Gulamali v. Gulamali, 2021 ONSC 4787

NEWMARKET COURT FILE NO.: FC-20-1336-00

DATE: July 7, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Shanoor Gulamali

Applicant

– AND –

Ismail Gulamali

Respondent

– AND –

David Goodman

Added Party (this motion only)

Andrew Feldstein, Counsel for the Applicant

Deborah Squires, Counsel for the Respondent

Simon Morris, Counsel for the Added Party

HEARD: May 12, 2021

RULING ON MOTIONS

JARVIS J.

[1] There are two motions before the court, one a motion for summary judgment by the respondent (“the husband”) declaring that the parties separated on June 30, 2008 and that the parties’ habitual residence then was in Kenya and the other a temporary (or interim) support and interim disbursements motion by the applicant (“the wife”). The wife claims that the parties separated on or about December 20, 2019. She also seeks to question a non-party (David Goodman).

[2] When the parties’ motions were originally scheduled to be heard neither had complied with the Practice Direction dealing with restrictions on documents or obtaining leave beforehand from the Court to exceed page limits. In endorsements made on February 23, 24 and April 1, 2021 this Court gave directions with respect to the parties’ materials and limits on argument. In some cases, these directions led to affidavits being revised.

[3] The following evidence was filed:

(a) Affidavits of the wife sworn March 25, 2021, April 8 and 9, 2021;

(b) Four affidavits of Paula White sworn February 2, February 18 and April 9, 2021 (two on that date).[^1] Ms. White is an accredited business valuator who was engaged by the wife. These affidavits were sworn in support of the wife’s motion and in reply to affidavits from the husband and an accountant (Peter Kariuki) practicing in Kenya dealing with the husband’s business interests;

(c) Affidavits of the husband sworn February 12, March 12 and April 1, 2021;

(d) An affidavit from Mr. Kariuki sworn February 12, 2021;

(e) An affidavit from Shams Kara sworn March 8, 2021. Mr. Kara is a family friend of the parties;

(f) An affidavit from Sufia Gulamali sworn March 9, 2021. Ms. Gulamali is a daughter of the husband from his first marriage;

(g) An affidavit from Nazan Syed sworn March 9, 2021. Ms. Syed is the husband’s former spouse;

(h) An affidavit from Naushad Gulamali sworn March 9, 2021. Mr. Gulamali is the husband’s son from his first marriage;

(i) An affidavit from Faried Ismail sworn March 10, 2021. Mr. Ismail is the best friend of the husband’s uncle;

(j) An affidavit from Geno Meharchand sworn March 10, 2021. Mr. Meharchand is a close friend of the husband;

(k) An affidavit of Farida Jivraj sworn March 12, 2021. Ms. Jivraj is the husband’s aunt;

(l) An affidavit of Peter Biasutto sworn March 15, 2021. Mr Biasutto is a friend and business associate of the husband;

(m) An affidavit from David Goodman sworn April 1, 2021. Mr. Goodman is an Ontario lawyer and describes himself as having been the Gulamali family lawyer for more than thirty years.

[4] Exhibits accompanied the parties’ affidavits and those of their advisers: none accompanied the affidavits of the husband’s first family, friends and business associate. Facta were filed and referenced case authorities relevant to the issues before the Court.

Relevant Background

[5] The following evidence, unchallenged facts and procedural events are relevant;

(a) The parties were married in Ontario on December 23, 1989. The husband had been previously married: there are four adult children of that relationship. There are two adult children of the parties’ marriage (ages 28 and 26 years old). The husband also has another child (11 years old) from an extra-marital relationship;

(b) In the early 2000s the parties moved as a family to Kenya, the husband’s home country of which he is also a citizen and where he had business interests, but they dispute the date when they moved. The husband says that the family moved to Mombasa “in or around 2000” whereas the wife claims that the husband had travelled to Kenya to deal with business matters before their move as a family there in 2004.[^2] The matrimonial home in Ontario owned by the wife was retained;

(c) The wife is a teacher by training. She worked in that profession before the parties married in Ontario, took time off to care for the parties’ children after their birth here and worked periodically afterwards in full-time and part-time capacities as a teacher in Ontario (2002-2003) and Kenya (2003-2007) during the marriage. Starting in 2016 she worked as a part-time librarian at a local children’s school in Ontario earning about $30,000 a year until that employment ended in early 2021 as a result of a shortage of work. Until shortly after December 2019 the wife claims that the husband regularly provided her with about $7,800 a month through an Ontario corporation, 1029629 Ontario Inc (hereafter “102”), that was operated by him and his son from his first marriage but whose common shares were owned by her. 102 owned three tenanted plazas which the husband estimated were worth close to, if not more than, $10,000,000. Another $5,000 monthly was provided to the wife by Mr. Goodman. The husband also paid other expenses for the wife and the parties’ adult daughter;

(d) The husband is a Chartered Accountant. He describes himself as the Chief Financial Officer of a registered real estate agent company in Kenya. In his financial statement sworn October 23, 2020 the husband swore that his 2018 income was $319,781.94 and his 2019 income was $125,503.20. His financial statement sworn February 12, 2021 relies on calculations made by Mr. Kariuki and those indicate a 2019 pre-tax income of $410,755 (CAD). Ms. White, the chartered business valuator and income analyst retained by the wife, calculated the husband’s CAD equivalent income to be $838,000;

(e) The wife started her Application on September 25, 2020;

(f) An urgent Case Conference was held by Himel J. on October 8, 2020, and an Order made, one of the terms of which was that the husband provide his consent to the wife arranging a line of credit to be secured against title to the matrimonial home in the amount of $100,000;

(g) The husband delivered his Answer and Claim on October 23, 2020;

(h) Excluding a value for her interest in 102 and a teacher’s pension, the wife’s net family property is $1,346,717.23 as disclosed in her May 4, 2021 financial statement. Much of this value comprises the matrimonial home estimated as being worth $1,281,000 on December 20, 2019. The value of the wife’s interest in 102 cannot be determined at this time because until early 2020 it was operated by the husband and his son. More about this later;

(i) In his financial statement sworn on February 12, 2021 the husband disclosed a net family property of $6,614,667 on June 30, 2008 and $16,349,405 as of February 12, 2021. In his affidavit sworn April 1, 2021 the husband swore that his net family property was $7,488,405 in 2019 (there was no explanation for the $8,861,000 increase in net worth between 2019 and 2021). In response to the wife’s production of an undated note that the husband acknowledges was handwritten by him “at some point after 2008”[^3] and which disclosed listed realty holdings in Kenya totalling $42,000,000 CAD, the husband said that a number of properties in which he had invested were “scams or taken over by squatters” and that the Kenya Shilling had “devalued by 50% since the list was prepared”^4;

