ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DIPAKSHI VERMA,
Applicant
Self-Represented
- and -
JASWINDER SINGH BHOOI aka JAZZ BHOOI,
Respondent
A. Rick Toor, for the Respondent
HEARD: October 15, 2018, November 15, 2018, January 7, 2019, and April 1, 2019
REASONS FOR DECISION
Emery J.
1In this case where the date the parties separated is a central issue, there is no dispute the parties have spent far more time apart than they have together during the marriage.
2The applicant Dipakshi Verma commenced this application on August 17, 2015 when she finally accepted the fact that she and her husband, the respondent Jaswinder Bhooi, were living separate apart with no reasonable prospect of reconciliation. Ms. Verma seeks relief in the nature of a divorce, spousal support, and an equalization payment and other orders, among other things. The date of separation is relevant to the determination of the issues relating to spousal support and equalization, with Mr. Bhooi favouring an earlier date.
3After numerous appearances before various judges for case conferences and on motions, Shaw J. ordered a focused hearing under Family Law Rule 1(7.2). The purpose of the focused hearing is for the court to make factual findings that will be pivotal to the determination of larger issues. On consent, Shaw J. defined the following questions for the court to answer:
- The date of separation;
- The income of both the applicant and the respondent; and
- Whether the respondent has been financially supporting the applicant.
4The parties agreed that it would take only one day to hear evidence on the stated purpose for this hearing. The hearing took the form of a hybrid trial, with the parties giving their evidence in chief by affidavit, with a few minutes to augment their evidence testimony, and then for each to be cross-examined.
5Contrary to the very reason a focused hearing was ordered, this trial took far longer than anticipated owing to the density of evidence regarding events that took place over 17 years.
6Ms. Verma called Mr. Bhooi’s former wife, Rajinder Bhooi, as a witness. Ms. Bhooi is also a named as an additional respondent as she is a director and sole shareholder of 1662050 Ontario Inc. (“166”), a corporation Mr. Bhooi may or may not control. Ms. Verma and Mr. Bhooi also gave evidence with respect to facts they ask this court to find to support their respective versions of the marriage and its breakdown. This focused hearing took three days for the parties to give evidence, despite the procedure carefully crafted by Justice Shaw for it’s intended to purpose.
7The court also had the benefit of a factum and closing submissions in writing from each of the parties. This hearing was focused on the three questions for which evidence was given. These are the only those questions I propose to answer in these reasons, without making any determination of the actual claims made by one party against the other. Those issues must be resolved or adjudicated by the court on a full evidentiary record at a later time.
1. Date of separation
8The purpose for finding the date of separation was not specified by the court when the focused hearing was ordered under Family Law Rule 1(7.2). I have therefore reviewed the application and the answer to determine the relevance of making that determination.
9In her application, Ms. Verma seeks an order deciding the ownership of certain property, and an order for an equalization between net family properties under section 5 of the Family Law Act. The concept of a valuation date is central to any determination of ownership or in the calculation of net-family property under the Family Law Act. I consider the definition of “valuation date” as one of the earliest of enumerated dates to be the date the spouses separate and there is no reasonable prospect that they will resume cohabitation.
10Ms. Verma also claims spousal support in her application. I therefore consider it relevant to determine the length of time Ms. Verma and Mr. Bhooi cohabited as a factor under section 15.2(4) of the Divorce Act, or section s.33(9)(l)(i) of the Family Law Act for support.
11The Divorce Act applies for granting a divorce where there has been a breakdown of the marriage. The fact that the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding requires the identification of the date of the marriage breakdown for that ground under s. 8(2) of the Divorce Act. Section 8(3) goes on to explain the calculation of the period of separation for the purposes of living separate and apart for at least one year:
(3) For the purposes of paragraph (2)(a),
(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totaling, not more than ninety days with reconciliation as its primary purpose.
12This statutory reference provides a guide for receiving the evidence and a serves as a starting point to determine the date of separation for the parties and the purpose its determination has been ordered.
13There is no dispute that the parties separated on July 30, 2015 and have never exhibited an intention to reconcile since that time. The application was commenced on August 17, 2016. There is no issue that the breakdown of the marriage between the parties has been established to entitle them to a divorce order because they have lived separate and apart now for at least one year with each of them having the intention to live separate and apart from the other.
14The parties cannot agree on the date or occasion they were married. According to Ms. Verma, the parties were married in India on December 7, 2002. The wedding was a simple ceremony that took place at a Hindu temple in New Delhi, India. According to the Mr. Bhooi, the parties were married on April 23, 2002 in a religious ceremony at the Vishnu Mandir in Richmond Hill, Ontario.
15Following the wedding, the parties took a trip to Cuba. There, the parties had an intense verbal disagreement, and did not communicate with each other for three days. The marriage was off to a rocky start, and almost foundered on the Cuban shore.
16The parties made up and cohabitated with each other upon returning to Canada after the honeymoon. However, they physically separated in or around March 2003.
Fact relating to separation according to Ms. Verma
17Ms. Verma meet Mr. Bhooi through friends in August 1997. They became romantically involved, even though they were each married to other people. Between 1997 and September 2001, Ms. Verma worked part time in a cafeteria, and as a flight attendant at Canada 3000, an airline.
18Ms. Verma went back to New Delhi, India to visit her parents in November 2002. Mr. Bhooi joined her in India and asked her parents for Ms. Verma’s hand in marriage. After satisfying Ms. Verma’s father that he was divorced from his previous spouse, Rajinder Bhooi, they were married in a simple ceremony in a Hindu temple in New Delhi, India on December 7, 2002.
19Ms. Verma returned to the Toronto area on December 23, 2002. After returning to Toronto, Ms. Verma obtained employment at iTravel2000. Mr. Bhooi also started a new business with a partner. Mr. Bhooi told Ms. Verma that he had also moved out of his family home and rented a condominium on Kaneff Crescent in Mississauga, where they would reside. It was a time of new beginnings for the married couple.
20Mr. Bhooi’s mother suffered a stroke in March 2003 in Detroit Michigan. Mr. Bhooi began to travel back and forth between Toronto and Detroit to care for her.
21In April 2003, Ms. Verma learned that she was pregnant and informed Mr. Bhooi of the news.
22In July 2003 Mr. Bhooi informed Ms. Verma that his mother had suffered a stroke that had left her paralyzed. In August 2003, Mr. Bhooi’s mother was brought back to Mississauga. Mr. Bhooi would travel between his parents’ home on Cheiftan Circle in Mississauga and the apartment on Kaneff Crescent to see his mother. There were days when she did not see Mr. Bhooi at all.
23On one of those days, Ms. Verma placed a call to the home of his parents to speak with him. Mr. Bhooi’s father answered the telephone. Ms. Verma introduced herself as Mr. Bhooi’s wife. This was news to Mr. Bhooi’s father, and he interrogated her because he was firmly of the belief that his son was already married.
