COURT FILE NO.: FS-15-20362

DATE: 20220107

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Jyoti Lakhtakia

Applicant

– and –

Vineet Mehra

Respondent

Steven Benmor and Misha Leslie, for the Applicant

Elena Mazinani, for the Respondent

HEARD: February 16, 17, 18, 19, 22, 23, 24, 25, 26, March 1, 2 and 3, 2021

PINTO J.

REASONS FOR DECISION

Overview.. 3

Procedural History. 5

The Trial - Preliminary Issues. 6

Trial Issue #1: Child Support and Spousal Support 7

A. Parties' Employment History. 7

B. Respondent's Income. 7

a) Expert Report of Anna Barrett, CBV.. 7

b) Evidence of Andrew Cochran. 11

c) Universal Wealth Assets Ltd. ("UWA") 15

d) Coal Trade India. 33

e) Green Valley Agro. 37

f) Gorilla Finance Loan. 38

g) Rajvin Ltd. 39

h) American Express Expenses. 40

i) Other Line Items on Amended Schedule 1. 42

j) Conclusions re Respondent's Income. 42

C. Applicant's Income. 44

a) Description of Applicant’s Income. 44

b) Sandwich Street in Windsor, Ontario. 45

c) Space Edge Office in Gurgaon, India. 45

d) Office Property in Manesar, India. 46

e) Mariner Terrace in Toronto, Ontario. 47

f) Yorkland Boulevard in Brampton. 47

g) Summitridge Court 48

h) 159 Dundas Street in Toronto. 48

i) Sajan Tiwana. 48

j) Determination of the Applicant's Income. 49

D. Conclusion re: the Parties' Incomes. 49

E. Child Support and Section 7 Expenses. 49

F. Spousal Support 51

G. Conclusions regarding Child Support and Spousal Support 56

Trial Issue #2: Supervised Parenting. 57

A. Expert Evidence of Jeremy Morley. 57

B. Expert Evidence of Anil Malhotra. 61

C. Conclusion re: Expert Evidence. 66

D. Law concerning Supervised Parenting and Best Interests of the Child under CLRA.. 67

E. Evidence of Family Violence. 70

F. Conclusion on whether the respondent’s parenting time should be supervised. 71

Form of Order 74

Costs 74

APPENDIX A.. 1

APPENDIX B.. 1

APPENDIX C.. 1

APPENDIX D.. 1

APPENDIX E.. 1

Overview

1This 12-day trial was primarily concerned with ascertaining the respondent husband's income for the purposes of determining his child support and spousal support obligations. The trial also examined whether the respondent's parenting of the parties' 7-year old daughter should be supervised given the applicant wife's concerns that the respondent may abduct the child from Canada and take her to a jurisdiction that is not a signatory under the Hague Convention.¹

2The parties, both of Indian origin, met in September 2000 while studying at the University of Windsor in Ontario, Canada. The respondent obtained a Bachelor of Commerce degree in 2003, and the applicant earned the same degree a year later. After graduation, the applicant worked in Canada but the respondent returned to and worked in India.

3The parties were married in India on November 7, 2008. They lived in India from November 2008 to September 2013. The applicant returned to Canada in September 2013 and gave birth to the parties' daughter, N, on December 28, 2013.

4After N's birth, the respondent returned to India on January 5, 2014 and the applicant followed in September 2014. The couple separated two months later in India on November 14, 2014. The applicant and daughter returned to Canada on November 26, 2014 and have resided in Canada ever since. The respondent has continued to reside in India.

5The applicant and N are Canadian citizens, while the respondent is an Indian citizen.

6The respondent commenced divorce proceedings in India on August 1, 2015. A few weeks later, the applicant commenced family law proceedings in Canada on August 26, 2015 in the Ontario Superior Court of Justice. In Ontario, the applicant made claims for child support, spousal support and sole custody (now called decision making), but not for divorce or equalization of net family property.

7Decision making has been resolved on consent and the applicant has final sole decision-making responsibility of N, as per the order of Hood J. dated March 15, 2019.

8The court proceedings in India are ongoing. They have evolved since 2015 and deal with divorce and property issues.

9The applicant claims that the parties separated in November 2014 when she found out about the respondent's marital infidelity. She alleges that the respondent assaulted her and threatened to kill her and N in their home in India. She fled India and returned to Canada with N.

10The applicant claims that the respondent is a sophisticated businessman and commodities trader who controls or controlled approximately 25 companies worldwide including in India, Singapore, Ethiopia and the British Virgin Islands ("BVI"). She suggests that the respondent is worth tens of millions of dollars and his annual income is between $5 million and $11 million² as determined by her financial expert. In particular, the applicant asserts that the respondent is the beneficial owner of Universal Wealth Assets Ltd. ("UWA"), a BVI corporation whose shares the respondent fraudulently transferred to her in 2016. The applicant suggests that the respondent has not provided meaningful financial disclosure despite numerous orders of this court. Since 2015, she has been engaged in court proceedings in several jurisdictions to determine the respondent's true financial holdings and, here in Ontario, to compel the respondent to pay proper support.

11The respondent denies the applicant's claims and states that his annual income has ranged from $100,000 to $200,000 in recent years. He states that he has provided adequate financial disclosure. The respondent hired a financial expert to respond to the applicant's expert. However, the respondent's expert resigned on the eve of trial, prompting the respondent to bring a motion to adjourn the trial for several months. I dismissed the adjournment motion and ordered the trial to proceed as scheduled.

12The respondent alleges that the applicant is a savvy real estate and business investor. He suggests that the applicant and/or her family members own various income generating assets including UWA. He denies that the applicant is in need of support. He alleges that the applicant kidnapped N from India in 2014, and has used N as a bargaining chip in their financial dispute. The respondent acknowledges that decision making now resides with the applicant. However, he seeks to have reasonable unsupervised parenting time with his daughter.

13For the reasons that follow, I find that:

(a) The respondent fraudulently transferred his UWA shares to the applicant in 2016.

(b) The respondent is the beneficial owner of UWA.

(c) The parties' incomes are as follows:

	2020	2019	2018	2017	2016	2015	2014
Applicant	$165,000 from HSBC + other sources	$239,958	$219,589	$175,924	$89,482	$45,843	$11,632
Respondent	$7,120,000	$7,280,000	$7,380,000	$6,900,000	$7,870,000	$7,020,000	$4,870,000

(d) The respondent should pay $20,000 per month in child support effective January 1, 2015 and each month thereafter for so long as N is entitled to support under the Family Law Act, or until varied by agreement of the parties or by court order.

(e) The respondent should pay $20,000 per month in spousal support from January 1, 2015 to October 31, 2020.

(f) The respondent should be credited for amounts paid.

(g) The respondent should pay 75% and the applicant 25% of the section 7 expenses.

(h) The respondent’s parenting of N should be supervised.

Procedural History

14The applicant proceeded under provincial legislation, namely the Family Law Act, R.S.O. 1990, c. F.3, and the Children's Law Reform Act, R.S.O. 1990, c. C.12 ("CLRA"), as she was not resident long enough in Canada to seek corollary relief under the federal Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

15The application was issued on August 26, 2015. The respondent did not respond initially to the application as he maintained that India, not Ontario, was the proper forum for this matrimonial dispute. He did not bring a motion to contest jurisdiction. The matter proceeded to an uncontested trial before Myers J. on August 30, 2016. Myers J. ordered that the respondent pay child support in the sum of $25,734 per month, spousal support in the sum of $10,000 per month and arrears in the amount of $724,164. This was based on a determination that the respondent's annual income was $3,456,928.

16On November 8, 2016, Paisley J. stayed the Uncontested Order of Myers J. on an interim basis and ordered that the respondent pay non-characterized support of $3,500 monthly.

17Then, on October 30, 2017, Stewart J. set aside Justice Myers' Uncontested Order pending the Respondent's delivery of his financial disclosure and a determination of his global income. Stewart J. ordered the respondent to pay temporary child support in the sum of $2,086 per month, and temporary spousal support in the sum of $3,197 per month.

18On March 15, 2019, the parties appeared at a Trial Management Conference, following which the respondent withdrew his claim for custody allowing Hood J. to grant a final order to the applicant for sole custody of N.

19The trial was originally scheduled to proceed on November 19, 2019, but was adjourned as the parties were not ready to proceed.

20On October 20, 2020, Shore J. dismissed the applicant's motion to strike the respondent's pleadings for being in breach of court orders, particularly disclosure orders. Shore J. scheduled the trial to begin on February 16, 2021.

21On November 9, 2020, the applicant withdrew her claim for ongoing spousal support. Accordingly, the trial is focused on retroactive spousal support until the date of withdrawal.

22On December 7, 2020, Shore J. completed the Trial Scheduling Endorsement Form ("TSEF") with the parties.

23On February 1, 2021, the respondent advised Shore J. that Andrew Cochran, the respondent's financial expert from Ernst & Young ("E&Y"), had withdrawn from the case, and that he would not be relying on Mr. Cochran's reports or Mr. Cochran as an expert witness at trial. The respondent requested an adjournment of the trial to retain a new expert. In an endorsement dated February 2, 2021, Shore J. dismissed the adjournment request and directed that the trial proceed as scheduled.

24To date, there have been approximately 40 judicial endorsements and orders issued in this proceeding.

The Trial - Preliminary Issues

(a) Dismissal of Respondent's Motion to Adjourn Trial

25On the first day of trial, February 16, 2021, the respondent brought a formal motion to adjourn the trial. The respondent not only relied on Mr. 's withdrawal, but also on recent developments in the court in India. I heard submissions from the parties and issued a brief endorsement dismissing the adjournment motion. I indicated that I would issue written reasons at the conclusion of trial. My written reasons are found in Appendix A to these Reasons.

(b) Ruling on Ontario Court's Jurisdiction re: Beneficial Ownership of UWA Shares

26I also made a ruling that the trial in Ontario could deal with the beneficial ownership of UWA despite a recognition that the Indian court is dealing with divorce and property issues. This is because the Ontario court must deal with support issues which cannot be dealt with without knowing the parties' respective incomes. The parties' incomes cannot be determined without knowing which of their assets are generating income. In the case of UWA, the applicant maintains that the respondent is the beneficial owner and that he fraudulently transferred the shares of UWA to her in 2016. The respondent denies the allegation and maintains that the applicant is the owner of those shares. I ruled that this court will have to determine the beneficial owner of UWA, but that is still consistent with the jurisdiction of the Ontario court as I must be able to determine the parties’ incomes. As well, I indicated that I may rule on whether the respondent acted fraudulently in transferring his UWA shares to the applicant.