(j) The husband denies that he ever sent money to the wife. She says that the husband arranged for her to be paid $7,800 monthly through 102 for her personal expenses and another $5,000 through Mr. Goodman for the parties’ daughter (who has some mental health challenges). This was confirmed by the husband who says that the money came from private lenders “as we would mortgage and borrow repeatedly to pay for the various deals that built up the family assets and to pay [the wife] the monthly amount (plus, from time to time, large payments to CRA on her behalf)”[^5];

(k) There is no dispute that the event that triggered the wife retaining counsel and declaring the parties’ marriage ended was the husband’s proposal to bring his 10-year-old daughter to Canada in December 2019 to visit his mother and to reside with the child in the matrimonial home. The husband seemed surprised by the wife’s reaction and made alternate accommodation arrangements. The parties have not resided together since then;

(l) The evidence is unchallenged that the financial arrangements between the parties involving payments to the wife and the parties’ daughter, their joint bank account and joint credit cards (two) ended after the wife’s lawyer wrote to the husband in late December 2019 to advise about her intention to separate. These decisions were made by the husband.

[6] The contents of most of the affidavits filed by the husband from his first family, friends and a business associate offend the Family Law Rules in that they are either not based on personal knowledge or the source of that information is not disclosed. It is a reasonable inference that the husband is the undisclosed source of many of the statements. For example,

(a) Nazan Syed, the husband’s first spouse, said that “To my knowledge [the parties] have led separate lives for a number of years I believe since 2011” and that whenever the husband “came to visit the kids at their home, he always came by himself and when they visited him at his home, she was not often there”. No direct knowledge: no source of information disclosed;

(b) Naushad Gulamali said that the parties did not sleep together when his father “visited” from Kenya. He purported to detail living arrangements such as showering and meal-eating. This witness never resided in the matrimonial home: there is no evidence that he ever spent time there and the source of his information was not disclosed;

(c) Sameena Gulamali, a daughter from the husband’s first marriage, said that the best person to ask about the parties’ living arrangements in the matrimonial home would be the parties’ son Irfan but that her father did not want to involve him in these proceedings. She said, without disclosing the basis of her knowledge, that she knew that the parties had been separated for ‘many many years” and that they had been sleeping in separate bedrooms “for 7 or 8 years now”. She said that the wife never picked up or drove the husband from and to the airport. How she knew this information was not disclosed;

(d) Sufia Gulamali, a daughter from the husband’s first marriage and about whom there is no evidence that she ever resided with the parties in the matrimonial home, said that after a few years of “visits” by her father she noticed that the parties did not share bedrooms and that the wife was not often present. Ms. Gulamali added that in “2013 my father told me about my youngest sister Samira who was 5 at the time. I asked about Shanoor and he stated that he had offered her a divorce. Their interactions henceforth became more distant and less friendly”. The source of this information about the nature and quality of the parties’ interactions is obviously the husband;

(e) Faried Ismail, a best friend of the husband’s uncle, repeated statements made to him by the husband about the nature of the parties’ relationship, his “new family in Kenya” and that he had not seen the wife with the husband;

(f) Farida Jiraj, the husband’s aunt, said that for the first couple of years after the wife and children returned from Kenya in 2008 the parties and their children socialized with them but that “there came a point” (that date never mentioned) when the wife “started keeping her distance and did not accompany Ismail and the kids on those visits”. She “knew” that the parties “were no longer” together because the husband told her that he no longer shared a bedroom with the wife;

(g) Gino Meharchand, the husband’s close friend, said that the wife did not socialize with him and the husband since 2011 and that he had met her only once when he picked up the husband from the matrimonial home. “It has always been my understanding that Ismail was completely separated from Shanoor for the last eight years or more and that he had made a life with [his new partner] in Kenya and considered her his wife and life partner”;

(h) Mr. Biasuto is an active business associate of the husband, introduced to him by David Goodman. This witness said that he had never met the wife and that the husband “confirmed to him that he lives his own life and does not know [the wife’s] friends” And “[I]t is my understanding that [the] family in Africa is his family”. It was Mr. Biasuto who acquired two of 102’s properties through Power of Sale proceedings after December 2019 through a corporation, which transactions are being challenged by the wife in a separate civil case;

(i) Shams Kara said that after the wife and children returned from Kenya she and her family socialized with the husband and the parties’ children but not the wife. She thought that the parties “lived separate lives” although she often visited the matrimonial home for meals with the husband and the parties’ son, the frequency and dates of which were not disclosed. According to the husband, the parties attended the wedding of Ms. Kara’s son “in the past few years”: he says that only he was invited but he chose to bring the wife with him as a courtesy to her: Ms. Kara never mentioned this in her affidavit;

(j) Mr. Goodman had no knowledge when the parties separated except that he thought they had been separated for many years before 2015. The September 1, 2015 date referenced in the draft Separation Agreement he prepared was arbitrarily chosen (“I simply plugged in the date at that time…” without discussing it with either party).

[7] In response to this evidence the wife noted that despite the husband’s mother having her own three bedroom condominium, four other of his children owning their own homes (which the husband financially assisted them in acquiring) and other relatives and friends with whom he could reside, the husband chose to live in the matrimonial home with the wife and kept his personal belongings there until late 2019. This evidence is not challenged by any witness. Nor is the wife’s evidence challenged by the husband that he continues to financially support those members of his extended family who filed supporting affidavits. The husband only denied that the affiants were fearful of financial reprisal from him.

[8] The husband’s motion for summary judgment will be addressed first, followed by the wife’s support and interim disbursements motion.

Summary judgment

[9] A Summary Judgment Motion enables the Court to make an expeditious, less expensive and a proportionate disposition of one or more issues in a case, sometimes even the case itself. The overarching goal is a fair adjudicative process calibrated to the circumstances of each case although summary judgment may not always be appropriate: it is certainly not imperative in every case. FLR 16 sets out the governing framework, the relevant provisions of which are the following;

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (l) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (l).

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6. l) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

ORAL EVIDENCE (MINI-TRIAL)

(6.2) The court may, for the purposes of exercising any of the powers set out in subrule (6.1), order that oral evidence be presented by one or more parties, with or without time limits on its presentation. O. Reg. 69/15, s. 5 (1).