24Mr. Bhooi was extremely angry with Ms. Verma when he returned to the apartment and told her that she had no business calling his parents home. Ms. Verma alleges that this encounter causes great emotional pain and as a result she suffered a miscarriage and lost their unborn child.
25There followed a turbulent period where Ms. Verma and Mr. Bhooi were constantly arguing. Finally, Mr. Bhooi told Ms. Verma that he never wanted to see her face again and that she must immediately return to India in order to save the marriage. They packed up all of the household items from the apartment on Kaneff Crescent and moved them into a storage unit.
26On November 1, 2003, Ms. Verma left for India. She states the Mr. Bhooi supported her both emotionally and financially while she was in India. They spoke on the telephone almost everyday and night, with Mr. Bhooi giving her regular updates on his mother’s condition.
27Ms. Verma states that Mr. Bhooi continued to support her financially by sending money to her through Western Union. She states that he transferred funds to her almost 15 times a year between the years 2003 and 2007.
28Mr. Bhooi never kept his promise to bring Ms. Verma back to Ontario within two months. However, he would call and text her demanding to know her whereabouts at all times.
29Ms. Verma states that while she was in India, Mr. Bhooi informed her that he had saved up enough money to buy a commercial office building at unit 5, 1060 Britannia Road East in Mississauga.
30Mr. Verma states that she was desolate without Mr. Bhooi and the distance between them. She kept pleading with Mr. Bhooi to bring her back to Toronto until he finally purchased an airline ticket for her return on August 7, 2007. She states that they rented a unit at Studio 6 Service apartment on Britannia Road and Highway 10 when she was in Canada at the time.
31Mr. Bhooi continued to spend time between the apartment with Ms. Verma and his parents’ home. Most times he would leave at midnight and not return for several days.
32On or about August 10, 2008, Mr. Bhooi shipped Ms. Verma and her belongings from the storage unit back to India. Yet again, Mr. Bhooi insisted that she return to New Delhi, India to save their marriage.
33On October 2008, Ms. Verma received the container that Mr. Bhooi shipped. She discovered that all of her important and personal documents were missing from the container, including documents from her previous jobs, reference letters, her Revenue Canada file, photo albums and expensive traditional clothing.
34In November 2009, Mr. Bhooi travelled to India to see Ms. Verma. Mr. Bhooi stayed with her and booked a hotel for them to stay. During this visit, Mr. Bhooi promised to bring her back to Ontario soon. He departed India for Canada on December 4, 2009.
35In early 2010, Mr. Verma received a call from a lawyer in Canada to tell her that Mr. Bhooi had been sentenced to jail. She later learned that he had been convicted for tax fraud and sentenced to three years in prison. During the time he was incarcerated, Ms. Verma and Mr. Bhooi would exchange romantic cards and letters.
36Ms. Verma received a call from Mr. Bhooi in April 2011 to inform her that he had been released from jail, and that he would bring her back to Canada as soon as his new business was established. He estimated that they would be reunited in approximately two months. While they spoke daily, a year and five months passed and still Mr. Bhooi did not tell Ms. Verma when he would bring her back to Canada to join him.
37Mr. Bhooi continued to support Ms. Verma financially and emotionally during this time. He would send money to her and to her cousin, Rachan Mehta because Ms. Verma’s passport had expired.
38Finally, on September 28, 2012, Mr. Bhooi purchased an airline ticket for Ms. Verma to return to Toronto.
39Upon her return to Toronto, Mr. Bhooi rented an apartment for them to reside at apartment 108-3880 Duke of York Boulevard in Mississauga. Ms. Verma states that they lived happily at the Duke of York Boulevard as husband and wife. However, Mr. Bhooi started to abuse her verbally and began moving back and forth again between that condominium and his parents’ home.
40Ms. Verma was distressed at the physical and emotional abuse she suffered at Mr. Bhooi’s hands. She informed Mr. Bhooi that she would go to the police and to his father if it continued. Mr. Bhooi would threaten her and pleaded not to ruin their marriage. He proceeded to apologize to her profusely for his actions and insisted that he wanted them to spend the rest of their lives together. He also told her that he had saved enough money for them to purchase their first home together. Ms. Verma accepted this apology and believed that he had changed.
41During Ms. Verma’s absence from Canada, her drivers license had expired. Mr. Bhooi wanted her to put his parents home address, 465 Cheiftan Circle in Mississauga, on her license as they did not have a permanent address.
42On November 22, 2012, Mr. Bhooi had his last Will prepared by Peter C Verbeek, a local lawyer. This Will names Ms. Verma as his wife and beneficiary of one half of his estate. Ms. Verma also states that he had a trust agreement prepared by Mr. Verbeek on November 22, 2012 where 50% of the shares in 1662054 Ontario Inc. and Kloog Contracting were given to her.
43From all accounts, Ms. Verma believed that Mr. Bhooi’s actions were sincere, and an effort to get their marriage back on track.
44In October 2012 Mr. Bhooi and Ms. Verma agreed that she would return to India one last time to pack up her belongings. Mr. Bhooi paid for her entry Visa to India and attended with her to pick up her Passport.
45On December 1, 2012, Ms. Verma returned to India to close down her apartment there. Mr. Bhooi had organized and purchased her flight to India. However, a year went by and Mr. Bhooi had still not purchased a return ticket for her. When she inquired about the date he was to arrange for her return, he assured her that he was wrapping up arrangements and would bring her back to Ontario as soon as possible. Mr. Bhooi continued to financially support her and to send funds through Western Union. Finally, on March 7, 2014, Mr. Bhooi purchased an airline ticket for Ms. Verma to return to Toronto.
46After her return to Toronto, Ms. Verma informed Mr. Bhooi that she wanted to work. She enrolled in an interior design school program with Mr. Bhooi’s assistance. Mr. Bhooi paid have the fees. She could not continue the program because Mr. Bhooi did not pay the balance and his credit card was declined by the bank.
47Mr. Bhooi again purchased an airline ticket and sent Ms. Verma to India under the pretext that she was to bring the remainder of her belongings back to Ontario. While she was in India, Mr. Bhooi did not return any of her calls. When she called his parent’s home in Mississauga, she was informed that he, Rajinder Bhooi and their daughter had left for Cuba. It was in this call that when she that when she told Ms. Bhooi’s father she was his sons’ wife, his father threatened to kill her if she returned to Canada. She continued to try and contact Mr. Bhooi.
48After ten days, Ms. Verma received a call from Mr. Bhooi. She was fed up with his actions and she informed him that she would go to the police. Mr. Bhooi became very abusive towards her verbally and questioned why she had spoken to his father. Mr. Bhooi finally agreed to bring her back to Canada to sort out all matters in dispute. He booked and paid for a one ticket from New Delhi to Toronto at that time.
