COURT FILE NO.: FS-17-91106

DATE: 2019 10 30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

SUHAIL MUMTAZ,

Applicant

• and -

TABASSUM SUHAIL,

Respondent

Faryal Rashid for the Respondent

HEARD: September 23, and October 10, 2019

REASONS FOR DECISION

Emery J.

1This family law case was commenced by the applicant husband, Suhail Mumtaz, for the sole purpose of obtaining a divorce for the respondent wife, Tabassum Suhail.

2Ms. Suhail filed an answer in which she made claims for corollary relief, including child support, section 7 expenses, spousal support and equalization.

3Mr. Mumtaz did not file a reply, or an answer to defend the respondent’s claims. He has not made the disclosure required of him by the Family Law Rules in relation to the relief to Ms. Suhail is seeking. He has not participated at all in this family law case since he filed his application.

4At a case conference on October 23, 2018, Bloom J. noted that Mr. Mumtaz is not likely to participate in this proceeding given the evidence before the court. However, he ordered that Mr. Mumtaz be served at his email address to provide him with notice to appear before the court on a motion date, failing which Ms. Suhail would be free to seek an order under Family Law Rule 1(8) striking the application, and for an order under Family Law Rule 1(8.4) setting a date for an uncontested trial.

5On November 13, 2018, Bloom J. heard a motion, presumably on notice to Mr. Mumtaz, and ordered that:

1. His pleadings be struck;

2. He was not entitled to any further notice of steps in the case;

3. He was not entitled to participate in the case in any way;

4. The court may deal with this case in his absence;

5. For the clerk (registrar) to set a date for an uncontested trial;

6. Service upon Mr. Mumtaz of any order of the court be made by email; and

7. Costs be reserved to the trial.

6The respondent’s claims therefore proceeded to trial on an uncontested basis before me on September 23, 2019. On that date, I required Ms. Rashid, counsel for Ms. Suhail, to provide further submissions and authority for the court to make the orders requested. I heard those further submissions on October 10, 2019.

7The respondent Tabassum Suhail is awarded judgment as follows, and for the following reasons.

Claim for divorce

8Mr. Mumtaz and Ms. Suhail were married on August 11, 1986. They separated on December 29, 2017 when Mr. Mumtaz was arrested for threatening Ms. Suhail with a knife. They have not co-habited since that time. This will be the valuation date for calculating the net family property of each party.

9I find that they have lived separate and apart with no reasonable prospect of reconciliation for at least one year. They are hereby granted a divorce.

Equalization

10Ms. Suhail confirmed the following property was owned by each of the parties and had the following values on the valuation date:

Suhail Mumtaz

1. Half interest in the matrimonial home at $475,000.00 at 3696 Bangor Road, Mississauga

2. Bank accounts, securities and pensions $137,482.00 (including the $40,000 USD he removed from his US dollar chequing account two weeks before separation)

Subtotal: $612,482.00

Tabassum Suhail

1. Half interest in the matrimonial home: $475,000

2. 2007 Mazda 3 car: $2,500

3. Bank accounts and pensions: $87.09

Subtotal: $477,587.09

11Each of the parties is entitled to claim the same debts and liabilities as of the valuation date. Therefore, the following amounts are deductions for the mortgage ($80,848), the real estate commission ($23,837.50) and the real estate appraisal fee ($600). These amounts add up to a total deduction of $105,285.57 that will be deducted from the value of assets each party owned on the date of separation.

12As there was no evidence of excluded property or deductions for property, debts or other liabilities on the date of marriage, the net family property of Suhail Mumtaz and Tabassum Suhail is $507,196.50 and $372,301.50 respectively, leaving a difference of $134,895. Suhail Mumtaz is therefore ordered to pay one half that difference, in the amount of $67,447.46, to Tabassum Suhail as an equalization payment.

Post separation adjustments

13The respondent makes a claim for reimbursement of all amounts the applicant should have paid for his share of the mortgage, property tax and property insurance on the matrimonial home between January 2018 and October 2019. She also claims reimbursement for all section 7 expenses she has paid on behalf of the youngest child of the marriage, Zaeem Suhail. Zaeem is now 24 years old and a full-time student at the University of Toronto. Those section 7 expenses include all school fees and tuition Ms. Suhail has paid on Zaeem’s behalf.

