Court File and Parties

Court File No.: FS-16-413883 Date: 2021-02-04 Ontario Superior Court of Justice

Between:

Shazia Umbrin Kamboh Applicant/Respondent

– and –

Qaisar Majeed Respondent/Applicant

Counsel: Howard J. Feldman, for the Applicant/Respondent Harvey S. Goldstein, for the Respondent/Applicant

Heard: January 26, 2021

Endorsement

P.J. Monahan J.

[1] Shazia Umbrin Kamboh and Quaisar Majeed were married on February 16, 1992, separated on March 12, 2016 and were divorced on October 15, 2020. They have two adult child, a son who is 27 and a daughter who is 25. Both children are now living independently of their parents, although Mr. Majeed has been supporting their daughter financially through her university studies, which are ongoing.

[2] Despite having been separated for nearly five years, the parties still have not resolved the vast majority of the financial issues arising from the breakdown of their marriage. Each party has brought a motion for interim relief which together raise in excess of 20 separate issues, pending a trial which has not yet been scheduled and which the parties estimate may take two to three weeks.

[3] The materials filed on these motions are voluminous. Each party has filed three separate affidavits which, with exhibits, total hundreds of pages, as well as factums that are 71 and 82 pages respectively. The materials from both parties are disorganized and repetitive, and their affidavits consist in significant part of argument rather than evidence. Both parties have ignored the restrictions on evidence set out in Rule 14 (20), as well as the practice direction restricting factums to a maximum of 20 pages without leave of the court to file a longer factum.

[4] It is obviously impractical to attempt to deal with close to two dozen separate issues on a one-day motion. At the outset of the hearing, counsel were advised that they would each have two hours of oral argument and it would be up to them to determine how they wished to focus their submissions.

[5] In the course of argument, counsel modified or abandoned their positions on certain issues, or agreed that many of the issues raised could not be determined on the basis of affidavit evidence and should be deferred until trial. These reasons focus primarily on the issues raised during oral argument, with the bulk of the remaining matters deferred until trial.

Background

[6] Ms. Kamboh is employed as a teacher with the Toronto District School Board and earns approximately $100,000 per year. Mr. Majeed is employed as a Senior Director of Corporate Risk and Finance at Open Text Corporation, a Canadian technology company, and in 2019 received gross income of approximately $260,000.

[7] Since January 1, 2019, Mr. Majeed has been paying monthly spousal support of $3500 on a without prejudice basis. No child support has been paid by either party since the separation, although Mr. Majeed is seeking retroactive child support in respect of support he provided to their daughter during her undergraduate studies in 2016 and 2017.

[8] During the marriage, the parties jointly purchased a home in Richmond Hill. In early 2017, both parties brought motions seeking the sale of the matrimonial home. Those motions were adjourned and on September 3, 2017 the parties entered into an Interim Separation Agreement that required the home to be listed for sale by September 15, 2017. The parties also agreed to undertake certain renovations to the property in advance of listing it for sale.

[9] It appears that the desired renovations were not completed in a timely way. On March 13, 2018, the parties entered into Addendum #1 to the Interim Separation Agreement, which provided that renovations to the home deemed necessary in order to maximize the value of the property would be funded from a joint line of credit and be undertaken immediately. The parties agreed to “cooperate to have it [the Matrimonial Home] ready as soon as possible and to maximize the sale value thereof.” Addendum #1 also stated that the property would be listed for sale by no later than April 30, 2018.

[10] The parties agreed that proceeds from the sale of the house would be used to pay certain debts and liabilities associated with the property, as well as to distribute $65,000 to Ms. Kamboh and $50,000 to Mr. Majeed. The balance of the net sale proceeds would be paid into court and would be available to satisfy either party’s claims to an equalization payment.

[11] On April 18, 2018, the parties entered into Addendum #2 to the Interim Separation Agreement. Addendum #2 increased the amount of the renovation loan and provided that pending the sale of the house, the parties would each separately occupy the home on a week on-week off basis commencing April 15, 2018.

[12] The home renovations were completed and in August 2018 the parties entered into a listing agreement with a real estate agent. Both parties wanted to list the property at a price of $1.8 million. However, the real estate agent who had been retained advised that the value of the property was substantially less than $1.8 million. The parties decided not to proceed with the sale at that time.