49Ms. Verma arrived back in Toronto on February 12, 2015. Mr. Bhooi once again rented a condominium for them at apartment 4301- 60 Absolute Avenue in Mississauga. She states that they lived there happily together. She states that Mr. Bhooi paid all of the monthly rental payments to the landlord using cheques from his company, 1662054 Ontario Inc.
50Several months after her return, Mr. Bhooi would take to leaving the apartment in the middle of the night without any explanation. Ms. Verma states that she believes that Mr. Bhooi was returning to his parents’ home. Soon thereafter, she learned that Mr. Bhooi was living with his former wife, Rajinder, in his parents’ home on Cheiftan Circle. She confronted Mr. Bhooi with this discovery. Mr. Bhooi threatened to “finish me and my family” and taunted her educational background stating that “I would come back begging to him given my grade 12 education”.
51In or about May 2015, Ms. Verma received a call from a travel agent and learned that Mr. Bhooi had booked a ticket for her to travel to Delhi without her knowledge or consent. She confronted Mr. Bhooi immediately, at which time he informed her that she should immediately go back to India using the ticket he had purchased for her.
52This time, she refused to leave.
53On or about July 2015, the landlord of the apartment at 60 Absolute Avenue filed an application with the Landlord and Tenant Board to evict them because Mr. Bhooi had not paid the landlord for several months. Shortly after the hearing, Ms. Verma packed up all of their belongings and moved to a small rooming house near her temple.
54Ms. Verma’s relationship with Mr. Bhooi became more and more strained. Finally, she commenced her application for divorce on August 17, 2015.
55Mr. Bhooi did not speak with Ms. Verma from the end of August until the middle of October 2015.
56On or about October 9, 2015, Mr. Bhooi began calling her again and told her that she wanted to work on their relationship. At that point, Mr. Verma and Mr. Bhooi became intimate again and continued to work on their relationship.
57In November 2015, Ms. Verma would feel very ill from time to time. Mr. Bhooi attended with her at doctor appointments. The doctors had found a growth in her breast and she had to get an ultrasound and mammogram completed. The doctors told her that the daily stress associated in her life was a major contributing factor to her health. They also told her that she had to have surgery to remove her uterus.
58Ms. Verma was understandable upset by this diagnosis, and contemplated going back to India to have the surgery done there. During this time in Canada, Mr. Bhooi came to all of her doctor appointments, mammograms and ultrasounds and paid all of her medical bills.
59In or around December 2015, Mr. Bhooi and Ms. Verma decided that she would return to India to seek medical treatment there. Mr. Bhooi purchased her return airline ticket for this trip. While she was in India, Mr. Bhooi supported her financially and emotionally. He continued to send her money through Western Union and they spoke daily by telephone.
60Mr. Bhooi came to visit Ms. Verma and her family on April 4, 2016. He spent two weeks with them. He admitted his mistakes and faults to her family and expressed that he and Ms. Verma would work on their marriage. Although Ms. Verma was initially scheduled to return to Ontario with Mr. Bhooi, he insisted that she stay in India until he found a new place for them.
61Ms. Verma returned to Ontario on May 23, 2016. Mr. Bhooi picked her up at Pearson International Airport. He had rented a bachelor apartment for them at 288 St. George Street in Toronto. They purchased furniture together for the unit. Mr. Bhooi paid the monthly rental fees and continued to financially and emotionally support her. He suggested that she go to teacher’s college and attended with her at the Montessori Teachers College on June 26, 2016. Mr. Bhooi paid her application and program fees and would also help her with her homework from the program. From June 2016 until January 2017, Mr. Bhooi and Ms. Verma went on several trips together as husband and wife. Mr. Bhooi paid all of the expenses and booked all the tickets for these trips.
62In or around December 2016, Mr. Bhooi and Ms. Verma decided that she would go back again to India for medical treatment. Mr. Bhooi purchased her return airline ticket and gave her cash for this trip. He also arranged for ground transportation and hotel accommodation.
63Arriving back in Toronto on May 17, 2017, Mr. Bhooi and Ms. Verma returned to married life at the apartment at 280 St. George Street. However, Mr. Bhooi began leaving the apartment in the middle of the night, presumably to return to his parents’ home. Ms. Verma states that she would cook meals for Mr. Bhooi and tended to the household chores at this time period, she states that she and Mr. Bhooi would continue to go out together as a couple.
64Mr. Bhooi supported Ms. Verma until June 2017 when she refused to withdraw her application for divorce and other relief from the court. After a weekend in Niagara Falls in July 2017 at a last attempt to talk things through, they separated. It was on this trip to Niagara Falls that they last had intimate relations with each other.
Facts relating to separation according to Mr. Bhooi
65The parties were married in India with the participation of Ms. Verma’s family. There followed a nasty altercation between them, and Mr. Bhooi checked into a hotel instead of staying with Ms. Verma’s family. Mr. Bhooi then returned to Canada, with Ms. Verma returning shortly thereafter.
66Mr. Bhooi states that Ms. Verma rented the apartment on Kaneff Circle on her own. The parties resumed communications with each other and he eventually moved in with her there. He states that he was never a party to the lease.
67Mr. Bhooi traveled to Detroit, Michigan in March 2003 after his mother had a massive stroke. He offered to take Ms. Verma with him. However, Ms. Verma declined the invitation, stating that she did not wish to involve herself with his family.
68Upon Mr. Bhooi’s return to Canada, Ms. Verma became angry with him. Ms. Verma in effect gave Mr. Bhooi an ultimatum that if he went back to the United States where his mother was still critical and in hospital, he should not bother coming back. Mr. Bhooi takes the position that he had no choice but to pack up his things and leave. He never returned to the marriage after that point.
69These events all occurred in or around March 2003. Mr. Bhooi states that March 2003 was the date on which the parties commenced living separate and apart.
70Shortly thereafter, Ms. Verma decided that she was going to move to India. It was around this time that she was also fired from her employment at iTravel2000.
71Mr. Bhooi states that he agreed to help Ms. Verma settle in India as a resolution to the short period of marriage between them.
72From 2003 to 2008 Ms. Verma resided in India and Mr. Bhooi resided with his family in Mississauga, Ontario Canada.
73Mr. Bhooi placed all furniture from the matrimonial home on Kaneff Circle into storage from 2003 until 2008. On September 5, 2008, Ms. Verma shipped all of the furniture, appliances, electronics, beddings, clothing, and other items of personal property by container to India.
74Since 2003, Mr. Bhooi’s former spouse, Rajinder Bhooi, has resided along with their daughter at the home of Mr. Bhooi’s parents in Mississauga.
75Mr. Bhooi would travel to India to visit relatives on numerous occasions prior to 2010. On these trips, he would also meet with Ms. Verma. He states that Ms. Verma never stayed with him when he would visit temporarily in India. He states that he never traveled to India for the sole purpose of meeting Ms. Verma.