(c) Other Preliminary Issues

27The trial was held virtually via Zoom subject to a Virtual Trial Protocol Endorsement that I issued. All materials for trial were posted on CaseLines, an electronic platform. The respondent participated virtually from New Delhi, India where the time difference with Toronto was 10-1/2 hours ahead. The parties' legal teams participated virtually from Toronto, Canada. Evidence-in-chief for the parties and all lay witnesses was entered by way of affidavit, and the applicant's expert's report served as her evidence-in-chief.

Trial Issue #1: Child Support and Spousal Support

A. Parties' Employment History

28After her university graduation in 2004, the applicant started work at IBM as a consultant in 2005. Following marriage in November 2008, she took a sabbatical from IBM for one year and remained unemployed until January 2010 when she secured a position in India with SBI Funds Management as a Senior Project Manager. After her return to Canada and the parties' separation in November 2014, she was the primary caregiver to the parties' daughter.

29In May 2016, the applicant resumed employment working at HSBC Bank in Ontario. She briefly worked with another employer for two months before returning to HSBC where, at the time of the trial, she was employed as a Senior Project Manager.

30After his university graduation in 2003, the respondent returned to India and worked as a Sales Assistant Manager with Micro-genetics Systems Private Limited. Between April 2006 to March 30, 2015, the respondent was employed with Stemcor India Private Limited ("Stemcor India").

31The nature of the respondent's relationship with a number of other businesses and whether he was a director, shareholder and/or employee is disputed. However, the respondent stated that in 2019, he became an employee of Dot Global Mobility Solutions Private Limited ("Dot Global") where, at the time of trial, he continued to be employed.

B. Respondent's Income

32The bulk of the trial was spent determining the respondent's income.

a) Expert Report of Anna Barrett, CBV

33The applicant retained Anna Barrett, a Chartered Business Valuator ("CBV") with Marmer Penner Inc., a firm of professional accountants experienced in matrimonial litigation. Ms. Barrett has been accepted previously in Ontario as an expert on income determination.³ Ms. Barrett was asked to provide a determination of the respondent's global income from 2014 to 2020 pursuant to the Federal Child Support Guidelines, S.O.R./97-175.⁴

34Sections 15 to 20 of the Ontario Guidelines provide the legal basis upon which the court is to determine a payor’s income. These sections of the Guidelines are found in Appendix B to these Reasons.

35Ms. Barrett was also asked to provide comments regarding reports that were prepared by the respondent's financial expert, Mr. Cochran. Mr. Cochran's reports were subsequently withdrawn when he resigned as an expert. As explained below, Mr. Cochran still testified at trial as a fact witness.

36The court accepted Ms. Barrett as an expert and permitted her to provide expert opinion evidence on the respondent's income.

37Ms. Barrett provided her expert report on January 29, 2021. The report consists of 158 pages and 670 pages of exhibits analyzing 25 corporations. The parties agreed that Ms. Barret was qualified to provide expert evidence on the respondent's global Guidelines income. Ms. Barrett determined that the respondent's annual income was as stated in Schedule 1 of her report. On February 17, 2021, Ms. Barrett provided an Amended Schedule 1 of her report. She indicated that in preparation for the trial she had become aware of certain errors in her original schedule that required correction. A copy of the Amended Schedule 1 is appended as Appendix C to these Reasons. In her Amended Schedule 1, Ms. Barrett concluded that the respondent's annual income in Canadian dollars was as follows:

	2020	2019	2018	2017	2016	2015	2014
Respondent	$7,120,000	$7,280,000	$7,380,000	$6,900,000	$10,870,000	$7,020,000	$4,870,000

38By contrast, the respondent deposed that his Guidelines income for support purposes in the stated years was:

	2020	2019	2018	2017	2016	2015	2014
Respondent	$99,000	$167,000	$185,000	$128,000	$109,000	$219,000	N/A

Obviously, there is a massive disparity between the expert and the respondent's figures.

39Ms. Barrett made an initial disclosure request of the respondent on October 9, 2019. The request related to basic financial disclosure of the respondent's personal income tax returns, bank statements, credit card statement and financial statements.

40In Ms. Barrett's expert report, she noted that the respondent had not provided her with all of the information and documentation requested in her letters dated January 27, 2021 entitled Updated List of Outstanding Documents and List of Outstanding Documents. She also noted that the respondent had not provided full disclosure despite multiple court orders, namely:

• Order of Justice Gilmore dated January 10, 2018
• Order of Justice Stewart dated September 4, 2018
• Order of Justice Hood dated April 3, 2019
• Order of Justice Kristjanson dated October 22, 2019
• Order of Justice Horkins dated April 28, 2020
• Order of Justice Shore dated December 14, 2020

41Ms. Barrett noted that the respondent had not provided any complete Canadian personal income tax returns for the 2014 to 2020 period under review, despite earning Canadian income in these years. Instead, the respondent had produced Notices of Assessment ("NOAs") for 2014 to 2017 only.

42She also noted that the respondent had only provided his Indian tax returns for 2011-12 to 2016-17, and an Income Tax Return acknowledgment for the financial year 2017-18. For 2018-19 to date, no personal income tax returns or acknowledgments had been provided, despite the respondent earning Indian income.

43For Singapore, the report noted that the respondent had not provided any of his personal income tax returns, even though the respondent had earned Singaporean income from at least 2019 to date.

44Ms. Barrett noted that her requests for bank statements and credit card statements, both personal and corporate, were not produced despite court orders requiring all such information to be produced.

45Ms. Barrett requested but did not receive supporting documentation for significant deposits, withdrawals, and wire transfers to/from the respondent's bank accounts. Once again, court orders were made requiring such documentation but no such disclosure was provided.

46The report suggested that the respondent held shares or directorship interests in numerous corporations. Yet, the respondent provided a very limited number of corporate financial statements.

47On October 20, 2020, Justice Shore ordered Ms. Barrett and Mr. Cochran to confer and jointly prepare a list of outstanding disclosure. The report noted that ultimately the experts were unable to agree on such a list. In response to most of Ms. Barrett's requests, Mr. Cochran advised that the requests were legal issues or related to a lifestyle analysis. On December 14, 2020, Justice Shore issued an endorsement which resulted in an order for the respondent to provide outstanding disclosure.

48The expert report concluded:

Based on the review of the limited financial disclosure we have received, it appears that Mr. Mehra lives an expensive lifestyle based on the review of the charges made to the American Express Centurion card and other large expenses including frequent first class air travel, luxury hotels & restaurants, and luxury personal shopping, such as the purchase of artwork for Rs. 2,600,000 (approximately $46,000).

49The report indicated that the expert had reliability concerns with the limited financial disclosure provided by the respondent. As well, the report indicated that the respondent's various sworn financial statements appeared to be incomplete or inaccurate as he held assets and liabilities that were not reported on his financial statement at their swearing or affirmation dates. Examples included the respondent's American Express Centurion Card, and his ownership of Coal Trade India, DOT Global, Cycloides and other corporations. Finally, the report also indicated that the income tax returns that were filed by the respondent were incomplete or inaccurate. For example, the respondent did not report rental income from a property at 5 Meagan Drive in Halton Hills, Ontario on his Canadian tax returns, or his rental income from rental property in India.

50As a result of the limitation of scope placed on the financial expert, she had to make certain assumptions in determining the respondent's income. An 8-page list of Major Assumptions was appended to the expert report. One of the report's key assumptions was that the respondent is the beneficial owner of UWA and that UWA's investment portfolio was approximately USD $5.0 million in the years under review. The report also determined that it was appropriate to use an estimated rate of return of 5.15% and include this in the respondent's income.

51In another important section of the expert report entitled Adverse Inferences, Mr. Barrett explained the basis upon which income was attributed to the respondent in situations where his disclosure was lacking. Seventeen line items ranging from "UWA Investment Income" to "Estimated Professional Fees" were quantified in the report's Amended Schedule 1. These adverse inferences significantly increased the respondent's income beyond his reported Canadian and Indian annual income. Prominent among the items was income arising from "Coal Trade India - Commissions" which added between $620,000 to $2,140,000 to the respondent's annual income depending on the year. A lengthy explanation was provided by the expert for her attribution of income to the respondent arising from each of the Adverse Inference entries including Coal Trade India.

52Another very significant contributor to the respondent's high income, as determined by the expert, was the imputation of a gross-up arising "where a party gains an advantage from earning a portion of his or her income taxed at a lower rate" as permitted by the Guidelines. The report explained that "A gross-up factor adjusts the lower-taxed income or un-taxed income to a level which accounts for the additional tax savings as a result of each." The report made gross-up adjustments in light of the respondent's tax advantages by paying income taxes in India and not reporting income. However, in years in which the effective tax rate was higher in India compared to Canada, the expert applied a gross-down to consider the higher tax rate in India. On balance, the gross-up was far more significant than the gross-down in any given year, resulting in the addition of millions of dollars of income to the respondent.

53The final section of the expert's report commented on Mr. Cochran's reports which also calculated the respondent's Guidelines income. As Mr. Cochran never testified as an expert at trial, I placed no reliance on Mr. Cochran's calculations, however, it is worth noting that Ms. Barrett's overall comment concerning Mr. Cochran's conclusions with respect to the respondent's Guidelines income was that it was grossly underestimated.

54Ms. Barrett was cross-examined thoroughly by respondent's counsel at trial. I discuss my findings regarding Ms. Barrett's conclusions in the various sections of these Reasons.

b) Evidence of Andrew Cochran

55As stated above, Mr. Cochran, the financial expert hired by the respondent, resigned on the eve of trial. In the context of his request to adjourn the trial, the respondent filed motion materials that purported to explain Mr. Cochran's reasons for resigning.

56In the motion materials, an articling student in the respondent counsel's office, deposed that:

• Up until December 7, 2020, Mr. Cochran was of the opinion that the relevant and available disclosure had been produced.
• Mr. Cochran stated that Ms. Barrett had become an "advocate" for the applicant rather than an impartial expert, and was overstepping her mandate.
• Mr. Cochran stated that the disclosure requests from the applicant were disproportionate and that relevant disclosure and explanations had been provided.
• On December 8, 2020, for the very first time Mr. Cochran expressed concern about the reliability of the income reports he had authored.
• Mr. Cochran had concerns about the completeness and authenticity of the disclosure in light of his telephone calls with Ms. Barrett.

