mohammed worked as an IT consultant, and that he would have various contracts for various lengths of time and various companies. She indicated that at times he could be working on more than one project or for more than one company at a time. Ms. Sultana did not provide any particulars, such as contracts, emails or letters confirming any of the above information, stating that she did not have access to them and that Mr. Mohammed was very secretive about his income, which he did not share with the family.
[29] Ms. Sultana testified that Mr. Mohammed also worked at what she referred to as “side jobs”, such as for 7-11 or Walmart or doing pizza deliveries, but it was her evidence that Mr. Mohammed did so either part-time or between IT contracts. In support of her case that Mr. Mohammed worked consistently in the IT field, Ms. Sultana relied heavily on what was identified at Mr. Mohammed’s updated resume [5] and his LinkedIn profile [6].
[30] The resume which Ms. Sultana identified as Mr. Mohammed’s indicates that his education details are a “B.Sc. (Computer Science), Osmania University (India)” and a “Dip Computer Soft Engineer, Nordic Business & Technology (Toronto, Canada)”. It also contains the following information with respect to Mr. Mohammed’s work history:
- May ’07 – Aug ’08 as a Database Administrator at Traxion, India;
- Oct ’08 – Aug ’09 as an Oracle Database Administrator at GE Technology Infrastructure, India;
- Jan ’10 – Aug ’11 as an Oracle Database Administrator at DMC Inc. in Toronto, Canada;
- Jan ’12 – Feb ’13 as an Oracle Database Administrator at SITEL Canada in Toronto, Canada;
- Mar ’13 – Apr ’14 as a Database Administrator at Levi-Strauss & Co in Toronto, Canada; and,
- June ’14 to Present as an Oracle Database Administrator with RCA and Golden Gate at Xerox in Henrico, Virginia.
[31] The descriptions for each job are extensive and contain highly technical language, presumably comprehensible to individuals who work in the information technology field. Under the title “Summary” on the first page of the resume, Mr. Mohammed is described as having: “Over 8 years of experience as an IT professional in Oracle Database Administration, tuning, development, analysis, design, installation, patches, upgrades, migrations, configuration, database security, capacity planning, space management, backup and recovery, cloning, troubleshooting and documentation.”
[32] Mr. Mohammed’s LinkedIn profile mirrors the resume with respect to the entries for GE Technology Infrastructure, Sitel Canada, DMC and Levi Strauss & Co. It additionally contains information with respect to Mr. Mohammed being an Oracle Database Administrator for Cognizant from November of 2015 to the present. Interestingly, the dates at which Mr. Mohammed is identified at being with DMC and Sitel are switched, but the two documents are otherwise consistent.
[33] Ms. Sultana testified that she printed a copy of Mr. Mohammed’s resume from an email account that they had shared during the marriage. She testified that she did not create it and that she did not alter it in any way; she simply printed it and gave a copy to her counsel. Similarly, Ms. Sultana testified that she went on to the LinkedIn website, looked up Mr. Mohammed and printed his profile on June 2, 2017. She indicated that she is aware, because she has her own LinkedIn profile, that access to one’s account is password protected, and she stated she did not have access to Mr. Mohammed’s account. She simply printed the publicly accessible page and gave a copy of it to her counsel.
[34] While Ms. Sultana testified that she had limited information about Mr. Mohammed’s employment, and that he did not disclose his income to her, she also testified that the information contained in the resume and LinkedIn profile was consistent with her understanding of Mr. Mohammed’s work during the relationship. According to Ms. Sultana, Mr. Mohammed was “always” working in IT, sometimes making between $100,000 and $150,000 per year.
[35] Mr. Mohammed took great issue with both the resume and the LinkedIn profile. He denied creating them and said they were not his. Mr. Mohammed’s evidence was that the resume was created by Ms. Sultana, and the LinkedIn profile was “tampered” with by “someone”. Mr. Mohammed stated that one could cut and paste the technical language and roles and responsibilities from anywhere and download them into a resume or onto LinkedIn as if he or she was the person to whom the document belonged. Mr. Mohammed acknowledged that the education details were correct in both, but completely denied that the work experience was accurate.
[36] Mr. Mohammed’s evidence was that he has only worked in IT during three periods of his life to date. The first was at the time of marriage in Hydrabad. He denied that he worked for IBM, and stated that he worked for a small company making very little and not getting much in the way of valuable experience. His next sojourn in IT was from approximately September of 2015 to November of 2016, when he worked for both Tek Tree and Ian Martin Ltd., about which I will speak more later. Finally, Mr. Mohammed said he worked from January to September of 2018 in IT in India as a systems analyst for a company called Dreamz & Events earning approximately $400 per month.
[37] Mr. Mohammed testified that shortly after arriving in Toronto, he got a job at Mac’s Milk convenience store. He indicated that he relied on a CIBC Line of Credit to set up an apartment for him and Ms. Sultana in Toronto, and he supported them through a combination of his income from Mac’s Milk and his Line of Credit. Mr. Mohammed relied on bank statements [7] to show that at January 5, 2010, he had an outstanding balance of $4,761.64, which he testified was used for those purposes.
[38] Mr. Mohammed testified further that Ms. Sultana was not interested in staying in Toronto with him and once she became pregnant with their first child, she returned to Hawkesbury to live with her parents. Mr. Mohammed’s testimony was that he went to Regina, Saskatchewan in September of 2009, and thereafter began working at a 7-11 convenience store. He was neither asked nor provided an explanation as to why he would move across the country to work in a convenience store, a job he was already doing in Toronto. In December of 2010, Mr. Mohammed got a job, which he indicated was fulltime, at Walmart, where he remained until July of 2012. He continued part-time with 7-11 to the spring of 2011. Mr Mohammed’s testimony was that he was not working in IT during this period.
