COURT FILE NO.: FS-19-00094161-00
DATE: 2021 12 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Shahinda Lokhandwala
Sarah Boulby and Kenneth Fishman, for the Applicant
Applicant
- and -
Imran Khan, Zarinataj Khan, Ishaq Khan, O932293 B.C. Ltd., and 9633880 Canada Inc.
Heather Hansen, Deborah Perkins-Leitman, and Jonathan Robinson for the Respondents, Imran Khan, Zarinataj Khan, and Ishaq Khan
Respondents
Heard: by Zoom.
REASONS FOR JUDGMENT
Bloom, J.
I. INTRODUCTION
[1] I note that proceedings were previously stayed against the Respondent, 0932293 B.C. Ltd.; and that Imran Khan, a non-lawyer and Respondent in his personal capacity, was permitted by previous court order to represent the Respondent, 9633880 Canada Inc., solely on the issue of claims asserted in respect of an undertaking given by the Applicant in relation to the order of Justice LeMay of December 2, 2020.
[2] The issues before me on this proceeding are: (1) the date of separation of the Applicant and Imran Khan, and the granting of a divorce; (2) the ownership of 0932293 B.C. Ltd. (“Cellicon”); (3) equalization as between the Applicant and Imran Khan, including the specifically disputed items and the ownership of Celllicon (as determined in relation to issue (2)) and the value of Cellicon at the date of separation; (4) unequal division claims of the Applicant and Imran Khan in relation to equalization; (5) claims regarding child support, spousal support, and s. 7 expenses including alleged overpayment of support by Imran Khan since the date of separation; (6) the Applicant’s claim for reimbursement of $65,000; (7) the Applicant’s claim for damages in relation to the forced sale of 42 Giorgia Crescent; (8) Imran Khan’s claim for damages based on the Applicant’s undertaking related to Justice LeMay’s Order of December 2, 2020; and (9) Imran Khan’s claim for post-separation adjustments respecting carrying costs for 42 Giorgia Crescent.
II. ORDER OF ADDRESSING PROPERTY ISSUES
[3] The parties differ in their submissions as to the order in which I must address the property issues. Both parties rely upon Martin v. Sansome, 2014 ONCA 14 and Rawluk v. Rawluk, 1990 CanLII 152 (SCC).
[4] The Applicant contends that the issue of ownership of property including any trust relating to property (even by way of a remedy for unjust enrichment), must be determined before equalization issues are addressed.
[5] The Respondent, Imran Khan, argues that the issue of a proprietary remedy by way of trust for unjust enrichment should await the completion of the equalization process including a determination of the claims for unequal division.
[6] In my view, the Ontario Court of Appeal in Martin v. Sansome, supra at paragraphs 46 to 52 and 66 to 67 set out a road map for the steps under consideration.
[7] Ownership issues are first to be addressed including by way of a remedy for unjust enrichment. Then the equalization provisions of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) are to be applied including addressing claims for unequal division.
[8] The Court left for another day the determination of whether there was scope for a monetary remedy for unjust enrichment after the full equalization process including the disposition of claims for unequal division.
[9] Finally, I should note that the determination of ownership under the first step will generally be accomplished under s. 10 of the FLA, but where, as here, there is at least one interested party who is not a spouse or former spouse, the court may rely upon its jurisdiction outside s. 10. In this case Zarinataj Khan is such a party. Accordingly, as regards the question of her alleged beneficial interest in 0932293 B.C. Ltd., I rely upon the inherent and general jurisdiction of this court.
III. DATE OF SEPARATION AND DIVORCE
[10] The Applicant and the Respondent, Imran Khan, accept September 16, 2018 as the valuation date based on the application of paragraph 1 of the definition of “valuation date” in s. 4(1) of the FLA.
[11] The Applicant has testified that the date of separation was September 16, 2018. The Respondent, Imran Khan, does not accept that evidence, but concedes that for purposes of divorce the parties satisfy the test of living separate and apart for one year.
[12] Accordingly and based on the evidence before me, I find that the Applicant has proven entitlement to divorce. I order that the Applicant, and the Respondent, Imran Khan, be divorced and that the divorce take effect on the thirty-first day after the date of release of my reasons.
IV. OWNERSHIP OF 0932293 B.C. Ltd.
[13] The issue of ownership of 0932293 B.C. Ltd., also called Cellicon, is the first substantive issue which I will address. The company sold cellular phone accessories and made cellular phone repairs. It operated some locations as corporate locations and multiple locations across several provinces through contractual arrangements with local operators.
[14] The Applicant argues that the company was incorporated with Zarinataj Khan (“Zarinataj”), mother of Imran Khan, as a bare trustee holding the shares for Imran Khan and the Applicant beneficially in equal portions; and that the beneficial ownership of the company did not change when Zarinataj gifted half of the shares to Imran Khan.
[15] Alternatively, the Applicant argues that based on the principles of joint family venture she is entitled to a proprietary remedy in the company.
[16] She relies on the financing of the company from the proceeds of the sale of the jewellery inventory of the Florida business she and Imran Khan had operated, from the proceeds of the sale of their jointly owned Florida home, and from a loan from her brothers. She also relies on the work she performed in the business, and the absence of corporate records demonstrating the beneficial ownership of Zarinataj and the gift to Imran Khan.
[17] Imran Khan argues that the Applicant is not entitled to either legal remedy she seeks. He contends that his mother was the sole beneficial owner of the company and gifted a one half share in it to him.
[18] The principles governing a bare trust are not in dispute. They are set out in Rubner v. Bistricer, 2019 ONCA 733.
[19] Those requirements are: (1) the parties have capacity; (2) there must be certainty of intention to create a trust, certainty of subject-matter, and certainty of objects; (3) the trustee must hold legal title to the trust property; and (4) the required formalities must be met. The trustee holds the property without any active duties to perform other than to convey the trust property to the beneficiaries on demand.
[20] I conclude based on the evidence before me that Zarinataj has held the shares in the company from its incorporation until the present as bare trustee for the Applicant and Imran Khan in equal shares. I will now explain that conclusion.
[21] It was not in dispute that the company was incorporated on February 8, 2012; and that Zarinataj was the sole director until on January 1, 2015 when Imran Khan replaced her as sole director.
[22] It was her evidence supported by that of Imran Khan that at that time she also gifted one half of the shares of the company to him.
[23] She explained the gift in her testimony as resulting from her need to have him run the company so that she could take care of her ill husband. She testified that she intended to gift the other half of the company to her other children.
[24] I reject the evidence of Zarinataj as to her initial ownership and then gift of shares to Imran Khan.
