COURT FILE NO.: FC-17-2220
DATE: 20210204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE MARIE CECILE CLAIRE MURRAY
Applicant
– and –
SUHAIL MASOOD CHOUDHARY
Respondent
Thomas Hunter, for the Applicant
Self-represented
HEARD: January 25, 26, 2021
REASONS FOR decision
Audet J.
[1] On January 25 and 26, 2021, I heard an uncontested trial in this matter. For reasons set out in a decision released the week before (Murray v. Choudhary, 2021 ONSC 530), on January 19, 2021, I struck the Respondent’s Answer and provided him with limited participation rights in the trial, provided that he satisfied all outstanding cost awards made against him in the course of this proceeding (totalling roughly $27,000), by 9:00 a.m. on January 25, 2021.
[2] The Respondent did not fulfil his obligation to pay outstanding costs, and as a result, the trial proceeded without his participation (although he was present to observe).
The Issues
[3] In the context of this trial, the Applicant, Ms. Murray, is seeking the following orders:
Orders related to property
That the Prenuptial Agreement entered into by the parties on May 2, 2007 is binding on the parties and resolves all property and spousal support issues as between them.
That the property located at 43 Bramble Wood Crescent, which is in the Applicant’s sole name, is not currently and was not the matrimonial home on the date of separation, such that the Applicant may dispose, encumber or lease it as she pleases.
That the Respondent is precluded, for any purpose, from using 43 Bramble Wood Crescent, Ottawa or any other property which may be owned in whole or in part by the Applicant in the future as his place of residence on any document.
That the Respondent shall repay the Applicant the sum of $42,202.86 representing loans advanced to the Respondent during the marriage, plus interest in accordance with the Courts of Justice Act, from December 2, 2017, which amounts to $46,196.80 as of January 27, 2021.
That the Respondent shall forthwith pay the sum of $19,000.00 to the Applicant by certified funds in consideration of the value of the Jewelry (engagement ring and wedding rings) deemed owing to her pursuant to the order of Engelking J.
That ownership of the watches owned by the Respondent and remaining in 43 Bramble Wood Crescent shall forthwith be transferred to the Applicant. The Applicant shall be at liberty to dispose of these assets at Fair Market Value to offset the funds owing to her by the Respondent pursuant to the Orders of this Court.
That the temporary order of Engelking J. granting ownership of Bianca the dog to the Applicant shall be made final.
Orders related to spousal support
- That the temporary order of MacEachern J. staying the Applicant’s interim spousal support obligation shall be made final, including the Applicant’s obligation to maintain obligated to maintain health insurance coverage for his benefit, and that the Respondent be precluded from advancing any claim for spousal support against the Applicant at any time in the future irrespective of any change in circumstances, howsoever caused.
Restraining order
- That the temporary restraining order granted by Corthorn J. be made final, subject to an amendment to sub-paragraph (c) whereby the Respondent shall be prohibited from coming within 500 metres of the Applicant’s home, her parent’s home or the Applicant’s place of employment.
[4] The Applicant also seeks a divorce, as well as an order for costs.
Background Facts
[5] The history of the parties’ relationship, the procedural aspects of this litigation as well as the various orders made along the way have been related in much detail in the many decisions written by the court in this proceeding (2018 ONSC 5722, by Engelking J.; 2018 ONSC 2533, by Corthorn J.; 2020 ONSC 1183, by MacEachern J., and; 2021 ONSC 530, by myself). They will not be reproduced here at great length.
[6] The parties met online and started dating on or about 2004. At that time, the Respondent, Mr. Choudhary, was living in Virginia, U.S. and Ms. Murray was living in Gatineau, Quebec. The relationship was on-and-off for a year or two until Mr. Choudhary proposed in 2006 and Ms. Murray agreed. In 2006, Ms. Murray also agreed to sponsor Mr. Choudhary to allow him to immigrate to Canada. At the time, both parties were employed on a full-time basis; Ms. Murray by the Federal Government and Mr. Choudhary as an IT specialist for a company in the US. They were both earning a good income. Ms. Murray understood that Mr. Choudhary was comfortable financially.
[7] The parties married on May 2, 2007, in Jamaica. This was Ms. Murray’s first marriage and Mr. Choudhary’s second marriage. The parties never had children together. Mr. Choudhary, however, has a daughter, Syrah, from his first marriage. Syrah is now an adult. Other than for a brief period of a few months in the fall of 2009, during which she lived primarily with the parties in Ottawa, Syrah was always in the primary care of her mother, who resided in Virginia.
