COURT FILE NO.: FS-18-91557
DATE: 2021 09 07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SAIKAT KUMAR BANDYOPADHYAY
A. Rick Toor
Applicant
- and -
SWARNALI CHAKRABORTY
David Grant Isaac; B. Rashdi
Respondent
HEARD: January 30, 31, February 3, 4, 5, 6, 7, October 2, 2020 and March 9, 10, 11, 12, 15, 16, 22 and 23, 2021
REASONS FOR JUDGMENT
Justice Cynthia Petersen
Table of Contents
PRELIMINARY NOTE. 3
Background Information. 4
The Trial 18
Related Proceeding in India. 24
ISSUES. 28
EQUALIZATION OF NET FAMILY PROPERTIES. 29
Parties’ Positions. 29
Statutory Framework for Equalization Calculation. 29
Total Value of Property Owned on the Valuation Date. 30
Land and Real Estate Holdings. 30
Household Items. 31
Vehicles. 32
Jewelry. 33
Savings and Investments. 38
Pension. 39
Total Debts and Liabilities on the Valuation Date. 40
Net Value of Property on Date of Marriage. 40
Calculation of Net Family Properties. 41
Equalization Payment 43
Pension Valuation and Division. 43
Variation of Shares. 44
POST-SEPARATION ADJUSTMENTS. 56
Carrying Costs for the Matrimonial Home. 56
Home Insurance Premiums. 58
Property Tax Payments. 58
Mortgage Payments. 58
Calculation of Contributions Toward Carrying Costs. 58
Utilities Related to the Matrimonial Home. 59
Auto Insurance Benefits. 60
Auto Insurance Premiums. 61
HELOC Payments. 61
Costs Awarded to Amend Pleadings. 62
Garnished Funds. 62
Summary of Post-Separation Adjustments. 64
PARENTING ISSUES. 64
Statutory Framework. 64
Parental Decision-Making Responsibility. 67
Child’s Residence and Regular Parenting Schedule. 75
Holiday Parenting Schedule. 86
Ancillary Parenting Orders. 89
SUPPORT ISSUES. 91
Support Paid to Date and Claim for Arrears. 91
Income Calculations. 93
Ms. Chakraborty’s Income. 93
Mr. Bandyopadhyay’s Income. 98
Child Support 101
Retrospective Support Owing. 101
Prospective Child Support 102
Spousal Support 104
Statutory Framework for Spousal Support Issues. 104
Entitlement to Spousal Support 105
Spousal Support Advisory Guidelines. 105
Factors Relevant to Determining the Quantum of Spousal Support 107
Retrospective Spousal Support 112
Prospective Spousal Support 112
Security for Support 112
SPECIAL AND EXTRAORDINARY CHILD-RELATED EXPENSES. 113
Statutory Framework to Determine Section 7 Expenses. 114
Parties’ Proportionate Contributions to Section 7 Expenses. 117
Ms. Chakraborty’s Ineligible Expense Claims. 119
S.B.’s Private School Tuition. 119
Expenses Related to Child Care. 121
Extracurricular and Sporting Activities. 123
Educational Programs. 124
Health-Related Expenses. 125
Summary of Section 7 Expenses. 126
OCCUPATION RENT. 126
Jurisprudence. 128
Analysis of Mr. Bandyopadhyay’s Claim.. 129
CONCLUSION REGARDING OFFSET OF PAYMENTS TO BE MADE. 131
COSTS. 132
PRELIMINARY NOTE
The trial of this divorce proceeding commenced on January 30, 2020 and concluded on March 23, 2021. Amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) were enacted and came into force during the trial, on March 1, 2021. Pursuant to s. 35.3 of the Divorce Act, I have decided the parenting issues in this case in accordance with the current legislative framework, but I adopt the former terminology of “custody” and “access” (which is no longer used in the statute) when referring to interim orders made in this case before March 1, 2021 and to other cases decided under the previous statutory regime.
INTRODUCTION
Background Information
1The parties were married in India on June 12, 2005. They immigrated to Canada in 2006. They have one child, S.B., who was born in 2012. They purchased their matrimonial home in Mississauga in 2013. They separated on January 26, 2018, when the Applicant, Mr. Bandyopadhyay, moved out of the matrimonial home. The Respondent, Ms. Chakraborty, remained in the home with S.B. up until the conclusion of the trial. Mr. Bandyopadhyay resides with his girlfriend in rental accommodations in Mississauga.
2Both parties are currently employed full time. Mr. Bandyopadhyay earns substantially more income than Ms. Chakraborty. While married, they maintained separate bank accounts, but had a joint line of credit secured against the equity in their home. He handled their finances, was authorized to access her accounts, made investments for them, including RRSP contributions, and took care of their bill payments. She regularly transferred money to his account, as needed. The evidence establishes that they were both content with this arrangement during the marriage, although at trial Ms. Chakraborty characterized it as evidence of Mr. Bandyopadhyay’s controlling behaviour.
3Upon separation, Mr. Bandyopadhyay initially continued to pay the mortgage and property taxes for the matrimonial home, without any contribution from Ms. Chakraborty. He also continued to pay the home insurance premiums and the utilities, even though he was no longer residing in the house. He did not make any child support or spousal support payments for nine months. Recognizing the increased costs associated with maintaining separate households, he believed that retaining the matrimonial home was not viable. He urged Ms. Chakraborty to agree to sell the house, but she refused.
4Ms. Chakraborty assumed responsibility for payment of the utilities associated with the matrimonial home in the spring of 2018. Mr. Bandyopadhyay continued to pay the carrying costs of the property until the summer of 2018, at which point he ceased paying the mortgage and property taxes, claiming financial hardship and an inability to make the payments. Ms. Chakraborty alleges that he manufactured a financial crisis to try to force the sale of the matrimonial home.
History of the Proceeding
5This case has a convoluted pre-trial procedural history. There was a multiplicity of pre-trial motions on a variety of issues, and non-compliance or only partial compliance with several court orders by both parties. I will not review every step in the proceeding, but I will summarize some key orders and events that are relevant to the issues before me.
6The first motion was brought by Mr. Bandyopadhyay for access to S.B. On April 17, 2018, Shaw J. ordered that the child’s principal residence would be with his mother, but he would reside with his father every second weekend from Friday after school until Monday morning, and on alternate weeks from Monday after school until Wednesday morning. Up until then, Mr. Bandyopadhyay’s parenting time had been restricted to transporting S.B. to and from school and having some meals and outings together on weekends. Ms. Chakraborty had not permitted S.B. to stay overnight at his father’s residence. She also demanded that Mr. Bandyopadhyay’s girlfriend not be present during their visits.
7At the time of the motion before Shaw J., Mr. Bandyopadhyay and his girlfriend were renting a one-bedroom apartment. Ms. Chakraborty was seeking an order that S.B. not be left alone with his girlfriend. She was also seeking an order that Mr. Bandyopadhyay be assessed by a physician to determine whether he suffers from alcoholism. These requested orders were denied, but Shaw J. ordered that Mr. Bandyopadhyay secure a two-bedroom apartment before the new parenting schedule was implemented.
8Mr. Bandyopadhyay complied with this condition by the end of April 2018 and advised Ms. Chakraborty of same. She continued to block his access, insisting that his new apartment was in an unsuitable location, was too far from S.B.’s school, and was selected unilaterally without her approval. She demanded, via email from her counsel Mr. Isaac, to see a copy of the lease and to view the apartment to check whether it was “a proper situation for a child”.
9In his email correspondence, Mr. Isaac advised that Ms. Chakraborty had contacted S.B.’s school to ensure that Mr. Bandyopadhyay could pick him up. Mr. Isaac threatened to contact the Peel police unless Mr. Bandyopadhyay complied with Ms. Chakraborty’s demands or brought a motion in court to have the new apartment vetted and approved by the court. These positions taken by Ms. Chakraborty were unreasonable and inconsistent with Shaw J.’s order. The issues were ultimately resolved without further court intervention and Mr. Bandyopadhyay’s overnight parenting time began in or about May 2018.
10On October 19, 2018, Shaw J. adjudicated a dispute about where S.B. would attend school. He was in Grade 1 and was attending two different schools depending on whether he was in his mother’s or his father’s care on any given day. Mr. Bandyopadhyay enrolled him at the private school where he had completed his kindergarten education. Ms. Chakraborty enrolled him in a French immersion program at a public school. Shaw J. ruled that S.B. would attend the public school.
11I note that Mr. Bandyopadhyay’s willingness and ability to pay the private school tuition for the fall of 2018 lends credence to Ms. Chakraborty’s allegation that he was, in the summer of 2018, feigning an inability to pay the mortgage in order to force the sale of the matrimonial home. As set out later in this Judgment, however, the financial crisis that he anticipated materialized within a few months.
12On October 25, 2018, Bloom J. ordered Mr. Bandyopadhyay to make interim spousal support payments of $900 per month, and interim child support payments of $1,036 per month, commencing November 1, 2018. These interim support orders have been enforced by the Family Responsibility Office (“FRO”) via deductions at source from Mr. Bandyopadhyay’s employment income. There are no arrears.
13Bloom J. also granted Ms. Chakraborty interim exclusive possession of the matrimonial home. He ordered the parties to share the mortgage and property tax payments, with 2/3 payable by Mr. Bandyopadhyay and 1/3 payable by Ms. Chakraborty, commencing November 1, 2018. He further ordered Mr. Bandyopadhyay to pay the accumulated arrears on the mortgage loan. At that point, the loan was three months in arrears. The amount owing was $7,500. The mortgagee was threatening foreclosure.
14Bloom J. ordered that special child-related expenses (i.e., “s.7 expenses”) for S.B. be shared on the same 1/3 and 2/3 basis. Finally, he ordered Mr. Bandyopadhyay to pay Ms. Chakraborty’s costs of the motion in the amount of $4,500. All of Bloom J.’s orders were temporary, without prejudice to the parties’ positions and subject to retroactive adjustment at trial.
15In November 2018, Ms. Chakraborty brought a motion to vary Shaw J.’s interim parenting order. She sought an order to reduce Mr. Bandyopadhyay’s parenting time and to require that it be supervised until he was assessed and underwent treatment for alcoholism. Fowler Byrne J. dismissed the motion in a decision released on January 31, 2019. She made an order for daily telephone access for both parents on days when S.B. is not in their care.
16Fowler Byrne J. also made an interim order retroactive to November 1, 2018, requiring Ms. Chakraborty to pay 1/3 of the home insurance premiums. She dismissed Mr. Bandyopadhyay’s motion for an order requiring Ms. Chakraborty to pay him interim occupation rent. These orders were made without prejudice to the parties’ ability to argue the issues and seek retroactive adjustments at trial.
17Despite the court order, Ms. Chakraborty never contributed to the home insurance premiums. Mr. Bandyopadhyay made his support payments. The first FRO remittance to Ms. Chakraborty for spousal support and child support was made in January 2019, in the amount of $7,579. This lump sum covered support retroactive to November 1, 2018, per Bloom J.’s Order. The money was deposited to Ms. Chakraborty’s bank account but was immediately seized by the bank/mortgagee and put toward arrears on the mortgage.
18Ms. Chakraborty alleges that Mr. Bandyopadhyay flagrantly violated the other interim orders made by Bloom J. Mr. Bandyopadhyay concedes that he did not contribute to any s.7 expenses claimed by Ms. Chakraborty; the reasonableness of the expenses is in dispute. He acknowledges that he did not pay the $4,500 in costs awarded against him. He further admits that, after June 2019, he ceased to comply with the court orders to pay 2/3 of the mortgage and property taxes. He argues, however, that he made a sincere effort to comply with those orders and did, in fact, comply for several months, until the payments became unsustainable.
19I decided these issues in a mid-trial ruling on February 7, 2020. I concluded that Mr. Bandyopadhyay complied with Bloom J.’s order to bring the mortgage into good standing by immediately paying the arrears, and substantially complied with the orders to pay 2/3 of the property taxes and mortgage payments up until June 2019. I delivered detailed oral reasons for these findings. The parties were provided with a transcript of my reasons.
20From November 1, 2018 to April 2019, the parties each paid their share of the mortgage. They appeared before Tzimas J. on April 25, 2019 on a motion by Mr. Bandyopadhyay for an order to sell the matrimonial home. He had been seeking such an order for quite some time, but his motion was repeatedly adjourned by the court.
21In April 2019, the monthly mortgage payment was in the amount of $3,401. Mr. Bandyopadhyay’s 2/3 share was $2,267. In the motion before Tzimas J., he submitted that he could not afford to continue making those payments. Tzimas J. accepted that he had various financial obligations that were contributing to his inability to comply with the court orders. She noted, “It would appear that his accumulating debts are such that he is starting to head down an insolvency path. Such a direction will be disastrous for everyone.”
22Tzimas J. denied his motion for sale of the matrimonial home. She reasoned that he “may well have exposure to the payment of a substantial equalization obligation”, so even if the home were sold, the funds would need to be held in trust pending the outcome of a trial or settlement.
23Before Tzimas J., Ms. Chakraborty indicated a willingness to assume responsibility for 100% of the mortgage, property taxes, and home insurance payments and all utilities, provided she could refinance the mortgage to reduce the monthly payments by $1,000. She had a tenant living with her, who was paying $750 per month in rent. She was confident that her employment income, support payments, and rental income combined would enable her to assume the monthly payments for the matrimonial home, but she required Mr. Bandyopadhyay’s cooperation and consent to refinance the mortgage.
24Prior to the motion hearing in April 2019, the parties had not been able to agree on the refinancing because Ms. Chakraborty was seeking to negotiate a long-term mortgage loan agreement to secure a lower interest rate. Mr. Bandyopadhyay was intent on selling the home as soon as possible. He was hopeful that his motion for sale of the property would be successful and he therefore did not want to lock into a long-term mortgage. He wanted to avoid incurring fees and penalties associated with breaking the mortgage before the expiry of the term. Ms. Chakraborty alleged that he was intentionally undermining her efforts to assume the mortgage.
25Tzimas J. ordered that Ms. Chakraborty had 10 days to present Mr. Bandyopadhyay with a mortgage renewal agreement, which he would be required to sign, and then she would be required to assume the mortgage, property tax and insurance payments in full. Recognizing that this might not come to pass, because Ms. Chakraborty did not yet have an approved mortgage renewal from the bank with monthly payments that she could afford, Tzimas J. ordered that, if she could not obtain a satisfactory renewal agreement, then the parties would be required to comply with the existing court orders and divide the carrying costs 2/3 and 1/3 on an interim basis until trial.
26Ms. Chakraborty took steps to try to refinance the mortgage, but she did not present Mr. Bandyopadhyay with a renewal agreement within the 10-day deadline. She blames Mr. Bandyopadhyay for this, claiming that he deliberately sabotaged the refinancing. I rejected that argument (with reasons provided orally) in my mid-trial ruling on February 7, 2020.
27Ms. Chakraborty paid her 1/3 share of the mortgage throughout 2019. Mr. Bandyopadhyay stopped making his 2/3 contributions to the mortgage and property tax payments in the summer of 2019. For reasons set out in my February 7, 2020 mid-trial ruling, I found that he simply could not afford to continue making the payments. He was stretched too thin. There was some “space” left on the parties’ joint Home Equity Line of Credit (“HELOC”), but Ms. Chakraborty had arranged with the bank for the account to be frozen so that no further withdrawals could be made without both parties’ written consent. Mr. Bandyopadhyay therefore had no access to that credit. He had depleted his savings, maximized his credit card debt, attempted unsuccessfully to obtain more credit, and borrowed from his girlfriend.
28Mr. Bandyopadhyay was in an untenable financial situation. He had accumulated a crushing debt load. He was barely able to make the requisite minimum monthly payments to keep his creditors at bay. All his bank accounts were overdrawn.
29His financial circumstances worsened in October 2019 when Ms. Chakraborty filed a Request for Garnishment, claiming that he owed her a total of $27,737, including the $4,500 in unpaid court costs, as well as outstanding property taxes and mortgage arrears, the amounts of which are disputed. In my ruling on February 7, 2020, I found that the amounts claimed by Ms. Chakraborty in the Request for Garnishment were incorrect and inflated. She admitted, during her cross-examination, that the amounts she claimed were inaccurate.
30Mr. Bandyopadhyay’s salary began to be garnished, with the funds being held in Court. In late 2019, his gross bi-weekly pay from his employer was $4,063, but he was receiving only $855 net, after statutory deductions (e.g., CPP, EI, income taxes), FRO support deductions, and garnished funds. In short, he was earning only $1,710 net monthly and was paying over $1,300 monthly just to service the minimum payments on his debts. He had insufficient funds to pay his share of the rent for the apartment he occupied with his girlfriend. He had no money for daily living expenses, let alone enough to contribute 2/3 of the mortgage and property tax payments on the matrimonial home. Legal costs were adding to his financial stress. As I stated in my ruling on February 7, 2020, it is remarkable that he avoided bankruptcy.
31Shortly after the trial started in late January 2020, the mortgagee commenced an action against the parties. When the trial adjourned on February 7, 2020, I made the following interim orders with a view to halting the foreclosure proceedings:
ON CONSENT:
(2) All monies held by the Court pursuant to the respondent's request for garnishment dated October 22, 2019 shall be released to the parties and the parties shall immediately remit the money to their mortgagee as payment toward arrears on the mortgage loan for their matrimonial home.
(3) For as long as arrears continue to be outstanding on the mortgage and related fees are owed to the mortgagee, and for so long as money continues to be garnished pursuant to the respondent's request for garnishment, the funds so garnished shall be released to the parties and the parties shall immediately remit the money to their mortgagee as payment toward arrears and related fees.
NOT ON CONSENT:
(4) If the bank will permit the parties to access credit from either of their joint lines of credit, the parties shall immediately sign whatever consent or other paperwork is necessary to facilitate withdrawal of sufficient funds to pay all remaining arrears on the mortgage and related fees, so as to bring the mortgage into good standing.
(5) Commencing February 2020, the respondent shall pay 2/3 and the applicant shall pay 1/3 of the ongoing mortgage, property tax, and home insurance payments for the matrimonial home.
(6) These orders are on an interim without prejudice basis and all payments will be subject to a final accounting after the trial of this matter is concluded.
32After these interim orders were made, Mr. Bandyopadhyay paid the bank $950 in arrears of interest to bring the parties’ joint HELOC into good standing. Arrangements were then made for the parties to attend at the bank to sign consents for the remaining credit in the HELOC account to be used to pay the arrears on the mortgage. Despite my order, Ms. Chakraborty expressed reluctance to sign, stating that she “needed time to think” because she did not want to incur more debt. This made no sense because the transaction would not have increased her debt load; rather it would have transferred the existing debt from the mortgage to the HELOC. It was a stop-gap measure, but it would have prevented the further accumulation of mortgage default penalties, as well as the escalation of costs associated with the mortgagee’s lawsuit.
33Rather than following the court order to facilitate withdrawal of funds from the HELOC, Ms. Chakraborty instructed her lawyer to attempt to renegotiate the mortgage loan at a lower rate. The bank was not interested. There was some sort of altercation between Mr. Isaac and bank personnel. Ultimately, the bank decided that it would not release the HELOC funds to the parties. Based on the totality of evidence, I find, on a balance of probabilities, that Ms. Chakraborty and her counsel’s conduct were responsible for the bank’s change in position.
