COURT FILE NO.: FS-17-89716

DATE: 20191125

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Zara Ahmad

Poroshad Mahdi for the Applicant

Applicant

• and -

Kamran Ahmad

Respondent

Self-represented

HEARD: May 22,23, 24, 28, 29, 30, June 3, 2019

REASONS FOR JUDGMENT

Tzimas J.

[1] This family law trial was heard over a number of days in late May and early June, 2019. The parties entered into an arranged marriage on December 25, 2004 in Pakistan. The Applicant is 36 years old and is an accountant. The Respondent is 43 years old and has a computer engineering degree. The parties have two children, R.A., who is 11 and N.A., who is 5. The parties separated on August 29, 2015.

[2] Their issues in dispute are the following: custody and access of the children, child support, spousal support, and various issues concerning equalization, including the treatment of the matrimonial home, the treatment of an investment property, jewellery and a property and bank account in Pakistan.

[3] Highlights of my findings and conclusions are as follows: On custody, the children’s primary residence shall remain with the Applicant and she will be responsible for all of the major decisions following consultation with the Respondent. Both parents will be permitted to travel with specific conditions as outlined below. The Applicant shall be the custodian of all legal documents related to the children but the Respondent may be provided with copies. The Respondent shall return all such documents in his possession to the Applicant forthwith. On access, a week about arrangement sought by the Respondent is premature. Access time will be expanded in accordance with the particulars outlined in my analysis.

[4] Regarding child support and Section 7 expenses for the period between September 1, 2015 and March 1, 2017, the Respondent will receive a credit of $600 per month towards child support on account of all of the household expenses he covered during this time. Particulars of the reconciliation are outlined below.

[5] On spousal support, the Applicant will receive a lump sum spousal support in the sum of $1,000.

[6] For the various property issues I have reached the following conclusions. Beginning with the “Milton Property” I find that the Applicant has a 50 per cent resulting trust interest. Furthermore, I reject the Applicant’s request that the Respondent transfer his interest in the matrimonial home to her. Both the matrimonial home and the Milton property shall be sold and the parties shall share equally in the respective net proceeds.

[7] I also reject the Respondent’s claims concerning the Applicant’s jewellery and the alleged property and bank account interest in Pakistan. The parties shall re-calculate their Net Family Property Statement and equalization on the basis of these findings.

[8] My reasons for these findings and conclusions are outlined below, as are the details of the various orders I have made.

BACKGROUND

[9] The parties disagreed on a number of facts and issues. However, the following basic facts and the chronology of their relationship and key events were not in dispute.

[10] The parties were married in Pakistan on December 25, 2004 by way of an arranged marriage. The parties came to know each other over the course of three days. At the time of the marriage, the Respondent was a university student in the United States and the Applicant was a university student in Pakistan. The Applicant moved to the United States after the marriage on a Spousal VISA. In October 2007, they moved to Canada.

[11] The first child of the marriage, R.A. was born on February 19, 2007 in the United States. The second child of the marriage, N.A., was born on August 29, 2014 in Ontario.

[12] A domestic violence incident occurred on August 29, 2015 that resulted in in the Respondent being charged with domestic violence and in the separation of the parties. The Respondent pleaded guilty to an assault against the Applicant on August 10, 2016 and received a conditional discharge and probation for one year.

[13] In 2017 the parties tried to reconcile without success. When the Respondent left the second time, he took with him various legal documents related to the children and the matrimonial home.

[14] The Office of the Children’s Lawyer, (OCL) prepared a Report pursuant to s. 112 of the Courts of Justice Act. The Applicant asked the court to adopt the report’s recommendations. The Respondent disputed a number of the findings and objected to the recommendations.

POSTION OF THE PARTIES

[15] The parties seek the court’s determination on i. Custody and Access; ii. Child Support; iii. Spousal Support; and iv. Equalization. I note at the outset that this case has been marked by high conflict between the parties and an inability to agree to anything. Their positions and supporting evidence on each of these issues is outlined below.

i. Custody and Access

a. The Applicant’s Position

[16] Briefly, the Applicant seeks sole custody of the children and an access order in accordance with the recommendations made by the OCL. She would also like to be able to travel outside of Canada for vacation purposes without the need for the Respondent’s consent. She seeks these orders because of a history of domestic violence, an inability to engage in any effective communications, and a past refusal that was made in bad faith and only for the purposes of leverage in this litigation.

[17] The Applicant also expressed concerns that the Respondent will not acknowledge his anger management issues, he does not recognize that domestic violence is never acceptable, and he refuses to seek counselling to address these difficulties.

[18] The Applicant also relied on the evidence of the author of the OCL Report and the caseworker from The Children’s Aid Society (CAS) to support her request for the proposed arrangements for custody and access.

[19] The OCL Reporter, Ms. Shatira Williams, testified that she had no concerns with the Applicant’s ability to parent. She conducted two visits at each party’s home to conduct her assessment. She also met with both of the children at their school. In her report she noted that the boys appeared “to be performing well in the areas of social, cognitive, and physical/health development under the primary care of [the Applicant]”. She found that the Applicant provided a stable and loving home environment and that the boys expressed a high level of affection and love towards their mother.

[20] Ms. Williams rejected the Respondent’s allegation that the Applicant was actively alienating the children. She testified that she did not see any evidence to suggest that the Applicant was either blocking access between her sons and their father or engaging in any intentional alienation. In her report, she remarked on the Applicant’s willingness to increase the boys’ access time with their father and her wish that they develop a positive parental bond with him.

[21] With respect to the Respondent, she noted some positive skills. She said that like the Applicant, the Respondent demonstrated positive parenting qualities and made a significant effort to display his love for both his sons. Although she did not have any concerns about the Respondent’s parenting abilities, she was concerned that the Respondent had emotional issues that were unresolved and were the source of the continuing conflict between the parties and the reason for the Respondent’s behaviour.

[22] On the subject of the domestic violence incident, she noted that the Respondent did not demonstrate a strong sense of responsibility. When she asked the Respondent about the incident he redirected her repeatedly to the financial stresses he was facing and the circumstances that led to the incident. In cross-examination by the Respondent, Ms. Williams reminded the Respondent that he told her that the Applicant had a pleasant personality in the early years of their marriage, but that when it came to finances he believed that the Applicant was withholding funds and was not pulling her weight or contributing to the family finances. She also reminded the Respondent of his repeated complaints to her about his financial situation and the stress that it caused him.

[23] Ms. Williams described her meeting with both children. She remarked on how emotional R.A. became when she asked him about his interaction with his father. Without any prompting R.A. enumerated for Ms. Williams a number of very difficult and upsetting instances of physical discipline, being told “mean things”, physical aggression, feeling intimidated and being asked by the Respondent to lie and deny the aggression of the past. He volunteered to Ms. Williams his view that the reason for his parents’ separation was the domestic violence, which he said he recalled witnessing. Ms. Williams also remarked on R.A.’s repeated comments of his sense of responsibility to protect his younger brother.

[24] Ms. Williams also reported on her meetings with the younger child. Unlike his brother, he was comfortable, confident, happy and well-adjusted to his social routines.

[25] Ultimately, Ms. Williams concluded that the Respondent’s unresolved issues would make joint custody very difficult and would result in future problems. In her report she noted: “Amidst positive parental efforts, continues to exist a high level of complex post-separation conflict.” She noted that based on the findings of the CAS, the parents had failed to insulate the children from the conflict of the past and that a joint parenting authority would not be manageable without further risk to the boys’ emotional well-being. As a result, she expressed the concern that shared parenting would result in continued conflict and would therefore not be in the children’s best interests. Instead she recommended a sole custody order.

[26] On access, Ms. Williams had reservations over any major change to the existing arrangement of alternate weekends plus a weekday. When cross-examined on the principles of maximum contact, she acknowledged her understanding of those requirements, but in this instance, given the family history, she concluded that small steps would be the preferred approach to increasing the children’s access with their father.

[27] In her view, an immediate change to a 50-50 arrangement would be a major transition for the children. Instead she recommended increasing the weekend time to include the Friday after school and the Monday morning. Although she did not oppose an eventual 50-50 arrangement she said that both parties and the older child, R.A., would benefit from some therapeutic intervention or counselling before such a change could be made. That would provide each of the parties and R.A. with the tools and the coping strategies they may need to respond to whatever situation or conflict might arise. In the absence of such steps a 50-50 arrangement could become the source of more conflict.

[28] The child protection worker from the CAS, Mr. Jacobs also testified. Like Ms. Williams, he did not have any concerns with the care that the Applicant was providing to the children. He outlined the frequency with which the Respondent called on CAS and he told the court that the Respondent’s concerns were unfounded. He added that in his interaction with R.A. the child was timid, reserved, he started to cry as he recalled certain interactions with his father, and he was extremely nervous.

