COURT FILE NO.: FS-17-88977-00

DATE: 20200508

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Amal Osman Jama

Matthew Newton, for the Applicant

Applicant

• and -

Johnny Lalla Basdeo

Self-represented

Respondent

• and –

John Lalla Basdeo Sr.

Third Party Respondent

Self-represented

HEARD: January 7, 8, 9 and 10, 2020

REASONS FOR JUDGMENT

TABLE OF CONTENTS

INTRODUCTION. 2

LACK OF DISCLOSURE AND ADVERSE INFERENCES. 5

DEEMED ADMISSIONS. 7

VALIDITY OF THE PARTIES’ MARRIAGE. 10

OWNERSHIP OF THE MATRIMONIAL HOME. 19

SALE OF MATRIMONIAL HOME. 37

OCCUPATION RENT. 39

EQUALIZATION PAYMENT. 49

CHILD SUPPORT. 72

CUSTODY AND ACCESS. 96

ORDERS AND DECLARATIONS. 140

COSTS. 154

PETERSEN J.

INTRODUCTION

[1] This is an Application commenced pursuant to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) and the Family Law Act, R.S.O. 1990, c. F.3. The Applicant, Amal Jama, and the Respondent, Johnny Basdeo, cohabited as spouses for four and a half years between February 2011 and August 2015. Prior to moving in together, they participated in a Nikah, a traditional Islamic wedding ceremony. Ms. Jama takes the position that they are legally married. Mr. Basdeo disputes the validity of the marriage.

[2] Mr. Basdeo’s father, John Basdeo Sr., is a third-party Respondent to the Application because title to the parties’ family home is registered in his and Mr. Basdeo’s names, but Ms. Jama is claiming a 50% equitable ownership interest in the property by virtue of a resulting trust and constructive trust. She is also seeking an order for sale of the home and ancillary orders dealing with the logistics of the sale. She submits that Mr. Basdeo Sr. should not be entitled to any share of the net sale proceeds. Mr. Basdeo Sr.’s interests are therefore implicated.

[3] Ms. Jama is claiming an equalization payment from Mr. Basdeo with an unequal division of net family properties and payment of occupation rent on account of his sole possession of the family home since the date of their separation. Mr. Basdeo submits that she has no ownership interest in the property and therefore no entitlement to occupation rent and no right to an order for sale. Mr. Basdeo Sr. supports his son’s position on these issues. Mr. Basdeo further argues that Ms. Jama has no entitlement to an equalization payment because they were never married.

[4] The parties are the parents of a seven-year-old girl, “J”, whose primary residence is with Ms. Jama. Mr. Basdeo’s parenting time with J has varied since the parties separated. Currently, pursuant to a temporary order of this court dated February 7, 2019, he has visits with J from 12:00 PM to 4:00 PM on alternate Sundays, as well as telephone calls with her every Wednesday night at 6:30 PM. The temporary order stipulates, on a without-prejudice basis, that Mr. Basdeo Sr. must not be present during the visits.

[5] The parties agree that Mr. Basdeo’s parenting time should be increased, but Ms. Jama wants the increase to be incremental over time, whereas Mr. Basdeo is seeking an order for immediate alternate weekends with J in his care, including overnights. Ms. Jama seeks ancillary orders relating to parenting, including the imposition of conditions on Mr. Basdeo’s access.

[6] The most contentious of the proposed conditions is a request for a final order that the paternal grandfather, Mr. Basdeo Sr., not be present when J is in her father’s care. Mr. Basdeo resides with Mr. Basdeo Sr., so such a restriction would make it very difficult for Mr. Basdeo to have overnight access visits with J unless he were to change his living arrangements. Mr. Basdeo Sr. is not seeking an access order in this proceeding, but both he and Basdeo argue that there is no basis upon which to restrict his ability to see the child when she is in her father’s care.

[7] The parties disagree about the amount of child support arrears owed by Mr. Basdeo and the amount of ongoing child support that he must pay. Mr. Basdeo also objects to Ms. Jama’s request for an order that she be designated as irrevocable beneficiary of all his life insurance policies for as long as he is obligated to pay child support for J.

[8] Finally, Ms. Jama seeks an order for divorce. If the court finds that the parties are legally married, then Mr. Basdeo does not contest the divorce application. However, he maintains that they are not married and that a divorce is therefore unnecessary.

LACK OF DISCLOSURE AND ADVERSE INFERENCES

[9] My ability to make factual findings in this case has been hindered by the Respondents’ failure to make full financial disclosure and production of relevant documents. Mr. Basdeo was self-represented at trial, but earlier in the proceeding, he was represented by counsel. On August 11, 2017, Ms. Jama’s counsel served Mr. Basdeo’s counsel with a Request for Information. No answers were provided, and the requested documentation was not produced. At a Case Conference on October 18, 2017, Mr. Basdeo was ordered to respond to the Request for Information within 60 days. His counsel provided Ms. Jama’s counsel with some answers and some documentation in January and February 2018 but did not complete the requisite disclosure.

[10] At a subsequent Settlement Conference on April 13, 2018, both Mr. Basdeo and Mr. Basdeo Sr. were ordered to produce specific documents relating to the issues in dispute. Mr. Basdeo was, at that point, still represented by counsel. Both Respondents failed to comply with the order. Finally, at a Trial Management Conference on June 27, 2019, this court ordered the Respondents to provide to Ms. Jama all outstanding documents by July 12, 2019, failing which an adverse inference may be drawn by the trial judge. The requisite disclosure was not made.

[11] During his testimony at trial, Mr. Basdeo repeatedly stated that he had given the relevant documents to his former lawyer and was under the impression that the documents had been disclosed. He claimed not to have been aware that production was still outstanding. He blamed his former lawyer for not following his instructions and claimed that he no longer had access to the documents in question because he had given them to his lawyer.

[12] I reject this evidence for two reasons. First, the retainer of Mr. Basdeo’s former lawyer was terminated prior to the Trial Management Conference on June 27, 2019. Mr. Basdeo was present at that conference and was told that production was not completed. He was given time to fulfill his disclosure obligations and was advised of the potential consequences if he failed to do so. He therefore cannot credibly claim to have been unaware that production was outstanding.

[13] Second, Mr. Basdeo was asked during his cross-examination whether his former lawyer returned his file to him when the retainer was terminated. He did not respond directly to the question. I infer from his evasiveness that his former lawyer did return the file to him, such that any documents he may have given to his lawyer were returned to his possession. The blame for not producing the relevant documents therefore rests solely with him.

[14] Mr. Basdeo Sr. gave no explanation for why he did not comply with the court order for production of documents, apart from saying that he did not have the time to track them down and did not “need the hassle”.

[15] As set out in detail below, there are instances where I have drawn adverse inferences against the Respondents based on their non-disclosure of relevant documents. Specifically, I have inferred that the reason why the missing documents were not produced by the Respondents is because the content of the documents would not support their position on issues in dispute.

DEEMED ADMISSIONS

[16] On January 25, 2019, Ms. Jama served Mr. Basdeo with a lengthy (81 paragraph) Request to Admit with numerous documents attached, pursuant to r. 22(2) of the Family Law Rules, O. Reg.114/99. Mr. Basdeo had 20 days to serve a Response, failing which he would be deemed to admit, for the purpose of this case only, the truth of the facts and the genuineness of the documents set out therein: Family Law Rules, r. 22(4). He did not respond within 20 days or at any time thereafter.

[17] Mr. Basdeo was represented by counsel when he was served with the Request to Admit. It is unclear from the trial record precisely when his lawyer’s retainer was terminated, but it was at some point after he and his lawyer attended a Settlement Conference on February 7, 2019. By the date of the Trial Management Conference on June 27, 2019, Mr. Basdeo was self-represented.

[18] If the termination of his lawyer’s retainer interfered with his ability to respond in a timely fashion to the Request to Admit, Mr. Basdeo could have sought an extension of time. He did not do so. He could have sought the court’s leave to withdraw his deemed admissions after the 20-day deadline expired: Family Law Rules, r. 22(5). He did not do that either.

[19] Consequently, at the beginning of the trial, I held that Mr. Basdeo was deemed to have admitted the genuineness of the documents attached to the Request to Admit. I further ruled that the statements set out in the Request to Admit were deemed admitted by him and that he could not lead evidence contradicting the facts set out therein: Ahmadi v. Heydari, 2018 ONSC 2682, at paras. 139-141, aff’d 2019 ONCA 346. I stipulated two exceptions to my ruling, related to legal conclusions that were included (at paragraphs 53 and 59) in Ms. Jama’s Request to Admit. The purpose of a Request to Admit is to narrow the factual issues in dispute. It should not be used to usurp the trial judge’s discretion and decision-making authority on legal issues.

[20] Despite my ruling, Mr. Basdeo made some statements during his testimony that contradicted the facts deemed to be admitted. I indicated during the trial that I would disregard those statements and I have done so.

[21] Upon further review of the Request to Admit at the end of the trial, it became apparent that some of the facts set out in the document, which were deemed admitted by Mr. Basdeo, were contradicted by evidence adduced by Ms. Jama. This includes, for example, factual statements about the amount of arrears in child support owed by Mr. Basdeo for the period between August 2015 and September 31, 2017 (paragraph 49 of the Request to Admit), the timing of when Mr. Basdeo began to receive rental income (paragraph 47), and the percentage of Mr. Basdeo Sr.’s registered interest in the parties’ family home (paragraph 77). Wherever Ms. Jama’s own evidence (which is not restricted to her testimony, but includes any evidence adduced by her counsel during the trial) contradicts facts set out in her Request to Admit, I have not deemed those facts to be admitted by Mr. Basdeo. In those instances, I have made factual determinations based on the totality of the relevant evidence.

VALIDITY OF THE PARTIES’ MARRIAGE

[22] It is necessary to determine the validity of the parties’ marriage in order to ascertain whether the provisions of the Divorce Act apply to claims made in this proceeding. Moreover, the validity of the marriage must be addressed as a preliminary issue because Ms. Jama’s claim for an equalization payment pursuant to s. 5 of the Family Law Act (“FLA”) is dependent upon her meeting the definition of a “spouse” in Part I of the FLA. “Spouse” is defined in s. 1(1) of the FLA to include “either of two persons who, (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.”

Did the Nikah Satisfy the Requirements of the Marriage Act?

[23] The Court of Appeal for Ontario has ruled that “marriage” under the FLA means the same thing as “marriage” under the Marriage Act, R.S.O. 1990, c. M.3: see Debora v. Debora (1999), 1999 1840 (ON CA), 167 D.L.R. (4th) 759 (Ont. C.A.), at para. 12. The Marriage Act stipulates mandatory ceremonial requirements that must be satisfied for the lawful solemnization of a marriage in this province.

[24] The parties agree that their Nikah took place in the presence of at least two witnesses, as required by s. 25 of the Marriage Act. However, Mr. Basdeo submits that the ceremony did not satisfy all the statutory requirements of a legally valid marriage.

[25] Pursuant to ss. 4 and 20(1) of the Marriage Act, a marriage must be solemnized under the authority of a licence issued in accordance with the Act and by a person authorized by or registered under the Act to perform the ceremony. Persons who may be registered under the Act include individuals appointed according to the rites of an established religious body to which they belong, provided that they reside in Ontario or have their pastoral charge in Ontario: Marriage Act, s. 20(3). The only exception to the requirement for a licence applies to marriages solemnized pursuant to the Christian tradition of publication of banns: Marriage Act, ss. 4 and 17.

[26] The parties did not obtain a marriage licence and did not marry pursuant to a publication of banns. Their Nikah was performed by Shiekh Zakaria, the Imam of the Hamilton Mosque. The officiant was presumably appointed in accordance with the rites of Islam, an established religious faith, but there is no evidence that he was registered as a person authorized to solemnize marriages pursuant to s. 20 of the Marriage Act. Mr. Basdeo is therefore correct that the Nikah did not satisfy the statutory requirements of a lawfully solemnized marriage.

Should the Marriage be Deemed Valid?

[27] Ms. Jama argues that the marriage should be deemed valid, despite the absence of a licence and notwithstanding any deficiency in the Shiekh’s registration. She relies on s. 31 of the Marriage Act, which stipulates:

If the parties to a marriage solemnized in good faith and intended to be in compliance with this Act are not under a legal disqualification to contract such marriage and after such solemnization have lived together and cohabited as a married couple, such marriage shall be deemed a valid marriage, although the person who solemnized the marriage was not authorized to solemnize marriage, and despite the absence of or any irregularity or insufficiency in the publication of banns or the issue of the licence.

[28] There are four preconditions to the application of s. 31. Mr. Basdeo is not asserting that either party was under a legal disqualification to contract a marriage, so that precondition is not at issue in this case.

[29] The remaining three pre-conditions must be established by Ms. Jama in order for the marriage to be deemed valid pursuant to s. 31, namely: (i) the marriage must have been solemnized in good faith, (ii) the parties must have intended the Nikah ceremony to be in compliance with the Marriage Act, and (iii) the parties must have cohabited as a married couple after the ceremony.

[30] In order to satisfy the second precondition, the parties need not actually be aware of the existence of the Marriage Act or familiar with its specific provisions. The phrase “intended to be in compliance with this Act” has been interpreted to mean that the parties generally intended their wedding ceremony to comply with whatever law governs the solemnization of marriages in Ontario: Isee v. Said, 2012 ONSC 1829, at para. 23, citing Alspector v. Alspector, 1957 93 (ON CA), [1957] O.R. 454 (C.A.), at para. 46.

[31] There is no evidence that either party entered into the Nikah in bad faith (e.g., knowing but failing to disclose that there was a legal impediment to the marriage). However, Mr. Basdeo testified that he participated in the Nikah to appease Ms. Jama’s parents and did not intend the wedding ceremony to have legal effect. He claims that neither he nor Ms. Jama considered themselves to be lawfully married.

[32] For the reasons set out below, I reject Mr. Basdeo’s evidence and submissions on this point. I have concluded that the marriage was solemnized in good faith and was intended by both parties to comply with the law. The evidence upon which I make these findings includes the following:

a) The parties met and began a dating relationship toward the end of 2008. At that time, Ms. Jama was living with her infant son in an apartment in Hamilton. Mr. Basdeo visited them often and soon began staying overnight on a frequent basis.

b) In 2009, they started to look for a residence where they could live together. They selected a property on Ohara Lane in a new development in Ancaster. The townhouse was not yet constructed. Down-payments were made toward the purchase of the home while it was still in a pre-build stage.

c) The purchase of the Ohara Lane property closed on December 15, 2010, but the parties did not move into the home until after the Nikah on February 6, 2011. Ms. Jama’s parents are practicing Muslims who would not have approved of them living together without a Nikah.

d) Ms. Jama testified that Mr. Basdeo proposed marriage to her on December 1, 2009. Mr. Basdeo did not outright deny this assertion, but he stated that he did not recall ever proposing marriage. The record includes a love letter dated December 2, 2009 that Mr. Basdeo admits he gave to Ms. Jama. In it, he wrote, “I cannot wait for the day that we are officialy (sic) toghether (sic) and free from being Taliban. I want you to know that I see you as my wife (Dec 01/09 wink wink 😊) …” This letter corroborates Ms. Jama’s testimony that an engagement to marry took place on or about December 1, 2009. I interpret the phrases “officially together” and “free from being Taliban” as references to becoming married and therefore being able to live together in matrimony with her parents’ sanction.

e) The parties planned a traditional Islamic wedding ceremony, in accordance with Ms. Jama’s faith.

f) Mr. Basdeo acknowledges that he bought and gave Ms. Jama a diamond engagement ring.

g) He admits that, on the day of the Nikah, he gave her a card with the words “For My Bride” and “My Wedding Day Promise to You” printed on the cover. Inside the card, he hand-wrote a note addressed “to my wifey”, in which he stated, “Together forever with the blessings of Allah. We did it babes.” Given the context, I interpret the phrase “we did it” to refer to getting married. During his cross-examination, Ms. Basdeo stated, “I used the word ‘wife’ because that’s how I looked at her.”

h) The Nikah was held inside Ms. Jama’s parents’ home on February 6, 2011. Close friends and family attended the ceremony, including Mr. Basdeo Sr. The guests brought wedding gifts.

i) Sheikh Zakaria officiated. During the ceremony, he declared the parties to be husband and wife.

j) Ms. Jama testified that she was not aware that a marriage licence was required in order to make the marriage legal. She had never read the Marriage Act and was not familiar with its contents. She stated that, when she participated in the Nikah, she intended it to be a legally binding wedding ceremony.

k) Ms. Jama had previously been married and divorced in Ontario in accordance with Islamic tradition. Her first marriage was contracted by a Nikah, with no marriage licence. It was dissolved by decree of an Imam, in accordance with Islamic tradition. She believed that her prior marriage and divorce were both lawful.

l) Ms. Jama testified that, had she been told that a marriage licence was necessary to make her marriage to Mr. Basdeo lawful, she would have obtained a licence. She did not view her marriage to Mr. Basdeo as being any different from any other marriage lawfully solemnized in Ontario.

[33] The above evidence contradicts Mr. Basdeo’s testimony that he did not consider himself to be married to Ms. Jama. During his cross-examination, he claimed not to know what a Nikah is, which is plainly false. The totality of the evidence establishes that Mr. Basdeo was aware it was a wedding ceremony and he treated it as such.

[34] Mr. Basdeo testified that he loved Ms. Jama and wanted to be with her, but he agreed to the Nikah only to appease her parents. He stated that he hoped to one day marry Ms. Jama in a big wedding ceremony with “papers signed” to make it legal.