34After my February 7, 2020 ruling, Ms. Chakraborty received the garnished funds ($10,045) from the court, but she defied my Order by failing to remit the money to the mortgagee (despite having consented to the Order). She testified that she spent the money on legal fees. Moreover, she disregarded my Order to pay 2/3 of the monthly mortgage from February 2020 onward. She made no payments toward the mortgage. Mr. Bandyopadhyay similarly did not pay his 1/3 share of the mortgage.
35Arrears and penalties on the mortgage continued to accrue. The mortgagee’s action was ongoing when the trial ended in March 2021. The parties were in serious and imminent jeopardy of losing the house. Ms. Chakraborty asked the court to order an appraisal of the current market value of the property so that she could attempt to finance a purchase of Mr. Bandyopadhyay’s half interest. Although she had consistently objected to the sale of the property up until that point, and had been seeking an order for exclusive possession of the matrimonial home, she acknowledged, during closing submissions, that the property would need to be listed for sale if she was unable to buy Mr. Bandyopadhyay’s share.
36Given the evidence at trial, her proposal was fanciful. There is virtually no chance that she would be able to secure the requisite financing. In any event, the court does not have jurisdiction to order that an interest in the matrimonial home be sold from one party to the other. If she wanted to purchase Mr. Bandyopadhyay’s interest, she ought to have obtained an appraisal of the property and sought the requisite financing to make him an offer outside of court.
37As set out below, I ordered the immediate listing for sale of the matrimonial home at the conclusion of the trial. I did this to stop the financial bleeding, minimize the costs associated with the default on the mortgage, and avoid the risk of the mortgagee taking possession of the house to sell it under Power of Sale. A Power of Sale would not likely attract maximum market value and would therefore deplete the parties’ equity in the property. I ordered that the proceeds of sale be held in trust pending the release of these Reasons for Judgment. It was apparent, based on the evidence, that Ms. Chakraborty would not be owed the substantial sums of money that she was claiming for equalization, post-separation adjustments, and retrospective support. There was, therefore, no need to preserve the property for a possible vesting order.
The Trial
38The trial took a complicated procedural path, with evidence called out of the usual order and some evidence adduced by way of affidavit (subject to cross-examination) because of two mid-trial motions. It was originally scheduled for 5 days when it commenced in late January 2020. It was not concluded until March 23, 2021, after 15 days of hearing spread out over 14 months. There were multiple adjournments, mostly due to the COVID-19 pandemic.
39The trial should not have taken as long as it did. Some of the delay is attributable to Mr. Bandyopadhyay’s tendency to give answers that were unresponsive to the questions asked, both in chief and during his cross examination. I am not suggesting that he was evasive; it was just his manner of speaking. However, I had to caution him repeatedly to listen carefully to the questions and to focus his answers. His tangents prolonged his testimony.
40Ms. Chakraborty also contributed to the delay with frequent late appearances in court by her and her counsel. By far the primary cause of delay that unnecessarily prolonged the trial was the disruptive behaviour of Ms. Chakraborty’s first counsel, Mr. Isaac. He repeatedly interrupted the proceedings, disregarded the rules of evidence, raised issues and objections that patently had no merit and frequently re-argued issues that had already been decided. I cautioned him repeatedly and warned him that his conduct could have cost consequences for his client. Ms. Chakraborty eventually terminated Mr. Isaac’s retainer (in or about February 2021) and retained Mr. Rashdi to represent her for the duration of the trial, which proceeded relatively smoothly.
41I made numerous mid-trial rulings, some on evidentiary and procedural issues, and others on substantive issues. Reasons for those rulings have already been provided to the parties, either orally or in writing. I will not repeat or summarize them here, except to note that Mr. Bandyopadhyay was required to bring a mid-trial motion during a hiatus in the trial, in September 2020, to obtain access to S.B., notwithstanding the existence of Shaw J.’s and Fowler Byrne J.’s interim Orders granting him regular parenting time.
42Ms. Chakraborty unilaterally withheld S.B. from his father for approximately 15 months. She did so purportedly out of concern for S.B.’s safety while in Mr. Bandyopadhyay’s care, based on an allegation that Mr. Bandyopadhyay assaulted S.B. during a visit in July 2019. Mr. Bandyopadhyay brought a contempt motion in August 2019, but it was not heard prior to the commencement of the trial in January 2020. It was then abandoned by him in favour of focusing on the trial. When the trial was adjourned indefinitely in March 2020 because of the suspension of court operations due to COVID-19, Ms. Chakraborty continued to block Mr. Bandyopadhyay’s in-person parenting time with S.B. and allowed him only limited telephone access.
43At trial, Ms. Chakraborty testified that Mr. Bandyopadhyay made no effort to see S.B. throughout the 15-month period of separation, which is patently false. There is voluminous email correspondence establishing a record of Mr. Bandyopadhyay’s attempts to see his son. The restricted court operations caused by the pandemic and Mr. Bandyopadhyay’s limited financial resources are the only reasons he did not bring a mid-trial motion sooner than the fall of 2020 to enforce the court’s parenting orders. Ms. Chakraborty countered with a motion to suspend his access until the conclusion of the trial.
44A virtual (videoconference) hearing was conducted on October 2, 2020, including the cross-examination of Mr. Bandyopadhyay. The evidence adduced in the motion hearing was deemed to be evidence in the trial. On October 6, 2020, I dismissed Ms. Chakraborty’s motion, held that her safety concerns were unfounded, and issued a written ruling that upheld the interim parenting schedule previously ordered by the court. Mr. Bandyopadhyay’s parenting time was consequently reinstated on alternate weekends from Friday afternoon to Monday morning, and on alternate weeks from Monday afternoon to Wednesday morning. That interim parenting schedule remained in place until the trial concluded in March 2021.
45I ordered a different final parenting schedule at the conclusion of the trial. On the last day of trial, I made the following final and temporary orders, with reasons to follow:
SALE OF THE MATRIMONIAL HOME
- For reasons to be delivered in writing at a later date, I make the following final Orders regarding the matrimonial home located at [xxxxxxx] in Mississauga:
a) The property shall be listed for sale as soon as possible.
b) Mr. Bandyopadhyay shall provide Ms. Chakraborty with the names and contact information of three real estate agents. Ms. Chakraborty will select one of the agents and notify Mr. Bandyopadhyay in writing of her selection within three calendar days of receiving the names. If she fails to make the selection within three days, Mr. Bandyopadhyay may choose the real estate agent on the fourth day and advise Ms. Chakraborty of his selection.
c) The parties shall jointly retain the selected real estate agent to list the matrimonial home for sale as soon as possible. They shall follow the agent's advice with respect to listing price.
d) The same selection process shall be used to choose and jointly retain a real estate solicitor to handle the sale of the property.
e) Ms. Chakraborty shall cooperate with the real estate agent and provide requisite instructions to the real estate solicitor to facilitate the listing and sale of the property.
f) Ms. Chakraborty shall ensure that the property (both inside and outside the house) is clean and presentable for showings. She shall allow access, on 24 hours notice, to the interior of the home for photographs and video to be taken by a person or persons designated by the real estate agent for the purpose of obtaining imagines to list the property.
g) Ms. Chakraborty shall allow access for all necessary viewings by the parties' real estate agent and by prospective buyers, other real estate agents and home inspectors.
h) No reasonable offer to purchase the property shall be rejected.
i) The closing date for the sale transaction shall not be before May 30, 2021, to allow Ms. Chakraborty enough time to secure alternate suitable accommodations.
j) If Ms. Chakraborty fails to cooperate with the listing process, refuses to accept a reasonable offer to purchase, or otherwise frustrates the parties' ability to sell the property, then Mr. Bandyopadhyay may bring a motion on short notice, to be heard by me via videoconference, seeking an Order to require Ms. Chakraborty to vacate the premises and/or to dispense with her consent and signature to finalize the sale.
k) The net proceeds of sale of the matrimonial home shall be held in trust by the real estate solicitor who is jointly retained by the parties pending my final Reasons for Judgment, except that an amount of $5,000 shall be immediately released to Ms. Chakraborty (to be credited in the final net family property equalization calculation). The purpose of this advance is to assist her in financing the costs of moving.
PARENTING ORDERS
I am reserving judgment on many of the parenting issues, but I feel it necessary, in S.B.’s best interests, to decide the child's residential and parenting schedule without further delay.
For reasons to be delivered in writing at a later date, I make the following final Orders pursuant to s.16.1 of the Divorce Act:
a) The current interim parenting Order shall remain in effect until Monday March 29, 2021 (i.e. S.B. is to reside with the respondent mother until the afternoon of Friday March 26, then with the applicant father until Monday morning March 29).
b) A new parenting schedule will commence Monday March 29, 2021. S.B. shall reside equally with both parents. His parenting time will be allocated on a two-week repetitive schedule as follows:
i.Monday morning to Wednesday morning (2 days) with the respondent mother;
ii.Wednesday morning to Friday morning (2 days) with the applicant father;
iii.Friday morning to Wednesday morning (5 days) with the respondent mother;
iv.Wednesday morning to Monday morning (5 days) with the applicant father.
v. Repeat from (i) to (iv) above.
c) When S.B. is attending school in person, he will be dropped off and picked up by the parents at his school. When a parent's time with S.B. ends on a school day, that parent shall be responsible for dropping S.B. off at school and the other parent shall be responsible for picking up S.B. after school, at the school, that same day.
d) If a parent's time with S.B. starts on a day when he has no school (e.g., a holiday, P.A. day, "snow day") or on a day when he is learning remotely on-line, that parent will be responsible for picking up S.B. at the other parent's residence. The parties shall negotiate a specific time for all morning pick ups.
e) On a temporary basis: On days when S.B. is with his mother, if he needs to vacate the matrimonial home during school hours to facilitate viewings of the property, the parties shall make arrangements for him to follow his on-line classes at his father’s home.
f) A holiday parenting schedule will be determined and set out in my final Reasons for Judgment. The holiday parenting schedule will override the regular schedule set out above. Until my final Reasons for Judgment are released, the above regular parenting schedule will be in place regardless of any statutory holidays, cultural or religious holidays or special occasions.
g) The above final orders replace any previous interim orders with respect to S.B.’s residential schedule. However, all other interim orders dealing with parenting issues shall remain in effect until I release my Reasons for Judgment.
h) On a temporary basis, Ms. Chakraborty shall be the custodian of S.B.’s identification documents. Mr. Bandyopadhyay has been provided copies of S.B.’s Overseas Citizen of India card, Social Insurance Number card, Ontario Health Insurance Plan card, Immunization Record and Canadian Passport (expired). Ms. Chakraborty shall email him a copy of S.B.’s birth certificate within 48 hours.
PROSPECTIVE CHILD SUPPORT
Mr. Bandyopadhyay has been paying Ms. Chakraborty $1,036 per month in child support and $900 per month in spousal support pursuant to a temporary Order made by Justice Bloom in October 2018. Given the above material change in the regular parenting schedule for S.B., a variation of the child support order is appropriate. At this time, I am making a temporary Order, subject to final adjustment when I release my Reasons for Judgment.
S.B. will be spending equal time in the care of each parent. Ms. Chakraborty has full-time employment and therefore has the means to contribute to child support. S.B. is entitled to benefit from the resources of both parties. In the circumstances, an offset amount of child support is appropriate.
The most recent income information available for the parties is their respective 2020 employment earnings. They have not yet filed their 2020 income tax returns.
Mr. Bandyopadhyay submitted his 2020 year-end pay stub. It shows a gross annual year-to-date income in the amount of $117,531 effective the pay period ending on December 25, 2020. Pro-rating this income over 52 weeks, I conclude that his 2020 annual gross income was $119,835 ($117,531 / 51 x 52).
Ms. Chakraborty submitted her 2020 year-end pay stub. It shows a gross annual year-to-date income in the amount of $44,090 effective the pay period ending December 18, 2020. Pro-rating this income over 52 weeks, I conclude that her 2020 annual gross income was $45,853 ($44,090 / 50 x 52). Ms. Chakraborty was also in receipt of rental income in the amount of $750/month throughout 2020. That rental income is, however, going to cease shorty because of the sale of the matrimonial home, so I will not include the rental income in the calculation of her income for child support purposes going forward.
Pursuant to the Federal Child Support Guidelines, the Table amount of child support payable by Mr. Bandyopadhyay based on an annual income of $119,835 is $1,067. The Table amount of child support payable by Ms. Chakraborty based on an annual income of $45,853 is $426. After offsetting these Table amounts, I order that, effective April 1, 2021, Mr. Bandyopadhyay shall pay Ms. Chakraborty monthly child support in the amount of $641 ($1,067 - $426).
This interim order for child support shall be enforced by the Family Responsibility Office. A child support deduction Order will issue, varying the amount of child support paid by Mr. Bandyopadhyay.
OTHER ISSUES
The terms of any and all existing interim Orders that are not inconsistent with the Orders made above shall continue in effect until I release my Reasons for Judgment.
I reserve on all other issues in the trial. Reasons will follow.
Related Proceeding in India
46Mr. Bandyopadhyay owns a flat in Kolkata, India, that is the subject of a related legal proceeding in India. He purchased the flat prior to the parties’ wedding. Ms. Chakraborty’s brother and parents occupy the flat. She claims that her brother pays rent, which Mr. Bandyopadhyay denies. The documentary record is consistent with his evidence on this issue. It includes correspondence between the parties discussing the rental loss incurred by her family’s occupation of the flat. There is no documentary evidence to support Ms. Chakraborty’s claim that her brother pays rent. Her brother did not testify at trial. I draw an adverse inference against Ms. Chakraborty, namely that her brother’s testimony would not have supported her claim. Based on all the above, I conclude that the Kolkata property does not generate any rental income for him.
47When the parties separated, Mr. Bandyopadhyay wanted to sell the flat to access his equity in the property, but Ms. Chakraborty blocked his ability to do so. At a Case Conference on March 12, 2018, she obtained an order from Price J. prohibiting Mr. Bandyopadhyay from disposing of the property without further Court order or her written consent.
48Price J. also ordered Mr. Bandyopadhyay to obtain a valuation of the property for equalization purposes. He ordered Ms. Chakraborty to cooperate in permitting the valuation to take place, but she did nothing when her relatives in India prevented an appraiser from entering the property to conduct the valuation. She testified that Mr. Bandyopadhyay did not give her family any warning that the appraiser would be attending the property. Her testimony is contradicted by email correspondence from Mr. Bandyopadhyay, advising her that an appraiser would be sent to the property in Kolkata and requesting that she ensure the appraiser is given access by her family.
49After the appraiser attempted unsuccessfully to access the flat in Kolkata, Ms. Chakraborty commenced litigation in India, seeking an order that Mr. Bandyopadhyay cannot sell, assign, alienate or encumber his interest in the Kolkata property without her consent, and an injunction restraining Mr. Bandyopadhyay and his family from interfering with her relatives’ peaceful occupation and enjoyment of the property. Consequently, no appraisal of the Kolkata flat was conducted.
50Ms. Chakraborty testified that she commenced the litigation in India because it was apparent that Mr. Bandyopadhyay was trying to sell the flat despite Price J.’s non-depletion order. I reject this explanation. The only evidence she provided to support her testimony is the attendance of the appraiser at the Kolkata property, which was ordered by Price J. The fact that Mr. Bandyopadhyay was attempting to obtain a valuation of the flat for equalization purposes is not evidence that he intended to sell the flat or otherwise breach the non-depletion order.
51I accept Mr. Bandyopadhyay’s assertion that Ms. Chakraborty’s true motive for commencing the proceeding in India was to frustrate his ability to have the flat appraised and to prevent him from being able to sell it, even after this family law proceeding is concluded. He argues that she is using the legal proceeding in India to protect her family’s rent-free possession of the property indefinitely.
52Ms. Chakraborty acknowledged that the legal proceeding in India will likely take years to reach a resolution, given the slow pace of litigation in the court in which the suit was filed. She did not dispute that Mr. Bandyopadhyay would be precluded from selling the property while the litigation is ongoing. She testified that she does not care if the Kolkata flat is sold, so long as she receives her equalization payment. She stated that she would be willing to withdraw the lawsuit in India, but only after this family law proceeding is concluded. She invited the court to make an order requiring her to sign the necessary documents to discontinue her claim in India. This court does not have jurisdiction to do so.
53Mr. Bandyopadhyay remains concerned that he will not be able to obtain vacant possession of the flat and sell it, even after this family law proceeding is concluded, because of the lawsuit in India. He has no interest in maintaining the property and he believes that Ms. Chakraborty’s relatives wish to continue to occupy the flat, so he requested an order to transfer title to Ms. Chakraborty and to attribute the value of the flat to her in the calculation of her net family property. This court does not have jurisdiction to make such an order.
ISSUES
54Both parties are seeking an Order for divorce. Either party may apply in writing, with submission of the requisite documentation and fee, for a simple divorce.
55In addition to providing reasons for the final orders that I made at the conclusion of the trial, these Reasons for Judgment will address the following corollary issues that remain to be decided:
a) equalization of the parties’ net family properties, including Ms. Chakraborty’s claim for a variation of shares;
b) post separation adjustments claimed by both parties;
c) allocation of parental decision-making authority;
d) holiday parenting schedule;
e) ancillary parenting orders;
f) calculation of the parties’ annual incomes since the date of separation, including whether any income should be imputed to either of them;
g) Ms. Chakraborty’s claims for retrospective and prospective child support;
h) Ms. Chakraborty’s claims for retrospective and prospective spousal support;
i) security for Mr. Bandyopadhyay’s support payments;
j) determination of eligible s.7 expenses and the parties’ proportionate contributions to those expenses, retrospectively and prospectively;
k) Mr. Bandyopadhyay’s claim for occupation rent; and
l) costs of the proceeding.
EQUALIZATION OF NET FAMILY PROPERTIES
Parties’ Positions
56Ms. Chakraborty claims that she is entitled to an equalization payment in the amount of $40,009, but she is asking the court to order an “unequal division” (i.e. variation of the parties’ shares) in her favour. Mr. Bandyopadhyay claims that he is entitled to an equalization payment in the amount of $72,741; his claim presupposes that the value of his Kolkata flat will be included among Ms. Chakraborty’s assets in the calculation of her net family property.
57As explained below, both parties are over-reaching with their equalization claims.
Statutory Framework for Equalization Calculation
58The equalization regime set out in Part I of the Family Law Act, R.S.O. 1990, c.F.3, requires the Court to calculate each spouse’s net family property. The spouse whose net family property is the lesser of the two is entitled to an equalization payment of one-half the difference between them, unless the court is of the opinion that equalization would be unconscionable having regard to the circumstances, in which case the court may vary the spouse’s shares: Family Law Act, 5(1) and 5(6).
59“Net family property” is defined in the Family Law Act as follows:
4(1) the value of all the property, except property described in subsection (2), 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.
60The value of certain property is excluded from the calculation, including gifts and inheritances acquired from a third person after the date of marriage: Family Law Act, s.4(2)1.
61The onus of proving a deduction under s.4(1) or an exclusion under s.4(2) is on the spouse claiming it: Family Law Act, s.4(3).
Total Value of Property Owned on the Valuation Date
62The parties agree that the valuation date is January 26, 2018, the day they separated with no reasonable prospect of reconciliation.
Land and Real Estate Holdings
63Mr. Bandyopadhyay estimates that the jointly owned matrimonial home was worth $850,000 on the date of separation. Ms. Chakraborty originally estimated the value to be $900,000, but she later accepted the $850,000 value in her Net Family Property Statement dated March 15, 2021.