ORDER GIVING DIRECTIONS

(9) If the court does not make a final order, or makes an order for a trial of an issue, the court may, in addition to exercising a power listed in subrule 1(7.2),

(a) specify what facts are not in dispute, state the issues and give directions about how and when the case will go to trial (in which case the order governs how the trial proceeds, unless the trial judge orders otherwise);

(b) give directions; and

(c) impose conditions (for example, require a party to pay money into court as security, or limit a party’s pretrial disclosure). O. Reg. 114/99, r. 16 (9); O. Reg. 69/15, s. 5 (2, 3).

[10] As stated by the Supreme Court of Canada in Hyrniak v. Maudlin:[^6]

To succeed on a summary judgment motion, an applicant must prove that there is no genuine issue for trial on a balance of probabilities. “No genuine issue for trial” has been equated with “no chance of success” and “plain and obvious that the action cannot succeed”.

[11] A two-step analysis is required. The judge must first determine if there is a genuine issue requiring a trial on the evidence without using the additional fact-finding powers set out in FLR 16(6.1). If, after this initial determination, there remains a genuine issue for trial, the judge may resort to the additional fact-finding powers to decide if a trial is required. These powers involve the weighing of evidence, evaluating credibility, drawing inferences, and possibly receiving oral evidence on the motion. The use of these powers is discretionary. A party is obliged to put forward their best case.

[12] The following evidence, and findings of fact, are relevant to determining the parties’ valuation date:

(a) The parties’ evidence is, and I accept as fact, that while the parties were residing in Kenya the husband began a relationship with another woman. They dispute whether the husband asked for a divorce then, the wife saying (and the husband disputing) that he insisted on a polygamous relationship, an arrangement permitted by Islamic practice in countries like Kenya;

(b) The wife and the children returned to the family home in Ontario. She did not wish to participate in a polygamous relationship. This is corroborated by the husband’s son and daughter respectively, Naushad and Sufia Gulamali;

(c) The husband returned to Ontario after the wife and children left Kenya. They occupied the master bedroom in the matrimonial home. Shortly after the husband told the wife that he had fathered a child in Kenya and wanted a divorce, she tried to commit suicide on May 23, 2009 in the garage. The husband found her and afterwards cared for her for about four weeks after her release from the hospital until he returned to Kenya. The hospital Consultation Report recorded that the wife “had been upset about her husband leaving for long periods to Kenya for his job and was fearful that he might meet someone else”. In his Answer the husband pleaded that the suicide attempt occurred in 2014 after he told the wife that he wanted to have a Separation Agreement drafted, a position he later corrected;

(d) The husband returned to the matrimonial home from Kenya three to four times a year until December 2019 and kept his personal belongings there. The husband said that he “typically” stayed three to four weeks each time. His 2016-2018 income tax returns declared his residence in Ontario for each of those years (for twelve months in 2016, for example). Until 2011 the parties shared the master bedroom: the husband slept in a separate bedroom afterwards;

(e) In 2012 one of the husband’s daughters from his prior marriage was married in Bermuda. The parties shared the same sleeping quarters;

(f) In a Client Account joint application signed by the husband and Mr. Goodman on March 19, 2014 to open an investment account with a major Canadian investment firm the husband listed the matrimonial home as his primary residential address, Canada as his Country of Residence, his status as “Married” (despite there being a box for “Separated’), the wife as his spouse, him self-employed (with 102 noted as his employer) and him having an estimated net worth of $10,000,000 accumulated by investing in real estate;

(g) The parties vacationed with their children in the Dominican Republic in 2015, although no date is given for the pictures accompanying the wife’s March 25, 2021 affidavit (Exhibit C). The parties shared the same sleeping quarters;

(h) The parties celebrated the husband’s May 2015 birthday with family (Exhibit “E” to the wife’s March 25, 2021 affidavit). The wife says this was a regular event;

(i) In 2015 Mr. Goodman prepared a draft Separation Agreement at the husband’s request. While the husband said that the wife asked him to contact Mr. Goodman, the wife had no dealings with him. I accept her evidence and that of Mr. Goodman in this regard. The date of separation was noted as being September 1, 2015 in the draft. No agreement was afterwards negotiated or signed. The parties never consulted or otherwise engaged family law counsel afterwards;

(j) The parties continued to file their income tax returns declaring their status as “Married” until 2018. In his 2016-2018 returns the husband confirmed the matrimonial home as his address, his province of residence on December 31 as being Ontario, and his Marital status as “Married” with the wife named as his spouse. In Part B dealing with various tax credits which he claimed the husband declared (as noted in (d) above) that his principal place of residence for twelve months in 2016 was the matrimonial home. Under “Family Information” dealing with Goods and Services Tax Credits the Marital status code records “Married” for each of 2016 to 2018. Part C dealing with “Involuntary separation” requiring the name of the taxpayer’s spouse or common-law partner is left blank in the husband’s 2016 return. The husband’s 2018 return is dated April 23, 2019;

(k) The parties attended the 2017 wedding of a son of the husband’s first marriage, although the husband said that the wife didn’t wish to attend but later relented, the parties sitting at different tables. Other wedding events involved the children of family friends between late June and late summer 2019. The Kara wedding (see paragraph 6(i) above) was one; the other was the Sheik wedding, the invitation to which was addressed to both parties[^7];

(l) In a series of text messages dated in April, May and September 2019 the parties communicated about groceries, the husband’s travel and return to Ontario and financial matters. The husband acknowledged that when he returned to Canada and the children were still living in the matrimonial home “[i]t was not uncommon for me to coordinate grocery shopping with Shanoor. It was not intimate husband and wife function but simply common courtesy…”.[^8] In his email dated September 24, 2019 the husband wrote “I really miss u shanoor. And I love u. Always have and always will”[^9];

(m) The parties continued to share a joint bank account and credit cards (for which the husband either forwarded the funds needed to the wife for payment or directly paid himself) until early 2020;

(n) The wife continued to be paid through 102 and by Mr Goodman until early 2020;

(o) In his 2019 income tax return dated September 28, 2020, the husband marked “No” in the box dealing with Foreign property. He was asked to declare whether he owned specified foreign property whose total costs amounted at any time in 2019 to more than $100,000. The husband’s answer is untrue.