14For the same reasons set out in respect of his obligation to pay spousal support, I find that Suhail Mumtaz should have an annual income of $90,000 imputed to him and that Tabassum Suhail has little income, if any. In proportion to their incomes, I find that Mr. Mumtaz should pay 100% of Zaeem’s school fees and tuition.

15Mr. Mumtaz should also pay his one half share of the mortgage, property tax and property insurance on the house since the date of separation.

16I therefore find on the evidence that Suhail Mumtaz owes the following post separation expenses to Tabassum Suhail as of October 10, 2019:

1. Mortgage $16,195.86

2. Property tax $5,516.13

3. Property insurance $1,141.03

4. Zaeem’s school fees and tuition $16,007.00

Total: $38,860.02

Spousal support

17Ms. Suhail gave evidence in her affidavit and during her testimony at trial that Mr. Mumtaz is a geophysicist engineer. During the marriage, Mr. Mumtaz was employed by Amerapex Corporation, a US company based in Houston, Texas. In a letter dated January 24, 2016, Amerapex stated that Mr. Mumtaz has worked for Amerapex Corporation as a geophysicist consultant since January 20, 2010. The letter describes how Mr. Mumtaz provides services as a contractor and not as a regular employee. The letter goes on to state that his earnings were around $3,000 USD per month, or $36,000 USD per year.

18While working for Amerapex, Mr. Mumtaz would provide his services in Pakistan.

19Ms. Suhail has received a copy of the letter from Amerapex to Mr. Mumtaz dated August 21, 2017 in which Amerapex advises Mr. Mumtaz that his independent contractor agreement will terminate effective September 30, 2017. The letter also reminds Mr. Mumtaz that his agreement contains provisions restricting his ability to compete with Amerapex for a two year period.

20In contrast to the letter from Amerapex in August 2017, Ms. Suhail has provided evidence of the LinkedIn profile and the Facebook page for Mr. Mumtaz where he identifies himself as chief geophysicist at Amerapex, USA from January 2010 to the present.

21Wajiha Suhail is the oldest daughter from the marriage. She is 31 years old. Wajiha testified as a witness at trial that:

a) Her father’s employment as a geophysicist was always located outside Canada, sometimes in Pakistan, Libya or in the United States;

b) Her father was always the main income earner of the family;

c) She accessed the LinkedIn page for Mr. Mumtaz the month before the trial. He described himself as chief geophysicist for Amerapex on that page; and

d) To the best of her recollection, Mr. Mumtaz was always paid by Ameripex in US dollars.

22Waijha has not had any contact with her father since December 2017.

23Mr. Mumtaz provided notices of assessment for 2014, 2015 and 2016 through his previous lawyer which showed the following income:

2014

$32,208

2015

$35,843

2016

$37,570

24Despite the income Mr. Mumtaz has declared to Canada Revenue Agency for the years 2014-2016, Ms. Suhail produced a copy of an application to TD Canada Trust that Mr. Mumtaz completed for personal credit. This application shows his gross annual income of $90,000. This application for personal credit was printed on December 18, 2017.

25Ms. Suhail has also provided bank statements from their joint account between 2012 and 2014 that show direct deposits made each month in the amount of $9,990 in US funds as pay for services Mr. Mumtaz provided to Amerapex. Ms. Suhail added up these direct deposits and testified that Mr. Mumtaz received the following pay in US funds during those years:

2012

$81,934

2013

$87,667

2014

$79,113

26Ms. Suhail therefore asks this court to impute an annual income of $90,000, after conversion, to Mr. Mumtaz for support purposes, instead of the USD $36,000 shown by Amerapex Corporation.

27Mr. Mumtaz has not provided evidence of his current employment, or the income or other renumeration he is receiving from that employment. I find as a fact that if his independent contractor agreement was terminated effective September 30, 2017, he has entered a new agreement or has become employed as a chief geophysicist at Amerapex Corporation. This finding is based on the evidence shown by his application for personal credit at TD Canada Trust, and details from his current profile on social media.