[29] Mr. Jacobs testified that R.A. told him that when his father was not happy with him he would pull his ear or slap his open hand. Like Ms. Williams, Mr. Jacobs told the court about R.A.’s sense of having to protect his younger brother. Mr. Jacobs said that he did not believe that R.A. had been coached by his mother to give the responses that he did. R.A.’s views were his own.

[30] Mr. Jacobs also testified that the Respondent denied the allegations against him and identified the Applicant as the source of all their problems. He also told Mr. Jacobs that in his view the maternal grandmother was behind the problems in his marriage with the Applicant and he wished to sever the relationship with the maternal grandparents altogether.

[31] Finally, the Applicant called her father, Mr. Shahid Niaz, to give evidence on his involvement with the family, his attempt to help the parties deal with their differences, his observations concerning his grandchildren and the issues related to property and a bank account in Pakistan.

[32] On the issue of custody and access, Mr. Niaz denied that he was controlling his daughter or that he tried to undermine the couple’s attempts at reconciliation. He said that he had the grandchildren’s best interests at heart and would not do anything to compromise their well-being.

[33] Mr. Niaz confirmed that his daughter called him immediately following the August incident and told him that she would be calling the police. Up until that time, he said he had no idea that his daughter was having marital difficulties and disagreements because she kept everything to herself. He said that the news of the incident came as a shock. He agreed that he tried to assist the parties with reconciliation.

[34] In cross-examination he confirmed that there had been previous disagreements between the couple in 2013 and that he tried to reassure the Respondent and asked him to be patient. He said he did not appreciate the nature of the disagreements between his daughter and the Respondent. Moreover he vehemently denied that the 2013 exchanges between himself and the Respondent had any threatening tone, as suggested by the Respondent. He also denied speaking negatively about the Respondent to his friend, though he did admit that he shared with his friend his daughter’s situation.

b. The Respondent’s Position

[35] The Respondent disagrees with the Applicant’s request for sole custody and the proposed access schedule. He also disagrees with the findings and recommendations in the OCL Report. He sought to identify a number of flaws in the report and in particular, the author’s failure to consider the “maximum contact principle”, her failure to report on the concerns he raised with her when she interviewed him, her failure to assess the credibility of the day care provider, and a number of other technical oversights.

[36] The Respondent did not have anything to say about the CAS observations and conclusions.

[37] With respect to the specific orders that the Respondent is seeking, at the beginning of the trial, and even as late as his testimony in chief, the Respondent seemed content to obtain an order for joint custody with week about access. In his closing submissions, the Respondent changed his position and asked that he be awarded sole custody of the children. He maintained his position on week-about access arrangements.

[38] In support of his request, the Respondent testified that the Applicant consistently undermined him, that she spoke rudely and disrespected him in the children’s presence, and that she is unable to make any independent decisions as those may relate to marriage, finances, education, and even the decision to separate and to divorce. The Respondent further submitted that the Applicant’s father, an authoritarian retired army general from Pakistan, is very controlling and that he influences his daughter’s actions to a tremendous degree. He expressed the fear that the Applicant’s father would use the children to seek revenge against him and generally would be the one to control his daughter’s household.

[39] Regarding access, the Respondent reiterated his disagreement with the OCL report and recommendations. He said that the Applicant refused him access on a number of occasions. She had also developed a practice of cancelling access time at the last minute. He explained that a week-about arrangement would eliminate such problems and would introduce certainty and predictability in the children’s relationship with both parents.

[40] The Respondent relied on case law for the proposition that the objective with access arrangements ought to be to maximize the psychological and emotional bond with each parent. In particular, he relied on M v. F. (2015) ONCA 277 to argue that domestic violence does not have to have a bearing on a parent’s ability to parent the child of the marriage and that such past difficulties would not pose a risk to a child’s well-being.

[41] The Respondent called on his sister to give evidence on the experiences with supervised access and her involvement. She described instances when the Applicant cancelled access visits. She also said that R.A. confided in her and told her that his mom caused the “diaper issue” that his Mom “caused the issue”. In cross-examination, it was not clear if the sister heard this comment directly from R.A. or from somebody else.

[42] Finally, in his cross-examination of the Applicant’s father, he put a number of questions to him to the effect that he sought to control his daughter and to intimidate the Respondent. Mr. Niaz denied those allegations and identified specific e-mail exchanges where he encouraged the Respondent to be patient and understanding.

ii. Child Support and Section 7 Expenses

a) The Applicant’s Position

[43] The Applicant seeks child support payments on the basis of the following breakdown for the years 2015 to 2019 as follows:

• September 1, 2015 – December 31, 2015: $1,158/month for base child support and $707/month for Section 7 expenses;

• 2016: $1,268 / month for base child support and $431/month for Section 7 expenses;

• 2017: $1,205 / month for base child support and $325/month for Section 7 expenses;

• 2018: $1,273 / month for base child support and $373/month for Section 7 expenses; and

• 2019: $1,273 / month for base child support and $384/month for Section 7 expenses.

[44] The Applicant also asked for an order requiring the Respondent to obtain a life insurance policy with a face value to secure his support obligations. She asked that the children be designated the irrevocable beneficiaries of such a policy for as long as the Respondent has child support obligations.

[45] Regarding the quantum for support, the Applicant cautioned the court to reject the business expenses that the Respondent wrote off in the years 2017 and 2018 because his attempt at undertaking some real estate work failed and the business expenses claimed were unsupported by any evidence. In light of that concern, she suggested that the court ought to use Line 101 in the Respondent’s income tax returns instead of Line 150 to determine the Respondent’s child support obligations.

b) The Respondent’s Position

[46] The Respondent disagreed with the Applicant’s claims. He submitted that from the date of separation to February / March 2017, in lieu of child support, he paid for the entire matrimonial home expenses, including the mortgage, home insurance, property taxes, utilities, and all credit card bills. For the period between March 2017 and December 2017 he said that he paid more support than what he should have paid and that accordingly there ought to be an adjustment to his obligations. Since 2018, the Respondent submitted that he has been paying child support through The Family Responsibility Office (FRO) though he did not disclose the monthly sum. Finally, with respect to his business expenses, he acknowledged that he tried to get into real estate but he was not successful. He explained however that he dedicated two rooms at his home for his business and that some of his friends were his clients. He insisted that for the purposes of child support, that sum should be determined on the basis of his net income, following the deduction of his business expenses.

iii. Spousal Support

a) The Applicant’s position

[47] Both parties made extensive submissions on this subject even though in the concluding submissions the claim was limited to a sum of approximately $1000 and the Respondent did not seem to take any issue.

[48] The Applicant advanced a claim on both a needs and compensatory basis. She submitted that she earns half the income of the Respondent, that she was not able to work in the first few years of her marriage because the spousal VISA she had did not permit her to work. She also said that they moved repeatedly to accommodate the Respondent’s career prospects and that she had to juggle her studies to obtain her CPA designation with the care of the two children. Indeed, the violent incident of August 29, 2015 that led to the criminal charges and the parties’ separation was triggered by her request that the Respondent change a dirty diaper and allow her to study for the exams she was scheduled to take on the day following the incident.

[49] Finally, the Applicant acknowledged that in her current employment at a telecommunications company she earned less than what she could earn at a professional accounting firm. But she explained that her employer gave her the flexibility to be able to attend to her children’s needs and that generally she found herself in a very healthy environment. She also expected that with her CPA designation she would see an increase in her pay.

b) The Respondent’s Position

[50] The Respondent challenged the Applicant’s claims. He said that the Applicant chose not to work, that she delayed her studies, that she did not carry her weight or make any financial contributions to the family, and that she chose to be underemployed. He also alleged that the Applicant had a “Hollywood” idea of what it would mean to get married and move to North America and that she deliberately sought him out with those fantasies. He said that her seven-year delay in obtaining employment was unreasonable. He also described her as a burden and concluded that he was disadvantaged by his marriage.