[25] She testified that she suffered from dementia; that evidence bears negatively on her reliability.
[26] Imran Khan admitted in testimony that there was no document memorializing the alleged gift.
[27] The evidence of events and documents is consistent with Zarinataj holding the shares as a bare trustee for the Applicant and the Respondent, Imran Khan, from the outset with no change in that trust relationship taking place. The credibility of both the Applicant and the Respondent, Imran Khan, is badly flawed. For that reason, I have looked to documents or their absence, to confirmatory evidence, logic, and common sense in making my findings on the ownership of the Cellicon.
[28] I note that the credibility of the Applicant was badly damaged by her admission in testimony to backdating a number of promissory notes from herself to her brothers. She attempted to explain the backdating by the assertion that the originals were lost and that she thought that there was no impropriety in her action.
[29] The Applicant and Imran Khan had operated both a jewellery and cellphone accessory business in Florida prior to immigrating to British Columbia in November of 2011. He testified that the Florida business, which had multiple locations, was entirely his own. However, no documentation was tendered to support that contention.
[30] The incorporation documents for Cellicon showed Imran Khan’s e-mail address. He attempted to explain that fact by asserting that his mother had challenges with the internet.
[31] He signed on September 25, 2012 an amendment to a license agreement for Celllicon as owner, over two years before the alleged gift to him of shares. His explanation in testimony was that he felt that he was owner.
[32] The T2 Corporate Tax Return for the company for 2015 filed in 2016 showed Zarinataj as 100% owner; the T2 Returns for 2016 and 2017 show Imran Khan as the 100% owner. He explained in testimony that the accountant had erred in the 2016 and 2017 Returns.
[33] He testified that the company did not have minute books or shareholders registers showing the shareholders.
[34] The 2018 Corporate Tax Return for the company filed after the commencement of the present proceeding by the Applicant shows Imran Khan and Zarinataj as each 50% shareholders.
[35] The documentary evidence and Imran Khan’s explanations for it as set out above convinced me that his testimony lacked credibility.
[36] The Applicant testified (1) that upon moving to British Columbia in 2011, she and Imran Khan looked at different locations in malls in that province in which to set up a cellphone accessories business; (2) that the company was incorporated with Zarinataj as named sole shareholder, while the Applicant and Imran were each 50% beneficial owners, because of Imran Khan’s immigration status in Canada; and (3) that the company opened its first location in 2012 in Burnaby, British Columbia.
[37] I accept her evidence that Zarinataj was a bare trustee, since it is consistent with the role that Zarinataj and her husband, Ishaq Khan, played as bare trustees for Imran Khan and the Applicant as beneficial 50% owners of a home purchased in Vaughan, Ontario, in November of 2013 at 42 Giorgia Crescent.
[38] It is undisputed that both the Applicant and Imran Khan worked in the business during 2012, 2013, 2014, and 2015.
[39] Zarinataj in pre-trial questioning testified that Imran Khan ran the company from 2012 onward, but at trial said that he did not run the company until he was made the director. Her evidence displayed lack of credibility and reliability on that point.
[40] Imran Khan testified that neither he nor the Applicant contributed to the financing of the start up of the company, although he lent money to the company as he received money from the sale of assets in the U.S. His explanation of the financing of the company was vague, unsupported by documents, and, therefore, not persuasive. I accept the evidence of the Applicant as to the financing of the start up of the business. She testified that this financing came from the sale of the Florida home she had owned with Imran Khan, the sale of the cellphone accessory stores in Florida, the sale of the jewellery inventory from the Florida business, and a loan of $500,000 from her brothers. Her explanation is logical and accords with common sense.
[41] In sum, in accordance with the legal principles outlined above, I find that Zarinataj was from the outset a bare trustee selected by Imran Khan and the Applicant to hold the shares in the company in trust for them in equal shares; and further that those beneficial shares have remained unchanged as 50% for each of the Applicant and Imran Khan.
V. EQUALIZATION
[42] I shall now address the issue of equalization as between the Applicant and Imran Khan.
[43] I will begin by addressing each of the amounts in dispute in the equalization analysis.
A. The Value of Cellicon at the Date of Separation
[44] Imran Khan called, as an expert on the issue of the value of the shareholders equity in Cellicon at the date of separation, Alan T. Mak (“Mak”). He gave evidence as a chartered business valuator. His evidence was professional and credible.
[45] The Applicant called, as an expert on the issue, Steve Z. Ranot (“Ranot”), also a chartered business valuator. His evidence was also professional and credible.
[46] Mak used the income or earnings approach to value the equity in Cellicon, because that method is appropriate for a company such as Cellicon, where operations are key to value.
[47] Ranot used the same approach. In fact he just made adjustments to the valuation made by Mak.
[48] The problem I face is that Mak’s valuation turns on his accepting the assurances of his client, Imran Khan, as to material facts. I accept Mak’s oral and documentary evidence that the accounting records for the company were incomplete and difficult to obtain; that there was a lack of source documents such as credit card receipts; that transactions were often in cash and often not recorded properly; and that consequently he relied on his client’s answers to him regarding the nature of many transactions, including as to whether various amounts were business expenses or personal items.
[49] Mak testified that Ranot and he agreed on the approach to the valuation, but that Ranot just made further adjustments beyond the ones he had made, based on the Applicant’s advice to him.
[50] Mak testified that essentially the differences in the conclusions of the two experts arose from the differences in the explanations that their respective clients gave them for the facts not shown in the accounting records and source documents. Ranot’s testimony was to the same effect. He testified that if there had been appropriate records, the two experts would have been very close in their opinions; he added that it was very seldom that a business would have the lack of back-up documents for the size of expenses and unrecorded appropriations seen in this case.
[51] The testimony of both the Applicant and Imran Khan was consistent with the need by their respective experts to rely on the assurances given to them by their clients to fill gaps in the corporate records. Further, the Applicant and Imran Khan also gave testimony attempting to orally provide missing documented financial information so as to support their respective expert’s opinions.
[52] Since both valuations turn on the acceptance of explanations from the Applicant or Imran Khan without documentary confirmation and since I have already found that I will not accept the word of either without support, I find that I am unable to accept the valuation of either Mak or Ranot as to the value of the equity in Cellicon, as of the date of separation; I accord no value at the date of separation to Cellicon for either the Applicant or Imran Khan, since that value was not proven.