[13] The parties have continued to occupy the property on a week on-week off basis since 2018. The ongoing monthly carrying costs associated with the property are approximately $1300, most of which are being paid by Mr. Majeed. In addition, as of October 2020 property taxes of approximately $34,000 had not been paid to the Town of Richmond Hill.

[14] In February 2020, the parties entered into a consent order dealing with a variety of matters (the “February 2020 Consent Order”), including the following:

a. the divorce was split from other issues and Mr. Majeed was given leave to proceed to obtain a divorce;

b. Mr. Majeed agreed to provide certain disclosure relating to his compensation from his former employer, as well as his 2019 tax documents;

c. Mr. Majeed agreed to preserve 50% of his interest in the matrimonial home and 50% of his interest in his registered investments, provided that he was free to carry on management of his investment portfolios in a reasonable manner, including trading;

d. a charging order would be registered against Mr. Majeed’s half of the matrimonial home to secure the claims of Ms. Kamboh for property division and spousal support; and

e. in order to secure his spousal support obligations pending trial, Mr. Majeed agreed to designate Ms. Kamboh as a beneficiary of an existing life insurance policy in the amount of $388,000, and to inquire as to whether he qualifies for an optional $250,000 life insurance policy from his employer.

[15] Pursuant to the February 2020 Consent Order, Mr. Majeed proceeded to obtain a divorce on October 15, 2020. He also provided the requested disclosure respecting his compensation from his former employer and his 2019 tax documents; preserved his 50% interest in the matrimonial home and his registered investments; and designated Ms. Kamboh as a beneficiary of his existing life insurance policy in the amount of $388,000. However, the charging order on Mr. Majeed’s half of the matrimonial home described in paragraph (d) above has not been yet being registered, although the parties differ as the reasons why this has not occurred. Mr. Majeed has also been advised that he is not able to secure his spousal support obligations through an optional $250,000 life insurance policy from his employer.

[16] The parties have filed financial statements indicating that each of them had approximately $1 million in Net Family Property as at the date of separation, including their respective 50% shares in the matrimonial home. However, since separation, the value of Mr. Majeed’s financial assets has increased substantially. For example, in his most recent financial statement filed December 31, 2020, Mr. Majeed indicated that his financial assets currently have a value of approximately $1.65 million, an increase of approximately $1.2 million since the date of separation.

Parties’ Positions on These Motions

[17] As discussed above, in their written submissions the parties together sought approximately two dozen separate heads of relief. However, in the course of oral argument, the relief being sought was distilled to a more manageable list of items, as described below.

a. Relief Sought by Mr. Majeed

[18] Mr. Majeed seeks an order to compel the sale of the matrimonial home in accordance with the September 2017 Interim Separation Agreement and the two Addenda thereto, as well as pursuant to s. 2 of the Partition Act.[^1] After paying off certain liabilities associated with the property, he seeks to have $200,000 of the net sale proceeds distributed to each of the parties; the balance of the sale proceeds (which Mr. Majeed estimates to be approximately $1.1 million) would be held in trust in order to satisfy any equalization or property claims of either party. Mr. Majeed also seeks to have Ms. Kamboh pay 50% of the ongoing carrying costs for the former matrimonial home until closing.

[19] Mr. Majeed seeks the appointment of a joint expert to analyse the transactions for post separation joint expenses and joint debt, and proposes a procedure whereby the joint expert would be selected.

[20] Mr. Majeed seeks orders compelling Ms. Kamboh to reimburse him for certain joint expenses he says he has paid since separation, as well as an order for retroactive child support in respect of their daughter’s undergraduate university expenses, which he paid in 2016 and 2017. (Mr. Majeed does not claim ongoing child support for their daughter.)

[21] Finally, Mr. Majeed seeks a restraining order prohibiting Ms. Kamboh from contacting or communicating with him other than through counsel or through their son.

b. Relief Sought by Ms. Kamboh

[22] Ms. Kamboh opposes the sale of the matrimonial home at this time, arguing that this is not a desirable time to sell since the real estate market in Richmond Hill has been negatively impacted as a result of the Covid 19 pandemic. She also argues that sale of the property now may prejudice certain claims she wishes to advance at trial.

[23] In her written submissions, Ms. Kamboh took the position that the matrimonial home should be rented out pending trial, with the rental income used to cover ongoing expenses. However, in oral argument, her counsel suggested that the parties should continue to occupy the home on a week on-week off basis until trial (as has occurred since April 2018), with the parties splitting the ongoing carrying costs equally.