[51] The Respondent also dismissed the Applicant’s explanation that her current employer permitted her to have flexible hours and work arrangements that would enable her to care for the young children. He explained that he supported her studies that allowed her to obtain a CGA/CPA accounting designation. He said that she could obtain employment at a reputable financial institution or an accounting firm with “a very attractive salary” but she refused to leave her current employment because it would take her out of her comfort zone. Finally, he questioned her needs claim because of her offer to buy his share of the matrimonial home. She could not possibly have a need if she could afford to buy his share. He added that the offer further reinforced his conclusion that the Applicant must have access to other financial resources that she failed to disclose to be able to advance such an offer.

iv. Equalization and Property Issues

[52] There were five issues in dispute between the parties: the investment property referred to as the Milton house, the treatment of the jewellery allegedly gifted to the Applicant, the treatment of the matrimonial home, and property in Pakistan allegedly owned by the Applicant, and the household belongings. Taking everything into account, the Applicant submitted that the Respondent owed her an equalization payment of approximately $858.08. The Respondent submitted that the Applicant owed him $38,849.71. The position on each of the disputed items is summarized below.

i. Milton Property

[53] The most contentious issue in this analysis related to the investment property referred to by both parties as the Milton property. The Applicant described this property as a joint investment. The Respondent disagreed and said that he purchased the home for his own parents.

[54] According to the Applicant, the parties decided to purchase an investment property, at some point early in 2015. In February 2015, the Respondent stood in line overnight to purchase a home from Mattamy Homes. The Applicant agreed that her name was not included on the Agreement of Purchase and Sale but that was because she stayed home to care for their two young children, one of whom was an infant. The property was not completed until March 2016, several months after the August 29, 2015 date of separation. The Applicant was involved in the choices for the finishings to the home but she was not involved in the closing. Title was taken out in the names of the Respondent and his own Father, who arrived in Canada in February 2016.

[55] Against this basic chronology, the Applicant asks the court to find a resulting trust in her favour. In support of that claim she explained how she and the Respondent decided to purchase an investment property in Milton. She explained that the down payment for the property came from the parties’ joint account and that financing for the purchase was secured against their joint line of credit. After separation, the Respondent drew down on the line of credit the sum of approximately $100,000 and applied at least $75,000 towards the Milton property mortgage. Finally, up until the date of separation, she remained involved with all aspects of the purchase, including the finishings for the house.

[56] The Applicant rejected the Respondent’s claim that the down-payment was drawn from his excluded funds. She noted that the Respondent’s monetary gifts had long been co-mingled in their joint account and spent for their various needs. In legal argument, the Applicant’s counsel submitted that the Respondent had failed to provide the court with any tracing to support his claim. Moreover, the Applicant argued that the Respondent had failed to provide the court with any tracing to support his contention.

[57] The Respondent disagreed with the Applicant’s claim. He said that the funds for the down-payment were his own even if he deposited the money in the joint account. He said that this was done for convenience. He then explained that those funds consisted of $20,000 in U.S. funds, which his father gifted to him back when he was a student in the United States in July 2003 and $10,000 U.S. which he received from his in-laws in January 2006, shortly after his marriage. He conceded that he did not provide the court with any tracing of the funds to be able to demonstrate that between the period of 2003 and 2016 he never touched those particular funds. He went on to complain that the Applicant did not contribute anything to the Milton home and could therefore not have any entitlement to it.

[58] Regarding the joint line of credit, the Respondent admitted that he drew down on the joint line of credit to pay the mortgage for the Milton property after the separation and he went as far as to argue that the Applicant consented to the use of the line of credit for this purpose. When asked to reconcile the contradiction between his contention that the Applicant did not have a legal interest in the Milton property with her agreement that the line of credit be used to pay for the Milton mortgage, the Respondent submitted that he would agree to be responsible for the line of credit.

[59] When asked about why his father’s name was on title for the Milton property the Respondent said that the purchase had always been for his parents. He explained that he added his father’s name to the property after separation. He also said that his father contributed $10,000 towards the down-payment. In cross-examination, the Respondent suggested that the monies for the Milton property came from multiple sources, including the line of credit and help from various family members.

[60] The Respondent called his father to give evidence on his involvement in the purchase of the Milton property. Mr. Ahmad Senior admitted that he signed certain documents on March 2, 2016 when the property closed. He also said that he paid $10,000 at the time of the closing. Finally, the Respondent’s father confirmed that he sent $15,000 to his son on or about January 4, 2005 and that it was intended as a gift.

[61] With respect to the future treatment of the Milton property, the Applicant hoped for an order that would effectively result in her keeping the matrimonial home and the Respondent keeping the Milton property, with some adjustment to account for the differences in value of the two properties. If that could not be obtained then she submitted that the property should be partitioned and sold and that the two then share in the net proceeds equally. The Respondent disagreed with those submissions. He said that the property should be excluded completely from equalization because he acquired it after the date of separation.

[62] Parenthetically, prior to trial, the Respondent was ordered to obtain an appraisal of the Milton property. The Applicant was ordered to obtain an appraisal of the matrimonial home. An understanding of the comparative values may have assisted with the settlement of this issue. The Applicant complied and she led that evidence at trial. The Respondent acknowledged that he ignored the court order and did not obtain such an appraisal.

ii. Matrimonial Home

[63] Much time was spent on the value of the matrimonial home. The court heard from an appraiser, Ms. Lauren Vaughan, who gave values of the matrimonial home, both at the time of separation and as of August 20, 2018. There was no update to that assessment. The Respondent called a friend, Mr. Mahmood Bhullar, who purported to be a real estate agent and who offered his views on the value of the matrimonial home and the prices generally in Milton.

[64] The thrust of this evidence was to obtain comparator values for the matrimonial home and the Milton property, with a view to working out a settlement whereby the Applicant would keep the matrimonial home and the Respondent would keep the Milton home. The Applicant seemed to believe that she could also obtain such an order. In support of that view, the Applicant noted that the children would be able to remain in their home and the overall disruption would be minimized. Separate and apart from the concern that such an order would not be possible in law, the Respondent disagreed with any suggestion that the two properties be shared in the proposed manner.

[65] In the alternative to any sharing, the Applicant submitted that the matrimonial home be sold and that the net proceeds be shared equally. The Respondent agreed with that approach.

iii. Jewellery

[66] The Respondent claimed that the jewellery that was gifted to the Applicant should be treated as a family asset to be included in the equalization. He estimated the value of the jewellery at $45,000 though he led no admissible evidence to support such a figure. The Respondent’s father was called to give evidence on the jewellery. He identified some gold jewellery for the wedding ceremony, and he purported to produce certain receipts for the jewellery that he said he bought. The total weight of the gold was about 450 grams. He thought that the Respondent reimbursed him the sum of $4,000, though his memory was vague on both the value of the gold and when that alleged reimbursement was made.

[67] The Respondent also cross-examined the Applicant on this subject and put to her a valuation document issued by Ali Sons Jewellery purporting to identify the gold weight to be about 100 grams.

[68] The Applicant said that the Respondent’s parents gifted her the jewellery at the time of their marriage. Some of the other jewellery she owns were gifts from her own parents and relatives prior to the wedding. She said that she excluded these gifts, much like the Respondent excluded the watch that he received from the Applicant’s parents. She did not deny that she wore gold on her wedding and identified the jewellery in the wedding pictures. She disputed however the suggested value.

v. Pakistan Property

[69] The Respondent argued that the Applicant should include in her Net Family Property Statement the sum of $349,428, which he said reflected the value of a property that the Applicant’s father gifted to her during the marriage and that the Applicant still had at the date of separation. He also sought to include in the Applicant’s listing of bank accounts a bank account in Pakistan, which he estimated to have a balance of $39,861 on the date of separation.

[70] The Respondent attempted to introduce certain documentation concerning the property in Pakistan. The Applicant objected to their introduction because she said that the Respondent hacked into her computer and retrieved them without her knowledge. I ruled the documents inadmissible because separate and apart from how they were obtained, they amounted to hearsay and on their face raised concerns over their authenticity and their reliability. Furthermore, the Respondent confirmed that he had no intention of calling any witnesses to explain and prove the documents.

[71] The Applicant responded that at some point during her marriage her father gifted her a piece of land. However, she also explained that prior to the separation, in June 2015, she asked her father to take the property back because the Respondent was pressuring her to sell it. She said that the gift was causing her more grief than any benefit she might expect to gain and therefore she did not wish to keep it. The Applicant produced the transfer documents that purported to show the transfer of title back to her father. She denied the Respondent’s suggestion that the document had been doctored or that there was something untoward with the transfer.

[72] With respect to the Askari bank account the Applicant said that this was in her late mother’s name and was opened in 2015. The Applicant described the account as a “just in case” account. She said that in the event that her parents wanted to send her money from Pakistan, it would be easier to do that if her own name was on the bank account. The Applicant however also testified that the account belonged to her father and that she did not deposit or withdraw anything from that account.