B. Furnishings of Parkland Avenue Home
[53] The Respondent, Imran Khan, testified that the Applicant, after separation, took effectively all of the furnishings from their home on Parkland Avenue (“Parkland home”) in Mississauga, leaving a television on the wall and some bed frames. He contends that the value of the furnishings on the date of separation was $95,000.
[54] The Applicant testified that she moved out of the Parkland home in February of 2019 and took only the furnishings she needed, not knowing what became of the rest. She tendered a set of photographs which she testified were taken on February 26, 2019 at the Parkland home showing furniture in the home.
[55] On the evidence, I am unable to ascribe any value to the furnishings owned by the parties at the date of separation and taken subsequently by either of them. That value was not proven.
C. Toyota Camry
[56] The Applicant testified that her family gave her a Toyota Camry as part of her dowry; and that the automobile had a value of $37,497.22 on the date of marriage. The Respondent, Imran Khan, testified that the car was gifted to both himself and the Applicant at the date of the marriage; and that it was probably held in the names of both of them. It is clear that the automobile existed. I accept the Applicant’s evidence in respect of the issue raised, because it was more specific and certain.
D. Mercedes GL450
[57] The Applicant testified that Imran Khan owned a Mercedes GL450 automobile on the date of separation which he had purchased from his brother. She supported her evidence with an unsigned bill of sale naming Imran Khan as buyer and his brother as seller on June 26, 2017, with a purchase price of $13, 384.51.
[58] The Respondent, Imran Khan, testified that the sum was actually paid to his brother for the use of the automobile, which was always in his brother’s name and was ultimately transferred to Imran Khan’s sister.
[59] I do not find the explanation provided by Imran Khan credible. The sum paid to his brother matches the amount in the unsigned document. I accept the explanation of the Applicant, as supported by the document, as credible and find that Imran Khan owned the automobile on the date of separation.
[60] To establish its value at that time, the Applicant tendered a valuation of that model of automobile as of September 17, 2018 as being a low of $34,950 and a high of $38,050. She submitted that I should choose a midpoint value of $36,500 and I accept that submission.
E. Value of the Applicant’s Jewelry and Handbags
[61] Shiv Kumar (“Mr. Kumar”) gave expert evidence on behalf of the Applicant as to the value of her jewelry and handbags. The Respondent, Imran Khan, called no expert evidence on this matter.
[62] Mr. Kumar’s testimony was clear and honest. Imran Khan in his submissions points out that the appraisals were performed approximately two years after the valuation date in this proceeding, but he led no evidence of the impact of that fact on the appraisals.
[63] I am satisfied that Mr. Kumar’s appraisals are a reasonable basis for giving value to the jewelry and handbags in question and I accept the appraisals for that purpose.
[64] The evidence of the Applicant which accepted the valuations of Mr. Kumar was that prior to the marriage she had been given by her family $29,725.00 of jewelry and by Imran Khan’s family $11,935.00 of jewelry; that during the marriage she had been gifted by her family $19,130.00 in jewelry; that during the marriage she had acquired an additional $22,660.00 in jewelry; and that she retained all of the jewelry on the date of separation along with $5440.00 worth of handbags.
[65] Imran Khan testified that some of the Applicant’s jewelry actually had been gifted to both of them by his family in accordance with the custom of the cultural community to which they all belonged. However, neither of his parents, both of whom testified, gave evidence supporting that position.
[66] Accordingly, I accept the testimony of Mr. Kumar and the Applicant on this matter and find that on the date of marriage the value of her jewelry was $41,660.00; on valuation date it was $64,320.00; and on valuation day the value of her handbags was $5440.00. The value of jewelry gifted to her during the marriage by her family, $19,130.00, is excluded from the value of her jewelry on valuation date by virtue of FLA s. 4(2)1.
F. The Applicant’s Indian Bank Accounts
[67] The Applicant adduced evidence that at valuation date she held in Indian bank accounts sums equivalent to the following Canadian dollar amounts: $12.95, $5831.49, and $738.32. Imran Khan did not call evidence which detracted from the persuasiveness of that evidence; accordingly, I accept it.
G. Children’s Bank Accounts
[68] The Applicant gave uncontested evidence that post-separation she used $40,000 from bank accounts of her children at the Toronto Dominion Bank for car payments and other expenses; that this money had been gifted to them by herself and Imran Khan during the marriage; and that she intends to repay these monies. I accept this testimony as to her children owning $40,000 in bank accounts on valuation day.
H. Car Loans of Imran Khan
[69] Imran Khan provided documentation to support the existence of two outstanding car loans on valuation date, one for a 2013 Range Rover in the amount of $33,914.60 and one for a 2017 Range Rover in the amount of $100,272.90. The Applicant disputed these sums. However, I am not satisfied that the Applicant has explained away the evidentiary force of the documentation adduced by Imran Khan and, therefore, accept the existence of the two loans on valuation day.
I. Joint Debt Owed to Brothers of Applicant
[70] The Applicant testified that her brothers, Zameer and Sherazad, lent $500,000 U.S. dollars to her and Imran Khan to fund the business which became Cellicon.
[71] Imran Khan in his testimony denied that the brothers advanced money by way of loan, stating that any advances were by way of equity investment.
[72] I accept the Applicant’s evidence on this point for two reasons. First, Imran Khan’s Answer in this proceeding refers to “joint debt-including loans from” the Applicant’s family, and no leave to withdraw this admission has been sought or granted by this court. Second, there was documentary evidence filed by the Applicant consistent with the loan.
[73] I accept, as fact, from the Applicant’s sworn Financial Statement dated April 8, 2021 and filed in evidence at trial that the balance of the loan as of valuation day was $325,000 Canadian dollars owed jointly by herself and Imran Khan.
J. Loan of $300,000 from Karim Bandeali
[74] Imran Khan testified that he and the Applicant owed his brother-in-law, Karim Bandeali (“Bandeali”), $300,000.00 as of valuation date in respect of a loan in that sum. Imran Khan’s oral evidence on that point was disjointed and unclear. Further, no documentation from Bandeali or oral evidence from him confirming the loan was adduced at trial. In light of these circumstances, I do not accept the existence of the debt.
K. Loan of $220,000 from Cellicon and Shareholder’s Loan Payable
[75] In examination-in-chief, Imran Khan testified that as of the valuation date he owed $220,000.00 to Cellicon in respect of money he had borrowed from it; and that he returned that money to the company in 2019.
[76] In cross-examination he avoided a direct answer when asked whether that sum was shown in his Financial Statements dated in the period March 2019 to March 2020; he testified that most of the loan had been repaid before March of 2019.