57In the motion materials, the respondent deposed that:

• Mr. Cochran had always expressed to him that Ms. Barrett was overreaching and that the respondent's disclosure and explanations were sufficient.
• Upon learning of Mr. Cochran's resignation, he spoke to individuals in E&Y's Head Office in New York who advised him that Mr. Cochran, who worked in the Toronto office, had a reputation for quitting when a file became difficult.
• He believed that Mr. Cochran was quitting because Ms. Barrett understood the file better than Mr. Cochran, and the file had become more complicated than Mr. Cochran initially anticipated.
• The ethical concerns being raised by Mr. Cochran were merely a smokescreen to justify his resignation.

58Following my refusal to adjourn the trial, each of the parties requested that Mr. Cochran testify at trial, albeit as a fact witness, not as an expert. The respondent caused a summons to be issued to compel Mr. Cochran's attendance at trial. Mr. Cochran retained his own counsel but his counsel did not attempt to quash the summons or intervene in the trial.

59I refused respondent counsel's request that she be able to cross-examine Mr. Cochran from the outset of his testimony. I ruled, pursuant to section 20 of the Ontario Evidence Act, R.S.O. 1990, c. E.23, and case law that, having called Mr. Cochran as a witness, the respondent had not satisfied any of the three criteria by which a party is permitted to cross examine their own witness: (1) the court had determined that the witness was adverse to the party calling the witness; (2) the witness' testimony was inconsistent with a previous written statement; or (3) the witness was hostile to the examining party. I ruled that Mr. Cochran's purported interest in protecting his professional reputation or avoiding liability in a potential lawsuit from the respondent did not constitute him having an adverse interest or being hostile, as this is the interest of every professional. I also indicated that my ruling could change depending on the actual testimony provided by Mr. Cochran.

60Mr. Cochran was examined by respondent's counsel, Ms. Mazinani, and cross-examined by applicant's counsel, Mr. Benmor. During the cross-examination, a number of documents were produced which, on their face, appeared to contradict what the respondent had stated in his adjournment motion materials. On re-exam, I permitted Ms. Mazinani to cross-examine Mr. Cochran because I found, by that point, there was a sufficient basis to find that Mr. Cochran was adverse to the respondent.

61At trial, Mr. Cochran produced his correspondence with the respondent and/or respondent's counsel between September 2020 and January 26, 2021.

62In his January 19, 2021 email to the respondent and respondent's counsel, Mr. Cochran confirmed that he was resigning and that he had previously communicated his resignation on December 8, 2020. He had only continued to assist at a court meeting with Justice Shore on December 9, 2020 because there was a judicial order requesting another meeting to discuss ongoing disclosure. Mr. Cochran stated, in his email, that he had concerns with a number of issues related to his mandate, most significantly:

• The quality and reliability of the financial information, which our mandate was not to audit or verify, which hinders the ability to draw any reasonable conclusions of income;
• Numerous contradictory documents around ownership which limits our ability to reliably determine income levels;
• Issues around allegations of forgery which are relevant to the income analysis and for which are not within our area of expertise; and
• Discrepancies between comments made by [the respondent] in case conference meetings (which would be subsequent to our report being produced) and information that had been provided to us.

63In his January 22, 2021 email to respondent's counsel, Mr. Cochran made reference to his professional and ethical obligations as a CBV as set out by the CBV Institute Code of Ethics. Section 201.1 of the Code of Ethics states:

201.1 A Member shall not: i) sign or associate himself/herself with any letter, report, statement or representation which he/she knows, or should know, is false or misleading; or ii) make any oral report, statement or representation which he/she knows, or should know, is false or misleading.

64Mr. Cochran advised:

As I have previously conveyed to you, I believe I have been provided with incomplete or misleading information as part of my engagement. Indeed, I have a concern that there has been an effort to conceal material information from me.

For that reason, I can no longer stand by the opinions expressed in the two reports I have delivered to Mr. Mehra. In the circumstances, we believe that we were obliged by our professional obligations to have resigned, and have done so.

65In the balance of his January 22 email, Mr. Cochran summarized the concerns giving rise to his resignation decision and explained that on November 13, 2020, Ms. Barrett had sent him a 49-page chart requesting disclosure from the respondent. In addition, Ms. Barrett provided 6 appendices and 140 supporting documents that attempted to corroborate the reasons for the additional disclosure request from the respondent. Mr. Cochran stated that the majority of these documents were never provided by the respondent to him.

66Among the documents provided to Mr. Cochran for the first time on November 13, 2020 were documents relating to the alleged forgery of the applicant's signature on UWA share transfer documents (showing transfer of UWA from the respondent to the applicant). Mr. Cochran explained that, both with respect to UWA and another company, Coal Trade India, given the significance of these assets and the relationship between their ownership and the respondent's income, the new information could have a significant impact on E&Y's conclusion about Guidelines income for the respondent. Mr. Cochran expressed concern that the respondent had not provided E&Y with the documentation all along.

67At trial, Mr. Cochran reiterated his reasons for resigning and the events that transpired from November 2020 to January 2021 as described in his email correspondence with the respondent and respondent's counsel. Mr. Cochran presented his evidence in a fair and straightforward manner and nothing of significance emerged in cross-examination.

68I find that Mr. Cochran resigned on December 8, 2020 for the reasons he stated in his correspondence to respondent's counsel and as comprehensively explained in his January 22, 2021 email. Despite his resignation, he felt compelled to temporarily stay on and attend court on December 9, 2020 before Justice Shore as there was a judicial order requesting another meeting to discuss ongoing disclosure. He did not advise Justice Shore of his resignation as he did not think this would assist the respondent. I find that Mr. Cochran resigned for good faith and legitimate reasons consistent with his professional and ethical responsibilities under the CBV Institute Code of Ethics. He resigned on the basis that he had not received proper or full disclosure from the respondent. In fact, he felt that the respondent had concealed material information from him. The respondent had provided him with numerous contradictory documents around ownership of corporate entities that limited his ability to reliably determine the respondent's income.

69I accept as true, based on Mr. Cochran's testimony, that no one in E&Y's New York office had knowledge of Mr. Cochran's files as there were virtually no communications between Mr. Cochran and the New York office. E&Y's Toronto and New York offices are separate entities, and the Canadian valuation work did not lend itself to working with American colleagues. I therefore find that the respondent's claim about Mr. Cochran having a reputation as a quitter is a complete fabrication offered to distract the court from Mr. Cochran's stated reasons for resignation. I find the respondent's claim to be utterly preposterous that someone in E&Y's New York office spoke to him and denigrated the professional reputation of another member of the firm based in a completely different office and country.

70I also find the articling student’s affidavit dated February 10, 2021 to be a serious misrepresentation of the reasons why Mr. Cochran resigned. By the end of January 2021, the respondent and his counsel had a detailed and comprehensive explanation from Mr. Cochran about the reasons for his resignation. To claim that Mr. Cochran felt that the disclosure requests from Ms. Barrett were disproportionate and that the respondent had provided the relevant disclosure and explanations, is the polar opposite of what Mr. Cochran actually stated: namely, that Ms. Barrett's disclosure requests were legitimate; they raised relevant and concerning income valuation issues; that the respondent had not provided the necessary or sufficient disclosure; and what had been provided by the respondent appeared deliberately misleading.

71If the intention of the respondent was to compel Mr. Cochran to testify to dispel the notion that the respondent had not acted above board concerning his disclosure obligations, it failed spectacularly. Mr. Cochran's testimony represented confirmation, from someone other than the applicant and Ms. Barrett, that the respondent failed, indeed refused, to provide necessary or sufficient disclosure and instead attempted to mislead his own expert and, by extension, the court.

c) Universal Wealth Assets Ltd. ("UWA")

72On the financial expert's Amended Schedule 1, the respondent received the following income from UWA in the years stated:

	2020	2019	2018	2017	2016	2015	2014
UWA – Investment Income	$348,000	$344,000	$336,000	$336,000	$343,000	$331,000	$286,000

73Given the expert's overall conclusion that the respondent's annual income was typically in the range of $7.0 million, the amount of time at trial dedicated to UWA was far in excess of its monetary significance. However, the focus on UWA was because of the interconnected nature of the respondent's corporate holdings, and the central disagreement between the parties as to who beneficially owned UWA and over what time period.

74Ms. Barrett defined beneficial ownership or interest as having ultimate access and control over funds, management and decision-making of a corporation.

75The applicant claims that she was never the beneficial owner of UWA, a business incorporated in the BVI on February 24, 2005 with its corporate bank account with HSBC Bank in Singapore. The company derived its income from commissions on coal and steel trading contracts in India and other parts of the world. The applicant claims that she was shocked to learn that the respondent had transferred UWA's ownership to her in a share transfer document dated December 8, 2016. She stated that the respondent implemented the transfer without her consent and via forging her signature on the transfer document. The effect of the transfer was to make the applicant appear as the beneficial owner of UWA, whereby any income from UWA would be attributed to the applicant rather than the respondent.

76The respondent offered a completely different narrative about UWA. He argued that the Ontario Superior Court did not have jurisdiction to consider the issue of beneficial ownership of UWA since the court in India was dealing with divorce and property issues. However, as I had determined that I would permit the issue of UWA ownership to be litigated in Ontario, the respondent had to respond substantively to the applicant’s position on UWA ownership.

77In his trial affidavit sworn February 5, 2021, the respondent described the applicant's assertion that the UWA shares were fraudulently transferred to her in 2016 as a bogus claim. He described UWA as follows:

[UWA] was incorporated in the BVI in 2005 by the Applicant. I was informed by the Applicant that UWA has been set up to serve as an investment vehicle for her and her family. In 2008, I was appointed as an additional director of UWA due to the fact that the Applicant, as a Canadian citizen, was unable to operate UWA's bank account, as UWA was a BVI corporation. I followed the Applicant's instructions in operating the UWA's HSBC bank account. I also held shares as a nominee shareholder for the Applicant. In 2016, I completely severed my involvement with UWA and transferred the shares held in trust to the Applicant. After the ending of my directorship of UWA, the Applicant appointed Greenland Limited as a director of UWA. The Applicant has always been the beneficial owner and the directing mind behind UWA. Approximately $2,000,000 was transferred from UWA to the Applicant and her family between 2010 and 2015.

