COURT FILE NO.: FS-18-0142

DATE: 2019 09 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Binal Patel v. Niravkumar Patel

BEFORE: D. E. Harris J.

COUNSEL: Lalit Kalra for Binal Patel, Applicant

Jaswant Mangat for Niravkumar Patel, Respondent

E N D O R S E M E N T

[1] The Applicant wife, Binal Patel, makes motion for child support, daycare expenses and costs of the child’s permanent residence application.

[2] At the heart of this motion is the question of imputing income to the Respondent husband under Section 15.1 of the Divorce Act and Section 19(1) of the Guidelines. It is the applicant’s position that the respondent has not only failed to make candid disclosure of his income but, what is more, is actively concealing his income for the purpose of avoiding his obligations. The respondent denies doing so.

[3] I am largely in agreement with the applicant. The lack of full disclosure, the respondent’s misconduct, and the available evidence compel the conclusion that the respondent earns significantly more income than he reports. The amount of $54,304.00 should be imputed to him based on his stated income from 2016.

THE MARRIAGE

[4] The couple married on May 18, 2013 in India. Mr. Patel, a Canadian resident, returned to Canada. Then his wife, sponsored by him, arrived in Canada on May 30, 2014. She is currently on a visitor’s visa.

[5] A daughter, Tashvi, was born to the couple on July 30, 2017 in New Jersey, United States. Mr. Patel was not present. Ms. Patel returned with the baby in late August. The couple separated not long afterwards, on October 1, 2017. Ms. Patel says that she was verbally abused and physically assaulted by Mr. Patel. Ms. Patel currently lives in Peel Region and Mr. Patel lives in Windsor.

MS. PATEL

[6] Ms. Patel is Tashvi’s caregiver. After separation on October 1, 2017, Mr. Patel did not visit his child until October 4, 2018. On that day, the parties entered into a consent before Justice Byrne to permit access for Mr. Patel every other Thursday for four hours. Up until early May 2019, access had only been exercised five times by Mr. Patel.

[7] Child support in the amount of $209 was being paid on an interim basis by Mr. Patel every month from June 2018 to February 2019. He missed two payments within this time. On March 29, he unilaterally reduced his monthly payment to $128.81. No section 7 expense contributions or childcare expenses have been made since separation. Tashvi receives no government support as she has no official status in Canada.

[8] Ms. Patel was a dentist in India. She worked up until separation in the family Subway restaurants. Her work was primarily as a cashier. She did not have access to the income earned and did not see her tax returns. It is alleged that it was Mr. Patel who reported her income for these years. The amounts, according to Ms. Patel, were highly inflated. The most glaring was $66,190 for tax year 2016. Counsel alleges that one of the reasons income was artificially increased was to maximize Ms. Patel’s maternity leave benefits.

[9] After coming to Canada, in 2015, Ms. Patel passed two of the three of her dental exams. In August 2016, she took an exam to become a dental assistant. She passed and started working as an assistant after coming back from maternity leave in June of 2018. She was at the same time studying for her final dental exam. She passed it and was licenced to practise dentistry in March of 2019.

[10] Ms. Patel’s notices of assessment for reported income are:

$3,964 in 2014

$31,252 in 2015

$66,190 in 2016

$46,272 in 2017

[11] Ms. Patel was on maternity leave until early June 2018. After that time, while caring for her newborn daughter and studying for her dental exam, she worked part-time and made approximately $5,000 to the end of the year.

[12] Her income in 2019 from January to April for work as a dental assistant in two different clinics was $6,900.

[13] After numerous job applications, hampered by her lack of Canadian experience and less than perfect English, she was hired on April 24, 2019 to work part-time at a dental practice in Mississauga. Her estimated compensation at the time of the hearing of this motion was $2,700 per month.

MR. PATEL

[14] With respect to Mr. Patel, pursuant to the order of Justice Petersen dated September 13, 2018, he disclosed—amongst other things—2017 CIBC bank statements. There are very large deposits evident in the statement, $10,000, $50,000, $40,000, for example. There were also large withdrawals. In his questioning, he could not remember where these came from or what they were about.

[15] Mr. Patel’s resume indicates that he has only worked as a cashier. However, his LinkedIn profile indicates that he has an accounting degree. Ms. Patel alleges that he has been working in the family businesses—a string of Subway shops and other interests—but has failed to disclose it.

[16] During the questioning of Mr. Patel on April 30, 2019, he was blatantly evasive. He could not remember the answer to how old his parents are, when they moved to Canada, if he lived with them in India, or how much he pays in mortgage payments, home insurance or property tax. He was very evasive concerning how many Subway restaurants he has worked in and who owns them and his work history in Canada. He claimed, upon being shown his LinkedIn profile, that someone else used his information and created a profile. However, after a time, he admitted working as an accountant. He said that there was no record of employment from the firm he was working for.