[35] Mr. Basdeo’s motivation for having the Nikah may well have been to overcome her parents’ disapproval, but that does not detract from the fact that he voluntarily participated in the ceremony in good faith. I reject as not credible his evidence that he did not intend the Nikah to comply with the legal requirements of a valid marriage. The preponderance of the evidence supports Ms. Jama’s submission that both parties treated the Nikah as a lawful marriage ceremony. There is no evidence to corroborate Mr. Basdeo’s suggestion that another wedding ceremony was to be planned in the future to make their union legal.

[36] The first two pre-conditions to the application of s. 31 of the Marriage Act have been established. There is ample evidence to prove the final pre-condition, namely that the parties lived together as a married couple after the Nikah. They cohabited as spouses in the Ohara Lane home from February 6, 2011 until August 26, 2015, with Ms. Jama’s son from a prior relationship. Their daughter J was born in June 2012. Mr. Basdeo’s two older sons from a previous relationship also lived with them for part of the time.

[37] The parties agree that, after the Nikah, they referred to each other as “husband” and “wife”. However, Mr. Basdeo relies on evidence that Ms. Jama listed her relationship status as “single” on her 2013, 2014 and 2015 income tax returns as proof that she did not hold herself out to the public as lawfully married.

[38] Ms. Jama gave uncontested evidence that, after filing a tax return using the Ohara Lane address, she received a letter from the Canada Revenue Agency in 2012 advising her to change her relationship status to “married” for tax purposes. Mr. Basdeo admits (pursuant to the deemed admissions) that he then had a “panic attack” about potential tax consequences and threatened to divorce her if she did not change her address for tax purposes. She therefore used her sister’s address thereafter and continued to declare her relationship status as “single” on her tax returns.

[39] Given this explanation, I find that Ms. Jama’s declaration of “single” status on her tax returns does not contradict or detract from the overwhelming evidence that the parties cohabited as a married couple and held themselves out as a married couple after the Nikah.

[40] For the above reasons, I deem the marriage between Ms. Jama and Mr. Basdeo, solemnized by a Nikah on February 6, 2011, to be a valid marriage pursuant to s. 31 of the Marriage Act. The parties are therefore “spouses” for the purposes of equalization of net family properties under Part I of the FLA.

[41] Before the parties’ net family properties can be calculated, I must first determine Ms. Jama’s claim to an ownership interest in the matrimonial home.

OWNERSHIP OF THE MATRIMONIAL HOME

Summary of Parties’ Positions

[42] The matrimonial home is a townhouse on Ohara Lane in Ancaster. The offer to purchase the property was made pre-construction in January 2010. The sale transaction closed on December 15, 2010. Upon closing, title to the property was registered in the names of Mr. Basdeo and Mr. Basdeo Sr.

[43] Ms. Jama is not a registered owner of the property. She claims to hold a 50% equitable ownership interest in the property by virtue of the doctrine of resulting trust and by virtue of a remedial constructive trust for unjust enrichment. She asserts that Mr. Basdeo owns the other 50% equitable interest and that Mr. Basdeo Sr. holds his registered interest as a bare trustee.

[44] Mr. Basdeo and his father both argue that Ms. Jama has no beneficial ownership interest in the property. They assert that they co-own the property in equal shares and that no portion of either of their ownership interests is held in trust for her.

Doctrine of Resulting Trust

[45] Our common law has recognized, since at least the 18th century, “that the trust of a legal estate … whether taken in the names of the purchasers and others jointly… whether in one name or several, whether jointly or successive, results to the [person] who advances the purchase money”: Dyer v. Dyer (1788), 2 Cox 92, 30 E.R. 42. When a person contributes financially to the acquisition of property but is not registered on title to the property, a presumption of resulting trust in favour of that person generally arises: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 17 and 25. The presumption allocates the burden of proof. It places the onus on the grantee (i.e., the person who gratuitously received title to the property) to rebut the presumption by demonstrating that a gift of the property was intended by the grantor. This is so because equity presumes bargains and not gifts: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 24; Kerr v. Baranow, at para.19.

[46] The presumption of resulting trust is not universal. In certain limited circumstances, a presumption of advancement applies instead. Advancement is a gift during the grantor’s lifetime to a grantee who, by virtue of a particular relationship, is financially dependent on the grantor: Pecore, at para. 21. When a presumption of advancement applies, it falls on the party who is asserting an equitable interest in the property to prove that they did not intend a gift: Pecore, at para. 27.

[47] In Ontario, pursuant to s. 14(a) of the FLA, the presumption of resulting trust applies in all property ownership disputes between married spouses, unless the spouses hold the property as joint tenants (in which case there is a rebuttable presumption in favour of joint tenancy). Ms. Jama and Mr. Basdeo do not hold title to the disputed property as joint tenants. A presumption of resulting trust therefore applies.

[48] Consequently, Ms. Jama does not bear the onus of proving that she and the Respondents intended to create a trust for her benefit equivalent to 50% ownership of the townhouse. If she can establish that she contributed 50% of the down-payment toward the purchase of the property, the statutory presumption of a proportionate (50%) resulting trust places the onus on the Respondents to rebut that presumption by proving that she gifted half the property to them.

Did Ms. Jama Contribute Financially to the Purchase of the Property?

[49] Ms. Jama adduced into evidence the Agreement of Purchase and Sale (“APS”) for the matrimonial home dated January 21, 2010. It sets out the sale price as $235,990, but the parties subsequently agreed to purchase upgrades on the finishes in the townhouse, which increased the final sale price by approximately $12,000. The balance paid to the vendor on closing was $225,572, after a $22,268 down-payment had been made, so the final sale price was $247,840.

[50] The APS includes a schedule for the payment of four deposits in the amount of $5,000 each, due on January 21, February 28, March 30 and April 30, 2010. The parties agree (in accordance with Mr. Basdeo’s deemed admissions) that the $22,268 down-payment made toward the purchase of the property consisted of these four payments, followed by four additional payments of $567, all made prior to September 2010. A Statement of Account from the real estate solicitor who handled the transaction shows a payment of $7,200 for closing costs, including legal fees.

[51] Ms. Jama testified that she contributed $10,000 toward the down-payment on the house and $4,000 toward the closing costs. Mr. Basdeo acknowledged the latter contribution. He testified that she gave him $4,000 but said it was not intended to entitle her to an ownership interest in the property. He argued that the money she gave him was a gift to help him buy the property.

[52] Mr. Basdeo testified that his father gave him almost half of the down-payment ($10,000) as an investment in the property. He claimed that he paid the remainder of the deposit. He also stated that his father contributed to the closing costs. Mr. Basdeo Sr. corroborated Mr. Basdeo’s testimony about the $10,000 down-payment but did not say that he paid additional money toward the closing costs.

[53] Ms. Jama denied that she gifted Mr. Basdeo any money to help him buy the house. She testified that they always intended to purchase the house jointly with equal ownership shares, but for financing reasons, title could not be registered in her name and Mr. Basdeo’s father was required to co-sign for the mortgage. She stated that she was not aware of any financial contribution made by Mr. Basdeo Sr. to the purchase of the home.

[54] The documentary record establishes that Ms. Jama paid the first $5,000 deposit to the vendor, Mattamy Homes, by bank draft dated January 21, 2010, the same day that the offer to purchase was made and the APS was signed. Mr. Basdeo testified that he gave her $5,000 in cash to obtain the bank draft. She denied that claim during her cross-examination.

[55] I accept her testimony on this point given the absence of any documents to corroborate Mr. Basdeo’s evidence, which he was ordered to produce on April 13, 2018. He failed to disclose bank statements ordered by the court, from which I draw an adverse inference that the statements would not have shown a $5,000 withdrawal from any of his accounts in January 2010. Moreover, he was unable to provide a coherent explanation for why he purportedly withdrew cash from his account and gave it to Ms. Jama so she could get a bank draft rather than simply obtaining the bank draft himself.

[56] I also accept Ms. Jama’s testimony that she paid the final $5,000 deposit in April 2010. Her bank statements show that she withdrew $5,000 from her account on April 27, 2010. Financial records confirm that a payment of $5,000 was made to Mattamy Homes on April 30, 2010, per the schedule of deposits in the APS. Ms. Jama testified that Mr. Basdeo made that payment using the money she withdrew from her account and gave to him. She explained the reason why she did this.

[57] Mr. Basdeo is deemed to have admitted the following facts. After Ms. Jama made the initial $5,000 deposit, Mr. Basdeo went to the bank to inquire about a mortgage. He told her that she was not required to attend with him. He took her information to the bank to see if she could be approved for a mortgage loan. When he returned, he informed her that her name could not be on the mortgage because her credit score was too low. She believed him.

[58] Mr. Basdeo told Ms. Jama that his father agreed to co-sign for a mortgage so that financing could be secured to complete the purchase, provided they made all the mortgage payments. He did not say anything about his father contributing money to the purchase price. Ms. Jama understood that title would need to be registered in his and his father’s names, but they (she and Mr. Basdeo) agreed that, once her credit rating improved, Mr. Basdeo Sr.’s name would be removed from title and the property would be registered in hers and Mr. Basdeo’s names as equal co-owners.

[59] Ms. Jama and Mr. Basdeo agreed that all future deposits paid to Mattamy Homes would be made in his name, since her name was not going to be on the mortgage or on title. They thought it was best to be consistent. She testified, “I trusted him, so I gave him the money to make payments towards our home.” She also stated, “If I knew then what I know now, I wouldn’t be in this predicament.”

[60] Based on these admitted facts and the preponderance of the evidence, I conclude that Ms. Jama paid two of the four $5,000 deposits made toward the purchase of the home. The documentary record confirms that she also paid $4,000 by cheque to Mr. Basdeo on October 20, 2010. Mr. Basdeo acknowledged during his testimony that he used that money to pay lawyers’ fees and other closing costs for the real estate transaction.

[61] In summary, the evidence establishes that Ms. Jama contributed financially to the purchase of the matrimonial home. She paid slightly less than half of the down-payment and slightly more than half of the closing costs. Given her contribution and the fact that title was not registered in her name, a presumptive resulting trust arises in her favour. The Respondents can rebut the presumption by establishing that the monies contributed by Ms. Jama constituted a gift rather than an investment in ownership of the home.

Have the Respondents Rebutted the Presumption of Resulting Trust?

[62] The intention of the grantor is the governing consideration in determining whether a presumptive resulting trust has been rebutted. As Rothstein J. noted in Pecore, at para. 44, 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."

[63] Mr. Basdeo Sr. did not adduce any evidence relating to Ms. Jama’s intention when she initially deposited $5,000 to Mattamy Homes and later gave Mr. Basdeo an additional $9,000 ($5,000 + $4,000) to put toward the purchase of the house.

[64] Mr. Basdeo argues that any financial contribution by Ms. Jama was intended by her as a gift to assist him with the purchase of the house. He submits that they both understood he was buying the house with his father and she was never going to be a co-owner of the property. The evidence, discussed below, does not support this submission.

[65] It is notable that the APS lists Ms. Jama as the sole purchaser. She is the only party who signed the APS with the vendor, Mattamy Homes. This evidence suggests that she intended to own the property when she made the first $5,000 deposit on the same day that she signed the APS. She testified that it was her intention to co-own the house with Mr. Basdeo, even though she signed the APS alone.

[66] It is also notable that both Ms. Jama and Mr. Basdeo are listed as purchasers on schedules and amendments to the APS that were subsequently executed with Mattamy Homes. Both of their signatures appear on those documents. This evidence corroborates Ms. Jama’s testimony that they mutually intended to co-own the home.

[67] In an attempt to explain the presence of Ms. Jama’s name as the sole purchaser on the APS, Mr. Basdeo testified that “there was a point at the beginning where Amal [Ms. Jama] went into Mattamy and signed the paperwork and we got into a big argument about that because I didn’t want her to be on the title.” Ms. Jama denied that such an argument occurred. I prefer her evidence on this point, for the following reasons.

[68] Mr. Basdeo claimed that, after the purported argument with Ms. Jama, he obtained the requisite paperwork from Mattamy Homes and brought it to his father to sign. However, neither Respondent produced a copy of a different APS or other related paperwork bearing Mr. Basdeo Sr.’s name and signature.

[69] Furthermore, Mr. Basdeo provided no explanation for the schedules and amendments to the APS that he co-signed with Ms. Jama. If it were true that he opposed her name being on the purchase documents, then he would not have signed those documents with her listed as his co-purchaser. Similarly, if she was giving him money and not intending to buy an ownership interest in the property, then she would not have executed documents bearing her name as a co-purchaser.

[70] Moreover, the evidence at trial establishes that Ms. Jama was the point-person for Mattamy Homes on all matters having to do with the construction of the townhouse, the selection of interior finishes to be used and the negotiations about an extension of the closing date. Ms. Jama communicated directly with the vendor’s agents. Her conduct, in that regard, is consistent with her being a purchaser of the pre-construction home.

[71] Finally, although the doctrine of resulting trust focuses on the circumstances in existence on the date of purchase of the property, post-purchase evidence may be relevant to proving those circumstances. In this case, the evidence establishes that Ms. Jama paid the home insurance and all the utility bills during their cohabitation. Mr. Basdeo is deemed to have admitted that she paid at least $28,255 toward utilities between December 2010, when the house deal closed, and August 2015, when the parties separated. She also contributed to other carrying costs of the property. The mortgage payments and property taxes were paid from Mr. Basdeo’s account, but he acknowledged during his testimony that she regularly e-transferred money to him to help pay for those expenses. He is deemed to have admitted that she e-transferred at least $27,420 to him between the date of their marriage and the date of their separation (in addition to paying the home insurance and utility bills). He is also deemed to have admitted that she gave him approximately $600 per month as a contribution toward the mortgage up until the date of their separation.

[72] These substantial contributions to the carrying costs are consistent with the conduct of a property owner. They are inconsistent with Mr. Basdeo’s suggestion that, when Ms. Jama contributed financially to the purchase of the house, she was doing so as a gift to him and not with the intention of being a co-owner. There is simply no evidence to support Mr. Basdeo’s claim that Ms. Jama gifted him the money.

[73] I conclude that Mr. Basdeo has failed to rebut the presumption of resulting trust in Ms. Jama’s favour.

What is the Nature and Extent of Mr. Basdeo Sr.’s Interest in the Property?

[74] As noted above, the Respondents claim that Mr. Basdeo Sr. gave Mr. Basdeo a cheque in the amount of $10,000, which he put toward the down-payment on the home. However, they both testified that this money was paid just prior to the closing in December 2010, which was months after all the deposits had already been made pursuant to the APS. Their testimony on this point is therefore contradicted by other evidence in the record.

[75] Had the Respondents made full financial disclosure, this contradiction in the evidence would have been resolved. Mr. Basdeo Sr. was ordered on April 13, 2018 to produce documentary evidence of the $10,000 he claimed to have contributed to the down-payment. He failed to comply with that order. He did not produce any of his bank statements or a copy of the cancelled $10,000 cheque. Mr. Basdeo also failed to produce financial records to show a $10,000 cheque deposited to his account or a $10,000 payment remitted to Mattamy Homes. In these circumstances, I draw an adverse inference against the Respondents and assume that the financial records were not produced because they would not corroborate the Respondents’ testimony. I conclude, on a balance of probabilities, that Mr. Basdeo Sr. made no financial contribution to the purchase of the townhouse on Ohara Lane.

[76] Ms. Jama acknowledged that she did not discuss with Mr. Basdeo Sr. the arrangement regarding a portion of title being held temporarily in his name for her benefit. She said she relied on representations made by Mr. Basdeo to the effect that his father understood and agreed to that arrangement. In contrast, Mr. Basdeo Sr. testified that, based on discussions he had with his son, he understood he was a 50% co-owner of the property. He stated that he did not think he held any part of his ownership interest in trust for Ms. Jama’s benefit.

[77] Contrary to both Respondents’ pleadings, the parcel register for the Ohara Lane property establishes that title is held by them as tenants in common, with Mr. Basdeo owning a 99% registered interest and Mr. Basdeo Sr. having only the remaining 1% share. When the parcel register was shown to Mr. Basdeo Sr. during his cross-examination at trial, he stated that it was the first time he learned he had only a 1% registered interest.

[78] Mr. Basdeo Sr. recalled attending with his son at the bank to sign for the mortgage loan and also attending together at the real estate lawyer’s office to sign the closing documents. He said he understood, at that time, that he was buying 50% of the home, with his son owning the other 50%. Mr. Basdeo corroborated this evidence and similarly expressed surprise to learn that his father held only a 1% registered interest in the property.

[79] Mr. Basdeo testified that he instructed their real estate solicitor to register title to the property in both his and his father’s names with equal ownership shares. That statement is simply not credible in the circumstances of this case. It is improbable that the lawyer acted contrary to his client’s explicit instructions. Even if the lawyer had made a mistake, it is improbable that neither Respondent was made aware of how title was registered. A reporting letter from their solicitor would surely have set out the nature and extent of their respective interests. The reporting letter was not produced by either Respondent. Mr. Basdeo admitted during his cross-examination that he received a “booklet” of materials from the real estate lawyer upon closing, yet he produced only a two-page Statement of Account. I infer that Mr. Basdeo did not produce the reporting letter and closing documents because the content of the missing documents would show that the Respondents were advised of Mr. Basdeo’s registered 99% interest in the property at the time of closing.

[80] I conclude, on a balance of probabilities, that the Respondents instructed their lawyer to register title with Mr. Basdeo Sr.’s ownership interest restricted to 1%. This division of title is consistent with the trust arrangement discussed between Mr. Basdeo and Ms. Jama, namely that Mr. Basdeo Sr.’s name would be placed on title temporarily, just until Ms. Jama’s 50% interest could be registered, and only for the purpose of securing financing. I find that Mr. Basdeo Sr. did not and does not now hold a beneficial ownership interest in the property.

