COURT FILE NO.: FS-18-6932
DATE: 20211126
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shivani Mann, Mother
AND:
Ravi Mann, Father
BEFORE: Papageorgiou, J.
COUNSEL: Karanpaul Singh Randhawa, for the Mother
Reesa Heft, for the Father
HEARD: November 16, 2021
ENDORSEMENT
[1] The Father, Ravi Mann (the “Father”) brings a motion for:
a. An Order that the Consent Order of Justice Nishikawa dated February 20, 2020 regarding child support be varied retroactively for the period from the date of separation to the present to reflect the Father’s actual income;
b. An Order that funds held in trust with respect to the sale of property municipally known as 1363 Rose Way, Milton Ontario, be released to the Father with a hold back of $7,500; and
c. An Order for partition and sale of the matrimonial home, located at 2 Eva Road, Unit 1122, Toronto Ontario, M9C 0A9 (the “Matrimonial Home”).
[2] The Mother, Shivani Mann (the “Mother”) brings a motion for an Order compelling the Father to retain the services of a qualified and independent financial professional to obtain an opinion regarding the Father’s true income from 2019 onwards for the purposes of calculating his spousal and child support obligations, and other ancillary matters including permission to make mortgage payments on the Matrimonial Home. She opposes the motion for partition and sale on the basis that she wishes to purchase the property and may be entitled to a significant equalization payment.
Background
[3] This is a high conflict situation.
[4] As set out in a previous court endorsement dated May 21, 2021, as a result of an incident which took place in November 2020, the Father was charged with assaulting the Mother. There were bail conditions imposed whereby the Father could not be within 200 meters of the Mother. The Father had brought a motion to vary the parenting time ordered by a prior judge because he could no longer comply with it due to bail conditions.
[5] The evidence before the court at that time included an Office of the Children’s Lawyer report which confirmed that the Father was intoxicated on one occasion when the Father assaulted the Mother in the elevator when their daughter was present. As well, the Father entered a rehabilitation program immediately after this incident.
[6] Other salient findings made by the OCL referenced in my May 21, 2021 endorsement are as follows:
Given the intimate partner violence by Mr. Mann, Mr. Mann’s criminal charges for sexual assault on a minor, Mr. Mann’s substance abuse concerns, Ms. Mann’s mental Health issues, and Ms. Mann’s lack of support of Mr. Mann’s relationship with Kiyara, there is an elevated risk to the child that the children’s aid society should continue to address. This is outside the mandate of the Office of the Children’s Lawyer.”
[7] I made an order that the Father: a) could have supervised parenting time on Saturdays at specified times at a supervised parenting time center; b) shall submit to urine alcohol testing every Monday and Friday; c) that he shall commence counselling to understand his role in intimate partner violence; d) that he shall continue to be engaged in counselling for alcohol and/or drug addiction; e) that he provide proof thereof to the Mother on the first day of every month beginning June 1, 2021; and f) that the Father and K. shall attend counselling to repair their relationship at the Father’s sole cost.
[8] The Father has not complied with this Order (with the exception of currently being in rehab which is some effort addressing his alcoholism).
Income Report
[9] The Father now claims that he does not have sufficient funds to pay child support and never did have the income which Justice Nishikawa’s consent order was based upon because his employment was terminated in April 2019. However, he has not provided any evidence from his employer supporting this on the motion before me. It is odd that he would have consented to this order on February 26, 2020 if he had been terminated in April 2019 even though he was not represented by counsel at the time. He says that he only consented to this Order as it was without prejudice on the basis that “issues of child, spousal support etc. would be heard in a motion returnable March 19, 2020, at which point his income for 2018 and 2019 would be known.” He says that because of COVID, this motion did not proceed.
[10] However, this is not what Justice Nishikawa’s Order says. She indicated in her endorsement that the parties agreed to the terms in the Minutes of Settlement (which included the child support agreement on a without prejudice basis) and that “The parties have agreed to a motion date of March 19, 2020 for outstanding issues of disclosure and continued payments on the property, and for a cross-motion re the sale of the property.” Justice Nishikawa’s Order did not contemplate any motion regarding child support.
[11] I note that Justice Nishikawa’s Order dated February 26, 2020 compelled the Father to disclose all trade records and statements of earnings including employment letters, details of his position at Eli Soberano and/or 1584219 Ontario Inc. Although the Father has sworn that he provided this disclosure, he has not provided this evidence to this Court to support his allegation that he has been terminated. I note counsel for the Mother argued (without evidence) that the Father has not provided this disclosure.