64The parties also owned a joint interest in an under-construction condominium unit in Mississauga, toward which they had made deposits totalling $38,160 during the marriage. On the last day of trial, they were entertaining offers from prospective purchasers, with a view to assigning their interest in the condo unit before the closing date of the transaction with the builder. It was apparent that the value of the parties’ interest in the unit had increased significantly beyond the amount that they had paid for it. However, there is no evidence regarding the value on the date of separation. Both parties used the amount of the deposit as the valuation date value, so I will adopt that approach.
65Mr. Bandyopadhyay estimates that his flat in Kolkata was worth the equivalent of $100,000 CND on the valuation date. He adduced supporting evidence establishing the market value of comparable properties in India. Ms. Chakraborty did not contest the estimated $100,000 value, so I have accepted it. Given that she blocked the appraisal of the property ordered by Price J., she could hardly object to the value proposed by Mr. Bandyopadhyay.
Household Items
66Mr. Bandyopadhyay estimates that the jointly owned contents of the matrimonial home (furniture, lamps, accent mirrors, etc.) had a value of $10,000, plus an additional $3,000 for electronics (televisions, stereo system, laptop, fitness equipment). In a Financial Statement sworn on March 8, 2019, Ms. Chakraborty estimated the value of her interest in the household contents as $10,000, plus $2,000 for electronics. She explained that she made an error by listing the total value of these items as the value of her half interest, which I accept as credible. I will therefore treat these amounts as her evidence of the total value of the household goods.
67Neither party adduced any evidence to support their valuations. I have adopted the mid-point value of $12,500 for all the contents, including electronics.
68The evidence establishes that Ms. Chakraborty retained the household furnishings and goods when the parties separated, except for a laptop and printer that Mr. Bandyopadhyay removed from the home. She valued the laptop and printer at approximately $500 on the date of separation, which is not contested by Mr. Bandyopadhyay. Ownership of the household contents (other than the laptop and printer) has effectively been transferred to her, so they are deemed to be her assets for the purpose of calculating her net family property.
Vehicles
69Mr. Bandyopadhyay was driving a leased Nissan Rogue on the date of separation. The value of the Nissan is not relevant because it was not owned by either party. Mr. Bandyopadhyay owned a Toyota Corolla, which Ms. Chakraborty was driving. She initially deposed, in a Financial Statement dated April 3, 2018, that the Toyota had a value of $12,000, but at trial, she accepted Mr. Bandyopadhyay’s estimate of the value as $5,000 effective the date of separation. The latter value is supported by evidence of an insurance claim settlement in respect of the vehicle in the fall of 2018.
Jewelry
70Mr. Bandyopadhyay claims that the parties owned jewelry worth between $16,000 and $20,000 when they separated. He alleges that Ms. Chakraborty has retained this jewelry and has prevented a proper appraisal of its value. He estimates that the current value is about $35,000 to $40,000. He submits that the jewelry should be treated as her exclusive asset in the equalization calculation.
71Ms. Chakraborty acknowledges that she has some jewelry in her possession, but she claims that it was worth only $2,000 on the date of separation. She says that the only reason it was not formally appraised is because Mr. Bandyopadhyay made no effort to initiate an appraisal. The parties both testified at length about the jewelry and its value.
72Mr. Bandyopadhyay said he purchased numerous items of jewelry for them to wear on their wedding day. He recalled the purchase price in Indian lakhs and testified that the Canadian equivalent would be about $10,000. He produced no supporting documentation to corroborate this testimony, but it was not contested by Ms. Chakraborty, so I have accepted it as credible evidence of the value of the jointly owned jewelry on the date of marriage. Determining the value of the jewelry on the date of separation is complicated by an intervening event, namely a burglary of the parties’ home during which some of the jewelry was stolen.
73Both parties testified that jewelry and electronics were stolen from their former residence in October 2009. Ms. Chakraborty stated that all the wedding jewelry was taken, except for two bangles that were in India. Mr. Bandyopadhyay testified that only about one third of the wedding jewelry was stolen. He stated that approximately two thirds of the jewelry was in India when the burglary occurred and was later brought by the parties to Canada. He said the jewelry that was spared during the burglary was still in their possession on the date of separation. He believes that jewelry is now in Ms. Chakraborty’s sole possession.
74An insurance claim was made by the parties after the burglary. Ms. Chakraborty produced an Assessment Report from the insurer itemizing the property for which indemnification was claimed. The list includes numerous gold items (i.e., earrings, necklaces, rings with jewels, wristlets, headbands, etc.) purchased from jewellers in India, including P.C. Chandra, Anjali, and R. Chowdhury & Sons, as well as pearls and silver items. The extensive list contradicts Mr. Bandyopadhyay’s testimony to the effect that only a few pieces of the wedding jewelry were taken during the burglary.
75At the time of the burglary, there was a $3,000 maximum limit in the parties’ insurance policy for indemnification of lost jewelry. They received reimbursement of that full amount. The parties agree that the actual value exceeded $3,000, but there is no evidence upon which I can determine by how much. The evidence establishes, however, that a significant amount of jewelry was taken.
76Mr. Bandyopadhyay gave uncontradicted evidence that all the jewelry was purchased at reputable jewellers in India, implying that it was authentic, of excellent quality, and expensive. Ms. Chakraborty’s assertion that the items listed in the insurance report represent the full $10,000 of wedding jewelry is therefore probable. I conclude that virtually all the wedding jewelry owned by the parties was stolen in 2009.
77Mr. Bandyopadhyay says that the parties purchased several additional expensive items of jewelry during trips to India after the burglary, on the occasion of a family wedding and for their son’s rice ceremony. I find this evidence to be both credible and probable, given the parties’ mutual testimonies about the cultural significance of jewelry, their practice of wearing jewelry at cultural events, and their extensive involvement in the Bengali-Canadian community. It is likely that they purchased replacement jewelry to wear at special events after their wedding jewelry was stolen.
78Mr. Bandyopadhyay testified that, after the burglary, their jewelry was stored for safekeeping in a safety deposit box at CIBC. As noted previously, he estimates that the total value, on the date of separation, was between $16,000 and $20,000. That estimate, however, includes some of the wedding jewelry, which I have concluded was stolen prior to the parties’ separation.
79Mr. Bandyopadhyay testified that he reached out to Ms. Chakraborty after they separated, in February 2018, and asked her to go to the bank and take photos of the jewelry so that they could have it appraised. When she did not respond, he said he contacted the bank and learned that she had closed the safety deposit box on January 2 or 3, 2018. He argues that she must have removed all the jewelry.
80The out-of-court statements made by bank personnel are not admissible for their truth, because they do not satisfy the threshold requirements of necessity and reliability to come within the principled exception to the hearsay exclusion rule. Mr. Bandyopadhyay could have, but did not, call any evidence from a representative of the bank, nor did he adduce any documentary evidence to corroborate when the safety deposit box was closed and by whom.
81Ms. Chakraborty acknowledges that she had a safety deposit box. She testified that she closed it in early 2021 because of the cost. She said she used it to store passports and important identity papers, as well as some small jewelry items. She stated that most of the jewelry items were gifted to S.B. by family members. Any such gifts would be excluded from the calculation of their net family properties.
82Ms. Chakraborty denies removing any jewelry from the safety deposit box in 2018. She denies currently being in possession of a large amount of jewelry for herself. As noted previously, she estimates the total value of her jewelry to have been about $2,000 on the date of separation.
83At a Case Conference on March 12, 2018, the parties consented to an Order to attend for a valuation of the jewelry in Ms. Chakraborty’s possession. Price J. ordered that Ms. Chakraborty was responsible to ensure the valuation occurred by May 31, 2018. It did not occur.
84Mr. Bandyopadhyay submits that an adverse inference should be drawn against Ms. Chakraborty regarding the value of the jewelry because she frustrated the valuation process and breached a court order. Ms. Chakraborty testified that Mr. Bandyopadhyay never contacted her to conduct a valuation of the jewelry after Price J. made the Order. It was not his obligation to do so, but in any event, the record contains email correspondence in 2018 in which Mr. Bandyopadhyay urges Ms. Chakraborty (more than once) to take steps for the valuation of the jewelry to be completed. I therefore reject Ms. Chakraborty’s evidence on this point.
85I accept Mr. Bandyopadhyay’s submission that, in these circumstances, an adverse inference should be drawn against Ms. Chakraborty. Specifically, I infer that she resisted the valuation of the jewelry because she knew the outcome would be an appraised value that far exceeds the $2,000 she claims. The jewelry will therefore be valued at a commensurate amount. However, given my finding about the loss of the wedding jewelry to theft, I am not prepared to adopt the estimated value of $16,000 to $20,000 advanced by Mr. Bandyopadhyay.
86I note that in an email message to Ms. Chakraborty on August 9, 2018,1 Mr. Bandyopadhyay suggested that they sell all the jewelry to help pay for the mortgage. In that message, he estimated the value of the jewelry to be $8,000 to $10,000. I will therefore impute a mid-point value of $9,000 to the jewelry that was in Ms. Chakraborty’s possession on the date of separation. The jewelry will be treated as her exclusive asset as of that date because Mr. Bandyopadhyay has had no access to it.
Savings and Investments
87The parties had a joint ICICI bank account in Kolkata, India, with a balance equivalent to $4,680 CND on the valuation date. Although the account is in both of their names, Ms. Chakraborty testified that she was not aware of its existence until after the parties separated. Her evidence on this point was neither challenged nor contradicted by Mr. Bandyopadhyay. Only he had access to the account both prior to and after the parties’ separation. I will therefore treat the funds in this account as his exclusive property.
88The parties also had a joint registered education savings plan (“RESP”) for their son, with a balance of $15,404 on the date of separation.
89In addition to the above joint savings, Mr. Bandyopadhyay had two individual chequing accounts, a tax-free savings account (“TFSA”), and two registered retirement savings plans (“RRSPs”). Ms. Chakraborty had a personal chequing account, a savings account, a TFSA and three RRSP accounts. The balances in these accounts on the date of separation are not in dispute and are shown in a chart below.
Pension
90Mr. Bandyopadhyay has a pension with his employer, IBM. He was ordered by Price J. on March 12, 2018 to produce either a Family Law Statement of Value for the pension or valuations as of the date of marriage and the date of separation. He did not comply with this production order. He did, however, produce an IBM pension statement showing the value of his plan on December 31, 2017 as $60,853. That document does not constitute a proper valuation of the pension. It does not, for example, take notional disposition costs into account.
91Given the lack of evidence on the value of the pension, it will be addressed separately from the equalization of the parties’ net family properties through a division of the pension at source. Specific orders regarding the pension appear later in this Judgment.
Total Debts and Liabilities on the Valuation Date
92The parties have a mortgage loan and a HELOC secured against the matrimonial home. The principal mortgage balance owing on the date of separation was $495,607. The balance owing on their joint HELOC account was $79,198.
93On the date of separation, Mr. Bandyopadhyay had small balances outstanding on his TD Visa credit card and on a Walmart Mastercard. Ms. Chakraborty also had small balances outstanding on two Visa credit cards. The amounts outstanding are not in dispute and are shown on a chart below.
Net Value of Property on Date of Marriage
94As noted above, the parties jointly owned $10,000 worth of jewelry on the date of marriage.
95The parties agree that Ms. Chakraborty had no other assets of value and no debts on the date of marriage.
96When they married, Mr. Bandyopadhyay owned his flat in Kolkata, worth $43,000 CND, and household items worth $2,800. These amounts are not disputed. He testified that his father helped him purchase the flat and that he had no debt in connection with the purchase on the date of marriage. Ms. Chakraborty testified that he had a mortgage loan with a high interest rate. She adduced no corroborating evidence to prove the existence of the alleged loan and gave no testimony about the balance that was purportedly owing on the date of marriage. Furthermore, her evidence regarding this alleged mortgage debt was not put to Mr. Bandyopadhyay when he testified, as required by the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). I conclude that there is insufficient evidence upon which I could reasonably find that Mr. Bandyopadhyay owed money on a mortgage loan associated with his Kolkata flat on the date of marriage. There is no evidence that he had any other debts or liabilities on the date of marriage.
Calculation of Net Family Properties
97Based on the above findings of fact, the following charts set out the calculation of each party’s net family property.
| Assets on Valuation Date | S. Bandyopadhyay | S. Chakraborty |
|---|---|---|
| Matrimonial Home | $ 425,000 | $ 425,000 |
| Condominium | $ 19,080 | $ 19,080 |
| Flat in Kolkata | $ 100,000 | |
| Household goods | $ 500 | $ 12,000 |
| Toyota | $ 5,000 | |
| Jewelry | $ 9,000 | |
| ICIC bank account | $ 4,680 | |
| RESP account (joint) | $ 7,702 | $ 7,702 |
| CIBC chequing account | $ 9,463 | |
| CIBC savings account | $ 565 | |
| CIBC TFSA | $ 8,166 | |
| CIBC RRSP GIC | $ 35,253 | |
| CIBC RRSP Mutual Funds | $ 631 | |
| RBC RRSP | $ 13,391 | |
| TD chequing account | $ 4,904 | |
| CIBC chequing account | $ 3,014 | |
| CIBC TFSA | $ 1,613 | |
| CIBC RRSP | $ 109 | |
| RRSP GIC | $ 30,285 | |
| TOTAL A: Value of All Assets on Valuation Date | $ 601,887 | $ 540,251 |
| Debts and Liabilities on Valuation Date | Mr. Bandyopadhyay | Ms. Chakraborty |
|---|---|---|
| Mortgage on Matrimonial Home | $ 247,803 | $ 247,803 |
| HELOC | $ 39,599 | $ 39,599 |
| TD Visa credit card | $ 661 | |
| Walmart Mastercard | $ 3,984 | |
| CIBC Visa credit card | $ 175 | |
| CIBC Visa Infinite credit card | $ 479 | |
| TOTAL B: Total Debts on Valuation Date | $ 292,047 | $ 288,056 |
| Net Worth on Date of Marriage | Mr. Bandyopadhyay | Ms. Chakraborty |
|---|---|---|
| Flat in Kolkata | $ 43,000 | |
| Household goods | $ 2,800 | |
| Jewelry | $ 5,000 | $ 5,000 |
| Minus Debts | (n/a) | (n/a) |
| TOTAL C: Value of All Assets Less Debts on Date of Marriage | $ 50,800 | $ 5,000 |
| Calculation of Net Family Properties | Mr. Bandyopadhyay | Ms. Chakraborty |
|---|---|---|
| TOTAL A: | $ 601,887 | $ 540,251 |
| minus TOTAL B: | $ 292,047 | $ 288,056 |
| minus TOTAL C: | $ 50,800 | $ 5,000 |
| = Net Family Property: | $ 259,040 | $ 247,195 |
Equalization Payment
98Mr. Bandyopadhyay’s net family property exceeds Ms. Chakraborty’s net family property by $11,845 ($259,040 - $247,195). She is therefore entitled to an equalization payment of $5,922 (i.e. half of $11,845).
Pension Valuation and Division
99In addition to the above equalization payment, Ms. Chakraborty is entitled to a 50% share of the value of Mr. Bandyopadhyay’s pension that accrued during the marriage. Pursuant to s.67.2(6) of the Pension Benefits Act, R.S.O. 1990, c.P.8, either spouse may apply to the administrator of Mr. Bandyopadhyay’s pension plan for a statement of the imputed value of the pension for family law purposes. Ms. Chakraborty is directed to make that application. Mr. Bandyopadhyay shall provide her, upon request, with any information that is necessary to complete the application. If she incurs a fee for the application, it shall be promptly reimbursed by Mr. Bandyopadhyay upon submission of proof of payment to him.
100Once both parties receive the statement from the pension plan administrator pursuant to s.67.2(9) of the Pension Benefits Act, Ms. Chakraborty may apply, under s.67.3(1) of the Act, for an immediate transfer of a lump sum equal to half the family law imputed value of the pension, from Mr. Bandyopadhyay’s pension plan to a retirement savings plan identified by Ms. Chakraborty, as prescribed under s.67.3(2)2 of the Act.
Variation of Shares
101Approximately $79,000 is currently owing on the parties’ joint HELOC, roughly $39,000 of which was used to pay deposits on the purchase of the parties’ joint interest in their investment condominium. Ms. Chakraborty argues that Mr. Bandyopadhyay should be ordered to pay the remaining $40,000 joint debt because (she alleges) he was financially irresponsible in the manner in which he incurred the debt. The court does not have jurisdiction under the Family Law Act to apportion liability between the parties for joint debt accrued during the marriage. Her request is therefore denied.
102She argues, in the alternative, that the court should award her more than half the difference between the parties’ net family properties based on the joint HELOC debt incurred as a result of Mr. Bandyopadhyay’s spending. The onus is on her to prove that equalization, in the circumstances, would be unconscionable under one of the subparagraphs of s.5(6) of the Family Law Act:
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse's failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse's net family property were incurred recklessly or in bad faith;
(c) The part of a spouse's net family property that consists of gifts made by the other spouse;
(d) a spouse's intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.
103Ms. Chakraborty argues that, during the marriage, Mr. Bandyopadhyay made numerous withdrawals from the HELOC for his sole benefit and without her knowledge or consent. In particular, she relies on a substantial withdrawal of $30,497 in October 2016, used to pay the balance on a personal line of credit that he had acquired to help finance construction of his parents’ home in India. Her evidence, however, is that he discussed that transaction with her beforehand and explained that he wanted to use the HELOC to pay off his line of credit because the HELOC had a lower interest rate. She admits that she agreed to the debt consolidation at the time, so she cannot now reasonably argue that these circumstances give rise to unconscionability.
104The intent of s.5(6) of the Family Law Act “is not to alleviate every situation that may be viewed as in some ways unfair or inequitable”: Ward v. Ward, 2012 ONCA 462, 111 O.R. (3d) 81, at para. 25. As the Court of Appeal stated in Ward, at para. 25:
Equal sharing should occur in most cases. The Act creates a scheme for property sharing upon marriage breakdown that is intended to promote predictability and thereby discourage litigation. If courts were to deviate from the scheme of the Act wherever it gave rise to an unfair result, this would have the undesirable effect of encouraging parties to litigate their claims.
105Ms. Chakraborty argues that Mr. Bandyopadhyay was financially irresponsible. She submits that he recklessly acquired debt throughout the marriage, for which she is now jointly liable. The bank records show that Mr. Bandyopadhyay regularly transferred sums of money from the HELOC to his TD chequing account to help pay for family expenses, as needed. When the parties’ combined incomes in any given month were insufficient to meet their financial obligations, he drew from the HELOC to avoid defaulting on any bills. He did this with increasing frequency over the years. He testified that he discussed it with Ms. Chakraborty. I accept his testimony on this point as credible.
106Mr. Bandyopadhyay stated that the family expenses were always more than the parties’ incomes, so their finances were difficult to manage. The documentary record substantiates this evidence. However, it also shows that he made several payments toward the balance of the HELOC from his personal chequing account in 2017. Ms. Chakraborty also made one payment toward the HELOC in 2017. Still, the parties were maintaining their lifestyle by living off credit. He testified that he told Ms. Chakraborty they were near a tipping point. I accept this evidence as credible.
107The evidence does not support Ms. Chakraborty’s contention that Mr. Bandyopadhyay was being reckless with the money or was incurring joint debt without her knowledge. He provided credible explanations for the withdrawals made from the HELOC up to November 2017. They all related to family expenses (e.g., payments for family trips to India and Chicago, for repairs on the roof of the matrimonial home, property taxes and costs associated with a lavish birthday party for S.B.). He may not have consulted Ms. Chakraborty before making each of these withdrawals and payments, but that was the arrangement they agreed to. He handled the finances. She testified that she “was fine” with that arrangement. She was aware that their debt was increasing and was content to let him manage their money.