76In 2010, Mr. Bhooi was convicted of fraud by a court in Ontario. He was sentenced to three years in jail and served a period of incarceration between 2010 and 2012. During this period of incarceration, Ms. Verma sent Ms. Bhooi a letter and they exchanged correspondence between them throughout this difficult period.
77Upon his release from prison, Mr. Bhooi again helped Ms. Verma financially.
78During Ms. Verma’s communication with Mr. Bhooi’s father, Ms. Verma told Mr. Bhooi senior that Mr. Bhooi refused to give her a divorce. Subsequently, Mr. Bhooi senior told Ms. Verma to send him the divorce papers and he would have Mr. Bhooi sign them. Neither Mr. Bhooi senior nor Mr. Bhooi received those divorce papers.
79Ms. Verma had returned to India in August 2008, where she resided until August 2009. Mr. Bhooi had come to India to visit her for a two month period in 2009, at which time he returned to Canada to stand trial for the charges laid against him by Canada Revenue Agency.
80Mr. Bhooi remained in incarceration after his conviction on those charges throughout 2010 and part of 2011. He was released from incarceration in April 2011.
81Ms. Verma returned to Canada in September 2011, and stayed in Canada until the end of November, or the first week of December 2011.
82Ms. Verma lived in India between year end 2012 when she enrolled in a program at school in India, to the first week in December. She states that Mr. Bhooi resided with her at this time, but would leave under the pretext of going to visit his mother.
83Ms. Verma returned to India in December 2012, where she resided throughout 2013 and 2014 until her return to Canada in April or May 2014. She states that she lived with Mr. Bhooi in one of the condominium buildings by Square One in Mississauga for “a couple of months”. This was a short term rental. She concedes that they were having arguments at the time as she wanted to settle down and he was working too much.
84Ms. Verma returned on February 2nd or 3rd 2015 to Canada for good, except to return to India to visit her parents. She would go to India between December 2015 and the end of April 2016 to see those parents. Mr. Bhooi travelled to India to stay with her at a hotel for two weeks in April 2016.
Applicable Principles
85Various principles have been developed through the cases over the years because of the importance the date of separation plays in issues relating to measuring the period of time parties have lived separate and apart with no reasonable prospect of reconciliation for the purpose of obtaining a divorce, claims for spousal support and the judicial determination of what assets and liabilities were attributable to spouses where the valuation date is the date of separation. Justice Chappel has done a great service to this area of the law in the recent decision of Al Sajee v. Tawfic, 2019 ONSC 3857 by summarizing the general principles and indicia of what “living separate and apart” means. I can do no better than to set out paragraph 26 of Chappel J.’s decision in Al Sajee v. Tawfic in its entirety to make these general principles and indicia known:
26Ascertaining when spouses begin to live separate and apart requires a careful analysis of the unique realities of their relationship, routines, social and other habits and practices and living arrangements over time. In deciding how much weight, if any, to give to any particular factor, the court must carefully assess whether there have been any real changes in regard to that factor since the parties were clearly together in a conjugal relationship. In addition, because of the particular dynamics of each relationship, no one factor will be determinative of whether spouses are living separate and apart; a global analysis and weighing of all factors is required. Subject to these caveats, the relevant principles and considerations that emerge from the case-law can be summarized as follows:
There are two aspects to spouses living separate and apart. First, they must live apart from each other, and second, there must be an intention on the part of one or both of them to live separate and apart from the other (Oswell; Greaves).
To live “apart” requires a physical separation between the parties (Oswell, at para. 13). This means that the parties cannot be cohabiting in a conjugal relationship (Greaves). However, the fact that they continue to reside in the same home together does not necessarily mean that they are not living apart. Spouses can be living separate and apart under the same roof. The determination of whether parties who reside in the same home are living separate and apart involves a consideration of all relevant factors, including whether they are occupying separate bedrooms and/or areas of the home and any stated reasons for remaining in the same residence (Oswell, at para. 12; Greaves, at para. 34; Neufeld, at para. 6; S.(K.L.) v. S.(D.R.), 2012 NBCA 16(C.A.), at para. 20).
By the same token, the fact that the spouses have two residences and spend significant periods apart in the two homes is not determinative of whether they are living separate and apart. As the Ontario Court of Appeal stated in Lachman v. Lachman, 1970 CarswellOnt 122 (C.A.), at para. 12, spouses in these circumstances will only be considered to be living separate and apart if at least one of them intends to end the marital relationship. Where the parties live primarily in separate residences, the court must examine all of the other circumstances surrounding their relationship to determine whether they were, in fact, living separate and apart. The reasons for maintaining separate residences will be one important consideration (Rosseter v. Rosseter, 2013 CarswellOnt 2013 (S.C.J.), at para. 14). Another circumstance which may be relevant in this situation is whether the parties have kept personal items at each other’s residences (Rosseter). The implications of maintaining more than one residence are discussed in greater detail below in the discussion about “cohabitation.”
In order to establish the requisite intent to live separate and apart, there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium or of repudiating the matrimonial relationship (Oswell, at para. 14; Greaves, at para. 34). The term “consortium” does not have a precise or complete definition, but refers broadly to the companionship, love, affection, comfort, mutual services and support, and sexual relations typically involved in the marital relationship (Kungl v. Schiefer, 1960 CanLII 22 (ON CA), [1961] O.R. 1, (C.A.), at para. 11; Molodowich v. Penttinen, 1980 CarswellOnt 274 (Dist. Ct.), at para. 16).
The law does not require a meeting of the minds regarding the intention to separate; a physical separation, coupled with the intention of one party to live separate and apart, is sufficient (Strobele v. Strobele, 2005 CarswellOnt 9201 (S.C.J.), at para. 30; S.(H.S.) v. D.(S.H.), 2016 CarswellBC 1975 (S.C.), at para. 40); Nearing v. Sauer, 2015 BCSC 58(S.C.), at para. 54). As McDermot J. stated in O’Brien v. O’Brien, 2013 ONSC 5750(S.C.J.), at para. 50:
Unlike the decision to marry, the decision to separate is not a mutual one. It is a decision which is often made by one party over the objections of the other. Those protestations matter not; once one party has decided to permanently separate and has acted on it, the other party has no ability to stop the process or object to it.
86These general principles and indicia provide a useful backdrop to the specific analysis required for this case. Certain cases are of particular relevance.
87In Greaves v. Greaves, 2004 CanLII 25489 (SCJ), Mesbur, J. was guided by the criteria articulated by Weiler, J. (as she then was) in Oswell v. Oswell (1990), 74 O.R. (2nd) (15) (H.C.J.), affirmed at (1992), 12 O. R. (3rd) (95) (Ont. C. A.) to determine the date of separation. Mesbur, J. framed this criteria in paragraph 34 of Greaves as follows:
- It is true that every marriage is different. Parties can live apart under the same roof, and can still cohabit even if they live in separate locations. The court must look at various objective factors to determine if the parties are living apart or not. Oswell v. Oswell [5] perhaps best sets out the criteria for the court to consider. These include the following:
(a) there must be a physical separation… Just because a spouse remains in the same house for reasons of economic necessity does not mean that they are not living separate and apart;
(b) there must also be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship;
(c) the absence of sexual relations is not conclusive but is a factor to be considered;
(d) other matters to be considered are the discussion of family problems and communication between the spouses; presence or absence of joint social activities; the meal pattern.