[24] Ms. Kamboh seeks additional relief as follows:

i. an increase in the life insurance designated to secure Mr. Majeed’s spousal support obligations, from $388,000 to $588,000;

ii. an order for a joint expert to be appointed with a wide scope of work, with the cost allocated two thirds to Mr. Majeed and one third to Ms. Kamboh;

iii. a wide-ranging order for disclosure;

iv. an order that Mr. Majeed will not allow the value of his registered investments to decline below $850,000, or the value of his nonregistered investments to decline below $158,000;

v. an order for the payment of retroactive spousal support from March 12, 2016 (the date of separation) to December 31, 2018, in the amount of $3500 per month;[^2] and

vi. an order directing Mr. Majeed to register the Charging Order agreed to in the February 2020 Consent Order at his own expense within 15 days.

Should the Former Matrimonial Home be Ordered Sold at this time?

[25] Much of the oral argument was devoted to the issue of whether the matrimonial home should be ordered sold at this time. Accordingly, I turn first to that issue.

a. Positions of the Parties

[26] Mr. Majeed argues that the former matrimonial home should be sold on two bases.

[27] First, the parties agree to sell the home in the September 2017 Interim Separation Agreement, and reaffirmed that intention in the two Addenda in March and April 2018. Although the parties decided not to proceed with the sale in August 2018 due to market conditions at that time, they did not amend or rescind their earlier agreement to sell the property, which remains in effect.

[28] Second, Mr. Majeed argues that he is entitled to an order for sale of the property pursuant to s. 2 of the Partition Act, and Ms. Kamboh would not be prejudiced by the sale. Ms. Kamboh has not lived in the home full-time for years and the property has been ready for sale since the summer of 2018. Although Mr. Majeed seeks a distribution of $200,000 to each of the parties from the net sale proceeds, over $1 million of those proceeds will remain in trust in order to satisfy equalization and/or property claims of Ms. Kamboh. This is in addition to the more than $1.65 million in other assets Mr. Majeed has available to satisfy any such claims.

[29] Ms. Kamboh argues that the parties waived their agreement to sell the property in August 2018 when they decided not to proceed with the sale at that time. Ms. Kamboh also argues that Addenda #1 to the Interim Separation Agreement required the parties to obtain “maximum value” for the property; she asserts that “maximum value” cannot be obtained at this time given the state of the real estate market in Richmond Hill. She believes that the real estate market will improve later in the year once vaccines for Covid-19 have become widely available. She further argues that certain claims which she wishes to advance of trial would be prejudiced if the property were sold now and, therefore, a sale should not be ordered pursuant to the Partition Act.

b. General Principles

[30] Section 2 of the Partition Act provides that a joint tenant has a prima facie right to an order for the partition or sale of jointly held property. It is well established that s. 2 of the Partition Act applies to a matrimonial home.[^3] Nevertheless, it is equally well established that where an order for immediate sale of a jointly held matrimonial home would prejudice a party’s family law claims, the court has a discretion to refuse an order for sale.

[31] The precise circumstances in which the court should exercise this discretion to refuse an order for sale of the matrimonial home has been the subject of considerable judicial commentary.[^4] Generally, however, in cases where a court has refused to order a sale of the matrimonial home, it has been because an immediate sale would compromise an ownership or possessory interest in relation to the property itself.

[32] For example, in Walters v Walters (1992),[^5] the wife successfully resisted the husband’s motion to have the jointly owned matrimonial home sold pending trial on the basis that she was in exclusive occupation of the home and, further, she wanted to use an equalization payment which she claimed was owing to her in order to buy out the husband’s interest and provide a home for their children. Similarly, in Kereluk v Kereluk,[^6] the husband successfully resisted the wife’s motion to have the property sold on the basis that he was in exclusive possession of the home and he wished to buy out the wife’s interest so as to give their daughter a stable residence when she was in his care. To the same effect is Mignella v. Federico,[^7] where the wife was in exclusive possession of the home and undergoing cancer treatment while caring for two children. She wished to buy out the husband’s interest in the home after trial, and successfully resisted the husband’s motion for an immediate sale on this basis.