108At trial, Ms. Chakraborty expressed outrage about a series of e-transfers that Mr. Bandyopadhyay made from the HELOC account to his TD chequing account in the four weeks prior to their separation. When she discovered these transactions, she immediately went to the bank to have the HELOC account frozen. She suspects that he used the money to fund expenses relating to his girlfriend, with whom he was having an affair. She submits that it would be unconscionable, in the circumstances, for the court to equalize their net family properties without relieving her of the financial consequences of his actions.
109The record establishes that, between December 20, 2017 and January 22, 2018, Mr. Bandyopadhyay made six separate withdrawals in amounts ranging from $2,000 to $6,000, totalling $20,500. The HELOC bank statements also show that, from as early as February 2014, he made regular withdrawals from the account, typically in amounts of $1,000 to $3,000. He used that money to pay for family expenses. It was not unusual for him to make two or three of such withdrawals in a single month to pay expenses, although not exceeding a total of about $3,500 in a month (with one exception, in August 2014, when $7,000 was withdrawn). The six withdrawals amounting to $20,500 in the four weeks immediately prior to Mr. Bandyopadhyay’s departure from the matrimonial home are therefore unusual and suspiciously timed transactions that require an explanation.
110Mr. Bandyopadhyay claims that all the money withdrawn from the HELOC in the weeks prior to their separation was used to pay family expenses. He testified that December 2017 was a festive month, so the family spent about $500 on gifts and $500 on entertainment. He said approximately $1,300 was spent on winter clothing, their cars required servicing at a cost of $800, a CRA tax payment was made in the amount of $4,715, a deposit on the Mississauga investment condominium was paid in the amount of $8,290 and mortgage and household utility bills amounted to almost $3,500. He stated that the majority of these expenses were paid using the HELOC funds that were transferred to his chequing account. However, it is apparent from the record that at least some of these expenses (i.e., auto mechanics and entertainment) were paid using his TD Visa credit card.
111Mr. Bandyopadhyay produced bank statements for his TD chequing account. The funds withdrawn from the HELOC in December 2017 and January 2018 are traceable to that account. The bank statements show how the money was spent. The deposit for the condominium in the amount of $8,290 is corroborated by a cheque withdrawal on January 25, 2018. However, there is no evidence of a $4,715 CRA tax payment from the account.
112It is unclear why Mr. Bandyopadhyay would have needed to borrow so much money from the HELOC to pay routine expenses such as clothing, mortgage payments and utility bills. He was not, at that time, maintaining a separate household for himself. The parties therefore ought to have had enough cash flow to make the necessary payments by borrowing no more than their usual maximum of $3,500 from their HELOC.
113There are a series of e-transfers out of Mr. Bandyopadhyay’s chequing account in the months of November 2017, December 2017 and January 2018 that at least partially explain why Mr. Bandyopadhyay was required to borrow such large sums from the HELOC to pay the regular monthly bills at that time. The bank statements for his TD chequing account show the following e-transfers out of the account:
November 3, 2017 $2,500
November 8, 2017 $2,000
December 7, 2017 $ 250
January 5, 2018 $ 225
January 12, 2018 $2,000
114Mr. Bandyopadhyay could not explain these transfers. Their destination cannot be determined based on the documentary record. These were not the first e-transfers out of his TD chequing account, but previous transfers in the amounts of $2,000 and $3,000 (earlier in 2017) are traceable to the HELOC. In other words, during the marriage, he sometimes used money from his personal chequing account to pay down the balance owing on the HELOC. That is not, however, what he was doing in November 2017 through January 2018. A total of about $7,000 was e-transferred out of his chequing account into an unknown account or unknown accounts. These withdrawals reduced the balance in the TD chequing account, which contributed to Mr. Bandyopadhyay’s need to withdraw more money than usual from the HELOC in December 2017 and January 2018.
115Mr. Bandyopadhyay’s explanation for the six questionable transfers out of the HELOC in December 2017 and January 2018 is incomplete and not entirely credible. I accept that about $3,500 of the money was probably used to pay family expenses, which is typical of the parties’ historical pattern of spending and their habit of using the HELOC to support their lifestyle. I also accept that $8,290 of the money borrowed from the HELOC was used by Mr. Bandyopadhyay to make a deposit on the parties’ jointly owned interest in the condominium property. However, most of the rest of the money transferred to Mr. Bandyopadhyay’s personal bank account (i.e., $8,7102) ended up being transferred to another unidentified account (or accounts), for which no explanation has been provided.
116I infer that the money was either transferred to an undisclosed bank account owned by Mr. Bandyopadhyay or to someone else’s account for some undisclosed purpose. It is notable that the transfers occurred while the parties’ marriage was unravelling. The evidence at trial includes an email from Ms. Chakraborty to Mr. Bandyopadhyay in September 2017 entitled “We need a divorce”. In that message, she bemoans the acrimony between them and its negative impact on S.B. She writes, “I will figure out my next move quietly once I do I will let you know two months ahead so we can figure out other things.” Clearly, Mr. Bandyopadhyay would have known that their separation was imminent.
117Furthermore, the evidence establishes that, by December 2017, Ms. Chakraborty was aware of Mr. Bandyopadhyay’s girlfriend. Their marital discord was escalating to the point where the police were called for a domestic disturbance. Mr. Bandyopadhyay ended up leaving the matrimonial home with only his personal belongings on January 26, 2018.
118Given the totality of the circumstances - including the timing of the withdrawals and the unexplained transfers to unidentified account(s) - I find, on a balance of probabilities, that $8,710 of the money withdrawn from the HELOC was taken by Mr. Bandyopadhyay for his sole benefit, in contemplation of the parties’ impending separation. There is no evidence that he was spending the money on his girlfriend, as Ms. Chakraborty suspects, but he was likely planning and financing his departure from the matrimonial home. The withdrawals were made without Ms. Chakraborty’s knowledge or consent. In these circumstances, I conclude that he incurred this portion of the HELOC debt in bad faith, within the meaning of s.5(6)(b) of the Family Law Act.
119The next issue for me to determine is whether equalization of the parties’ net family properties is unconscionable, having regard to these circumstances. Matrimonial misconduct is not a factor justifying a variation of shares under s.5(6) of the Family Law Act. The fact that Mr. Bandyopadhyay committed adultery is irrelevant to the analysis. But fault-based conduct relating directly to the parties’ net family properties (e.g. diverting or depleting assets, disposing of property or acquiring debt) is a relevant consideration.
120The threshold of unconscionability is high: Ward, at para. 33. It is not sufficient for equalization to be merely unfair or inequitable. There must be circumstances that shock the conscience of the court; Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.
121In the totality of the circumstances of this case, I find that it would be unconscionable to equalize the parties’ net family properties, without a variation of shares to account for the $8,710 in joint debt that was incurred by Mr. Bandyopadhyay in bad faith. In the context of the history of this spousal relationship, in which Ms. Chakraborty implicitly trusted Mr. Bandyopadhyay with their finances, and he took advantage of that trust by incurring joint debt without her knowledge so that he could finance his impending departure from the marriage, I find that it would be inordinately inequitable and shockingly unfair to burden Ms. Chakraborty with any portion of that debt.
122The parties are jointly liable for the entire balance owing on the HELOC. There is nothing I can do to alter that fact. However, I can award Ms. Chakraborty more than half the difference between their net family properties to ensure that Mr. Bandyopadhyay is effectively held responsible for 100% of the $8,710 in debt that he incurred in bad faith, rather than only half that amount. I therefore order that Ms. Chakraborty’s equalization payment (i.e., her half of the difference between the parties’ net family properties) be increased by $4,355 (half of $8,710).
123Ms. Chakraborty also asks the court to order Mr. Bandyopadhyay to pay her $30,000 to compensate her for money that she claims he took from her bank account in February 2017. She framed this claim as a post-separation adjustment, but it arises from events that pre-date their separation. It is grounded in circumstances relating to the acquisition of property during the marriage and must therefore be considered as a request for a further variation of her share of the parties’ net family properties, pursuant to s.5(6)(h) of the Family Law Act.
124Ms. Chakraborty testified that, in February 2017, Mr. Bandyopadhyay emailed their financial advisor stating that he wanted $30,000 withdrawn from her account. She had authorized the bank to allow him to direct transactions from her account. He copied her on the email, so she was aware of the withdrawal. Ms. Chakraborty said she questioned him about it, and he told her that he had deposited the money into her RRSP for tax purposes. She did not oppose this at the time, but after they separated, she discovered that only $20,000 had been deposited to her RRSP and $10,000 had been deposited to his RRSP without her knowledge or consent. Mr. Bandyopadhyay did not deny these facts.
125I questioned Ms. Chakraborty about the logic behind her request for a payment of $30,000 from Mr. Bandyopadhyay, given that only $10,000 of the money from her account was deposited to his RRSP. She said she felt entitled to the full $30,000 because Mr. Bandyopadhyay would have benefitted on his income taxes from the $10,000 contribution to his RRSP. That explanation makes no sense.
126Based on the evidence of both parties at trial, Ms. Chakraborty was clearly content during the marriage to transfer large sums of money to Mr. Bandyopadhyay whenever he needed it. She testified that it was all “family money”. She entrusted him with the responsibility to pay their bills and to make investments on their behalf. Her testimony regarding the RRSP contributions in February 2017 is consistent with this arrangement and is not evidence of any circumstances that would give rise to unconscionability if the equalization payment to Ms. Chakraborty were not further increased.
127In any event, Ms. Chakraborty fails to understand that any disparity between the parties’ accrued net worth during the marriage is rectified by the equalization payment. The $10,000 that Mr. Bandyopadhyay deposited to his RRSP account has been equalized in her favour. Had it been deposited to her RRSP account instead, as she argues it should have been, then it would have been equalized in his favour. The outcome would be the same.
POST-SEPARATION ADJUSTMENTS
Carrying Costs for the Matrimonial Home
128For the first few months after the parties separated, Mr. Bandyopadhyay voluntarily paid all the carrying costs for the matrimonial home. As set out above, there were subsequent temporary pre-trial orders requiring the parties to contribute to the mortgage, property taxes, and home insurance premiums on a one-third / two-thirds basis. Mr. Bandyopadhyay was ordered to pay 2/3 commencing November 1, 2018. Ms. Chakraborty was ordered to pay 2/3 commending February 1, 2020. There was only partial compliance with these orders. Both parties violated the court orders to some extent.
129Ms. Chakraborty argues that the Temporary Orders of Bloom J. and Fowler Byrne J. should be made final for the post-separation period up to the conclusion of the trial. In other words, she argues that Mr. Bandyopadhyay should be required to pay 2/3 of the carrying costs for the matrimonial home from January 2018 to March 2021 inclusive. Plus, she claims reimbursement for any overpayment that she made based on her 1/3 share.
130There is no basis for this claim. Considering that Ms. Chakraborty is also seeking retrospective child support and spousal support effective the date of the parties’ separation, it would be inequitable to require Mr. Bandyopadhyay to be responsible for 2/3 of the carrying costs of the jointly owned home, especially since she had exclusive possession of the home during the relevant period.
131The matrimonial home is jointly owned. I ordered that it be listed for sale at the conclusion of the trial, and that the net proceeds of sale be held in trust (i.e., after the mortgage is discharged, the mortgagee’s fees and penalties are paid, the arrears of property taxes are paid, legal fees and other transactional costs are paid). The trust funds will eventually be divided equally between the parties, although disbursement of their respective shares will be subject to any orders I make to satisfy payment of monies owed by either party.
132As joint owners of the matrimonial home, they have benefitted equally from the home insurance since the date of separation. When they eventually access the equity in the home, they will benefit equally from the payments made toward the mortgage loan and property taxes, and from the increased market value of the property since the date of separation. They should therefore be equally responsible for the carrying costs from the date of separation. There is simply no justification for Ms. Chakraborty to share equally in the increased value of the property while contributing only 1/3 of the carrying costs of the property for the past three and a half years.
133I have calculated the total contributions of each party to the mortgage, property taxes and home insurance premiums since the date of separation (below). I will order an offset payment of half the difference to whichever spouse made the greater contribution. This order will ensure that the parties make equal contributions to the carrying costs from the date of separation.
Home Insurance Premiums
134Mr. Bandyopadhyay paid all the home insurance premiums from the date of the parties’ separation until the trial. He paid a total of $3,617.
Property Tax Payments
135Mr. Bandyopadhyay contributed a total of $3,281 toward property taxes after the parties separated. Ms. Chakraborty contributed a total of $3,659.
Mortgage Payments
136Ms. Chakraborty contributed a total of $26,640 toward the mortgage between November 2018 and January 2020. This includes credit for the $7,579 of child support and spousal support that was remitted to her by the FRO in January 2019 and subsequently seized by the bank to pay toward the mortgage.
137Mr. Bandyopadhyay paid a total of $34,669 toward the mortgage after the date of separation. This includes all the voluntary payments he made prior to Bloom J.’s order in October 2018.
Calculation of Contributions Toward Carrying Costs
138Based on the above, the parties’ respective post-separation contributions to the carrying costs for the matrimonial home are set out in the chart below.
| Nature of Expense | Amounts Paid by Mr. Bandyopadhyay | Amounts Paid by Ms. Chakraborty |
|---|---|---|
| Home insurance premiums | $ 3,617 | |
| Property taxes | $ 3,281 | $ 3,659 |
| Mortgage payments | $ 34,669 | $ 26,640 |
| Total contributions made: | $ 41,567 | $ 30,299 |
139The parties are responsible for sharing the carrying costs equally. Mr. Bandyopadhyay paid $11,268 more than Ms. Chakraborty ($41,567 - $30,299), so she must pay him half that amount. In short, she owes him a net amount of $5,634 for her share of the carrying costs that he paid on her behalf.
Utilities Related to the Matrimonial Home
140Ms. Chakraborty led evidence of the amount she spent on utilities for the matrimonial home between February 2018 and March 2021. She had exclusive possession of the matrimonial home throughout that period. Mr. Bandyopadhyay did not benefit from those payments because he was not consuming the utilities. Consequently, no post-separation adjustment is owed to her.
141For approximately four months after the parties separated, Mr. Bandyopadhyay paid all the utilities associated with the matrimonial home, even though he was no longer residing in the home. Ms. Chakraborty benefited exclusively from these payments and must therefore reimburse him the cost.
142The evidence establishes that Mr. Bandyopadhyay paid a total of $1,531, post-separation, toward the hydro, water and gas utilities. He also paid $291 toward the home security system, $262 toward the home internet bill, and $68 toward the home phone bill, as well as $475 toward Ms. Chakraborty’s personal cell phone bill. He is entitled to full reimbursement of these amounts totalling $2,627.
Auto Insurance Benefits
143Ms. Chakraborty asks the court to order a post-separation adjustment in the amount of $4,300 on the basis that Mr. Bandyopadhyay took the auto insurance benefits cheque after she was involved in a motor vehicle accident in the fall of 2018. I addressed the issue of ownership of the vehicle in my February 7, 2020 mid-trial ruling. The car belonged to Mr. Bandyopadhyay. He purchased it and he was paying the insurance premiums. He was therefore entitled to keep the money from the insurer, which was paid to indemnify him for the loss of the vehicle. The fact that he was allowing Ms. Chakraborty to drive the car and that she was driving it when the accident occurred does not entitle her to that money.
144I note, moreover, that a $5,000 value has been included for the Toyota on the date of separation in the calculation of Mr. Bandyopadhyay’s net family property. Ms. Chakraborty will therefore be receiving $2,500 for the vehicle as part of her equalization payment.
Auto Insurance Premiums
145Mr. Bandyopadhyay is seeking reimbursement for auto insurance premiums that he paid on the Toyota that Ms. Chakraborty was driving. The vehicle belonged to him, so he is responsible for those premiums. Although Ms. Chakraborty benefitted from his generosity in that he allowed her to drive the car, she did not benefit from the payment of the insurance premiums. When the car was wrecked in an accident in the fall of 2018, Mr. Bandyopadhyay received the insurance benefits cheque.
HELOC Payments
146Ms. Chakraborty made a payment of $200 toward interest owing on the parties’ joint HELOC in January 2020. Mr. Bandyopadhyay benefitted equally from that payment because it is a joint line of credit. Ms. Chakraborty is therefore owed $100 by Mr. Bandyopadhyay to compensate her for half the interest she paid on their joint behalf.
147Mr. Bandyopadhyay is similarly entitled to be compensated for half the interest payments he made toward the HELOC post separation. The evidence establishes that he paid $2,844 between February to December 2018, $3,307 in 2019, $4,355 in 2020, and $313 in the first quarter of 2021, for a total of $10,819. He is therefore owed $5,409 (half of $10,819) from Ms. Chakraborty.
Costs Awarded to Amend Pleadings
148On January 31, 2019, Fowler Byrne J. granted Mr. Bandyopadhyay leave to amend his pleadings to include a claim for partition and sale of the matrimonial home, provided that the amendment was made on or before February 8, 2019. Ms. Chakraborty was given until March 8, 2019 to amend her Answer in response to the Amended Application. Mr. Bandyopadhyay was ordered to pay Ms. Chakraborty $500 within 30 days to compensate for the cost of amending her Answer. Mr. Bandyopadhyay paid the $500 but Ms. Chakraborty did not amend her Answer.
149Mr. Bandyopadhyay asks the Court to order Ms. Chakraborty to reimburse him $500 relating to the unnecessary costs that he paid. This is a reasonable request in the circumstances.
Garnished Funds
150As noted earlier in this Judgment, in October 2019, Ms. Chakraborty filed a Request for Garnishment of $27,737 from Mr. Bandyopadhyay’s employment income. A total of $10,000 was garnished and remitted to the court in 2019 and 2020. The garnished funds were later released to Ms. Chakraborty on condition that she use them to pay mortgage arrears, but she used the money to pay her legal fees instead.
151Mr. Bandyopadhyay is seeking an order for Ms. Chakraborty to reimburse him the $10,000 that was garnished from his wages. Ms. Chakraborty, on the other hand, is seeking a court order for Mr. Bandyopadhyay to pay her the outstanding balance of $17,737 that was not garnished pursuant to her Request.
152I have made final orders for post-separation adjustments relating to the carrying costs for the matrimonial home, to ensure that the parties make equal contributions to these joint expenses. Ms. Chakraborty is not entitled to any reimbursement based on her Request for Garnishment, which sought to enforce Bloom J.’s Temporary Order that Mr. Bandyopadhyay pay for 2/3 of the carrying costs.
153Mr. Bandyopadhyay, on the other hand, is entitled to be reimbursed funds that were garnished from his wages, because his obligations toward the mortgage and property taxes are satisfied by the post-separation adjustment orders that I have made. However, one of the bases for the garnishment request was the outstanding costs award of Bloom J. for $4,500. Mr. Bandyopadhyay testified at trial that he paid the costs through the garnishment. Ms. Chakraborty is therefore entitled to retain $4,500 from the garnished funds that were released to her, in satisfaction of Bloom J.’s costs award.
154In summary, Ms. Chakraborty owes Mr. Bandyopadhyay a payment of $5,500 ($10,000 - $4,500) for reimbursement of garnished wages that were remitted to her.