[39] The parties were separated at some point in the period from 2009 to 2011. The dates of this earlier separation were unclear. Mr. Mohammed indicated that it was from September of 2009 when he went to Regina, but Ms. Sultana indicated that it was from sometime in 2010. The parties’ first child Ayaan was born on January 21, 2010 in Ontario. Both parties agree that they reconciled and Ms. Sultana and Ayaan joined Mr. Mohammed in Regina in June of 2011.
[40] Of note, Mr. Mohammed paid off the balance on his CIBC Line of Credit prior to Ms. Sultana moving to Saskatchewan. Prior to January 24, 2011, he had only been making small payments towards it, sometimes as little as the minimum payment due, however, he made three significant payments in January and February, one on January 24th for $1410, one on February 10 for $1100 and another on February 14th for $1203.77, bringing the balance down to zero by April 13, 2011. Mr. Mohammed was neither asked nor offered from whence that money came.
[41] When Ms. Sultana and Ayaan moved to Regina, Mr. Mohammed ceased to work part-time at the 7-11 store. He indicated that he was working full-time at the Walmart, however, the Record of Employment he produced from Walmart provides that his total insurable earnings for the period of December 16, 2010 to July 13, 2012 were $11,532.52. [8] Mr. Mohammed testified that items marked “payroll deposits” going into his CIBC account ending in 3336 between January 5 and June 3, 2011 were from his part-time job at 7-11. In January, February, March, April, May and June of 2011, Mr. Mohammed also had a consistent monthly cheque deposit of $850. In July, it was for $709, and in August through November it was for $809 per month. In December, he had a deposit for $800. [9] These sums, then, would logically have been Mr. Mohammed’s salary from his job at Walmart. Nineteen months of payment at $800 per month equals $15,200, which is significantly more than his Record of Employment indicated. It appears, therefore, that Mr. Mohammed was not working fulltime hours at Walmart during the period from December 16, 2010 to July 13, 2012.
[42] This is, of course, the same period during which the resume states Mr. Mohammed was working for DMC Inc. in Toronto or during which the LinkedIn profile states he was working for Sitel Canada. Mr. Mohammed insisted that he was not working for either, or in IT at all. Both parties testified that after Ms. Sultana joined Mr. Mohammed, she worked at Staples and at CIBC for periods of time. The parties’ second child Armaan was born on August 23, 2012 in Regina. Mr. Mohammed stated that he got fired from Walmart due to some discrimination, whereas Ms. Sultana stated that Mr. Mohammed got fired from Walmart for some financial misdealing.
[43] Shortly after Armaan’s birth, in September of 2012, the parties returned to Ontario. Mr. Mohammed’s evidence was that Ms. Sultana’s father wanted Mr. Mohammed to go into business with him, and they spent the next several months looking for the right business opportunity. Mr. Mohammed indicated that he was on EI from August or September of 2012 for about a year, and Ms. Sultana was on maternity leave. The parties eventually moved to Laval, Quebec, where Mr. Mohammed and Ms. Sultana’s parents were each one third shareholders in a corporation which ran a convenience store.
[44] Mr. Mohammed’s evidence was that he was working 18 hours a day in the store, and that he managed to build up the business from doing $200 a day worth of sales to $2000 a day within six to eight months. Mr. Mohammed stated that notwithstanding his success, his father-in-law did not pay him a salary for the entire time he worked in the store. In cross-examination, he denied that he had helped himself to cash from the till, as was suggested by Ms. Sultana’s counsel. Although it was Mr. Mohammed’s testimony that the couple was essentially making nothing (except for EI from approximately September 2012 to September 2013, and whatever Ms. Sultana would have made on maternity leave over the same period), in January of 2014, they travelled to India for approximately one month. Mr. Mohammed purchased two tickets on British Airways for $1349.87 on his RBC MasterCard ending in 5166 on December 3, 2013, after which he had an outstanding balance on his card of only $228.59. [10]
[45] While in India, it was Mr. Mohammed’s testimony that he borrowed money from family and friends, which he deposited into his ICICI Bank account ending in 2513. On January 31, 2014, $30,000 Indian Rupees, which was the equivalent of approximately $10,000 Canadian dollars, was deposited into this account. [11] Mr. Mohammed stated that from that money he purchased jewellery and household goods for Ms. Sultana. Mr. Mohammed indicated that upon their return to Canada, he continued to work in the convenience store, but was becoming increasingly dissatisfied as his father-in-law was still not paying him. Mr. Mohammed stated that Ms. Sultana got a job at Grand & Toy in Ottawa in June of 2014, but that he continued to work in Laval until the spring of 2015. Mr. Mohammed testified that although he was a 33% shareholder in the Laval corporation, he removed his name from it and ceased working with/for his parents-in-law in the spring of 2015.
[46] Mr. Mohammed’s evidence was that because he and Ms. Sultana had no money at the time to secure an apartment in Ottawa, on April 23, 2015 he transferred $15,000 from his RBC Line of Credit ending in 5-001 to the parties’ joint RBC account ending in 9232 to demonstrate that they could afford first and last month’s rent. He then immediately transferred in back latter on the same date. Both accounts do show this transaction of the movement of $15,000; however, on the parties’ joint account statement [12], an additional $15,000 is also deposited on April 23, 2015, and then a “www loan payment” is made for the same amount later on the same day. Ms. Sultana testified that she had no idea where the additional $15,000 came for or for what it was paid out. In that same joint account, there were earlier fairly large transactions about which Ms. Sultana testified she knew nothing. These included:
- A deposit on December 6, 2013 from “TT MOHAMMED WAS” for $19,375.83;
- A deposit on February 1, 2013 from “TT SAYED MENH” for $8694.49;
- A deposit on February 5, 2013 from “TT SAYED MENH” for $8538.30;
- A withdrawal on February 11, 2013 by “WWW TRANSFER” for $8694.49;
- A withdrawal on February 11, 2013 by “WWW TRANSFER” for $6038.30; and,
- A withdrawal on February 11, 2013 by “WWW TRANSFER” for $19,375.83.