[8] Several months before the parties’ wedding, Mr. Choudhary expressed to Ms. Murray that he wished to sign a Prenuptial Agreement to ensure that his property would be shielded from any claims by Ms. Murray, so that his wealth could go to his daughter. Ms. Murray agreed, and on May 2, 2007, while they were in Jamaica getting married, the parties signed a Prenuptial Agreement by way of which they generally released all claims they may have in the future in relation to the division of their family property or spousal support. More will be said about this contract later.
[9] At the time of the parties’ marriage, Mr. Choudhary was still living in Virginia and Ms. Murray in Gatineau, although Ms. Murray was in the process of moving into a new home located in Kanata (254 Tandalee Crescent, Kanata). The parties had agreed that they would both look for employment in the vicinity of the other’s place of residence, and that the first one to find such employment would be the one moving to the other’s country. Without prior notice or discussion with Ms. Murray, shortly after the parties’ wedding, Mr. Choudhary announced that he had quit his job in the US and was moving with Ms. Murray permanently.
[10] From the very beginning, the parties’ relationship was tumultuous and fraught with conflict. The parties separated on several occasions throughout their 10-year marriage, including once at the end of 2009 when Mr. Choudhary moved back to his Virginia home for more than one year. After the parties reconciled in 2010, Mr. Choudhary returned to Canada and moved back with Ms. Murray, who by then had sold her home on Tandalee Crescent and purchased a new home at 43 Bramble Wood Crescent, in Kanata (“the Bramble Wood Crescent property”).
[11] Shortly after he moved back to Canada in 2010, Mr. Choudhary was diagnosed with Guillain-Barre Syndrome and in 2014 with Chronic Inflammatory Demyelinating Polyneuropathy, which he asserted affected his ability to work. Mr. Choudhary never engaged in remunerative work after 2010. He began receiving CPP disability benefits and disability benefits from the United States Social Security Administration.
[12] In September of 2017, Mr. Choudhary decided to move to Germany with the stated intention of obtaining an undergraduate and then a master’s degree in Business Administration, to allow him to obtain an internship with BMW or Porsche or start his own business. This decision was made without consultation with Ms. Murray, but ultimately, she agreed to support his plan. She even financed many of the expenses incurred by Mr. Choudhary to move to Germany and register in a university in Munich.
[13] At some point in October 2017, Ms. Murray became aware that Mr. Choudhary’s desire to move to Germany had less to do with his educational plans than with his desire to be reunited with a former romantic partner, a German woman by the name of Bettina. When she found out about her husband’s affair, on or about October 9, 2017, Ms. Murray instructed her counsel to prepare and file an application for a simple divorce. I find, as a fact, based on Ms. Murray’s testimony that the parties separated on October 9, 2017.
[14] By that time, Ms. Murray had remained in exclusive possession of her Bramble Wood Crescent property, which she still owned in her sole name, and she changed the locks on the home. Shortly after being advised of Ms. Murray’s decision to separate (or when his plans with Bettina did not pan out), Mr. Choudhary made arrangements to return to Canada. Upon his arrival on or about November 17, 2017, Ms. Murray moved to her parents’ residence out of concern for her own safety and refused Mr. Choudhary access to the Bramble Wood property. On December 2, 2017, Mr. Choudhary surreptitiously gained access to the home, changed the locks and thereafter refused to leave.
[15] On April 20, 2018, Corthorn J. granted Ms. Murray exclusive possession of the home as well as a restraining order against Mr. Choudhary who was precluded from molesting, annoying or harassing Ms. Murray, from communicating directly with her, and from coming within 100 meters of her home, her place of employment, or her parents’ residence. Mr. Choudhary’s whereabouts since that date are unknown to me, but my understanding, based on Ms. Murray’s testimony, is that he currently lives in Virginia but has travelled to Ottawa on a number of occasions (and for reasons unknown to me).
Divorce
[16] The parties have been separated for well over three years and all the evidence relevant to the granting of a divorce was provided. As such, a divorce order shall issue.
The Prenuptial Agreement
[17] As the parties’ Prenuptial Agreement includes provisions dealing with both property and support issues, I will deal with the issue of its validity and enforceability first.