78Earlier in the proceeding, the respondent filed a motion seeking to set aside the Uncontested Order of Myers J. dated August 30, 2016. In the run-up to the motion, the parties filed several affidavits as follows:

• Respondent's affidavit of October 27, 2016
• Applicant's affidavit of November 4, 2016
• Respondent's affidavit of January 31, 2017
• Applicant's affidavit of February 10, 2017
• Applicant's affidavit of May 26, 2017
• Applicant's affidavit of June 13, 2017
• Respondent's affidavit of June 20, 2017
• Applicant's Reply affidavit of June 22, 2017

79The respondent provided conflicting evidence regarding the termination of his involvement and shareholding in UWA. In his trial affidavit, while denying the applicant's allegations of fraudulent transfer of UWA shares, he admitted to completely severing his involvement with UWA and transferring the UWA shares to the applicant in 2016.

80In his earlier affidavit sworn January 31, 2017, the respondent deposed that he helped the applicant set up UWA so that the parties could pursue opportunities as a family in the international trading of commodities, although its focus was primarily coal. He stated that he guided the applicant as much as possible so she could assume control of the commodity trading business. This started around 2008, when the couple first became engaged. The respondent claimed, in his 2017 affidavit, that "I have not been involved with Universal Wealth since Jyoti and I separated, although I understand it has not done any business since at least 2014."

81At trial, when the respondent was asked why he provided different dates (2016, 2014) in different affidavits for the termination of his involvement with UWA, he claimed that both were true. He suggested that even after the parties' separation in November 2014, they were trying to reconcile and this continued until the end of 2016.

82At paragraph 10 of the respondent's June 20, 2017 affidavit, he states:

After the breakdown of our relationship, I completely severed my involvement with UWA. On November 28, 2016, I transferred the shares which had been issued in my name to Jyoti as the beneficial owner. I also resigned as a director of UWA. Jyoti had pre-signed the requisite documents earlier in 2016. Contrary to her claim, Jyoti's signature was not forged on the transfer documents. Jyoti was eager to accept the transfer of my nominee shares in UWA, and she had already commenced working with UWA's banker and was making unilateral decisions to sell properties, such as UWA's two London properties and properties in Canada. I believe that she caused UWA to sell these properties to insulate UWA from its creditors. Jyoti now operates UWA through a nominee director, being Greenland Limited.

83Paragraph 28 of the respondent’s January 31, 2017 affidavit states:

I also helped Jyoti secure a loan for her company, which was used to purchase the London UK apartment, which she later sold and now claims that the proceeds from the sale are being held “in trust.” Attached as Exhibit “F” is an email exchange between Jyoti and a representative of the developer which clearly indicate that she was the purchaser and also that she attempted to purchase it under the name of her company. The loan is described in the statement of Matthew Stock which is attached as Exhibit “G” and the letter from Greenland found at Exhibit “E”. Matthew Stock made the loan to Universal Wealth for which I provided a personal irrevocable guarantee, which is why I considered myself to be the ultimate owner of the London UK apartment. When the loan became payable in 2016 however, Universal Wealth did not repay this loan despite the fact that Jyoti sold the apartment in 2015 without my consent. Matthew Stock is now commencing recovery proceedings against me. The loan can and should be repaid by Jyoti through Universal Wealth, although she is refusing to do so.

84The respondent also testified that the applicant received approximately USD $7.0 million from UWA from 2005 to 2015, equivalent to about CAD $1.0 million per year.

85The respondent acknowledged that UWA's banking was with HSBC Singapore. He stated that HSBC's Relationship Manager was Bala Ganesan who had a relationship with both him and the applicant. He testified that, since he was working with Stemcor India and frequently travelling to the Far East, the idea was for him to sign documents and set up facilities as guided by the applicant.

i) Tan Affirmation and Equiom Response

86In the respondent's October 27, 2016 affidavit, he states that he did not "directly or indirectly" own UWA. Then, in his January 31, 2017 affidavit, he claimed that it was the applicant, not him, who owned UWA. In the January 2017 affidavit, the respondent addressed the ownership of UWA as follows:

Universal Wealth Assets Singapore ("Universal Wealth") was formed in the British Virgin Islands by Jyoti. It is her company and she is the sole shareholder of it. She operated Universal Wealth through a nominee director (Greenland Limited) to create a layer between her and management. Because the company was established in the British Virgin Islands, which is a tax haven that operated under the Swiss banking principles of secrecy, I have been unable to obtain records evidencing Jyoti's ownership of Universal Wealth. However, I was able to secure a letter from Greenland Limited confirming that Jyoti is its owner. Attached as Exhibit "E" is a copy of this letter. I believe that the fact that Jyoti has copies of account statements, fund transfers, and other confidential documents related to Universal Wealth is evidence of her interest in it.

87A copy of the Greenland letter, signed by Michelle Tan ("Tan Affirmation"), is appended as Appendix D to these Reasons.

88The key parts of the Tan Affirmation state:

• The applicant is the sole shareholder of UWA and Greenland is its sole director.
• In 2009, Matthew Stock extended a loan/credit facility of up to US$ 7.0 M to UWA at the request of the applicant. The loan was secured via a personal guarantee of the respondent.
• The loaned monies were invested in two properties in London (U.K.), several other properties in Canada, India, agriculture in Africa, investment in the applicant's family businesses and for a specific gas station in Brampton, Canada (valued at US$ 10.0 M) that generates about US$ 1.0 M annually in revenue.
• In 2016, the loan matured but UWA has since been unable to repay the loan to Matthew Stock.
• The lender Matthew Stock has since commenced recovery proceedings against UWA resulting in UWA not being able to continue its business as a going concern. Mr. Stock has also sought to enforce the guarantee against the respondent and UWA.

89In the applicant's affidavit dated May 26, 2017, the applicant claimed that the respondent lied about his non-ownership of UWA and that she had proof that the respondent had relied on a forgery (i.e., the Tan Affirmation) to fraudulently transfer the shares of UWA to her. The applicant explained the sequence of events that led her to this conclusion. After receiving the respondent's January 2017 affidavit, the applicant retained a BVI law firm, Maples and Calder, who wrote to Greenland and their fiduciary services company, Equiom, inquiring about the Tan Affirmation and the applicant's purported beneficial ownership in UWA.

90Equiom replied to the Maples and Calder letter on March 23, 2017 confirming that the Tan Affirmation was never signed by Greenland or previously seen by Ms. Tan who was Head of Equiom's Fiduciary Services. The Equiom letter was co-signed by Ms. Tan and Douglas Lee, Head of Compliance Services. The Equiom letter clarified that Greenland is a wholly owned subsidiary of Equiom. The letter stated that the Tan Affirmation contained facts that were not accurate and that Equiom had reason to believe that the Tan Affirmation was a forged document. Equiom advised that it was going to report the matter to the Singapore Police.

91In cross-examination, the respondent was shown the Tan Affirmation and Equiom's response letter, and asked why he did not respond to anyone to refute the suggestion that he had been party to a forgery. The respondent answered that he was not contacted by anyone at Equiom, and insisted that he had not participated in forgery.

ii) Singapore Police Report

92At trial, a Singapore Police Force Report dated April 7, 2017 was shown to the respondent. The respondent did not challenge the authenticity of the Police Report. In summary, the Police Report stated:

• That it was a police report made on behalf of Equiom per Douglas Lee, Equiom's Compliance Officer.
• Equiom is in the business of providing corporate secretariat services to companies.
• Equiom was providing such services to UWA, a BVI company, since 2012.
• The beneficial owner of UWA is the respondent, a non-Singapore resident.
• The contact person for UWA is Bala Ganesan, an employee of HSBC Bank Singapore.
• On December 8, 2016, the respondent transferred the ownership of UWA to the applicant by way of a share transfer.
• Equiom responded to the applicant's lawyer about the Tan Affirmation. Equiom investigated and deemed the Tan Affirmation to be a forged document. Equiom filed a report with the Singapore Police.
• Equiom conducted a video conference with the person who it understood to be Jyoti Lakhtakia ("the purported JL") to determine if she matched the photo identification on file at Equiom. At the same time, Equiom requested an affidavit from the applicant through her BVI lawyer to confirm her identity.
• On March 24, 2017, Equiom held a video conference with the purported JL and concluded that the person did not match the photo identification that Equiom had of the applicant.
• Equiom informed Bala Ganesan that it would not take instructions from the purported JL unless she produced an affidavit verifying her identity.
• On March 29, 2017, Equiom received an affidavit from the applicant's lawyer confirming the applicant's identity.
• Equiom did not receive any further information from Bala Ganesan.

93At trial, the respondent was asked whether, at any point, he or Bala Ganesan challenged the Singapore Police investigation and the conclusion that the Tan Affirmation that the respondent filed in his Ontario court proceeding was a forgery. The respondent claimed that no one had reached out to him and that he does not need to prove something that he is not part of. He indicated that, subsequent to these events, he formed Dot Global and obtained his employment pass for Singapore in 2019 to set up the company.

94The respondent then suggested that the applicant admitted in her January 2017 affidavit that she was the beneficial owner of UWA. When I asked the respondent to clarify, where exactly, in the applicant's affidavit she made this admission, the respondent pointed to paragraph 9(a) which states:

The Respondent, either on his own or with the assistance of his banker, Bala Ganesan who is also named on the documents, fraudulently transferred Universal Wealth Assets from his name to mine on December 8, 2016 (during this litigation).

95The respondent testified that, "She's admitting that she's the owner, though also admitting the fact that it was fraudulently transferred." The respondent also relied on the fact that, because the applicant provided UWA related documents to the court, she was effectively the owner.

iii) Heritage Fiduciary Services - UWA - Change of Beneficial Owner

96The respondent was shown a document dated November 28, 2016 sent to Heritage Fiduciary Services Pte. Ltd in Singapore under the subject line "UWA - Change of Beneficial Owners of the Company". The document gives notice that the ownership of UWA will transfer from the respondent to the applicant effective the date of the document. The document contained two hand-written signatures, one for each of the respondent and applicant. The applicant submits that her signature is a forgery.