[81] I considered the possibility that Mr. Basdeo Sr. was duped by his son into believing that he was a 50% owner of the property. He seems less sophisticated than his son and potentially vulnerable to deception. However, I find such a scenario to be unlikely for several reasons.

[82] First and foremost, I have concluded that Mr. Basdeo Sr. did not contribute financially toward the purchase of the property. Had I found that he made a $10,000 contribution, a presumptive resulting trust would have arisen in his favour. However, without a financial contribution, there is no basis for him to believe that he was a half owner of the property.

[83] Second, the real estate solicitor likely would have ensured that Mr. Basdeo Sr. understood the documents he was signing when the transaction closed. The Statement of Account shows that the lawyer acted for both Mr. Basdeo and Mr. Basdeo Sr.

[84] Third, if Mr. Basdeo Sr. truly believed that he was purchasing a 50% interest in the property, then he likely would have expected to be responsible for half of the carrying costs of the property. He confirmed during his cross-examination that he made no contributions to the property taxes or home insurance premiums during the decade since the house was purchased. He said he contributed to mortgage payments during the parties’ marriage, but no documentary evidence was adduced to corroborate this testimony. Mr. Basdeo Sr. was ordered on April 13, 2018 to produce documentary proof, including bank statements and mortgage statements, indicating how much of his earnings each month he paid towards the mortgage from the time the property was purchased. He did not comply with that order.

[85] During his cross-examination, Mr. Basdeo Sr. was asked how often he made contributions to the mortgage during the parties’ marriage. He responded, “whenever they short”, which shows he was aware the mortgage payments were Ms. Jama’s and Mr. Basdeo’s joint responsibility and not his responsibility. This evidence contradicts his assertion that he believed he was a 50% owner of the home.

[86] Mr. Basdeo no longer lives in the matrimonial home. He currently resides in an apartment with his father and rents the house on Ohara Lane to tenants. He testified that his father sometimes gives him money to help pay the mortgage. Mr. Basdeo Sr. testified that he gives his son cash “as often as possible”, on average about $400 per month, but he said, “I’m giving him that. I don’t know if he use it toward the house or not. It was a gift to him.” Mr. Basdeo Sr. did not claim to be paying 50% of the mortgage loan payments, which one would expect if he sincerely believed that he owned a 50% interest in the home.

[87] Moreover, Mr. Basdeo Sr. is aware that his son has been renting the house to tenants for the past few years, yet he did not receive any of the rental income. If he and Mr. Basdeo understood that they were equal co-owners of the property, he likely would have insisted on a proportionate share of the rental income. There is no evidence that Mr. Basdeo Sr. agreed to forego the rental income in exchange for a release from his obligation to pay half of the carrying costs.

[88] The Respondents simply did not conduct themselves as equal co-owners of the property. Rather, their conduct was consistent with knowledge of their registered unequal shares of the property and of Ms. Jama’s 50% beneficial ownership interest in the property.

[89] Based on the totality of the evidence, I find that Mr. Basdeo Sr. possesses no equitable ownership interest in the matrimonial home. He holds his 1% registered interest as a bare trustee.

Conclusion on Resulting Trust Claim

[90] In summary, I find that Ms. Jama possesses a 50% equitable ownership interest in the matrimonial home by virtue of a resulting trust. Mr. Basdeo possesses the other 50% equitable ownership interest. They co-own the property as joint tenants and have co-owned it in this fashion since the date it was purchased, despite the fact that title to the property was not registered as such.

[91] Although Mr. Basdeo is registered as the legal owner of a 99% interest in the property, I find that he holds 49% in trust for the benefit of Ms. Jama. I further find that Mr. Basdeo Sr. holds the other 1% registered interest in trust for Ms. Jama. These findings reflect the intention of Ms. Jama when she contributed equally toward the purchase of the property, believing that she was an equal co-owner and that Mr. Basdeo Sr. would temporarily hold a registered ownership interest for her benefit.

Unjust Enrichment and Constructive Trust Claim

[92] In her Application, Ms. Jama requests a remedial constructive trust granting her a 50% equitable ownership interest in the matrimonial home based on a claim of unjust enrichment. It is unnecessary for me to deal with this claim because I have already resolved the issue of ownership of the matrimonial home based on the doctrine of resulting trust, awarding a 50% equitable ownership interest to Ms. Jama.

SALE OF MATRIMONIAL HOME

[93] Ms. Jama asks for an order for sale of the matrimonial home. This issue is governed by the Partitions Act, R.S.O. 1990, c. P.4, and the principles articulated by the Ontario Divisional Court in Kaphalakos v. Dayal, 2016 ONSC 3559, at paras. 16-17. The relevant principles are summarized as follows in Marchese v. Marchese, 2017 ONSC 6815, at para. 18, aff’d 2019 ONCA 116, at para. 4:

(a) a joint tenant has a prima facie right to an order for the partition or sale of lands held with another joint tenant;

(b) a court is required to compel partition and sale unless the opposing party has demonstrated that such an order should not be made;

(c) the party opposing the sale must show malicious, vexatious or oppressive conduct to avoid the order; and

(d) the malicious, vexatious or oppressive conduct must relate to the partition and sale issue itself and not to the general conduct of the person bringing the motion.

[94] As a joint tenant, Ms. Jama has a prima facie right to an order for the sale of the matrimonial home. Mr. Basdeo has not asserted any malicious, vexatious or oppressive conduct on her part that would preclude the sale. The Ohara Lane property shall therefore be listed immediately for sale, unless Ms. Jama and Mr. Basdeo mutually agree in writing to postpone the listing for sale due to the current COVID-19 pandemic and its impact on the real estate market.

[95] Ms. Jama has requested ancillary orders to facilitate the selection of a real estate agent and other logistics of the sale. The orders that I have granted appear at the end of this judgment.

[96] The net proceeds of sale shall be disbursed as set out in my orders at the end of this judgment.

[97] I have not granted all the ancillary orders requested by Ms. Jama. In particular, I have not ordered that the Respondents shall be jointly and severally liable for any and all tax consequences related to the sale of the home. Such an order would not be equitable given my findings about how ownership of the property is shared and my orders below regarding the payment of occupation rent to Ms. Jama.

OCCUPATION RENT

[98] Ms. Jama seeks an order for Mr. Basdeo to pay her $46,375 in occupation rent for the period from the date of separation to the date of trial, plus ongoing occupation rent in the amount of $875 per month commencing February 1, 2020, until the house sale is finalized and closed.

Analytical Framework

[99] The fact that Ms. Jama has a 50% ownership interest in the matrimonial home does not give her a prima facie entitlement to occupation rent from Mr. Basdeo. I must consider the equities of the case in deciding whether to award her occupation rent and if so, in what amount: Irrsack v. Irrsack (1979), 1979 1647 (ON CA), 27 O.R. (2d) 478 (C.A.).

[100] The relevant factors to be considered when occupation rent is in issue will vary from case to case, but in the family law context, the following factors are commonly taken into account:

a) the timing of the claim for occupation rent and the non-occupying spouse’s explanation for any delay;

b) whether the non-occupying spouse moved for the sale of the home and, if not, why not;

c) the duration of the occupancy;

d) the inability of the non-occupying spouse to realize on their equity in the property;

e) the conduct of both spouses, including any failure to pay support;

f) whether the non-occupying spouse contributed to the mortgage and other carrying costs of the home;

g) whether the occupying spouse has increased the selling value of the property;

h) any reasonable credits to be set off against occupation rent; and

i) any other competing claims in the litigation.

Griffiths v. Zambosco (2001), 2001 24097 (ON CA), 54 O.R. (3d) 397 (C.A.), at para. 49; Goeldner v. Goeldner, 2005 455 (ON CA), [2005] O.J. No. 86 (C.A.), at para. 4; Stetco v. Stetco, 2014 ONCA 370, at paras. 4-5; Higgins v. Higgins, 2001 28223 (Ont. S.C.), at para. 53; Surana v. Surana, 2016 ONSC 3790, at para. 29.

Equitable Considerations

[101] Ms. Jama moved out of the matrimonial home with the parties’ daughter on August 26, 2015. Mr. Basdeo continued to occupy the home until the summer of 2016. It is unclear where he was living when he initially moved out, but he eventually moved into an apartment with his father in North York at some point in 2017. In the fall of 2016, he started renting the matrimonial home to tenants. He did not advise Ms. Jama that he had moved and did not immediately disclose to her that he was renting the property. He kept all the rental income to himself. His conduct, in that regard, favours Ms. Jama’s position that she should be awarded occupation rent.

[102] Ms. Jama filed her Application on April 3, 2017. There was a delay of 19 months from the date of separation to the date that she commenced the Application, but there was no additional delay in seeking orders for sale of the property and for payment of occupation rent. Those remedial claims were part of her original pleadings and were pursued consistently throughout the proceeding.

[103] Ms. Jama did not bring a pre-trial motion for sale of the property, but it would not have been practical or reasonable to do so, given that her asserted ownership interest in the property was contested by Mr. Basdeo and was not registered on title. Her claim to a 50% ownership interest by way of resulting or constructive trust needed to be decided at trial before her claim for an order for sale of the property could be addressed. The timing of her claim for occupation rent and the fact that she did not move for sale of the property (prior to trial) are therefore neutral factors in determining whether occupation rent should be awarded to her.

[104] As discussed in detail below, Mr. Basdeo has not consistently paid child support from the date of separation. He missed numerous payments and when he was making payments, he was paying less than the amount required by the Federal Child Support Guidelines, SOR/97-175 (“the Guidelines”), because he concealed his rental income from Ms. Jama and the court. As a result, he now owes a substantial amount of arrears in child support. This factor militates in favour of an award of occupation rent.

[105] Ms. Jama has not been able to access her share of the equity in the house for several years because Mr. Basdeo chose to defend this Application and oppose her claim to an ownership interest in the property. Her equity has been tied up, preventing her from investing it elsewhere. This factor also weighs in favour of awarding occupation rent to Ms. Jama.

[106] However, Ms. Jama has not contributed to the carrying costs of the property since the parties separated. Mr. Basdeo has paid the property taxes, home insurance, and mortgage payments (with sporadic financial assistance from his father) since September 2015. In these circumstances, it would be inequitable to require Mr. Basdeo to pay Ms. Jama occupation rent without taking into consideration the disproportionate share of the carrying costs that he has paid.

[107] Ms. Jama testified that she was unable to continue contributing to those costs after she moved out because she was required to pay rent to secure accommodation for herself and her daughter elsewhere. Mr. Basdeo’s failure to make all requisite child support payments exacerbated her difficult financial circumstances. Still, I conclude that a payment of occupation rent from the date of separation is only equitable if it is set-off against her share of the carrying costs that he has paid since separation. There is no evidence that Mr. Basdeo made any improvements to the property that increased its selling value, so there is no basis for a further set-off on account of improvements.

Amount of Occupation Rent

[108] Occupation rent is typically quantified based on evidence of fair market rental value of a residential property. In this case, Mr. Basdeo did not personally occupy the home after the summer of 2016. He rented it to a series of arms-length tenants. The amount of rent that the tenants paid represents fair market value and is a reasonable basis upon which to calculate the amount of occupation rent that Mr. Basdeo should pay to Ms. Jama.

[109] Unfortunately, Mr. Basdeo did not make timely and full disclosure of the rental income that he received. In his first Financial Statement sworn June 21, 2017, he disclosed no rental income. In an updated Financial Statement sworn October 12, 2017, he disclosed gross rental income of $1,700 per month or $20,400 annually. In a later Financial Statement sworn June 14, 2018, he listed the gross rental income for the property as $1,750 per month but divided the total annual amount in half and claimed to receive only $10,500 annually or $875 per month. At trial, he was asked why he only put 50% of the rental income on his 2018 Financial Statement. He responded, “I believe at that time me and my father discussed we were going to split the rental income, but that never happened.”

[110] Mr. Basdeo did not declare any rental income on his income tax returns in 2016 and 2017. At trial (in February 2020), he testified that he had just recently filed his tax return for 2018. He produced a single page from his 2018 tax return summary, which shows that he declared $22,500 in gross rental income for that year.

[111] Mr. Basdeo testified mostly from memory, in a somewhat confused manner, about the amount of rental income he has received since the parties separated. He stated that his first tenant was a medical student who paid him $1,700 per month for 10 months, commencing in September 2016. After she left, he started renting the home to a couple with two children in July 2017. He produced a residential tenancy agreement with those tenants, dated July 11, 2017, showing monthly rent owing in the amount of $1,750. The agreement includes his name and his father’s name as landlords, but both men testified at trial that none of the rental income was paid to Mr. Basdeo Sr.

[112] Mr. Basdeo testified that his second tenants stayed in the property for two years, from July 2017 to June 2019. He initially said that they paid him $1,750 per month for both years, but subsequently corrected himself and stated that he increased the rent to $1,800 after the first year. Later, when confronted with a discrepancy between his testimony and the amount of rental income that he declared in his 2018 tax return, he changed his testimony again and stated that the tenants probably paid him $1,800 for the first six months of 2018 and then $1,850 thereafter. He stated that in July 2019, he began renting the home to another family. He said those tenants are currently paying him $1,850 per month and intend to stay until July 2020.

[113] Even with the corrections that he made to his initial testimony, there is still a minor discrepancy between the amount of gross rental income claimed on his 2018 income tax return ($22,500) and the amounts of monthly rent that he ultimately said he received from the tenants during that year ($1,800 for the first six months and $1,850 for the second six months = $21,900). It is improbable that he would declare and pay tax on more rental income than he received, so I infer that he must have received $22,500 in rent from his tenants in 2018. That annual amount averages to $1,875 per month.

[114] It is also improbable that Mr. Basdeo would have charged less for rent in the ensuing years. For that reason – and also because he failed to disclose any financial records regarding his rental income in 2019 and 2020 – I will infer that he received at least the same amount of rental income ($1,875 per month) in both of those years.

[115] For the years 2016 and 2017, I will rely on the July 2017 lease agreement and Mr. Basdeo’s October 12, 2017 and June 14, 2018 Financial Statements to determine the amount of rental income he received. Although I have concerns generally about the credibility of the information disclosed in his Financial Statements, I am reassured by the fact that the rental income is consistent with the information in the lease agreement.

[116] In summary, I find that Mr. Basdeo received the following amounts of rental income in the following years:

$6,800 in 2016 (4 months x $1,700)

$20,700 in 2017 (6 mos. x $1,700 + 6 mos. x $1,750)

$22,500 in 2018

$22,500 in 2019

$ 9,375 in 2020 to date (5 months x $1,875)

[117] I therefore conclude that he received a total of $81,875 in rental income since the parties separated in August 2015 (inclusive of the month of May 2020). Ms. Jama is entitled to be paid half of that income ($40,937), subject to the set-off calculated below.

[118] For the first year after the parties separated, Mr. Basdeo resided at the matrimonial home. He had no rental income during those 12 months. I infer that he would have been able to rent the house for $1,650 at that time because he was able to rent it for $1700 per month commencing September 2016. I conclude that fair market rental value for the property in the 12 months immediately following the parties’ separation would have been $19,800 annually ($1,650 x 12 months). Consequently, for the period from September 2015 to August 2016, when Mr. Basdeo enjoyed exclusive occupancy of the jointly owned matrimonial home, Ms. Jama is entitled to be paid $9,900 in occupation rent ($19,800 / 2), subject to the set-off calculated below.

[119] In summary, Mr. Basdeo must pay Ms. Jama $9,900 in occupation rent for the period from September 2015 to August 2016 and an additional $40,937 in rental income for the period from September 2016 to date. The total payment owed from the date of separation to present (inclusive of May 2020) is therefore $50,837, subject to the set-off below.

[120] According to the budget set out in Mr. Basdeo’s 2017 Financial Statements, he was making monthly payments to carry the property in the following amounts: $1,030 for the mortgage, $317 for property taxes, $100 for home insurance and $80 for home repairs and maintenance. He produced no documentation to corroborate these expenses, but the amounts were not contested by Ms. Jama, so I will accept them as accurate. They total $1,527 per month in carrying costs for 2017.

[121] Mr. Basdeo did not adduce any evidence relating to the carrying costs in 2015, 2016, 2018 or 2019. In the absence of any other evidence, I will use the 2017 amounts ($1,527 per month) for all the years since the parties separated.

[122] I conclude that Mr. Basdeo incurred expenses to maintain the property in the total amount of $87,039 since the date of separation ($1,527 x 57 months from September 2015 to May 2020 inclusive). As a joint tenant, Ms. Jama is responsible for half of those carrying costs. Her 50% share of the costs ($43,519) will be offset against the occupation rent owed to her ($50,837), leaving a total of $7,318 in occupation rent to be paid by Mr. Basdeo.

[123] As noted previously, Ms. Jama claimed occupation rent in the amount of $46,375 for the 53-month period from September 1, 2015 to January 1, 2020 inclusive. I have awarded her only $7,318 for the 57-month period ending in May 2020. This amount is reasonable and equitable, taking into consideration the relevant circumstances discussed above.

[124] Going forward, Ms. Jama shall be responsible for half of all carrying costs and shall receive half of the rental income paid by the tenants, until such time as the property is sold. My orders at the end of this judgment specify how these payments are to be made.

EQUALIZATION PAYMENT

[125] Ms. Jama is claiming an equalization payment in the amount of $36,722 based on an unequal division of net family properties. In the alternative to his primary position that the equalization regime does not apply because their marriage is not valid, Mr. Basdeo argues that he is entitled to an equalization payment, although he made no submissions with respect to the amount.