[73] Mr. Niaz was cross-examined on both of these issues. He explained that he bought the property in September 2005. He also said that it was land that was allotted to him by the army. He gave the land exclusively to the Applicant. He recalled that the Applicant complained repeatedly about the Respondent’s pressure on her to sell the land and asked him to take the land back. He said that he could not quite understand the reason for the disagreement between his daughter and the Respondent but he recalled his daughter’s description of the land as “a bone of contention” in her marriage. In light of his daughter’s complaints, Mr. Niaz said he agreed to take the land back. Once the transfer was concluded he decided to sell the property because he said that he needed the money.

[74] On the subject of the Askari Bank account, like the Applicant, Mr. Niaz explained that the account was opened in his late wife’s name. He said that they also included his daughter’s name because it would be easier to transfer money to his daughter in the event of need. Mr. Niaz also said that the Applicant did not make any contributions to either the purchase of the property or the bank account. He said that the bank account belonged to him.

ANALYSIS

[75] Before I turn to the specific issues in dispute, I wish to make the following credibility findings concerning the parties and the evidence they led, as they are foundational to my determination of each of the issues in dispute.

[76] The Applicant testified in a forthright manner. As she addressed the various issues in dispute and as she gave particulars of the domestic violence, it became evident that she still feared the Respondent and is continuing to work through the trauma that accumulated from the various instances of domestic discord. That said, her various requests, for the most part, were reasonable and revealed a genuine attempt to move forward in a constructive manner. She spoke about the difficulties with the Respondent but she did not exhibit any anger against him or suggest that she was seeking revenge against him. Contrary to the Respondent’s allegations, there was also no evidence that she was being manipulated or controlled by her father.

[77] Also contrary to the Respondent’s allegations that the Applicant sought to alienate the children from him, the Applicant candidly expressed her desire for her children to have a relationship with their father. Very significantly, both Ms. Williams and Mr. Jacobs corroborated the Applicant’s attitude and had no concerns of any alienating behaviour. In the result, on balance, I found the Applicant to be credible.

[78] Insofar as Mr. Niaz is concerned, he also came across as credible. He was firm in his views and it was evident that he sought to protect his daughter. However, that sense of protection did not extend to any ill-will on the Respondent. To the contrary, as was reflected in his early exchanges in 2013 between him and the Respondent, when the couple first seemed to have some difficulties, he counselled the Respondent to be patient. His expression of regret at not having appreciated the extent of his daughter’s unhappiness merely served to underscore his attempts to keep the parties together. It also revealed the sentiments that one would expect a parent to have were they to learn that they were wrong in their original assessment of a situation. In my view Mr. Niaz presented as somebody who cared for his daughter. This is very different from an allegation of control, which I reject.

[79] As for the third party witnesses, the appraiser, Ms. Vaughan, the OCL Clinician, Ms. Shatira Williams, and the CAS Protection Worker, Mr. Jacobs, they were all credible in their respective testimonies. They reported on their observations in a measured manner, their work was thorough, and they were unshaken in their respective testimonies.

[80] The Respondent had very definite views and testified with conviction. The difficulty with his testimony did not rest as much with his credibility as it did with the degree of his belief that he did nothing wrong, that the Applicant and her family sought to take advantage of him, acted in bad faith, and engaged in fraudulent behaviour so as to undermine his own claims. As I listened carefully to these complaints I was left with little doubt that the Respondent believed what he said in court. That of course did not make the allegations true.

[81] It also became obvious that the Respondent’s beliefs were grounded in anger and a deeply felt animus against both the Applicant and her father. He blamed the Applicant for everything that went wrong in the marriage and he accused her of alienating their older son and of failing to respond to the children’s various needs. He referred to the Applicant as a burden and quite alarmingly, every time he was asked to comment on the incident of domestic violence and other domestic disagreements, he redirected the discussion to what he considered to be the Applicant’s failure and refusal to contribute financially to the family, suggesting that her failure justified his conduct.

[82] As the Respondent blamed the Applicant for all his woes, he also minimized his own behaviour, going as far as the suggestion that the domestic incident was really just an accident. Generally, he tried to portray himself as the real victim who was being controlled by both his wife and her family and he failed to show any self-awareness or take any responsibility for his actions.

[83] Perhaps unwittingly, in his own portrayal of the Applicant as a burden on the marriage along with all the corresponding complaints, the Respondent corroborated the concerns expressed by the Applicant, Ms. Williams and Mr. Jacobs about his continued anger and his inability or refusal to take responsibility for his actions.

[84] Given these weaknesses, the Respondent’s evidence was unreliable as it was clearly designed to validate his views and to put the Applicant in the worst possible light. This conclusion has significant implications on my findings on custody, access and the division of property.

[85] Insofar as the credibility of the Respondent’s sister and father are concerned, they offered very little help to the court. They were both coached by the Respondent to offer testimony in support of the Respondent without any particular insight or specific recollection. If anything, the sister’s indication that R.A. presented as a sad young boy, and the father’s confirmation that the jewellery that the Applicant received at the time of her wedding was a gift by him and his wife was evidence that corroborated the Applicant’s evidence. The sister’s suggestion that R.A. blamed the Applicant for the domestic incident made no sense whatsoever, especially having regard for the balance of the evidence before the court. It merely brought into focus the Respondent’s desperate attempt to validate his perspective on what occurred and his behaviour.

[86] With these preliminary observations, I will turn to each of the issues in dispute to analyze them and make my specific findings.

a) Custody and Access

[87] Having regard for all the evidence before me, I conclude that the children’s primary residence shall remain with the Applicant and that the Applicant shall ultimately be responsible for the major decision-making for both children. With respect to access time, it is appropriate to increase the Respondent’s access time on terms consistent with the report of the OCL, with a further long-term view to working towards a week-about arrangement. I describe below the particular contours of these arrangements but before I do so, I would like to explain my findings and reasons for this decision.

[88] On custody, on the evidence before me, I do not see how a joint parenting arrangement will work. These parties have been unable to engage in even basic communications. As I already explained, the Respondent’s animus against the Applicant, his description of his son as a liar, his lack of any insight into how his child was affected by the domestic disputes and violence, his minimization of his role in the domestic disputes and his unwillingness to take any responsibility for his own conduct, and his discipline methods, as reported by his son to the CAS, are all contraindications to any form of joint parenting, never mind the Respondent’s request in his closing submissions for sole custody of the children. The concerns expressed by both the OCL and the CAS were credible and troubling. Ms. Williams’ concern that joint custody and a 50-50 access schedule would become the source for continued disputes and disagreements were corroborated by the Respondent’s negative and critical attitude.

[89] I find support for my decision on custody and access on the following legal principles. It is crucial that both parties understand that that the court’s sole consideration in the determination of child custody is the best interests of the child: see section 24(1) of the CLRA and section 16(8) of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) (Divorce Act).

[90] Inasmuch as the labels ‘sole custody’, ‘joint custody’ and “shared custody” carry with them symbolic value and are sometimes used by parents to exert control and to validate the power of one parent over the other, these parents are reminded that custody is about defining the rights and responsibilities for the care and decision-making related to the well-being of their children and for no other purpose.

[91] The starting point for the determination of a child’s best interests is the child’s perspective and not that of either parent. “The rights and interests of the parents, except as they impact on the best interests of the child are irrelevant”, except as it relates to the best interests of the child: see Gordon v. Geortz, 1996 CanLII 191 (SCC), at para. 37; and Young v. Young, 1993 CanLII 34 (SCC).

[92] According to section 16(8) of the Divorce Act, the best interests of the child are to be determined with “reference to the conditions, means, needs and other circumstances of the child”.

[93] Section 24(2) of the CLRA states that the court shall consider all of the child’s needs and circumstances, which include the following considerations:

(a) the love, affection and emotional ties between the child and,

(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.

[94] Section 24(3) and 4(4) address situations where abuse has occurred:

Past conduct

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2).

Violence and abuse

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child. 2006, c. 1, s. 3 (1); 2016, c. 23, s. 7 (2, 3).

Same

(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).

[95] Section 16(10) of the Divorce Act states that when the court makes a custody and access order, “the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child.” The court must also consider “the willingness of the person for whom custody is sought to facilitate such contact”.

[96] When considering these sections, the courts have noted that a parent shall not be permitted to deprive a child of the benefit of the other parent’s input on childcare decisions without good reason: see Woolrich v. Woolrich, 2005 SKQB 72, at para.26; and Mikan v. Mikan, 2004 CanLII 5062 (ON SC), 2004 CarswellOnt 772 (SCJ), at paras. 22-23.

[97] At the same time, in its interpretation of section 16(10) of the Divorce Act, the Supreme Court of Canada recognized that the ‘maximum contact’ principle is not absolute; it must be reconciled with the best interests of the child. If circumstances are such that the child’s best interests might be compromised by the maximum contact principle, then the said principle may be modified or restricted to meet the particular circumstances, see Young at paras.117-118.