28I further find that Mr. Mumtaz should have an annual income of $90,000 imputed to him based on his history of receiving pay by direct deposit in the amount of $9,990 monthly.

29Ms. Suhail testified that she has been a homemaker for her entire married life. She has no education and no training in the labour market. She is currently 60 years old. She has blood pressure issues and is on blood thinners. She cannot work.

30Ms. Suhail has given evidence that she has earned the following income between 2015-2017:

2015

$2,873

2016

$1,838

2017

$1,959

31Ms. Suhail states that she is in desperate need of support. It is her evidence that Mr. Mumtaz has paid her nothing for support since separation, and had paid nothing towards the carrying costs of the matrimonial home since January 2018.

32Ms. Suhail has also raised the four children of the marriage, sacrificing any prospect of a career to allow Mr. Mumtaz opportunities to advance his professional life and to earn greater income.

33I find that Ms. Suhail is entitled to spousal support both on a needs basis, and for compensatory support. I award Ms. Suhail spousal support in the amount of $3,211 a month, commencing January 1, 2018. This level of support is the mid range amount for a 32 year marriage, on a “without child” basis, where the payor earns $90,000 a year and the payee earns $1,938 annually under the Spousal Support Advisory Guidelines.

Vesting Order

Support payable as a Lump Sum

34In Hathway v. Hathway, 2017 ONSC 3490, Price J. reflected on the discretion of the court to order the payment of spousal support as a lump sum. He held that the court must state its reasons for doing so, as well as its rational for arriving at the particular amount to be paid. Price J. observed that the Court of Appeal had considered the procedure for determining lump sum support in Davis v. Crawford, 2011 ONCA 294. In Davis, the court overruled its earlier decision in Mannarino v. Mannarino, 1992 CanLII 14022 (ON CA), [1992] O.J. No. 2730 restricting the ability of the court to award lump sum support to situations where there is a very real risk that periodic payments would not be made, or to very unusual circumstances.

35In his thorough fashion, Price J. captured the essence of Davis by setting out the advantages and disadvantages of awarding lump sum support as follows:

28In Davis, the trial judge’s reasons made it clear that she awarded lump sum spousal support because of a real concern that the husband would not pay periodic support, and to effect a clean break between these parties. It was apparent that those factors outweighed the considerations militating against a lump sum spousal support.

29The advantages of a lump sum spousal support award can include, but are not limited to, the following:

a) terminating ongoing contact or ties between the spouses for any number of reasons (for example: short-term marriage; domestic violence; second marriage with no children, etc.);

b) providing capital to meet an immediate need on the part of a dependant spouse;

c) ensuring adequate support will be paid in circumstances where there is a real risk of non-payment of periodic support,

d) a lack of proper financial disclosure; or

e) where the payor has the ability to pay lump sum but not periodic support; and

f) satisfying immediately an award of retroactive spousal support.

30The disadvantages of such an award can include the following:

a) The real possibility that the means and needs of the parties will change over time, leading to the need for a variation;

b) the fact that the parties will be effectively deprived of the right to apply for a variation of the lump sum award; and

c) the difficulties inherent in calculating an appropriate award of lump sum spousal support where lump sum support is awarded in place of ongoing indefinite periodic support.

36At paragraph 31, Justice Price continued by saying that:

31In Davis, the trial judge found that the husband had greater assets and income than he acknowledged, and that he was trying to shelter them from the wife’s reach. Based on these factors, the trial judge concluded that there was a real risk the husband would not pay periodic support, and that this alone mandated an award of lump sum support, even though the wife would be deprived of the ability to seek a variation in the future. Further, the husband’s failure to make proper disclosure made a clean break desirable. In the absence of a clean break, the wife likely faced unending litigation to maintain her entitlement to spousal support.

37Like the trial judge in Davis v. Crawford, I have a very real concern that Mr. Mumtaz will not pay periodic support to Ms. Suhail. I also consider it to be in the interest of each of them to affect a clean break. I consider these reasons to outweigh the considerations militating against making an order for lump sum spousal support.