[33] In contrast, where the party resisting the motion for sale does not assert a possessory or ownership interest in the property itself but merely claims that the property should not be sold so that it will be available to satisfy a potential claim for a monetary payment, courts have generally allowed the sale to proceed. In other words, where the sale of the property will be the inevitable result at trial, a joint tenant’s presumptive right to a sale under the Partition Act will generally prevail. This is illustrated in the leading case of Silva v. Silva, where the husband attempted to resist an order for immediate sale of the matrimonial home on the basis that he was claiming an unequal division of family assets and, if the property were sold and the net proceeds distributed, there would no longer be any security upon which to realize any monetary judgement in his favour. Finlayson JA for the Court of Appeal noted that, while the husband was seeking an unequal division of family assets, “any later determination of this claim is irrelevant to the sale of the home as such.” Finlayson JA was of the view that there was “no reason why the husband should hold the house hostage until this claim has been adjudicated” and that his concern about collecting a subsequent award does not amount to “prejudice” within the meaning of the case law.[^8]

[34] Certain recent cases have taken this analysis one step further and found that a party attempting to resist the sale of a matrimonial home must show malicious, vexatious or oppressive conduct on the part of the moving party. Moreover, the malicious, vexatious or oppressive conduct must relate to the bringing of the application for sale and not the general conduct of the person bringing the motion.[^9] The mere possibility that the sale of the matrimonial home might result in a shortfall of assets to satisfy an equalization payment is not, in itself, oppressive, malicious or vexatious conduct.

c. Application of General Principles

[35] I begin with the observation that Ms. Kamboh does not assert a possessory or other claim in relation to the former matrimonial home itself. This is made plain by the fact that Ms. Kamboh has only resided in the property on a part-time basis for the past three years, and the parties agreed over three years ago that the property should be sold. Thus, even if the property is not sold now, it is a virtual certainty that it will be sold following the trial. This is confirmed by the fact that Ms. Kamboh argues that the property should be sold in the fall of 2021, when she believes the real estate market in Richmond Hill will have improved.

[36] In essence, Ms. Kamboh resists the sale of the property on two grounds:

i. she believes that now is not a good time to sell because the real estate market has been negatively impacted by the Covid-19 pandemic, and the parties cannot achieve “maximum value” for the property if it is sold now; and

ii. if the home is sold now, Mr. Majeed may not have sufficient assets to satisfy a trial judgement in her favour, which would prejudice her ability to assert those claims.

[37] There are a number of significant difficulties with both of these arguments.

[38] Dealing first with the issue of whether the sale will prejudice family law claims of Ms. Kamboh, even if the property is sold and $200,000 of the net sale proceeds is distributed to each party, Mr. Majeed will still have considerable assets available to satisfy any judgment in favour of Ms. Kamboh. This includes Mr. Majeed’s 50% share of the net proceeds from the sale of the property to be held in trust.[^10] In addition, Mr. Majeed’s most recent financial statement indicates that, quite apart from his interest in the matrimonial home, he currently has approximately $1.65 million in financial assets which could be utilized in order to satisfy any judgement in favour of Ms. Kamboh.

[39] The parties’ financial statements indicate that the difference in the parties’ Net Family Property as of the date of separation was not substantial. Thus Mr. Majeed should be able to easily satisfy any equalization payment that he may be required to make to Ms. Kamboh and still have approximately $2 million in assets available to satisfy any other claims she may successfully assert at trial.

[40] While acknowledging that the amount of any equalization payment due from Mr. Majeed may not be large, Ms. Kamboh argues that she has other claims which, if successful, would exceed Mr. Majeed’s considerable financial capacity. In particular, she is seeking an order for a constructive or a resulting trust in 50% of Mr. Majeed’s financial investments, on the basis that he has made “unconscionable investment gains” in these investments since the date of separation. Ms. Kamboh also seeks an order for payment of future spousal support in a lump sum, which she estimates could amount to over $900,000.