Statutory Framework

[126] The first step in the equalization analysis is to calculate the parties’ respective net family properties. According to s. 5(1) of the FLA, the spouse whose net family property is the lesser of the two net family properties is entitled to a payment of one-half of the difference, unless the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to the factors set out in s. 5(6) of the FLA (in which case the court may vary the spouse’s equal shares to relieve against unconscionability).

[127] “Net family property” is defined in s. 4 of the FLA as:

(1) the value of all the property [with some exceptions that the parties agree do not apply in this case] that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

[128] The parties agree that the valuation date, for the purpose of calculating their net family properties, is the date on which they separated with no reasonable prospect of reconciliation, namely August 26, 2015: FLA, s. 4(1).

Parties’ Financial Statements

[129] At a Settlement Conference on April 13, 2018, Mr. Basdeo was ordered to produce, by April 30, 2018, a “sworn Form 13.1 Financial Statement evidencing all assets and liabilities with supporting documentation evidencing the values for the date of celebration [of marriage], date of separation and current values.” Up until that point in the proceeding, he had produced two sworn Form 13 Financial Statements with some limited supporting documentation. Form 13 does not include a net family property calculation, which is why a Form 13.1 was required. Mr. Basdeo was late complying with this order and, in the end, he only partially complied. He delivered a Form 13.1 Financial Statement sworn June 14, 2018. He did not produce all relevant supporting documents.

[130] At the Trial Management Conference on June 27, 2019, both parties were ordered to exchange up-to-date Form 13.1 Financial Statements and comparative Net Family Property Statements 60 days prior to the trial. Ms. Jama delivered these documents on November 29, 2019. Mr. Basdeo did not comply with the order.

[131] The Trial Record contains a copy of Mr. Basdeo’s Form 13.1 Financial Statement sworn on June 14, 2018. He relied on it at trial. In the absence of an updated Form 13.1, I must rely on it as well. This does not mean I necessarily accept the contents of the document as true. Like any other evidence, its reliability and credibility must be assessed.

Value of the Parties’ Property on the Valuation Date

[132] The parties agree on most of the items to be included in the calculation of the value of their property on the valuation date. The undisputed items are the matrimonial home, their vehicles, their bank accounts, and Mr. Basdeo’s pension. The parties disagree about whether Mr. Basdeo had a Registered Retirement Savings Plan (“RRSP”) account on the valuation date. They also disagree about some of the values that should be attributed to their assets.

[133] Ms. Jama valued the matrimonial home at $600,000 on the valuation date. Mr. Basdeo valued it at $390,000. These values constitute uneducated guesses, both likely driven by self-interest. In the event that I found Ms. Jama had no ownership interest in the matrimonial home, it would be in her interest to inflate the value of the home and in his interest to deflate the value, in order to increase or decrease (respectively) any equalization payment owing to Ms. Jama by Mr. Basdeo. Such self-serving guesswork offers no assistance to the court.

[134] Neither party obtained an appraisal of the matrimonial home’s value effective August 26, 2015. Neither party adduced any evidence to support their estimated value of the home on that date, such as listings of similar properties at the time. The only evidence relevant to the value of the matrimonial home is the documentation showing that they paid approximately $247,000 when they purchased it on December 15, 2010. That tells me nothing about the value of the property when they separated on August 26, 2015. I am therefore unable to determine with any degree of confidence the value of the matrimonial home on the valuation date.

[135] Since I have found that the parties co-own the home in equal shares, the values of their respective shares on the valuation date will be equal regardless of the value attributed to the home. Their equal shares will offset and net to a zero difference, so the value attributed to the home will have no impact on the ultimate calculation of any equalization payment. For the sake of simplicity, I will therefore attribute to the matrimonial home a value mid-way between the two estimates advanced by the parties, namely $495,000. In the calculation of the parties’ respective assets on the valuation date, I will include for each of them a one-half interest in the matrimonial home valued at $247,500 ($495,000 / 2).

[136] The parties agree that Ms. Jama owned a 2013 Dodge Journey on the valuation date. She testified that it had a Canadian Red Book value of $13,900. Mr. Basdeo stated that he thought it was worth more than $13,900 on the valuation date, but he adduced no evidence to corroborate this statement. I therefore accept the Red Book value of $13,900.

[137] Mr. Basdeo owned a 2016 Hyundai Elantra on the valuation date. He claims that it was worth $21,800, which Ms. Jama does not dispute.

[138] The only other property that Ms. Jama owned on the valuation date was a chequing account with $872. She produced a bank statement to corroborate the balance in the account on the date of separation.

[139] Mr. Basdeo had three chequing accounts on the valuation date. His Form 13.1 shows that one of the accounts was overdrawn and the other two accounts had balances of $4,934 and $64. He adduced no documentary evidence to substantiate these values, but Ms. Jama did not contest them, so I have accepted the undisputed amounts. (It is my understanding that he disclosed to her bank statements showing the relevant balances.)

[140] Mr. Basdeo has a RRSP account. He did not disclose it as a valuation-date asset on his Form 13.1 Financial Statement because he claims that he opened the account after the parties separated, in 2018. I reject this evidence as not credible because his income tax returns for 2015 and 2016 show a deduction for RRSP contributions. Still, he insists that the RRSP account did not exist on the valuation date in August 2015. He testified that, if it existed, he had not contributed anything to it, which would explain why he did not disclose it. His 2014 tax return shows no RRSP deduction.

[141] It seems that Mr. Basdeo’s RRSP account may have been opened in 2015, which is the year in which the parties separated. It may also have been opened earlier. It is possible that the account contained savings on the valuation date. While I am prepared to draw that adverse inference against Mr. Basdeo based on his failure to provide proper disclosure, I cannot simply attribute a random value to the account without any evidence. I am therefore unable to include the RRSP account in the calculation of the value of Mr. Basdeo’s property on the valuation date. Consequently, I will deal with the RRSP account separately in my orders at the end of this judgment.

[142] Similarly, I will deal with the parties’ pensions separately from the equalization calculation because I do not have evidence of their values. Both parties work for the Toronto Transit Commission (“the TTC”) and have a pension through their employer. Neither party produced a valuation of their pension on the valuation date. Ms. Jama started working for the TTC in or about October 2014. Mr. Basdeo had been employed as a driver for the TTC for several years before that, so the value of his pension on the valuation date will be considerably greater than the value of her pension. The precise values need to be obtained by the parties so that their respective increases in pension savings during the course of the marriage can be equalized. I will address this issue in my orders at the end of this judgment.

[143] In summary, I make the following findings about the value of the property owned by the parties on the date of their separation (subject to orders that will be made regarding the parties’ pensions and Mr. Basdeo’s RRSP account):

Ms. Jama’s Property on Valuation Date

Value

Mr. Basdeo’s Property on Valuation date

Value

Matrimonial home

$247,500

Matrimonial home

$247,500

2013 Dodge Journey (vehicle)

$13,900

2016 Hyundai Elantra (vehicle)

$21,800

Bank accounts

$ 872

$4,934 $64

Total:

$262,272

Total:

$274,298

Parties’ Debts and Liabilities on the Valuation Date

[144] Pursuant to s. 4(3) of the FLA, the burden of proving any deduction under the definition of net family property is on the person claiming it. Each party therefore has the burden of proving the debts and liabilities that they claim to have owed on the valuation date.

[145] In her Form 13.1, Ms. Jama claims the following debts on the valuation date: a VISA credit card balance of $2,632, a MasterCard credit card balance of $1,641, a car loan balance of “approximately $13,900”, a student loan balance of $37,309 and half of the mortgage loan balance for the matrimonial home, equal to $95,000.

[146] She produced bank statements from August 2015 to corroborate the credit card debts. She has therefore established those liabilities on a balance of probabilities, and I will allow them as deductions in the calculation of her net family property.

[147] With respect to the car loan, she adduced evidence of what appears to be a screen shot (from an electronic device) of an online Scotiabank account statement. It does not bear her name and is undated, although it refers to March 31, 2017 as the “next payment” date, so I infer that the account statement is from approximately March 2017. It shows a principal balance of $14,858 for a loan secured on an unidentified vehicle.

[148] Ms. Jama testified that the Scotiabank statement relates to a loan that she obtained to purchase the Dodge vehicle that she owned on the valuation date. The documentation that she submitted does not establish that the car loan in question is in her name, nor does it prove that the loan was in existence on August 26, 2015. She provided no explanation for why she was claiming a deduction of “approximately $13,900” for the car loan when the documentation she submitted shows a higher balance of $14,858 18 months after the valuation date. Her documentary evidence is unreliable and does not corroborate her testimony. I find that she has not proven, on a balance of probabilities, the existence of a car loan debt in the amount of $13,900 on the valuation date. This deduction will therefore not be allowed.

[149] Ms. Jama also claims a student loan debt in the amount of $37,309 on the valuation date. This debt has been proven on a balance of probabilities and the deduction will therefore be allowed. Ms. Jama produced a letter addressed to her from the National Student Loans Service Centre dated August 30, 2016, which confirms the amount of her monthly payments and a principal balance owing of $37,309 as of that date. She did not adduce evidence of the principal balance owing on August 26, 2015, but because the balance of her student loan was $37,309 in August 2016, I am prepared to infer that it was at least that much in August 2015. There is no evidence that any part of the student loan accrued after the parties separated.

[150] In his Form 13.1, Mr. Basdeo lists the following debts on the valuation date:

a) an overdrawn chequing account with a negative balance of $733;

b) a VISA credit card balance of $5,466;

c) a personal line of credit debt in the amount of $5,436;

d) a car loan balance of $21,800; and

e) a secured line of credit with a balance of “approximately $52,000”.

[151] Mr. Basdeo did not adduce evidence to corroborate all these claimed debts. He produced some supporting documentation to Ms. Jama, as a result of which she does not contest the negative balance in his chequing account and the balance owing on his personal line of credit. Those two deductions will therefore be allowed. She disputes his claim of $5,466 owing on a credit card and $21,800 owing for a car loan because he produced no documentary evidence to support these claims, despite having been ordered to do so on at least two occasions. He has failed to satisfy the onus of proving the latter two deductions and they will therefore be excluded from the calculation of his net family property.

[152] Mr. Basdeo produced bank statements relating to a secured line of credit that he opened on February 26, 2015, with a maximum limit of $52,000. The statements show that he owed $31,096 on this line of credit on the valuation date. The parcel register for the matrimonial home shows a charge registered by CIBC against title on March 5, 2015, in the amount of $52,000. Both parties agree that the charge relates to Mr. Jama’s secured line of credit.

[153] Ms. Jama argues that this line of credit debt should be excluded from the calculation of Mr. Basdeo’s net family property because it was incurred and registered against title to the matrimonial home without her knowledge or consent, less than six months prior to the parties’ separation. I cannot accede to this request because there is no provision in s. 4 of the FLA for excluding this liability from the calculation of his net family property. However, I will deal with Mr. Jama’s argument later when I consider varying the parties’ shares of the difference between their net family properties pursuant to s. 5(6) of the FLA.

[154] I allow the deduction for the line of credit debt, but not in the amount of $52,000 claimed by Mr. Basdeo. The deduction will be for $31,096, which is the balance that was owing on August 26, 2015.

[155] With respect to the mortgage on the matrimonial home, Mr. Basdeo indicated in his Form 13.1 that the balance owing on the valuation date was $209,084. Ms. Jama listed the mortgage debt on her Form 13.1 as $190,000 on the valuation date. The sources of these figures are not in evidence. Given the precision of Mr. Basdeo’s figure in contrast to the rounded number used by Ms. Jama (which appears to be an estimate) and the fact that Mr. Basdeo was paying the mortgage from his account, I conclude that his figure is more likely accurate. In the calculation of their liabilities on the valuation date, I will therefore allow a deduction for the mortgage debt in an amount of $104,542 ($209,084 / 2) each. I note that the accuracy of the mortgage balance is not critical because liability for the mortgage debt will be split equally between the parties based on their 50% ownership interests in the matrimonial home, so their respective shares of the debt will be offset and will net to a zero difference.

[156] In summary, the following debts and liabilities on the valuation date will be deducted from the total values of the parties’ property on the valuation date:

Ms. Jama’s Debts on the Valuation Date

Amount Owing

Mr. Basdeo’s Debts on the Valuation Date

Amount Owing

Mortgage

$104,542

Mortgage

$104,542

Student loan

$ 37,309

Secured line of credit

$ 31,096

Credit cards

$ 2,632 $ 1,641

Overdraft in chequing account

$ 733

Personal line of Credit

$ 5,436

Total:

$146,124

Total:

$141,807

Parties’ Net Worth on Date of Marriage (Excluding the Matrimonial Home)

[157] According to s. 4(1) of the FLA, the second deduction to be made in calculating the parties’ net family properties is the total value of all property, other than the matrimonial home, that each of them owned on the date of their marriage, after deducting their debts and liabilities (other than debts or liabilities related directly to the acquisition or significant improvement of the matrimonial home), calculated as of the date of the marriage.

[158] The only asset of significant value that Mr. Basdeo and Ms. Jama owned on the date of their marriage was the matrimonial home, which is excluded from the calculation of their net worth.

[159] According to Mr. Basdeo’s Form 13.1, he had only one other asset on the date of marriage, namely a bank account with $49. This account and its value on the date of marriage are not disputed by Ms. Jama and will therefore be allowed as a deduction.

[160] Mr. Basdeo likely had a pension plan with the TTC on the date of marriage because he testified that by 2018, he had been working there for about ten years. However, he did not disclose a pension asset on the date of marriage in his Form 13.1. As mentioned above, I will deal with his pension separately in the orders made at the end of this judgment.

[161] According to his Form 13.1, Mr. Basdeo had a chequing account that was overdrawn by $733 on the date of marriage. He also claims that he owed, on the date of marriage, “approximately $4,500” on the same personal line of credit for which he owed $5,466 on the valuation date. Ms. Jama does not dispute these amounts, so I have accepted them. Mr. Basdeo’s only other liability on the date of marriage was his share of the mortgage on the matrimonial home, which is statutorily excluded from the calculation.

[162] Other than the matrimonial home, Ms. Jama’s only property on the date of marriage consisted of $740 in savings, plus some household items and a 2001 Nissan Maxima, which she valued collectively at $5,450. Mr. Basdeo did not dispute these items or values, so I have accepted them.

[163] Apart from her share of the mortgage on the matrimonial home, Ms. Jama listed no liabilities on the date of marriage in her Form 13.1. I find it to be improbable that she did not owe money on her student loan at that time. She owed in excess of $37,000 on the loan when the parties separated in August 2015, yet there is no evidence that she was enrolled in a course of post-secondary studies during the marriage. Mr. Basdeo testified that he had no knowledge of her having a student loan. He was not challenged on that statement during his cross-examination. He stated the only time she was in school during their relationship was in 2008, the year that they met. Ms. Jama gave no evidence to contradict this statement.

[164] I conclude, on a balance of probabilities, that the student loan was incurred by Ms. Jama prior to the parties’ wedding and likely prior to their relationship commencing. She ought to have disclosed it as a liability on the date of marriage. I have no way of knowing what the principal balance was at that time. I will take her failure to disclose this debt into account when I consider (below) whether to vary the parties’ shares of the difference between their net family properties in accordance with s. 5(6) of the FLA.

[165] In summary, I have concluded that the parties’ respective net worths on the date of marriage (excluding their equity in the matrimonial home, Mr. Basdeo’s pension and Ms. Jama’s student loan) were as follows:

Ms. Jama’s Assets on Date of Marriage

Value

Mr. Basdeo’s Assets on Date of Marriage

Value

Chequing Account

$ 740

Chequing Account

$ 49

Vehicle and household items

$5,450

Total Value of her Property:

$6,190

Total Value of his Property:

$ 49

Ms. Jama’s Debts on Date of Marriage

Amount

Mr. Basdeo’s Debts on Date of Marriage

Amount

Overdrawn bank account

$ 733

Personal line of credit

$4,500

Total liabilities:

$0

Total liabilities:

$5,233

Ms. Jama’s Net Worth on Date of Marriage: ($6,190 - $0)

$6,190

Mr. Basdeo’s Net Worth on Date of Marriage: ($49 - $5,233)

($5,184)

Equalization Payment and Variation of Shares

[166] Based on the findings above, I calculate the parties’ net family properties as follows:

Ms. Jama Mr. Basdeo

Value of all property on valuation date: $ 262,272 $ 274,298

Minus total liabilities on valuation date: $ 146,124 $ 141,807

Minus net worth on date of marriage: $ 6,190 ($ 5,184)

Net Family Property: $ 109,958 $137,675

[167] The difference between the parties’ net family properties is $27,717. As the spouse with the lesser net family property, Ms. Jama is entitled to a payment in the amount of half the difference ($13,858), unless equalization would be unconscionable, in which case I have the discretion to award her more or less than half the difference.

[168] The Court of Appeal for Ontario has ruled that the threshold of unconscionability is “exceptionally high”: Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47. Circumstances amounting to unfairness or inequity alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court" or be “repugnant to anyone’s sense of justice”: see Merklinger v. Merklinger (1992), 1992 7539 (ON SC), 11 O.R. (3d) 233 (Gen. Div.), aff'd (1996), 1996 642 (ON CA), 30 O.R. (3d) 575 (C.A.); Roseneck v. Gowling (2002), 2002 45128 (ON CA), 62 O.R. (3d) 789 (C.A.); and Serra, at paras. 47-48.