38Ms. Suhail gave evidence that she seeks lump sum support for the spousal support Mr. Mumtaz may owe to her since January 1, 2018. Ms. Suhail states in paragraph 42 of her Form 23 affidavit that she has calculated that lump sum support for seven years at $201,330. In paragraph 43 of her affidavit and in her testimony at trial, she gave evidence that she was seeking lump sum support of $201,330 to be paid from Mr. Mumtaz’ share of the matrimonial home.

39Ms. Suhail has provided evidence that meets the test for an award of lump sum support in the amount of $201,330.

40When Ms. Rashid made further submissions to the court on October 10, 2019, she advised that the claim Ms. Suhail is making for lump sum support has been adjusted to support for nine years, which would amount to $256,727. However, no further evidence was given to change the evidence given by Ms. Suhail herself. Ms. Suhail’s claim for lump sum support is therefore limited to $201,330.

Vesting Order to enforce Judgment

41Ms. Suhail is seeking a vesting order to effectively transfer the one half interest of Suhail Mumtaz in the matrimonial home to herself in partial satisfaction of the equalization payment, post-separation expenses, lump sum spousal support and any costs she may be awarded.

42I asked Ms. Rashid to provide me with the authority to vest the payors interest in the matrimonial home in the name of the payee to satisfy any judgment I may grant. She directed me to the decision of Scott J. in Afridi v. Shah, 2016 ONSC 1971, a case that is remarkably similar to the facts before me. In granting a vesting order to satisfy awards of property and support, the court explained that:

30The court has jurisdiction to grant vesting orders, generally pursuant to s. 100 of the Courts of Justice Act, R.S.O. 1990, c. C.43, and specifically herein, pursuant to s. 9(1)(d)(i) and s. 34(1)(c) of the Family Law Act, R.S.O. 1990, c. F.3. These latter two provisions give a court discretion to enforce payment of an entitlement either for an equalization of family property or an accumulated support order in appropriate circumstances (see Lynch v. Segal, 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641).

43I have also considered the decision of the Court of Appeal in Lynch v. Segal, 2006 CanLII 42240. In Lynch, Blair J.A. recognized that vesting orders are discretionary. They have their origins in the equitable jurisdiction of the court to make such orders that are just.

44The court may grant a vesting order that will, in effect transfer a property interest to enforce an award of spousal support, as well as to secure or satisfy an equalization payment: Blatherwick v. Blatherwick, 2015 ONSC 2606 (SCJ). The court should exercise its discretion to grant a vesting order if there is evidence based on the payors past and anticipated future behaviour that indicates it is likely unsecured orders for property or support will not be obeyed unless an order containing more intrusive provisions is made. See Kennedy v. Sinclair, 2001 CanLII 28208 (ON SC), 2001 Carswell Ont. 1634, affirmed at (2003) Carswell Ont. 2507 (Ont. C.A.).

45I conclude that there is little likelihood, if any at all, that Mr. Mumtaz will pay spousal support on a retroactive or on an ongoing basis to Ms. Suhail. In my view, the only way Ms. Suhail will collect the support is to award that support on a lump sum basis. In order to collect that lump sum support from the interest that Mr. Mumtaz currently holds in the matrimonial home an order vesting his interest his interest in 3696 Bangor Road in Mississauga to her is granted.

Costs

46Ms. Rashid has submitted a bill of costs for the uncontested trial on behalf of Ms. Suhail in which she seeks $14,008.25 for fees, disbursements of $915, and HST of $2,377.02 for a total of $17,327. A close review of the bill of costs reveals that the fees and disbursements relate not only to the uncontested trial but the entire application since Ms. Suhail’s first consultation with Ms. Rashid on January 11, 2018. All of this work includes the preparation of an answer and related financial statements, correspondence with counsel at the time Mr. Mumtaz was represented, and the case conference and motion before Justice Bloom.

47I would be remiss if I did not take this opportunity to observe that the Form 23C affidavit and the further book of closing submissions Ms. Rashid prepared on behalf of her client was thorough, organized and most helpful to the court.