[41] While it is not possible to make any definitive assessment of the likely success of these claims for a constructive trust over Mr. Majeed’s investments or for lump sum spousal support, based on the materials filed on this motion, there would appear to be substantial challenges associated with both claims. For example, the fact that a spouse may have made large investment gains after the date of separation does not in and of itself give rise to a claim for a constructive or resulting trust in those investments (just as a loss in investments post-separation does not entitle one spouse to require the other to make up the shortfall). Nor do the circumstances here seem likely to result in an order for the payment of spousal support in a lump sum. Mr. Majeed has been making regular monthly payments of spousal support in the amount of $3500 for over two years without difficulty. In any event, if the claim for a constructive trust in 50% of Mr. Majeed’s financial assets were successful, that claim could be satisfied by a transfer of the assets in specie (without the need to access Mr. Majeed’s equity in the matrimonial home) and, on that scenario, there would be no need for Ms. Kamboh to receive an additional award of spousal support in a lump-sum rather than in the form of periodic payments.[^11]

[42] Quite apart from the uncertain status of the claims for constructive trust in financial assets or for lump sum spousal support, neither claim involves a possessory or proprietary claim in the matrimonial home itself which, as Silva explains, is generally necessary in order to resist an order for sale under the Partition Act.

[43] Also relevant to the analysis is the fact that there is no evidence that Mr. Majeed has acted in a malicious, oppressive or vexatious manner in relation to the proposed sale of the matrimonial home. To the contrary, Mr. Majeed has been paying regular spousal support for more than two years and has paid the vast majority of the ongoing carrying costs associated with the matrimonial home. He seeks to have the home sold now so that those ongoing costs as well as existing liabilities associated with the property (including unpaid taxes of $34,000 now due to the Town of Richmond Hill,) can be eliminated, and so that he can free up funds needed to fund this litigation to completion.[^12]

[44] Ms. Kamboh also argues that the sale of the property should be postponed to the fall because the real estate market will have improved by then, and “maximum value” can only be obtained by waiting until then. It is true that in Addendum #1 that parties agreed to undertake renovations so as to “maximize the sale value” of the property. But this simply indicated that the parties believed that the cost of the renovations would be more than offset by the resulting increase in the sale price. It did not amount to an agreement that the sale should be postponed until such time as some undefined “maximum value” could be obtained, as evidenced by the express agreement in Addendum #1 that “the matrimonial home will be listed for sale as soon as the renovations are completed or by April 30, 2018, whichever occurs first.”

[45] More fundamentally, Ms. Kamboh’s predictions as to the state of the real estate market in the fall of 2021 may or may not prove accurate. While it is entirely possible that the real estate market will improve by the fall, is also possible that the market will remain flat or decline.

[46] The parties agreed over three years ago to sell the matrimonial home. While they decided not to proceed with the sale in the summer of 2018, there is no evidence to suggest that either party waived or rescinded their agreement to sell. Ms. Kamboh relies on an affidavit from a real estate agent which indicates only that the parties decided to “wait this period out, since it was not the best time to list.” In other words, although they decided not to proceed at that time, there was no doubt that the common intention of the parties remained to proceed with their plan to sell the property.

[47] Mr. Majeed has a presumptive right as joint tenant to compel the sale of the matrimonial home. Ms. Kamboh has provided no legally sufficient basis for overcoming the presumption in favour of sale. The matrimonial home shall therefore be offered for sale, and the net sale proceeds distributed, in the manner set out by Mr. Majeed in his Notice of Motion. In the meantime, each of the parties shall be equally responsible for the carrying costs of the property until such time as the property is sold.

Should a Joint Expert be Appointed?

[48] Both parties seek the appointment of a joint expert to analyse and report on certain matters which remain in dispute, on the basis that this will save expense and shorten the time needed for trial. The difficulty is that the parties have radically different ideas as to the mandate for the joint expert.

[49] On the one hand, Mr. Majeed proposes a narrow mandate in which the joint expert would be asked to analyse the transactions for post separation joint expenses and joint debt.

[50] In contrast, Ms. Kamboh proposes a vast and essentially open-ended mandate for the joint expert. Ms. Kamboh identifies a list of 19 separate topics to be investigated by the joint expert, including the following:

i. to inquire and report with respect to issues raised by either party related to division of property, equalization of our Net Family Property, unequal division, values of assets/liabilities for purposes of claims under Part I of the Family Law Act, and resulting and constructive claims for the date of trial;

ii. accounting, determination and value of assets postseparation for constructive and resulting trust claims of the Applicant;

iii. assess each party’s financial statements and tax returns for the year of separation, pre- and post-separation that are relevant to the issues in question;

iv. trace depletion of assets by going through the parties’ bank account statements and other statements from January 1, 2014 to date;

v. postseparation accounting (flow of funds postseparation) – includes bank accounts;

vi. any tax adjustment or equalization of tax to be made between the parties for the years from 2015 to the date of trial;

vii. to analyse and report on the issues of Respondent’s income, the Applicant’s claims with respect to unjust enrichment, Applicant’s claims for losses, and calculation of the gains which the Applicant claims are enrichments that are unjust and should be remedied;

viii. any other matter requested by either party.