Discussion (Valuation Date)

[13] Implicit in the parties’ seeking the Court’s declaration of their separation date is a finding about which date is to be preferred as their valuation date. Both have focussed on “separation” date (which is the term used in their material) either conflating the term with, or analogizing, it with “valuation date” as defined by the Family Law Act (“the Act”).[^10] Two issues require determination: the date when the parties separated and the point in time when, as noted in s. 5(1) of the legislation, “there is no reasonable prospect that [the spouses] will resume cohabitation”. Most often there is no dispute about the choice of valuation date but where one arises it is invariably financially driven due to the consequences of the date selected. As Czutrin J. observed in Newton v. Newton[^11],

… extreme caution should be exercised in fixing a valuation date.

Parties may attempt to manipulate valuation dates to attempt to improve their financial position vis a vis a possible settlement or trial. (bolding added)

[14] Separation and valuation dates are not necessarily synonymous terms. This was made clear by the Ontario Court of Appeal in Oswell v. Oswell.[^12] In that case, the only issue in the appeal was the valuation date fixed by the trial judge: the husband claimed that the valuation date should be August 1984 when he said that the parties separated even though they continued to live under the same roof afterwards whereas the wife contended that the date should be March 1988 when she was served with a petition for divorce. The choice of date materially impacted the amount of the equalization payment that the husband presumptively owed. After a careful review of the evidence, the trial judge selected an earlier January 1988 date as being the valuation date, a selection that the Court of Appeal observed was “somewhat arbitrary, but the Act contemplates arbitrary decisions”.[^13] Those decisions must, however, be supported by the evidence.[^14]

[15] A thoughtful and comprehensive review of the general principles and indicia of “living separate and apart”, cohabitation and determining a valuation date was made by Chappel J. in Al-Sajee v. Tawfic.[^15] In that case the parties disputed their date of separation: this impacted the determination of their net family properties, and support. The husband claimed a date about three and a half years earlier than the wife’s date. After a lengthy trial focussed on determining the parties’ valuation date in which Chappel J. thoroughly reviewed the parties’ evidence, assessed their credibility and selected the husband’s date, the Court concluded that despite evidence that the parties, among other things, had travelled together with their children internationally and occasionally spent overnights at the other’s residence there was no resumption of cohabitation having reconciliation as its primary purpose.

[16] Any determination of the parties’ valuation date must be mindful of what Chappel J. noted in Al-Sajee are “the unique realities of [the spousal] relationship, routines, social and other habits and practices and living arrangements over time…a global analysis and weighing of all factors is required”.[^16] The factors relevant to spouses “living separate and apart” are equally relevant to whether the parties are cohabiting in a relationship marked by a sharing living quarters, interpersonal conduct, the provision of domestic services, social interactions and activities and, perhaps more broadly, their economic unities.

[17] The first step in the Hyrniak analysis requires the wife to satisfy the Court that there is no chance that the husband cannot succeed in his choice of valuation date on a balance of probabilities. Given the evidence of the parties’ conduct involving the wife leaving Kenya in 2008 with the parties’ children and, afterwards, their pattern of cohabitation, lifestyles, financial dealings, and the evidence of the husband’s family and friends, this Court cannot conclude that the husband’s choice of valuation date is not a genuine issue for trial. Which means that the Court may consider the second step of the Hyrniak analysis and resort to its expanded powers pursuant to s. 16(6.1) of the FLR to determine whether a trial is required.

[18] Pertinent to this Court’s analysis is the Court’s assessment of the parties’ credibility and that of the deponents whose affidavits the husband filed. In my view, the wife’s evidence touching on the issue of the parties’ valuation date is preferable to the husband’s evidence. It is consistent, supported by third party documents (such as photographs, emails), some authored by the husband, and corroborated by a course of dealing by the husband that does not clearly and unequivocally demonstrate that the parties lived separate and apart after 2008 or that their cohabitation ended before December 20, 2019. To paraphrase Shakespeare, the husband protests too much.[^17] Taken at its highest the husband’s best evidence is disingenuous, manipulative, and tailored. While the evidence of his family, friends, business associate and lawyer demonstrate an often cool, sometimes unhappy relationship between the parties (not denied by the wife), their impartiality is suspect as is their reliability in parroting the husband’s description of the spousal relationship, often recounting activities of the parties which they never observed or whose provenance was never disclosed.

[19] The parties’ valuation date is December 20, 2019, and their last habitual residence Ontario for these reasons:

(a) While the husband sought to explain away the inconsistencies between his evidence and that of the wife about their conduct after 2008, the wife’s evidence is corroborated by documentary evidence consistent with the parties’ continued cohabitation until 2019;

(b) The evidence and the facts set out in paragraph 12 above;

(c) The husband is a Chartered Accountant. The information contained in his 2016 to 2018 income tax returns about how he regarded his marital status, whether he was separated, the name of his spouse, country of residence and income was either true, in which case his motion must fail, or it was false and he comes to this Court without clean hands. The husband did not disclose his substantial net worth in Kenya and filed a false Canadian tax return in 2019 dealing with his foreign property. If his evidence is to be believed the husband filed or caused to be filed tax returns in Canada in which he claimed, and received, certain benefits and which he knew contained materially false information. The husband is not a lay person;

(d) In his affidavit sworn April 1, 2021 the husband claimed that he declared his income earned in Kenya in his Kenyan tax return and his income earned in Canada in his Canadian return and was “technically a non-resident for tax purposes”. There is nothing “technical” about filing knowingly misleading tax or financial documents, or tax evasion, and while it is not this Court’s task to determine whether the husband’s conduct crossed the line, his evidence is, taken at its most charitable best, disingenuous. He acknowledged as much when in trying to explain why he wasn’t honest about marking his personal tax returns as “Separated” he “risked an investigation as to the discrepancy [i.e. between his and the wife’s return marking her status as “Married”] and he feared that investigation would trigger another suicide attempt.[^18] A taxpayer filing a Canadian tax return is required to report their global income. The Court does not believe the husband;

(e) Disingenuous too is the husband’s evidence that he “never sent Shanoor any money”.[^19] “Technically” that is correct. He created and was the mastermind behind 102, operated it without the wife’s meaningful involvement until after December 20, 2019 and arranged for the company to financially provide for his family and for Mr. Goodman to provide additional funds, all of which came from private mortgage advances which the husband, possibly with the involvement of Mr. Goodman, acknowledged that he negotiated and arranged based on the increasing value of 102’s realty portfolio or from net proceeds of the commercially-tenanted properties;

(f) The husband’s income declared to CRA ($5,236.52 in 2016, $5,136.48 in 2017, $5,125.60 in 2018 and $2,766.28 in 2019) is inconsistent with the evidence of Mr. Kariuki, whose evidence the husband adopted. He calculated the husband’s income to be $318,781.91 in 2018 and $125,503.20 in 2019. While this inconsistency and failure to comply with the Family Law Rules dealing with comprehensible financial statements may be more relevant to determining the support issues, it is noteworthy that whatever modest income that the husband may choose to admit Part 4C of his February 12, 2021 financial statement disclosed Bank accounts and savings in excess of $4,500,000 and gross assets of $16,349,405. The web is indeed tangled.