[77] There is in my view insufficient evidence to establish the existence of this debt on valuation day. However, both the Applicant and Imran Khan agree that at on valuation day he owed Cellicon a shareholder’s loan in the amount of $42,223.00.
L. Amount Owed in respect of Amex Credit Card
[78] Imran Khan claims that he owed $7642.17 in respect of an Amex credit card at the date of separation. In cross-examination, he testified that the debt did not exist at valuation date, since the amount had already been paid by Cellicon. In his testimony he speculated that the amount could be charged back to him by Cellicon. In view of this evidence I find that the debt did not exist on valuation day.
M. Gift of $200,000 from Ishaq Khan to Imran Khan
[79] Imran Khan claims pursuant to the FLA s. 4(2) 1. an exclusion from net family property for $200,000.00 which he contends was a gift to him from his father, Ishaq Khan, in May of 2018.
[80] Ishaq Khan testified that he made this gift to Imran Khan and a gift of the same amount to another son who lived in India; and that the source of the funds for the gift to Imran Khan was the proceeds from the sale of his residence in Burnaby, British Columbia.
[81] There is documentation in evidence supporting the transfer of the funds. Imran Khan in his testimony confirmed the gift.
[82] The Applicant contends that the funds were repayment of a loan and repayment of excess funds paid to cover mortgage payments on a home owned by the Applicant and Imran Khan.
[83] The testimony of Ishaq Khan on this matter was not weakened in cross-examination. Imran Khan admitted in cross-examination that he did not note the existence of this gift as an excluded item in any of his sworn financial statements, until it was mentioned in one he produced a few weeks before trial.
[84] In my view in these circumstances, the testimony of Ishaq Khan should be accepted on this point. I, therefore, find that the gift of $200,000.00 to Imran Khan is an amount to be excluded from the calculation of his Net Family Property.
N. Imran’s Date of Marriage Deduction for Two Subway Franchises
[85] It was Imran Khan’s evidence that he owned two Subway sandwich franchises in Chicago on the date of the marriage, September 5, 2002; and that he sold them for $265,000.00 U.S. dollars.
[86] He testified that that the sale was evidenced in exhibit 158, a document filed with the U.S. Internal Revenue Service. That document refers to the acquisition of the assets sold on December 18, 2002 and May 8, 2003. Further, that evidence is somewhat consistent with an enclosure in a letter dated August 10, 2010 from a lawyer acting for him to the government of British Columbia which confirms the acquisition of his first Subway franchise as having occurred on December 30, 2002.
[87] Accordingly, I do not find that Imran Khan owned any Subway franchise on the date of marriage.
O. Value of 9623817 Canada Inc.
[88] It was common ground between the Applicant and Imran Khan that the Applicant owned 50% of 9623817 Canada Inc. on valuation date; and that the company operated 5 locations of Cellicon.
[89] Neither party called expert evidence of the value of the company on valuation day. Imran Khan contended that an appropriate calculation of that value was to take the value of Cellicon as determined by his expert on business valuation, Mak, divide it by the number of Cellicon locations, multiply that sum by 5, and add a figure for inventory.
[90] In cross-examination, Mak testified that it was not appropriate to use the figure derived from dividing the value he had determined for Cellicon by the number of locations without more context. I cannot, therefore, use the calculation put forward by Imran Khan. I cannot on the evidence before me ascribe a value to the 50% interest of the Applicant in 9623817 Canada Inc. on the date of separation; that value was not proven.
[91] A matter related to the value of the company on the date of separation is that the Applicant admits that on the date of separation she was owed by the company by way of a shareholder’s loan $17,907.50. Although Imran Khan appears in his evidence to allege that the Applicant received more than $17,907.50 from the company, he appears to accept that she took funds from the company without specifying the amount; this position is consistent with her being owed a shareholder’s loan on valuation day. Accordingly, I accept that on valuation day she was owed $17,907.50 by the company.
[92] Based upon the above findings, following is my calculation of the application of the equalization provisions of the FLA before consideration of the claims of the parties under s. 5(6) of the act.
(i) Net Family Property of Applicant
a. Value of Assets Owned on Valuation Date
42 Giorgia Crescent
$1,021,000.00
Joint Deposit 963 Parkland Avenue, Mississauga
$50,000.00
Joint Deposit Purchase of Park Avenue Tower 2 Suite 2009, Vaughan
$40,267.50
Total Value of Land
$1,111, 267.50
Jewelry
$64,320.00
Handbags
$5,440.00
Bank Accounts
Joint Savings
$2,907.11
Joint U.S. Dollar
$791.75
Chequing
$46,003.20
Chequing
$26,010.30
Indian Bank Account
$12.95
Indian Bank Account
$5,831.49
Indian Bank Account
$738.32
Total Value of Bank Accounts
$82,295.12
Business interests
0932293 B.C. Ltd.
0
9623817 Canada Inc.
0
8356262 Canada Ltd.
$5,186.30
Total Value of Business Interests
$87,481.42
Money Owed by 9623817 Canada Inc. to Applicant
$17,907.50
Value of Property Owned on the Valuation Date
$1,368,711.50
b. Debts and Liabilities on Valuation Date
Mortgage on 42 Giorgia Crescent
$566,001.98
TD Visa Credit Card
($1,418.49)
TD Aeroplan Card
$8,467.76
Capital One Card
$174.54
Costs of Disposition of 42 Giorgia Crescent
$50,759.83
Owed to Applicant’s Brothers
$162,500.00
Total Value of Debts and Liabilities on Valuation Date
$786,485.62
c. Property on Date of Marriage
Toyota Camry
$37,497.22
Jewelry
$41,660.00
Total Value of Property Owned on Date of Marriage
$79,157.22
Total Value of Debts Owed on Date of Marriage
0
Total Net Value of Property Owned on Date of Marriage
$79,157.22
d. Excluded Property
Jewelry
$19,130.00
Value of Excluded Property
$19,130.00
e. Net Family Property
Net Family Property
$483,938.68
(ii) Net Family Property of Imran Khan
a. Value of Assets Owned on Valuation Date
42 Giorgia Crescent
$1,021,000.00
Deposit 963 Parkland
$50,000.00
Deposit Park Avenue Towers 2, Suite 2009, Vaughan
$40,267.50
2017 Range Rover
$89,712.50
2013 Range Rover
$27,031.25
Mercedes
$36,500.00
Bank Accounts
Joint Savings
$2,907.11
Joint U.S. Dollar
$791.75
Chequing BMO
$675,600.98
Chequing TD
$10,415.85
Savings TD
$5,111.05
Value of Bank Accounts
$694,826.74
Business Interests
O932293 B.C. Ltd.