[12] A court has the power to appoint an expert for the purposes of determining income under Rule 20.1(3). Appointing an expert for this purpose recognizes the primary objective of the Family Law Rules to deal with cases justly: Fouldis v. Fouldis, 2016 ONSC 4819, at para 28.
[13] I am granting the Mother’s motion for an order compelling the services of qualified and independent professional to obtain an opinion regarding the Father’s true income for the following reasons.
[14] The Mother has provided sufficient evidence related to questionable deposits in the Father’s bank account from 2018 to 2020 that such analysis is required.
[15] First, the Mother provided evidence that during the relationship, the Father received cash for referrals when he would procure a mortgage transaction. He would give this cash to the Mother and ask her to deposit it into his account. She believes he did this to launder the money for tax purposes.
[16] His April 29, 2019 financial statement reports income of $80,480.09 per year from employment with a numbered company, 1584219 Ontario Inc. and that his annual expenses were reported as $100,567.44. There is no satisfactory explanation for how the Father could pay for expenses in excess of what he says he was earning at the time.
[17] Further, his bank statements from January 2018 to December 2018 show additional unexplained deposits in his account of $278,049.43. This supports the Mother’s position that the Father’s income may be higher than what he reports and that he has the ability to earn more.
[18] The Father says that he has no income for 2020 and 2021 and he has provided Notices of Assessment which support this. However, his bank records show large deposits in his account during this period.
[19] The Father explained in his affidavit that the source of funds was refinancing of the Milton property, funds from his parents and a line of credit although he provided no proof other than his bald statements to this effect.
[20] As well, despite the Father’s argument that he has been unemployed since 2019, he has been able to pay the mortgage for the Matrimonial Home from the date of separation until July 2021.
[21] The Mother believes that the Father has transferred assets to either his current girlfriend or his sister and she has provided evidence that each of them have been making some payments to the Father. For example, from June 18, 2021 to October 28, 2021, the Father received $12,240 from his girlfriend, Ms. Turski and $2,500 from his sister. His girlfriend, Anna Turski provided evidence that she sometimes transfers money to him, but on this record. I am unable to determine that the transfers from her are actually gifts as opposed to a form of money laundering which the Mother has given evidence on.
[22] The Mother has also provided evidence that the Father used to keep money in a safety deposit box which he makes payments of $141.25 a year on. At one point they had $100,000 in cash in the Matrimonial Home, which she says he moved to this safety deposit box.
[23] As well, although the Father claims he cannot work due to alcoholism, the Mother, who was married to him and who knows him, said that he is a functioning alcoholic and able to earn a very high income. Indeed, his prior ability to earn such significant sums despite his alcoholism supports this.
[24] Although the Father is not currently working as he is in rehab, this does not mean that he will be unable to work afterwards and it does not mean that he is relieved of his child support obligations on any long term basis.
[25] I am satisfied that there is a necessity for an income report to be provided.
[26] Given the Father’s position that he does not have money to obtain one, I will be ordering that funds held in trust with respect to the sale of property municipally known as 1363 Rose Way, Milton, Ontario, may be released to the Father but only to the extent of funds required for an income report. I will provide specific direction as to how this is to be accomplished.
Motion to Vary Justice Nishikawa’s Support Order
[27] I am adjourning the Father’s motion to vary the Order of Justice Nishikawa pending receipt of the income report. There is a heavy onus on a party seeking to vary an interim order: Coley v. Coley, 1982 CarswellMan 26, at para 3. In my view, the Father has not met this onus given the above evidence filed by the Mother which supports that either the Father earns more than he says, or he is capable or earning more than he says.
Matrimonial Home
[28] The Matrimonial Home is registered in the name of the Father. He argues that he has a prima facie right to sell it unless the Mother establishes that she is entitled to a competing right under the Family Law Act: Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 38 R.F.L (3d) 217 (Ont.C.A.); Brar v. Brar, 2020 ONSC 5637; Goldman v. Kudeyla, 2011 ONSC 2718.
[29] There have been a number of cases in which courts have denied an interim motion for sale prior to trial where the spouse established circumstances such as prejudice on an equalization payment or the need to preserve the residence for a vulnerable spouse or child who might well retain the home in the cause: Arlow v. Arlow (1990) 1991 CanLII 12940, Walters v. Walters, 1992 CanLII 8599; Kereluk v. Kereluk, 2004 CanLII 34585.
[30] I am satisfied that the Mother has established a competing right under the Family Law Act.