[47] It appears that money was indeed going into and out of the parties joint account, as Ms. Sultana indicated, however no real explanation was provided as to why that was the case or where the money was either coming from or going.
[48] Mr. Mohammed stated that he remained at home with the children from the spring of 2015 until August of 2015, when he became employed by Tek Tree, an IT consulting/placement firm, which provided him training in Oracle Database Administration and a three year contract working in Austin, Texas. Notwithstanding the above mentioned resume and LinkedIn profile, Mr. Mohammed testified that this was his first job in IT since he left India in 2009.
[49] As part of the process to work in the U.S., Mr. Mohammed was required to apply for and obtain a “TN VISA”. On August 28, 2015, the president of Tek Tree, Mr. Raghuveer Bandi wrote a letter to the NAFTA Free Trade Officer supporting Mr. Mohammed’s request for the TN VISA as a Computer Systems Analyst for a period of three years [13]. In his letter, Mr. Bandi stated: “His knowledge/experience in Computer Systems are extensive and his employment in our company will significantly enhance our ability to provide better services.” Mr. Bandi went on to say that Mr. Mohammed would be remunerated at U.S.D. $60,000 per annum, and he described Mr. Mohammed’s roles and responsibilities over the life of the contract. On page 2 of the letter, Mr. Bandi stated: “As the profession of Computer Systems Analyst is listed under the NAFTA, and as Mr. Mohammed Ataur Rehman possesses the appropriate education to qualify him as a TN non-immigrant professional, we respectfully request that TN non-immigrant classification be granted to Mr. Mohammed Ataur Rehman immediately for (03 years), until such request is renewed.” Mr. Mohammed then had to present himself to U.S. border authorities and be interviewed for the VISA, which he was successful in obtaining.
[50] It was Ms. Sultana’s position that Mr. Mohammed must have relied on his resume and experience in IT to get the opportunity with Tek Tree and to successfully obtain the TN VISA from the U.S. NAFTA Officer. Why Tek Tree would otherwise employ him or the U.S. grant him a three year TN VISA would be incomprehensible. Mr. Mohammed denied that he held out to either that he had the work experience outlined in his resume, because he continued to deny that the resume presented to the court was his. He also continued to deny that he had any experience in IT, beyond the work he had done in India pre-marriage.
[51] Mr. Mohammed’s testimony was, however, not credible in this regard. It is incredulous for the court to think that Mr. Mohammed would have been hired and supported by Tek Tree in the manner that he was with next to no experience in the very job in which Mr. Bandi was promoting him to U.S. authorities. At the end of the trial, it was impossible for the court to determine whether Mr. Mohammed had been working in IT as per the resume/LinkedIn profile, and as per Ms. Sultana’s testimony, or whether he had fabricated a resume and LinkedIn profile for the purpose of obtaining employment in the IT field.
[52] If it is the former, then Mr. Mohammed would have had to be depositing and/or moving money from his IT contracts over the years to somewhere, and Ms. Sultana was not particularly successful during the trial in demonstrating that to be the case, though she did make vague references to “real estate in India”, without providing any concrete evidence of same. If it was the latter, then Ms. Sultana would have been aware that Mr. Mohammed did not actually work in IT during their relationship, and that he was relying on a falsified resume to get the job at Tek Tree. Ms. Sultana was no more credible that Mr. Mohammed in this regard, and the court can come to no conclusion as to which it was. If, however, Mr. Mohammed did falsify his resume and profile, which he did not admit in the trial, the end result would be that Ms. Sultana knew it and tried during the trial to use it against him.
[53] Regardless of which is true, Mr. Mohammed was successful in getting his TN VISA, did move to Austin and did commence work on November 1, 2015. As I have indicated above, Mr. Mohammed had a three year contract with Tek Tree for which he was to be paid $60,000 U.S.D. per year. Mr. Mohammed testified, however, that he worked for Tek Tree for only four months. Mr. Mohammed provided no proof of the reasons for termination, but did state that he was fired by Tek Tree due to his family circumstances and lack of concentration. Clearly, Mr. Mohammed ceased working with Tek Tree in March of 2016, however, absent a letter of termination from Tek Tree or testimony from Mr. Bandi (or some other authorized person), I find that Mr. Mohammed’s departure was voluntary.
[54] Ms. Sultana demonstrated that from January to March of 2016, Mr. Mohammed was paid $16,329.45 US (which is the equivalent of $21,407.91 CAN) by Tek Tree [14]. Mr. Mohammed sought to rely on his W-2 Wage and Tax Statements from Tek Tree, which indicated that he earned $5045.60 in 2015 and $9888.00 in 2016. Mr. Mohammed provided no explanation for the discrepancy between the 2016 W-2 and the amount that was deposited into his Bank of America account from Tek Tree between January and March of 2016. He did, however, indicate that he made about $13,000 from Tek Tree and spent most of it going back and forth between Ottawa and Austin.
[55] Following his departure from Tek Tree, Mr. Mohammed registered a corporation in Ontario on May 19, 2016, called Atraams Solutions Inc., of which he was the sole owner and director. Thereafter, Atraams Solutions Inc. was contracted by another consulting firm, Ian Martin Ltd. Ms. Sultana was able to demonstrate that between June and November of 2016, Atraams Solutions Inc. was paid $51,294.95 CAN by Ian Martin Ltd. [15] Based on the sums deposited to Mr. Mohammed’s Bank of America account from Tek Tree and Atraams Solutions Inc.’s CIBC account from Ian Martin Ltd., Mr. Mohammed’s total gross income in 2016, in Canadian dollars, was therefore $72,702.86. His Line 150 income on his 2016 Tax Return Summary [16], however, was $33,489.28, which was made up of employment income of $13,099.69 and taxable dividends from a Canadian corporation of $20,389.59. Properly grossed up for tax, Mr. Mohammed’s income for support purposes based on these sums would be $39,862. Mr. Mohammed did not provide evidence as to why he paid himself taxable dividends of only $20,389.59 (or $17,427.00 actual amount of dividends) out of the $51,294.95 that Atraams Solutions Inc. was paid by Ian Martin Ltd. in 2016. Nor did Mr. Mohammed provide disclosure of his full corporate tax returns for Atraams Solutions Inc., any US tax return or any personal or corporate Notices of Assessment or Reassessment for 2016.