(e) although the performance of household tasks is also a factor…weight should be given to those matters which are peculiar to the husband and wife relationship outlined above.
(f) the court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent… [a]n additional consideration…in determining the true intent of a spouse as opposed to that spouse’s stated intentions is the method in which the spouse has filed income tax returns.
88In Greaves, Mesbur, J. did not find the presence or occurrence of a consistent sexual relationship to be determinative when she explained that:
- I accept the evidence of Mr. Greaves’ witnesses confirming the objective perception that this couple was separated. They did not socialize as a couple. They did not routinely eat together as a family. They did not attend the same church. Although they had a consistent sexual relationship, I cannot find this determinative, any more than the absence of a sexual relationship would be.
89In a recent case, the Court of Appeal in Tokaji v. Tokaji, [2016] O.J. 6547, also found at 2016 ONSC 7993 (SCJ). Heeney, J. in Tokaji relied on the quotation above taken from Greaves v. Greaves, examined several aspects of the lives of the parties to determine if cohabitation was continual. He also considered all aspects of their life with respect to purchasing a home, moving in together and expressions of intent to make the marriage work. Heeney J. concluded that there remained a “reasonable prospect of presumption of cohabitation” until the husband in that case announced that he would not participate in marriage counselling, finding that the parties had finally separated upon the happening of that event.
Analysis
90The factual history, in terms of what events happened, the reasons for what one party did or did not do and even whether an event occurred at all is the subject of disagreement between Ms. Verma and Mr. Bhooi in many respects. This raises a question of credibility from time to time when assessing the evidence.
91I again turn to the decision of Chappel J. in Al Sajee v. Tawpic where she provides insightful guidance to the process of assessing the credibility of the parties who give evidence in a family law case:
42The case-law has highlighted that the assessment of credibility and reliability is not an exact science; rather, it is a challenging and delicate task, the outcome of which is often difficult to explain in precise terms. As the Supreme Court of Canada stated in R. c. Gagnon, 2006 SCC 17 (S.C.C.), at para. 20, it is not always possible “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events” (see also R. v. M.(R.E.), 2008 SCC 51 (S.C.C.), at para. 49; Hurst v. Gill, 2011 NSCA 100, at paras 18-19). The complexity of the task is highlighted by the fact that the judge is not required by law to believe or disbelieve a witness's testimony in its entirety. On the contrary, they may accept none, part or all of a witness's evidence, and may also attach different weight to different parts of a witness's evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8(S.C.), at para. 22). Despite the challenges inherent in the task, the case-law has articulated numerous factors which the courts may consider in weighing and assessing the credibility and reliability of witnesses. Drawing from the decisions in Faryna v. Chorny, 1951 CanLII 252 (BC CA), 1951 CarswellBC 133 (B.C. C.A.), at para 9, R. v. Norman, (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.), R. v. Mah, 2002 NSCA 99(C.A.), at paragraphs 70-75, R. v. Jeng, 2004 BCCA 464 (B.C. C.A.), Bradshaw v. Stenner, 2010 BCSC 1398 (B.C. S.C.) at para 186, aff'd 2012 BCCA 296 (B.C. C.A.) and B.G.M.S. v. J.E.B., 2018 CarswellBC 2538, at paras. 34-40 (S.C.), these considerations include the following:
a) Were there inconsistencies and weaknesses in the witness' evidence, including internal inconsistencies, prior inconsistent statements, inconsistencies between the witness' testimony and the documentary evidence, or between their evidence and that of other witnesses?
b) Did the witness have an interest in the outcome or were they personally connected to either party?
c) Did the witness have a motive to deceive?
d) Did the witness have the ability to observe the factual matters about which they testified?
e) Did they have a sufficient power of recollection to provide the court with an accurate account?
f) Is the testimony in harmony with “the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions?” (Faryna, at para. 10)
g) Was there an internal consistency and logical flow to the evidence?
h) Was the evidence provided in a candid and straightforward manner, or was the witness evasive, strategic, hesitant, or biased?
i) Where appropriate, was the witness capable of making an admission against interest, or were they self-serving?
j) Is there independent evidence that confirms or contradicts the witness' testimony?
k) Consideration may also be given to the demeanor of the witness, including their sincerity and use of language. However, this should be done with caution. As the Ontario Court of Appeal emphasized in R. v. Norman, at para. 55, an assessment of credibility based on demeanour alone is insufficient where there are many significant inconsistencies in a witness’ evidence (see also R. v. Mah at paragraphs 70-75). The courts have also cautioned against preferring the testimony of the better actor in court, and conversely, misinterpreting an honest witness' poor presentation as deceptive (R. v. Jeng, at paras. 53-54).
92Before deciding the first question, it is appropriate to comment on my assessment of the credibility of the parties generally. I listened carefully to each Ms. Verma and Mr. Bhooi as they gave evidence in chief to supplement their affidavits, and when they were cross-examined in turn.
93Overall, I preferred the evidence of Ms. Verma over the evidence of Mr. Bhooi. I found Ms. Verma’s memory to be far more comprehensive, her recall more precise, and her evidence relatively consistent with the documentary evidence and the other facts. Sad as it was, her story made more sense.
94The conflicting evidence given on the date of separation issue depends largely on credibility, and on applying common sense to determine that credibility.
95Mr. Bhooi testified that he and Ms. Verma separated in 2003 after his mother suffered a stroke in Michigan. Ms. Verma returned to India, where she remained until 2008. He states they separated in 2003, never to reconcile. Yet Mr. Bhooi continued to send Ms. Verma money by wire transfer, often under the pretext of keeping the peace.
96Ms. Verma argues that she left Canada for India at Mr. Bhooi’s request that she remove herself to save their marriage. She submits the evidence shows Mr. Bhooi bought her an airline ticket back to Ontario in 2007. When she returned, Mr. Bhooi would stay with her even though he would often leave during the night, disappearing for days at a time.
97Ms. Verma came back to Ontario in 2008. Mr. Bhooi states that he convinced her to return to India in August of that year, shipping a storage container of their apartment furniture along with her belongings to her.
98On all the evidence, I find that Mr. Bhooi had either not told his parents, or was embarrassed he had given in to his attraction to Ms. Verma so soon after divorcing his first wife, that he concealed their marriage from them. This is the only logical reason his father denied any knowledge of the marriage even when confronted by Ms. Verma about it.
99Mr. Bhooi contends that he continued to send money to Ms. Verma to buy peace. Yet he could have made an application to the court in Ontario for a divorce at anytime after one year had passed. He did not. That he continued to send money to Ms. Verma in India only confirms the nature of their ongoing relationship as a couple.