[98] The ‘maximum contact’ principle is grounded on the view that maximum contact with both parents is generally in a child’s best interests. Young children with attachments to both parents need sufficient contact with both of them, without prolonged separations. This is what will enable them to maintain meaningful and close relationships with their parents. When seeking to resolve a custody dispute, emphasis must be placed on the critical importance of bonding, attachment and stability in the lives of young children: see Chin Pang v. Chin Pang, 2013 ONSC 2564, 2013 CarswellOnt 7824 at para. 122 (Chin Pang); Huisman v. Stefaniw (1997), 1997 CanLII 24463 (ON SC), 26 R.F.L. (4th) 406, 1997 CarswellOnt 100 (Ont. Gen. Div.),; and Boukema v. Boukema (1997), 1997 CanLII 12247 (ON SC), 31 R.F.L. (4th) 329, 1997 CarswellOnt 3115 (Ont. Gen. Div.).

[99] Having regard for all the variables that come into play in a particular family situation, when determining custody, access and the appropriate parental arrangement, it is important to note that no one statutory factor enjoys statutory pre-eminence. In Chin Pang, at para. 121, the court offered some useful questions to consider that are especially useful to the analysis of this case:

1. the level of hostility between the parties, the extent to which that hostility could undermine the stability of the child, and what measures, if employed, would likely strip the hostility from the environment;

2. the extent to which the person seeking access has laid down a track record of using contact to the child for a purpose entirely collateral to the child’s best interests; for example, to try to control or denigrate the parent of the parent’s partner;

3. the extent to which the person displaying objectionable conduct has the ability and the motivation to alter the behaviour; and

4. whether the parent is acting responsibly, reasonably, and in a child-focused fashion in an assessment of what is in the child’s best interests.

[100] Decision-making, and in particular, the ability of the parents to engage in joint decision-making without conflict is another essential dimension for consideration when deciding on the parenting arrangements and whether to grant joint or sole custody to parents. For joint decision-making to occur, and by implication joint custody, the parents must be able to put their own differences aside and communicate effectively about the various decisions they have to make in relation to their children. Such communications would include each parent sharing of information about the children’s address with the other, selecting schools and then interacting with that school where needed, consulting with one another and considering the other’s views when selecting and contacting treating physicians, counsellors, or other supporting specialists who might be needed to support a child’s various health and welfare needs, where the family observes religion, then discussing whatever decisions are to be undertaken in that context, collaborating in the selection of extra-curricular activities, the parents’ attendance at such events, and co-ordinating of access time with the children.

[101] The parents’ inability to engage in effective communications is a serious consideration. In Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 2005 CanLII 1625 (Ont. C.A.), at para. 11, the court noted that “no matter how detailed the custody order that is made, gaps will inevitably occur, unexpected situations arise and the changing development needs of a child must be addressed on an ongoing basis”. Disagreements over decision-making can make life miserable for children and feed into their insecurities, disillusionment and unhappiness.

[102] That said, even where joint decision-making is neither practical nor realistic, courts have examined various models of decision-making that would still promote the parents shared involvement in every aspect of their children’s lives.

[103] One option is to identify one of the two parents as the final decision-maker coupled with a requirement that there be full information sharing between the parents on all matters relating to a child’s welfare and well-being and with a view to working towards an agreement. Where the parents are unable to reach an agreement and the decision-making parent makes a decision, he or she must be able to demonstrate that the decision made took into account the concerns of the other parent. Depending of the nature of the decision at stake, the decision-making parent may also have to demonstrate the reasonableness of his or her preferred approach. That might require input from third-party arm’s-length advisors, as the case may be. Apart from the overriding concern that a child’s best interests be met, the rationale behinds such an approach is to avoid shutting one parent out of the overall parental relationship: see Leeming v. Leeming, 2015 ONSC 3650, 2015 CarswellOnt 8636; and Goyal v. Goyal, 2014 ONSC 3026.

[104] A variation to the first option might be to separate out the decision-making subjects such that one parent has the final decision-making power over one aspect of a child’s life while the other has that authority over a different subject. Decision-making may also be linked to the parent with whom a child resides, or the decisions may be divided between day-to-day decisions and longer-term decisions: see: M.B. v. D.T., 2012 ONSC 840. These options lend themselves to situations where, although there might be conflict between the parents, one is not more responsible over the other, or one is not more prone to disagreement or unilateral action.

[105] Underpinning these basic principles is the reminder from the Ontario Court of Appeal, in M. v. F., 2015 ONCA 277 that the Ontario legislation does not require a trial judge to make an order for custody. Section 28(1)(a) of the CLRA is permissive, not mandatory. At paragraph 39 of the same decision, the ONCA cautioned that the subject of custody not be considered in terms of winners and losers:

[39] For twenty years, multi-disciplinary professionals have been urging the courts to move away from the highly charged terminology of “custody” and “access”. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this “winner/loser syndrome” in child custody battles has long been recognized.

I place specific emphasis on this point as I fear that the sense of winning or losing was in the back of the Respondent’s mind, when in his closing submissions he changed his position from seeking joint custody of the children, to sole custody in his favour. Both parties must appreciate that they must find ways to meet the children’s best interests.

[106] Turning to this case, as I already indicated, the Respondent’s contempt for the Applicant is deeply troubling and raises concerns that he may engage in alienating behavior against the Applicant and not the other way around as he would have the court believe. His allegations against the Applicant and his alleged concern that the Applicant’s father would seek revenge against him were completely unfounded and without any merit.

[107] In contrast to those concerns, I find that the Applicant has been very capable of caring for the children and has not engaged in any alienating behavior. To date she has demonstrated sound judgment and she has shown a remarkable resilience and self-restraint. Her ability to obtain her CGA/CPA designation while caring for her children and contending with the Respondent’s relentless pressure and domestic discord highlighted the depth of her stamina and determination to do what was right for the children. Insofar as she turned to her own father for help when she reached her limits was entirely reasonable in all the circumstances. In short, the Applicant has consistently sought to respond to the children’s best interests. I believe her when she says that she wishes for her children to have a relationship with their father because the that aspiration was consistent with her overall conduct.

[108] Mr. Niaz cannot be criticized for responding to his daughter’s cry for help. Having said, that there was nothing in the evidence that would suggest that he would seek revenge against the Respondent. His actions to date have been proportional to the help that was sought and if anything, the written exchanges between him and the Respondent demonstrated a history of Mr. Niaz giving the Respondent the benefit of the doubt when arguably, he should have been more attentive to his daughter’s concerns.

[109] The best evidence in support of my findings is captured in the evidence given by Ms. Williams, Mr. Jacobs and in the children’s school report cards. Ms. Williams and Mr. Jacobs remarked on the Applicant’s exceptional care for the children. Contrary to the Respondent’s complaints that the children had bad teeth or that there was unusual bruising on the younger child, Mr. Jacobs dismissed those complaints as unfounded. The school report cards did not reveal any difficulties. To the contrary, the children’s positive performance confirmed that the children were well-adjusted and that their best interests were being addressed appropriately.

[110] On the specific allegation by the Respondent that the Applicant engaged in alienating behavior, there was nothing in the evidence to support that claim. Neither Ms. Williams nor Mr. Jacobs reported any such concern. My concern is that the Respondent used this allegation to deflect any blame or criticism for his own behavior and his responsibility for the domestic discord and violent incident of August 29, 2017.

[111] Having regard for all the evidence before me, Ms. Williams’ report that the children were reserved in their interaction with their father and her conclusion that this was the result of the Respondent’s strict and authoritarian behavior, corresponded with my own observations of the Respondent’s attitude. I find that the children’s behavior towards their father is not the result of anything their mother is saying. They are clearly reacting to the Respondent’s expectations and requirements. Some self-awareness and insight by the Respondent into his overall conduct might go a long way to reducing the children’s resistance. While the Respondent may be meaning well in his approach to the care of his children, this is an example where some parent counselling might give him some strategies to reduces the sources of disagreement.

[112] As a further observation and finding, had the Applicant been engaging in alienating behavior, I would have expected to find difficulties in the relationship between the Respondent and both of his children but that that was not the case. Apart from the reported reservations by both children, I find it most significant that Ms. Williams and Mr. Jacobs reported that the younger child’s overall relationship was positive. They contrasted that to R.A.’s relationship, which they reported to be fraught with tension, resistance, mistrust and disagreement.

[113] In my view, the explanation for this difference rests with the fact that R.A. witnessed the violent incident of August 29, 2017 while the younger child was only an infant. Given both the extent and the content of R.A.’s emotional and spontaneous exchanges in his communications with both Ms. Williams and Mr. Jacobs, there can really be no dispute that R.A.’s difficulties are the result of emotional trauma and not the result of any alienating behavior by the Applicant.