[18] As stated earlier, on May 2, 2007, the day of their marriage, the parties signed a Prenuptial Agreement which contained the following relevant provisions:
Each party shall separately retain all of his or her rights in his or her separate property, as enumerated in Exhibits l and 2 to this agreement, free and clear of any claim of the other party, without regard to any time or effort invested during the course of the marriage in the maintenance, management, or improvement of that separate property.
At all times, the parties shall enjoy the full right and authority with regard to their separate property as each would have had if not married, including but not limited to the right and authority to use, sell, enjoy, manage, gift and convey the separate property. […]
In the event of separation or divorce, the parties shall have no right against each other for division of property existing of this date.
Both parties acknowledge that they possess sufficient education and job skills to adequately provide for their own support, and hereby waive any claim to spousal support (alimony) except in the event that:
One of the parties suffers medical disability and the other remains both employed and physically able, in which case, the disabled party may receive reasonable spousal support consistent with state law until such time as the disability is resolved, or the other spouse retires or becomes disabled from working, either by agreement or by judicial determination.
Without regard to the location of any property affected by this agreement, this agreement shall be interpreted and enforced under the laws of the state of Virginia.
The parties further agree that in the event of a divorce there shall be no alimony paid.
[19] The Prenuptial Agreement was signed by both parties in front of their own witness and contained two sections (called Exhibit 1 and 2) listing the assets owned by each party at the date of their marriage. In Exhibit 1, Mr. Choudhary listed the following assets that he then owned:
3830 Lightfoot St., unit 431, Chantilly, Virginia (a condominium);
98 BMW 528i and its replacement
401K of investments and retirement plans
life insurances
Syrah’s inheritance/college fund/gifts
Comic collection
Jewelry, watches
[20] In Exhibit 2, Ms. Murray listed the following assets:
254 Tandalee Crescent, Kanata, Ontario: 65% of profits from sale to Anne; 35% to Suhail, should Suhail live there and contribute equally.
98 Civic
Retirement plans and other investments
Life insurances
Jewelry, watches
Engagement ring
[21] Section 52 of the Family Law Act, R.S.O. 1990, c. F. 3 (“FLA”) provides that two persons who are married to each other, or intend to marry, may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including in relation to the ownership in, or division of, their property and support obligations. In Ontario, such a contract is called a marriage contract.
[22] To be valid and enforceable, a marriage contract must be in writing, signed by the parties and witnessed (s. 55 of the FLA).
[23] Section 58 of the FLA regulates domestic contracts that were entered into outside of Ontario. It states:
58 The manner and formalities of making a domestic contract and its essential validity and effect are governed by the proper law of the contract, except that,
(a) a contract of which the proper law is that of a jurisdiction other than Ontario is also valid and enforceable in Ontario if entered into in accordance with Ontario’s internal law;
(b) subsection 33 (4) (setting aside provision for support or waiver) and section 56 apply in Ontario to contracts for which the proper law is that of a jurisdiction other than Ontario; and
(c) a provision in a marriage contract or cohabitation agreement respecting the right to custody of or access to children is not enforceable in Ontario.
[24] The evidence before me makes it clear that the parties’ Prenuptial Agreement was entered into in accordance with Ontario’s internal law. It was made in writing, signed by both parties and witnessed. As such, it is a valid domestic contract which is enforceable in Ontario.
[25] Although not required by the FLA, I note in passing that both parties sought legal advice before signing the Agreement. Ms. Murray testified that she did a lot of her own research online, and also spoke to a lawyer before agreeing to the final version of the Agreement. In an email sent by Mr. Choudhary to Ms. Natalie Vallee (Ms. Murray’s brother’s ex-wife) on January 6, 2021, he wrote:
All I wanted was what is written in our pre-nup, which to be honest was downloaded from the internet and modified by me in conversation and agreement with Anne. I had done my homework and spoken to lawyers. I wanted to make sure it followed Ontario marriage and divorce laws.
[26] It is also important to note that, while the agreement was signed on the day of the parties’ marriage, its content had been discussed by the parties, months before its execution. The parties had looked at different templates on the internet, picked one, and made a number of changes to accommodate their own wishes and preferences. Most of those changes were made at Mr. Choudhary’s request.
[27] I find that the Agreement signed by the parties is a valid and enforceable marriage contract in Ontario, which is binding on the parties, and which governs the issues of the ownership in, and the division of, their property as well as their spousal support obligations upon separation.
