COURT FILE NO.: FS-19-96411-00
DATE: 2021 03 22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Reji Raveendran Sarala (a.k.a. Reji R.S.)
Applicant
v.
Vinod Kumar Velappan (a.k.a. Vinod Kumar V.)
Respondent
BEFORE: Bloom, J.
COUNSEL: Archana Medhekar, counsel for the Applicant
Shawn Philbert, counsel for the Respondent
HEARD: March 8, 2021
E N D O R S E M E N T
I. INTRODUCTION
[1] The Applicant and Respondent have brought cross-motions before me. The Applicant seeks an order for disclosure in accordance with the order of Justice Petersen of August 5, 2020, an interim order for exclusive possession of the matrimonial home located at 22 Arkwright Dr., Brampton, Ontario and its contents, an interim order for payment by the Respondent of the costs of the maintenance of the property, an order for leave to issue a certificate of pending litigation in respect of the property, an interim order for child support, and an interim order for spousal support. She seeks the imputation of income to the Respondent for the purposes of the support orders.
[2] The Respondent seeks an order for sale of the matrimonial home.
II. BACKGROUND FACTS
[3] The parties were married in India on September 12, 2003.
[4] Since 2011 the Applicant has suffered from a degenerative and progressive spinal condition which now causes her pain and impairs her mobility.
[5] After first immigrating to the United States, the parties immigrated to Canada in March of 2013 with their two children, their daughter, Vaishnavi Nair Reji born May 14, 2005, and their son, Amogh Shankar Vinod Nair born March 16, 2007.
[6] On November 27, 2014 they purchased the matrimonial home in both of their names. On December 28, 2016 title was transferred to the sole name of the Respondent.
[7] The parties now live separately in the home; the children also reside there with the parties.
[8] On August 5, 2020 Justice Petersen of this court ordered on consent of the parties that by September 15, 2020 the Respondent was to respond in writing to the Applicant’s request for information by disclosing the requested documents and information and/or serving an affidavit setting out the reasons why the documents and information were not available and the efforts made to obtain them.
III. ANALYSIS
A. Disclosure
[9] The Applicant argues that disclosure by the Respondent in accordance with Justice Petersen’s order of August 5, 2020 has not been completed. Specifically she has summarized her position in Exhibit G to her affidavit of September 30, 2020.
[10] The Respondent argues that he has provided all of the disclosure requested by the Applicant.
[11] Pursuant to FLR 1(7.2) I order that the Respondent within 3 weeks of release of this endorsement provide to the Applicant an affidavit setting out the date and manner in which he has provided the disclosure stated by the Applicant in her affidavit of September 30, 2020 not to have been provided by him, and any such disclosure which he concedes has not been so provided.
B. Claims in Relation to the Matrimonial Home
[12] The Respondent contends that the parties cannot afford financially to maintain the matrimonial home; that he cannot personally afford to do so; that he owns it; and that he is entitled to an order for its sale. Further, he argues that he and the Applicant can obtain accommodation in the same neighbourhood as the home so as not to require a change of neighbourhood for the children.
[13] The Applicant argues that the home was purchased in the joint names of the parties; that she was improperly pressured into transferring her interest in the property to the Respondent; that her illness prevents her from being able to find alternative accommodation at this point; and that the son of the parties will attend a school in the neighbourhood of the home when the governmental rules regarding the pandemic so permit. She seeks leave to issue a certificate of pending litigation based on her claim to an interest in the home. That claim includes allegations attacking the transfer as invalid and allegations that she has a constructive or resulting trust in the home. Additionally, she asks this Court to order on an interim basis that she have exclusive possession of the matrimonial home and its contents, and that the Respondent pay the costs of maintaining the home.
[14] It is clear to me that the Applicant suffers from a debilitating spinal condition. The Respondent has not adduced meaningful evidence to prove otherwise. The Applicant in her current condition and during the Covid-19 pandemic cannot quickly find alternative accommodation. Her current income is admitted by her to be $1194.82 per month, which comes from the governmental child tax benefit.
[15] Much of the disclosure I have ordered may bear upon the financial position of the Respondent. His evidence is that he is in a monthly deficit position of $3558.72 despite his yearly income of $101,971.44.
[16] Section 24 of the Family Law Act governs the making of an interim order for exclusive possession of the matrimonial home and its contents. Subsection 3 (c) and (e) require that I consider the financial position of the parties and the availability of other suitable and affordable accommodation.
[17] In the current circumstances, given her illness, the pandemic, and her financial position, it is obvious that the Applicant cannot quickly find alternative accommodation. Moreover, until the Respondent has made full financial disclosure, his financial position is unclear.