[56] Mr. Mohammed testified that his contract with Ian Martin Ltd. was the last work he did in North America. He indicated that he travelled to India in 2016 and 2017 because his father fell ill. He took two one-month courses on-line in December of 2016 and January of 2017. He stated that he did not work at all in 2017, and therefore had no income for that year. Mr. Mohammed stated that he very diligently looked for work, but that he was not successful. His search included several trips (at least seven in 2017) to the United States to “talk to vendors face to face”, which only came up in cross-examination and upon review of his passport. In fact, Mr. Mohammed did not provide the court with any information on his efforts to find employment, such as the names of companies to which he may have applied, copies of his applications and/or resume (notwithstanding the controversy over what Ms. Sultana identified as Mr. Mohammed’s resume, he never produced one himself), names of positions he may have been seeking, lists of interviews he may have had or dates during which any of the above was transpiring.
[57] Mr. Mohammed indicated that in January of 2018 he began to work for a company in India called “Dreamz & Events” as a system analyst, which he continued to do until August 30, 2018, for $20,000 Indian Rupees per month, or approximately $400 Canadian dollars. Mr. Mohammed testified that he did so more to gain the experience than for the money. Additionally, Mr. Mohammed travelled to the UAE and Saudi Arabia for a few weeks in May and June of 2018, which he identified to be for leisure as opposed to work. He returned to Canada for these proceedings in September of 2018, and is currently working (as of November 1, 2018) part-time as a pizza delivery driver in Toronto. Mr. Mohammed testified that he can only work part-time because he has bad knees and a bad back. Mr. Mohammed did not produce any medical evidence which supported that his ability to work is compromised due to injury or pain. He testified that the only treatment prescribed to him has been the provision of exercises he is to do daily, or physiotherapy, which he cannot afford. Mr. Mohammed stated that he makes approximately $1,000 per month, being $800 in cash from his employer and $200 in tips. He indicated that he has applied to and been accepted at Fanshawe College for an Information Security Management (Online) course from January 1, 2019 to December 31, 2019. It is his stated intention to upgrade his skills so that he can find employment in the IT field.
Positions of the Parties
[58] Ms. Sultana takes the position that Mr. Mohammed’s income for 2016 for support purposes is equivalent to his gross income of $72,702.86. She argues that Mr. Mohammed, as the sole director and shareholder of Atraams Solutions Inc., was in the position to pay himself whatever he chose, and he chose to pay himself less than he could have or should have, given his support obligations. She seeks, moreover, for the court to impute income to Mr. Mohammed at the same level for 2017 and 2018. It is her position that if Mr. Mohammed was not working in 2017, he was intentionally unemployed, and to the degree that he has worked or is working in 2018, Mr. Mohammed is intentionally underemployed.
[59] Mr. Mohammed’s position is that if child support is to be ordered, the court should rely on his 2016 Tax Return Summary and determine child support based on his Line 150 income of $33,489.28 for 2016. Mr. Mohammed argues that his income for 2017 ought to be zero as per his Line 150 Income in his 2017 Tax Return Summary and T1 General [17]. Although he stated that he went to India in 2017 to visit his father, it is his position that he was not intentionally unemployed; he simply could not find work. Similarly, Mr. Mohammed takes the position that he was not intentionally under-employed in 2018; rather, he worked in IT in India to gain valuable experience, and he is working in part-time pizza delivery in Toronto because it is all he can do.
Analysis
[60] Section 19(1)(a) of the Federal Child Support Guidelines [18] provides that the court may impute income if a spouse is “intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse.”
[61] The leading case on imputing income in Ontario is Drygala v. Pauli, 2002 CarswellOnt 3228 (C.A.). Pursuant to Drygala, a spouse is intentionally underemployed if he or she chooses to earn less than he or she is capable of earning having regard to all of the circumstances (paragraph 28). There is no requirement that the under-employment or unemployment be undertaken in bad faith or with the intention of avoiding support payments (paragraphs 29 to 36).
[62] The onus of establishing an evidentiary basis that the other party is under or unemployed is on the party seeking to impute the income. In this case, the onus is on Ms. Sultana. However, Mr. Mohammed has admitted to not being employed at all in 2017, by his own choice, and being only minimally employed in 2018. Mr. Mohammed’s lack of employment or under-employment has not been required by the needs of a child of the marriage. Nor has it been required by the reasonable educational or health needs of Mr. Mohammed. Although Mr. Mohammed has indicated it is his intention to go to school in 2019 at Fanshawe College to upgrade himself with the hope of getting a job in IT, it is simply his choice to do so, without regard to the needs of his children. The OSAP loan document that Mr. Mohammed provided, moreover, only confirms that the course is on-line. The court has no evidence to support that Mr. Mohammed could not be employed at the same time. Additionally, as I have indicated above, Mr. Mohammed has provided no medical evidence to support that he is incapable of being employed on a fulltime basis.