97The respondent testified that he did not believe the Heritage document to be genuine and that the document did not make sense since he transferred his shares to the applicant in 2012. The respondent testified that, in 2012, on the applicant's instructions, he signed lot of documents but left them undated. In cross-examination, he testified as follows:

Q. So, again putting aside the authenticity of this document, you're telling me that you transferred your shares of UWA to Jyoti in 2012. Is that what you're telling me?

A. Yes, 2012 is the time that I've signed all these documents which are not dated, a bunch of documents. Just don't remember. These are from Ms. Lakhtakia's file and she would know the exact sequence and events and dates.

Q. But you're certain that it was 2012 when you transferred your shares over to Jyoti?

A. Yeah. I'm again basing it on what you showed me 'cause I don't have the share registry or never had the access to any of those documents, because that's only been accessible or given to people who are the actual owners, and what you showed me, showed me in 2012 the letter from Greenland, if that letter is true, there is another company that the shares were transferred to. So, I would assume from my knowledge, it would have been done then, but when it happened, how it happened, I don't have the knowledge.

98When applicant's counsel pointed out that, in the respondent's June 2017 affidavit he deposed that he transferred the shares in 2016 and that the applicant had pre-signed the requisite documents earlier in 2016, the respondent testified "it has to be in 2012, you know the transfer, whenever it happened it is Ms. Lakhtakia who would know exactly the date and sequence, and chain of events."

iv) HSBC Client Investment Profiler

99At trial, the respondent was also shown an HSBC banking document, Client Investment Profiler, dated "09 06 2015" that the applicant had obtained from Equiom. The account holder of the Profiler was UWA and the respondent's name and signature appeared under "client" on the document. The HSBC Private Bank Relationship Manager was identified as Bala Ganesan.

100Under a section about "Your Overall Investment Knowledge and Experience, Net Worth and Overall Attitude to Investment Risk", the Profiler offered a range of high, medium and low in terms of "your self-assessed level of understanding" of different investment types. Out of 11 boxes representing different investment types (stocks, debt securities /bonds, etc.), 8 were checked off as "High" including the box for Bullion / Commodities. The Profiler defined "High" as "a detailed understanding of the product (including as to its features, risks, benefits and terms and conditions)".

101Under "Net Worth", the box "Over US $30 million to US $100 million" was checked off.

102The respondent disavowed any knowledge of the Client Investment Profiler document.

v) Attempts to obtain UWA Bank Statements from HSBC Singapore

103The respondent was taken to a series of correspondence between HSBC Bank Singapore and the applicant's lawyers which related to the applicant's attempts to have UWA banking records released.

104In March 2019, Farrah Hudani, a lawyer at the law firm that previously represented the applicant, corresponded with HSBC Singapore seeking to release banking records held by the bank. Counsel for HSBC Singapore, Antony Lee, replied that the Bank is subject to Singapore banking secrecy laws and was only authorized to release records in compliance with those laws.

105More than 18 months later on December 10, 2020, Mr. Leslie, co-counsel to the applicant, wrote to HSBC Singapore advising that the parties had attended before Justice Shore in the Ontario Superior Court and that Her Honour had requested that the parties arrange to have a Zoom call with the bank regarding the issue of releasing UWA corporate banking statements. Respondent's counsel was copied on the correspondence. Mr. Lee from the Bank responded that the Bank is regulated by Singapore banking laws, and that one method of permitting disclosure was for the respondent (considered the Bank’s customer for the UWA account) to provide his written unequivocal authorization to the Bank to release his customer information and banking statements.

106On January 15, 2021, Mr. Leslie wrote to HSBC and indicated that Bala Ganesan, an ex-employee of HSBC Singapore, would be testifying at trial in Ontario on behalf of the respondent. Mr. Leslie indicated that it was his understanding that former employees of the bank were prohibited from producing evidence obtained during their tenure as HSBC employees. He asked the bank to confirm that Bala Ganesan would be prevented from speaking about confidential banking matters that he may have been involved in while working at the bank. He also asked whether HSBC would be "inclined to take some sort of action against a past employee who conducts himself in such a way."

107On January 18, 2021, Mr. Leslie followed up with HSBC Bank to determine if the respondent had provided his unequivocal and unrevoked authorization.

108On January 27, 2021, Mr. Lee, counsel for HSBC Singapore, replied that such authorization had not been received by the bank. He also reminded Mr. Leslie that any requests for evidence or disclosure from the bank should come through the Singapore courts.

109On February 12, 2021, the respondent sent an email to Mr. Lee of HSBC Singapore under the subject heading "UWA" advising that, further to previous authorizations in 2018 and 2019, he was hereby providing a "further unequivocal and unrevoked Authorization" to provide the applicant with banking information. In the same email, however, the respondent advised that "I am not the director, shareholder or owner of UWA."

110On February 15, 2021, Mr. Lee wrote back to Mr. Leslie advising that, in addition to the respondent's February 12 email purporting to provide authorization for release of UWA's banking records, the bank had separately received an email from the respondent's lawyer in India, Ramakant Sharma, stating that "no exchange of information or any request from any parties regarding UWA shall be undertaken by your bank and yourself without appropriate legal orders from Indian court as the suit for declaration is subject of Indian court." Mr. Lee copied the respondent and his Indian lawyer on his email to Mr. Leslie.

111At trial, the respondent confirmed that Mr. Sharma worked with his divorce lawyer in India. When applicant's counsel suggested that it was contradictory for him to provide an authorization to HSBC Singapore to release UWA's banking records, only to have his lawyer in India advise that no such records should be released, the respondent claimed that he did not give any instructions to his lawyer. The respondent suggested that, all his Indian lawyer was doing was notifying HSBC of the decision that was issued by the Indian court on February 12, 2021 that anything regarding UWA is a matter of jurisdiction of the Indian, not Ontario, court. The respondent assumed that his lawyer was notifying multiple persons of this development.

112The respondent claimed that, when a subsequent February 16 court order issued setting aside the February 12 Indian court order, he sent an email to Mr. Lee at HSBC. I note that the respondent never produced this later email at trial; if the respondent did send the later email, he never copied applicant's counsel; and that Mr. Lee never notified applicant's counsel of this purported later email. The respondent also suggested that the reason why no disclosure was forthcoming despite his authorization was because of confusion between his personal bank account and UWA's corporate bank account held with HSBC Singapore.

113Ultimately, UWA's bank statements from HSBC Singapore were never produced at trial.

vi) Matthew Stock

114Matthew Stock, a resident of the UK, was called by the respondent to testify at trial. He provided an affidavit-in-chief and was cross-examined by applicant's counsel.

115Mr. Stock has been a commodities trader for most of the past 30 years, and has known the respondent since 2005. He met the applicant in 2005-06. He was the managing director of Stemcor India where the respondent was employed between 2006 and 2015.

116Mr. Stock met the respondent's father, Jatinder Mehra, in 1994 or 1995. Mr. Mehra Sr. was the chairman and managing director of a government-owned company and Mr. Stock built up a business relationship with Mr. Mehra Sr.

117Mr. Stock offered the respondent a job within a year of meeting him after being introduced by Mr. Mehra Sr. He also helped Rajneesh Mehra, the respondent's older brother, find a job in the commodities business.

118Mr. Stock explained that the respondent and his family had not initially been successful in supplying coal to government companies in India despite Mr. Mehra Sr.'s very senior position in the industry. Stemcor was a large company that was trading in large volumes with government companies in India, but not in coal, so Mr. Mehra Sr. suggested that it would be a good partnership whereby Stemcor could get into trading a different commodity, and the Mehra family business could become involved in an activity that was not strictly Stemcor's business. So the respondent, despite being an employee of Stemcor was allowed by Stemcor and Mr. Stock to have commodity business activities on the side.

119Although in Mr. Stock's affidavit he deposed that he extended a loan facility of USD $7M to UWA, at trial he clarified that, it may have been only half that amount, or USD $3.5 M. He understood that monies advanced to UWA were going to be invested in an apartment in London, UK, several properties in Canada, a gas station in Canada, and an agricultural business in Ethiopia. He acknowledged that there was no loan agreement with UWA. Mr. Stock deposed that when his loan to UWA matured in 2016, UWA failed to make repayment with interest. He claimed that when the parties' family law proceedings in various jurisdictions are completed, he intends to pursue recovery.

120Concerning the applicant, Mr. Stock did not believe that she worked in the commodity business as a trader. Yet, it was his understanding that the applicant was the beneficial owner of UWA.

121In cross-examination, Mr. Stock was shown a copy of an email that he purportedly sent to the respondent on May 23, 2011. The email address used for the respondent was coaltradeindia@rediffmail.com. Mr. Stock's email referenced an affidavit of the respondent that Mr. Stock wanted the respondent to have sworn and returned as soon as possible. Mr. Stock was shown this affidavit sworn by the respondent on May 22, 2011. In the affidavit, the respondent deposed, inter alia, that:

• He was making the affidavit at the request of Mr. Stock with regards to Mr. Stock's divorce proceedings.
• He is employed by Stemcor India Pvt. Ltd as a Director reporting to Mr. Stock.
• He and his family own Coaltrade India Ltd., an Indian company promoting the sale of coal in India and elsewhere for Massey Energy, a US coal mining group. Coaltrade India is not related to his employment with Stemcor.
• Mr. Stock has assisted the respondent in developing and expanding his family's coal business in India. In exchange for Mr. Stock's assistance, the respondent has paid him a portion of the commissions Coaltrade receives.
• Mr. Stock has also assisted the respondent with Coaltrade's business by allowing him to utilize bank accounts outside India for the remittance of funds.
• The commissions and other fees payable to Coaltrade are generally paid to Supreme Global Holdings, a company registered in the BVI which is owned indirectly by the respondent's family through trustees.
• Mr. Stock does not have any beneficial ownership, directly or indirectly, in Coaltrade India Ltd., nor in Supreme Global Holdings Ltd.
• No money is owed to Mr. Stock by the respondent or his family, Coaltrade India or any other companies associated with the family.

122Applicant's counsel suggested that the context of the May 2011 email and affidavit was that Mr. Stock was going through divorce proceedings at the time, and his lawyers were requesting that he obtain evidence of his income. Mr. Stock testified that he could not recall the email and that he had no knowledge of the affidavit, nor was it used in his divorce proceedings.