0
9633880 Canada Inc.
$291,500.00
Total Value of Business Interests
$291,500.00
Value of Property Owned on Valuation Date
$2,250,837.90
b. Debts and Liabilities on Valuation Date
Mortgage re: 42 Giorgia Crescent
$566,001.98
TD Visa Credit Card
($52.30)
Car Loan for 2017 Range Rover
$100,272.90
Car Loan for 2013 Range Rover
$33,914.60
Amex Card
0
Loan from 0932293 B.C. Ltd.
0
Shareholder Loan
$42,223.00
Unpaid income taxes 2015-2017
$20,715.23
Unpaid income taxes owing for 2018
$6,924.00
Personal Loan from Karim Bandeali
0
Costs of Disposition of 42 Giorgia Crescent
$50,759.83
Owed to Applicant’s Brothers
$162,500.00
Total Value of Debts and Liabilities on Valuation Date
$983,259.24
c. Property Owned on Date of Marriage
Subway Stores
0
Total Net Value of Property Owned on Date of Marriage
0
d. Excluded Property
Gift from Ishaq Khan
$200,000.00
Value of Excluded Property
$200,000.00
e. Net Family Property
Net Family Property
$1,067,578.70
(iii) Equalization Sum Owed by Imran Khan to Applicant
Before Consideration of Claims under Family Law Act S.5(6)
$291,820.05
VI. CLAIMS OF THE PARTIES UNDER S. 5(6) OF THE FAMILY LAW ACT AND CONCLUSION ON EQUALIZATION
[93] The provision in question reads:
Variation of share
(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. R.S.O. 1990, c. F.3, s. 5 (6).
[94] The courts have defined the principles which govern the application of that provision. They were not in dispute. I will briefly review them.
[95] The onus of proof is on the party claiming an order for unequal division to establish their case on a balance of probabilities.
[96] In Symmons v. Symmons, [2012] O.J. No. 5191 at para. 36, the Ontario Court of Appeal confirmed the high threshold to be met:
36 This court has stressed that the threshold of unconscionability under s. 5(6) is exceptionally high. A party seeking an unequal division must show that an equal division of net family property would "'shock the conscience of the court'": Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 47.
[97] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161(Ont.C.A.) at paras. 46, 47, 54, 55, and 58, Justice Blair for the Court discussed the appropriate considerations on a s. 5(6) claim:
[46] In my opinion, a court may take into account a post-separation date change in the value of a spouse's assets, and the circumstances surrounding such a change, for purposes of determining under s. 5(6) of the Family Law Act whether equalizing net family properties would be unconscionable. An order for an unequal division of net family properties is exceptional, however, and may only be made on such a basis (i) where the circumstances giving rise to the change in value relate (directly or indirectly) to the acquisition, disposition, preservation, maintenance or improvement of property (s. 5(6)(h)), and (ii) where equalizing the net family property would be unconscionable, having regard to those circumstances (taken alone or in conjunction with other factors mentioned in s. 5(6)).
[47] In this regard, the threshold of "unconscionability" under s. 5(6) is exceptionally high. The jurisprudence is clear that circumstances which are "unfair", "harsh" or "unjust" alone do not meet the test. To cross the threshold, an equal division of net family properties in the circumstances must "shock the conscience of the court": see Merklinger v. Merklinger (1992), 1992 CanLII 7539 (ON SC), 11 O.R. (3d) 233, [1992] O.J. No. 2201 (Gen. Div.), affd (1996), 1996 CanLII 642 (ON CA), 30 O.R. (3d) 575, [1996] O.J. No. 4080 (C.A.); Roseneck v. Gowling (2002), 2002 CanLII 45128 (ON CA), 62 O.R. (3d) 789, [2002] O.J. No. 4939 (C.A.); McDonald v. McDonald, 1988 CanLII 8635 (ON SC), [1988] O.J. No. 518, 11 R.F.L. (3d) 321 (H.C.J.); and LeVan (S.C.J.).
[54] There is a jurisprudential theme running through the cases to the effect that relief may only be granted under s. 5(6) where there has been fault-based conduct on the part of the asset-owning spouse, that is, that the word "unconscionable" embraces factors relating to "unconscionable conduct" only: see, for example, Von Czieslik v. Ayuso (2007), 2007 ONCA 305, 86 O.R. (3d) 88, [2007] O.J. No. 1513 (C.A.); LeVan; and Merklinger. In Von Czieslik, for instance, Lang J.A. noted in obiter, "the legislative restriction of s. 5(6)'s application to certain enumerated circumstances, none of which have to do with ownership, but all of which relate to fault-based conduct on the part of the other spouse" [emphasis added] (at para. 29).
[55] Respectfully, I do not think this proposition is correct. First, it is clear that not all of the enumerated circumstances in s. 5(6) relate to fault-based conduct on the part of a spouse. Three of them -- 5(6)(a), (b) and (d) -- do. Four of them -- 5(6)(c), (e), (f) and (g) -- do not. One -- 5(6)(h), the general basket clause at issue here -- may or may not arise in conduct-related circumstances. Accordingly, there is no basis for concluding that the general basket clause in the list must take its colour and [page180] meaning from a previous list of specific conduct-based factors and, therefore, that the "circumstances" referred to must themselves embody fault-based conduct. That is not the case.
[58] There is no principled reason that I can see, given the language of the Act and its purpose or objects, to confine the word "unconscionable" in s. 5(6) only to circumstances arising from fault-based conduct on the part of one of the spouses. Although unconscionable conduct is obviously an appropriate consideration in determining whether equalizing the net family properties would be unconscionable, in my opinion the true target of the limited exception to the general rule is a situation that leads to an unconscionable result, whether that result flows from fault-based conduct or not.
[98] In Von Czieslik v. Ayuso, 2007 ONCA 305, 86 O.R.(3d) 88 (Ont.C.A.) at paras. 35, 36, and 58 Justice Lang for the Court discussed the scope of the remedial power under s. 5(6):
[35] Permitting a court to award an amount up to the whole of an offending spouse's net family property as is appropriate to compensate for unconscionable conduct provides a real, substantial and meaningful remedy for the unconscionable conduct. Such a remedy serves, as far as is practicable, to rectify the otherwise unconscionable result and, at the same time, sends a warning to spouses tempted to hide or divert assets that it is not worthwhile to do so.
[36] Accordingly, an interpretation that gives the court the authority to award an amount up to the value of the offending spouse's net family property accords most fully with the purpose and intent of the legislation.