48In her submissions, Ms. Rashid advised that Ms. Suhail is capping her claim of costs at $15,000. I find the costs claimed in this amount to be reasonable. An award of costs at a higher level than partial indemnity costs is justified in this case because there is an element of bad faith inherent in the conduct of Mr. Mumtaz. He failed to participate in the family law case that he in fact initiated. I draw the inference that he has failed to participate because the issues are not of his choosing. This omission included his failure to make any disclosure whatsoever.

49Ms. Suhail is therefore awarded $15,000 in costs, payable by Mr. Mumtaz from his interest in the matrimonial home.

Transfer of the Honda vehicle

50Ms. Suhail seeks an order transferring ownership of the Honda Pilot vehicle, the VIN 5FNYF3H22DB501021 into her name as a family gift.

51The court inquired whether this relief was requested in the answer. Ms. Rashid indicated that it was not. Ms. Rashid advised the court that she would seek leave of the court to amend the answer to plead this relief.

52On request and unopposed, leave was granted to amend the answer and an order shall go as follows:

Tabassum Suhail is hereby permitted to transfer ownership, either from the name of Suhail Mumtaz as owner, or to delete his name as an owner if ownership is held in the names of Suhail Mumtaz and Tabassum Suhail jointly, of the vehicle Honda Pilot VIN 5FNYF3H22DB501021 so that ownership to the vehicle remains in the name of only Tabassum Suhail, as a family gift of a used vehicle, and that the signature of Suhail Mumtaz on any documents to effect this change in ownership is hereby dispensed with.

Amount of judgment

53The following judgment is therefore granted:

1. An order that the applicant Suhail Mumtaz and the respondent Tabassum Suhail are divorced;

2. Suhail Mumtaz shall pay an equalization payment in the amount of $67,447 to Tabassum Suhail;

3. Suhail Mumtaz shall pay post-separation expenses in the amount of $38,860.62 to Tabassum Suhail;

4. Suhail Mumtaz shall pay spousal support to Tabassum Suhail in the amount of $3,211 each month, effective January 1, 2108 for seven years. This spousal support is based on an annual income for Suhail Mumtaz of $90,000, and an annual income of Tabassum Suhail in the amount of $1,959. This spousal support shall be paid on a lump sum basis in the amount of $201,330;

5. Suhail Mumtaz shall pay costs to Tabassum Suhail for this application including the uncontested trial, fixed in the amount of $15,000, all inclusive;

6. Tabassum Suhail is permitted to transfer ownership of the Honda Pilot vehicle into her name alone and any requirement for the signature of Suhail Mumtaz on any documents to affect that transfer is hereby dispensed with;

7. The interest of Suhail Mumtaz in the matrimonial home is fixed at $394,152, after subtracting $80,848 currently owing for one half the mortgage. The amounts set out in paragraphs 2, 3,4 and 5 of the judgment totalling $322,637.62 shall be deducted from the value of that interest, leaving a balance in the amount of $71,515.

8. All right claim or interest of Suhail Mumtaz in title to the matrimonial home located at 3696 Bangor Road in Mississauga, Ontario, more particularly described as Parcel 109-1, Section 43M692, not 109, Plan 43M692 and identified by P.I.N. 13411-0082 (LT), shall vest in the name of Tabassum Suhail, free and clear from any right, claim, or interest of Suhail Mumtaz;

9. The director of land titles is directed to delete the name of Suhail Mumtaz from title to 3696 Bangor Road, Mississauga. Where the signature of Suhail Mumtaz is required on any documents to affect transfer of title to that property as spouse or former owner, the requirement of that signature is dispensed with. Once the property at 3696 Bangor Road in Mississauga has been vested in the name of Tabassum Suhail, it shall no longer be considered a matrimonial home; and

10. If and when Tabassum Suhail sells 3696 Bangor Road in Mississauga, Ontario, she shall immediately pay $71,515 to Suhail Mumtaz for the amount remaining for his former interest in 3696 Bangor Road, or shall pay that amount into court to the credit of this court file, at her option and on notice to Suhail Mumtaz.

54Ms. Suhail may also file submissions consisting of no more than two pages on any mathematical corrections or request for clarification to these reasons she wishes to call to my attention, provided any requested correction or clarification is consistent with my findings of fact.

Emery J.