Property Issues
[28] The parties’ Prenuptial Agreement clearly provides that they would be separate as to property both during their marriage and in the event of a separation. In other words, regardless of their respective contributions to the acquisition, maintenance or improvement of property, ownership to that property was to be governed by title alone. The parties agreed that neither would be entitled to seek the equalization of their family property in the event of a separation.
[29] The only exception to that regime relates to the residence owned solely by Ms. Murray at the time of the parties’ marriage, namely, the Tandalee Crescent property. This property was sold during the parties’ marriage, in 2011, and replaced with the Bramble Wood Crescent property, also owned in Ms. Murray’s sole name throughout.
[30] Pursuant to Exhibit 2 of the Prenuptial Agreement, the profits from the sale of the Tandalee property was to be shared between the parties so that 65% would go to Ms. Murray and 35% to Mr. Choudhary. However, this was conditional upon Mr. Choudhary “living there and contributing equally”.
The Bramble Wood Crescent Property
[31] The evidence adduced by Ms. Murray in the context of this trial unequivocally confirms the following:
The Tandalee Crescent property was owned exclusively by Ms. Murray on the date of the parties’ marriage.
Throughout the period of time that Mr. Choudhary lived in the Tandalee Crescent property, he did not contribute financially to the property’s maintenance, upkeep and improvements in any way, nor did he contribute to the housing expenses related to that property. The wife was solely responsible for all mortgage payments, municipal taxes, utilities, maintenance and repairs.
The Bramble Wood Crescent property was purchased by Ms. Murray, in her sole name, on May 31, 2011 with the use of bridge financing. Once the Tandalee Crescent property was sold, all the net proceeds from its sale were invested into the Bramble Wood Crescent property. The balance of the purchase price was financed through a mortgage in Ms. Murray’s sole name.
In addition to the purchase price, over the course of the next few years after its purchase, Ms. Murray invested over $100,000 of her own funds to renovate, repair and improve the Bramble Wood Crescent property.
As was the case for the Tandalee Crescent property, Ms. Murray was solely responsible for all mortgage payments, municipal taxes, utilities, maintenance and repairs costs related to the Bramble Wood Crescent property from the date of its purchase to the date of the parties’ separation. Mr. Choudhary made no contributions whatsoever.
The Bramble Wood Crescent property was always, and continues to be, in Ms. Murray’s sole name.
[32] Therefore, in accordance with the parties’ Prenuptial Agreement, Mr. Choudhary has no interest in the Bramble Wood Crescent property which is Ms. Murray’s exclusive property, and she is free to deal with it as she pleases, free from any and all claims by Mr. Choudhary.
[33] Given my conclusion above, the issue as to whether the Bramble Wood Crescent property was, on the date of the parties’ separation, a matrimonial home, is entirely moot (assuming that this was ever a relevant issue).
[34] The evidence before me confirms that, even though he has not resided in the Bramble Wood Crescent property since he left for Germany in September 2017, Mr. Choudhary has continued to use that address as his own address for various purposes. It is appropriate, therefore, to make an order precluding Mr. Choudhary from using the Bramble Wood Crescent property for any purpose whatsoever in the future as his place of residence, including on any document.
Loans advanced by Ms. Murray to Mr. Choudhary
[35] In the spirit of the Prenuptial Agreement signed by the parties, each of them was solely responsible to pay for their own property and living expenses, including their personal expenses.
[36] During the course of the parties’ marriage, Mr. Choudhary made frequent requests for financial assistance from Ms. Murray. From the date of their marriage to the date of Mr. Choudhary’s departure to Germany in September 2017, Ms. Murray lent over $65,000 to Mr. Choudhary for various expenses, including but not limited to car repairs, medical expenses, investments, flights and travel costs for international travel, monthly payments on his Virginia condominium, down payment on a new Audi, renovation/repair costs for the Virginia condo, tuition and school books (while in Canada), lawyers fees related to child support litigation in the U.S., lawyers fees related to his U.S. bankruptcy, speeding tickets and cell phone bills. Ms. Murray even advanced to Mr. Choudhary the money he needed to pay for his tuition and his flight to Germany in September 2017.