[18] Accordingly, I make an interim order for exclusive possession of the matrimonial home and its contents in favour of the Applicant, and an interim order that the Respondent pay for the repair, maintenance, and upkeep of the home. These orders shall remain in effect until June 30, 2021. They are subject to a motion for renewal at that time. During the intervening period the financial position of the Respondent will be clarified by disclosure; the Applicant can consider alternative accommodation; and the school year for the children will come to an end so that when they return to school in the fall, if their accommodation has changed and there is in person learning, they can start classes with minimized dislocation.
[19] The matrimonial home was purchased on November 27, 2014 in the joint names of the parties for $550,000 with a mortgage in favour of ICIC. It was transferred into the Respondent’s name on December 28, 2016. The Applicant received no consideration for the transfer. The Respondent relies on evidence that she received independent legal advice. She has given evidence that she was under emotional pressure from her husband to make the transfer.
[20] I am satisfied that the Applicant has commenced a proceeding in which an interest in land is in question; she is attempting to set aside the transfer of the matrimonial home to the Respondent based, inter alia, on absence of consideration and improper pressure from the Respondent to make the transfer.
[21] The Respondent argues that the Applicant’s right to equalization is an appropriate substitute for a certificate of pending litigation. I do not agree. At this moment when the financial position of the Respondent is unclear and given that a right to equalization confers no interest in property on the Applicant, it is just that the Applicant be allowed to protect her position in respect of her claim to an interest in the matrimonial home by the registration of a certificate of pending litigation. I, therefore, order that a certificate of pending litigation be issued in respect of her claim regarding an interest in the home.
[22] Having made an order for exclusive possession of the matrimonial home, I will not undermine it by ordering sale of the home at this time, whether under the Partition Act or Family Law Act. The considerations which support the order for exclusive possession also support the denial of an order for sale. Accordingly, I dismiss the Respondent’s motion for an order for sale of the home; the dismissal is without prejudice to his renewing the motion under changed circumstances, such as a end to an order for exclusive possession in favour of the Applicant.
C. Child Support and Spousal Support
[23] The Applicant seeks an interim order for child support and an interim order for spousal support, both without prejudice to her claims for retroactive support. She also argues that income should be imputed to the Respondent for purposes of making the interim support orders.
[24] At this early stage of the proceeding before disclosure is completed I am not prepared to impute income. The incomplete record before me is not sufficient to impute income.
[25] Since claims for child and spousal support are made in the Amended Application under the Divorce Act, I shall consider the claims for the interim orders under that act and under the Federal Child Support Guidelines.
[26] The Applicant contends that the parenting arrangements for the children invoke s. 9 of the Guidelines. The Applicant concedes that the cost of the repair, maintenance, and upkeep of the matrimonial home is approximately $ 2600 per month.
[27] Based on the Applicant’s yearly income of $14,337.84 calculated from her monthly income of $1194.82 and the Respondent’s yearly income of $101,971.44, and applying s. 9 of the Guidelines, I order on an interim basis that the Respondent pay child support monthly to the Applicant of $1350.00, commencing March 26, 2021 and on the 26th of each month thereafter. A support deduction order is to issue; and the parties are to cooperate with the appropriate court officials in completing the necessary documentation for that order. That order is to be enforced by the Director of the Family Responsibility Office, unless the order is withdrawn from his office; I make this order under s. 9 (1) of the Family Responsibility and Support Arrears Enforcement Act, 1996.
[28] The Applicant concedes that the amount of any interim order for spousal support may be reduced by the amount of the repair, maintenance, and upkeep of the matrimonial home, if the Respondent is ordered to pay those amounts, as I have so ordered. Accordingly, since that sum is conceded by the Applicant to be approximately $2600, I make no interim order for spousal support at this time; if the amount to be paid by the Respondent for repair, maintenance, and upkeep of the matrimonial home changes, the Applicant is at liberty to move for an interim order for spousal support.
IV. COSTS
[29] I shall receive written costs submissions of no more than 3 pages, excluding a bill of costs. The Applicant shall serve and file her submissions within 14 days from release of this endorsement. The Respondent shall serve and file his submissions within 14 days from service of the Applicant’s submissions; there shall be no reply.
Bloom, J.
DATE: March 22, 2021
COURT FILE NO.: FS-19-96411-00
DATE: 2021 03 22
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Reji Raveendran Sarala (a.k.a. Reji R.S.)
Applicant
v.
Vinod Kumar Velappan (a.k.a. Vinod Kumar V.) Respondent
BEFORE: Bloom, J.
COUNSEL: Archana Medhekar, counsel for the Applicant
Shawn Philbert, counsel for the Respondent
ENDORSEMENT
Bloom, J.
DATE: March 22, 2021