100Alternatively, Mr. Bhooi and Ms. Verma separated and remained separated between 2003 and 2007 while she was in India. However, whether Ms. Verma came back in 2007 or the container was shipped independent of her return to India in 2008, she and Mr. Bhooi reconciled in November 2009 when he visited her in India and promised to bring her back soon.
101The status of their relationship as a loving one is confirmed by the letters they wrote to one another while Mr. Bhooi served his prison sentence for fraud in 2010 and 2011.
102Mr. Bhooi brought Ms. Verma back to Ontario in September 2012, as promised. He instructed his lawyer, Mr. Peter Verbeek to draw a will in November 2012 in which he described Ms. Verma as his wife and beneficiary of one half his estate. His evidence that he made a will containing this statement and bequest to satisfy Ms. Verma’s demands is the product of contorted logic, and too incredible to be believed as a fact.
103Ms. Verma’s evidence of Mr. Bhooi’s conduct is consistent with her own belief that their marriage continued until 2015, despite unpleasant exchanges with Mr. Bhooi’s father, who was still hostile to the marriage, and with Mr. Bhooi himself. It was only when Mr. Bhooi left her in the apartment on Absolute Avenue without rent, and she learned from a third party that Mr. Bhooi had booked her a flight to India in May 2015 without informing her, that she finally accepted that the marriage had irretrievably broken down. She took steps a short time later to commence this application.
104Despite Mr. Bhooi’s periodic overtures to mend their broken relationship, or Ms. Verma’s admitted participation in romantic interludes with him from time to time up to July 2017, I find as a fact that the parties separated on May 31, 2015.
2. Income of the parties
105The second question I am to answer is to determine the income of the parties. I take this answer to be necessary as the basis for the trial judge to determine the proper amount for spousal support payable by one party to another if entitlement is found.
Evidence
106Neither Ms. Verma or Mr. Bhooi provided much evidence on the income each of them has earned over the course of the marriage. It is unclear from the testimony of each party from what vocation or source Mr. Bhooi earned income over the course of the marriage, except to say that he may have owned an autobody shop, or he may have worked in construction, or that he may have earned income from the rental of three units at 1060 Britannia Road East. There is also evidence that he was an employee of Kloog Construction, a company purportedly owned by Rajinder Bhooi.
107Two income tax returns for Mr. Bhooi were marked as exhibits at the hearing. These income tax returns show that Mr. Bhooi’s declared income for 2015 and 2016 was as follows:
2015 - $10,503
2016 - $11,800
108Mr. Bhooi testified on re-examination that he subsequently earned the following income in 2017 and 2018:
2017 - $15,800
2018 - $14,800
109The evidence about Ms. Verma’s vocation and her income from any source over the marriage was equally unclear. The court heard that Ms. Verma took courses at a Healing Centre in India. I understand from that evidence she was training to be a healer. The court heard evidence that Mr. Bhooi also paid for Ms. Verma’s enrollment in an interior design program in Ontario, a program she did not complete. Then there was her interest in pursuing a teaching certificate that would have qualified her to teach at a Montessori school.
110None of these career paths were ultimately taken by Ms. Verma. She claims that she has suffered great stress and anxiety as a result of the marriage breakdown. She testified that she is currently receiving approximately $8,100 a year under the Ontario Disability Services Plan (ODSP).
Analysis
111There is ample evidence to support the inference that Mr. Bhooi has earned income from employment since 2010. He has not been forthcoming with the court. There is no reason for the court to believe that he only earns between $10,000 and $16,000 a year. He was found guilty by a criminal court of fraud against Canada Revenue Agency in 2010 which suggests that he has a tendency to omit facts, or to bend the truth. His credibility is therefore suspect.
112Mr. Bhooi has an engineering degree. He also has business interests in 166 that owns units at 1060 Britannia Road East in Mississauga, as well as an operational role at Kloog Construction. As a person with an interest in each of those businesses, he has the ability to control the income he earns, or could earn from them.
113A court may impute a greater income to a person for spousal support purposes under s. 19(1)(a) of the (Federal) Child Support Guidelines. In Drygala v. Pauli 2002 CanLII 41868 (ON CA), [2002] O.J. 3731 (Ont. C.A.), the court defined three questions for the trial judge to frame this inquiry:
- Is the person intentionally under-employed or unemployed?
- If so, is the under-employment or unemployment required by virtue of his (or her) reasonable educational needs; or
- If not, what income is appropriately imputed in the circumstances?
114If Mr. Bhooi is not receiving actual income directly or indirectly from the 1060 Britannia Road East property where he has been known to work, I would find that he is intentionally underemployed. As he is intentionally underemployed, he has the ability to earn greater income.
115The court may also impute a greater income to a party if there is evidence that he or she earns more income to support a particular lifestyle: Heard v. Heard, 2014 ONCA 196.
116Mr. Bhooi has been shown to afford trips to Niagara Falls with his former wife, trips to India to visit Ms. Verma, and the ability to contribute to the family home expenses, all while sending more money to Ms. Verma than he declared as income most years. His explanation that he borrowed the money from Rajinder Bhooi to send to Ms. Verma defies belief. Not only did payments extend over an inordinate amount of time, I find it incomprehensible that Rajinder Bhooi would have loaned money for Mr. Bhooi to send to the woman they wished would leave them alone.
117Whether Mr. Bhooi’s income is hidden, not declared, or if he is intentionally underemployed, I would fix his current income at $56,000 a year. I arrive at this income by doubling what he would earn from an employer if he was paid at the minimum wage prevailing in Ontario since 2017. Therefore, I attribute $44,000 of income to Mr. Bhooi for each year between his release from prison in 2012, to 2017 when the minimum wage in Ontario was increased, and then $56,000 annually for 2018 and 2019.
118I had the opportunity to assess Ms. Verma as she testified at the hearing about her income. She obtained a grade 12 accreditation from secondary school in India. She has had numerous opportunities to learn a vocation, or to at least obtain a job in Ontario’s robust employment market where she can at least earn a minimum wage. I therefore impute an income to Ms. Verma of $22,000 annually for years 2012 to 2017 based on the minimum wage at the time, and $28,000 a year for each 2018 and 2019.
3. Did Mr. Bhooi financially support Ms. Verma
119The third question requires me to determine what financial support Mr. Bhooi provided to Ms. Verma throughout the marriage, and in particular when they were physically living apart. In order to make findings, I propose to review the facts in evidence about the amounts each party claims Mr. Bhooi sent to Ms. Verma, or paid on her behalf after they first lived separate and apart in 2003. These facts are taken from affidavits filed by each of the parties, and in particular the affidavits of Ms. Verma sworn on September 8 and September 25, 2017, and the affidavit of Mr. Bhooi sworn on October 3, 2017, as well as from their testimony at trial. All amounts transferred, wired, or paid by Mr. Bhooi are restated in Canadian funds where funds were paid in rupees.