[51] It is difficult to make sense of many of the suggested topics for investigation. For example, what is the scope of the instruction to inquire into and report on “issues raised by either party related to division of property, equalization of our Net Family Property, unequal division, values of assets/liabilities for purposes of claims under Part I of the Family Law Act, and resulting and constructive claims for the date of trial.” Equally unclear is the instruction to analyse and report on “the issues of Respondent’s income, the Applicant’s claims with respect to unjust enrichment, Applicant’s claims for losses, and calculation of the gains which the Applicant claims are enrichments that are unjust and should be remedied.” It is difficult to know what is meant by the task of “trac[ing] depletion of assets by going through the parties’ bank account statements and other statements from January 1, 2014 to date”, much less to consider “any other matter requested by either party.”

[52] It is evident that the mandate proposed by Ms. Kamboh for the joint expert is vague, open-ended and essentially unworkable. Far from saving time and expense, appointing a joint expert on the basis suggested would only lead to confusion, delay, and additional cost. It would also create fertile ground for more contested motions relating to the mandate of the joint expert.

[53] Rule 20.3 requires that any order appointing an independent expert specify the instructions to the expert. Given the radically different mandates proposed by the parties for the joint expert, I find no basis upon which such instructions could reasonably be formulated.

[54] Of course, it is open to the parties -- should they agree -- to retain a joint expert at any time between now and trial, or to retain their own experts with whatever mandates they desire. But in the circumstances, it would be an inappropriate use of court time and resources to attempt to craft the mandate of a joint expert. I therefore decline to do so and would dismiss this head of relief proposed by both parties.

Should Mr. Majeed be ordered to provide Further Disclosure Sought by Ms. Kamboh?

[55] There has been extensive disclosure requested from and provided by Mr. Majeed over the course of this lengthy litigation. In addition to providing financial statements and certificates of financial disclosure, Mr. Majeed has provided hundreds of pages in response to six Requests for Information (RFIs) made by Ms. Kamboh between March 2017 and November 2020. Those RFI’s consist of 385 total items requested, of which a substantial number appear to be duplicate or irrelevant requests. The February 2020 Consent Order also required Mr. Majeed to provide certain disclosure which I am advised has been completed.

[56] On this motion, Ms. Kamboh seeks an order for further disclosure involving 15 separate areas or headings. There is no explanation provided as to why this disclosure is relevant to the matters at issue. In addition, the requested disclosure appears to duplicate requests that have previously been made and dealt with. For example, Ms. Kamboh requests disclosure regarding compensation Mr. Majeed received from his former employer, even though this matter was expressly dealt with in the February 2020 Consent Order. She also seeks authorizations permitting her to obtain information directly from Mr. Majeed’s financial institutions, even though such authorizations appear to have already been provided. Many of the other requests appear irrelevant, including request to provide service records for his motor vehicle, a photo of the current mileage on that vehicle, and a list of academic records or degrees belonging to Ms. Kamboh which Mr. Majeed may have in his possession.

[57] While important, disclosure is not an end in itself. Considerations of relevance and proportionality remain fundamental. No case has been made as to why the additional disclosure requested is necessary or proportional given the extensive disclosure that has already been provided.

[58] I therefore dismiss Ms. Kamboh’s request for further disclosure.

Should Mr. Majeed be required to provide Additional Life Insurance to Secure his Spousal Support Obligations?

[59] Pursuant to the February 2020 Consent Order, Mr. Majeed designated Ms. Kamboh as beneficiary of his $388,000 life insurance coverage through work, in order to secure his spousal support obligations pending trial. The February 2020 Consent Order also required Mr. Majeed to “inquire about the group life optional employer $250,000 life policy and whether he qualifies and what rates are quoted.” Mr. Majeed made the inquiries as required and was informed that he did not qualify for the optional life insurance.