[17] He could not remember from where he received the down payment to purchase the matrimonial home or how much it was.

[18] With respect to a motor vehicle accident in September of 2017, Mr. Patel relies on physical and psychological injuries and effects to explain his drop in income. He says he cannot work steadily. Medical reports have been filed to support this. However, he has failed to disclose an unredacted copy of the ambulance report and has given no explanation for this.

[19] During the questioning of Ms. Patel on May 6, 2019, Mr. Patel stated that he had recorded his own questioning on April 30, 2019 on a tablet which was in his bag. This would likely have included private discussions during the breaks between Ms. Patel and her counsel when Mr. Patel was not present. When asked, Mr. Patel refused to produce the recording. His counsel went through his bag and found a tablet but Mr. Patel claimed it was a different tablet than the one he had used.

[20] Ms. Patel and her counsel refused to continue with the May 6 questioning. The next day, counsel for her stated that questioning could continue if the recording was produced and if no use would be made of the recording. This was refused. Further discussions failed to clear the impasse.

[21] In his notices of assessment, Mr. Patel says his income in past years was:

$54,304 in 2015

$47,215 in 2016

$34,566 in 2017

$17,563 in 2018

DECISION

[22] On several grounds, I find that Mr. Patel is not worthy of belief. He has failed to show his income deposits from his employment. His massive deposits and withdrawals in the CIBC account are unexplained. He was evasive about his family’s involvement with Subway shops despite the fact that Ms. Patel has attested that she worked in the Subway stores and the family clearly had an interest in them.

[23] The respondent’s general evasiveness in questioning was quite remarkable. Much of his pervasive lack of knowledge was most certainly feigned. All in all, it would be much easier to list what Mr. Patel has been forthright about then what he has not.

[24] The coup de grace to Mr. Patel’s credibility is the business about recording the questioning. He now says that he was not telling the truth about recording it. Either way, the damage to his credit is substantial. If he lied about recording it in the first place, it would have been a purely gratuitous, nonsensical lie. If he was telling the truth, he would have been admitting to a serious criminal offence: the non-consensual interception of private communications contrary to Section 184(1) of the Criminal Code. This offence is straight indictable and has a maximum term of five years incarceration. The seriousness of the offence is greatly increased by the incursion into solicitor-client privilege, one of the most protected and sacrosanct privileges under our law.

[25] Although counsel for Ms. Patel argued that opposing counsel was obligated to continue the questioning, I disagree. The prospect that information could be used which had been surreptitiously obtained from a criminal breach of solicitor-client privilege fully justified the refusal to continue the questioning. An undertaking not to use such information was a reasonable request. Absent compliance, Ms. Patel could not be expected to continue.

IMPUTING INCOME

[26] Imputing income involves evaluating whether a spouse is underemployed or unemployed: Drygala v. Pauli (2002) 2002 CanLII 41868 (ON CA), 61 O.R. (3d) 711, 219 D.L.R. (4th) 319 (C.A.). However, the real issue in this case and one which is a logical precondition to the imputation question is whether the respondent has been forthright about his low income over the last two years. Full and honest disclosure is an essential pre-condition of family law litigation. Without it, no other part of the process can be embarked on in a rational or logical way: Roberts v. Roberts, 2015 ONCA 450 at paras. 11-13.

[27] I find that Mr. Patel has not been forthright in his disclosure. The large unexplained deposits and withdrawals from his CIBC account bespeak substantial wherewithal. With respect to the effect of the motor vehicle accident in 2017, I do not accept that this has truly lowered his income earning potential as he has said. The failure to produce an unredacted report and his low general credibility count against him in this regard. I find that he is hiding his true income and is making more than is reported.

[28] His highest income pre-separation, a time before he had a motivation to misrepresent his true income, was $54,304 in 2016. This is the income I would attribute to him. At this motion phase, this constitutes the best and most reasonable guide to his true income and his income earning ability.

[29] The attributed income of the applicant will be set at $30,000, her probable income this year

[30] There will be the following ordered:

a) The respondent to pay child support in the amount of $501 per month retroactive to May 1, 2019. A corresponding support deduction order will be made for the purpose of enforcement.

b) Daycare expenses from March until May 2019 requested are $1,580. Consistent with their respective incomes, the respondent is obligated to pay 64% of this figure. Going forward, this same split should be maintained.

c) The same ought to apply to the immigration application fees for the child of the marriage. The applicant has paid $2,950. Again, the respondent’s portion is 64%.

D. E. Harris J.

DATE: September 9, 2019

COURT FILE NO.: FS-18-0142

DATE: 2019 09 09

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Binal Patel v. Niravkumar Patel

COUNSEL: Lalit Kalra for Binal Patel, Applicant

Jaswant Mangat for Niravkumar Patel, Respondent

ENDORSEMENT

D. E. Harris J.

DATE: September 9, 2019