2004
120Ms. Verma states that Mr. Bhooi wired her a total of $17,082.81 as Western Union money transfers while she was in India.
121Mr. Bhooi disagrees. He states that only a portion of that amount was wired to support Ms. Verma. The remainder of the transfers were made for the healing centre where Ms. Verma was in treatment, and for prayers on his behalf at the healing centre. He states that he only supported Ms. Verma with $10,048.80.
122Mr. Bhooi also states that many of the receipts provided by Ms. Verma have been duplicated, and that many more are not visible.
123I find on the balance of probabilities that Ms. Verma’s account is correct. Many of the wire transfers are indecipherable in terms of what amounts could be duplications. Furthermore, I would require an expert to testify about the irregularities of the wire transfers that appear to add up to $17,082.81 on their face.
2005
124Ms. Verma states that Mr. Bhooi wired her $14,899.94.
125Mr. Bhooi states that he only sent $9,937.30 to her in 2005. He says that he wired this money because Ms. Verma insisted that he help her resettle in India and stated that she required financial help from him. He states that she continued to call and harass his family. He made these payments because he says Ms. Verma threatened to destroy the peace in his family by exposing his daughter to unpleasantries.
126I conclude that Ms. Verma has accounted correctly for the monies received by Mr. Bhooi’s own admission. The amounts paid were in the nature of support. He has provided no evidence to contradict the amount of that support that Ms. Verma has documented.
2006
127Ms. Verma states that Mr. Bhooi wired her $12,155.31.
128Mr. Bhooi states that Ms. Verma used funds he provided to finance a home she had purchased in Gurgaon, India. He states that they had reached a verbal separation agreement, under which further assistance from him would terminate if he helped her settle in India. He states that Ms. Verma had agreed to obtain a job and to eventually pay back the financial support he had provided to her. He states that he only supported Ms. Verma by sending $10,651.62 in 2006, and that she has duplicated the wire transfer receipts.
129I find that Ms. Verma has accounted properly for the funds received. Mr. Bhooi raised the matter of the verbal separation agreement in his affidavit sworn October 3, 2017, but did not refer to it to any extent, if at all, in his testimony at trial, nor did he cross-examine Ms. Verma about it.
2007
130Ms. Verma states that Mr. Bhooi wired her $3,629.71.
131Mr. Bhooi has repeatedly stated that he supported Ms. Verma sporadically to keep the peace. He says that all financial payments were made to her post-separation. He explained that not all transfers were made for Ms. Verma’s personal use, and that a portion of the money was sent for having prayers said on his behalf at the Healing Centre.
132It is also significant to note that Ms. Bhooi states that he supported Ms. Verma by wiring her $4,148.30, in contrast to the $3,629.71 she claims. He states that Ms. Verma had written an email to the master at the Healing Centre, in which Ms. Verma states that she hates him passionately and that she wants no attachment to him. Mr. Bhooi continued to pay support to her nonetheless.
133Ms. Verma states that she returned to Toronto on August 7, 2007. According to her, Mr. Bhooi booked a service studio at Studio 6 in Mississauga where they lived together until August 2008. She states that Mr. Bhooi covered all expenses such as rent, food, clothing, and other basic necessities, as well as the cost of going out together.
134Ms. Verma alleges in her affidavit dated September 25, 2017 that Mr. Bhooi paid $85 a night to rent the unit at Studio 6. She gave no evidence in her affidavit or at trial about this payment over the one year period between August 2007 to August 2008, or the other expenses she describes. I therefore make no finding in this regard.
2008
135Ms. Verma states that Mr. Bhooi wired her $1,984.84 between August to December 2008.
136Mr. Bhooi disagrees. He states that he only supported Ms. Verma with $1,461.32.
137I make a finding based on the Western Union receipts that Mr. Bhooi sent $1,984.84 to Ms. Verma in the last half of 2008.
2009
138Ms. Verma states that Ms. Bhooi sent her $6,526.04 in 2009.
139Mr. Bhooi disagrees. He states that not all of these transfers were made by him. He states that he only supported Ms. Verma with $5,603.52.
140I find that Mr. Bhooi transferred $6,526.04 to Ms. Verma in 2009.
2010
141Mr. Bhooi was incarcerated for much of 2010 after his conviction for fraud. Ms. Verma states that he sent her $3,670 through Western Union transfers during this time.
142Mr. Bhooi states that he was incarcerated in 2010 and made no payments to Ms. Verma himself. However, Jaswinder Bhooi signed cheques and sent payments to Ms. Verma during 2010 on his behalf.
143I find that, even though Mr. Bhooi was incarcerated, $3,670 was sent to Ms. Verma on his behalf in 2010.
2011
144Ms. Verma states that Mr. Bhooi sent her $5,428.95 between January and October 2011.
145Mr. Bhooi states that he supported Ms. Verma during 2011 in order to keep her from destroying the peace with his family and to keep her away from his daughter. He had just been released on parole at the time. He states that he borrowed the money in order to meet Ms. Verma’s demands.
146Ms. Verma also states that Mr. Bhooi came to India in November 2011 to see her. Mr. Bhooi states that he travelled to India to meet his family, and that he stayed at hotels during that visit. He did not reside with Ms. Verma when he visited Delhi on that trip. Mr. Bhooi has attached hotel receipts from the Radisson Plaza Delhi as proof that he stayed at the hotel during his stay. I accept that the travel expenses Mr. Bhooi incurred on this trip were not payments made to financially assist Ms. Verma.
2012
147Ms. Verma states that Mr. Bhooi provided her with $4,491.31 when she was in India and $9,079.28 while she was in Toronto that year, for a total of $13,570 in 2012. She states that Mr. Bhooi had sent her a ticket to fly to Toronto on October 2, 2012, and that he had booked a one bedroom apartment at the Pelican Suites Hotel.
148Ms. Verma also states that she and Mr. Bhooi went to Niagara Falls on November 8, 2012 for a few days. They did all of their Diwali shopping there, and celebrated Diwali together on November 13, 2012. No amounts are claimed for these expenditures.
149Mr. Bhooi states that he and Ms. Verma agreed to keep their relationship as just friends to alleviate the animosity between them. It would seem that Ms. Verma and Mr. Bhooi would eventually have terrible fights when they spent prolonged periods of time together. Sometimes, police became involved during those altercations.
150Mr. Bhooi states that he only supplied $4,654.20 to Ms. Verma in 2012. He states that she visited Canada on a short term basis later in 2012 because she wanted to obtain a second opinion with respect to her health.
151I conclude that Mr. Bhooi only sent the $4,491.31 based on the Western Union receipts attached to Ms. Verma’s affidavit. The amounts that Mr. Bhooi paid for Ms. Verma’s Visa fee, medication, hotel bills, drivers license test and ministry fee, and her airline ticket representing amounts he paid on her behalf later that year are not attributable to financially assisting her, but were rather one time payments made.