[60] Ms. Kamboh argues that the intention of the February 2020 Consent Order was to recognize that $388,000 in life insurance was not sufficient and, if not obtained, Ms. Kamboh could seek additional alternate coverage. She therefore requests an order that Mr. Majeed also irrevocably designate her as beneficiary of a private life insurance policy of $200,000 which he currently holds. Ms. Kamboh argues that this additional life insurance is necessary since she is seeking a lump-sum payment of spousal support which may amount to $900,000.

[61] I have already discussed the difficulties with Ms. Kamboh’s claim for the payment of spousal support in a lump-sum and I will not repeat that discussion here. I would merely observe that if Mr. Majeed were to unfortunately pass away prior to trial, there would be more than enough assets available to satisfy his spousal support obligations in relation to Ms. Kamboh. In addition to the $388,000 in life insurance of which Ms. Kamboh is the beneficiary, Mr. Majeed’s share of the net proceeds of the sale of the matrimonial home (which will be at least $500,000) will be held in trust. He also has $1.65 million in financial assets. Even if Ms. Kamboh succeeds in her claim for a constructive trust over 50% of those financial assets, he will still have over $800,000 available to satisfy claims for spousal support.

[62] I therefore see no need for additional life insurance at this time and would decline the relief requested.

Registration of the Charging Order on Mr. Majeed’s Interest in the Matrimonial Home

[63] The February 2020 Consent Order required that a charging order be registered on Mr. Majeed’s interest in the matrimonial home, to secure Ms. Kamboh’s claims for property division and spousal support.

[64] This registration has not occurred, although each party blames the other for the failure to do so. Both parties agree that the Charging Order should be registered as previously directed.

[65] I therefore direct the parties to take all steps necessary to register the Charging Order as required by the February 2020 Consent Order, within seven days of this order. I understand the cost to effect the registration is less than $1000 and has already been paid by Mr. Majeed. Regardless of who pays for the registration, the issue of who is responsible for this cost is referred to the trial judge.

Restraining Order Limiting Future Communication between the Parties

[66] Mr. Majeed seeks a restraining order prohibiting Ms. Kamboh from contacting or communicating with him directly or indirectly other than through counsel or through their son.

[67] Although Ms. Kamboh opposes the restraining order, she agrees that all future communication between the parties should be via email, and should only involve matters relating to the matrimonial home or to their children.

[68] I see no need for a restraining order at this time. Nevertheless, I encourage both parties to communicate with each other in a restrained and respectful manner. This litigation is gone on for far too long and has cost both of them far too much money. It is in their common interest to attempt to avoid inflaming matters, with a view to narrowing the issues and to bring this litigation to a conclusion.

Appointment of Case Management Judge

[69] Both parties agree that it would be desirable to appoint a Case Management Judge to assist them in focusing this litigation and ensuring it comes trial as soon as possible.

[70] I agree that this would be desirable. Appointment of CMJs is made by one of the Family Team Leads, Justices Hood or Shore. The Parties should therefore write to one or both of Justices Hood or Shore requesting the appointment of a CMJ, and indicate that I support the request.

Balance of Relief Requested is Dismissed

[71] Both parties seek extensive additional relief in their respective motions. However, the relief requested either involves disputed matters of fact, which can only be resolved at trial, or seeks relief for which no adequate analysis was provided, either in writing or through oral argument. Therefore, apart from the issue of costs, all of the other relief sought by both parties is dismissed, without prejudice to the right of either party to advance any such claim(s) at trial.

Disposition

[72] Order to go as follows:

a. the former matrimonial home (the “Property”) will be listed for sale with a mutually agreed real estate agent as soon as possible. If the parties cannot agree on a real estate agent within five days of this order, Mr. Majeed will pick one of the real estate listing agents agreed to in para. 2.4 of the Interim Separation Agreement;

b. the Property will be offered for sale through the Multiple Listing Service by no later than 30 days from the date of this order;

c. if the parties cannot agree on the list price for the Property, then the initial list price shall be $1,750,000;

d. if no offer is received within 30 days from the listing date, the initial list price shall be reduced by $50,000;

e. if no offer is received within 30 days from the first price change, the list price will be reduced by a further $20,000;

f. The parties will obtain a quote and contribute equally to the cleanup, pest control (spiders and mice), and sanitation of the former matrimonial home;