[58] In summary, for the reasons I have stated, on a plain reading of the FLA, a court is not restricted in making a s. 5(6) award to the difference between the parties' net family property, even when that difference is zero. As s. 5(6) provides, a court may award "an amount that is more or less than half the difference between the net family properties". Accordingly, a court may award an amount that is greater than the difference between the parties' net family properties. If the difference between the parties' net family properties is zero, a court may still award more or less than that amount, subject to the restriction that the payment ordered cannot exceed the total value of the payor's net family property.
[99] The Applicant argues that she is entitled under s. 5(6)(d) and (h) of the FLA to an award against Imran in the amount of the value of her half interest in Cellicon or such lesser amount as the Court deems just. Her arguments seek to place the date for valuation of her interest as of the date she alleges that Imran Khan locked her out of the business, November 7, 2018.
[100] Since the valuation date is September 16, 2018 and I have found that I am unable to place a value on the interest of the Applicant or Imran Khan for equalization purposes, I must find that the Applicant is not entitled on the evidence to a remedy under s. 5(6) of the FLA.
[101] Imran Khan argues that he is entitled under s. 5(6) of the FLA to an order that any equalization payment that may be owing from him to the Applicant on account of the value of Cellicon be reduced to take into account what he alleges has been the catastrophic market-driven decline in the value of the business and the company’s current status in its bankruptcy process.
[102] Since I am not basing any equalization payment to be ordered to be made by Imran Khan on the value of Cellicon, he is not entitled to a remedy under s. 5(6).
[103] Therefore, my order in the matter of equalization is that Imran Khan pay the Applicant $291,820.05.
VII. THE APPLICANT’S CLAIM FOR $65,000.00 ADVANCED FOR THE PURCHASE OF THE PARKLAND PROPERTY
[104] The Applicant contends that in October of 2018 after separation she transferred $65,000.00 to Imran Khan of her personal funds to be used in the purchase by them of a home on Parkland Avenue in Mississauga; that the transaction was not completed; and that he did not reimburse her the money advanced.
[105] Imran Khan admitted in testimony that he received the funds to be used in the purchase. He admitted that he was obliged to repay the funds, because the transaction was not completed, but stated that he repaid the sum and much more.
[106] He adduced no evidence to support the repayment. Accordingly, I find that he owes a debt of $65,000.00 to the Applicant for the sum advanced to him and not repaid.
VIII. THE APPLICANT’S CLAIM FOR DAMAGES IN RELATION TO THE SALE OF 42 GIORGIA CRESCENT, MAPLE, ONTARIO
[107] The Applicant seeks damages arising out of the sale of 42 Giorgia Crescent, Maple, Ontario.
[108] The property was beneficially owned equally by the Applicant and Imran Khan, although it was held in the names of his parents.
[109] The Applicant seeks to recover as damages one half of the difference between the fair market value and actual sale price of the property.
[110] The sale took place pursuant to the order of Justice LeMay of this court dated May 14, 2020. In his reasons for decision dated May 25, 2020, His Honour reviewed the procedural and factual background to the order. The order provided that it was without prejudice to the “Applicant’s position at Trial with respect to the reasonableness of the selling price” of the property.
[111] At this trial, the Applicant led expert evidence from Jim Parthenis (“Mr. Parthenis”), an expert in real estate appraisals, that the fair market value of the property at the time of sale was $2,290,000.00; the sale price was $2,042,000.00. Mr. Parthenis was not cross-examined nor did Imran Khan call expert evidence to dispute the testimony of Mr. Parthenis. I accept that evidence as reliable and credible.
[112] However, to make out her claim for damages the Applicant must demonstrate that Imran Khan was responsible in law for the lower than market value price at which the property sold.
[113] I am not persuaded that she has discharged this onus.
[114] The sale was authorized by court order. In his reasons, Justice LeMay made findings as to the procedural and factual background on which his order rested. That background was complex and acrimonious.
[115] The circumstances relevant to the Applicant’s claim include that background and not just the sale price. Assuming without deciding that it was open to the Applicant at this trial to relitigate Justice LeMay’s findings as to that background, she has not convinced me by evidence that Imran Khan was legally responsible for the sale of the property below market value. The documentary and oral evidence before me does nothing but confirm the picture painted by Justice LeMay of the Applicant and Imran locked in high conflict litigation, without cooperation to maximize the sale price of the property; the acrimony included a complaint by the Applicant to a regulator against a realtor involved in the attempt to sell the property. The evidence before me does not establish the legal responsibility of Imran for the end result of the conflict in the sale price below market value.
IX. IMRAN KHAN’S CLAIM FOR DAMAGES FOR BREACH OF THE APPLICANT’S UNDERTAKING GIVEN UNDER RULE 40.03
[116] On December 2, 2020 Justice LeMay of this court made an order which contained, inter alia, the following terms:
The Respondents, Imran Khan and Zarinataj Khan, shall be restrained from selling, transferring, or encumbering any ownership interest they have in 9633880 Canada Inc. and 0932293 B.C. Ltd. and they shall preserve their interests pursuant, respectively, to ss. 12 and 40 of the Family Law Act and s.101 of the Courts of Justice Act and R.40 of the Rules of Civil Procedure;
9633880 Canada Inc. and 0932293 B.C. Ltd. shall not enter into an asset sale of all or substantially all of the assets of the respective corporations.
The Respondents may request that case management Judge schedule a motion to vary the terms of paragraphs 1 and 2 hereof on further evidence with respect to sale to bona fide third party purchaser(s)and fair market value of 9633880 Canada Inc. and 0932293 B.C. Ltd.
[117] The Applicant gave an undertaking to abide by any order concerning damages the court may make if it ultimately appeared that the granting of the order had caused damage to Imran Khan for which she ought to compensate him.
[118] The parties were content that I decide the issue of damages claimed by Imran Khan pursuant to this undertaking based on the record before me.
[119] 0932293 B.C. Ltd., Cellicon, was deemed to have made an assignment in bankruptcy on March 2, 2021. Imran Khan never moved under paragraph 3. of Justice LeMay’s order in respect of a proposed sale of this company. Imran testified that he did not do so, because he had no faith in the process in view of the lack of cooperation from the Applicant.
[120] Imran testified that the assets of 9633880 Canada Inc. were the subject of an asset purchase some time around the first week in May of 2021 after a variation of Justice Le May’s order; that he received a portion of the proceeds of sale as an owner of the company; and that the sale was for less than half of a previous offer, the acceptance of which was prevented by Justice LeMay’s order. He also testified that the order prevented a share sale of 0932293 B.C. Ltd.