[31] The Father has not been paying the required child support pursuant to Justice Nishikawa’s Order and essentially seeks an order that he need not have any child support obligations in the future because of his inability to work. The Father is currently in arrears of his child support obligations in the amount of $10,569.84 pursuant to Justice Nishikawa’s Order.
[32] The Mother currently has sole custody of the child, K. born January 19, 2012 who is currently 9 years old. They reside in the Matrimonial Home. The Mother works two part-time jobs, one at Winners and one at A & W. These jobs are a six-minute drive and twenty-six-minute walk from the Matrimonial Home. The Mother works between 30-50 hours per week.
[33] She earns approximately $30,000 per year, although in 2020 she had additional income because of CERB. The Mother’s September 21, 2018 financial statement reports expenses in the amount of $27,522.72 per month.
[34] The child, K. attends Eatonville Elementary School which is a four-minute drive and a 9-minute walk from the Matrimonial Home. K.’s daycare is a 4-minute drive and a 15-minute walk from the Matrimonial Home. K. has a strong connection with the Matrimonial Home. The Father provides no assistance with childcare and has not exercised any of his parenting time which I ordered in my May 2021 Order, nor has he complied with the conditions which I imposed.
[35] The entire responsibility for parenting K. rests upon the Mother. While the Father argues that convenience does not establish a competing interest (Brar v. Brar, 2020 ONSC 5637), this is not merely an issue of the Mother’s convenience. The issue is that the Mother has all the burden of caring for K., works two jobs to do so and it would not be appropriate in these circumstances to place an additional burden on her to find another place for her and K. to live, particularly given the financial issues which I set out below.
[36] Based upon the Father’s Net Family Property Statement dated April 2019, the current value of the Matrimonial Home is $450,000 and it has a mortgage on it of approximately $307,000. Therefore, there is approximately $140,000 in equity in the Matrimonial Home.
[37] Based upon the Father’s Net Family Property Statement dated April 2019, he had a net family property of $82,965.91. The Mother’s Net Family Property from her September 2018 Financial Statement is zero. Therefore, the Father would owe her an equalization payment of approximately $41,000. I note that in his affidavit, the Father calculates the equalization payment which he owes the Mother to be $33,884. However, the Mother disputes certain loans which the Father claims for Elie Soberano and Pradeep Shokeen. When she adjusts the Father’s Net Family Property Statement to account for these, the Father would have to pay the Mother $61,500.
[38] The Mother claims that the date of separation is February 21, 2018 and the Father claims it was in 2017. I cannot resolve this factual dispute. The Mother provided evidence that shortly before the date of separation that she alleges, the Father refinanced the Matrimonial Home, taking $111,638.42 out of it which she says was to arrange private mortgages. The Father admits that he did refinance the Matrimonial Home for $115,000 in January 2018 without the Mother’s consent and he acknowledges that he is “responsible for these funds.”
[39] He also confirmed that he used these funds to arrange two private mortgages. He says that these mortgages are in default, but he provides no evidence for this other than his bald statement. I note that in paragraph 42 of his October 28, 2021 affidavit, he indicates that the capital he invested in respect of these private mortgages was returned but not the interest. Therefore, he is in receipt of these funds which he obtained from the mortgage he took out on the Matrimonial Home.
[40] The Mother may be entitled to an unequal division of the party’s net family properties pursuant to section 5 of the Family Law Act which permits a court to award a spouse an amount that is more or less than half the difference between the net family properties if it is of the opinion that equalizing the net family properties would be unconscionable having regard to various factors which include the reckless or intentional depletion of his or her net family property.
[41] As well, given the Father’s opposition to paying child support, his failure to make court ordered payments, and his position that he need not given his alcoholism, it may be that income will ultimately be imputed to him at trial: See Benzeraoual v Issa, [2017] O.J. No. 3113 which sets out the law on imputation. Further, the Mother may ultimately be entitled to a lump sum payment in respect of either child support or spousal support. Lump sum payments are appropriate where there is a provable and real risk that periodic payments will not be made: Makeeva v Makeeva, 2021 ONCA 232.
[42] If the Mother obtains a lump sum award, it may eclipse all the equity in the Matrimonial Home.
[43] The Father argues that the Mother will actually owe him an equalization payment in the amount of $25,268 when post separation adjustments are made because he has been paying the mortgage on the Matrimonial Home. He includes in this, an alleged overpayment of child support. (I note that what he says in his affidavit as to the quantum of post-separation adjustments he is owed is not the same as the spreadsheet which he attaches to his affidavit. I am using the spreadsheet he prepared and not the statement in his affidavit.) I am not satisfied that any post-separation adjustments that the Father may be entitled to will offset any equalization payment to which the Mother could be entitled and/or any lump sum child support award which she may be entitled to.