Summary of Post-Separation Adjustments
155Based on the above, the following chart summarizes the amounts owed by each party for post-separation adjustments.
| Reason for Adjustment | Amount Owed by Mr. Bandyopadhyay | Amount Owed by Ms. Chakraborty |
|---|---|---|
| HELOC interest payments | $ 100 | $ 5,409 |
| Utilities at matrimonial home | $ 2,627 | |
| Garnished funds | $ 5,500 | |
| Carrying costs of matrimonial home | $ 5,634 | |
| Unnecessary costs to amend Answer | $ 500 | |
| Total Amounts Owed to Opposing Party: | $ 100 | $ 19,670 |
156When the amounts are offset, Ms. Chakraborty owes Mr. Bandyopadhyay a net payment of $19,570 ($19,670 - $100) for post-separation adjustments.
PARENTING ISSUES
Statutory Framework
157The parenting issues in this case are governed by s.16 of the Divorce Act, which stipulates:
(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order….
(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.
(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
(b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
(d) the history of care of the child;
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
(f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
(g) any plans for the child’s care;
(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
(j) any family violence and its impact on, among other things,
(i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
(ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
(k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.
(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:
(a) the nature, seriousness and frequency of the family violence and when it occurred;
(b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
(c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
(d) the physical, emotional and psychological harm or risk of harm to the child;
(e) any compromise to the safety of the child or other family member;
(f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
(g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
(h) any other relevant factor.
(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.
(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.
158This is not an exhaustive list of relevant factors. The weight to be given to each factor depends on the circumstances of each case.
159The expression “family violence” is defined in s.2(1) of the Divorce Act as follows:
any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes… physical abuse, … psychological abuse, [and] financial abuse….
Parental Decision-Making Responsibility
160During the marriage, both parties were involved in making decisions about significant matters affecting S.B.’s upbringing and well-being. However, an order for ongoing shared parental decision-making responsibility is not feasible in this case. Since their separation, the parties have been incapable of agreeing on anything, particularly when it relates to S.B.
161Their inability to communicate effectively and make shared child-focused decisions is exemplified by the fact that they had their son attending different schools in Grade 1, depending on which parent was caring for him on any given day. Both parties have contributed to the dysfunction in their communications. They are not capable of co-parenting at this time.
162Both parties have struggled to make decisions and take actions in S.B.’s best interests in the wake of their separation. Mr. Bandyopadhyay, for example, was reluctant to consent to counselling for S.B. after the Children’s Aid Society (“CAS”) advised that S.B. was at risk of emotional harm due to exposure to their adult conflict. His actions delayed the commencement of the therapy, which was not in S.B.’s best interest. Mr. Bandyopadhyay also refused to bring S.B. to extra-curricular activities when they conflicted with his parenting time and were not conveniently located, which displayed a lack of child-centered decision-making.
163Ms. Chakraborty, on the other hand, gave Mr. Bandyopadhyay “the finger” during one of their recent transfers of S.B., after I ordered resumption of Mr. Bandyopadhyay’s parenting time in October 2020. She denied this, but I found Mr. Bandyopadhyay’s evidence to be credible. Her inability to restrain her expression of disdain for him in S.B.’s presence is unfortunate, not only because S.B. should be shielded from his parents’ conflict, but also because his exposure to such a gesture is not age appropriate. Young children tend to mimic their parents’ behaviour.
164Moreover, Ms. Chakraborty withheld S.B. from scheduled access visits with his father on three separate occasions in 2018. She also interfered with his court-ordered phone calls with his father. These actions do not reflect child-centered decision-making.
165In addition, both parties made unsubstantiated allegations about the other parent to the CAS. Furthermore, both parties involved the police in access exchanges, which was unnecessary and traumatic for S.B., who later expressed anxiety about his parents being taken away by the police, or the police taking him from his parents.
166Pursuant to an order made by Shaw J. in April 2018, the Office of the Children’s Lawyer (“OCL”) was invited to conduct an investigation under s.112 of the Courts of Justice Act, R.S.O. 1990, c.43 and produce a report for the court. The OCL clinical investigator, Jacqueline Pullan, drafted a report that includes recommendations relating to both parenting time and parental decision-making responsibility (referred to as “access” and “custody” in her report, in accordance with the terminology of the former provisions of the Divorce Act).
167The OCL report is dated October 26, 2018, so it was verging on obsolescence by the time the trial was concluding in March 2021. It nevertheless contains relevant evidence that is of some assistance to the Court. Notably, Ms. Pullan expressed the view in her report that “joint custody” was not feasible in this case because the extremely high conflict nature of the parents’ relationship was preventing them from being able to make joint decisions in S.B.’s best interests. She remarked:
Evaluating the concerns and evidence in this case has not made it easier to recommend custody [i.e., decision-making responsibility] to either parent because both have made choices that negatively impact S.B. and they remain entrenched in their dispute. In consideration of S.B.’s best interests, it is recommended that Ms. Chakraborty receive full custody with full decision making ability.
She added:
The OCL strongly cautions Ms. Chakraborty that if she makes decisions that impact Mr. Bandyopadhyay’s relationship with S.B. or if she makes decisions that are not in his best interest, such as arbitrarily withholding access, the court should seriously consider reversal of custody to Mr. Bandyopadhyay.
168Ms. Pullan testified at the trial, but she had little to add to the content of her report, given that she had not been involved with the family since October 2018. She confirmed that S.B. had expressed to her a fear that something bad was going to happen to his parents because the police kept showing up at the exchanges.
169Ms. Pullan was asked why she recommended that sole custody be awarded to Ms. Chakraborty, given that both parties had made choices that negatively impacted S.B. She said it was a difficult decision because both parents had made mistakes, but she felt she needed to make a recommendation for the court. She explained that the scale was ultimately tipped in Ms. Chakraborty’s favour because of Mr. Bandyopadhyay’s choice to stop making the mortgage payments in the summer of 2018, while paying tuition for S.B. to attend private school that fall. She stated that his willingness to pay the tuition while not allowing the child to have a secure home environment really bothered her, as it revealed questionable priorities. However, she also stated her belief that he felt he was doing what he thought was best for the child at the time.
170I have taken Ms. Pullan’s recommendations into account and have concluded, based on all the relevant evidence, that it is in S.B.’s best interest to grant his father exclusive decision-making responsibility for major decisions affecting his upbringing and welfare. It is important to recall that, after the OCL report was issued, Ms. Chakraborty obstructed Mr. Bandyopadhyay’s parenting time, without justification, for an extended period of approximately 15 months, commencing in July 2019. Her actions and decisions, in that regard, could have irreparably damaged S.B.’s relationship with his father. This alienating conduct fundamentally undermines my confidence in her ability to exercise parental decision-making authority in a manner that promotes S.B.’s best interests.
171Ms. Chakraborty has repeatedly marginalized Mr. Bandyopadhyay’s role in S.B.’s life. For example, she unilaterally enrolled S.B. in extra-curricular activities at locations that were distant from Mr. Bandyopadhyay’s residence, knowing that this would interfere with his parenting time. She twice changed S.B.’s family doctor without consulting or advising Mr. Bandyopadhyay. In August 2018, she changed S.B.’s school and registered him in public school without first obtaining Mr. Bandyopadhyay’s consent. In August 2020, she notified the school that S.B. would not be returning to in-class learning (due to the COVID-19 pandemic) and she elected a remote-learning education plan for S.B. without Mr. Bandyopadhyay’s consent. Mr. Bandyopadhyay had been communicating with her and had indicated his preference for a return to in-person classroom learning. Ms. Chakraborty ignored his wishes and acted unilaterally.
172A prime example of this marginalization of Mr. Bandyopadhyay’s parenting role occurred in July 2018, when Ms. Chakraborty failed to consult him in making decisions about S.B.’s health care. On that occasion, S.B. suffered a shoulder injury while visiting friends with his mother. She testified that he was transported to a hospital by ambulance, and that she brought him to a family physician the next day for follow-up medical care. At no time throughout this incident did she contact Mr. Bandyopadhyay to inform him of what was happening.
173Ms. Chakraborty downplayed the seriousness of the shoulder injury, but the fact that an ambulance was called suggests that she thought it was serious in the moment. Moreover, S.B. required physiotherapy to recover from the injury, so it could not have been trivial. She ought to have contacted Mr. Bandyopadhyay promptly in the circumstances so that he could be involved in decisions about S.B.’s medical care. Instead, she acted unilaterally and did not even inform him after the fact. He only discovered the injury because S.B. later complained to him about shoulder pain.
174Finally, Ms. Chakraborty has made statements to S.B. that cast his father in a negative light. For example, during the months when Mr. Bandyopadhyay had no in-person access to S.B., he would call the matrimonial home to speak to S.B. at 8:00 PM at night, in accordance with the court-ordered telephone access schedule. He was desperate to maintain contact and nurture a meaningful relationship with his child. Ms. Chakraborty did not always facilitate the phone calls. She explained that S.B. was sometimes not interested in speaking to his father at the prescribed time. She testified that S.B. asked her why the call with his father had to be at 8:00 PM. She said she told him, “Dad is busy and has time to call at 8:00.” This statement displayed poor parenting judgment because it left S.B. with the false impression that his father would not make time for him and was prioritizing work and other commitments over his filial relationship. This was untrue and was hurtful to S.B.
175I believe that, if Ms. Chakraborty were awarded sole decision-making responsibility, she would likely continue to marginalize Mr. Bandyopadhyay, which is not in S.B.’s best interest. S.B. needs both of his parents to have a meaningful role in his upbringing, despite their inability to communicate and co-parent effectively.
176If I granted decision-making responsibility to Ms. Chakraborty, I have no confidence that she would consult Mr. Bandyopadhyay before making significant parenting decisions or inform him in a timely way about decisions that are made. On the other hand, I am confident that Mr. Bandyopadhyay appreciates the importance of fostering a healthy and meaningful relationship between S.B. and his mother. I believe that Mr. Bandyopadhyay is willing, in good faith, to consult with her on parenting issues and to keep her informed of decisions that affect the child.
177I therefore order that, effective immediately, Mr. Bandyopadhyay shall have sole parental responsibility for making significant decisions about S.B.’s upbringing and well-being, including in respect of health, education, language, religion and significant extra-curricular activities. He must, however, consult Ms. Chakraborty and take her views into consideration when making such decisions, and he must promptly advise her of any major decisions that have been made. His parental decision-making authority must be exercised in accordance with the ancillary parenting orders made below.
178Ms. Chakraborty expressed particular concern about Mr. Bandyopadhyay making decisions relating to S.B.’s extra-curricular activities. She stated her belief that, if he has that decision-making responsibility, S.B. will end up idle at home with his father. Based on the evidence, I do not share her concern. To the extent that Mr. Bandyopadhyay did not support S.B.’s participation in activities over the past few years, it had to do with his lack of input into the selected activities, the distance from his home, and the impact on his parenting time with S.B. I am confident that, with an equal shared parenting arrangement, Mr. Bandyopadhyay will consult Ms. Chakraborty and will obtain S.B.’s views, then make child-focused decisions about appropriate and affordable extra-curricular activities for S.B.
179Both parties shall have authority to make day-to-day parenting decisions affecting S.B. while he is in their care, without consulting the other parent. Such decisions include whether S.B. should miss school or an extra curricular activity due to illness, whether and to what extent his on-line activities should be restricted or monitored while in their home, and selecting third party caregivers to look after him in their absence during their parenting time. These examples of day-to-day decisions are provided as guidance for the parties and do not constitute an exhaustive list.
Child’s Residence and Regular Parenting Schedule
180As noted earlier, I ordered an equal shared parenting arrangement at the conclusion of the trial. My reasons for that ruling are as follows.
181Ms. Chakraborty was S.B.’s primary care-giver during his infancy and toddler years. Mr. Bandyopadhyay was working long hours and was often away from home for work-related travel. Even after her maternity leave ended, Ms. Chakraborty was mostly responsible for meeting S.B.’s basic needs, and she engaged in many activities with him. Mr. Bandyopadhyay also spent time with S.B., but his hours of work prevented him from being more involved in S.B.’s care.
182The evidence establishes, however, that by the time of the parties’ separation, both were actively involved parents. They were both attentive to S.B.’s educational progress, they attended his parent-teaching meetings and extra-curricular activities, and they participated in his doctor’s visits. On occasion, one of them would miss an event or an appointment, but they generally attended together. They both spent quality time with him, prepared meals for him, provided him with appropriate parental guidance, and showed him unconditional love and affection. Their mutual involvement in his care continued after their separation, but only to the extend that Ms. Chakraborty allowed Mr. Bandyopadhyay to exercise any parenting responsibilities.
183It is notable that, although S.B. was deprived by Ms. Chakraborty of spending any time with his father for approximately 15 months from July 2019 to October 2020, his bond with his father survived. There was no awkward period of readjustment and no resistance by S.B. to returning to his father’s care after I ordered reinstatement of the interim parenting schedule. This is indicative of a strong and secure attachment having been formed.
184S.B. has a strong attachment to both parents, which should continue to be nurtured. This militates in favour of maximizing the amount of time that he spends with each of his parents.
185Both parents are proud of their Indian background and are actively involved in the Bengali-Canadian community. They are both practising Hindus. They are equally capable of fostering a healthy self-identity in S.B. and of nurturing his cultural, linguistic, and religious heritage and upbringing.
186S.B.’s views and preferences need to be considered. In an affidavit filed in support of her mid-trial motion, Ms. Chakraborty deposed that, prior to June 2019, S.B. had become extremely reluctant to go for overnight visits at his father’s residence and was complaining to her because she was forcing him to go. Her affidavit evidence on this point is summarized in my October 6, 2020 mid-trial ruling, where I noted that it was hearsay but that I had admitted it because it was necessary to keep S.B. out of the litigation. The OCL report had not been tendered as evidence in the mid-trial motion and there was, therefore, no other source of evidence of S.B.’s views and preferences.
187I noted in my October 6, 2020 ruling that I had doubts about the credibility and reliability of Ms. Chakraborty’s evidence regarding S.B.’s preferences, given the level of hostility she exhibits toward Mr. Bandyopadhyay and her clear efforts to undermine his relationship with S.B. Those concerns were further exacerbated by her subsequent testimony at trial.
188I note that, at the time of the OCL investigation in the fall of 2018, S.B. was spending limited time in his father’s care. Ms. Pullan reported that he expressed a desire to see his father more. In fact, he expressed a preference to live with his father, stating that he is bored at his mother’s house and has more fun at his father’s house playing with his father and his father’s girlfriend. I accept this evidence as credible. It is a more independent source of information about S.B.’s views and preferences.
189Ms. Pullan’s testimony about S.B.’s preferences was, however, ultimately given little weight in my parenting decision because S.B. is too young to be able to make sound decisions in his own best interest. He lacks the requisite maturity. Moreover, the preferences he expressed to Ms. Pullan may have evolved or changed since he was interviewed in the fall of 2018. I have no evidence of his current views and preferences.
190Despite his young age and lack of maturity, S.B. made a wise suggestion during the OCL interview, to the effect that his parents should be kept apart to avoid conflict at exchanges. His preference in that regard will be respected. The parenting schedule that I ordered minimizes the amount of times that the parties need to meet to transfer S.B. to the other’s care. Regular exchanges are scheduled to occur by drop off and pick up at S.B.’s school.
191Both parties testified at length at trial (and in affidavits adduced in support of the mid-trial motions) about concerns they harbour regarding the other parent’s ability to care for S.B. Both parties presented themselves to the court as the superior parent, better able to guide S.B., promote his educational success, and provide him with the support he needs to meet his developmental milestones. In my view, the concerns they expressed about each other’s parenting were either petty (in Mr. Bandyopadhyay’s case) or exaggerated (in Ms. Chakraborty’s case). Their respective self-aggrandizement was self-serving and unfounded.
192I am confident that both parties are able to provide S.B. with a safe, healthy, and stable home environment. Mr. Bandyopadhyay’s girlfriend did not testify during the trial, but she was present during Ms. Pullan’s home visit to Mr. Bandyopadhyay’s residence. Ms. Pullan was therefore able to interview her and observe her interactions with S.B. No concerns were raised about the girlfriend’s influence. S.B. described the girlfriend as “kind” when he was interviewed by Ms. Pullan. By all accounts, the girlfriend has a good and mutually caring relationship with S.B.
193Despite accusations by Ms. Chakraborty that she suffered verbal, emotional and financial abuse, and was subjected to controlling behaviour by Mr. Bandyopadhyay during the marriage, I have concluded that there was no spousal violence that needs to be considered in making parenting decisions in this case. Ms. Chakraborty’s allegations with respect to the alleged abuse are vague and unsubstantiated. She claims that he sent her numerous email and text messages containing degrading and demeaning language, but she produced only one such message as evidence. In that message, which was sent post-separation (and was not viewed by S.B.), Mr. Bandyopadhyay used unkind words and some personal insults (calling her “greedy” and calling her family “classless”). The language used was disrespectful but does not rise to the level of abuse. There were no threats. The message does not consist of the type of coercive or controlling behaviour that meets the definition of “family violence” in the Divorce Act.
194Furthermore, in her Affidavit (Form 35.1) filed at the outset of the proceeding, Ms. Chakraborty swore that she was not aware of any violence or abuse that the court should consider in making a decision about parenting. She testified that she thought the question on the Form 35.1 related only to incidents of violence or abuse that had been reported to the police. I find this explanation to be disingenuous. The wording of the form is clear and seeks to elicit information about any family violence.
195Mr. Bandyopadhyay admitted that there were times when, in anger, he used a poor choice of words in his communications with Ms. Chakraborty, but he denies any verbal abuse or family violence during or after the marriage. I accept his denial as credible, based on the totality of the evidence. I find that Ms. Chakraborty mischaracterized their marital disharmony and conflict as spousal abuse and family violence to try to gain advantage in this litigation.
196I feel I must briefly address the allegations of physical assault on S.B. that Ms. Chakraborty raised against Mr. Bandyopadhyay. These were serious accusations that have been given serious consideration. They are categorically denied by Mr. Bandyopadhyay. I dealt with the allegations in detail in my mid-trial ruling on October 6, 2020. I rely on the reasons set out in that Endorsement, which I will not repeat here. I found that there was no evidence to support her allegation that Mr. Bandyopadhyay was responsible for bruising S.B.’s eyelid in May 2018. I further found no evidentiary support for her accusation that Mr. Bandyopadhyay struck S.B. in the face in late June 2019. I note that Peel CAS investigated a complaint at the time and found that concerns about physical discipline were not verified.
197In the mid-trial motion, based on the affidavit evidence of a supporting witness named Afshin Riaz, I concluded that there was a single incident of physical discipline in May 2017, when Mr. Bandyopadhyay hit S.B. on the back of the head with his knuckles. Ms. Riaz was later cross-examined on her affidavit at trial. Her evidence was unshaken and her credibility withstood scrutiny. The interim finding that I made about this incident therefore stands.
198I have already explained in my October 6, 2020 Endorsement why this single incident of physical discipline, which occurred eight months prior to the parties’ separation, does not give rise to concerns about S.B.’s safety while in Mr. Bandyopadhyay’s care.
199There were other supporting witnesses called by Ms. Chakraborty. Their affidavit evidence is summarized in my October 6, 2020 Endorsement. Their testimony did not change in any material way under cross-examination at trial, although their disdain for Mr. Bandyopadhyay and their alliance with Ms. Chakraborty became even more pronounced. Apart from Ms. Riaz, I found their evidence to lack objectivity, which undermined its reliability.
200Ms. Chakraborty’s main purpose in calling these witnesses was to support her assertion that Mr. Bandyopadhyay is an alcoholic, and her submission that S.B. should therefore not be left alone in his care. She testified at trial that she thought his parenting time should be supervised to ensure S.B.’s safety.