[63] In Verhey v Verhey, 2017 ONSC 2216, Justice Shelston found at paragraph 35:
[35] When considering the spouse’s capacity to earn income, the court should consider, among others, the following principles:
(a) There is a duty on the spouse to “actively seek out reasonable employment opportunities that will maximize their income potential so as to meet the needs of their children” (Thompson v. Thompson, 2014 ONSC 5500, at para. 99);
(b) A spouse’s capacity to earn income can be influenced by his or her age, education, health, work history, and the availability of work that is within the scope of his or her capabilities (Marquez v. Zaipola, 2013 BCCA 433, 344 B.C.A.C. 133, at para. 37);
(c) A spouse can be found intentionally under-employed or unemployed if he or she quits employment for selfish or bad faith reasons, or engages in reckless behaviour that results in a reduction of his or her income earning capacity (Scott v. Chenier, 2015 ONSC 7866, at para. 48);
(d) A spouse cannot avoid support obligations by a self-imposed reduction in income (Le Page v. Porter (2002), 7 R.F.L. (5th) 335 (Ont. S.C.), at para. 27);
(e) Where a spouse experiences an involuntary loss of employment, courts will grant a “grace period” to allow the spouse to seek out replacement work. However, the absence of a reasonable job search will leave the court with no choice but to find that the spouse is intentionally under-employed or unemployed (Filippetto v. Timpano).
[64] With respect to subparagraph (a), Mr. Mohammed has not provided sufficient evidence that he has actively sought out reasonable employment opportunities that would maximize his income potential to meet the needs of the children. Indeed, he did not provide any evidence of his efforts, but to say that he looked for a job in 2017. Mr. Mohammed chose to travel to India, seemingly on more than one occasion in 2017, and he chose to stay there in 2018. Although he indicated that the market in IT is better in India, he gave no evidence that he sought to maximize his opportunities there; rather he took a relatively low-paying job for his own purposes.
[65] With respect to subparagraph (b), Mr. Mohammed has the educational qualifications to work in IT. He may also have extensive experience in it, if the resume or LinkedIn profile are to be believed. If they are not, he has experience working in IT, including as an Oracle Database Analyst, in 2016 and 2018. The only evidence that the court heard with respect to the availability of work within the scope of Mr. Mohammed’s qualifications was from him, and it was that IT companies in Canada (and presumably the U.S., if he was looking there) require more experience than he has. Because Mr. Mohammed was not credible when it came to the issue of his resume, and what experience he actually has, it is hard for the court to conclude that he would not be able to find employment in IT commiserate with his experience. More pointedly, Mr. Mohammed did find work in IT in 2016, which demonstrated that he was capable of earning $60,000 U.S.D. per annum. Additionally, subsequent to his departure from Tek Tree, Mr. Mohammed found work in Canada which demonstrated that he was capable of earning $51,294.95 over the course of a four month contract (or approximately $12,000 per month).
[66] In regards to subparagraph (c) above, the reasons for Mr. Mohammed’s departure from Tek Tree in March of 2016 are not clear to the court. The only evidence Mr. Mohammed gave was that he was not able to concentrate as a result of his family situation, and he was fired as a result. It is possible that Mr. Mohammed chose not to remain in Austin after the breakdown of his marriage. It is possible that Tek Tree may have discovered that Mr. Mohammed did not have the experience he led them to believe he had. It is possible that Mr. Mohammed’s behaviour was reckless. I have already found, in the absence of any evidence to the contrary, that Mr. Mohammed’s departure from Tek Tree was voluntary.
[67] In regards to subparagraph (d), certainly in 2017, it appears that Mr. Mohammed unilaterally made decisions which resulted in him avoiding his support obligations. Mr. Mohammed has two young children, for whom he has provided next to no support since separation. For reasons not really articulated to the court, Mr. Mohammed simply chose not to work in 2017, not even in jobs in which he admits he does have experience, such as working in a department store or managing a convenience store. Mr. Mohammed admitted in cross-examination that jobs of those types have in the past resulted in an annual income to him of approximately $19,000. A fulltime, minimum wage job in Ontario would currently provide him with an annual income of approximately $26,250. In 2017, Mr. Mohammed did neither. In 2018, he states that he made approximately $3200 to the end of August, and currently is making approximately $1000 per month as a part-time pizza delivery man as of November 1, 2018. Under these circumstances, the court has no trouble finding that Mr. Mohammed was intentionally unemployed in 2017 and is intentionally under-employed in 2018.
[68] Finally, in regards to subparagraph (e) above, as I have already indicated, Mr. Mohammed has provided no evidence of “a reasonable job search” post-November of 2016, and he must be found to be intentionally under-employed currently and intentionally unemployed in 2017.
[69] Ms. Sultana has thus met her evidentiary burden in seeking to have the court impute income to Mr. Mohammed. As I have indicated, Mr. Mohammed has demonstrated that he is capable of making a significant income in IT. Indeed, he had the opportunity to make $60,000 U.S.D. per year up to and including September of 2018. Given Mr. Mohammed’s actual experience in 2016, it is not unreasonable to believe that he is capable of making at least $65,000 Canadian per year. Mr. Mohammed will be required to pay child support on his actual gross income in 2016, which I find was $67,702.86 and income of $65,000 per year will be imputed to him for the purposes of on-going support from January of 2017.
[70] For 2015, Mr. Mohammed was employed by Tek Tree in Austin, Texas for the months of November and December. The only evidence the court received with respect to Mr. Mohammed’s income from Tek Tree in 2015 was from W-2 Wage and Tax Statements, which indicated that he earned $5,045.60. Although the court has found that October 29, 2015 was the date of separation, it was undisputed that Mr. Mohammed traveled back to Ottawa in November and December to see the children. Given that he only began to earn income in November of 2015, that he would have had expenses associated with relocating to Austin and that he travelled back each month to exercise access to the children, there will be no support payable for the months of November and December of 2015.