[37] Throughout the course of the parties’ marriage, Ms. Murray kept a detailed accounting of all money advances made to her husband, as well as copies of all back-up documents confirming those advances. During the trial, Ms. Murray adduced in evidence copies of emails exchanged between her and Mr. Choudhary which confirm the parties’ clear understanding that these advances were loans, not gifts, and that Mr. Choudhary was required to reimburse Ms. Murray for those advances. In an email sent by Ms. Murray to Mr. Choudhary on December 9, 2015, she provided him with an updated spreadsheet of all money advances made to that date, minus reimbursements received from Mr. Choudhary (at that time the total outstanding was $28,522.58), and he replied “Let’s make a payment plan and I’ll hook you up with the interest”.
[38] The updated spreadsheet and supporting documents presented by Ms. Murray during her testimony confirm that Mr. Choudhary made several payments towards that debt throughout the course of the parties’ marriage, totalling over $27,000. The evidence clearly supports the conclusion that these monetary advances were loans extended by Ms. Murray to Mr. Choudhary, and that Mr. Choudhary understood and agreed that these monies would be reimbursed to her, with appropriate interest.
[39] At the time of the parties’ separation in October 9, 2017, Mr. Choudhary still owed Ms. Murray a total of $41,596.92[^1] on account of money advances made to him by her. These monies are owing to Ms. Murray, with pre-judgment interest from October 9, 2017, and post-judgment interest thereafter, in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43. (the “CJA”)
Engagement and wedding rings
[40] On May 8, 2018, Engelking J. heard a motion brought by Ms. Murray in which she sought various temporary orders, including an order requiring Mr. Choudhary to return her engagement and wedding rings to her.
[41] In her September 28, 2018, Engelking J. ordered Mr. Choudhary to return the engagement and wedding rings to Ms. Murray. She also ordered that if he failed to do so, possession of the rings was to be attributed to him and a value of $19,000 was to be included on his net family property statement to account for them.
[42] Mr. Choudhary never returned the rings to Ms. Murray.
[43] At the time of the motion before Engelking J., Mr. Choudhary’s pleadings had not been struck and he was seeking the equalization of the parties’ net family property. Since this claim is no longer before me, and since I have already found that the parties’ Prenuptial Agreement settles all issues between the parties in relation to property, Mr. Choudhary shall repay to Ms. Murray the value of her engagement and wedding rings, in the amount of $19,000.
Transfer of ownership of Mr. Choudhary’s watches
[44] On August 19, 2019, the parties attended a settlement conference before Kershman J. At the end of that court appearance, a consent order was made to allow Mr. Choudhary to retrieve his personal property located at the Bramble Wood Crescent property. He was permitted to pick up all of his personal property, as detailed in the order. That list did not include his watch collection, which remained in the home.
[45] During the hearing before Kershman J., Mr. Choudhary insisted on being allowed a walk-though of the house to determine if there were any personal items of his that were still in the house. He was granted this walk-through by Kershman J. and directed to provide a list of any other items of personal property that he wished to be returned to him. While Mr. Choudhary did walk through the house, he never provided a list of other items that he wished to retrieve from the home, nor did he make any further attempts to retrieve them. As a result, Ms. Murray retained possession of his watch collection.
[46] Given the significant amount of money now owing by Mr. Choudhary to Ms. Murray, she seeks an order transferring ownership of the watch collection to her and allowing her to dispose of these assets at fair market value to offset the amounts owing to her by Mr. Choudhary.
[47] The court’s jurisdiction to make a vesting order, outside of the confines of an equalization claim, is found in s. 100 of the CJA. The legal framework applicable to such claims was set out by Blair J.A. in Lynch v. Segal (2006), 2006 CanLII 42240 (ON CA), 82 O.R. (3d) 641 (Ont. C.A.). At para. 32, the court stated:
32 I do not think any useful purpose is served by attempting to categorize the types of circumstances in which a vesting order may issue in family law proceedings. The court has a broad discretion, and whether such an order will or will not be granted will depend upon the circumstances of the particular case. I agree with the appellants that the onus is on the person seeking such an order to establish that it is appropriate. As a vesting order — in the family law context, at least — is in the nature of an enforcement order, the court will need to be satisfied (as the trial judge was here) that the previous conduct of the person obliged to pay, and his or her reasonably anticipated future behaviour, indicate that the payment order will not likely be complied with in the absence of more intrusive provisions: see Kennedy v. Sinclair, 2001 CanLII 28208 (ON SC), [2001] O.J. No. 1837, 18 R.F.L. (5th) 91 (S.C.J.), affd 2003 CanLII 57393 (ON CA), [2003] O.J. No. 2678, 42 R.F.L. (5th) 46 (C.A.). Thus, the spouse seeking the vesting order will have already established a payment liability on the part of the other spouse and the amount of that liability, and will need to persuade the court that the vesting order is necessary to ensure compliance with the obligation.