[20] The plain fact of the matter is that the husband has wanted it both ways since he began an extra-marital affair in 2007/2008: a family life in Kenya and continued cohabitation with the wife on his terms in Canada. He has tailored a legal position most favourable to his perceived financial interests. This is the kind of manipulation about which Czutrin J. cautioned in Newton. There was no separation and no interruption of the parties’ continued cohabitation until December 20, 2019, although the nature and rewarding qualities of that cohabitation changed over time.

[21] It also follows from the foregoing that Ontario was the last common habitual residence of the parties and so their property rights are governed by the law of Ontario pursuant to s. 15 of the Act.

Support

[22] The wife seeks significant financial relief and leave to question Mr. Goodman, specifically:

(a) Spousal support in the amount of $27,000.00 per month, effective February 1, 2021;

(b) Interim disbursements in an amount not less than $250,000.00, without prejudice to further requests;

(c) Payment by the husband of all mortgage expenses relating to mortgages registered against 102 in the amount of $28,086.50;

(d) Leave to question David Goodman pursuant to FLR 20(4) and 20(5).

[23] Sections 15.2 (1) to (6) of the Divorce Act[^20] apply to the wife’s support claim.

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

[24] The overarching framework (or approach) to determining interim spousal support motions was well expressed by Penny J. in Knowles v. Lindstrom,[^21]

[8] It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.

[25] The range of considerations (often also described as principles) is broad as is the highly discretionary nature of a spousal support decision, all framed by the individual circumstances of each case. Contrasted with a final hearing where a more robust evidentiary record would be expected, the primary, interim support considerations in this matter include:

(a) The parties’ presenting means and needs, particularly the wife’s needs and the husband’s ability to pay;

(b) An assessment of the wife’s capacity to contribute to her own support, a consideration often less significant than the husband’s ability to pay;

(c) Maintaining the same standard of living or accustomed lifestyle enjoyed before separation, if reasonably affordable;

(d) The understandably inexact nature of the amount awarded, a more in-depth analysis of the parties' circumstances being best left to a trial. Some authorities have described this as “rough justice”;[^22]

(e) Testing the evidence for an award mindful of the SSAG.

[26] In neither his pleadings nor evidence does the husband admit the wife’s entitlement to spousal support but, as observed by McDermot J. in Lamb v. Watt[^23], a claimant in a motion for temporary spousal support “does not have to prove entitlement on the balance of probabilities as he or she would have to at trial. He or she need only show a prima facie case for entitlement”.[^24] All the wife needs to establish in this case is enough evidence to allow the Court to infer entitlement and rule in the wife’s favour.[^25] Whether one accepts the husband’s 2008 separation date or, as this Court has determined, the wife’s 2019 valuation date, the wife is prima facie entitled to temporary spousal support: the parties’ married cohabitation was lengthy (regardless of either date), two children were born and raised, the husband was the family’s primary breadwinner and, despite his efforts to elevate the wife to a greater net worth and earning ability than the current record admits, it was he who engineered the assembly of 102’s realty assets and, with Mr. Goodman, arranged for a cash flow to the wife and the parties’ daughter of $12,800 monthly until December 20, 2019.

[27] Paula White was engaged by the wife to undertake a valuation of the husband’s business interests and an income valuation. An acknowledgement of Expert’s Duty accompanied her evidence. Pursuant to a detailed request for information made in early September 2020, not all of whose requests have been answered by the husband according to her, Ms. White made some preliminary findings:

(a) A preliminary estimate of the husband’s 2019 income earned in Kenya of $578,000 comprising dividends ($445,000) which, if treated equivalent to dividend tax treatment in Canada, would result in a $297,000 tax gross-up to $875,000. The husband objected to this treatment stating that Kenya does not have a comparable dividend tax treatment regime. Mr. Kariuki estimated that the husband’s 2019 income was $410,755 and that the tax gross-up in Kenya is 5% not 40% as in Canada. This estimate is net of an interest expense of $143,469 CAD for a loan secured by shares owned by the husband;

(b) In her review of 102’s General Ledger and adjusting entries for fiscal 2018 (year ending November 30), Ms. White calculated that the husband was paid $1,869,823. This was a net of 102 property sales and cash payments to the husband less various non-cash realty transactions involving him that took place outside of the company. Ms. White set out this evidence, with her supporting calculations, based on the financial information provided to her by Mr. Goodman. The husband never responded to this evidence in three affidavits except to defectively allege that the wife was accusing him of theft from 102, saying that “[T]here is no doubt that the accounting is complicated”[^26] and eschewing in favour of Mr. Goodman any knowledge of 102’s mortgagees whose funds he (Mr. Goodman) processed. Mr. Goodman’s affidavit says nothing about this evidence.

[28] It is axiomatic that comprehensible financial disclosure is the most basic obligation in family law.[^27] Whether that disclosure involves assets or income (often both) a litigant is obligated, not just encouraged, to provide financial evidence that is intelligible and responsive to the issues before the Court, failing which the Court may draw reasonable inferences adverse to the offending party. In this case, the husband has “ a positive duty to provide clear and cogent evidence to the Court as to what his income is”.[^28] His income available for support, like his overall finances, is “complicated and opaque”[^29], likely intentional from a tax reporting perspective, and most certainly with respect to his support obligations. His financial statement(s) do not reflect the income available to him: they are misleading. The husband is the operating mind of companies in Kenya worth millions of dollars by his own admission yet his income from those sources is the equivalent of $24,000 CAD. As the operating mind of 102 since it was incorporated by him in 1993 until early 2020, a company worth at least $10,000,000 whose realty holdings he assembled, the husband could have explained to the Court what happened (accounting or otherwise) to the almost $1.9 million he was either paid or from which he benefitted in 102’s fiscal 2018 but he chose not to do so. He could have, as the wife did with Ms. White, submit 102’s ledgers to a similarly qualified Ontario expert, even to a local accountant, but there is no evidence that he did, or even tried. The accounting might be “complicated” but the husband owed the Court and the wife an explanation.