[71] In regard to Mr. Mohammed’s actual 2016 income, as I have indicated, no evidence was given by Mr. Mohammed as to why the taxable dividend paid to him by Atraams Solutions Inc. was only $20,389.59. Additionally, he gave no information as to the necessity of maintaining capital in the corporation, or of any corporate expenses. Having said that, it is reasonable that some minimal capital would be required for operating expenses of the corporation. The court is, therefore, prepared to reduce the total amount received by Atraams Solutions Inc. from Ian Martin Ltd. of $51,294.95 by $5,000. Mr. Mohammed’s 2016 income will therefore consist of the $21,407.91 (in Canadian dollars) deposited into his Bank of America account by Tek Tree between January and March of 2016 and $46,294.95 of the monies paid by Ian Martin Ltd. to Atraams Solutions Inc., for a total 2016 income of $67,702.86. Pursuant to the 2011 FCSG tables, child support for two children on an annual income of $67,700 is $1,006 per month, which is the sum Mr. Mohammed will be required to pay from January 1 to December 31, 2016. Total arrears of child support payable by Mr. Mohammed for 2016 are fixed at $12,072. Ms. Sultana gave evidence that Mr. Mohammed paid her $2,000 in child support in 2016. Mr. Mohammed shall, therefore, receive credit for that amount.
[72] In 2017, table support for two children on an annual income of $65,000 is $966 per month to the end of November. In December of 2017, the new FCSG’s came into effect, and the table amount for two children on an annual income of $65,000 is $991 per month. Total arrears for child support payable by Mr. Mohammed for 2017 are $11,617.
[73] Commencing January 1, 2018, Mr. Mohammed will be required to pay Ms. Sultana $991 per month in support of the two children of the marriage. Ms. Sultana indicated that between January and September of 2018, Mr. Mohammed paid her a total of $800 in child support. Additionally, effective October 18, 2018, a temporary order for child support was made by Justice Laliberte requiring Mr. Mohammed to pay Ms. Sultana $459 per month based on an imputed income of $30,000. Mr. Mohammed shall receive credit for any payments to date as per the order, as well as for the $800 he paid directly to Ms. Sultana in 2018.
Issue #3 - What is the appropriate retroactive and on-going amount of section 7 and extraordinary expenses that Mr. Mohammed should be paying?
[74] Ms. Sultana seeks an order that Mr. Mohammed pay one half of the children’s section 7 and extraordinary expenses, both back to the date of separation and on an on-going basis. In particular, she seeks retroactive and on-going daycare expenses, as well as expenses for the children’s extracurricular activities and for any of their medical and dental needs that are not covered by her insurance with her employer. Ms. Sultana testified that her employer covers 80% of the expenses, so she is seeking that Mr. Mohammed be required to pay his portion of the remaining 20% of such expenses. The most significant expense that Ms. Sultana requests be shared by Mr. Mohammed is for the children’s daycare. Ms. Sultana testified that the children require before school and after school care. She indicated that she drops the children with their caregiver at 6:00 a.m. as she has to be at work for 7:00 a.m. The children take the bus to and from school from the daycare provider’s home, and Ms. Sultana picks them up about an hour and a half after school. Ms. Sultana indicated that she is also occasionally required to work on weekends and the same caregiver babysits the children when she does so. Ms. Sultana produced a series of handwritten daycare receipts from a “Fareeda” commencing in October of 2015 and continuing up to and including September of 2018. They were generally for $1,000 per month, but go up to as much as $1,300 per month if some babysitting was involved.
[75] Mr. Mohammed challenged Ms. Sultana’s request for daycare expenses. In the first instance, he indicated that he was still in Ottawa in October of 2015 and there were no daycare expenses incurred. Second, he indicated that there was no sign of a daycare provider when he was still coming back to Ottawa from Austin at the end of 2015. Third, Mr. Mohammed indicated that Ms. Sultana is seeking payment for such expenses when she was on a leave from work. Fourth, and more significantly, Mr. Mohammed questioned whether Ms. Sultana was or is actually paying for daycare at all. It was his evidence that “Fareeda” is Ms. Sultana’s mother, and that he recognized the writing on the receipts to be that of her father. Mr. Mohammed’s evidence was that when Ms. Sultana was not with him during the marriage, she was living with her parents. He thought it likely that she is currently actually living with her parents, and that her mother is simply caring for the children when she is not home, as she always has.
[76] Ms. Sultana did not want to provide the full particulars of the daycare provider to the court, ostensibly because of a concern about some form of harassment from Mr. Mohammed. She also did not want to provide particulars about her own address for the same reason. Although Ms. Sultana testified about being bothered at her former workplace, she did not provide examples of specific incidents (beyond saying in a general manner that Mr. Mohammed’s friends would be in her work parking lot at the end of the day). In any event, Ms. Sultana has been with a new employer since September of 2017, the name of which she also did not wish to provide. Mr. Mohammed has lived variously in Austin, Toronto and Hyderabad, India since November of 2015. The court heard absolutely no evidence with respect to any incidents of any form of harassment post-September of 2017. As I have indicated, the evidence prior to September of 2017 was, at best, vague and non-specific.
[77] Ms. Sultana chose not to provide the court with specifics with respect to whom is her daycare provider; she said only that it is a “private daycare”. Additionally, Ms. Sultana provided no proof of payment of the daycare expenses she is seeking to have Mr. Mohammed share. Ms. Sultana also herself testified that Mr. Mohammed was moving money from their joint account into other accounts, including her “disability payments”. Ms. Sultana did not advise the court of any particulars of her absence from work, such as from what date to what date or why. Her references to her disability payments, however, serve to bolster the evidence of Mr. Mohammed that she was indeed off of work for some period of time in late 2015 or early 2016, periods for which she is now seeking daycare expenses. Finally, Ms. Sultana’s evidence with respect to the children’s daycare was vague and lacking in credibility. On the whole, in the absence of necessary and credible evidence in this regard, I do not find that these expenses were incurred by Ms. Sultana.