[48] In my view, the history of this case makes it abundantly clear that an order vesting ownership of the watch collection to Ms. Murray is likely the only means available to this Court to ensure compliance – at least partial compliance – of Mr. Choudhary’s payment obligation under the various court orders made during the course of this proceeding. I find that it is most appropriate to vest ownership of Mr. Choudhary’s watch collection to Ms. Murray, and I so order.
[49] As the value of the watch collection is unknown at this time, but could be worth close to $100,000, Ms. Murray shall be required to obtain a professional appraisal of the seven watches within 60 days of this order, which she shall serve on Mr. Choudhary forthwith upon receipt. The appraised value shall be deducted from all amounts owing by Mr. Choudhary to Ms. Murray pursuant to this order and outstanding cost awards.
Bianca the dog
[50] In the context of that same motion before Engelking J., she concluded that Ms. Murray was the rightful owner of Bianca, the dog. In my view, although made in the context of a temporary motion, Engelking J.’s conclusion was a final declaration which confirmed Ms. Murray’s sole ownership of the dog.
[51] To the extent that I am wrong on this, and for the same reasons as set out in Engelking J.’s September 28, 2018 decision, I find, based on the uncontested evidence before me, that Ms. Murray is the rightful owner of Bianca, the dog.
Spousal Support
[52] In his Answer, Mr. Choudhary made a claim for spousal support. His Answer has now been struck and as such, there is no spousal support claim before me.
[53] It is therefore appropriate to make an order terminating Ms. Murray’s obligation to pay spousal support to Mr. Choudhary, in accordance with Engelking J.’s temporary order of September 28, 2018, as well as Ms. Murray’s obligation to maintain Mr. Choudhary as a beneficiary of her health and medical insurance.
[54] I am not prepared to make an order, as sought by Ms. Murray, that Mr. Choudhary be precluded from advancing any claim for spousal support against her at any time in the future irrespective of any change in circumstances, howsoever caused. First of all, the Prenuptial Agreement may allow for some limited ability to claim spousal support, although this is not clear (s. 6 allows such a claim in one very limited circumstance whereas s. 12 precludes all such claims). Secondly, as set out in ss. 15.2(4) of the Divorce Act, R.S.C., 1985, c.3, (2nd Supp.), the existence of a valid marriage contract containing a release in relation to spousal support is not necessarily a bar to the making of such claim. Given that no claim for spousal support is being advanced before me in the context of this uncontested trial, I am not prepared to bar the Respondent from ever making a claim for spousal support in the future.
[55] This being said, given the history of this case which includes Mr. Choudhary’s failure to follow court orders and to pay cost awards (as detailed in my decision of January 21, 2021), and in light of the amounts that he will now be liable to pay to Ms. Murray pursuant to this decision, I find it wholly appropriate to make an order that Mr. Choudhary is precluded from advancing a claim for spousal support in the future until and unless he has paid all amounts owing to Ms. Murray by virtue of this decision as well as all cost awards made against him previously in the context of this proceeding.
Restraining Order
[56] I find as a fact, based on the overwhelming evidence before me, that Ms. Murray was the victim of significant abuse at the hands of Mr. Choudhary, which included psychological, emotional and financial abuse, and that he used physical force against her at times (such as pulling her hair, punching and shoving). I find that Ms. Murray was deeply caught in this web of abuse and that it took her many years to finally free herself from it, after many separations and reconciliations. I find that Mr. Choudhary used these legal proceedings to perpetrate further abuse upon Ms. Murray, including financially, true to his stated intention expressed prior to the parties’ separation that he would “ruin her financially if she ever tried to divorce him”. He almost succeeded.
[57] Mr. Choudhary’s manipulation and emotional abuse began well before the parties’ marriage. During her testimony, Ms. Murray related many incidents which took place early on in their relationship. One of them entailed Mr. Choudhary leaving her by the side of a road in a remote area in Virginia after they had had a heated argument in the car, only coming back later to pick her up, laughing.