123Mr. Stock was also shown the Tan Affirmation and asked whether he provided the document to the respondent. Mr. Stock testified that he does not recall this document or sending it to the respondent. He denied forging the document.

vii) Bala Ganesan

124The respondent listed Bala Ganesan on the TSEF as a witness who would testify at trial. Ultimately, Mr. Ganesan did not testify at trial. The parties blame each other for this.

125To say that Mr. Ganesan's fingerprints were all over this matter, is an understatement.

126Mr. Ganesan signed a letter dated March 12, 2015 on HSBC Bank letterhead "To whom it may concern" referencing that the respondent had a bank account which was opened on May 4, 2005 where the "average balance on deposit and investment accounts was USD $566,024”.

127At an earlier stage in the proceeding, Mr. Ganesan swore an affidavit dated June 16, 2017 stating that he was employed as Director, HSBC Private Banking until May 9, 2017 and that he was handling client relations and wealth management.

128In his 2017 affidavit, Mr. Ganesan deposed that when he started working with HSBC Private Banking Singapore, he "took over handling of a BVI account with HSBC in the name of" UWA. In fact, Mr. Ganesan's name is on the Certificate of Incorporation for UWA dated February 24, 2005.

129Mr. Ganesan's signature appears as a "Certifier" purporting to certify copies of the applicant's passport and Ontario driver's license as true copies (the applicant denies she ever consented to this).

130Mr. Ganesan's name appears on the HSBC Client Investment Profiler, discussed above.

131His name appears as the authorized contact person on the Heritage Fiduciary Services Activation and Due Diligence Form dated November 28, 2016. This is the form on which the applicant asserts that her signature was forged, and in respect of which the respondent disavows any involvement.

132Mr. Ganesan acted as a witness to a document whereby Tanaldi Limited purportedly transferred ownership of UWA to the applicant dated December 8, 2016. Hazel Concepcion, a "Senior Executive" in Singapore was the other witness.

133In March 2017, Equiom requested, but did not receive, an explanation from Mr. Ganesan about the mismatch between the person purporting to be the applicant, and the real applicant who was represented by a lawyer and who sent an affidavit confirming her identity.

134Mr. Ganesan is a director of Dot Global, the start-up company that the respondent founded in January 2017.

135At trial, the respondent claimed that he had not been in communications with Mr. Ganesan.

136Given all the above connections between Mr. Ganesan and the respondent, the applicant submits that I should draw an adverse inference from the failure or refusal of Mr. Ganesan to testify at trial. Had Mr. Ganesan participated in the trial, he would have had to account for his involvement and explain the respondent's convoluted international business and banking activities.

137The respondent disagrees and suggests that, while feigning a desire for Mr. Ganesan to testify, in reality, the applicant intimidated Mr. Ganesan and ultimately dissuaded him from testifying by having her lawyer send a letter, just before trial, seeking "to ensure that Mr. Bala Ganesan does not testify in these proceedings". The applicant, of course, denies that this was her intention and suggests that, if anything, Mr. Ganesan ought to have been the respondent's key witness but, at the last minute, he backed out of the trial.

138I find that the responsibility for Mr. Ganesan not attending the trial falls overwhelmingly on the side of the respondent. Whether or not Mr. Ganesan felt dissuaded from attending the trial due to the letter that applicant’s counsel sent to HSBC Singapore is beside the point. Mr. Ganesan’s name was on the TSEF as the respondent’s witness. There appears to be a close connection between him and the respondent, and the respondent could have compelled Mr. Ganesan’s attendance at trial.

139I draw a strong adverse inference against the respondent as a result of Mr. Ganesan’s failure to attend the trial.

viii) Other UWA Documentation

140Several other documents were produced at trial that relate to the UWA beneficial ownership issue.

Email from coaltradeindia@rediffmail.com stating that UWA is the holding company of Coal Trade India

141Ms. Barrett, the expert, was cross-examined about a copy of an email she relied upon stating that UWA is the holding company of Coal Trade India. The email dated August 25, 2011 was part of an email chain and was purportedly signed by the respondent and sent from an email address coaltradeindia@rediffmail.com to Amy Brikis, copying Lynn Otis. Ms. Otis is an individual associated with a company called Alpha Natural Resources Inc ("Alpha").

142Ms. Barrett testified that the context of the email was that Coal Trade India, of which the respondent is the beneficial owner, was directing Alpha to pay Coal Trade India's invoices by depositing funds to UWA's bank account. The key part of the email, purportedly signed by the respondent, states:

Please find below the request from our bank, as requested earlier request you (sic) to confirm the Beneficiary as Universal Wealth Assets Ltd, which is the holding co of Coal Trade India.

143The respondent denies that coaltradeindia@rediffmail.com was his email address.

144The email chain appears to show that when the respondent was receiving emails, he was receiving them at coaltradeindia@rediffmail.com, yet when he was sending emails, he was sending them from vjm@coaltradeindia.com. The respondent does not deny that the latter email address belonged to him. Ms. Barrett testified that one of her assumptions was that the coaltradeindia@rediff.com email was authentic and belonged to the respondent, and she did not have any specific concerns with the apparent discrepancy between the sending and receiving email addresses of the respondent.

145As referenced earlier, Mr. Stock also sent an email to the respondent dated May 23, 2011 via the coaltradeinida@rediffmail.com email address. At trial, even though the email says "Hi Vineet", Mr. Stock did not admit to the email address being that of the respondent and claimed that it could be a general company email address.

146There were several other emails that suggest that the respondent used coaltradeindia@rediffmail.com as his email address.

147In Mr. Stock's affidavit, he appended a July 9, 2010 email from Mark Reis to Mr. Stock and the applicant, which was copied to Mr. Stock's then wife and coaltradeindia@rediffmail.com. In his affidavit, Mr. Stock stated that he facilitated the purchase of two flats in London, U.K., one for his wife and himself, and the other for the parties. The flats were in the same building. At trial, Mr. Stock refused to concede that the coaltradeindia@rediffmail.com address belonged to the respondent.

148I find that the context and form of the July 9 email - that it was directed to the purchasers of the flats - makes it likely that the email address in question belongs to the respondent since everyone else, meaning Mr. Stock, Ms. Stock, and the applicant, had their own email address.

149As another example, also as explained by Ms. Barrett at trial, Mr. Ganesan sent an email to Vineet˂coaltradeindia@rediffmail.com˃ on April 2, 2012 in respect of the respondent's father transferring funds of approximately USD $320,000 to a company called Star Rock Capital.

150In sum, despite the respondent's denial and Mr. Stock's equivocation, there is strong evidence to indicate that the coaltradeindia@rediffmail.com email address was used by the respondent as his email address at the material time. Accordingly, I accept as true, the contents of the respondent's August 25, 2011 email stating that UWA was the holding company of Coal Trade India. By the respondent's own words in an email, UWA is the holding company of the Coal Trade India business which belongs to the Mehra family, and not to the applicant. It would be far more consistent with the various coaltradeindia@rediffmail.com emails for the respondent, not the applicant, to be the beneficial owner of UWA.

Document showing respondent as guarantor for UWA credit facilities in 2013

151The respondent was shown a UWA written resolution of sole director appending an HSBC letter dated February 20, 2013 regarding “availability of credit facilities namely Revolving Facility of up to US$ 5.0 million maximum, and ITL Facility and /or MFX/PM Facility of USD $2.2 million”. The respondent's signature and name appear as Guarantor for the facilities.

152In cross-examination, the respondent claimed that he did not remember the 2013 credit facilities document or what he guaranteed. He gave a non-committal answer for why he would still be acting as a guarantor for UWA in 2013 if, as he stated, he gave up his shares in 2012.

Respondent's RBC bank statement showing transfer from his UWA account to facilitate house closing

153In the applicant's affidavit dated June 22, 2017, she appended a copy of the respondent's RBC bank statement showing that the respondent transferred $323,314 from his UWA account to his personal RBC account on September 9, 2015. The applicant deposed that the funds were used by the respondent to close on the purchase of his home at Meagan Drive in Halton Hills, Ontario on September 16, 2015.

HSBC letter dated March 12, 2005

154Relatedly, in the same June 2017 affidavit, the applicant appended an HSBC letter dated March 12, 2015 directed "To whom it may concern", written by Mr. Ganesan stating that the respondent opened his account with the bank on May 4, 2005, and that the average balance on deposit and investment accounts was USD $566,024.

ix) Document showing evolution of UWA ownership and directorship

155Also, in the applicant's June 2017 affidavit, she appended a chart showing the evolution of the directors, shareholders and beneficial owners of UWA. This chart is reproduced at Appendix E of these Reasons. I find that this document was prepared by Equiom and provided to the applicant when she requested disclosure from Greenland / Equiom following the respondent's reliance on the Tan Affirmation.

156Based on the chart, the beneficial owner of UWA from its incorporation in 2005 to December 8, 2016 was the respondent. Thereafter, it has been the applicant. Obviously, if the transfer of UWA ownership to the applicant in 2016 was accomplished fraudulently, it would suggest that the beneficial owner of UWA has been the respondent throughout.

x) Analysis of Beneficial Ownership of UWA

157I find that there is overwhelming evidence that the respondent, not the applicant, was the beneficial owner of UWA for the years 2014 to 2020. In reaching this conclusion, I also find that the respondent relied on documents that he knew, or ought reasonably to have known, were fraudulent. I find that the respondent fraudulently transferred his ownership of UWA to the applicant in 2016.

158I note that Ms. Barrett, who has expertise in fraud, provided a detailed 8-page analysis at Appendix E of her expert report which concluded that the respondent is the beneficial owner of UWA. I did not find that Ms. Barrett's findings, assumptions and conclusion about UWA were disturbed in cross-examination. A careful examination of the documentary and viva voce evidence at trial reaches the same conclusion as Ms. Barrett concerning the beneficial ownership of UWA.

159I find that the respondent presented an incoherent and improbable narrative about UWA belonging to the applicant that was contradicted at every turn.

160In his October 27, 2016 affidavit, sworn in the context of trying to set aside the Uncontested Judgment of Justice Myers, the respondent did not state anything about the applicant's beneficial ownership of UWA. He simply stated that he did not "directly or indirectly" own UWA. Then, in his January 31, 2017 affidavit, he deposed that the applicant was the beneficial owner of UWA, and that he was able to secure a letter from Greenland Limited confirming that the applicant was the owner.

161In January 2017, the respondent did not state that the applicant had pre-signed documents in 2012 permitting him to transfer ownership to the respondent in subsequent years.