[114] The Respondent’s response to R.A.’s difficulties and his repeated characterizations of R.A. as an occasional liar, to explain R.A.’s exchanges with both the OCL and CAS merely underscored for me that the source of R.A.’s difficulties does not lie with any alienating behavior by the Applicant but with the Respondent’s own refusal to take responsibility for his own actions. The solution to this problem is not a legal one. In other words, it does not lie in taking custody away from the Applicant. Nor can it lie in giving the Respondent more access time. Rather, I agree with Ms. Williams’ conclusion that the Respondent’s and R.A.’s difficulties cry out for some form of therapeutic intervention, without which this family will continue to have problems and disagreements.

[115] In light of these findings, I conclude that the best way to meet the children’s best interests is for the children’s primary residence to remain with the Applicant and to leave the responsibility for all major decisions with her as well.

[116] I specifically decline to use the term “sole custody” to describe the responsibility for the children’s care for all the legal reasons already discussed above. In my view, the combination of the children’s primary residence with the Applicant, combined with the Applicant’s ultimate responsibility for the major decisions in the children’s lives is analogous, though not identical to sole custody.

[117] I follow this approach to avoid the implications of a winner and loser in parenting responsibilities. I also follow this approach to convey the message to both parties that it is not my intention to remove the Respondent from the children’s lives, but rather to find a way to manage the relationship between the parties and to find a way of avoiding disagreements and disputes.

[118] By major decisions, I mean decisions concerning education, medical, health and welfare, religion, and extra-curricular activities. By emphasizing “ultimately”, I mean to signal that the Applicant shall advise the Respondent in writing of a pending need for a decision and of her proposed approach. In doing so, she shall provide the Respondent with any relevant documentation to support the reasons for her proposed decision. Such proposal must be reasonable and in the child’s best interests. For example, if there is a need to select a new school for one or both of the children, the Applicant shall identify the need, identify the proposed new school, explain why the selection of that school is reasonable and the child’s best interests, and provide any supporting documentation.

[119] Absent an emergency, the Applicant shall provide the Respondent a minimum of thirty days notice of the need for a decision. The Respondent shall provide his input and views in writing within 10 days of the Applicant’s notice. In the event of a disagreement, or if the Respondent wishes to advance an alternate proposal, he shall do so in writing and offer a fulsome explanation to support his proposal. If the Applicant disagrees with the Respondent’s suggestion, she may follow a different course provided she is able to demonstrate that she took the Respondent’s concerns into account and that her decision is reasonable and in the children’s best interests.

[120] Neither parent shall disagree just for the sake of being disagreeable or exerting control over the decision-making process. I highlight this concern, especially in light of the recent experience with the Respondent’s unreasonable and unfounded refusal to allow the Applicant to travel with the children as well as his removal of the children’s legal documents from the Applicant’s possession. Should the Respondent defy this order and continue his attempts to exert control over the Applicant, he may forego the opportunity to have any say in the major decisions for the children.

[121] In addition to the major decisions, the Applicant shall be responsible to schedule all medical appointments and check-ups, dentist appointments, haircuts, and other routine activities related to the children’s health and welfare.

[122] To support the Applicant’s decision-making activities, she shall be the keeper of all original government-issued identification and documents such as their Canadian passports, their Birth Certificates, their OHIP cards, and any school-related identification. The Applicant shall also be responsible for the renewal of the passports and the OHIP cards and she shall be authorised to submit renewal applications without the Respondent’s signature. Accordingly, the Respondent, who is currently in possession of the noted documents, shall return them to the Applicant forthwith. He may retain copies of these documents for his own records. Going forward, for any documents that are updated or renewed, the Applicant shall provide the Respondent with copies.

[123] With respect to the day-to-day decisions, each parent shall be responsible for the children when they are in their respective care. For example, if the children are staying overnight with the Respondent and they require a school authorization for a school activity for the next day, then the Respondent may sign-off on that authorization.

[124] The objective of this arrangement is to permit the Respondent to be involved in his children’s lives in a meaningful manner but in a way that minimizes the conflict between the parties. Accordingly, the Respondent shall be advised of any and all doctors’ appointments, and any and all teacher-parent interviews, and he shall receive copies of any and all relevant documents. It will be up to the Applicant to make sure that the Respondent receives the noted documents. The Respondent shall be permitted to attend doctors’ appointments and any school meetings and activities.

[125] On the subject of travel, both parties may travel with the children both in Canada and internationally for vacation only and for a maximum period of two weeks at a time. The travelling parent shall provide the other parent with information on the destination, a copy of the full itinerary, and emergency contact information. The children shall be provided the opportunity to contact the other parent every third day of their trip, by way of Skype, Facetime, or other digital platforms provided such connections are possible.

[126] Turning to access, having regard for all of the evidence before the court, it is reasonable to increase the Respondent’s access time as follows: alternate weekend overnight stays with the Respondent that begin on Friday after school and end on Monday morning back at school. In addition, for the weeks where the children do not have a weekend with their father, they shall have access visits on Thursday after school until Saturday morning at which time they will be dropped off at their primary residence.

[127] If the Respondent’s access has to change to accommodate the children’s activities such as a school trip away from home, a friend’s birthday party, or some other family celebration, the parties shall identify make-up time within the month.

[128] This access schedule will apply for the next year. If the Respondent agrees to attend parenting counselling and parent-child reunification therapy with his son R.A., and the outcomes are successful, the parties may return to me to revisit the possibility of a transition to a week-about arrangement. If there are no efforts to undertake any therapeutic intervention or counselling, then the access terms of this order will become final, without any need for a further attendance.

[129] With respect to holidays and celebrations such as birthdays, Father’s Day, Mother’s Day, and other special holidays, the Applicant shall have the children for Mother’s Day and the Respondent shall have the children for Father’s Day, irrespective of the access schedule. If the dates conflict with the Respondent’s access time, then the schedule shall be adjusted accordingly to accommodate the specific needs.

[130] For all other holidays and celebrations, the parties will share the time equally on the basis of even and odd years. Therefore, using March Break as an example, starting in 2020, the children will spend March Break with the Applicant. In 2021, they will spend their week with the Respondent. For school holidays, such as the Christmas / Holiday break, the days will be divided equally between the parents and the access time will be adjusted accordingly. As for religious and cultural holidays specific to the Pakistani traditions such as Eid, the children will celebrate those dates on the basis of even and odd years, with even years being with the Applicant and odd years being with the Respondent. For birthday celebrations, each parent will celebrate the child’s birthday as close as possible to the actual birth date.

[131] Finally, for all communication needs and interactions between the parties about anything relating to the children, the parties shall use Family Wizard or any similar application so as to eliminate the prospects of disagreement. They are encouraged to develop a schedule for the balance of this year and 2020 and stick to that schedule as best as possible. They are also reminded that neither party shall speak to the children about these proceedings or speak negatively about the other parent. It is incumbent on both parents to do everything in their power to restore a peaceful balance in their relations with their children.

2. Child Support and Section 7 Expenses

[132] The actual period in dispute for these expenses is from the date of separation until March of 2017. Having regard for the evidence I heard, it is appropriate to credit a portion of the Respondent’s payment of all the household and living expenses for the family against his child support obligations. However, the children’s needs go beyond those covered by the household expenses. Accordingly, I reject the Respondent’s claim that the household payments be set-off entirely against his child support obligations. Instead I find that the appropriate set off would be at 50 per cent for the following reasons.

[133] On the basis of the records before the court, I find that the Respondent’s monthly expenses for the maintenance of the home and all related expenses for the period between the date of separation and March 2017 came to approximately $1200. His child support obligation for two children, at his level of income in round numbers is also in the range of $1200. Child support is paid to cover all of the costs associated with the care and well-being of a child, namely, housing, clothing and footwear, food, health and medical needs, and education. The Respondent’s payment for all expenses related to housing means that at least those costs associated with housing for the children was satisfied. However, he made no contributions for the balance of the children’s needs. The Applicant covered those needs. Accordingly, it is appropriate that the Respondent be credited with $600 per month for child support from September 1, 2015 to March 1, 2017.

[134] With respect to the quantum of child support, independent of any credit, although the Respondent’s business costs were questionable, I did believe him when he said that he tried to start up a real estate business and to work as a real estate agent for a period of time without success. Even though he did not substantiate his expenses, whether I rely on his Line 150 or Line 101 income, the difference in the quantum to his child support obligation is marginal. When figures are rounded, the quantum of support for the disputed years is in the range of $1200 and $1270 or so. Therefore, for the period of 2015 to March 1, 2017, I fix the quantum of support at $1250.