[44] As well, the Mother has given evidence that she is currently seeking financing in respect of the Matrimonial Home and that it may take her six months to do so.
[45] I agree that in all the circumstances, the Mother has established a competing interest to an equalization claim pursuant to the Family Law Act, and/or a lump sum child support award. Further, it is in the child’s best interests that they continue to reside in the Matrimonial Home so that the Mother can continue to efficiently care for K. and meet her needs (particularly given the Father’s complete absence) until issues relating to the Father’s income, his assets, his support obligations and equalization can be determined. Although the Father argues that matrimonial homes are generally sold, in Martin v. Martin (1992), 1992 CanLII 7402 (ON CA), 8 O.R. (3d) 41, the Court of Appeal directed that orders for the sale of the matrimonial home should not be made as a matter of course.
[46] In all the circumstances of this case, the Matrimonial Home should be preserved in the interim.
[47] Although the mortgage was previously in default, the Mother put the mortgage into good standing and is able to pay the carrying costs.
[48] In all the circumstances, I am dismissing the motion for partition and sale.
[49] I am also adjourning the Father’s motion for release of any additional funds related to the sale of the Milton property until the income report is completed.
[50] Therefore, I order as follows:
a. The motion for partition and sale of the Matrimonial Home is dismissed.
Pursuant to Rule 20.1 of the Family Law Rules
b. The Father shall retain the services of a qualified and independent financial professional to inquire into and report on the Father’s income for the years 2019 onwards for the purpose of determining what is owed for child support as well as to determine what his current assets are. This shall include income from all corporations in which he may have an interest.
c. Counsel for the Mother and the Father shall exchange the names of three different professionals for this purpose within 7 days. They shall choose one from this list and provide this Court with the name of such chosen expert for the purposes of appointment pursuant to Rule 20.1(3) within 7 days thereafter. If they cannot agree to one, they may bring an urgent motion identifying each of their recommendations as to a qualified assessor, and I shall choose.
d. The parties shall promptly answer any questions that the expert has that are relevant to the expert’s inquiry. All questions and answers shall be confirmed in writing.
e. Within 7 days, the Father shall provide an authorization to the Mother to write to all major banks in Canada to request information on what accounts, (deposit, credit, loan, line of credit etc.) he holds with them whether on his own account or jointly. This is to assist with the income report I am ordering and is an ancillary order pursuant to Rule 20.1(5).
f. Thereafter, the Mother may make a request for disclosure of any accounts discovered through this process by way of 14B motion made directly to my attention.
g. The Father shall disclose to the Mother the whereabouts of his safety deposit box within 2 days of this Order as well as its contents. (Also, an ancillary Order pursuant to Rule 20.1(5)).
h. I am making an interim preservation order of the safety deposit box owned by the Father. The Father shall not remove any funds from this box. Also, an ancillary Order pursuant to Rule 20.1(5).
i. The expert shall prepare a report upon completion of the inquiry and file it with the Family Court Office (by delivering a copy to the Family Court trial co-ordinator.) A copy shall also be delivered to the parties.
j. The parties shall provide a copy of this decision to the expert.
k. Thereafter, upon receiving a bill in respect of this qualified income appraisal, the Father shall forward same to counsel for the Mother and if counsel for the Mother is satisfied as to the bona fides of this bill, sufficient funds from the sale of the Milton property, being held in trust, shall be released to pay for the cost of this income appraisal.
l. If the qualified appraiser requires a deposit or interim payment, then the Father may write to the Mother enclosing proof of this request, and if the Mother agrees, then sufficient funds to pay any such deposit or interim payment for the qualified appraiser may be made.
m. The motion for the release of funds from the sale of the Milton property is adjourned until after completion of the income report.
n. The motion to vary Justice Nishikawa’s child support order is dismissed without prejudice to his bringing it again after receipt of the income report.
o. The Father shall provide to the Mother all necessary consents and authorizations to permit her to pay the mortgage and any other expenses associated with the Matrimonial Home henceforth.
p. I order that child support arrears in the amount of $10,569.84 shall be released from the sale proceeds of the Milton property directly to the Mother.
q. The parties may make brief submissions of no longer than 5 pages on costs within 7 days if they cannot agree.
r. The Mother shall provide a draft Order approved as to form and content to my attention.
Papageorgiou J.
Date: November 26, 2021