[58] In her evidence, Ms. Murray provided a detailed summary of countless events going back to 2004 during which Mr. Choudhary tried to control and manipulate her into doing things she did not wish to do or guilting her for things she did not do. As an example, on her wedding night, Mr. Choudhary became emotionally abusive to Ms. Murray because she had given him traveller’s cheques instead of cash for spending money during the trip. He finally calmed down and agreed to return to their hotel after she borrowed money from her parents to give him.
[59] I find that Mr. Choudhary engaged in highly controlling behaviour by trying to impose on Ms. Murray which friends and family members she could have a relationship with, and by limiting her contact with some of them. I find that he frequently belittled her, called her names, yelled at her and was condescending towards her. As one example (only), when the parties found themselves unable to conceive, he started calling her “rotten eggs”.
[60] Mr. Choudhary’s abusive behaviour was not only emotional; he also regularly made veiled threats that he would physically harm her, with the intention of intimidating her. For instance, during the parties’ marriage, Mr. Choudhary frequently reminded Ms. Murray that he had been in jail three times for assaulting his ex-wife, his mother and his sister and that he “knew 1000 ways to kill her without leaving a mark”, that he could “kill her by pushing her nose in her brain” and that he was “able to break her knee using less than five pounds of pressure”. At one point, the abuse became sufficiently serious for Ms. Murray to fear for her life, and she wrote a letter to her own mother that she could only open “in case she ever disappeared”.
[61] Mr. Choudhary’s abuse was not only directed at Ms. Murray, but also at many other women involved in his life over the years. On or about 2007, Mr. Choudhary’s ex-wife obtained a restraining order against him (in the U.S.) because, although he had been in a relationship with Ms. Murray for three years by then, he continued to harass his ex-wife.
[62] In the summer of 2015, following a physical altercation during which Ms. Murray had to intervene to protect Syrah from physical harm at the hands of her father, Syrah refused to have any further contact with her father. In 2016, Mr. Choudhary’s ex-wife obtained a court order from the Virginia court following a contested proceeding granting her sole custody of Syrah, with supervised access to the father, limited to four hours in duration and not including overnight. The court order confirms that Syrah felt she was in an unsafe environment when she was alone with her father.
[63] In September 2012, Mr. Choudhary became physically abusive towards his sister during a heated argument between the parties while they were in an Ottawa pub. While Mr. Choudhary was able to flee before the arrival of the police (he took Bianca the dog with him as a means to punish Ms. Murray), Ms. Murray and her sister-in-law were so concerned for their personal safety that they chose to hide out in a hotel for the weekend.
[64] In July 2017, while the parties were in Virginia visiting Mr. Choudhary’s parents, Mr. Choudhary had an argument with his own mother during which he assaulted her (punched her) and pushed her into a wall, leaving significant bruising.
[65] The evidence before me also confirms that Mr. Choudhary has frequently used Ms. Murray’s dog as a mean to emotionally and psychologically abuse her, or to get her to yield to his demands. This included threats to physically harm the dog, as well as taking and or retaining possession of the dog against Ms. Murray’s wishes and over her objections.
[66] In the context of the motion heard by Corthorn J. in April 2018, she concluded, based on the evidence before her, that Mr. Choudhary’s past actions and words contributed to Ms. Murray’s present fears for her safety and well-being. When combined with Mr. Choudhary’s recent actions and words, she found that Ms. Murray had a legitimate and reasonable fear for both her physical and psychological safety. She therefore granted Ms. Murray a temporary restraining order precluding Mr. Choudhary from molesting, annoying or harassing Ms. Murray, communicating directly with her, and coming within 100 meters of her property, her place of employment and the residence of her parents.
[67] At the time of this trial, the temporary restraining order was still in full force and effect.
[68] Despite this, the evidence before me reveals that Mr. Choudhary has continued to try to harass and intimidate Ms. Murray, and to cause her to fear for her own safety by using various means. In August 2019, Mr. Choudhary was observed luring behind Ms. Murray’s residence, following and spying on Ms. Murray’s two roommates who were walking Ms. Murray’s dog. Since Mr. Choudhary was spotted at 110 meters from her home, and the existing court order restrains him from attending within 100 meters of her home, no charges were laid. On that same day, Ms. Murray had observed Mr. Choudhary parked outside of her home as she was walking her neighbour’s dog, but by the time she sought help, he had left.