[29] Since December 2019 the husband’s income has been a live issue yet the best evidence about it comes, not from him, but his accountant in Kenya who provides no assistance (nor can he anyway) about the 2018 funds from 102. There is no explanation from the husband why, outside of 102, he would be personally advancing funds to the company and personally receiving the proceeds of 102 realty transactions.

[30] Accompanying Ms. White’s April 9, 2021 affidavit is a copy of a February 18, 2021 preliminary report to Mr. Feldstein that incorporates Mr. Kariuki’s information and indicates the husband’s CAD-equivalent Kenya income for 2019, even when adjusted for Mr. Kariuki’s calculations, amounts to $838,000. There was no suggestion from the husband that he was unaware of Ms. White’s evidence in this regard when the motions were argued: there was certainly nothing further from Mr. Kariuki or the husband to refute Ms. White’s revised calculations and conclusions.

[31] Taking into account Mr. Kariuki’s calculations, Ms. White calculated the husband’s 2018 to 2020 income as being $144,000 (2018), $838,000 (2019)[^30] and ($21,000: 2020). The three-year average is $320,333 but this does not include the $1,863,823 that 102’s books record as the husband receiving and for which the husband provided no plausible explanation. If, as the wife contends that amount is added to the husband’s income for 2018 the three-year income average is $943,608.

[32] The husband’s income is a moving target. He is not credible regarding his finances. While I am not prepared at this juncture to impute to him the income sought by the wife it is nonetheless clear that the money available to him from his realty endeavours is not insignificant. The most reliable evidence about the husband’s income is Ms. White. The Court will impute to the husband a “rough justice” income of $838,000.

[33] As for the wife’s income, she lost her employment in early 2021. A significant component to the husband’s evidence was his complaint about the impact of the pandemic on 102’s commercial tenants (mostly fast food locations) and the wife’s poor administration of its realty portfolio which resulted in the loss of two of the portfolios’ properties through Power of Sale proceedings leaving only one (Aventura, the most valuable). The wife’s evidence about her income and her use of the remaining tenants’ rent to meet (principally) corporate mortgage obligations (which both parties acknowledge are acute) I accept. For example, in her May 4, 2021 financial statement the wife deposed that the monthly mortgage, tax and utility/maintenance and insurance expenses, exclusive of HST and any other expenses, equalled rental revenue (about $39,000 a month) and that 102 owed about $105,000 to various entities, was operating at a deficit, with a negative cash flow and limited savings. The company is in active commercial litigation with clients of Mr. Goodman (or, according to the husband, private mortgagees arranged by him): the husband acknowledged that he worked with a friend of his who owned a company to purchase the two 102 properties sold under Power of Sale and that, as with the properties when 102 owned them, he acted as a guarantor.

[34] In her May 4, 2021 financial statement, the wife reported annual expenses of $117, 195.24 which she said were mostly funded by partial repayment of a shareholder loan from 102. This includes a $6,543.52 monthly expense for the parties’ 28 year-old daughter living independently of her mother but for whom the latter is claiming child support and who until December 2019 the husband facilitated $5,000 monthly payments through Mr. Goodman. Elsewhere in her financial statement the wife acknowledged receiving $137,000 after December 20, 2019 thorough partial repayments from 102’s shareholder’s account.

[35] Although the husband challenges the wife’s need for financial assistance, the evidence is that he provided to the wife before December 20, 2019, in excess of $12,800 monthly through 102 and Mr. Goodman which the husband arranged. This created a state of dependency and expectation from which the husband cannot resile at this time. If the Court were to attribute to the wife the $137,000 that she claims to have received from 102 (through repayment of shareholder advances) and if the husband’s income is $838,000, the SSAG range is $21,906 (low)-$25,557 (mid)-$29,208 (high). In the circumstances, and without determining or wishing to have misinterpreted where in the SSAG range the Court will ultimately award spousal support, it is my view that a reasonable monthly award for spousal support is $25,000.

[36] That the husband may not be able to tax-deduct spousal support since it appears that most of his income is earned in Kenya where the vast majority of his assets are located (subject to the Court’s concern about what he received from 102 in 2018) does not mean that he may have, as an acknowledged Canadian resident, a going-forward liability or exposure or that the wife would be relieved from declaring the support for tax purposes.[^31]

[37] Related to this support issue is the wife’s request that the husband pay the expenses relating to 102 mortgages totalling $28,086.50 monthly (i.e. $14,679.17 to Mr. Goodman and $13,467.33 to Mr. Smith whom the husband described was a close friend of the family).[^32] Quite apart from the issue of the Court’s authority to order the husband to pay mortgages for a company for which he is not an owner, there is no current financial information before the Court (such as a Pro Forma financial statement) or more information relating to the company’s current operating status and its debts. Even though the wife’s financial statement provides some information about 102’s operating challenges and Ms. White provides (as best she can) a narrative of the company’s various transactions and raises disclosure issues, the evidentiary record is insufficient to order this aspect of the overall relief sought by the wife at this time.

Goodman questioning

[38] Mr. Goodman has been variously described by the husband as “our lawyer”, “our family lawyer” and “our long-time solicitor (and friend)”. Until the wife assumed control of 102 after December 20, 2019 Mr. Goodman was an officer and director of the company as well as its lawyer. He set up a joint investment account with the husband in 2014. He facilitated private mortgages to 102, facilitated the $7,800 monthly payments to the wife from 102 and either personally or using one of his secretaries deposited $5,000 monthly to the wife’s account at a bank branch across the road from his offices from mortgage monies borrowed by 102. He has been an active co-investor with the husband in various realty and financing transactions involving the company. It was Mr. Goodman’s clients who initiated Power of Sale proceedings on the two 102 properties sold to a friend of the husband and it is Mr. Goodman upon whom the husband relies in asserting that “reams of documentation and ledger statements” were provided to the wife and her advisers.

[39] It is clear that Mr. Goodman has been intimately involved in the Gulamali family’s financial affairs for decades. He objects to being questioned, alleging that “nowhere that I have been able to see in Shanoor’s materials are any details as to what they want to question me about, and in particular I have not seen any request that I be questioned about the date of separation”.[^33] The wife wants to question Mr. Goodman about various transactions that occurred within the corporation during the marriage and after December 20, 2019 which she describes as “questionable” and claims that it would be unfair to her to proceed further in the litigation without a proper understanding of what transpired. There is no issue involving solicitor/client privilege.