201I made interim findings of fact in my October 6, 2020 Endorsement, based on the evidence adduced during the mid-trial motion hearing. I held that Mr. Bandyopadhyay had an issue with alcohol over-consumption for several years prior to the parties’ separation, particularly at public gatherings. The subsequent cross-examination of Ms. Chakraborty’s supporting witnesses at trial did nothing to alter those interim findings. I remain of the view, based on the totality of the evidence, that Mr. Bandyopadhyay downplayed his excessive alcohol consumption during the marriage.
202I note that Mr. Bandyopadhyay told Ms. Pullan, when she interviewed him in the context of the OCL investigation, that he used alcohol in December 2017 and January 2018 to cope with the stress caused by his decision to leave the matrimonial home. He made no such concession at trial. Rather, he testified that he was a “social drinker” during the marriage and never had a problem with alcohol. He also stated that he stopped drinking alcohol in the spring of 2020, largely because he could no longer afford to purchase it and also because he did not attend any social gatherings during the COVID-19 pandemic. His evidence about his present abstention was consistent, unshaken on cross-examination, and uncontradicted by any other credible evidence at trial.
203Ms. Chakraborty testified that S.B. recently told her that his father smokes and drinks beer in the bathroom of his residence. Given her general lack of credibility on issues relating to Mr. Bandyopadhyay’s parenting, I am not prepared to accept the statements attributed by her to S.B. Her evidence does not meet the reliability threshold for admissibility of hearsay, so I give this evidence no weight.
204In my mid-trial ruling, I held that there was no evidence to support a finding that S.B.’s welfare was in any way jeopardized by Mr. Bandyopadhyay’s drinking. However, out of excess of caution, I made a temporary order prohibiting Mr. Bandyopadhyay from consuming alcohol during his access visits with S.B. I also ordered him to refrain from smoking in his residence when S.B. is present. These were interim orders, pending the conclusion of the trial, at which the supporting witnesses were to be cross-examined on their affidavits.
205Having now heard all the evidence at trial, I am of the view that S.B.’s best interests do not require permanent or indefinite restrictions on Mr. Bandyopadhyay’s alcohol consumption or smoking. Of course, it is advisable for Mr. Bandyopadhyay to refrain from smoking in S.B.’s presence, especially indoors. However, there is no credible evidence that he exposes S.B. to second-hand smoke, so there is no basis for an order to be made.
206Mr. Bandyopadhyay’s failure to acknowledge his past excessive alcohol consumption is troubling, but there is no evidence that he has ever been impaired by alcohol while S.B. was in his care. Ms. Chakraborty alleges that there is a police report from December 2017 that notes alcohol was a contributing factor in their domestic dispute that day. She did not, however, produce a copy of the police report. Moreover, the incident in question pre-dates the parties’ separation and does not relate to a time when S.B. was in Mr. Bandyopadhyay’s care. There are two police reports in the record relating to incidents that occurred post-separation, during exchanges in April 2018 and August 2018. Both police reports state explicitly that alcohol was “not a factor”.
207During the mid-trial motion, Ms. Chakraborty submitted an affidavit from a witness who insinuated that there was one occasion after the parties’ separated when Mr. Bandyopadhyay may have been driving while impaired with S.B. in his vehicle. That witness is a woman named Anita Alankara. Ms. Chakraborty failed to produce Ms. Alankara to be cross-examined at trial, so I have disregarded her affidavit evidence.
208Finally, I note that the record contains a 2019 reporting letter from Peel CAS that states: “[T]he concerns regarding alcohol use in a primary caregiving role were NOT VERIFIED.” For all the above reasons, I find no basis in the evidence to impose ongoing restrictions on Mr. Bandyopadhyay’s smoking or alcohol consumption while S.B. is in his care.
209With respect to each party’s willingness to support the development and maintenance of S.B.’s relationship with the other parent, I have already indicated my concerns about Ms. Chakraborty’s persistent attempts to alienate S.B. from his father and to marginalize Mr. Bandyopadhyay’s role in the child’s life. These concerns influenced my ruling on the allocation of parental decision-making responsibility, but they are not sufficiently strong to warrant a parenting order that restricts Ms. Chakraborty’s parenting time.
210I share Ms. Pullan’s view that it is in S.B.’s best interest to spend equal parenting time with both of his parents. I have adopted her recommendation in that regard. It is also in his best interest to have liberal telephone access to both parents at all times. I therefore order that he may contact either parent at any time using any means of communication available to him (phone, text message, Messenger, WhatsApp, FaceTime, Skype, etc.). The parties shall facilitate this. In addition, whichever parent is not caring for S.B. on any given evening is permitted to call him at 8:00 PM. The parent with whom S.B. is residing shall facilitate the daily evening calls.
211I encourage the parties to maintain a reasonable and flexible position with respect to the parenting schedule for S.B. At all times, S.B.’s best interests must prevail. Accordingly, if special occasions (e.g. weddings, anniversaries, birthday parties), excursions or other opportunities become available to S.B., or to either party, neither party should insist that the parenting schedule be adhered to without exception. However, any deviation from the parenting schedule must be agreed to in writing by the parties. There will be no make-up parenting time.
Holiday Parenting Schedule
212The parties gave evidence and made submissions about S.B.’s holiday parenting schedule. My orders below are based on the evidence and are premised on my finding that it is in S.B.’s best interest to spend equal time with both parents. It is also in his best interest to have regular opportunities to celebrate religious, cultural and family occasions with each of his parents.
213Unless I specify otherwise, the holiday schedule below overrides the regular parenting schedule where there is conflict.
214The following statutory holidays will have no impact on the regular parenting schedule: Family Day in February, Good Friday in April, Victoria Day in May, Labour Day in September and Thanksgiving in October. S.B. will spend these holidays with whichever parent is regularly scheduled to have parenting time with him. Similarly, Professional Activity (non-instructional) days at S.B.’s school will have no impact on the regular parenting schedule.
215S.B.’s birthday and the parties’ birthdays will have no impact on the regular parenting schedule. S.B. will spend these days with whichever parent is scheduled to have him in their care.
216If the Spring (March) Break at S.B.’s school is two weeks long, S.B. will spend the first week (from Friday after school until the following Saturday morning) with Ms. Chakraborty and the second week with Mr. Bandyopadhyay, until his return to school on the Monday morning. If the Break is for one week, he will spend the week with Mr. Bandyopadhyay in odd-numbered years and with Ms. Chakraborty in even-numbered years, from Friday after school until the following Monday morning return to school, when the regular parenting schedule shall resume.
217If S.B. is not otherwise scheduled to be with Ms. Chakraborty on Mother’s Day, he will spend eight hours with her that Sunday, from 10:00 AM to 6:00 PM. Similarly, if he is not scheduled to be with Mr. Bandyopadhyay on Father’s Day, he will spend eight hours with him that Sunday, from 10:00 AM to 6:00 PM.
218During the Summer Break, each party will spend uninterrupted parenting time with S.B. for two consecutive weeks. Mr. Bandyopadhyay shall have first choice of weeks in odd-numbered years and Ms. Chakraborty shall have first choice in even-numbered years. The parent who makes the first selection shall communicate their chosen weeks in writing by April 1 and the parent who makes the second selection shall communicate their chosen weeks in writing by April 15. Mr. Bandyopadhyay (in the exercise of his parental decision-making authority) shall not register S.B. in any summer camps or activities during Ms. Chakraborty’s two selected summer weeks.
219The July 1 Canada Day holiday and the August Civic holiday shall have no impact on S.B.’s parenting time, which will proceed in accordance with the regular parenting schedule, subject to the parties’ selected weeks of summer vacation time.
220Regardless of his parenting schedule, S.B. will be with Mr. Bandyopadhyay for Halloween in odd-numbered years and with Ms. Chakraborty in even-numbered years, from after school (or 4:00 PM if it is not a school day) until 8:00 PM. The parent who has S.B. for Halloween evening shall be responsible for his costume.
221The parties will equally share parenting time with S.B. during the Winter (Christmas) Break. S.B. will stay with Mr. Bandyopadhyay for the first half of the break in odd-numbered years and the last half of the break in even-numbered years, and with Ms. Chakraborty for the other half of the break. The first half will start after school on the last day of school in December and end at noon on the date that is the half-way point of the break, but no later than noon on December 31. The second half will end at the start of school on the January return date.
222S.B. will stay with Mr. Bandyopadhyay on Holi in odd-numbered years and with Ms. Chakraborty in even-numbered years, from after school (or 4:00 PM, if it is not a school day) until the start of school (or noon if it is not a school day) the next day.
223S.B. will stay with Ms. Chakraborty for Diwali in odd-numbered years and with Mr. Bandyopadhyay in even-numbered years, from after school (or 4:00 PM if it is not a school day) until the start of school (or noon if it is not a school day) the next day.
224The celebration of any Pujas and of the Bengali New Year in April will not alter the regular parenting schedule. S.B. will spend those holidays with whichever parent is scheduled to have him in their care.
Ancillary Parenting Orders
225The parties also made submissions about ancillary parenting orders. I have concluded that the following orders are in S.B.’s best interest.
226Mr. Bandyopadhyay shall be the custodian of S.B.’s official government documents, including his passport, birth certificate, OHIP card, immunization record, O.C.I. card and S.I.N. card. Ms. Chakraborty shall deliver these documents to Mr. Bandyopadhyay, after making a copy for herself, within 10 days of this decision. Should any of these documents be updated in the future, Mr. Bandyopadhyay shall immediately provide Ms. Chakraborty with a copy of the updated document. Mr. Bandyopadhyay shall be responsible for ensuring that all these documents are kept current.
227Both parties may attend S.B.’s school functions, parent-teacher meetings, and extracurricular activities regardless of the parenting schedule.
228Both parties are entitled to obtain information relating to S.B.’s health and academic progress directly from his treating physicians, dentist, counselors, school administrators, tutors or other service providers. They shall execute any required authorization or direction necessary for the other parent to exercise this entitlement.
229Both parties will be listed as emergency contacts for S.B. with his school and service providers.
230S.B. will be permitted to take any personal item, toy, gift or article of clothing between the parties' homes, without restriction.
231The parties shall refrain from making disparaging or negative remarks in S.B.’s presence about the other parent or about Mr. Bandyopadhyay’s girlfriend, and they shall discourage others from doing so. This includes rude gestures as well as verbal remarks.
232The parties shall not communicate with each other by asking S.B. to deliver messages on their behalf and shall not require S.B. to transport documents between them. They shall refrain from discussing this family law proceeding and any issues raised in the proceeding with S.B., or in S.B.’s presence. They shall ensure that all information or documentation pertaining to their separation and divorce, including all personal correspondence or email communications in respect thereof, is not accessible to S.B.
233If either party plans to travel outside Ontario with S.B. during their parenting time, they shall provide the other parent with a detailed itinerary at least 30 days before the trip begins, including the name of any flight carrier and flight times, accommodation, including address and telephone numbers, and details as to how to contact S.B. during the trip. If the travel is international, the travelling party shall be responsible for the cost of obtaining a notarized travel authorization form for the other party to execute. Consent shall not be unreasonably withheld.
SUPPORT ISSUES
234Ms. Chakraborty is claiming spousal support and child support retroactive to the date of the parties’ separation and on an ongoing basis. Mr. Bandyopadhyay has already paid some support, for which he will be credited. He acknowledges that some retrospective support is owing.
Support Paid to Date and Claim for Arrears
235From November 1, 2018 to March 31, 2021, Mr. Bandyopadhyay paid monthly child support in the amount of $1,036 and monthly spousal support in the amount of $900, pursuant to the temporary order of Bloom J. dated October 25, 2018. The payments were enforced by the FRO. They were not immediately remitted to Ms. Chakraborty commencing on November 1, 2018, but she received a lump sum payment of $7,579 from the FRO in February 2019 to account for the previous four months.
236Ms. Chakraborty is seeking an order for Mr. Bandyopadhyay to pay her $8,000 in arrears of child support and spousal support because the bank seized the $7,579 FRO payment from her account and used it to pay the mortgage. Such an order would obligate Mr. Bandyopadhyay to make double support payments for the months of November 2018 to February 2019 inclusive, which would be patently unfair. Moreover, Ms. Chakraborty has already been credited with the $7,579 mortgage payment in the calculation of post-separation adjustments above. She is not entitled to any additional payment for support arrears.
237At the conclusion of the trial, I made a temporary order that effective April 1, 2021, Mr. Bandyopadhyay would pay an offset amount of child support totalling $641 monthly. Bloom J.’s temporary order for spousal support in the amount of $900 remains in effect. I presume that these orders have been respected and enforced by the FRO.
238Mr. Bandyopadhyay has therefore paid the following amounts of support to date.
| Time Period | Child Support Paid | Spousal Support Paid |
|---|---|---|
| Nov. 1, 2018 to March 31, 2021 (29 months) | $ 30,044 ($1,036 x 29) | $ 26,100 ($900 x 29) |
| April 1, 2021 to September 1, 2021 (6 months) | $ 3,846 ($641 x 6) | $ 5,400 ($900 x 6) |
| TOTAL AMOUNTS PAID: | $ 33,890 | $ 31,500 |
Income Calculations
239To determine the amounts of child support and spousal support that Mr. Bandyopadhyay ought to have paid from the date of separation up to the present, I first need to determine the parties’ respective annual incomes for support purposes. This determination will be done using the sources of income set out under the heading “Total Income” at Line 150 of the parties’ T1 General income tax returns, adjusted in accordance with Schedule III of the Federal Child Support Guidelines (“FCSG”).
Ms. Chakraborty’s Income
240In 2018, Ms. Chakraborty’s Line 150 income was $42,279, comprised of employment income and a net loss of $125 in rental income. In 2019, her Line 150 income was $57,503, comprised of employment income, Employment Insurance benefits, investment income, spousal support in the amount of $10,800, and a net loss of $348 in rental income.
241Her tax return for 2020 was not available at the time of trial. As set out in my ruling on March 23, 2021, her T4 year-end pay stub from her employer establishes that she earned a gross annual income of $45,853 in 2020. She was also in receipt of rental income in the amount of $9,000 ($750/month) and spousal support in the amount of $10,800 ($900/month) in 2020. The spousal support payments received by Ms. Chakraborty in 2018 and 2019 will be excluded from the calculation of her income, in accordance with s.3 of Schedule III to the FCSG.
242Mr. Bandyopadhyay submits that additional income should be imputed to her on the basis of intentional underemployment, pursuant to s.19(1)(a) of the FCSG. He claims that, with reasonable effort and proper prioritization, she could obtain more remunerative employment. He argues that she could be earning between $65,000 and $80,000 annually. He adduced evidence of job listings for clinical therapists with salaries in that range. He submits that the postings match her experience and qualifications.
243Ms. Chakraborty has a Masters’ degree in social work that she obtained in India. When she first arrived in Canada in early 2006, she was admitted to the country on a dependent spousal visa. She was not legally permitted to work outside the home. She took some courses and obtained a work permit in 2008, then got retail jobs for minimum wage at a shoe store and an eyeglass store. She volunteered at a supportive housing organization. She searched for employment in her field, but it was challenging because her educational qualifications were not recognized here.
244She was eventually able to secure employment as an Activity Coordinator for seniors. She has been working as a social worker since approximately 2009. She started her current job in 2017. When S.B. was born, she took maternity leave. She returned to work after one year. In or about 2015, the Canadian Association of Social Workers accredited her with an equivalency for her Masters’ Degree from India and she was then able to become licensed by the Ontario College of Social Workers and Social Service Workers. Although this licence no doubt improves her marketability, there is no evidence that it alone could propel her into a job that pays more than her current salary of just under $46,000.
245On the totality of the evidence, I find that there is no basis to impute income to Ms. Chakraborty for intentional underemployment. There is no evidence that she is choosing to earn less than she is capable of earning. She has demonstrated diligence in advancing her career. She overcame systemic barriers to employment that are common to immigrants and secured full-time employment in her field, which she has maintained for over a decade. The job postings adduced by Mr. Bandyopadhyay do not appear to match her experience or qualifications; one is for a registered psychotherapist and the others require clinical experience that she does not have. In any event, given the suitability of the position that she holds, she is not expected or required to search for other jobs.
246Income will, however, be imputed to her under s.19(1)(g) of the FCSG based on unreasonable deductions from her rental income. In both 2018 and 2019, she declared the gross amount of her rental income ($3,000 and $9,000 respectively) on her tax returns, then deducted expenses relating to mortgage interest and property taxes. Her deductions were based on claims that exceeded the amounts she actually paid. For example, she claimed a deduction based on having paid $4,500 in property taxes in 2018, but she only paid $1,021 in taxes that year. She made no mortgage payments prior to November 2018 and thereafter paid only 1/3 of the monthly amount, which was then $2,563. She therefore made two payments of $854 in 2018, only a portion of which was for interest on the mortgage loan (because a portion would have been paid toward the principal). Yet she claimed a deduction on her 2018 taxes based on having paid $8,000 in interest that year.
247Ms. Chakraborty only claimed a deduction based on 25% of these expenses, because she attributed 75% of the mortgage and property tax costs to herself and S.B. That percentage is reasonable, but the amounts claimed are nevertheless inflated. By claiming these fictional amounts, she was able to make deductions that reduced her rental income to a net negative amount, thereby lowering her total income at Line 150 of her T1 General tax return. Such deductions are unreasonable within the meaning of s.11(1)(g) of the FCSG.
248I am unable to calculate, based on the evidence before me, what her total income would have been if she had made proper deductions. Her income for support purposes will therefore be calculated using the gross rental income amount, without any deductions.
249I have no evidence regarding Ms. Chakraborty’s employment income in 2021, so I will use her 2020 income to project her 2021 income. Given that I ordered the matrimonial home to be sold with a closing date no sooner than May 30, 2021, I will include only five months of rental income (5 x $750 = $3,750) in 2021, on the assumption that her tenant would have vacated the property by May 30, 2021.
250Finally, later in these Reasons for Judgment, I have ordered Ms. Chakraborty to pay Mr. Bandyopadhyay occupation rent in the amount of $375 per month for every month that she received rent from the tenant. I will therefore only include 50% of the rental income in the calculation of her annual income for support purposes. This amount is appropriate in the circumstances: FCSG, s.11(1)(g).
251Based on the above, I calculate Ms. Chakraborty’s annual income for support purposes as follows:
| Year | Employment income | E.I. benefits | Investment Income | Rental Income | Total Income |
|---|---|---|---|---|---|
| 2018 | $42,203 | $ 1,500 | $43,703 | ||
| 2019 | $44,267 | $ 2,732 | $ 53 | $ 4,500 | $51,552 |
| 2020 | $45,853 | $ 4,500 | $50,353 | ||
| 2021 | $45,853 | $ 1,875 | $47,728 |
Mr. Bandyopadhyay’s Income
252Mr. Bandyopadhyay’s Line 150 income in 2018 was $119,619. His Line 150 income in 2019 was $143,688. These figures are drawn from Notices of Assessment produced by Mr. Bandyopadhyay, and from a 2019 Tax Return Summary. He did not produce his complete T1 General forms, as required by Rule 13(3.1) of the Family Law Rules and s.21 of the FCSG.
253Without his 2018 T1 General form, I am required to draw inferences from circumstantial evidence about the sources of his Line 150 Total Income that year. A paystub from his employer for the pay period ending July 13, 2018 shows that he had earned a gross amount of $61,868 to-date that year. Pro-rated over 52 weeks, I estimate that his gross annual employment income in 2018 was approximately $119,153 ($61,868 / 27 x 52). I therefore infer that his Line 150 income was comprised entirely, or almost entirely, of employment income in 2018. There are no Schedule III adjustments to be made. I will, however, add $1,500 in rental income to his Line 150 income in 2018, to account for the payment of occupation rent that I am ordering Ms. Chakraborty to make.