[69] On December 4, 2019, Mr. Choudhary sent Ms. Murray an email invitation to spend Valentine’s Day with him. On May 2, 2020, Mr. Choudhary sent Ms. Murray an email invitation to celebrate their wedding anniversary at “Suhail Choudhary’s home at 43 Bramble Wood Crescent”. On December 20, 2020, Ms. Murray received a calendar notification from her Gmail account, reminding her of “Anne and Suhail’s 13th anniversary”. Ms. Murray testified that this event had not been scheduled by her in her Google calendar, which suggests that Mr. Choudhary has likely hacked her Gmail account and scheduled this event in her calendar.
[70] Section 46 of the FLA provides that the court may make an interim or final restraining order against a spouse or former spouse if the applicant has reasonable grounds to fear for his or her own safety. The above evidence makes it abundantly clear that Ms. Murray has reasonable grounds to fear for her safety in light of Mr. Choudhary’s history of abuse towards her and towards other women, his pattern of abuse towards his ex-wife which continued long after their separation, and his most recent behavior despite the restraining order in place.
[71] Based on the above, I find it appropriate to make a final order reflecting the terms contained in Corthorn J.’s temporary restraining order, and to increase the distance within which Mr. Choudhary is refrained from coming near Ms. Murray’s residence, her place of employment or her parent’s residence, from 100 meters to 250 meters. The restraining order shall be in place for five years.
Orders
[72] Based on the above, I make the following final order:
1- A divorce order shall issue.
2- The Prenuptial Agreement entered into by the parties on May 2, 2007 is binding on the parties and resolves all property and spousal support issues as between them.
3- The property located at 43 Bramble Wood Crescent, Ottawa, Ontario, is owned exclusively by the Applicant, free from any and all claims by the Respondent, and she is free to dispose, encumber or lease it as she pleases.
4- The Respondent is precluded, for any purpose, from using 43 Bramble Wood Crescent, Ottawa in the future as his place of residence on any document.
5- The Respondent shall repay the Applicant the sum of $41,596.92 representing loans advanced to the Respondent during the marriage, plus pre-judgement interest from December 2, 2017 and post-judgement interest in accordance with the Courts of Justice Act from this date until fully paid.
6- The Respondent shall forthwith pay the sum of $19,000.00 to the Applicant representing the value of the engagement and wedding rings belonging to her, and which he failed to return to her.
7- Ownership of the Respondent’s watch collection (seven watches) remaining in the Applicant’s home at 43 Bramble Wood Crescent, Ottawa, is hereby vested to the Applicant in her sole name. The Applicant shall, within 60 days, obtain a professional appraisal of the seven watches and serve same on the Respondent by email forthwith upon receipt. The appraised value of the watch collection shall be deducted from all amounts owing by the Respondent to the Applicant by virtue of this order as well as any present or future cost awards to be made in this proceeding.
8- The Applicant’s dog, Bianca, is owned solely by the Applicant, free from any claims by the Respondent.
9- The Applicant’s spousal support obligations pursuant to Engelking J.’s temporary order of May 8, 2018 is hereby terminated, as well as her obligation to maintain the Respondent as the beneficiary of her health insurance.
10- The Respondent is hereby precluded from advancing a claim for spousal support against the Applicant in the future until and unless he has paid all amounts owing to her by virtue of this order as well as any cost awards made against him previously in the context of this proceeding, or to be made in the future in this proceeding.
11- The Respondent, Suhail Masood Choudhary, is hereby refrained from:
a. molesting, annoying or harassing the Applicant;
b. communicating directly or indirectly with the Applicant, except through her counsel by email or other written means of communication;
c. coming within 250 meters from her residence, her place of employment or her parents’ residence;
for a period of five (5) years.
Costs
[73] Ms. Murray may forward her written submissions on costs to me on or before February 26, 2021.
Madam Justice Julie Audet
Released: February 4, 2021
COURT FILE NO.: FC-17-2220
DATE: 20210204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANNE MARIE CECILE CLAIRE MURRAY
Applicant
– and –
SUHAIL MASOOD CHOUDHARY
Respondent
REASONS FOR decision
Audet J.
Released: February 4, 2021
[^1]: From the total of $42,200.86 provided on Ms. Murray’s spreadsheet, I deducted the utility costs related to the period of time the husband was in possession of Bramble Wood Crescent since those costs were accounted for in Engelking J.’s temporary order of September 28, 2018.