[40] Sections 20(4) and 20(5) of the FLR provide as follows:

Other Cases – Consent or Order

(4) In a case other than a child protection case, a party is entitled to obtain information from another party about any issue in the case,

(a) with the other party’s consent; or

(b) by an order under subrule (5). O. Reg. 114/99, r. 20 (4).

Order for Questioning or Disclosure

(5) The court may, on motion, order that a person (whether a party or not) be questioned by a party or disclose information by affidavit or by another method about any issue in the case, if the following conditions are met:

1. It would be unfair to the party who wants the questioning or disclosure to carry on with the case without it.

2. The information is not easily available by any other method.

3. The questioning or disclosure will not cause unacceptable delay or undue expense. O. Reg. 114/99, r. 20 (5).

[41] The wife relies on Bailey v. Bailey[^34] as authority to order questioning of Mr. Goodman but that case dealt with non-party documentary disclosure pursuant to FLR 19(11). In Kissoon v. Aviva Insurance Company of Canada[^35] , a case upon which Mr. Goodman relies, De Sa J. was tasked with determining whether a non-party should be discovered (“questioned” in the FLR lexicon) pursuant to Rule 31.10 of the Rules of Civil Procedure (“RCP”), a rule that, for all practical purposes, is almost identical to FLR 20(5). De Sa J. observed,

[16] Under normal circumstances, Rule 31.10 will not be engaged. Information can generally be obtained from a party directly, can be obtained from a non-party with the assistance of a party, or will be easily obtainable through speaking to a witness (non-party) directly. Unless there is a constructive refusal, or an obstacle to obtaining the information/evidence, an order under Rule 31.10 will be unwarranted: Famous Players Development Corp. v. Central Capital Corp., 1991 CanLII 7202 (ON SC).

[17] That being said, a court should not be too ready to refuse a party access to discovery of a non-party where the non-party is unwilling to cooperate in providing evidence that is not otherwise available. The requirement for leave is directed at avoiding subjecting a non-party to the discovery process unnecessarily. It is aimed at minimizing costs and inconvenience to non-parties who are not otherwise participants in the action. It is not directed at arbitrarily limiting access to a witness with relevant evidence. While Rule 31.10 is clearly not intended to invite fishing expeditions, or subject non-parties to unnecessary inconvenience or expense, Rule 31.10 should still be considered and applied having regard to the general purposes and objectives underlying discovery (bolding added).

[42] In L’Abbe v. Allen-Vanguard[^36] Master McLeod declined to order Rule 31.10 discovery where the non-party demonstrated a willingness to provide the information sought informally and the thrust of the discovery request was based on an “assumption that the answers will be evasive or incomplete and the process will be inefficient is to anticipate difficulties that may not materialize”.[^37] There was nothing to prevent the request being renewed if, later, the assumption proved correct.

[43] In Tsakiris v. Tsakiris[^38] D.M. Brown J. (as he then was) observed that a minor difference in wording between RCP 31.10 and FLR 20(5) permitted “questioning of non-parties in a potentially broader range of circumstances than obtaining their evidence for trial, including securing evidence for use on a motion”.[^39] RCP 31.10(2)(b) speaks to unfairness “to require the moving party to proceed to trial” without discovery of the non-party whereas FLR 20(5)1 views unfairness “to carry on the case without [the questioning or disclosure]”. The materiality of the information sought is pivotal in the sense that without it a party would be deprived, prejudiced, in the proceeding, whether a motion or trial.

[44] In this case Ms. White prepared an Information Request dated February 17, 2021 which contained what this Court views as reasonable and relevant requests involving the husband’s personal information and corporate information relating to 102, many having little obvious relation to the civil proceedings and a few of which directly involve Mr. Goodman (such as a debt of $1,275,000 shown as owing to him at the end of fiscal 2017 and a VTB mortgage in relation to a 102 property transfer in favour of “David Goodman in Trust”). This request was set out in Ms. White’s February 18, 2021 affidavit. Mr. Goodman’s slender affidavit (six paragraphs) does not address whether the requests made involving 102 have been answered: the husband has simply abdicated to him the responsibility “to provide further clarification”[^40]. That Mr. Goodman may already have been discovered in the civil proceedings does not preclude his questioning in these proceedings. I am not prepared to conclude (as he has argued) that the wife’s request is an abuse of process.[^41]

[45] It may well be that Mr. Goodman has provided significant information to the wife. As 102’s former lawyer he has that professional obligation in any event. But the absence of any focused response to Ms. White’s Information Request is a singular failure which persuades me that he should be questioned. And on the same day as the husband.

Interim disbursements

[46] The wife seeks an order that the husband advance to her not less than $250,000 for her litigation expenses pursuant to FLR 24(18). This Rule permits the Court to make an order that a party fund another party’s expenses of a case: the order is discretionary.

PAYMENT OF EXPENSES

(18) The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees. O. Reg. 418/18, s. 1.

[47] In Peerenboom v. Peerenboom and Peerenboom[^42] the Divisional Court confirmed the four-part discretionary test set out in Ludmer v. Ludmer[^43] for an interim costs and disbursements Order, the evidentiary burden for which rests squarely with the claimant, in this case the wife:

(a) The claimant must clearly demonstrate that interim disbursements are necessary in the sense that absent the advance of funds the ability to fairly litigate the case will be prejudiced;

(b) The amount claimed must be necessary and reasonable given the needs of the case;

(c) The claimant must demonstrate that he/she is incapable of funding the requested amounts;

(d) The claimant must show that their claim has merit.

[48] Exhibit “I” to the wife’s affidavit sworn April 8, 2021 set out her total anticipated costs for all professionals and experts broken down by expected procedural event and including hourly rates and estimated times for the professionals involved. Legal services ($137,787.20) were calculated as were expert services ($113,871.75). Part of the legal services total included a fee estimate for the motions argued on May 12th ($19,729.80). Ms. White indicated that she had already billed the wife $9,477.88 inclusive of HST and that she estimated that to provide “an initial high-level overview” of the husband’s income and business interests that would include forensic analysis to trace cash flow and assets between the husband and his various companies and preliminary valuation work of those companies would range in cost between $25,000 to $30,000 plus HST.