[169] In determining whether a $13,858 equalization payment to Ms. Jama would be unconscionable, I must consider the factors set out in s. 5(6)(a) to (h) of the FLA. In the circumstances of this case, three of those factors are applicable, namely (a) Ms. Jama’s failure to disclose to Mr. Basdeo her student loan debt on the date of marriage, and (b) and (h), the fact that Mr. Basdeo recklessly incurred a substantial debt on a line of credit just prior to the parties’ separation and thereby recklessly depleted his net family property.

[170] Ms. Jama entered the marriage with a student loan without disclosing that debt to Mr. Basdeo either at the time of their wedding, during their marriage or upon their separation. The precise amount of the debt owing on the date of marriage is unknown because it still has not been disclosed by Ms. Jama, contrary to her obligation to make full financial disclosure pursuant to the Family Law Rules. However, the fact that the balance was in excess of $37,000 in August 2016 means that it was probably significantly more than that when the parties married in February 2011 (assuming that she was making payments on the loan in the intervening years, per the National Student Loans Service Centre letter). Relative to their respective and collective net worths on the date of their marriage, Ms. Jama’s student loan was a substantial financial liability that she kept from Mr. Basdeo.

[171] Ms. Jama is claiming the principal balance on the student loan that remained on the valuation date ($37,309) as a deduction in the calculation of her net family property, without taking into consideration the undisclosed amount of the loan that she brought into the marriage. An equal division of net family properties in these circumstances would effectively saddle Mr. Basdeo with liability for half of the student debt ($18,654) that she incurred before she even met him, that she never disclosed to him, and that benefited her exclusively. Such an outcome would be repugnant to anyone’s sense of justice and would shock the conscience of this Court.

[172] On the other hand, Mr. Basdeo recklessly incurred a $31,096 debt on a line of credit in the six months prior to the parties’ separation. That is a relevant consideration under s. 5(6)(b) and (d) of the FLA. Moreover, he secured that debt (in the form of a $52,000 charge) against title to the matrimonial home without Ms. Jama’s knowledge or consent, in violation of s. 21(1) of the FLA. His unreasonable conduct, in that regard, is relevant under s. 5(6)(h).

[173] Ms. Jama testified that Mr. Basdeo never discussed the line of credit with her. She said she was shocked to discover the encumbrance on the matrimonial home after she commenced this litigation. Mr. Basdeo did not contradict or challenge her evidence on these points, and I accept it as credible.

[174] I asked Mr. Basdeo, during his evidence-in-chief, whether he agreed that the line of credit was his sole liability and he responded, “Correct. Ms. Jama didn’t borrow or benefit from that money, even though it was prior to separation.” The bank statements that he produced show that the money from the secured line of credit was used to pay monthly premiums for both life insurance and disability insurance policies. Other than those expenses, the overwhelming majority of debits from the account consisted of cash withdrawals and internet transfers to unknown recipients. Mr. Basdeo provided no explanation for how the money was spent.

[175] Mr. Basdeo gave no reason for why he needed $52,000 in credit in February 2015. Ms. Jama testified that she was not aware of any change in his financial circumstances at that time. He was working full time as a TTC driver and was earning an annual income in excess of $68,000. The parties were enjoying the economic advantages of cohabitation, so their living expenses were manageable. Ms. Jama was also working for the TTC and was contributing to the carrying costs for the matrimonial home. There is no evidence that their lifestyle was beyond their financial means or that Mr. Basdeo was accumulating debt to support the family.

[176] Ms. Jama gave uncontradicted evidence that, during their marriage, Mr. Basdeo rarely stayed home after his work shifts and when he did, he spent an inordinate amount of time in the garage with his laptop, yelling and screaming on his phone. She testified that he would go out at odd hours, telling her that he was meeting friends to play dominos. At times, he did not return home until 4:00 or 5:00 a.m. She stated that she eventually connected this behaviour to a gambling habit when she discovered his laptop open on a table in their house one day in 2014. She looked at the screen and saw that he was betting on sports and had been transferring money from his account in order to place the bets. She said she confronted him, but he refused to talk about it. After that, she stated she could tell whether he had won or lost at gambling based on his mood when he came out of the garage with his laptop.

[177] Mr. Basdeo is deemed to have admitted (based on the unanswered Request to Admit) that he has a history of online gambling and that he gambles frequently on sports. Based on this admission, as well as Ms. Jama’s credible testimony, I find that the only explanation for Mr. Basdeo’s assumption of $30,096 in debt on a line of credit that he intentionally kept from her is that the money was used to fund his gambling activities.

[178] I conclude that Mr. Basdeo either used the money (borrowed on the line of credit) to gamble or he used it to repay gambling debts. The bank statements show that he continued to make frequent cash withdrawals from the line of credit after the parties separated, but he also made periodic deposits to the account in amounts ranging from $1,000 to $3,000, usually in multiples of $500. His withdrawals exceeded his deposits and the balance owing grew to in excess of $45,323 by the end of December 2015. I find that this banking activity is consistent with my inference that the line of credit was funding his gambling activities. The large cash deposits likely represented occasional winnings because he had no other source of income during that time period (other than his paycheque from TTC); no tenants were living in the matrimonial home.

[179] In these circumstances, I conclude that Mr. Basdeo recklessly incurred the $30,096 in debt that he owed on the valuation date. I further conclude that, given the reckless depletion of his net family property in the final months of the marriage, an equal division of the difference between the parties’ net family properties would be repugnant to anyone’s sense of justice. It would effectively saddle Ms. Jama with responsibility for half of his gambling debt ($15,048) on the date of their separation. It would be unconscionable to require her to assume liability for this debt when she did not consent to it, was not even aware of it, and certainly did not benefit from it.

[180] In conclusion, based on my findings above, I have decided to exercise my discretion and award Ms. Jama less than half of the difference between the parties’ net family properties pursuant to s. 5(6) of the FLA in order to avoid an unconscionable outcome. The appropriate remedy in the circumstances of this case is to increase her half share of $13,858 by $15,048, to relieve her of liability for Mr. Basdeo’s gambling debt but offset the amount he owes her by $18,654, to relieve him of liability for her student debt. Mr. Basdeo must therefore pay Ms. Jama a total of $10,252 to satisfy the unequal division of their net family properties.

CHILD SUPPORT

[181] The parties’ daughter J has principally lived with Ms. Jama since the parties separated. Mr. Basdeo is therefore obligated to pay child support for her. Ms. Jama is not claiming child support for her son from a previous relationship.

Federal Child Support Guidelines

[182] Child support ordered pursuant to the Divorce Act must be calculated based on the Guidelines. Subsection 3(1) of the Guidelines stipulates that the amount of child support payable for a minor child is the amount set out in the applicable provincial Table, according to the number of children to whom the order relates and the income of the payor spouse (the “Table amount”). Mr. Basdeo’s income therefore determines the Table amount of support that he must pay.

[183] The Guidelines explain how a spouse’s income must be calculated for child support purposes. Section 16 provides that a spouse’s annual income is generally determined using the sources of income set out in line 150 of their personal income tax return, as adjusted in accordance with Schedule III of the Guidelines. Schedule III enumerates deductions to be made, including union dues: s. 1(g). I mention union dues because Mr. Basdeo’s income tax returns show that he pays dues as a TTC employee. Those dues must be deducted in calculating his income for child support purposes.

[184] In certain circumstances, s. 19 of the Guidelines permits the court to impute an amount of income to a spouse that it considers appropriate. Those circumstances include the following, which are relevant in this case:

(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

(f) the spouse has failed to provide income information when under a legal obligation to do so;

(g) the spouse unreasonably deducts expenses from income;

(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax . . .

[185] I have followed this statutory framework in my analysis below of the child support issues in the case. I begin by calculating Mr. Basdeo’s liability for arrears in child support, then I determine his ongoing monthly child support obligation.

Arrears - From September 1, 2015 to September 1, 2017

[186] When the parties separated in late August 2015, Mr. Basdeo initially paid no child support for 14 months. He began making sporadic voluntary payments in November 2016. By the time the parties attended their first Case Conference on October 18, 2017, Mr. Basdeo had paid a total of $3,740 in child support. At the Case Conference, the parties executed Minutes of Settlement and consented to an order for Mr. Basdeo to pay the sum of $12,094 in arrears of child support, retroactive to September 1, 2015, plus post-judgment interest calculated at the rate of 2% per annum. This payment of arrears was not ordered to be enforced by the Family Responsibility Office (“FRO”). It was made without prejudice to Ms. Jama’s right to claim greater arrears at trial.

[187] Mr. Basdeo has not paid any of the arrears that he was ordered to pay on October 18, 2017. Ms. Jama is therefore requesting an order for payment of pre-judgment interest on the $12,094 in the amount of $263.09 and post-judgment interest of $534.79 up to the end of December 31, 2019, plus post-judgment interest accruing in 2020 at the rate of $0.66 per day until the arrears are paid. This order will be made.

[188] In addition, Ms. Jama argues that the amount of arrears for the period from September 1, 2015 to September 1, 2017 should be increased by $4,948 to reflect Mr. Basdeo’s actual income during those years. In order to determine whether she is entitled to an amount greater than $12,094 for this time period, I must first determine Mr. Basdeo’s income in each of the relevant years.

2015

[189] Mr. Basdeo’s tax return summary for 2015 shows a line 150 income of $68,023 and union dues in the amount of $1,135. His annual income for 2015, calculated in accordance with the Guidelines, was therefore $66,888 ($68,023 - $1,135).

[190] According to the child support Tables in effect in 2015, the Ontario Table amount of child support (for one child) corresponding to Mr. Basdeo’s income was $612 per month. The total amount of child support that Mr. Basdeo ought to have paid for the period from September 1 to December 1, 2015 was therefore $2,448 ($612 x 4 months).

2016

[191] Ms. Jama submits that I should impute an income of $87,865 to Mr. Basdeo for 2016. His line 150 income that year was $82,300. This amount does not include the $6,800 in rental income that he received and failed to declare on his tax return. I have ordered him to pay to Ms. Jama half of that rental income as occupation rent, so I will only consider the remaining half ($3,400) as part of his total income for child support purposes. Mr. Basdeo did not pay taxes on this rental income, so I must gross up the amount of $3,400 before adding it to his employment income. His 2016 marginal tax rate was 31%. His grossed up rental income is therefore $4,927.

[192] Mr. Basdeo paid $1,123 in union dues in 2016. His total income must be adjusted to account for a deduction of those dues. Based on all the above, I conclude that Mr. Basdeo’s total 2016 income, for child support purposes, was $86,104 ($82,300 + $4,927 - $1,123).

[193] According to the Guidelines in effect in 2016, the Ontario Table amount of child support (for one child) corresponding to Mr. Basdeo’s income was $771 per month. The total amount of child support that he ought to have paid for the period from September 1 to December 1, 2016 was therefore $9,252 ($771 x 12 months).

2017

[194] Ms. Jama submits that an income of $97,287 should be imputed to Mr. Basdeo for 2017. His 2017 tax return summary shows a line 150 income of $79,082, consisting entirely of his employment income. He paid $1,196 in union dues that year. He also received rental income in the amount of $20,700, which he did not declare on his tax return. He has been ordered to pay half of that rental income to Ms. Jama as occupation rent, so I will include only his share ($10,350) as part of his income for child support purposes. Using a 31% marginal tax rate, I have grossed up his rental income to $15,000.

[195] I conclude that Mr. Basdeo’s 2017 total income, for child support purposes, was $92,886 ($79,082 + $15,000 - $1,196). According to the Guidelines in effect during the first 11 months of 2017, the Ontario Table amount of child support (for one child) corresponding to Mr. Basdeo’s income was $824 per month. The total amount of child support that he ought to have paid for the period from January 1 to September 1, 2017 was therefore $7,416 ($824 x 9 months).

[196] In summary, the total amount of child support that Mr. Basdeo was obligated to pay pursuant to the Guidelines for the period from September 1, 2015 to September 1, 2017 was $19,116 ($2,448 + $9,252 + $7,416). He actually paid only $3,740, resulting in a shortfall of $15,376 in arrears. Consequently, the October 1, 2017 interim order that required him to pay $12,094 in arrears underestimated his child support obligations by $3,282 ($15,376 - $12,094). Mr. Basdeo must therefore pay Ms. Jama additional arrears in the amount of $3,282, plus pre-judgment and post-judgment interest, for the period from September 1, 2015 to September 1, 2017.

Arrears - From October 1, 2017 to January 1, 2020

[197] The next issue for me to determine is whether Mr. Basdeo owes additional arrears in child support for the period from October 1, 2017 to January 1, 2020 inclusive (when the trial commenced). He was ordered to pay $740 per month commencing October 1, 2017, on an interim basis pending trial. This monthly payment was the Table amount of support that corresponded to his 2016 employment income of $82,300. The interim child support order was made without prejudice to Ms. Jama’s right to claim a higher amount of monthly child support at trial.

[198] She is now exercising that right and requesting an order for payment of $7,090 in arrears. She submits that Mr. Basdeo has been earning more than $82,300 and therefore ought to have been paying more than $740 per month since October 1, 2017. She is claiming the difference. She also claims that he did not consistently pay $740 per month since October 1, 2017 and therefore owes her approximately $1,000 in additional arrears for the shortfall.

[199] The October 18, 2017 interim child support order of $740 per month has been enforced by the FRO. The FRO’s records confirm that Mr. Basdeo fell behind on his payments in 2018 and gradually accumulated arrears in excess of $5,500. He has been making regular payments since 2019, including a lump sum payment of $3,027 in March 2019. He has reduced the balance owing, such that his arrears totaled $1,041 on January 2, 2020.

[200] Mr. Basdeo’s position is that he owes only $1,041 in arrears for the period from October 1, 2017 to January 1, 2020 inclusive. However, as discussed below, his income has been greater than $82,300 in each of the years since 2017. Consequently, the FRO’s calculation of his arrears based on a monthly payment of $740 does not accurately reflect the amount of child support to which J is entitled. On the other hand, as explained below, Ms. Jama’s claim for payment of $7,090 in arrears exceeds the amount to which J is entitled.

[201] It is worth noting that Mr. Basdeo was aware that he was not paying the correct amount of child support when he was ordered to pay $740 per month. He admitted during his cross-examination that he did not disclose his rental income on his first Financial Statement in 2017 because he was scared that he would be ordered to pay more child support.

[202] The monthly amounts of support that Mr. Basdeo ought to have been paying since October 1, 2017 must be determined based on his annual income in 2017, 2018 and 2019. I have already concluded that his total income in 2017 was $92,886, which corresponds to a child support Table amount of $824 per month. The child support Tables were updated effective November 22, 2017. The new monthly amount of support corresponding to an income of $92,886 was $854.

2018

[203] Mr. Basdeo had multiple sources of income in 2018. He started the year working in his long-term position as a TTC driver, but his employment with the TTC was terminated for cause on February 7, 2018. The precise grounds for his termination are unknown because Mr. Basdeo refused to disclose his letter of termination and Record of Employment. However, he acknowledged at trial that he was fired based on his conduct. He testified that he tested positive for marijuana on a random drug test performed by his employer (prior to the legalization of cannabis in Canada). He admitted during his cross-examination that he was impaired at work.

[204] The only documentary evidence relating to Mr. Basdeo’s substance abuse is a December 12, 2018 letter addressed to the Disability Management Specialist at the TTC and signed by a physician at Vector Medical, an occupational medicine clinic. The letter was adduced as evidence by Ms. Jama, with Mr. Basdeo’s consent. It confirms that Mr. Basdeo tested positive for marijuana on a random drug test conducted by the TTC on January 26, 2018. The letter states that he attended an assessment at Vector Medical in April 2018 and was diagnosed with “Cannabis use Disorder – Severe”.

[205] I considered imputing to Mr. Basdeo the same amount of income in 2018 that he earned in 2017, based on s. 19(a) of the Guidelines. Subsection 19(a) permits the imputation of income to a payor-parent who is intentionally unemployed or underemployed, except in certain circumstances, including where the unemployment or underemployment is required by the reasonable health needs of the spouse. The jurisprudence supports a finding of intentional unemployment in circumstances where a payor-parent engages in reckless behaviour that negatively impacts their earning capacity, including misconduct that results in termination of their employment, even if there was no intention to evade child support obligations: Scott v. Chenier, 2015 ONSC 7866, at para. 48(5); Rogers v. Rogers, 2013 ONSC 1997, at para. 56. In such cases, it is not uncommon for the court to impute an income equal to the payor-parent’s pre-termination income for the purposes of child support: Rogers, at para. 49.

[206] In this case, Mr. Basdeo admits that he was fired for misconduct, but his termination was related to substance abuse, which should not automatically be equated to intentional underemployment. The Court of Appeal for Ontario has ruled that the word “intentional” in s. 19(a) of the Guidelines refers to a voluntary act. Consequently, “the section does not apply to situations in which, through no fault or act of their own, [a parent is] laid off, terminated or given reduced hours of work”: Drygala v. Pauli (2002), 2002 41868 (ON CA), 61 O.R. (3d) 711, at para. 28. The termination of Mr. Basdeo’s employment was related to a diagnosed cannabis-use disorder. His misconduct at work may have been the result of an addiction and beyond his self-control. Evidence would, however, be required to establish these facts.

[207] Furthermore, as discussed below, Mr. Basdeo spent several weeks in a residential treatment centre in 2018. The treatment was for legitimate health needs, so any lost income during that time period falls within the “reasonable health needs” exception to the imputation of income under s. 19(a).

[208] It is, however, unnecessary for me to decide whether or to what extent s. 19(a) of the Guidelines applies in the circumstances of this case because the evidence at trial established that Mr. Basdeo actually earned more in 2018 than he did in 2017. It would therefore be improper to impute to him a 2018 income equivalent to what he earned in 2017 (prior to his termination by the TTC).