[135] With respect to section 7 expenses, those claimed by the Applicant are legitimate and the Respondent ought to pay his share. The Respondent’s challenge to the day care expenses, his suspicions and his behaviour towards the home care provider who cared for the children before and after school, and his suggestion that PLASP would be preferred to the care the children received was unreasonable, mean-spirited and advanced in bad faith. The Respondent ignored completely the attachment that his children have to the home childcare provider, which was described in the evidence of both Ms. Williams and Mr. Jacobs.

[136] These expenses are in addition to the children’s basic needs and it would be inappropriate to set them off against the Respondent’s payment of the house expenses.

[137] Accordingly, I make the following order on account of the outstanding child support and section 7 expenses:

• September 1, 2015 – December 31, 2015: $650 /month for base child support and $707/month for Section 7 expenses;

• 2016: $650 / month for base child support and $431/month for Section 7 expenses;

• January 1, 2017 until March 1, 2017: $650 / month for base child support and $325/month for Section 7 expenses;

• April 1, 2017 – December 31, 2017: $1250 / month for base child support and $325/month for Section 7 expenses;

• 2018: $1,250 / month for base child support and $373/month for Section 7 expenses; and

• 2019: $1,250 / month for base child support and $384/month for Section 7 expenses.

[138] The parties are to review the payments already paid through the FRO, and they are to make any necessary adjustments to the payments already paid, if such adjustment is necessary.

[139] For 2019 and for all years going forward, child support will be adjusted in accordance with the Respondent’s annual tax returns. Both parties will exchange their annual Notices of Assessment by June 30 of each year and the child support will be adjusted accordingly. Assuming regular tax filings, neither party should have any difficulty producing their respective notices of assessment. If there is some irregularity that causes a delay, the party with the difficulty will advise the other side as soon as he or she becomes aware of the difficulty.

[140] For all future Section 7 expenses, the Applicant shall give the Respondent 30 days notice of the anticipated expenses and she shall also provide an explanation for such expenses in advance of the expense to be incurred. The proposed expenses must be reasonable and in the children’s best interests. The Respondent shall have 10 days to raise any concerns with the proposed expense. Such concerns must be reasonable and demonstrate their connection to the children’s best interests.

[141] Finally, for as long as the Respondent has to pay child support the Respondent shall arrange for a life insurance policy with a face value sufficient to secure that support obligation. The children shall be designated as the irrevocable beneficiaries of the said policy.

3. Spousal Support

[142] As there was no real resistance to the payment of spousal support by the Respondent to the Applicant in the sum of $1000, for the year 2015, I am prepared to make that order. I do find that the Applicant had some initial need for support in 2015. I also accept that she made certain sacrifices for the benefit of the family. But I reject the Respondent’s submission that the Applicant was a burden on the marriage or that she did not carry her weight.

[143] The Applicant worked when she could, she had the primary care for two young children, and she did everything she could to obtain her CGA/CPA designation, including taking her exams the day after the domestic violence of August 29, 2017. She was hardly a burden to this family. However, having regard for her successful studies, her CPA designation, and the promising career options that lie ahead, I do not see any basis for an ongoing spousal support order. In this, I find confirmation in the Divorcemate analysis that does not identify any substantial spousal support payment. In any event, the Applicant is relatively young and able to move forward with her life and to support herself. As the children get older she ought to be able to pursue more ambitious positions with more substantial pay.

4. Property Issues

a) Milton Property

[144] On the evidence before the court, I have come to the conclusion that there is a resulting trust in favour of the Applicant with respect to the Milton property and here is why.

[145] To begin with, the law on resulting trusts in a domestic context has been outlined by the Court of Appeal in Korman v. Korman 2015 ONCA 578, at para. 27. I note in particular the court’s reliance on Kerr v. Baranow, 2011 SCC 10, at paras. 16-19, where the Supreme Court of Canada confirmed that a resulting trust may arise in the domestic context where there has been financial contribution to the initial acquisition of a property or a subsequent gratuitous transfer of title to the property. In such circumstances, the actual intention of the transferor is an essential ingredient to such an analysis. The Supreme Court of Canada noted at paragraphs 17- 19

[17] Resulting trusts arising from gratuitous transfers are the ones relevant to domestic situations. The traditional view was they arose in two types of situations: the gratuitous transfer of property from one partner to the other, and the joint contribution by two partners to the acquisition of property, title to which is in the name of only one of them. In either case, the transfer is gratuitous, in the first case because there was no consideration for the transfer of the property, and in the second case because there was no consideration for the contribution to the acquisition of the property.

[18] The Court’s most recent decision in relation to resulting trusts is consistent with the view that, in these gratuitous transfer situations, the actual intention of the grantor is the governing consideration: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 43-44. As Rothstein J. noted at para. 44 of Pecore, where a gratuitous transfer is being challenged, “[t]he trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s actual intention” (emphasis added).

[19] As noted by Rothstein J. in this passage, presumptions may come into play when dealing with gratuitous transfers. The law generally presumes that the grantor intended to create a trust, rather than to make a gift, and so the presumption of resulting trust will often operate. As Rothstein J. explained, a presumption of a resulting trust is the general rule that applies to gratuitous transfers. When such a transfer is made, the onus will be on the person receiving the transfer to demonstrate that a gift was intended. Otherwise, the transferee holds that property in trust for the transferor. This presumption rests on the principle that equity presumes bargains and not gifts (Pecore, at para. 24).

[146] On the facts before this court, I find that the purchase of the Milton property started out as a joint contribution towards the acquisition. I accept the Applicant’s evidence that the down payment was made out of the parties’ joint bank account. I also accept the Applicant’s evidence that the parties agreed to obtain financing against the parties’ matrimonial home. I expressly note the Respondent’s own admission that the Applicant expressly agreed to use the line of credit to finance the Milton property. The Respondent also did not dispute the Applicant’s evidence that she was completely involved in the selection of the finishes for the said property. The Applicant’s explanation that she did not line up overnight with the Respondent in late February to enter into the Agreement of Purchase and Sale because she had two young children at home, one of whom was an infant made complete sense. Finally, there was no evidence that the Applicant agreed to these financial arrangements gratuitously or that she received any consideration for her agreement to these financial terms.

[147] In contrast to the Applicant’s evidence, apart from his noted admissions, I found the Respondent’s evidence contrived and incredible. His explanation that in reality even if the funds for the down payment came from a joint account, they were funds that his own father gifted him back in 2003 when he was a student in Rochester and from his in-laws’ gift at the time of his marriage was preposterous.

[148] Firstly, the Respondent made no efforts to offer a tracing of the “gift funds” from the time they were gifted to the Milton purchase to substantiate his allegation that he had retained those funds for a future expenditure. He did not deny that the funds were co-mingled in the parties’ joint account. There might have been something to his claim if the said funds had been held in a segregated fund, in a GIC, or in some other secured investment. That may have supported a claim that the Respondent intended to use those funds for his own exclusive benefit. However, in the Respondent’s limited review of certain bank statements that showed a sum of $45,000 US being transferred into a joint account, that transfer occurred long before there was any evidence of any intention to buy an investment property, let alone any agreement that the alleged gifts would be kept separate from the household income. Moreover from 2012 to 2015, the Respondent agreed that they used that joint account for their household expenses. If in fact the $45,000 US included the gift money, I find that the funds lost their character in 2012 when they were co-mingled with other family funds and were used to pay for a variety of household expenses.

[149] Secondly, even with the limited evidence of the transfer, there was no evidence to support a finding that the $45,000 U.S. included the monetary gifts to the Respondent. More significantly, the Respondent’s contention that he set aside the monies he received from his father back in 2003, at a time when he was a student in Rochester and when he would have required substantial funds to support himself and his studies as a foreign student in the United States defied common sense. The more reasonable inference is that the monies from the Respondent’s father would have been sent to support the Respondent.

[150] Similarly, the contention that he would have saved those funds became that much more doubtful when considered together with his complaint that he experienced financial stress during his marriage. If he were under as much financial stress as he suggested, and if, as he said he had managed to save the gifts from his father and his in-laws, it makes no sense that he would not relieve that stress by turning to these funds. The more plausible explanation is that the sum of $45,000 U.S. was transferred in 2012 into the joint account to meet the family’s various financial needs.

[151] The reality is that the Respondent put forward two theories: a) the Applicant agreed to the Line of Credit, and b) he bought the Milton property with his own funds. But the Respondent cannot have it both ways. If the Applicant consented to the use of the line of credit for the Milton purchases, the inevitable conclusion is that she has an interest in the Milton property. If the Applicant did not consent to the use of the joint line of credit to obtain financing for the Milton property, then the Respondent would have an arguable case against the Applicant’s claim.