254Mr. Bandyopadhyay’s 2019 Tax Return Summary shows that he earned $117,478 as employment income and withdrew $26,211 from his RRSP. RRSP funds are included in Line 150 Total Income on the CRA’s T1 General tax form. No special provisions are made for RRSP income in Schedule III of the FCSG. Accordingly, subject to ss. 17-20 of the FCSG, RRSP income received in a particular year is presumptively part of a spouse’s income for support purposes that year: Fraser v. Fraser, 2013 ONCA 715, 40 R.F.L. (7th) 311, at para. 97; Liu v. Huang, 2020 ONCA 450, at para. 29. However, if the court is satisfied that this would not be the fairest determination of income, it has discretion to exclude the RRSP income under s.17 of the FCSG.
255If the RRSP income is included in the determination of Mr. Bandyopadhyay’s 2019 income, he will be required to pay child support based on a gross annual income of $143,688, rather than on his substantially lower employment income. I have concluded, for the reasons that follow, that this is not the fairest determination of his income.
256First, the value of his RRSP has already been equalized, so it would be unfair to include the RRSP withdrawals in his income: Fraser, at para. 95. Second, RRSP withdrawals are not a recurring source of income for Mr. Bandyopadhyay, so it would be unfair to treat them as income. He made no RRSP withdrawals in 2017 or 2018. He withdrew the funds in 2019 because of the unanticipated financial crises that he was facing, the threatened foreclosure by the mortgagee, and the escalating legal costs associated with this family law proceeding. This factor also favours exclusion of the RRSP funds from the calculation of his income for support purposes: McConnell v. McConnell, 2015 ONSC 2243, at paras. 92-109; Leet v. Beach, 2010 NSSC 433, at paras. 47-52.
257I will therefore exclude the RRSP money from Mr. Bandyopadhyay’s income calculation for 2019. I will include $4,500 in rental income because of the occupation rent that I am ordering Ms. Chakraborty to pay.
258Based on his 2020 year-end pay stub, I have calculated that Mr. Bandyopadhyay’s gross annual employment income in 2020 was $119,835. I will add to that $4,500 in rental income. There is no evidence that he had any other sources of income.
259For 2021, I will use his 2020 gross employment income and add $1,875 in rental income for the occupation rent he will be receiving.
260Ms. Chakraborty argues that additional income should be imputed to him on the basis that, if he applied himself and showed more initiative at work, he could have progressed in his career and secured a promotion to a more lucrative position. Although Mr. Bandyopadhyay’s employment income has not increased year-over-year, there is no evidence to support a finding that he could be earning more and is choosing instead to remain in a less remunerative job. I find no evidentiary basis upon which to impute income for intentional underemployment.
261Based on the above, I calculate Mr. Bandyopadhyay’s income for support purposes as follows:
| Year | Line 150 Income (minus RRSP) | Rental Income | Total Income |
|---|---|---|---|
| 2018 | $119,619 | $1,500 | $121,119 |
| 2019 | $117,478 | $4,500 | $121,978 |
| 2020 | $119,835 | $4,500 | $124,335 |
| 2021 | $119,835 | $1,875 | $121,710 |
Child Support
Retrospective Support Owing
262Based on the above incomes and the corresponding FCSG Table amounts of child support for one child, Mr. Bandyopadhyay ought to have paid the following amounts of child support for S.B. since the date of separation.
| Dates | Annual Income | Table Amount of Monthly Support | Total Amount Owing |
|---|---|---|---|
| February 1 to December 31, 2018 | $121,119 | $ 1,076 x 11 months = | $11,836 |
| January 1 to December 31, 2019 | $121,978 | $ 1,082 x 12 months = | $12,984 |
| January 1 to December 31, 2020 | $124,335 | $ 1,102 x 12 months = | $13,224 |
| January 1 to March 31, 2021 | $121,710 | $ 1,080 x 3 months = | $ 3,240 |
| TOTAL: | $41,284 |
263Since April 1, 2021, the parties have had equal shared parenting time with S.B. As discussed below, I have concluded that it is appropriate for Mr. Bandyopadhyay to pay an offset amount of child support during these months, equal to the difference between the amounts that each of the parties would be required to pay under the applicable FCSG Table. Based on her projected 2021 income of $47,728, the Table amount of monthly child support payable by Ms. Chakraborty for one child is $442. Based on his projected 2021 income of $121,710, the Table amount of monthly child support payable by Mr. Bandyopadhyay for one child is $1,080. He is therefore obligated to pay $638 ($1,080 - $442) monthly for the months of April through September 2021. An amount of $3,828 (6 x $638) will therefore be added to the $41,248 calculated above, for a total of $45,076.
264In summary, Mr. Bandyopadhyay was obligated to pay a total of $45,076 in child support between February 1, 2018 and September 1, 2021 inclusive. Instead, he paid only $33,890 during that period. He therefore owes Ms. Chakraborty retrospective child support in the amount of $11,186.
Prospective Child Support
265I have ordered an equal shared parenting arrangement. S.B. therefore spends at least 40% of his time with each of the parties. In these circumstances, the amount of ongoing child support payable must be determined in accordance with s. 9 of the FCSG, which stipulates that the following factors must be taken into consideration:
(a) the amounts set out in the applicable tables for each of the spouses;
(b) the increased costs of shared parenting time arrangements; and
(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.
266I have already determined that an offset of the Table amounts payable by the parties, based on their respective 2021 incomes, results in a monthly child support payment owing by Mr. Bandyopadhyay in the amount of $638. The parties live relatively close to each other, so there are no significant costs associated with shared parenting across the distance between their residences. Both parties are in difficult financial circumstances because of the catastrophic financial consequences of their separation and the cost of this legal proceeding, but the sales of their investment condominium and matrimonial home should provide some relief. Both have secure full-time employment. Considering their respective means, needs, and conditions, I conclude that a payment of $638 per month is appropriate in the circumstances.
267Mr. Bandyopadhyay shall therefore pay $638 per month in child support commencing October 1, 2021. These payments shall be enforced by the FRO.
268The parties shall exchange complete copies of their T1 General tax returns, with all schedules and slips attached, on June 1 of each year, commencing June 1, 2022, for the purpose of reviewing the offset amount of Mr. Bandyopadhyay’s monthly child support payments. The amount shall be revised effective July 1 of each year (commencing 2022) in accordance with the parties’ respective incomes, calculated in a manner consistent with these Reasons for Judgment and the FCSG.
Spousal Support
Statutory Framework for Spousal Support Issues
269Ms. Chakraborty’s claim for spousal support must be decided in accordance with s.15.2 of the Divorce Act, which provides as follows:
(4) In making an order under subsection (1) …, 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.
(5) In making an order under subsection (1) …, the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
(6) An order made under subsection (1) … 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.
270The legislative objectives of spousal support must all be considered, with no one objective being paramount: Moge v. Moge, 1992 25 (SCC), [1992] 3 S.C.R. 813, at para. 53.
Entitlement to Spousal Support
271There are three different conceptual bases for spousal support, namely contractual, compensatory and non-compensatory: Bracklow v. Bracklow, 1999 715 (SCC), [1999] 1 S.C.R. 420, at para. 37 and 49. Ms. Chakraborty’s entitlement to spousal support has been established on both a compensatory and non-compensatory basis. Her entitlement is not contested. Only the quantum (amount and duration) is in dispute.
Spousal Support Advisory Guidelines
272Although they are neither legislated nor binding on this Court, the Spousal Support Advisory Guidelines (“SSAG”) are a useful tool in assisting the court to determine an appropriate quantum of spousal support: Gray v. Gray, 2014 ONCA 659, 122 O.R. (3d) 337, at para. 42. The SSAG contain formulas that generate a range of outcomes regarding the appropriate amount and duration of spousal support in any given case, based on variables inserted into the applicable formula. A key variable is the parties’ incomes.
273Although the FCSG definition of “income” is the starting point for determining the parties’ incomes under the SSAG, there are important differences between the determination of income for child support purposes and the determination of income for spousal support purposes. In this case, the only material difference is that the calculation of a spouse’s income under the SSAG “with child support” formula includes various child-related tax benefits and credits that are excluded from income calculations under the FCSG. The “with child support” formula is the applicable formula in this case.
274I have used Divorce Mate software to apply the SSAG. Basing the calculation on the parties’ 2018 incomes and taking into consideration that S.B. was living primarily with Ms. Chakraborty from the date of separation until the end of March 2021, the SSAG “with child support” formula produces a range for spousal support of $880 to $1,782 per month for an indefinite (unspecified) duration, subject to variation and possible review, with a minimum duration of 6.5 years and a maximum duration of 13 years from the date of separation.
275Using the parties’ current (projected 2021) incomes and taking into consideration that S.B. now resides equally with both parents, the SSAG produce a similar outcome, namely a range of spousal support from $878 at the low end to $1,892 at the high end, for the same duration.
276These ranges are helpful guidelines, but I must still exercise my discretion to select a point within these ranges to determine a quantum of spousal support that fulfils the objectives of the Divorce Act. Ms. Chakraborty is seeking an order for $900 per month of spousal support retroactive to the date of the parties’ separation, as well as ongoing spousal support in the same amount for six more years. She submits that it is appropriate to award her support in the low to mid range of the SSAG, for a total duration of 9.5 years from the date of separation. Mr. Bandyopadhyay does not dispute the amount of support he has been paying to date, but he argues that he should pay only $600 per month for two more years. His submission falls well below the bottom of the ranges generated by the SSAG. I see no basis to depart from the SSAG in this case.
Factors Relevant to Determining the Quantum of Spousal Support
277In Bracklow, at para. 53, the Supreme Court of Canada recited some of the factors to take into consideration when determining quantum of spousal support. The Court stated:
[N]eed is but one of a number of factors that the judge must consider. Similarly, … the length of the marital relationship is only one of a number of factors that may be relevant. While some factors may be more important than others in particular cases, the judge cannot proceed at the outset by fixing on only one variable. The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate a reduction. So may obligations arising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of a non-compensatory support obligation. …
278The parties in this case had a 12.5-year marriage. They are both well-educated and therefore have strong earning potential, but Ms. Chakraborty made sacrifices during the marriage that negatively impacted her career advancement and simultaneously promoted Mr. Bandyopadhyay’s career success. In particular, she followed him to Canada from India when he obtained employment here. She entered the country on a spousal visa and did not have a work permit, so she was entirely dependent on his income for the first couple of years.
279Ms. Chakraborty was eventually able to enter the paid workforce, but she initially worked in retail for minimum wage because her qualifications from India were not immediately recognized in Canada. She eventually secured employment as a social worker, but when S.B. was born, she took maternity leave from her job to care for the child. She returned to work after one year, but she continued to be the primary caregiver for S.B. for a couple more years. During that time, Mr. Bandyopadhyay worked long hours and was required to travel for business, so he was frequently away from home. Ms. Chakraborty looked after the household and provided primary care for S.B. These roles that she assumed during the marriage disadvantaged her economically.
280Ms. Chakraborty now has extensive Canadian work experience in her field and has good prospects for becoming financially self-sufficient over a relatively short period of time. Her qualifications have been accredited with a Canadian equivalency and she is licensed by the Ontario College of Social Workers and Social Service Workers, which bodes well for her gradual financial independence. Presently, however, she continues to experience economic disadvantages arising from the marriage and she has a need for ongoing spousal support. She earns significantly less income than Mr. Bandyopadhyay, at least in part because of the interruption in her career caused by the roles adopted by the parties during their marital relationship.
281Ms. Chakraborty has a strong compensatory claim for spousal support, which militates in favour of a higher amount and longer duration of support payments. She also has some grounds for entitlement to non-compensatory support because of her limited employment income, notwithstanding that she works full time. However, she is young, able to work full--time, well-educated and experienced in her field. In short, she is equipped to progress in her career toward economic self-sufficiency, which militates in favour of a shorter duration of spousal support. The fact that she has secure full-time employment militates in favour of a lower amount of monthly support.
282Mr. Bandyopadhyay benefits from a higher income and from being able to share his living expenses with his girlfriend. He will soon have access to his share of the equity in the matrimonial home and in the condominium investment property. He therefore has the means to pay spousal support. However, he has experienced and is still experiencing economic disadvantages flowing from the breakdown of the marriage, most notably high interest payments on debts accumulated to finance his post-separation payment obligations. Ms. Chakraborty was able to preserve her RRSPs, whereas his savings have been depleted. Both have amassed significant debt as a result of the dissolution of their marital relationship, but he has accrued disproportionately more than she has. Both of their credit ratings have been ruined.
283This financial devastation is related in part to the cost of litigation, and to the increased cost of maintaining two separate households, but it is also related to the fact that the parties were living beyond their means prior to their separation. They were routinely borrowing money on a line of credit to pay regular monthly expenses. This is therefore not a case in which the court can order an amount of spousal support necessary to preserve the recipient spouse’s pre-separation standard of living. The parties’ marital standard of living was unsustainable even before Mr. Bandyopadhyay moved out of the matrimonial home. It is simply not feasible for the parties to maintain it with the added costs of living in separate residences.
284Mr. Bandyopadhyay recognized this early and sought to sell the matrimonial home so that the parties could access their equity in the property, but Ms. Chakraborty blocked his efforts to do so. She also blocked his efforts to access the equity in his Kolkata property. He was left with no option but to incur substantial debt to stay afloat financially. While he may initially have exaggerated his financial constraints (when he paid the tuition for S.B. to attend private school in the fall of 2018 while claiming to be unable to make mortgage payments), I accept that the fiscal disaster that he anticipated was inevitable without the sale of the matrimonial home. He has borne the worst of it since the parties separated.
285Ms. Chakraborty, in contrast, has been occupying the matrimonial home, receiving rental income from a tenant, paying either nothing toward the mortgage and property taxes or only 1/3 of those expenses since the parties separated, with the benefit of child support and spousal support since November 2018. I have made orders for post-separation adjustments to compensate Mr. Bandyopadhyay for the expenses that he paid on her behalf, and I will make an order for Ms. Chakraborty to pay occupation rent to further correct these inequities, but my orders will not completely alleviate the lingering economic consequences of the breakdown of the marriage. The limits on Mr. Bandyopadhyay’s ability to pay spousal support must therefore be taken into consideration in determining the appropriate quantum of support.
286Taking all the above factors into account, I find that Ms. Chakraborty’s claim for spousal support in the amount of $900 per month for a minimum of 9.5 years (from the date of separation) is reasonable and consistent with the objectives of the Divorce Act. It falls toward the lower end of the SSAG range relating to the amount of support paid but in the middle of the range relating to duration.
Retrospective Spousal Support
287Mr. Bandyopadhyay ought to have been paying $900 per month in support since the date of the parties’ separation. Prior to November 1, 2018, he was, instead, paying the mortgage and property taxes on the matrimonial home, as well as all of Ms. Chakraborty’s utilities. He will be compensated for his disproportionate contribution to those expenses through post-separation adjustments. He therefore must pay retrospective spousal support for the nine months from February 1, 2018 to October 31, 2018. He owes Ms. Chakraborty $8,100 (9 x $900) in retrospective spousal support.
Prospective Spousal Support
288Mr. Bandyopadhyay shall continue to pay $900 per month for spousal support on the first day of each month for an indefinite period, to be reviewed on or after August 1, 2027. This spousal support order shall only be terminated or varied upon a further order of this Court or a written agreement of the parties. This order shall be enforced by the FRO.
Security for Support
289Ms. Chakraborty seeks an order for Mr. Bandyopadhyay “to obtain a life insurance policy with a face amount of no less than $500,000 and that he irrevocably designate [her] as the beneficiary in trust for the children, for so long as [he] is obligated to pay child support to [her].” It is reasonable for Ms. Chakraborty to seek some form of security for Mr. Bandyopadhyay’s support payments, particularly given S.B.’s young age.
290On January 31, 2019, Fowler Byrne J. made a temporary order requiring Mr. Bandyopadhyay to name Ms. Chakraborty as the irrevocable beneficiary of his life insurance policy held through Forresters Life and to maintain that designation until further court order. I do not know whether this order was followed. In his Net Family Property statements, Mr. Bandyopadhyay confirms that he has a policy of life insurance for a 20-year term with a face value of $500,000. No evidence was adduced regarding the designated beneficiary.
291Mr. Bandyopadhyay is hereby ordered to provide Ms. Chakraborty with written confirmation from the insurer that she is designated as the sole and irrevocable beneficiary of that policy, or of an equivalent life insurance policy, in trust for the benefit of the child. He must provide this confirmation within 30 days of the date of this Judgment and provide an updated confirmation annually on July 1 of each year, until such time as he is no longer required to pay child support for S.B.
SPECIAL AND EXTRAORDINARY CHILD-RELATED EXPENSES
292Both parties are seeking reimbursement for child-related special expenses that they incurred since separation. The reasonableness and necessity of the expenses are in dispute.
Statutory Framework to Determine Section 7 Expenses
293Issues relating to special and extraordinary child-related expenses must be decided in accordance with s.7 of the FCSG, which provides as follows:
(1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
(a) child care expenses incurred as a result of the employment, illness, disability or education or training for employment of the spouse who has the majority of parenting time;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
(1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
(2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.
(3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.
(4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit.
294The list of special expenses in s.7(1) is exhaustive: Delichte v. Rogers, 2013 MBCA 106, 37 R.F.L. (7th) 81, at para. 27. Absent an enforceable agreement between the parties, the court has no jurisdiction to order a spouse to contribute to child-related expenses that do not fall within one of the categories enumerated in that subsection.
295The party who seeks reimbursement of a child-related expense has the onus of proving that the expense falls within one of the clauses of s.7(1): Delichte, at para. 27. That party also has the burden of proving that any claimed expense is both necessary and reasonable: Luciani v. Luciani, 2017 ONSC 5209, at para. 31.
296The criterion of “necessity” under s.7 of the FCSG encompasses not only the necessaries of life, but also things that promote a child’s health and aid their growth and development: Delichte, at para. 35. The criterion of “reasonableness” must be determined in relation to the parties’ means and their pre-separation pattern of spending. The court must take into account all the financial means of the parties, not just their incomes. This requires consideration of the global financial circumstances of the family, including the cost of maintaining separate households, support obligations to other parties, income stability, capital assets, third party resources and debt load: Delichte, at paras. 38 and 39.
297In assessing the reasonableness of an expense, courts may also take into consideration whether the party who incurred the expense consulted the other party prior to doing so: Luftspring v. Luftspring, 2004 16869 (Ont. C.A.), at para. 2. A lack of prior consultation will not automatically preclude apportionment of the expense between the parties, but it may be given significant weight in the exercise of the court’s discretion, depending on the circumstances. In some cases, courts have reduced a payor parent’s contributions to an expense due to the other parent’s lack of consultation, rather than dismissing the s.7 claim: Delichte, at paras. 44 and 85.
Parties’ Proportionate Contributions to Section 7 Expenses
298The guiding principle set out in s.7(2) of the FCSG is for the parties to contribute to s.7 expenses in proportion to their respective incomes. I see no reason to depart from that principle in this case.
299I have already calculated the parties’ gross incomes for child support purposes. Those calculations excluded spousal support based on s.3 of Schedule III to the FCSG. The calculation of their incomes for the purpose of determining their proportionate s.7 contributions must, however, take into consideration Mr. Bandyopadhyay’s spousal support payments: FCSG, Schedule III, s.3.1.