2013
152Ms. Verma states that Mr. Bhooi supported her through wire transfers in the amount of $6,325.65.
153Mr. Bhooi does not contest this fact.
2014
154Ms. Verma states that Mr. Bhooi sent her $8,711.06 as Western Union money transfers, and another $6,817.82 during her stay in Toronto, for a total of $15,528.88 in 2014. She states that the amounts Mr. Bhooi paid while she was in Toronto included her Visa bill, airline ticket, rent and a dental invoice, but not food and other expenses.
155Mr. Bhooi states that he made no such payments through Western Union for Ms. Verma that year, and did not provide her with any financial support in Toronto in 2014. He states that he purchased a return ticket for her from and to India as she was only visiting Canada in 2014 for health reasons. She arrived in Canada on February 5, 2014, and departed on February 20, 2014.
156Ms. Verma did not attach copies of Western Union money transfers to support that part of her claim for money wired in 2014. Those receipts attached as Exhibit S to her affidavit dated September 25, 2017 do not constitute support for payments made to her directly while in Toronto in February 2014.
157I therefore find that Mr. Bhooi made no payments to Ms. Verma in 2014.
2015
158Ms. Verma states that Mr. Bhooi provided $42,433.96 in financial assistance to her in 2015. She states that she arrived back in Canada on February 12, 2015. Mr. Bhooi provided her with a one year lease for an apartment in both of their names.
159Mr. Bhooi states that these facts are incorrect. He argues that many of the receipts attached under Exhibit U of Ms. Verma’s affidavit sworn September 25, 2017 are his own expenses incurred by him and not Ms. Verma. He states that the copies of cheques attached to affidavit represent payments made to Ms. Verma for her interior design services. These payments were made by 1662054 Ontario Inc., a corporation owned by Rajinder Bhooi, pursuant to its agreement with Ms. Verma’s interior design company, 241322 Ontario Inc.
160Mr. Bhooi states that he partly supported Ms. Verma with her health expenses in 2015. He also supported her by paying for her flight expenses. He says he only supported Ms. Verma with $1,594.89 through money transfers in 2015.
161I accept that Mr. Bhooi paid rent for the condominium at 60 Absolute Avenue in the amount of $1,700 a month until he stopped payments in May, 2015, resulting in Ms. Verma’s forcible eviction. These rental payments totalled $6,800.
162The onus of proof for the payment of financial assistances rests with Ms. Verma as the party claiming that financial assistance. I find that she has not satisfied that burden of proof for any other payments made in 2015. Therefore, I only allow the amount of the wire transfer payments in the amount of $1,594.89 shown as wire transfers through Western Union that year, plus the rent totalling $6,800 that Mr. Bhooi covered.
2016
163Ms. Verma states that Mr. Bhooi paid $29,261.44 to support her in 2016. She states that this amount did not include his airfare to India in April 2016, his stay at the Radisson Hotel in New Delhi, or food, clothing, shopping and entertainment while there.
164Ms. Verma also states that Mr. Bhooi sent her emails on July 25, 2016, August 2016 and March 9, 2017 wanting to settle the issues between them.
165Mr. Bhooi states that Ms. Verma requested help from him as a final settlement in 2016. He states that he supported Ms. Verma by sending her $985.99 through Western Union.
166Ms. Bhooi agrees with the statement about the emails he sent to Ms. Verma on July 25, 2016, August 2016 and March 9, 2017, and that he wanted to reach a resolution.
167Ms. Verma moved into an apartment at 266 St. George Street, and later to an apartment in 280 St. George Street in Toronto. Mr. Bhooi covered the rent between January and June totalling $4,050 in the former, and $6,300 between July and December in the latter, for a total of $10,350. I find as a fact that payment of this rent was in the nature of financial assistance.
168I conclude that Mr. Bhooi provided financial assistance in the amount of $11,336 to Ms. Verma in 2016.
2017
169Ms. Verma states that she received $15,990.66 from Mr. Bhooi between January and June 1, 2017. These payments were made for a variety of reasons, including airfare from India, dental expenses, and hotel bills.
170Mr. Bhooi states that he only made payments on behalf of Ms. Verma for a hotel in New Delhi for which he paid $255.99 on April 10, 2017, and $1,435 for an airline ticket.
171Much of the amount Ms. Verma claims receiving as financial assistance from Mr. Bhooi was in nature of payments for rent for her apartment on St. George Street in Toronto. At the same time, she claims that Mr. Bhooi was living with her at the time. I accept that Mr. Bhooi provided $6,300 in financial assistance by paying Ms. Verna’s rent at 280 St. George Street for six months.
Conclusions
172Based on the foregoing findings of fact, I therefore find that Mr. Bhooi provided financial assistance to Ms. Verma between 2004 and 2017 as follows:
| YEAR | FINANCIAL ASSISTANCE RECEIVED |
|---|---|
| 2004 | $17,082.81 |
| 2005 | $14,899.94 |
| 2006 | $12,155.31 |
| 2007 | $0.00 |
| 2008 | $1,987.84 |
| 2009 | $6,526.04 |
| 2010 | $3,670.00 |
| 2011 | $5,428.95 |
| 2012 | $4,491.00 |
| 2013 | $6,325.65 |
| 2014 | $0.00 |
| 2015 | $8,395.00 |
| 2016 | $11,336.00 |
| 2017 | $6,300.00 |
| TOTAL | $98,594.00 |
173I make the observation, without passing judgment, that if Ms. Verma is found to be entitled to spousal support at trial, Mr. Bhooi shall be entitled to credits for any amounts he has paid to financially assist Ms. Verma if retroactive spousal support is ordered.
Conclusion
174In summary, the answers to the three questions framed by Justice Shaw for the purpose of the focused hearing ordered under Family Law Rule 1(7.2) are set out below. These answers are based on the evidence given, and the findings of fact I have made on that evidence:
- The parties have lived separate apart with no reasonable prospect of reconciliation since May 31, 2015.
- The current income imputed to Ms. Verma is $28,000 per year. The current income imputed to Mr. Bhooi is $56,000 per year.
- Mr. Bhooi financially supported Ms. Verma between 2004 and 2017.
175I encourage the parties to resolve the issue of costs for this focused hearing between them. If they require the involvement of the court to determine costs, the following shall apply:
- The party seeking costs shall serve and file written submissions by November 15, 2019.
- The party responding to that claim for cost shall then have until November 29, 2019 to serve and file responding submissions.
- Written submissions shall consist of no more than two double spaced, type written pages, not including offers to settle or any bill of costs.
- No submissions in reply shall be permitted without leave.
176All written submissions with respect to costs shall be sent by fax or by email to my judicial assistant, Ms. Melanie Powers, at 905-456-4834, or melanie.powers@ontario.ca in Brampton.
Emery J.
Released: October 31, 2019