[209] Mr. Basdeo testified that he started driving for Uber at some point in the spring of 2018 to earn money. He grieved his termination by the TTC and was ultimately reinstated on May 25, 2018, on condition that he complete an in-patient program at a drug treatment centre. He was on a waiting list for residential treatment, so he continued to support himself by driving for Uber in the intervening months.

[210] The record shows that Mr. Basdeo was admitted to Renascent House on October 17, 2018. He completed the residential program and was discharged on November 14, 2018. He was not yet cleared by Vector Medical (the occupational medicine clinic) for safety-sensitive duties and therefore returned to work for the TTC in the lost and found department. He testified that he was not earning his regular wage as a TTC driver, so he continued to drive for Uber to supplement his income.

[211] During the trial, Mr. Basdeo produced a single page from his 2018 tax return summary. He provided no further documentary disclosure of his income for that year. Based on the partial tax summary and his testimony, I make the following findings. He earned a gross income of $41,405 working for the TTC in 2018. He also received a lump sum payment from the TTC in the amount of $19,155, as part of the resolution of his grievance. He collected employment insurance benefits in the amount of $3,284. He declared on his tax return a net self-employment income from driving Uber in the amount of $26,842. He also declared his net rental income in the amount of $13,334. His line 150 total income was $98,120.

[212] Ms. Jama argues that I should impute to him an income of $114,445 for 2018 because of unreasonably deducted expenses and undisclosed income, pursuant to s. 19(f) and (g) of the Guidelines. Mr. Basdeo did not produce a complete income tax return for 2018. The gross amount of his self-employment income from driving Uber is unknown. The schedules to his 2018 tax return are not in evidence, so I do not know the nature or amounts of the expenses that he deducted in respect of his self-employment. He made a vague statement during his testimony about deducting vehicle expenses and fuel costs, but he did not give evidence about the amounts. He was not pressed for particulars of the expenses during his cross-examination.

[213] Ms. Jama argues that Mr. Basdeo should not be permitted to deduct from his income any expenses that he has not disclosed. He failed to comply with his disclosure obligations pursuant to s. 21(2) of the Guidelines and I may therefore draw an adverse inference against him and impute income to him pursuant to s. 23 of the Guidelines. However, the amount imputed must be grounded in the evidence: Drygala, at para. 44.

[214] Vehicle maintenance and fuel expenses are legitimate costs to deduct from self-employment income as an Uber driver, but without evidence of the specific amounts that Mr. Basdeo deducted, I am unable to assess the reasonableness of his expenses. I am prepared to infer, based on his non-disclosure, that the amounts of expenses he deducted from his self-employment income are unreasonable. Without any evidence of those amounts, however, I cannot impute to him an arbitrary gross amount of self-employment income under s. 19(1)(g) of the Guidelines. I must therefore use his net self-employment income of $26,842 in calculating his total income for 2018.

[215] With respect to his rental income, his partial 2018 tax summary shows that he declared a gross rental income of $22,500 and a net rental income of $13,334. Ms. Jama argues that I should impute to him the gross amount of income because he did not disclose his income tax schedules, thereby shielding his expenses from scrutiny for reasonableness. She argues that I ought to infer from his non-disclosure that the expenses are unreasonable.

[216] I am not prepared to draw that adverse inference because I am able to assess the reasonableness of Mr. Basdeo’s rental expenses based on other evidence in the record. I have already summarized the relevant evidence in my reasons on the issue of occupation rent (above). I concluded that Mr. Basdeo had legitimate carrying costs related to the rental property, including mortgage payments of approximately $1,030 per month. It is reasonable to deduct mortgage costs from his gross rental income. The calculation of Mr. Basdeo’s 2018 total income for child support purposes should therefore be based on the net rental income amount that he declared ($13,334).

[217] Only Mr. Basdeo’s half share ($6,667) of the net rental income will be included in the calculation of his total income for child support purposes because I have ordered him to pay half of the rental income to Ms. Jama as occupation rent. I will not gross up the $6,667 amount because he declared the rental income on his 2018 tax return.

[218] I will estimate that Mr. Basdeo paid $897 in union dues in 2018, which represents 75% of the dues he paid in 2017 when he earned approximately 25% more income working for the TTC.

[219] Based on the above, I conclude that Mr. Basdeo’s 2018 income for child support purposes was $96,456, calculated as follows:

TTC employment $41,405

Grievance settlement $19,155

Employment insurance benefits $ 3,284

Self-employment (Uber) $26,842

Rental income $ 6,667

Subtotal $97,353

Minus union dues $ 897

Total income $96,456

[220] The Table amount of child support that corresponds to this income is $883 per month.

2019

[221] There is little evidence in the record relating to Mr. Basdeo’s 2019 income. He testified that, for the first seven or eight months of the year, he was working for the TTC in the lost and found department. He said he was earning less than his regular wage as a TTC driver, so he continued to drive Uber to supplement his income. He did not adduce evidence of how much he was earning while working in the lost and found department. He resumed regular TTC duties in or about August 2019 and said he stopped driving Uber at that time.

[222] Mr. Basdeo did not produce any documentation showing his year-end employment income from the TTC as of December 31, 2019. He gave no evidence about the amount of self-employment income he earned driving for Uber in the first part of the year. I am therefore required to impute income to him based on the available evidence.

[223] Ms. Jama argues that I should impute to him a total income of $108,544 in 2019, based in part on what he earned in 2018. I agree with Mr. Basdeo’ submission that it would not be appropriate to impute to him the same amount of income that he earned in 2018 because that included a one-time lump sum payment from the TTC in excess of $19,000.

[224] Mr. Basdeo acknowledged during his cross-examination that he had the ability to earn $82,000 working as a driver for the TTC. On the assumption that the driving he did for Uber to supplement his earnings working in the lost and found was sufficient to generate at least the same income he would have earned working full-time as a TTC driver, I impute to him combined employment and self-employment earnings of $82,000 in 2019.

[225] Mr. Basdeo would have paid some union dues in 2019, but he did not adduce any evidence of the amount. I am unable to estimate the amount based on previous years’ dues because he did not disclose his 2019 income from the TTC. I have no way of knowing how much of his income in 2019 was generated by self-employment (driving for Uber) and how much was compensation for work he did as an employee of the TTC. I cannot select an arbitrary amount of union dues without some evidence. I therefore cannot make any deduction for union dues in 2019.

[226] Mr. Basdeo’s rental income in 2019 was the same as it was in 2018 ($6,667). I therefore conclude that Mr. Basdeo’s 2019 income for child support purposes was $88,667 ($82,000 + $6,667). The Table amount of child support that corresponds to this income is $824 per month.

[227] In summary, I have imputed the following annual incomes to Mr. Basdeo pursuant to the Guidelines:

2017- $ 92,886

2018 - $ 96,456

2019 - $ 88,667

[228] I note that the fluctuation in Mr. Basdeo’s income is largely due to three factors: (1) he began declaring his rental income on his tax return in 2018, so the grossing up of his rental income ceased that year, (2) he received a substantial one-time lump sum payment for a grievance settlement in 2018, (3) the disruption in his employment with the TTC and his supplemental self-employment income.

2020

[229] I have no evidence relating to Mr. Basdeo’s 2020 income, so I will use the total imputed income from 2019 ($88,667) to calculate his child support payment due on January 1, 2020.

[230] Using the above annual incomes and taking into account the updated child support Tables that came into effect on November 22, 2017, the following Table amounts of child support ought to have been paid by Mr. Basdeo:

Oct. 1 to Nov. 31, 2017: $ 1,648 ($824 x 2 months)

December 1, 2017: $ 854 (1 month)

In 2018: $10,596 ($883 x 12 months)

In 2019: $ 9,888 ($824 x 12 months)

January 1, 2020 $ 824 (1 month)

Total: $23,810

[231] The total amount of child support that he ought to have paid between October 1, 2017 and January 1, 2020 (inclusive) is $23,810. Instead, he made payments based on $740 per month, which would amount to $20,720 over the same 28-month period. His arrears of $1,041 were calculated by the FRO based on the interim order of $740 per month. I therefore deduce that he paid a total of $19,679 ($20,720 - $1,041) in child support.

[232] In summary, Mr. Basdeo actually paid $19,679 in child support between October 1, 2017 and January 1, 2020 inclusive, whereas he ought to have paid $23,810 during that same time period. The arrears that have accumulated during this period therefore total $4,131 (not $1,041 as calculated by FRO). Consequently, Mr. Basdeo must pay Ms. Jama arrears in the amount of $4,131, plus pre-judgment and post-judgment interest (in addition to the arrears set out above for the period before October 1, 2017).

Ongoing Child Support Obligation

[233] Ms. Jama is seeking an order for Mr. Basdeo to pay her $997 per month in child support going forward, based on an imputed income of $108,544 for 2020. I have imputed a total annual income of $88,667 to Mr. Basdeo for 2019. That amount was calculated using the most recent income evidence available to me. There is no basis in the evidence for imputing a higher income to him in 2020.

[234] The Table amount of child support that corresponds to this income is $824 per month. Mr. Basdeo shall therefore pay $824 monthly on the first day of each month, effective February 1, 2020, on an ongoing basis. (The obligation to pay $824 per month commenced January 1, 2020, but the first payment of 2020 has already been factored into the calculation of arrears above.)

[235] Even if Mr. Basdeo has been making regular child support payments since the trial ended, he will have accumulated further arrears because his payments have been based on the temporary child support order of only $740 per month. I have already included the month of January 2020 in my calculation of the arrears owing as of the date of trial (above). In addition to those arrears, Mr. Basdeo is obligated to pay Ms. Jama any shortfall in the amount of child support that he has paid since February 1, 2020.

[236] Any child support arrears still owing by Mr. Basdeo as of the date of sale of the matrimonial home will be deducted from his share of the net proceeds of sale and remitted to Ms. Jama.

Section 7 Expenses

[237] Ms. Jama is not making a claim for retroactive payment of any s. 7 expenses. The parties agree that, effective this year, they will both contribute to J’s special and extraordinary expenses in proportion to their incomes.

[238] Ms. Jama asks for an order that Mr. Basdeo be required to pay 58% of the s. 7 expenses. Based on my calculations below, I have concluded that his share of the expenses should be 48%.

[239] I have imputed to Mr. Basdeo a total income of $88,667 in 2019. The most recent income information produced by Ms. Jama is her Statement of Earnings from the TTC dated November 20, 2019. It shows year-to-date gross earnings in the amount of $77,551 and a year-to-date deduction of $1,308 for union dues. These amounts are for the 45-week period ending November 9, 2019. Prorated over 52 weeks, I estimate that her 2019 employment income was $89,614 and that she paid $1,511 in union dues. Those amounts will be imputed to her.

[240] Further to my orders for payment of occupation rent, Ms. Jama will also receive net rental income in the total amount of $6,667 for 2019. Her total imputed income for 2019 is therefore $94,770 ($89,614 - $1,511 + $6,667).

[241] Based on their respective imputed incomes ($88,667 and $94,770), Mr. Basdeo must pay 48% and Ms. Jama must pay 52% of J’s s. 7 expenses, effective January 1, 2020. I have made ancillary orders at the end of this judgment relating to the practicalities of reimbursing s. 7 expenses.

Income Disclosure and Annual Review of Child Support

[242] Commencing June 1, 2020, the parties shall exchange their complete income tax returns (including all schedules) and their Notices of Assessment for the prior tax year. This exchange shall be done annually on June 1st of each year, for the purpose of reviewing their proportionate contributions to s. 7 expenses and adjusting Mr. Basdeo’s monthly child support payment to reflect the corresponding Table amount. Any changes will take effect on July 1st of each year.

Life Insurance to Secure Child Support

[243] Mr. Basdeo testified that he did not know whether he had any life insurance. This is not credible. The documents that he produced establish that he has group life insurance through his employer. It is apparent that he also owns a personal life insurance policy, because premiums for life insurance have been deducted from his secured line of credit.

[244] Ms. Jama asks the court to order him to designate her as irrevocable beneficiary of all his life insurance policies for as long as he is obligated to pay child support for J. Mr. Basdeo argues that this would be unfair to his other minor child from a previous relationship, for whom he is also obligated to pay child support. He did not, however, adduce any evidence that the other child is currently a beneficiary of his life insurance policies.

[245] Having considered both of their submissions, I order that, for as long as Mr. Basdeo is obligated to pay child support for J as well as for his other child from a previous relationship, he shall maintain his current life insurance policies and designate J as irrevocable beneficiary of half of all his benefits under the existing policies to secure his child support obligations for J. He shall name Ms. Jama as trustee for J with respect to the life insurance benefits. When his support obligations for his other child terminate, he shall continue to maintain his life insurance policies and shall designate J sole irrevocable beneficiary of all benefits under the policies, with Ms. Jama as trustee, until such time as he is no longer obligated to pay child support for J.

[246] Additional compliance orders regarding life insurance appear at the end of this judgment.

CUSTODY AND ACCESS

Incidents of Custody

[247] The issue of custody was resolved by way of a final consent order dated April 13, 2018, wherein Van Melle J. ordered that Ms. Jama would have sole custody of J and J’s principal residence would be with her. Van Melle J. also made several ancillary orders, including that Ms. Jama is entitled to obtain, renew and retain a passport for J without Mr. Basdeo’s consent or signature.

[248] At trial, Ms. Jama sought an order that she have the right to travel with J outside the country without obtaining Mr. Basdeo’s prior consent. Mr. Basdeo does not contest this requested order, but he asks for a reciprocal order in his favour.

[249] The order requested by Ms. Jama is reasonable and will be granted, with some conditions to ensure that Mr. Basdeo is aware of J’s travel itinerary and contact information. It is not appropriate to make a reciprocal order permitting Mr. Basdeo to travel outside the country with J without Ms. Jama’s prior consent because she is the sole custodial parent. I therefore deny his request for such an order. If he wishes to travel abroad with J, he must advise Ms. Jama in advance and obtain her prior written consent.

[250] The final issue in dispute is the parties’ parenting schedule.

Current Parenting Schedule

[251] Mr. Basdeo’s parenting time with J has varied over the four and a half years since the parties separated. The history is summarized below. His current parenting schedule, pursuant to an interim consent order dated February 7, 2019, is for four hours (12:00 to 4:00 p.m.) on alternating Sunday afternoons, with telephone access to J at 6:30 p.m. every Wednesday night. However, Mr. Basdeo attends at J’s school weekly to bring her a lunch so that he can see her more frequently and show her that he is thinking of her.

[252] For reasons discussed below, since October 2017, Mr. Basdeo has been required to ensure that his father, Mr. Basdeo Sr., is not present while J is in his care. Consequently, his visits with J occur in public settings to avoid bringing her into contact with her paternal grandfather, who resides with him. Mr. Basdeo is eager to have the restriction on his father’s contact with J removed. He wants to enjoy family time with J at his home, rather than always eating in restaurants and only meeting in public spaces.

[253] Mr. Basdeo is also seeking to have greater parenting time with J, including overnight visits. Ms. Jama agrees that his parenting time should be increased, but she does not agree to his proposed parenting schedule and she seeks to have conditions imposed on his access.

Statutory Framework for Access Orders

[254] The Divorce Act stipulates that a non-custodial parent’s access to a child of the marriage must be determined in accordance with the best interests of the child. The following subparagraphs of s. 16 of the Divorce Act are applicable in the circumstances of this case:

(6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

(8) … the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9) … the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10) … 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 and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[255] Although the access issues in this case are governed by the Divorce Act, this court is often guided by the factors listed in s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, when determining what is in a child’s best interest in the context of divorce proceedings. The following sub-paragraphs of s. 24 of the CLRA are relevant in the circumstances of this case:

(2) The court shall consider all the child’s needs and circumstances, including,

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

(i) each person, including a parent or grandparent, entitled to or claiming … 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;

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

(g) the ability of each person applying for … 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.

(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.

(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.

[256] My determination of what is in J’s best interests and my decision regarding the appropriate parenting schedule are governed by the above statutory provisions.

Condition, Means, Needs and Circumstances of the Child

[257] J is a healthy 7-year-old child. She has no known disabilities or special needs. She has resided principally with her mother in an apartment in Mississauga since the parties separated in August 2015. They live with Ms. Jama’s sister and Ms. Jama’s 13-year-old son from a previous relationship. J has not seen her paternal grandfather (Mr. Basdeo Sr.) for more than two years.

[258] J has a close emotional bond with both of her parents, who provide her with unconditional love and affection. Ms. Jama has been her primary caregiver since birth, but Mr. Basdeo has been involved in her life and is eager to take on a greater parenting role.

Child’s Views and Preferences

[259] Considering J’s young age, she is not of sufficient maturity to warrant giving significant weight to her wishes. However, I do find it relevant that both parties acknowledge she wants to spend more time with her father.

[260] Ms. Jama testified that J has expressed this desire to her, particularly after visits with her father on Sundays. She said J gets excited when she sees her father and talks about it when she returns from her visits with him. J has specifically told Ms. Jama that she would like to have overnight visits at her father’s house. She has also mentioned this to Mr. Basdeo.

Father’s Past Conduct

[261] Some of Mr. Basdeo’s past conduct is relevant to his ability to parent J and should therefore be taken into consideration when assessing her best interests.