[49] Having reviewed the evidence, there is no issue that (b) and (d) of the Peerenboom test are met in the circumstances of this case. Less clear is whether denying the advance of funds requested would impair the wife’s ability to fairly litigate her claims in this proceeding. The Aventura property owned by 102 has substantial value of several million dollars although there is no reliable evidence of that value or, as with the Court’s observations about the husband’s payments of the 102 mortgages, satisfactory evidence of the company’s current operating status and challenges. Parts (a) and (c) of the test are not met at this time.

Disposition

[50] The following is ordered:

(a) The valuation date is December 20, 2019;

(b) The property rights of the parties are governed by the laws of the Province of Ontario;

(c) The husband shall pay to the wife $25,000 a month in spousal support effective February 1, 2021. This amount is based on an income imputed to the husband of $838,000 and $137,000 to the wife;

(d) The wife’s request to order the husband to pay 102 mortgages in the amount of $28,086.50 monthly is dismissed without prejudice;

(e) Leave is granted to the wife to question David Goodman. This shall occur on the same day(s) as, and immediately following, the husband’s examination;

(f) Leave for questioning is granted to the parties and restricted to four hours for each party and three hours for Mr. Goodman. Service of Requests to Admit are to be submitted four weeks before the date scheduled for questioning and answers provided at least two weeks before the date(s) scheduled;

(g) The wife shall proceed first with the questioning of the husband and Mr. Goodman. The wife may be questioned afterwards;

(h) The wife’s request that the husband pay the 102 mortgages relating to Mr. Goodman and Mr. Smith is dismissed without prejudice;

(i) The wife’s request for interim disbursements is dismissed without prejudice.

[51] A Support Deduction Order shall issue.

Costs

[52] The following directions shall apply with respect to costs:

(a) The wife shall deliver her submissions by July 21, 2021;

(b) The husband and Mr. Goodman shall deliver their submissions by August 4, 2021;

(c) Reply (if any) by the wife by August 11, 2021;

(d) All submissions shall be single page, double-spaced. In the case of (a), (b) and (c) the limit shall be four pages; reply shall be two pages. These submissions shall be filed in the Continuing Record;

(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the above deadlines but shall not form part of the Continuing Record;

(f) Counsel are to advise the judicial assistant (Laura.Gosse@ontario.ca) when they have filed their material and are directed to forward a copy of their submissions to her.

Justice David A. Jarvis

Date: July 7, 2021

[^1]: One of the April 9, 2021 affidavits repeats the evidence in Ms. White’s February 2, 2021 affidavit but was revised pursuant to the court’s directions to the parties to reconstitute their evidence to conform to the Practice Direction governing the formatting and length of motion materials.

[^2]: This wife’s evidence is inconsistent here. In her affidavit sworn March 25, 2021 (para. 9) the wife says that the parties decided to relocate to Kenya as a family in 2004: in her affidavit sworn April 8, 2021 (para. 37) she claimed that she worked full-time as a teacher in Mombasa from 2003 to 2007.

[^3]: Paragraph 7 of the husband’s affidavit sworn April 1, 2021.

[^5]: Paragraph 64 of the husband’s affidavit sworn February 12, 2021.

[^6]: 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 43.

[^7]: Paragraphs 35-37 of the husband’s affidavit sworn March 12, 2021;

[^8]: Paragraph 20 of the husband’s affidavit sworn April 1, 2021.

[^9]: Exhibit “F” to the wife’s March 25, 2021 affidavit.

[^10]: R.S.O. 1990, c. F.3, as am., s. 4(1).

[^11]: (1995) 1995 CanLII 17875 (ON SC), 11 R.F.L. (4th) 251 (Ont. U.F.C.) at paras. 48 and 49.

[^12]: 1992 CarswellOnt 306.

[^13]: Ibid, para. 1.

[^14]: As per Lococo J. in Di Francesco v. Di Francesco, 2011 ONSC 3844 at para. 38.

[^15]: 2019 ONSC 3857 at paras 12-26 and 32-40.

[^16]: Ibid, para. 26.

[^17]: Hamlet, Act III, Scene II.

[^18]: Paragraph 19 of the husband’s affidavit sworn March 12, 2021.

[^19]: Paragraph 63 of the husband’s affidavit sworn February 12, 2021 and paragraph 34 of his April 1, 2019 affidavit.

[^20]: R.S.C. 1985, c.3 (2nd Supp.) as am.

[^21]: 2015 ONSC 1408.

[^22]: Ibid, Driscoll, at para. 14.

[^23]: 2017 ONSC 5838.

[^24]: Ibid at para. 20.

[^25]: Bridge v. Lawrence, 2016 ONSC 5075 at para. 20.

[^26]: Paragraph 24 of the husband’s April 1, 2021 affidavit.

[^27]: Manchanda v. Theti, 2016 ONCA 909, at para. 13.

[^28]: Iacobelli v. Iacobelli, 2020 ONSC 3625, at para. 45.

[^29]: Affidavit of Paula White sworn April 9, 2021, Exhibit “A”, paragraph 7.1.

[^30]: Ibid, Schedule 1, Summary of Kenya Income and Expenses. Ms. White recorded a $647,000 CAD equivalent income if the gross-up calculation was adjusted as per Mr. Kariuki. I am unable to otherwise reconcile that figure with her affidavit but her sworn evidence is

[^31]: Gordon v. Zuckerman, 2021 ONSC 4756 at paras. 43 and 44.

[^32]: The wife has alleged that it is Mr. Smith who is the principal behind the mortgage funding that permitted the purchase by Mr. Biasuto of the 102 properties sold pursuant to the Power of Sale proceedings.

[^33]: Paragraph 3 of Mr. Goodman’s April 1, 2021 affidavit.

[^34]: 2012 CarswellOnt 2486.

[^35]: 2018 ONSC 2167

[^36]: 2011 ONSC 731

[^37]: Ibid, para. 13.

[^38]: 2007 CanLII 44184 (ON SC).

[^39]: Ibid, para. 14.

[^40]: Affidavit of the husband sworn April 1, 2021, paragraph 24.

[^41]: Kalsatos v. Center City Sports Inc. et al., 2013 ONSC 389.

[^42]: 2018 ONSC 5118 at paras 23 and 25.

[^43]: 2012 ONSC 4478 at paras. 13-17. FLR 24(12) pursuant to which Ludmer was decided is now FLR 24(18).