162The applicant found out, by obtaining documents from Equiom (the parent of Greenland, and the successor of Heritage Fiduciary Services that offered fiduciary and corporate secretary services to UWA) that, in November and December 2016, documents had been prepared purporting to transfer the shares of UWA to her. I note that late 2016 is between the time of the respondent's October 27, 2016 and January 31, 2017 affidavits.

163At trial, the respondent stated that he actually obtained the Tan Affirmation from Mr. Stock, not directly from Greenland Limited. But Mr. Stock testified that he does not recall the Tan Affirmation or sending it to the respondent.

164Equiom determined the Tan Affirmation to be a forged document. Equiom stated that the beneficial owner of UWA was the respondent. The Singapore police investigated the matter and, although the respondent has not been charged criminally in Singapore, no evidence was presented at trial that the investigation has been closed or has reached a different conclusion.

165Regarding the Tan Affirmation, I would add the following reasons as to why it is a fraudulent document:

• It is not on company letterhead and there is no address or contact information referenced
• It is entitled "To Whomsoever It May Concern" rather than to a specific person or organization
• It purports to be an attestation but it is not in the form of an affidavit (the writer does not swear an oath and there is no Commissioner of Oaths, Notarial Seal or even a witness signature)
• There is no reference to Equiom, Greenland's parent company
• There is no reference to Michelle Tan's position with Greenland other than "Authorised Signatory"
• There are several punctuation errors
• The language is imprecise and appears to be written by someone unfamiliar with the subject matter ("Agriculture in Africa, investment in Lakhtakia family business companies")
• The document references issues that appear irrelevant or out of place ("To date the returns from these investments including income and profits earned have not been accounted for by Jyoti Lakhtakia")

166The respondent's evidence concerning UWA was totally inconsistent, particularly as to when he stopped having dealings with UWA:

• Was it 2012 (what he settled on at trial), 2014 (what he stated in his 2017 affidavit), or 2016 (what he stated in his trial affidavit)?
• If it was after 2012, why was the respondent still acting as a guarantor in 2013 for UWA's revolving credit facilities?
• If it was after 2014, why was the respondent acting as a guarantor in 2015 for the real property purchased by UWA in London, UK as facilitated by Mr. Stock?
• If it was 2016, why were large payments for Coal Trade India corporation being directed to UWA's HSBC Singapore bank account in 2017 (as will be discussed below)?

167Further, if UWA was always beneficially owned by the applicant, why was $323,314 transferred from UWA to the respondent's bank account in September 2015, a few days before the closing of his house purchase in Halton Hills, Ontario?

168The respondent disavowed knowledge of the HSBC Client Investment Profiler that indicated that his net worth was between USD $30M and $100M. The Client Investment Profiler has the respondent's signature on it and the author confirms a high knowledge of investing including with respect to commodities and bullion, all of which suggest that the respondent, not the applicant, signed on behalf of UWA.

169The respondent's submission that he is not the beneficial owner of UWA is also undermined by an email dated August 25, 2011 where the respondent states that UWA is the holding company of Coal Trade India.

170An entire chapter could be written about the respondent’s failure to produce complete or timely disclosure throughout these proceedings – not just about UWA, but about all his financial holdings. But I will limit myself to a few paragraphs. In Colucci v. Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, at para. 48, the Supreme Court affirmed that “disclosure is the linchpin on which fair child support depends and the relevant legal tests must encourage the timely provision of necessary information,” and in Roberts v. Roberts, 2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11, the Court of Appeal described the duty to disclose financial information as “[t]he most basic obligation in family law”.

171Despite multiple disclosure orders, including the specific order of Justice Shore that the respondent produce financial statements and supporting documentation for UWA from 2014 to date, along with copies of bank and related financial information, the respondent steadfastly refused to produce such documentation taking the position that, as the company belonged to the applicant, he did not have an obligation to produce anything. Having found multiple factors that point to the respondent's control over UWA, I draw an adverse inference against the respondent for failing to produce disclosure: Smith v. Pellegrini, 2008 CanLII 46927 (Ont. S.C.), at para. 34; Blatherwick v. Blatherwick, 2015 ONSC 2606, at paras. 107, 331; Colivas v. Colivas, 2017 ONSC 4730, at para. 194.

172In particular, I find that the respondent feigned cooperation by emailing Mr. Lee on February 12, 2021 that he was providing his full and unequivocal consent to releasing UWA's banking records, while also directing his Indian divorce lawyer to write to HSBC Singapore and block any release of bank information. I do not find the respondent's suggestion that his Indian lawyer acted without instructions to be credible. No documentation was provided in respect of the respondent's purported follow-up email to Mr. Lee advising that the original February 12, 2021 court decision in India had been reversed on February 16.

173As discussed earlier, the respondent's own expert, Mr. Cochran, resigned due to the respondent's failure to provide full disclosure and be truthful. Mr. Cochran was blindsided in November 2020 when Ms. Barrett provided him with hundreds of pages of documentation that the applicant had obtained through court orders in New York and Tennessee about the respondent's business dealings. The respondent's attempt to discredit his own expert by calling him a quitter backfired, and demonstrated the lengths to which the respondent was prepared to go to mislead the court.

174The respondent's claim that the applicant was the operating mind behind UWA and its beneficial owner is inherently implausible. The parties met as students at the University of Windsor in Ontario. It seems unlikely that the applicant who obtained her B. Comm in 2004, and started working as an IBM consultant in 2005, would have the finances and wherewithal to incorporate a commodity trading business in the BVI with a Singapore bank account. It is far more likely that the respondent's father, older brother and Mr. Stock, who were already in the commodities and coal trading business, would provide some support for the respondent himself to establish the UWA business via his private banker Bala Ganesan in Singapore. We know that the respondent had learned to utilize bank accounts outside India for the remittance of funds as stated in his 2011 affidavit, which was provided in the context of Mr. Stock's divorce proceedings.

175Mr. Stock claimed that the beneficial owner of UWA was the applicant. I disbelieve Mr. Stock on this point and find that he was not credible at key points, such as when he claimed to not recall the respondent's 2011 affidavit. Mr. Stock's refusal to admit the obvious, that the coaltradeindia@rediffmail.com address belonged to the respondent, weakened his credibility before this court. It also demonstrated his strong desire to protect his friend the respondent, someone whose father he had long known, and whose brother he had helped professionally. The respondent and Mr. Stock were also in a mutually beneficial arrangement when they both worked at Stemcor India. Mr. Stock received side commissions from Coal Trade India, and loaned funds of up to USD $7 million to the respondent, apparently without any loan agreement.

176The respondent's answer that he did not follow up with Equiom or the Singapore Police after they found the Tan Affirmation to be fraudulent speaks volumes. It was the respondent, after all, who relied on the Tan Affirmation to claim that the applicant was the UWA beneficial owner. If an independent third party cast doubt on the respondent's assertion, it was incumbent on the respondent to follow up to correct the record.

177The respondent never explained another major contradiction. He denied having anything to do with the UWA share transfer documentation from late 2016 yet, in his trial affidavit, he states that he transferred the UWA shares that he held in trust for the applicant in 2016.

178Relatedly, the respondent did not explain why he admitted in his June 20, 2017 affidavit to having transferred his UWA shares to the applicant on November 28, 2016, but at the same time, denied having anything to do with the share transfer document of the very same date being sent to Heritage Fiduciary Services.

179I am not persuaded that Bala Ganesan did not appear at trial because of the applicant’s counsel’s letter to HSBC. He was on the respondent’s TSEF and appears to have been the respondent’s right-hand man in all his financial dealings. I draw an adverse inference against the respondent for failing to have Mr. Ganesan testify at trial.

180The respondent's arguments for why the applicant is the beneficial owner of UWA can be easily dismissed. He submits that, because the applicant obtained much of the UWA documentation which was produced at trial, it must mean that she was the true owner. This is plainly wrong as the applicant obtained UWA documentation primarily from American court proceedings, Equiom and the Singapore Police. The respondent never alleged, let alone demonstrated to the court, that these independent parties' conduct was biased or improper.

181The respondent's other major argument was self-serving. He claimed that the applicant must be the owner of UWA because that is what the share ownership documentation states. But that conclusion rests entirely on the authenticity of the underlying share ownership documentation which was contested as soon as the applicant received the respondent's UWA position in January 2017.

182For all the foregoing reasons, I find that the respondent is the beneficial owner of UWA.

xi) Should the income from UWA be attributed to the respondent?

183Section 18 of the Guidelines states that where a parent or spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the parent’s or spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the parent or spouse for the payment of child support, the court may determine income. Section 19 of the Guidelines explains how to impute income. See e.g. C.V. v. S.G., 2019 ONCJ 159, at paras. 334-8, 357-60. However, the party seeking to impute income must establish an evidentiary basis for such a finding: Homsi v. Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at para. 28.

184To determine the respondent's annual income derived from UWA, the expert started with an HSBC portfolio summary for UWA dated May 31, 2011 that showed a balance of USD $5.03 million. She then chose an annual rate of return of 5.15 % and applied it to the entire portfolio. She obtained the 5.15% figure based on it being the mid-point between the low (-0.5%) and high (10.8%) rates of return in the respondent's 2015 Client Investment Profiler based on the respondent's "aggressive" investment objective. Applying 5.15% against the USD $5.03 million yields USD $259,050 but, because the currency exchange rate varied from 2014 to 2020, it resulted in an annual investment income range of CAD $286,000 to CAD $348,000 for UWA.

185In cross-examination, Ms. Barrett was criticized for applying the 5.15% figure to the entire USD $5.03 million portfolio when it was composed of only USD $637,070.38 in equities. The rest of the portfolio was made up of USD $4,658,793.20 in cash less USD $265,771 in “borrowings”. Respondent's counsel suggested that the correct approach was to apply a 0.01% rate of return to the much larger cash component, 5.15% to the equities component, and combine it with the negative 2.13% for the borrowing component, to arrive at USD $27,000, a far smaller annual income than the USD $259,050 as determined by the expert.

186The expert’s opinion was that it was methodologically sound to apply the 5.15% to the entire portfolio. She assumed, however, that the approximate USD $5.0 million in UWA assets existed throughout the entire period of review. Some money may have come in, some money may have gone out, but the assumption was that it roughly stayed the same. As for how money belonging to a corporation should result in it being considered personal income for the respondent, the expert explained that, so long as there was evidence that the respondent had access and control of those corporate funds and those funds were available, it was appropriate to attribute the income to the support payor.