[262] When the parties first separated in August 2015, they verbally agreed that Mr. Basdeo would have J in his care on alternating weekends. He would pick up J at Ms. Jama’s residence after his work shift ended around 8:00 p.m. on alternating Fridays, then bring her back to Ms. Jama’s residence on Sunday evening. At that time, he was living alone in the matrimonial home, which was where he cared for J on his weekends. This informal parenting arrangement initially worked well for the parties. There were no concerns about Mr. Basdeo’s parenting at that time.

[263] After about nine months of this arrangement, Mr. Basdeo stopped bringing J to the matrimonial home because of a violent incident that occurred in the home in May 2016. Ms. Jama testified that she learned of the incident from Mr. Basdeo’s mother. Ms. Jama said Mr. Basdeo’s mother told her the house was broken into, drugs including cocaine were involved, Mr. Basdeo got beat up, possibly because he owed some people money, and the police were involved.

[264] Mr. Basdeo’s mother did not testify during the trial. She was not present when the violent incident occurred at the matrimonial home, so she would not have been able to give first-hand testimony about it in any event. The source of her information is unknown. In these circumstances, the hearsay evidence tendered by Ms. Jama is unreliable and inadmissible for the truth of its content. However, the evidence is relevant to Ms. Jama’s narrative about why Mr. Basdeo’s parenting schedule changed. I have admitted the evidence for that sole purpose.

[265] Ms. Jama was understandably concerned about the information she received from Mr. Basdeo’s mother regarding a break-in at the matrimonial home. She worried that J may not be safe in the home during her weekend visits with her father if Mr. Basdeo was being targeted by criminals. Ms. Jama was upset that she did not hear about the incident directly from Mr. Basdeo. Mr. Basdeo was not forthright about what had happened. He took the position that because J was not in the home when the incident occurred, she was not impacted by it. He would not give Ms. Jama any details about the incident.

[266] Mr. Basdeo was eventually ordered, at a Settlement Conference on April 18, 2019, to deliver the following to Ms. Jama’s counsel by April 30, 2019:

a) a sworn statement along with any police records that may exist with regards to the incident that occurred on or about May 29, 2016, when individuals broke into the Ohara property and beat him up.

b) A specific sworn statement as to whether he owed them money.

c) A specific sworn statement as to whether cocaine or any other illegal drug was involved in this incident.

[267] Mr. Basdeo did not comply with this disclosure order.

[268] At trial, Mr. Basdeo gave the following testimony about the May 2016 incident. He said his doorbell rang and he answered the door. Two large men were standing there. He recognized them. One was his neighbour. He described the other man as a “biker”. His neighbour grabbed his arm and pulled him into the garage. They told him to sit on a chair. They threatened him with a hammer and said the were going to put him in a body bag. He escaped by sliding under the garage door, but they caught up to him in the driveway. One of them hopped over a fence with a knife. They punched him a couple of times and “that was it”.

[269] Mr. Basdeo testified that the men accused him of “ratting out” a friend of theirs. He said he was not sure what it was about, but thought it had to do with a time when Ms. Jama was living at the house and she called the police because of a domestic dispute at the neighbour’s residence. He stated, “even with everything that happened, I didn’t say it was Amal not me [who called the police]. I told them I didn’t know about it.” I found this evidence to be self-aggrandizing and not credible, because Ms. Jama had moved out of the house nine months earlier. Whatever the motive for the break-in and assault on Mr. Basdeo, it was likely unrelated to any incident that occurred prior to the parties’ separation.

[270] Mr. Basdeo testified that the police were not involved. When he was asked why he did not report the incident to the police, even though he was able to identify his assailants, he responded, “I just didn’t”.

[271] I believe that Mr. Basdeo knows the reason why he was the target of this assault but fabricated an implausible reason to divert the court’s attention away from his own involvement in questionable activities with unsavoury people. His decision not to report to the police and his established history of gambling and illicit drug use contribute to this inference.

[272] Even though J was not home with Mr. Basdeo when the incident occurred, Mr. Basdeo obviously shared Ms. Jama’s anxiety about J potentially being exposed to a similar incident because he never brought her back to the matrimonial home. Mr. Basdeo testified that, after the incident, he brought J to his mother’s house for visits and they slept overnight at his brother’s house on the weekends when J was in his care. He moved out of the matrimonial home shortly thereafter in the summer of 2016. He did not mention any of these changes to Ms. Jama. It was months later when Ms. Jama found out from J that Mr. Basdeo was no longer bringing J to the matrimonial home.

[273] Ms. Jama testified that Mr. Basdeo started to miss some weekend visits with J. She could not recall the exact timeframe but stated that he became “disconnected for a while” after the May 2016 incident. She said he would simply not show up to pick up J and would provide no advance notice. Mr. Basdeo denied this allegation, but I accept Ms. Jama’s evidence as credible and consistent with the preponderance of the evidence at trial.

[274] Mr. Basdeo’s visits with J became unpredictable and inconsistent. He no longer had her in his care every second weekend. Ms. Jama testified that J missed him and wanted to see him more often.

[275] On one occasion in 2017, J returned to Ms. Jama’s home after a weekend visit with her father and reported that there had been an incident at her uncle’s house (Mr. Basdeo’s brother’s home) involving the police. Ms. Jama testified that J was really upset and crying. J told her she was placed in a closet because Mr. Basdeo and Mr. Basdeo’s sister-in-law were having a fight. J said she was scared because grandpa was yelling and running around the house. Both Mr. Basdeo and Mr. Basdeo Sr. testified that no such incident ever occurred.

[276] I admitted into evidence Ms. Jama’s testimony about J’s account of the incident at her uncle’s house. It is hearsay, but I am satisfied that it is reliable (because of the circumstances in which J made the disclosure to Ms. Jama) and it is also necessary, insofar as it would not have been appropriate to call J as a witness during the trial. Furthermore, as explained in detail below, the court was not able to obtain information from J through the Office of the Children’s Lawyer (“OCL”).

[277] Ms. Jama testified that the main reason she is extremely anxious about J being anywhere near Mr. Basdeo Sr. is not because of the incident recounted by J, but rather because she heard from both Mr. Basdeo’s mother and Mr. Basdeo’s ex-wife that Mr. Basdeo Sr. sexually abused one of Mr. Basdeo’s older children years ago. Mr. Basdeo Sr. adamantly denies this allegation. I will address this hearsay evidence and examine this issue in greater detail below. I mention it now only to explain what occurred when the parties attended their first Case Conference on October 18, 2017.

[278] At that Case Conference, the parties entered into a without prejudice agreement that Mr. Basdeo Sr. would not be present when J was in her father’s care. A consent order was made to that effect. The parties also consented to an order appointing the OCL to conduct an investigation and report back to the court with recommendations, pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[279] Furthermore, the parties agreed and consented to a temporary order stipulating that Mr. Basdeo would have access visits with J from 12:00 to 4:00 p.m. on alternating Saturdays, plus telephone access on Wednesday nights at 8:00 p.m.. The order stated that exchanges would take place at a public library. Up until that point, Mr. Basdeo had been picking up and dropping off J at Ms. Jama’s residence.

[280] Ms. Jama testified that, at the Case Conference, she was prepared to agree to a schedule that gave Mr. Basdeo greater parenting time with J, provided that Mr. Basdeo Sr. was not present. She stated that Mr. Basdeo did not want more than four hours of parenting time on Saturday afternoons. During his cross-examination, Mr. Basdeo acknowledged that this was true but did not offer any explanation for why, in October 2017, he did not take the opportunity to obtain a more liberal court-ordered parenting schedule. Given that he had accumulated significant gambling debt in 2015, had been targeted in a home invasion and violent assault in May 2016, and would subsequently lose his job with the TTC in February 2018 and be diagnosed with a severe cannabis use disorder in April 2018, I imagine that his life was chaotic at the time and not conducive to single-parenting.

[281] The OCL agreed to provide services pursuant to s. 112 of the Courts of Justice Act, in accordance with the court order dated October 18, 2017. The matter was assigned to a clinical investigator in December 2017. The investigator reached out to the parties to schedule initial appointments and have the requisite intake forms completed. Ms. Jama cooperated but Mr. Basdeo did not return the investigator’s calls or respond to her correspondence. The investigator made multiple efforts to contact him both directly and through his (then) counsel but eventually closed the file on February 16, 2018 because of his lack of response.

[282] The parties attempted to implement the new parenting schedule set out in the October 18, 2017 order, but problems arose. At one point, Ms. Jama’s telephone line was temporarily cut off, which impeded Mr. Basdeo’s Wednesday night telephone calls with J. The timing of the calls (8:00 p.m.) became an issue. At a subsequent Settlement Conference, the parties consented to an order that the weekly telephone call would take place “between 5 PM and 7:30 PM” on Wednesday night and that “the Applicant mother will make best efforts to facilitate the call.”

[283] Other problems with the parenting schedule arose. Ms. Jama was unable to personally attend for exchanges at the library and wanted to have her sister do the drop-offs and pick-ups for her instead. Conflicts arose between her sister and Mr. Basdeo. In addition, some of Mr. Basdeo’s Saturday visits with J did not take place. The parties blame each other for this. Ms. Jama alleges that Mr. Basdeo cancelled or simply did not show up for some of his visits, especially after September 2018. Mr. Basdeo denies this allegation. He claims that Ms. Jama cancelled some of the Saturday visits because of her work schedule. Ms. Jama concedes that fact.

[284] Based on the totality of the evidence at trial, I find that both parties were partially responsible for the inconsistent application of the parenting schedule. Consequently, Mr. Basdeo’s parenting time with J remained irregular and somewhat unpredictable. Based on the facts deemed to be admitted (in the Request to Admit), there was an extended period of time in the fall of 2018 when Mr. Basdeo did not see J. This period coincides, at least in part, with when he was in a residential rehabilitation facility for drug-abuse treatment.

[285] Mr. Basdeo testified that, when he was fired by the TTC in February 2018, he just “sat in a ball” for about a month. He stated that he “fell apart” and was initially unable to function. His distraught state of mind no doubt contributed to his inconsistent parenting. He claimed at trial that he was not even aware, during that time, that the OCL was trying to reach him. He testified that his life was in complete disarray. He had hit the proverbial “rock bottom”. I note that the timing of his termination roughly coincided with when he started falling significantly behind on his child support payments.

[286] As discussed earlier, Mr. Basdeo began to obtain treatment for substance abuse in the fall of 2018. At a subsequent Settlement Conference in February 2019, the parties agreed to a revised parenting schedule and another temporary consent order was issued. Mr. Basdeo’s alternating weekend access was changed from Saturdays to Sundays to accommodate Ms. Jama’s work schedule, but the duration of the visits remained four hours only (12:00 to 4:00 p.m.). Exchanges were ordered to take place at Ms. Jama’s residence. The timing of the Wednesday night telephone call was fixed at 6:30 p.m.s The restriction on Mr. Basdeo Sr. being present during visits remained in place.

[287] This parenting schedule, ordered on consent on February 7, 2019, has been followed by the parties since that date. As of the date of trial, Mr. Basdeo had not missed any Sunday visits with J for the previous year. He had abided by the condition that his father not be present during his parenting time. He had, however, been requesting an increase in parenting time. Since at least August 2019, he had been asking Ms. Jama to agree to return to overnight visits on alternating weekends, per their original informal parenting arrangement.

[288] Based on the above summary of relevant evidence, I find that there have been many occasions when Mr. Basdeo exercised poor judgment and engaged in conduct that reflects negatively on his parenting ability. He has not always behaved responsibly. There were periods of time when he could not even be relied upon to show up. He missed access visits without notice, resulting in disappointment and emotional hurt for J. He did not always make his child support payments, which was clearly not in J’s best interest. He ignored the OCL investigator, failed to cooperate with the OCL’s intake process and ultimately frustrated the court’s effort to obtain the OCL’s assistance. He pursued activities, including gambling and illicit drug use, that invited chaos into his life and deprived J of a safe home environment in which to reside during her visits with him. The drug abuse not only threatened his job security, it also compromised his ability to parent J appropriately.

[289] However, the evidence establishes that there have also been stretches of time when Mr. Basdeo acted responsibly and demonstrated sound parenting. During the first nine months after the parties separated, he cared for J on alternating weekends. There were no concerns about his parenting throughout that time. The decline in his parenting coincided with a downward spiral in his life generally, which was related, at least in part, to a drug abuse problem.

[290] Mr. Basdeo addressed the problem appropriately by completing a residential drug rehabilitation program in October and November 2018. The December 12, 2018 letter from Vector Medical (admitted into evidence on consent) confirms that he also participated in an after-care program that included a drug testing regimen as a measure to show his commitment to continued abstinence. He was eventually cleared to return to his regular safety-sensitive duties as a TTC driver. He testified at trial that he continues to participate in relapse-prevention measures, including frequent 12-step recovery meetings. There was a period, after the May 2016 incident, when he appears to have had no fixed address, but he has maintained a stable residence with his father for at least the past two and a half years. In short, he crawled out of the “rock bottom” pit and seems to have got his life back on track.

[291] Ms. Jama confirmed that, since the current parenting schedule came into effect by consent order in February 2019, Mr. Basdeo has been reliable and consistent in exercising his parental access. His time spent with J has been without incident and J has repeatedly asked to spend more time with him. When considering evidence of his past conduct, his deficiencies in parenting remain relevant but should not completely eclipse his more recent satisfactory parenting.

[292] Because of Mr. Basdeo’s history of drug abuse, Ms. Jama requests that any access order include a condition proscribing non-prescription drug use by Mr. Basdeo while J is in his care. Mr. Basdeo consents to this condition.

Risk of Violence or Sexual Abuse

[293] Ms. Jama also requests that the following orders be made as a condition of Mr. Basdeo’s access:

a) J shall have her own bed to sleep in when she stays overnight at Mr. Basdeo’s residence.

b) Prior to any overnight access commencing, Mr. Basdeo shall provide her with photographic evidence that his residence is suitable for a child of J’s age and that he has a room and bed for her.

c) The paternal grandfather, Mr. Basdeo Sr., shall not be present in the same residence or immediate area during Mr. Basdeo’s parenting time.

d) Mr. Basdeo shall be present at all times during his parenting time and shall not leave J in the care of anyone else without first obtaining Ms. Jama’s written consent.

e) If Mr. Basdeo is unable to be present for his access for any reason, he shall provide as much notice as possible and he shall return J to Ms. Jama’s care, unless other arrangements are agreed to by the parties.

[294] Mr. Basdeo opposes these conditions, except for the requirement that J have her own bed to sleep in. He testified that he lives in a two-bedroom apartment with his father. Mr. Basdeo Sr. occupies one bedroom and he occupies the other. He has a separate bed for J in his bedroom. He brought it from the matrimonial home. It is a single bed, suitable for J to sleep in alone. J would therefore have her own bed to sleep in, but not her own bedroom. Mr. Basdeo stressed that she would not share a bedroom with Mr. Basdeo Sr.

[295] Ms. Jama’s objection to the presence of Mr. Basdeo Sr. stems from the previously mentioned historical allegation that Mr. Basdeo Sr. sexually abused one of Mr. Basdeo’s sons from a prior marriage. In order to provide context for the evidence relating to this allegation, I need to summarize some facts about Mr. Basdeo’s personal history. He was married to a woman named Suad Ashareh. They have two sons together, JAB (who is now 23 years old) and JIB (who is now 14 years old). They had an acrimonious separation and were involved in a protracted family law proceeding before the Ontario Court of Justice (“OCJ”).

[296] Mr. Basdeo Sr. testified that Ms. Ashareh called his ex-wife (Mr. Basdeo’s mother) years ago and accused him of sexually assaulting their eldest grandson, JAB, in a car. Mr. Basdeo Sr. testified that he is not aware of the specifics of the allegation beyond what his ex-wife was told by Ms. Ashareh.

[297] Ms. Jama testified that she heard about the allegation from Mr. Basdeo’s mother (Mr. Basdeo Sr.’s ex-wife) and also from Ms. Ashareh, whom she has recently befriended. She said there were numerous occasions when they contacted her to share information. She was told there were “many instances of inappropriate touching with Mr. Basdeo’s other two sons”. Mr. Basdeo Sr. testified that he was only aware of one alleged incident involving JAB, which he adamantly denies.

[298] Mr. Basdeo testified that he is unaware of the details of the alleged incident because JAB never disclosed it to him or discussed it with him. Mr. Basdeo believes that the allegation was fabricated by Ms. Ashareh to gain advantage in their custody and access dispute. He is convinced that Ms. Ashareh and Ms. Jama, who have been communicating recently, are colluding (“tag-teaming”) against him.

[299] The only evidence before me of the alleged sexual abuse by Mr. Basdeo Sr. consists of hearsay statements that are neither reliable nor necessary to admit as evidence. The fact that the allegation grew from a single incident involving JAB to many instances of inappropriate touching of both of Mr. Basdeo’s sons is typical of the spread of rumours and underscores the unreliability of the evidence. Mr. Basdeo’s adult son, JAB, who is the alleged victim of the sexual abuse, could have been called as a witness to give first-hand testimony and be cross-examined. Similarly, Mr. Basdeo’s ex-wife, Ms. Ashareh, could have been called as a witness, to the extent that she may have first-hand knowledge of relevant facts. The evidence of hearsay statements made by Ms. Ashareh and by Mr. Basdeo’s mother are therefore inadmissible for the truth of their contents. The evidence is admitted only to further Ms. Jama’s narrative.

[300] No criminal charges were ever brought against Mr. Basdeo Sr. in connection with the alleged sexual offence. There were, however, court orders made in the context of the OCJ family law proceeding between Mr. Basdeo and Ms. Ashereh. Those orders prohibited Mr. Basdeo Sr. from having contact with Mr. Basdeo’s youngest son, JIB.