[152] The Respondent realized the contradiction in his two theories during his cross-examination but only after he insisted that the Applicant agreed to use the joint line of credit to finance the Milton purchase. He then tried to change his testimony, going as far as to suggest that he would agree to be responsible for most of the repayment against the outstanding line of credit. But the admission concerning the Applicant’s agreement was already made. More to the point, there was no dispute that the Line of Credit was obtained prior to the Agreement of Purchase and Sale for the property to enable its financing. The arrangement was made to put the parties in a position to be able to proceed with their investment. The acknowledgment by both parties that the Mattamy homes were in high demand such that purchasers lined up overnight underscored the need for interested parties to have their “financial ducks” in a row to be able to proceed with the purchase and I find that this is what these parties did.

[153] The Respondent’s additional explanation that the Milton property was actually purchased for his parents and not as any investment only served to underscore the Respondent’s determination to defeat the Applicant’s claim. Even if the purchase were intended to accommodate the Respondent’s parents, who arrived in Canada in February 2016, five months after the date of separation, and full year after the Agreement of Purchase and Sale, that theory does little to explain how or why the Applicant would agree to use the funds in the joint bank account for the down payment, to secure the financing for the investment against the matrimonial home, if she never stood to benefit from the purchase.

[154] The submission by Mr. Ahmad Senior that he gave his son $10,000 towards the Milton property did not add anything to the analysis. Quite apart from the fact that there was no evidence to substantiate that alleged payment and Mr. Ahmad’s overall dubious credibility, that contribution did nothing to displace the Applicant’s claim. Rather, it represented a last-ditch alternative attempt to defeat the Applicant’s claim.

[155] Finally, in my review of the documentary evidence, I noted that the insurance certificate for the Milton property listed both the Applicant and the Respondent as the owners to the home. This information only put into further question the Respondent’s contention that the Milton property was purchased for his parents. Evidently, when the Respondent obtained insurance for the Milton property, he had no concerns with the Applicant’s name on the policy.

[156] Having come to this conclusion, the parties’ net family property should include a 50-50 entitlement to the Milton property. Given the absence of any valuation of this property, the only legal option, absent some other practical arrangement between the parties is for the property to be sold and for the net proceeds to be shared on a 50-50 basis.

[157] With respect to the outstanding line of credit of approximately $100,000, the Respondent shall have 30 days to produce an accounting of that sum. Given the joint interest in the property, any payments advanced towards the financing of the Milton property will be allocated equally to the parties. Any payments that went towards the expenses of the matrimonial home will also be shared equally between the parties. Finally, given the Respondent’s evidence that he used the line of credit to cover some of his own parents’ expenses, the Respondent alone will be responsible for the repayment of that sum.

b) The Matrimonial Home

[158] There is no legal basis for this court to order that the matrimonial home be transferred to the Applicant and that the Respondent keep the Milton property as requested by the Applicant. This may have been a practical solution that the parties could have reached, but it is not something that the court can order.

[159] The evidence concerning the appraisal of the matrimonial home, while credible, gave some insight into the value of the home as of 2018 but it was of little assistance with respect to offering any solution to its disposition.

[160] The only legal option that is available is to order that the matrimonial home be sold and that the parties share in the net proceeds after any required adjustments.

[161] Since the children reside in the matrimonial home and that generally speaking the winter months are typically the slowest time of the year for a sale to take place, the parties may have up to six months from the date of this order to list the matrimonial home for sale. This direction is intended to minimize the disruption to the children’s routines and also enable the parties to work with the selected realtor to position the sale as best as possible. Nothing in this proposed timeline prevents the parties from listing the property immediately, if they both agree that it would be financially most advisable to do so. Furthermore, the parties will work together to select a real estate agent, proceed with the listing of the property, and bring the sale to a conclusion. They will do the same with respect to the sale of the Milton property.

c) Jewellery

[162] I find that the Applicant’s jewellery is an excluded asset because the contested jewellery were gifts to the Applicant by third parties, prior to her wedding. Both parties agreed that this was the case. Alternatively, even if some of the jewellery were not a gift but could be treated as a family asset, there was no admissible or reliable evidence whatsoever of its value. More particularly, the respondent led no evidence to support his claim that the jewellery had a value of $45,000. Although rejected the introduction of certain alleged invoices as inadmissible, I note that even if I had admitted those documents, they did not come anywhere close to the claimed value of $45,000.

[163] Apart from these difficulties, Mr. Ahmad Senior’s own evidence was most fatal to the Respondent’s claim given his evidence that he and his wife gifted the jewellery to the Applicant. He did not say that he and his wife bought the jewellery on their son’s behalf. Very remarkably, the Respondent agreed in cross-examination that it was his parents who bought the jewellery with their money. The father estimated that maybe they paid $4,000, for the jewellery but then he suggested that the Respondent reimbursed him for that sum. This explanation was given as an after thought and even then, the father was very tentative and ultimately unreliable. In light of his clear statement that the jewellery was a gift from him and his wife, the reimbursement made no sense. Moreover, since on the Respondent’s own evidence he was a student of modest means at the time of his marriage, I find it highly improbable that the Respondent reimbursed his father of any sum.

d) Pakistan Property and Bank Account

[164] In my review of the evidence on this point, there was no evidentiary foundation whatsoever to the Respondent’s claims. Having regard for the evidence before me, I am satisfied that the Applicant returned the property to her father two months before the date of separation and there is nothing to be included in the listing of her assets. I am also satisfied that the Askari Bank Account belongs to the Applicant’s father and should not be included in the Applicant’s NFP.

[165] Although the Respondent alluded to fraudulent conveyances between the Applicant and her father, there was absolutely no foundation to his claim. His overall attitude merely underscored the extent of his bad faith and compromised his credibility.

[166] In contrast to what the Respondent alleged, I found the Applicant’s evidence, as well as that of her father compelling and consistent with the Applicant’s overall experience in her interactions with the Respondent. The Applicant’s explanation, both to the court and to her father, that the land became a “bone of contention” because of the Respondent’s insistence that she sell the property, was entirely consistent and in keeping with the Respondent’s complaint to the court that the Applicant was a burden to his marriage, that she did not carry her financial weight, and his further implication that his dissatisfaction with the Applicant explained the domestic discord. Ultimately, I accept that by the date of separation, the Applicant did not own any property in Pakistan and there is nothing to be added to her NFP statements.

e) RESPs

[167] The parties agreed that they will maintain their children’s RESP funds and asked that the court include in its final order the following term:

“The parties shall maintain the children’s RESPs – TD Term #2313 and TD Mutual Funds #6240 for the benefit of the children. Neither party shall deplete or withdraw funds without the other’s signature. The RESPs shall be used to fund the children’s education. The balance as of March 17, 2017 for the respective accounts was $725.59 for account #2313 and $28,639.37 for account #6240.

I agree that this order be included in my orders in this case.

f) Household Items

[168] The Respondent was cross-examined on the subject of household items and his claim of $10,000. There was also an exchange between counsel and the Respondent about preparing a list of items between counsel and the Respondent about preparing a list of items that the Respondent would like to receive. Neither party made submission in their closing submissions. If this issue is still outstanding, the Respondent shall prepare a list of the items he would like to have within the next 10 days. The Applicant shall have 10 days to arrange for the return of the items. If the parties have any ongoing disagreement, they may seek my assistance, though I sincerely hope that this will not be necessary.

CONCLUSION

[169] The Applicant shall prepare a draft Order for my review in accordance with the particular orders I have made in the body of this decision. Before it is submitted to me for my review, she shall provide the proposed draft to the Respondent for his review and comment. The Applicant will consider and include all reasonable suggestions by the Respondent and then submit the proposed draft for my review and approval. In the event that there is a material disagreement between the parties, then each party will submit the competing drafts and I will make my final decision.

[170] On the subject of costs, although in some respects the Applicant has had greater success than the Respondent, in other respects the success is divided. As well, neither party met or exceeded the offers they advanced prior to trial. In these circumstances, given the outcomes on the various issues, I encourage the parties to discuss the issue of costs and see if they can reach an agreement. If they cannot, then the Applicant shall have until December 3, 2019 to make her submissions and the Respondent shall have until December 17 to respond. Such submissions shall be limited to two pages double-spaced, in addition to a detailed Bill of Costs.

Tzimas J.

Released: November 25, 2019

COURT FILE NO.: FS-17-89716

DATE: 20191125

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Zara Ahmad

Applicant

• and -

Kamran Ahmad

Respondent

REASONS FOR JUDGMENT

Tzimas J.

Released: November 25, 2019