[121] The Applicant argues that the Respondent is not entitled to damages for breach of her undertaking because he has failed to prove causation and mitigation so as to entitle him to damages.
[122] In United States of America v. Yemec, 2013 ONSC 50 at paras. 14 to 18 Justice Belobaba set out the applicable principles as follows:
14 The undertaking under Rule 40.03 is given to the court -- not the defendant -- to cover damage caused by a wrongly granted injunction. It is the court that exacts the undertaking and conducts the damages inquiry for the defendant's benefit.
15 The legal principles that apply to the damages inquiry are well-established. Damages for a wrongly granted injunction are assessed on the same basis as damages for breach of contract. Causation, foreseeability and mitigation provide the legal framework for the damages analysis. As the Court of Appeal observed when they agreed that this inquiry should proceed:
It will be up to the damages inquiry judge to determine ... whether the defendants have sustained any compensable damages, taking into account the principles of causation, remoteness, foreseeability and mitigation, and the general rule of public policy that precludes a person from benefitting from his or her own crime.
16 The Court of Appeal added the proviso about illegality because only damages relating to the operation of a lawful business will be considered. And here, as I will explain shortly, the issue of illegality is front and centre.
17 Of the contractual principles just listed, the most important, certainly in this inquiry, is causation. The defendants/claimants must show that the damages would not have been sustained "but for" the wrongly granted injunction. They must show that the loss being claimed "flowed directly from the injunction." If causation is established, I must then ask if the damage was foreseeable at the time the ex parte orders were granted. If causation is not established, foreseeability becomes irrelevant.
18 The focus is on the damage caused by the wrongfully obtained injunction -- not on the damage caused by related or subsequent litigation. Damage arising from the litigation itself cannot be recovered on an undertaking inquiry. The focus of the inquiry is narrow and precise because the undertaking that was provided to the court is narrow and precise -- the plaintiff promised to compensate the defendants for any damage "caused" by the granting of the interlocutory orders.
[123] Imran Khan has not demonstrated that the order in question caused him damages. The proposed purchaser under both transactions prevented by the order was a company liable to dissolution. No evidence was called to substantiate the viability of the proposed purchases.
[124] Nor has Imran Khan presented coherent evidence of damages he allegedly sustained.
[125] Further, as regards 0932293 B.C. Ltd. he made no effort to seek to use paragraph 3. of the order for a share sale. That evidence bespeaks a failure to mitigate damages.
[126] For those reasons I dismiss the claim for damages for breach of the undertaking.
X. IMRAN KHAN’S CLAIM FOR POST-SEPARATION ADJUSTMENTS RESPECTING CARRYING COSTS ON 42 GIORGIA CRESCENT
[127] Imran Khan claims entitlement from the Applicant to $127,923.37 representing 50% of the carrying costs of 42 Giorgia Crescent from September of 2018, immediately after separation, to September of 2020 when the property was sold.
[128] The Applicant does not dispute that she owned 50% of the property during that period; nor does she dispute that the sum in question represents 50% of the carrying costs. She takes the position that Cellicon paid the carrying costs during the period in question, and that, therefore, Imran Khan is not entitled to be reimbursed for her share of them.
[129] However, in examination-in-chief on May 13, 2021, the Applicant testified that Imran Khan had paid the carrying costs on the property, because she had been locked out of the Cellicon business.
[130] In view of that admission, I find that the Applicant owes Imran Khan $127,923.37 in reimbursement of carrying charges on 42 Giorgia.
XI. CHILD SUPPORT, SPOUSAL SUPPORT, AND S. 7 EXPENSES
A. Arguments of the Parties
[131] The Applicant argues that Imran Khan should be ordered to pay $784,041.02 in spousal support, child support, and s. 7 expenses for the period November of 2018 to February of 2021 based on an imputed income of $2,000,000.00 yearly for Imran Khan and no income for herself. The s. 7 expenses would include an equal sharing of the cost of a private school, Mentor College, for their two children.
[132] For the period March of 2021 and forward, she argues that Imran Khan should be imputed an income of $250,000.00 annually; and that she should be imputed an income of $30,000.00 annually. She claims on that basis, as well as based on the 16 year length of their marriage, the fact that she worked with her husband in their family business, and her lack of formal education that she should be paid spousal support indefinitely of $3628.00 monthly. She claims that payment on a compensatory rationale. She also asks the court to consider in lieu of the monthly payment of spousal support, a lump sum payment of $308,808.00 to avoid collection issues which have arisen in the past.
[133] Additionally, based on those imputed incomes, she claims child support of $2818 monthly. She also seeks that the two parties be ordered to pay equally for Mentor College as a s. 7 expense and that it take priority over other support paid by Imran Khan.
[134] Finally, she argues that they be ordered to share equally all other s. 7 expenses.
[135] Imran Khan argues that in view of the bankruptcy of Cellicon and his payments to the Applicant prior to March 1, 2021 for spousal support, child support, and s. 7 expenses, however he may have characterized them when made, he should not be ordered to pay anything for spousal support, child support, or s. 7 expenses for the period prior to March 1, 2021. He submits that, at present, his difficult financial circumstances make that order just.
[136] Imran Khan argues that going forward from March 1, 2021, he be imputed an income of $75,000.00 annually for spousal and child support purposes based on his experience in the retail business; that no s. 7 expense be ordered in relation to Mentor College, because that expense is not necessary given the means of the parents and children; and that any appropriate s. 7 expenses be ordered shared by the parents in proportion to their respective incomes.
B. Factual and Procedural Background
[137] Imran Khan and the Applicant were married on September 5, 2002. The Applicant was born on October 11, 1983. Imran Khan was born April 4, 1980.
[138] Their children are Zayan Khan born October 1, 2010, and Aalia Khan born February 13, 2013.
[139] Based on the evidence of the Applicant, I accept that the parties were married for approximately 16 years when they separated.
[140] On June 17, 2019, Justice Bielby of this court made an interim order that Imran Khan pay, commencing June 1, 2019, monthly to the Applicant $7177.00 in child support and $12,000.00 in spousal support.
[141] Imran Khan has provided evidence in documentary form not challenged by the Applicant of the following payments made by him : $523,633.00 in support paid to the Applicant pursuant to Justice Bielby’s Order and paid from July 2019 to May 5, 2021; uncharacterized support payments of $105,379.19 paid to the Applicant after September 10, 2018; and $69,569.00 paid to Mentor College from September 4, 2018 to September 10, 2020.
C. Analysis
(i) Retroactive Claims of the Applicant and of the Respondent
[142] The Applicant was unemployed and had no income for the period November of 2018 until February of 2021.