[78] With respect to other section 7 expenses, Mr. Mohammed shall be required to pay one half, retroactively as well as proactively. Ms. Sultana shall provide Mr. Mohammed with copies of receipts of any expense she has paid for the children’s activities or medical/dental care to date, and he shall pay his one half share upon receipt of same.
Issue #4 - What, if any, is the equalization payment owed by one party to the other?
[79] Ms. Sultana provided a Net Family Property Statement in which she claims that Mr. Mohammed owes her an equalization payment of $24,453.01. The parties did not own a home together, and the only major assets appear to be some jewellery owned by Ms. Sultana before or at the time of marriage, and some funds which Mr. Mohammed has and/or allegedly moved from the parties’ joint account to somewhere else. The other controversial item in the NFP is the credit card debt of $6500 CAD, which is in Ms. Sultana’s sole name but which was incurred by Mr. Mohammed after the date of separation.
[80] Ms. Sultana testified that she came into the marriage with jewellery that was gifted to her by her parents and grandparents that was valued at approximately $35,000. Mr. Mohammed did not dispute either that Ms. Sultana owned the jewellery at the date of marriage, or its estimated value. The parties are currently engaged in a legal proceeding in India in regard to the Safety Deposit Box in the Bank of India in which Ms. Sultana stated the jewellery is kept. Mr. Mohammed testified that he brought the proceeding in an effort to remove Ms. Sultana from having access to the Safety Deposit Box. He stated that Ms. Sultana removed her jewellery from it while they were in India in 2014. He indicated that he had a personal account in the Bank of India prior to his marriage and that he alone has paid the fee on the Safety Deposit Box and he simply wants Ms. Sultana’s name off of it. It is his contention that the box belongs solely to him. Ms. Sultana indicated that her jewellery is in fact in the box, and the bank only permits access to the box if both holders of the keys are together. She asserts that Mr. Mohammed has attempted to fraudulently have her name removed from the box, in part by obtaining a divorce without notice to her in India. She stated that Mr. Mohammed is precisely seeking to get access to her jewellery. He has now brought a civil claim against her and the Bank of India, of which he also did not properly give her notice, but about which she has found out and is now defending. Clearly, the issue of access to the safety deposit box, or ownership of the property therein, in India is a matter to be decided by the courts of India. Nevertheless, this court finds that Ms. Sultana owned $35,000 worth of jewellery at the time of marriage and it, therefore, constitutes a valid date of marriage deduction.
[81] The other item of significance on the NFP is attribution to Mr. Mohammed of $22,000, which was removed from the parties’ joint RBC account ending in 9232 in two withdrawals. The first was on April 23, 2015 for $15,000 and the second was on July 28, 2015 for $7000. On April 23, 2015 there were two deposits of $15,000 each made to the joint account. Mr. Mohammed provided an explanation for one of them. He indicated that he had transferred $15,000 to the account from his Line of Credit for purposes of showing their prospective landlord that they had money for first and last month’s rent. He then transferred that sum back to his Line of Credit. There was, however, a second deposit of $15,000 to the joint account which was also removed the same day. One withdrawal was by way of “WWW LOAN PAYMENT” and the other was by way of “WWW TRANSFER”. Ms. Sultana stated that she had no idea where that money came from or where it went. Mr. Mohammed stated that he did not know anything about the second $15,000.
[82] The same thing occurred on July 28, 2015 when $7,000 was transferred into the joint account and then removed on the same day by way of “BR TO BR – 0666”. Again, Ms. Sultana indicated that she had no idea where the money came from or where it went. Both alleged that the other had complete control over the banking, Ms. Sultana alleging that she was subject to abuse if she involved herself, and Mr. Mohammed stating that Ms. Sultana did all the banking. Frankly, the court found it impossible to discern where the truth lay in regard to the parties’ financial dealings. I am not satisfied that Mr. Mohammed maintained $15,000 in his possession from the April 23, 2015 transactions. Given, however, that “BR 0666” belonged to Mr. Mohammed, absent some plausible explanation, the logical conclusion is that the $7,000 went somewhere that Mr. Mohammed put it. Barring testimony from Mr. Mohammed as to where the money went, I find the evidence supports that on a balance of probabilities these funds were in his possession at the time of separation. Thus, $7,000 will be attributed to Mr. Mohammed in his Bank Accounts and Savings, Securities and Pensions at the date of separation.
[83] Finally, Mr. Mohammed confirmed in cross-examination that his bank statement for his ICICI account in India showed a balance of $466,459 Indian Rupees, which was the equivalent of $15,000, as of July 29, 2017. Mr. Mohammed did not disclose that existence of this bank account (and possibly others) in his financial statements over the course of the proceedings. Mr. Mohammed’s answer to any question about his lack of disclosure, some of which was court ordered, was that he gave all that he had to his former lawyer, and it was his lawyer’s fault if proper disclosure was not provided. This was also Mr. Mohammed’s answer with respect to his Indian lawyer and lack of proper service of the Indian lawsuit. Mr. Mohammed did not explain why he obtained a Divorce in India without notice to Ms. Sultana.
[84] Mr. Mohammed did not provide a NFP statement. Based on a review of the NFP completed by Ms. Sultana, and of the documents which confirm the amounts therein, I find as follows;
- The value of the property owned on the valuation date by Ms. Sultana is $37,800.38; the value of the property owned on the valuation date by Mr. Mohammed is $33,906.02;
- The total debts and liabilities of Ms. Sultana is $0.00; the total debts and liabilities of Mr. Mohammed $0.00;
- The net value of the property owned by Ms. Sultana on the date of marriage is $35,000; the net value of the property owned by Mr. Mohammed on the date of marriage is $0.00;
- The value of excluded property for each is nil;
- Ms. Sultana’s net family property is $2,800.00; Mr. Mohammed’s net family property is $33,906.02.
- Mr. Mohammed thus owes to Ms. Sultana an equalization payment of $15,552.82.