g. the parties are each responsible for 50% of the ongoing costs for the Property from the date of this order until the Property is sold, which for certainty shall include cleaning, pesticide extermination, interest on mortgage(s), property insurance, heating, hydro, utilities, water, snow removal, grass cutting, and property taxes;

h. the parties shall take all necessary steps to ensure that the Charging Order required by the February 2020 Consent Order of Nishikawa J. is registered against the Property as soon as possible, and is discharged upon closing of the sale of the Property. Responsibility for the cost of the registration and discharge of the Charging Order is referred to the trial judge;

i. the proceeds from the sale of the Property will be utilized as follows:

i. payment of real estate agent commission;

ii. discharge of first mortgage (joint Scotia secured line of credit for approximately $90,400);

iii. payment of the real estate lawyer legal fees and disbursements, including the cost of discharging the Charging Order referred to in subparagraph (g) above;

iv. payment of (or reimbursement to the parties for amounts paid in respect of) the Property-related costs incurred or paid between the date hereof and the closing of the sale of the Property, as identified in subparagraph (g) above, and any other Property related expenses as agreed by the parties;

v. a distribution of $200,000 to Ms. Kamboh and $200,000 to Mr. Majeed, to be applied against each party’s respective interest in the Property;

vi. the balance after the above payments and distributions will be held by the court in trust until final settlement or further court order.

j. the parties’ request for the appointment of a joint expert is hereby dismissed;

k. the Applicant’s request for further disclosure is dismissed;

l. the Applicant’s request that the Respondent designate her as the beneficiary of an additional $200,000 in life insurance in order to secure the Respondent’s spousal support obligations pending trial is dismissed;

m. the Respondent’s request for a restraining order is dismissed;

n. the parties may write to Justices Hood and/or Shore, in their capacity as Family Law Team Leads through the Family Trial Office, requesting the appointment of a Case Management Judge and indicate that I support the request; and

o. other than in respect of costs, all other claims for relief brought by either party are hereby dismissed, without prejudice to the right of either party to raise any such matters at trial.

[73] Both parties may provide written Costs submissions of a maximum of three pages, not including Bills of Costs and Offers to Settle, within 10 days of the date of this order.

P. J. Monahan J.

Released: February 4, 2021

Ontario Superior Court of Justice

Between:

Shazia Umbrin Kamboh Applicant/Respondent

– and –

Qaisar Majeed Respondent/Applicant

Endorsement

P.J. Monahan J.

Released: February 4, 2021

[^1]: RSO 1990, c. P – 4. [^2]: As noted above, since January 1, 2019 Mr. Majeed has been paying spousal support of $3500 per month to Ms. Kamboh on a without prejudice basis. [^3]: Silva v. Silva (1990), 1990 CanLII 6718 (ON CA), 1 OR (3rd) 436 (OCA). [^4]: See Justice Pazaratz’s helpful summary of the relevant factors and considerations in Dhaliwal v. Dhaliwal, 2020 ONSC 3971 at para. 16 [^5]: 1992 CanLII 8599 (ON SCDC), [1992] O.J. No. 1564 (Ont. Gen. Div.) [^6]: 2004 CanLII 34595 (ON SC), [2004] O.J. 4337 (Ont. S.C.) [^7]: 2012 ONSC 5696. [^8]: See Silva, supra, at para 24. See also Chaudry v Chaudry, 2012 ONSC 2149 (sale of matrimonial home ordered despite husband's claim that sale should be postponed until such time as his entitlement to an equalization payment had been determined); Afolabi v Fala, 2014 ONSC 1713 (ibid.) [^9]: Kaphalakos v Dayal, 2016 ONSC 3559 (Ont. Div. Crt); Marchese v. Marchese, 2017 ONSC 6815, at para 18, aff’d 2019 ONCA 116. [^10]: The balance to be held in trust will exceed $1 million, which means that Mr. Majeed’s share will be at least $500,000. [^11]: This is made all the more obvious by the fact that, in addition to any payments due from Mr. Majeed, Ms. Kamboh would also have available her share of the equity from the sale of the matrimonial home, which would be approximately $750,000. [^12]: Ms. Kamboh also argues that Mr. Majeed defaulted on a line of credit and that this default amounted to oppressive or malicious conduct. The circumstances which led to that default are unclear and contested. However, Mr. Majeed has now paid off that line of credit entirely, which makes issues relating to the default irrelevant to the present motion for the sale of the matrimonial home.