[301] The first such OCJ order was made on a temporary basis on November 29, 2011. At that point in time, Ms. Ashareh already had sole custody of the boys and Mr. Basdeo had a court-ordered temporary visitation schedule that included alternating “weekends” (Sunday at 6:30 p.m. to Tuesday at 6:30 p.m.) to coincide with his work schedule. Ms. Ashareh brought a motion to restrict Mr. Basdeo’s access because their older son, JAB, who was then 15 years old, disclosed to her that Mr. Basdeo Sr. had touched him inappropriately when he was a young boy.

[302] In a temporary order, the OCJ changed Mr. Basdeo’s access schedule to days without overnights (every Saturday and Sunday from 9:00 a.m. to 7:00 p.m.) and imposed a condition that there “shall be no contact, directly or indirectly” between the paternal grandfather, Mr. Basdeo Sr., and JIB, Mr. Basdeo’s younger son, who was then only 5 years old. At the same time as this temporary access order was made, the OCJ requested that the OCL provide representation to JAB and JIB and investigate, report and make recommendations on all matters concerning access issues. The OCL accepted the appointment and an investigation was conducted. A report was produced by the OCL for the OCJ at some point in 2012.

[303] Mr. Basdeo did not disclose a copy of the 2012 OCL report in the context of this court proceeding. He did, however, produce copies of court orders from the OCJ family law proceeding. Those orders show that the November 29, 2011 temporary restriction on Mr. Basdeo Sr.’s contact with JIB was renewed on consent in subsequent temporary court orders dated February 22, 2012 and October 9, 2012. It was eventually incorporated into a final order dated December 20, 2012.

[304] The wording of the December 20, 2012 OCJ final order is ambiguous regarding whether the restriction on Mr. Basdeo Sr.’s contact with JIB was ordered on consent. Mr. Basdeo’s position throughout this proceeding has been that he consented to that restriction in the OCJ proceeding, even though he believes the allegation against his father is false and unsubstantiated, because he wanted to end the protracted litigation with Ms. Ashareh. This position was clearly conveyed to Ms. Jama’s counsel via letter from Mr. Basdeo’s former counsel dated January 12, 2018.

[305] At trial, Ms. Jama’s counsel cross-examined Mr. Basdeo at length about this issue, suggesting to him that the final OCJ order restricting his father’s contact with JIB was not on consent. Mr. Basdeo maintained his position.

[306] Although it is ambiguously worded, I interpret the final OCJ “no contact” order dated December 20, 2012 to be on consent. If the order was not on consent, it is entirely unclear from the record whether and to what extent the 2012 OCL report influenced the court’s final decision. The reasons for the court’s final order were not put before me by either party. If I am correct in my interpretation of the final order, there may not have been any reasons given for the restriction on the grandfather’s contact with the boy because of the parties’ consent.

[307] Mr. Basdeo and Ms. Ashareh had ongoing disputes relating to their younger son, JIB. They returned before the OCJ a couple years after the final access order was made. On February 24, 2015, the OCJ re-invited the OCL to provide services for JIB, who was then 9 years old. The OCL accepted the court’s appointment and conducted another investigation. A copy of the OCL investigator’s report and sworn affidavit dated October 15, 2015 was attached to the Request to Admit that was served on Mr. Basdeo in January 2019. He is deemed to have admitted the genuineness of the documents.

[308] The 2015 OCL report contains very limited information about JAB’s historical sexual abuse allegation because that allegation was not the focus of the OCL’s investigation in 2015. The author of the report notes that when she interviewed JAB, he informed her “that his paternal grandfather touched him inappropriately when he was young.” She states that JAB said “he was afraid to tell his mother until he was fourteen years old.” No further particulars of the alleged incident are included in the report.

[309] In the 2015 report, the OCL investigator also notes that she interviewed Mr. Basdeo Sr., who “indicated that he has not seen either JAB or JIB since they were very young due to the fact that there was allegations made about him that were not true.” She states that Mr. Basdeo Sr. told her he was living with his other son (Mr. Basdeo’s brother) and his son’s family, including a young grandson. He said he cared for the grandson and there were no concerns about it.

[310] In the trial before me, Mr. Basdeo Sr. denied having any knowledge of the OCJ court orders preventing him from contacting JIB. He said he had not seen his two grandsons in many years, not because of any court orders, but because of the false allegation made against him. Although this originally struck me as implausible, upon further reflection, I find that it is plausible. Mr. Basdeo Sr. was not a party to the OCJ proceeding. He was the subject of a restraining order. The restriction on his contact with JIB formed part of access orders. He therefore would not have known about the court orders unless Mr. Basdeo brought them to his attention. Mr. Basdeo may have refrained from doing so. He may not have wanted his father to know that he had consented to no-contact orders, since that might have been interpreted to imply that he believed the allegations against his father.

[311] I am left with uncertainty about whether Mr. Basdeo Sr. was aware of the OCJ court orders, but nothing turns on that fact. Overall, Mr. Basdeo Sr. was not a credible witness. I have already rejected his testimony that he paid $10,000 to his son toward the purchase of the matrimonial home. For the reasons set out below, I find that he also gave false evidence before me about the OCL investigation into JAB’s allegation against him.

[312] Mr. Basdeo Sr. testified at trial that the OCL never contacted him. He claimed that no one ever spoke to him or gave him an opportunity to provide a response to JAB’s allegation of sexual abuse. While I do not know whether he was interviewed by the OCL during the first investigation in 2011-2012, the OCL’s 2015 report establishes that he was interviewed at that time. During his cross-examination, he was shown the passage in the 2015 OCL report that summarizes his interview with the investigator. He was asked whether it refreshed his memory. He denied that the investigator contacted him and asserted that the OCL report was “100% falsified”. That assertion is simply not believable.

[313] It goes without saying that Mr. Basdeo Sr.’s lack of credibility does not mean that he sexually abused his grandson. There is no admissible credible evidence to support that allegation. As mentioned previously, Ms. Jama’s testimony about the alleged sexual abuse is nothing more than rumour. It constitutes unreliable hearsay evidence that is inadmissible for the truth of its content.

[314] The 2015 OCL report also contains hearsay evidence, but I have found it to be admissible because of its reliability and necessity. It is reliable in so far as it is in the form of a sworn affidavit by a disinterested third party who is a clinical investigator. It is necessary to admit the report into evidence because it is the only available evidence from the OCL relating to the allegation of sexual abuse against Mr. Basdeo Sr. It is worth noting that Mr. Basdeo is to blame for the OCL’s inability to become directly involved in this proceeding because he frustrated the investigation that was supposed to take place in 2018.

[315] Although I have admitted the 2015 OCL report into evidence, I cannot draw from the limited information contained in it any conclusions about whether Mr. Basdeo Sr. touched JAB inappropriately. The report simply confirms that JAB made an allegation against his grandfather about an incident of inappropriate touching when he was young.

[316] Ms. Jama argues that I should draw an adverse inference against the Respondents and conclude that the alleged sexual abuse of JAB occurred. She submits that this inference should be based on Mr. Basdeo’s failure to cooperate with the most recent OCL investigation in 2018, his non-disclosure of the 2012 OCL report and the no-contact orders made by the OCJ in Mr. Basdeo’s family law proceeding with Ms. Ashareh. I will deal with each of these three submissions in turn.

[317] Mr. Basdeo’s lack of cooperation with the OCL intake process in 2018 resulted in premature closure of the OCL’s file and deprived this court of the results of an investigation. His conduct, in that regard, cannot be condoned. However, I am not prepared to infer from his failure to cooperate that he was deliberately attempting to impede the OCL’s investigation in order to conceal evidence of his father’s alleged sexual misconduct. His life was in turmoil in late 2017 and early 2018. He was abusing marijuana (which was then illegal) and lost his job as a result. I accept his explanation that this is why he did not return the OCL’s calls and did not complete the intake forms to facilitate an investigation. His testimony on that point is consistent with the preponderance of the evidence. I am not excusing his lack of cooperation, but the evidence does not support an inference that he failed to cooperate with the OCL because he was trying to shield his father from investigation.

[318] I have given serious consideration to the fact that the OCJ made no-contact orders relating to JIB and Mr. Basdeo Sr. in the context of the family law proceeding between Mr. Basdeo and Ms. Ashereh. Court orders that are not appealed must be presumed to be correct. This means I must presume that the OCJ correctly determined that it was not in JIB’s best interests to have ongoing contact with Mr. Basdeo Sr. However, given that the orders were made on consent, I am left with questions about whether any evidence was adduced to support the need for the no-contact restriction. The OCJ may have simply granted the no-contact order because Mr. Basdeo did not object to it.

[319] Even if my interpretation of the final OCJ no-contact order is wrong and it was not made on consent, I cannot presume to know the basis of the OCJ’s finding without reading the reasons underlying the order. Ms. Jama is effectively asking me to infer that the OCJ accepted JAB’s allegation of sexual abuse and concluded that JIB might be at risk of similar victimization. That is certainly a possibility, but there are myriad other equally plausible reasons why the OCJ could have concluded that it was in JIB’s best interest not to have contact with Mr. Basdeo Sr.

[320] For example, JIB may have been aware of his older brother’s allegation against their grandfather. In those circumstances, the OCJ could have concluded that the no-contact order was required to minimize a risk of emotional harm that JIB might suffer if he was exposed to the alleged perpetrator (e.g., JIB might be extremely anxious and fearful of Mr. Basdeo Sr., or he might be hurt by his father’s apparent lack of concern for his safety). The OCJ may have concluded that JIB might be disinclined to disclose any future incidents of inappropriate touching (by anyone) if he felt that JAB’s disclosure to their mother had been dismissed. JIB may even have expressed a view (to the OCL) that he did not want to see his grandfather, if not out of fear, then out of loyalty to his brother. If JAB had decided to cut ties with the grandfather, then having ongoing contact between JIB and the grandfather could place JIB in a conflicted position that might damage his fraternal relationship with JAB. This could also have been the basis upon which the OCJ concluded that a no-contact order was in JIB’s best interests.

[321] There are endless scenarios that could have informed the OCJ’s decision to issue the no-contact order, even if it was not consent. The scenario envisaged by Ms. Jama – namely that the OCJ thought JIB was at risk of sexual victimization by his paternal grandfather – is no more probable than any of the other hypothetical examples that I have outlined above.

[322] Mr. Basdeo’s failure to disclose the 2012 OCL report is troubling because it deprives the court of relevant evidence. I infer from his nondisclosure that the missing report likely contains information and recommendations that are unsupportive of his position that there was no basis to restrict his father’s contact with JIB. I am not, however, prepared to go so far as to infer that the first OCL investigator believed JAB’s historical allegation against Mr. Basdeo Sr., much less that the alleged inappropriate touching of JAB in fact occurred. The allegation of child sexual abuse is so serious that a finding cannot be made based solely on an adverse inference and in the absence of any evidence.

[323] Ms. Jama asks me to draw an adverse inference against Mr. Basdeo because he did not disclose the 2012 OCL report, but an adverse inference could just as readily be drawn against her for failing to call a witness to provide credible evidence relating to the allegation. I did not have the benefit of hearing directly from JAB or his mother. In these circumstances, I can make no finding one way or another about JAB’s allegation of historical sexual abuse by his grandfather.

[324] Consequently, there is no basis upon which to order no contact between Mr. Basdeo Sr. and J. While I can appreciate Ms. Jama’s concerns, given the alarming rumours she has heard, without proof of the alleged child sexual abuse on a balance of probabilities, such an order would not be justified.

[325] It is in J’s best interests to have relationships with her extended family members, unless there is evidence establishing that such a relationship might result in harm to her. Preventing her from having any contact with her paternal grandfather, absent proof that the grandfather committed the alleged historical sexual assault on JAB, would not be consistent with her best interests because it would prevent Mr. Basdeo from including J in all family gatherings where his father is present.

[326] Moreover, or the past two and a half years, Mr. Basdeo’s visits with J have taken place in public settings in order to avoid contact with his father, with whom he shares a two-bedroom apartment. It is not in J’s best interest for this pattern to continue. Public settings are not conducive to the development of a close father-daughter relationship. J needs to have some quiet time at home with her father. She needs her father to partake in her regular daily routines, such as meal preparation, homework, reading, teeth-brushing and bedtime, rather than simply take her on outings. Considering that Mr. Basdeo lives with his father, the restriction on Mr. Basdeo Sr.’s contact with J is impeding the growth and development of J’s relationship with her father. It is not in her best interests for this pattern to continue.

[327] For all these reasons, I will not make a final order that Mr. Basdeo Sr. cannot be present or nearby when Mr. Basdeo has J in his care. However, I am concerned that Mr. Basdeo Sr. lied about his lack of involvement in the OCL investigation relating to JIB. I am also concerned that Mr. Basdeo selectively disclosed only the 2015 OCL report and did not produce the 2012 OCL report. I infer that they are concealing something adverse to their interests. I am therefore left uneasy and uncertain about J’s well-being if she were to be left alone in her grandfather’s care.

[328] I have an obligation to make orders that minimize any risk of harm to J. While I recognize that there is no concrete risk that I can specifically identify, Mr. Basdeo is ultimately responsible for my inability to make conclusive findings. He should not benefit from his failure to disclose the 2012 OCL report and failure to cooperate with the OCL intake process in 2018 by being permitted to rely on the absence of investigative findings supporting Ms. Jama’s concerns.

[329] Consequently, although I will not make the no-contact order requested by Ms. Jama, I will order, as a condition of Mr. Basdeo’s access, that he is not to leave J alone with Mr. Basdeo Sr. at any time. This order is required to minimize any risk to her safety and well-being, but it will permit her to spend time in her father’s home, get to know her paternal grandfather and participate in family gatherings with extended family members, which is in her best interest.

[330] I recognize that Mr. Basdeo has engaged in blameworthy conduct throughout this proceeding. He has not been in full compliance with previous court orders (related to financial and income disclosure and to child support). He gave testimony at trial that I found to be untruthful. I am nevertheless confident that he will obey the order not to leave J alone with his father. His dishonesty and his dis-obeyance of court orders has principally been related to financial issues. Clearly, he cannot be trusted when it comes to money. However, I trust that, when it comes to his daughter, he has her best interests at heart.

[331] I believe that Mr. Basdeo would not knowingly do anything to jeopardize J’s wellbeing. Moreover, I trust that he will not do anything to jeopardize his parenting time and relationship with her. He has demonstrated his trustworthiness in this regard by consistently obeying the temporary order to avoid any contact between his father and J, since October 2017, even though he did not believe the order was warranted.

[332] Ms. Jama also requested orders that Mr. Basdeo be present throughout his parenting time and that he not leave J in anyone else’s care without first obtaining her written consent. These orders are not necessary to ensure J’s well being. They would impose unreasonable restrictions on Mr. Basdeo’s parenting that are not required to promote J’s best interest. He should, for example, be free to leave J with his mother for a short time while he attends to some chores or errands. It is simply not practical or reasonable to insist that he first obtain Ms. Jama’s written consent to do so.

[333] Provided that he does not leave J in Mr. Basdeo Sr.’s care, Mr. Basdeo shall be at liberty to make appropriate short-term (up to two hours) child care arrangements for J during his parenting time, without having to seek Ms. Jama’s approval. Given how eager he is to spend more time with J, I anticipate that he will, in any event, minimize time spent away from her on his parenting weekends.

[334] If circumstances arise where Mr. Basdeo will not be available to care for J for more than two consecutive hours, or if he must miss an entire visit with J, then J shall remain with Ms. Jama rather than being placed in the care of a third party for an extended period. Reasonable notice must be provided to Ms. Jama.

[335] I will not order Mr. Basdeo to furnish Ms. Jama with photographic evidence of his apartment. I find no basis to impose such a condition on him. Nor will I require him to obtain an apartment with a separate bedroom for J. He is only seeking access on alternating weekends. To require him to move to a larger (three-bedroom) apartment or to live alone in a two-bedroom apartment in order to provide J with her own bedroom twice a month is unreasonable and unnecessary. Having her own bed in his bedroom is sufficient to safeguard her safety and wellbeing.

Additional Conditions

[336] In addition to those already discussed above, Ms. Jama is also seeking orders imposing the following conditions on Mr. Basdeo’s access:

a) That he shall immediately advise her of any change of address.

b) If he lives with anyone other than Mr. Basdeo Sr., he shall provide Ms. Jama with the same information with respect to the individual that would be required of him under a family law Form 35.1 within 30 days of same occurring.

[337] The first of these orders will be granted and will be made reciprocal. Notwithstanding that Ms. Jama has sole custody of J, she and Mr. Basdeo will be required to coordinate and co-parent for the duration of J’s childhood. In these circumstances, it is clearly in J’s best interests for both parents to know where the other parent resides and to have updated contact information for the other parent at all times. This applies not only to their residential addresses but also to telephone and email contact information.

[338] There is no basis to impose the second condition requested above. Mr. Basdeo is at liberty to re-partner and cohabit with a new spouse or with roommates, without requiring Ms. Jama to vet his choice of partner or roommate.

Parties’ Proposed Parenting Schedules

[339] The final issue for me to determine is the appropriate parenting schedule for Mr. Basdeo’s access visits with J.

[340] Ms. Jama proposes that his current parenting time be increased in accordance with the following graduated schedule (which was designed to commence in February 2020):

a) His parenting time on alternating Sundays shall increase from four hours to eight hours, commencing at 10:00 a.m. and going until 6:00 p.m.;

b) If no issues arise after two months of this increased parenting time, then the time would further increase to add the Saturday prior to the Sunday, with both days commencing at 10:00 a.m. and going until 6:00 p.m., such that J would be in Mr. Basdeo’s care for two consecutive days on