300I have ordered Mr. Bandyopadhyay to pay a total of $9,900 in spousal support for 2018 (11 months x $900). He has already paid a portion of that amount ($1,800 for November and December 2018) and I have made an order for payment of the difference. Since 2019, he has paid and will continue to pay $10,800 in spousal support annually (12 months x $900). These amounts must be deducted from his gross total income and added to Ms. Chakraborty’s gross total income before determining their proportionate contributions to s.7 expenses.
301The charts below set out the requisite adjustments to the parties’ incomes:
| Year | Mr. Bandyopadhyay’s Gross Annual Income for support purposes | Minus spousal support payments | Mr. Bandyopadhyay’s Income for s.7 Purposes |
|---|---|---|---|
| 2018 | $121,119 | $ 9,900 | $111,219 |
| 2019 | $121,978 | $10,800 | $111,178 |
| 2020 | $124,335 | $10,800 | $113,535 |
| 2021 | $121,710 | $10,800 | $110,910 |
| Year | Ms. Chakraborty’s Gross Annual Income for support purposes | Plus spousal Support Received | Ms. Chakraborty’s Income for s.7 Purposes |
|---|---|---|---|
| 2018 | $43,703 | $ 9,900 | $53,603 |
| 2019 | $51,552 | $10,800 | $62,352 |
| 2020 | $50,353 | $10,800 | $61,153 |
| 2021 | $47,728 | $10,800 | $58,528 |
302Based on the above income calculations, the parties’ proportionate contributions to s.7 expenses are as follows:
| Year | Mr. Bandyopadhyay’s Income | Ms. Chakraborty’s Income | His Proportionate Contribution | Her Proportionate Contribution |
|---|---|---|---|---|
| 2018 | $111,219 | $53,603 | 67% | 33% |
| 2019 | $111,178 | $62,352 | 64% | 36% |
| 2020 | $113,535 | $61,153 | 65% | 35% |
| 2021 | $110,910 | $58,528 | 65% | 35% |
303Going forward, the parties’ proportionate contributions to s.7 expenses shall be recalculated annually based on their previous year’s income, on July 1 each year commencing in 2022, at the same time as child support payments are reviewed and revised.
304In the future, before incurring any non-medical s.7 expense for which they are seeking reimbursement from the other parent, the party who incurs the expense must first obtain the written consent of the other party, confirming that the other party is agreeable to the expense. Consent shall not be unreasonably withheld.
Ms. Chakraborty’s Ineligible Expense Claims
305Many of the expenses claimed by Ms. Chakraborty do not fall within any of the categories of expenses in s.7(1) of the FCSG. For example, she seeks reimbursement of the cost of school photos, of lavish birthday parties that she organized and hosted for S.B., and of premiums that she elected to pay for optional accident insurance coverage for S.B. None of these items are reimbursable as s.7 expenses.
S.B.’s Private School Tuition
306During the marriage, Ms. Chakraborty paid for S.B.’s private school tuition fees through automatic monthly withdrawals from her bank account. When the parties separated, they initially did not want to change his school, so Mr. Bandyopadhyay made a $1,000 deposit toward S.B.’s registration for the following 2018-2019 school year. Ms. Chakraborty continued to make monthly tuition payments of $1,230 from February through June 2018, for a total of $6,150 (5 months x $1,230).
307These tuition fees constitute extraordinary expenses for primary school education under s.7(1)(d) of the FCSG. The expenses are reasonable taking into consideration the parties’ means, their pre-separation pattern of spending, and their mutual agreement at the time to continue to incur the cost of private schooling. Ms. Chakraborty is therefore entitled to be reimbursed an amount of $4,120 for Mr. Bandyopadhyay’s 67% share of the $6,150 that she paid. Similarly, Mr. Bandyopadhyay is entitled to be reimbursed $330 for Ms. Chakraborty’s 33% share of the $1,000 that he paid. Offsetting these amounts, Ms. Chakraborty is owed a net amount of $3,790.
308Mr. Bandyopadhyay is also seeking partial reimbursement of tuition fees that he paid toward the ensuing 2018-2019 school year. Ms. Chakraborty stopped the automatic tuition withdrawals from her bank account at the end of the 2017-2018 school year. At that time, Mr. Bandyopadhyay was not paying any child support or spousal support, yet he had stopped paying the mortgage and property taxes on the matrimonial home and was demanding the sale of the home because of dire financial hardship. In these circumstances, Ms. Chakraborty did not believe that they could afford to continue S.B.’s private education. She enrolled S.B. in a public school for the fall of 2018 without Mr. Bandyopadhyay’s consent. He made the requisite tuition payments for S.B. to remain registered at the private school and he brought S.B. to the private school on days when S.B. was in his care. As mentioned previously, Shaw J. eventually resolved this schooling dispute by ordering that S.B. would attend public school. By then, Mr. Bandyopadhyay had paid a total of $3,630 in tuition fees. He claims that Ms. Chakraborty is required to contribute to that expense.
309Mr. Bandyopadhyay’s claim for reimbursement of the 2018-2019 tuition fees is denied because he has failed to demonstrate that the expense was reasonable, given the parties’ limited means and desperate financial circumstances at that point in time. Although they had paid for private schooling during the marriage and had initially agreed not to transfer S.B. to a different school when they separated in February 2018, their circumstances changed, and they no longer had the means to afford the private school tuition. There was no agreement between them to continue S.B.’s private schooling beyond the 2017-2018 year. Mr. Bandyopadhyay’s unilateral decision to continue incurring the tuition expense was not reasonable and he is therefore not entitled to reimbursement for that expense.
Expenses Related to Child Care
310Ms. Chakraborty incurred expenses relating to after-school programming for S.B. and for children’s camps that S.B. attended during school breaks in 2018. She produced documentary evidence to substantiate some of the costs, including $231 for a science camp during March Break, $346 for two weeks of summer camps, and $150 per month for after-school care. She seeks an order for Mr. Bandyopadhyay to reimburse her for his proportionate share of these expenses.
311Her T1 General income tax return shows that she claimed $7,900 in childcare expenses that year, which reduced her taxable income from $39,391 to $31,491. She received a tax refund in the amount of $4,884. When this tax deduction is taken into account, as required by s.7(3) of the FCSG, there was no net cost to her for the childcare programs. There is no basis upon which the court can order Mr. Bandyopadhyay to reimburse her for non-existent expenses.
312In 2019, Ms. Chakraborty paid $45 per month for after-school programming for S.B. Her T1 General Tax Return does not include a claim for childcare expenses. She provided no explanation for her failure to make such a claim. She was eligible to do so. I am required, pursuant to s.7(3) of the FCSG, to take her eligibility into account when determining the amount of reasonable childcare expenses for which she is entitled to be reimbursed under s.7(1) of the FCSG. Given the lack of any explanation for why the tax deduction was not claimed, I find that the after school childcare expenses incurred by her were unreasonable and unnecessary, in so far as they could have been subsidized or covered by tax credits. She is therefore not entitled to reimbursement for those expenses.
313For the years 2020 and 2021, Mr. Bandyopadhyay will be required to pay 65% and Ms. Chakraborty will be required to pay 35% of any after-school or school-break childcare costs (including children’s camps), after any applicable tax deductions or credits are applied. Ms. Chakraborty may be entitled to reimbursement of a portion of such expenses. If she wants Mr. Bandyopadhyay to contribute to expenses that she incurred in 2020 and 2021 to date, she must provide him with a copy of her completed 2020 T1 General tax return, as well as receipts with proof of the amounts paid. Mr. Bandyopadhyay shall reimburse her for his proportionate share of the expenses within 10 days of receipt of same.
314Any future childcare expenses (incurred by either party) that are not defrayed by tax deductions or credits will be shared in proportion to the parties’ incomes.
Extracurricular and Sporting Activities
315Ms. Chakraborty incurred expenses relating to various extracurricular activities in which she registered S.B. in 2018, 2019 and 2020, including skating, swimming lessons, piano lessons, soccer camp and basketball. None of these expenses are “extraordinary” within the meaning of s.7(1.1) of the FCSG, in that they do not collectively exceed the amount that she could reasonably be expected to pay, taking into account her income and the Table amount of monthly child support that she received (or will receive retrospectively) from Mr. Bandyopadhyay. She is therefore not entitled to reimbursement of these expenses under s.7(1)(f) of the FCSG.
316Commencing April 1, 2021, however, Mr. Bandyopadhyay will be paying a lesser (offset) amount of child support to Ms. Chakraborty, based on an equal shared parenting schedule. In these circumstances, the parties shall share the cost of S.B.’s extra-curricular activities going forward in proportion to their incomes.
Educational Programs
317Ms. Chakraborty incurred expenses for math and French tutoring for S.B. in 2019 and 2020. These expenses are eligible for reimbursement under s.7(1)(d) of the FCSG. I am persuaded that the tutoring was necessary for S.B.’s best interests, particularly since he commenced French immersion schooling in Grade 1 and neither of his parents are fluent in French. Although Mr. Bandyopadhyay did not agree to incur this expense, Ms. Chakraborty did consult him about it beforehand.
318The amounts of the tutoring expenses are reasonable relative to the parties’ means. They are also extraordinary within the meaning of s.7(1.1), in that Ms. Chakraborty cannot be expected to pay for them and for all of S.B.’s extra-curricular activities based on her income and monthly child support payments alone. Mr. Bandyopadhyay must therefore reimburse her for his proportionate share of the tutoring fees.
319The evidence establishes that Ms. Chakraborty paid $2,228 for math tutoring from September 2019 to March 2021. It also establishes that she paid $375 for French tutoring. She testified that she actually incurred greater costs than those amounts, but she provided no evidence to substantiate that claim. She is only entitled to reimbursement for the expenses that she has proven on a balance of probabilities.
320Mr. Bandyopadhyay is ordered to pay Ms. Chakraborty 65% of the total amount ($2,603) she incurred for tutoring fees, namely $1,692. Going forward, the parties will share the reasonable expense of any necessary tutoring for S.B. in proportion to their incomes.
Health-Related Expenses
321Ms. Chakraborty incurred a variety of expenses related to S.B.’s vision, dental, physical, and psychological health in 2018 and 2019. Such expenses are eligible for reimbursement under s.7(1)(c) of the FCSG, but only if the claimant demonstrates that the expenses exceed available insurance benefits by at least $100 annually. Ms. Chakraborty does not have S.B. as a dependent on her health insurance policy, but Mr. Bandyopadhyay has coverage for S.B. through his employment benefits plan. There is no evidence that Ms. Chakraborty asked Mr. Bandyopadhyay to submit any of the health expenses to his insurer for reimbursement. She therefore has not demonstrated that the expenses exceed available insurance benefits. Mr. Bandyopadhyay should not be required to pay for 65% of health care costs that could have been reimbursed by his insurer.
322In the future, all health-related expenses for S.B. shall be promptly submitted by Mr. Bandyopadhyay to his insurer. Any unreimbursed cost that exceeds his benefits coverage will be shared by the parties in proportion to their incomes.
Summary of Section 7 Expenses
323In summary, Mr. Bandyopadhyay owes Ms. Chakraborty a total of $5,482 for his proportionate share of special child-related expenses that the parties incurred after their separation (i.e., $3,790 for private school tuition fees plus $1,692 for tutoring).
OCCUPATION RENT
324Ms. Chakraborty has had de facto possession of the jointly owned matrimonial home since late January 2018. She has had exclusive possession pursuant to a temporary court order since October 25, 2018.
325Mr. Bandyopadhyay has been pleading with Ms. Chakraborty to sell the property since the date of their separation, in order to access their equity. The parties agreed that the home was worth about $850,000 on the date of their separation. The balance on the mortgage was $495,607 and the balance on their joint secured HELOC was $79,198. They therefore had approximately $275,000 in equity that they likely could have retrieved had they sold the home shortly after they separated.
326Mr. Bandyopadhyay adduced evidence that similar homes in Mississauga are currently listed for sale for amounts exceeding $1.3 million. He adduced no evidence of actual sale prices for comparable properties at any point during the past three years, but the parties agree that the value of the home has increased significantly since they separated as a result of inflation in the real estate market. The amount required to discharge their mortgage has also increased as a result of the default in their payments and ensuing legal action by the mortgagee. Still, when they sell the house pursuant to my March 23, 2021 order, they will probably net proceeds that are significantly greater than they would have netted had they sold the house in 2018.
327Mr. Bandyopadhyay adduced evidence that similar homes in Mississauga were renting in 2020 for between $3,000 and $3,300 monthly. He adduced no evidence of the rental market value of the property in 2018 or 2019. However, the evidence establishes that a tenant has been paying Ms. Chakraborty $750 per month since September 2018 for the privilege of occupying one bedroom. It is therefore reasonable to infer that the entire home could have generated at least $2,500 in monthly rental income in 2018 and 2019.
328If both parties had vacated the home in 2018, they probably could have rented it for a substantial amount monthly. Mr. Bandyopadhyay would have been entitled to half the rental income generated by the property, and he would have been able to claim half the carrying costs as expenses to minimize the tax liability on his rental income. He could have used that extra income to pay for his own accommodations.
329Instead, Ms. Chakraborty has resided in the matrimonial home rent-free for over three years while Mr. Bandyopadhyay has been required to pay $900 per month for half the rent of a two-bedroom apartment that he shares with his girlfriend, without the benefit of any rental income from the house that he co-owns with Ms. Chakraborty. He argues that these circumstances are inequitable and should be remedied with an order requiring Ms. Chakraborty to pay him occupation rent based on market rates from the date of the parties’ separation. He claims that she owes him $1,600 per month from February 2018 to present, based on 50% of an estimated market rent of $3,200 for the entire house.
Jurisprudence
330The court has discretion to award occupation rent in the family law context if it is reasonable and equitable to do so: Griffiths v. Zambosco, 2001 24097 (ON CA), 54 O.R. (3d) 397 (C.A.), at para. 49; Casey v. Casey, 2013 SKCA 58, 32 R.F.L. (7th) 1, at para. 49. The court must, however, be cautious in making such an award. As Steinberg J. noted in Foffano v. Foffano, 1996 8097 (ON SC), 24 R.F.L. (4th) 398 (Ont. S.C.), at para. 23:
The point to be made is that the routine application of the law on occupation rent to joint tenants or tenants in common who are married and are disputing over the matrimonial home will often run into conflict with the more flexible provisions of the Family Law Act designed to protect children and dependent spouses. If, as the present law seems to be, no ouster need be proved for a joint tenant not in possession of the matrimonial home to claim occupational rent, that opens the door to such claims solely to counter legitimate claims for spousal and child support, and equalization of net family properties.
331Occupation rent is a discretionary remedy that can be used to ensure financial fairness between spouses: Casey, at para. 37. The appropriateness of an order for occupation rent in any family law case cannot be determined in isolation. It must be considered as part of the total financial context of the parties: M.(N.) v. M.(C.L.), 2008 ABCA 108, at para. 4.
332The circumstances to be considered when occupation rent is in issue vary from case to case. However, a review of the jurisprudence establishes a common list of relevant factors: McColl v. McColl (1995), 1995 7343 (ON SC), 13 R.F.L. (4th) 449 (Ont. Gen. Div.), at para. 51; Higgins v. Higgins, 19 R.F.L. (5th) 300 at para. 53; Griffiths, at para. 49; Goeldner v. Goeldner, 2005 455 (ON CA), 15 R.F.L. (6th) 272 (Ont. C.A.), at para. 4; Al-Fatlawi v. Al-Bajawi, 2019 ONSC 7210 at para. 87; and Burke v. Poitras, 2020 ONSC 3162, at para. 172.
Analysis of Mr. Bandyopadhyay’s Claim
333In this case, the relevant factors that support Mr. Bandyopadhyay’s claim for occupation rent are the fact that he made the claim in a timely way; he promptly moved for sale of the matrimonial home; he experienced financial hardship as a result of his inability to access his equity in the property; Ms. Chakraborty occupied the property exclusively for over three years; Mr. Bandyopadhyay has made equal contributions to the carrying costs of the property throughout that period (as ordered by me in this Judgment); he has paid spousal support and child support from November 1, 2018 onward (and will pay retrospectively to February 1, 2018); and Ms. Chakraborty obtained rent from a tenant in the home in the amount of $750 per month from September 2018 onward.
334There are also some factors that militate against an order for occupation rent, including the fact that Mr. Bandyopadhyay chose to leave the matrimonial home voluntarily and S.B. was residing in the home with Ms. Chakraborty for the past three and a half years.
335Taking all the relevant factors into consideration, I conclude that it is equitable in the circumstances to require Ms. Chakraborty to share the rental income she received from the tenant with Mr. Bandyopadhyay. However, it would not be reasonable, in the circumstances of this case, to require her to pay occupation rent equivalent to half of the property’s rental market value (even if that value were fixed at an amount below $3,200). If she were required to pay 50% of market rent, it would undercut and undermine the purpose of the spousal and child support payments made by Mr. Bandyopadhyay.
336In light of my order that the matrimonial home be listed for sale with a closing date no sooner than May 30, 2021, the amount of Ms. Chakraborty’s occupation rent will be determined by calculating half the monthly rental income she received ($375) from September 2018 (when the tenant began to reside in the home) to May 2021, inclusive. She therefore owes Mr. Bandyopadhyay a total of $12,375 in occupation rent ($375 x 33 months).
CONCLUSION REGARDING OFFSET OF PAYMENTS TO BE MADE
337Based on the above rulings, the chart below summarizes the amounts owed by each party to the other party:
| Nature of Claim | Amount Owed by Mr. Bandyopadhyay | Amount Owed by Ms. Chakraborty |
|---|---|---|
| Equalization payment | $ 5,922 | |
| Variation of shares | $ 4,355 | |
| Post-separation adjustments | $ 19,570 | |
| Retrospective child support | $ 11,186 | |
| Retrospective spousal support | $ 8,100 | |
| Section 7 expenses | $ 5,482 | |
| Occupation rent | $ 12,375 | |
| Total Amounts Owed: | $ 35,045 | $ 31,945 |
338Offsetting these amounts, Mr. Bandyopadhyay must pay Ms. Chakraborty a net amount of $3,100 ($35,045 - $31,945).
339Mr. Bandyopadhyay asked the court to order that no payments would be made until after costs were decided in this matter. That request is denied in light of the fact that a substantial portion of the money owed by Mr. Bandyopadhyay consists of retrospective child support. The payment shall be made immediately from his share of the net proceeds of sale of the matrimonial home.
340The remaining proceeds of sale shall continue to be held in trust pending my decision on costs in this case. Even after costs are awarded, an amount of $28,500 from Ms. Chakraborty’s share of the net proceeds of sale shall be held in trust until such time as she formally discontinues her legal action in India pertaining to Mr. Bandyopadhyay’s Kolkata property.
COSTS
341The parties may make written submissions with respect to costs. Mr. Bandyopadhyay’s submissions shall be delivered by no later than September 24, 2021. Ms. Chakraborty’s submissions shall be delivered by no later than October 6, 2021. Each party’s submissions shall not exceed four pages, excluding Bills of Costs and any relevant Offers to Settle. There shall be no reply submissions unless requested by me.
342The parties are directed to advise the court of the following: (1) whether they sold their interest in the Mississauga condominium; (2) if so, whether any of the proceeds of sale are being held in trust; (3) if so, how much money from the sale of the condominium is being held in trust; (4) whether the matrimonial home has been sold; and (5) if so, what amount of net proceeds from the sale of the matrimonial home is being held in trust.
Petersen, J.
Released: September 7, 2021