[85] With respect to the credit card, Ms. Sultana testified that the card, an American RBC VISA, was in her sole name, and that Mr. Mohammed used it post-separation without her authorization. Mr. Mohammed admits to using the credit card and incurring a debt of $4,902.85 U.S. (or $6500 Canadian), but he denies that it was without the authorization of Ms. Sultana. He stated that the parties jointly made the decision to obtain a credit card that was in American dollars, precisely because he was going to work in Austin, Texas. Mr. Mohammed left Ottawa before the card was available, and provided evidence of his email exchanges with Mike Hons, the Banking Advisor at RBC, regarding his efforts to obtain the card once he was already in Austin. Although Ms. Sultana was not copied on these emails, Mr. Mohammed’s evidence was that she was very aware of his efforts to obtain the card and that he was going to be using it in Texas.
[86] Ms. Sultana testified that she was not aware of Mr. Mohammed’s use of the card until sometime in January of 2016 when she was asked by the bank when she would be paying the balance on the card. Ms. Sultana stated that she immediately complained to the bank, and after an investigation was conducted, the card was cancelled. Ms. Sultana received a letter from RBC, “Customer Care – Visa Fraud Mgmt” dated April 12, 2016 as a result of her complaint, which confirmed that her card was cancelled on that date “due to fraudulent activity.” [19] Ultimately, Ms. Sultana paid the credit card balance from a Line of Credit in order to avoid the high interest rate on the card. Ms. Sultana testified that she asked Mr. Mohammed to pay her back the balance on the card, but that he refused, stating that the card was in her name and had nothing to do with him. She seeks to claim the entire debt on her NFP.
[87] Regardless of whether the parties made the decision to obtain the card together, even specifically for Mr. Mohammed’s use in the United States, pre-separation, the fact of the matter is the court has found that they separated as of October 29, 2015. Mr. Mohammed did not even obtain the card until sometime after November 13, 2015. I find that Mr. Mohammed is solely responsible for whatever debts he incurred in Ms. Sultana’s name after October 29, 2015. Mr. Mohammed must, therefore, pay Ms. Sultana $6500 for the post-separation debt he incurred in her name.
Order
[88] Pursuant to the draft order approved as to form and content by both parties, there shall be a final order as follows:
(1) The Applicant Mother has sole custody of the children, Ayaan Rehman born January 21, 2010, and Armaan Rehman born August 23, 2012; (2) The Applicant mother shall have primary residence of the children; (3) The Applicant mother shall be able to obtain passports for the children, without the Respondent father’s consent; (4) The Applicant mother shall be able to travel outside of Canada with the children, without the Respondent father’s consent; (5) The Respondent father shall have supervised access to the children as agreed upon by the parties; (6) The Respondent father is not permitted to remove the children from the City of Ottawa; (7) The Respondent father is not to attend the Applicant mother’s place of residence, employment or anywhere she is known to be; (8) All communication between the parties is to be made in writing through email only and to be related to the children’s access only.
[89] For the reasons contained herein, there shall also be a final order as follows:
(9) The date of separation of the parties is October 29, 2015. The children have been in the sole primary care of the Applicant since that date; (10) Subject to the rules and regulations of the Canada Revenue Agency, the Applicant shall be entitled to the Universal Child Tax Benefit or Canada Child Benefit as of November 1, 2015; (11) Commencing January 1, 2016, the Respondent shall pay to the Applicant $1006 per month in support of the children of the marriage, Ayaan Rehman born January 21, 2010, and Armaan Rehman born August 23, 2012, being the 2011 FCSG table amount for two children on an annual income of $67,700. Arrears of child support for 2016 are fixed at $12,072. The Respondent shall receive credit for the payment of $2000 towards child support in 2016; (12) Commencing January 1, 2017 to November 30, 2017, the Respondent shall pay to the Applicant $966 per month in support of the children of the marriage, Ayaan Rehman born January 21, 2010, and Armaan Rehman born August 23, 2012, being the 2011 FCSG table amount for two children on an annual income of $65,000. Commencing December 1, 2017, the Respondent shall pay to the Applicant $991 per month in support of the children of the marriage, being the 2017 FCSG table amount for two children on an annual income of $65,000. Arrears of child support for 2017 are fixed at $11,617; (13) Commencing January 1, 2018, the Respondent shall pay to the Applicant $991 per month in support of the children of the marriage, Ayaan Rehman born January 21, 2010, and Armaan Rehman born August 23, 2012, being the 2017 FCSG table amount for two children on an annual income of $65,000. The Respondent shall receive credit for the payment of $800 in 2018, in addition to whatever payments have been made on the temporary order of Justice Laliberte of October 18, 2018; (14) The children’s section 7 and extraordinary expenses, other than daycare expenses, shall be shared equally by the parties and the Respondent shall pay the Applicant his share within 10 days of receiving a receipt from the Applicant of the said expense; (15) Any s. 7 or extraordinary expense to be incurred for the children in excess of $100 shall be agreed to in advance, with agreement not to be unreasonably withheld; (16) The Respondent shall pay to the Applicant the sum of $15,552.82 as equalization of the parties’ Net Family Property; (17) The Respondent shall pay to the Applicant the sum of $6500 in payment of the post-separation debt he incurred in her name; (18) Unless this order is withdrawn from the Director’s office, it shall be enforced by the Director of the Family Responsibility Office and amounts owing under the Order shall be paid to the Director, who shall pay then to the person to whom they are owed; (19) This Order bears post-judgment interest at the rate of ___% per annum effective from the date of this order. Where there is a default in payment, the payment in default shall bear interest only from the date of the default.
Costs
[90] If the parties are unable to resolve the issue of liability for costs of the Trial of An Issue after 15 days, after having exchanged copies of their bills of costs and all offers to settle, the parties may schedule an appearance before me through Trial Coordination to make brief submissions, and the court will make an order.
Engelking J.
Released: December 28, 2018