[143] Imran Khan gave no evidence and called no evidence of his income during that period.
[144] I must impute income to him for that period. In that regard, the Applicant relies on the evidence of Mr. Ranot. I qualified him to give expert evidence on the determination of income for purposes of matrimonial litigation.
[145] He produced a report dated May 10, 2021 calculating Imran Khan’s income for purposes of the Federal Child Support Guidelines for the years 2015 to 2017. It had the same flaws as his valuation of the shareholders equity in Cellicon, since it was compiled from the same sources. However, it is appropriate to have regard to it for the process of imputing income under s. 19 of the Federal Child Support Guidelines. Given the weakness of the underlying evidence, I look to Ranot’s evidence only broadly to give me an order of magnitude of Imran Khan’s income. Ranot’s report found that Imran Khan’s income for 2015 was $2,000,000.00, for 2016 was $2,100,000, and for 2017 was $3,800,000.00.
[146] I am also cognizant from the evidence before me that Imran Khan’s income came from Cellicon and that the company experienced severe economic difficulty from the pandemic. I quote from the financial analysis of Mr. Mak dated January 28, 2021 of Cellicon as of October 31, 2020, noting that the same underlying weaknesses that afflicted his valuation of Cellicon’s shareholders equity affect this analysis:
The operating conditions for Cellicon have deteriorated through 2020, consistent with the
adverse impact of the COVID pandemic on the retail sector. Cellicon’s retail revenues are significantly diminished from prior year levels. Its management fee revenues (taking into account uncollectible amounts) have declined as a result of operators being unwilling, or unable, to pay the fees. We further understand that, as of January 2021, Cellicon is in arrears regarding its lease obligations and that many of its retail locations are under pandemic-related restrictions. Insofar as in-person, non-grocery retail shopping in Canada remains weak, it is not clear when or how Cellicon’s financial prospects will improve.
[147] Based upon the evidence to which I have referred, I impute to Imran Khan for the period November of 2018 to February of 2021 an income of $2,000,000.00 annually.
[148] The parties and their children enjoyed a lavish lifestyle together before separation, including the homes in which they lived.
[149] I find that the Respondent, Imran Khan, should have paid $24,277.00 monthly in child support to the Applicant for the period in question.
[150] I take into account the special problems in determining spousal support in the high income case and the need to be sensitive to the specific facts. Based on the Applicant’s needs and also on a compensatory basis for her work throughout the marriage in business with Imran Khan, I find that he should have paid her $30,583.00 monthly in spousal support for the period in question.
[151] The evidence provided by the Applicant did not answer that of Imran Khan on the issue of s. 7 expenses sufficiently to allow me to calculate what he should have paid in that regard. I, therefore, accept that the amount paid by Imran Khan for the period September 4, 2018 to September 10, 2020, being $69,569.00, discharged his obligation for the period in question.
[152] The total of spousal and child support which Imran Khan should have paid for the period in question was $1,536,080.00.
[153] Accepting that the remaining monies paid by Imran Khan for support as stated above, $629,012.19, should be deducted from that sum, I find that he ought to pay the Applicant for child and spousal support for the period in question $700,000. That sum takes into account the higher sum, which a simple subtraction would have produced, as well as the hardship Imran Khan will experience in making the payment, since he is currently in difficult financial circumstances.
(ii) Prospective Claims of the Applicant
[154] I am now addressing spousal support, child support, and s. 7 expenses for the period March of 2021 and forward.
[155] In view of the Applicant’s lack of formal education, but in view of her experience in the retail business with Imran Khan, I impute to her an annual income of $30,000 as she contended is appropriate. She is currently unemployed.
[156] Given the bankruptcy of Cellicon, the continuation of the pandemic, and the Respondent, Imran Khan’s, experience in the retail business, I impute to him an annual income of $75,000 as he contends is appropriate. He currently is unemployed.
[157] I accept that for purposes of s. 7 of the Federal Child Support Guidelines, the children’s attendance at Mentor College is in their best interests. The parties so agreed as cited in my consent order of May 10, 2021.
[158] However, I find that that expense is not reasonable in relation to the means of the parents and the children. Neither parent is currently employed and their economic prospects at present are not optimistic given the state of the retail business during the pandemic as reflected in Mak’s evidence quoted above. The cost of Mentor College, a private school, being $35,000 annually, is not reasonable. Accordingly, I do not order Imran Khan to pay any part of that expense for the period in question.
[159] I order that the Applicant and Imran Khan divide any s. 7 expenses in proportion to their incomes as imputed above. Either party may claim payment of the other’s share of a s. 7 expense by serving the other with a statement in writing and back-up invoice material 30 days in advance of the requested payment date; a written response is to be served within 10 days of service of the claim for payment and back-up invoice material.
[160] Based on the income amounts imputed to the parties, I order payment by Imran Khan to the Applicant of monthly child support of $680 and monthly spousal support of $300. The payments are to commence with arrears for the period in question and the December monthly payment by December 31, 2021; all other monthly payments are to be made on the 15th of each month. The spousal support is both needs and compensatory based given the Applicant’s lack of formal education, her work with Imran Khan in the retail business, and her lack of current employment.
[161] The duration of the order for spousal support is indefinite, having regard to the 16 year length of the marriage, and the ages of the Applicant and Imran Khan. Further, I have not ordered the payment of a lump sum for spousal support, because at present the Respondent, Imran Khan, does not have the means to make such a payment.
[ 162] A support deduction order is to issue in relation to all spousal support, child support, and s. 7 expenses for both periods as set out in the orders I have made in these reasons.
[163] Section 25 of the Federal Child Support Guidelines is to apply to Imran Khan and the Applicant.
XII. COSTS
[164] I will receive costs submissions from the parties in writing. Each party is to serve and file submissions of no more than 5 pages, excluding a bill of costs, which is also to be included. The Applicant is to serve and file her costs materials within 3 weeks after release of these reasons. Each of the Respondents is to serve and file their respective costs materials within 3 weeks after service upon them of the Applicant’s costs materials. There is to be no reply.
Bloom, J.
Released: December 03, 2021
COURT FILE NO.: FS-19-00094161-00
DATE: 2021 12 03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SHAHINDA LOKHANDWALA
Applicant
- and –
IMRAN KHAN, ZARINATAJ KHAN, ISHAQ KHAN, O932293 B.C. LTD., and 9633880 CANADA INC.
Respondents
REASONS FOR JUDGMENT
Bloom, J.
Released: December 03, 2021