187I have no concerns with Ms. Barrett's methodology for determining the respondent's income derived from UWA as it is consistent with the Guidelines. Accordingly, I accept as correct the income that she attributes to the respondent derived from UWA, as found in Amended Schedule 1 to her expert report.

d) Coal Trade India

188In Amended Schedule 1 of Ms. Barrett's expert report, the following annual income from Coal Trade India (CTI) was attributed to the respondent for the years stated:

	2020	2019	2018	2017	2016	2015	2014
CTI - Commissions	$2,140,000	$2,140,000	$2,140,000	$2,110,000	$620,000	$780,000	$1,460,000
CTI - Gunvor					$33,000	$45,000

189Ms. Barrett's export report at paragraphs 70 to 82 provided the following explanation that, for reasons explained below, I accept as accurate and adopt as findings of the court:

70. Coal Trade India was set up in 2005 by Mr. Mehra as an unincorporated business to facilitate coal sales to companies based in India. Coal Trade India would broker coal sales and would receive a commission on the deals. The commissions were deposited into Mr. Mehra's personal bank account(s) from 2005 to January 2007.

71. In 2005, Mr. Mehra, on behalf of Coal Trade India, signed an agency agreement with U.S. based company Massey Energy Company ("Massey") as their exclusive agent to supply coal to the Indian market. Massey was later acquired by Alpha Natural Resources Inc. which was then subsequently acquired by Contura Energy Inc. ("Contura"). We understand that Coal Trade India has always held an active contract with one of these entities and continues to do so.

72. In order to obtain any information regarding the commissions earned by Coal Trade India, Ms. Lakhtakia was required to bring a motion against Contura in the United States District Court, Eastern District of Tennessee. From the documents that Ms. Lakhtakia received from Contura, we see that Contura paid Coal Trade the following amounts:

2011 US $1,700,051

2012 US $2,581,161

2013 US $2,209,364

2014 US $1,322,889

2015 US $606,118

2016 US $469,823

2017 (up to May) US $1,621,803

Our analysis of commissions earned by Coal Trade India is limited to this information.

73. From June 2015 to May 2016, we have been advised that Coal Trade India had a contract with the Gunvor Group of Companies to assist Gunvor in the development of its iron ore business in India, Iran and South Africa. The contract paid US $5,000 per month.

74. In January 2007, Mr. Mehra requested that Massey direct any payments payable to Coal Trade India to be made to a bank account held by UWA (Exhibit 26).

75. In 2009, Coal Trade India incorporated as Coal Trade India Pte. Ltd. in the country of Singapore. We have been advised that upon the company's incorporation, Mr. Phan Phua, an employee of Heritage Fiduciary company, was registered as the shareholder of Coal Trade India.

76. On July 25, 2014, Mr. Mehra was appointed a director of Coal Trade India and became the sole shareholder of the company at some point.

77. In 2016, Mr. Mehra requested that Alpha direct any payments payable to Coal Trade India to a new bank account held with DBS Bank Ltd. The beneficiary of this account is Coal Trade India (Exhibit 71).

78. On December 15, 2017, Mr. Mehra ceased to be a director of Coal Trade India and his brother, Mr. Rajneesh Mehra, was appointed as a director. On December 18, 2017, Mr. Mehra's shares of Coal Trade India were transferred to Mr. Rajneesh Mehra (Exhibit 72 and 73).

79. We are advised that on September 17, 2018, Coal Trade India was sold to Mr. Vishal Dilip Sankhe, however no sale details or documents have been provided. We are advised that Mr. Mehra and Mr. Sankhe are not arms' length.

80. Mr. Mehra has advised that he was a shareholder up to December 2017. Disclosure remains outstanding despite the Order of Justice Gilmore, the Order of Justice Stewart, the Order of Justice Kristjanson and the Order of Justice Shore. Therefore, we have assumed that Mr. Mehra is the beneficiary of all the known commissions during the period under review. Accordingly, we include all the commissions earned from 2014 to May 2017, including an estimate for the remaining months of 2017 until 2020 and the income earned from the Gunvor contract in Mr. Mehra's income.

190In cross-examination, Ms. Barrett was shown an email from Vishal Sankhe, CEO of the CTI corporation, to respondent's counsel dated January 8, 2021 stating, inter alia, that:

• He was attaching a report that the company had filed with the Singapore Police regarding major alleged breaches of the company's internal communications and confidential documents by the applicant and her father which have caused the company immense harm
• For the past three years or more he had been the full beneficial owner and shareholder of the Coal Trade India company
• The respondent was a nominee Director of the corporation from July 2014 to December 2017
• The respondent was also a nominee shareholder on behalf of his brother Rajneesh Mehra who was the beneficial owner since incorporation
• The respondent had not directly received any income from the corporation
• Approximately 7,500 Singapore dollars had been personally charged back to the respondent and remained due arising from the respondent's personal use of the corporation's American Express Centurion Charge card since 2019

191Ms. Barrett, the expert, was asked why income from the CTI corporation was imputed to the respondent for 2018, 2019 and 2020 despite Mr. Sankhe stating that he was the beneficial owner of the corporation. The expert answered that she had a number of concerns with Mr. Sankhe's email, and that despite asking for disclosure regarding the alleged sale of the company, nothing was provided to her.

192The expert was also asked about the date on which she determined that the respondent became a shareholder of CTI corporation. The expert identified a corporate profile document in an exhibit to her expert report that indicated the date as August 1, 2014.

193Respondent's counsel also showed the expert a document that purported to be a Nominee Declaration and Agreement dated April 15, 2009 indicating that the respondent was a nominee shareholder of CTI corporation and his brother Rajneesh Mehra was the beneficial owner. Applicant's counsel objected to the admissibility of the Nominee document alleging that it was a sham document that had been recently manufactured by the respondent. The document had not ever been disclosed previously, had not been provided to the expert, or shown to the applicant in her cross-examination contrary to the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (U.K.H.L.), which has been adopted in Canada: see e.g. Curley v. Taafe, 2019 ONCA 368, 146 O.R. (3d) 575, at para. 27.

194The respondent argued that the rule in Browne v. Dunn should not be strictly applied as the applicant had deposed in her trial affidavit that she deferred all specific income information to the financial expert. The respondent also suggested that the applicant had been given fair warning of the respondent holding his CTI corporation shares in trust for his brother, since the respondent had stated this in his trial affidavit.

195I ruled that the purported Nominee Declaration and Agreement document was inadmissible since: (a) it had never been previously produced by the respondent to the applicant or the expert despite multiple disclosure orders; (b) Justice Shore's TSEF provided a specific deadline of January 29, 2021 by which all documentary evidence to be relied upon was to be produced and the new document in question was not produced; (c) while the rule in Browne v. Dunn is flexible, it should not be relaxed in this case as admitting the document in question would be highly prejudicial to the applicant; and (d) although the respondent mentioned holding his CTI corporation shares in trust of his brother in his affidavit, he failed to append the Nominee document as an exhibit to this affidavit at the very point that it would have been most important and logical to do so. Accordingly, the Nominee document played no role in the court's deliberations on income and support.

196The expert was also asked to account for how she arrived at the annual income figures attributed to the respondent as a result of his holdings in the CTI corporation. The expert explained that, despite asking the respondent for the corporation's financial and banking statements, none were provided. However, through the court in Tennessee, the applicant was able to obtain the details of wire transfers representing commissions that were earned by the CTI corporation up to May 2017. The expert referenced commissions earned from Contura and Massey, the latter of which was acquired by Alpha Natural Resources.

197The expert explained that the supplier of the commodity (such as coal) was CTI corporation which issued an invoice. Contura or Alpha subsequently paid CTI corporation by wiring funds into UWA's HSBC Singapore bank account and, in later years, into a DBS Bank account.

198Given my earlier finding that the beneficial owner of UWA is the respondent, the fact that payments for CTI corporation's invoices are going into UWA's HSBC Singapore bank account (where the respondent is the bank's customer) is consistent with the expert's conclusion that the respondent is the beneficial owner of CTI corporation, and not his brother who is not associated with UWA.

199The expert also confirmed that she did not account for expenses in relation to the commission figures because she asked for disclosure but did not receive any.

200Finally, although this pertains to the unincorporated Coal Trade India, and not the CTI corporation, I note that the respondent described himself as the C.E.O. of Coal Trade India in his 2007 instructions to Massey Energy to remit funds to UWA's bank account at HSBC Singapore. I draw an adverse inference from the respondent's failure in his trial affidavit to mention that he acted in this capacity. Instead, the gist of the respondent's evidence regarding Coal Trade India is that his brother Rajneesh Mehra has always owned Coal Trade India, and has been its CEO.

201The annual income attributed to the respondent by the expert arising from Coal Trade India - Commissions / Coal Trade India - Gunvor as indicated on Amended Schedule 1 is significant. However, nothing arose in the cross-examination of the expert Ms. Barrett to suggest that her assumptions and adverse inferences were unreasonable or incorrect. In my view, she was right to reject the respondent's submission that his brother was the beneficial owner of the company from its incorporation in 2009 to around 2017, and that Mr. Sankhe was the beneficial owner thereafter.

202I draw an adverse inference against the respondent for the failure of Mr. Sankhe to testify at trial. Mr. Sankhe's letter that the respondent relies upon is not even in the form of an affidavit. It is a letter expressly drafted at the request of the respondent on January 8, 2021 about a month before the commencement of trial. I note that the wording in Mr. Sankhe's email that the respondent "has not received directly any income from Coal Trade India Pte Ltd.", does not preclude the respondent receiving income from CTI corporation indirectly.

203I also draw an adverse inference against the respondent for failure of his brother Rajneesh Mehra to testify at trial. Given that the respondent claimed that his brother was the beneficial owner of Coal Trade India, a claim that was hotly disputed by the applicant, the brother's attendance at trial was critical in my view, and his absence must be interpreted squarely against the respondent.

204I see no reason to set aside or vary the expert's conclusions about the income she attributes to the respondent from Coal Trade India in its unincorporated or corporate form, or through its relationship with Gunvor. The expert’s methodology is well supported by the Guidelines.

e) Green Valley Agro

205Green Valley Agro was incorporated in Ethiopia in 2011. The respondent held a minority shareholder position in this company. However, when the company was sold in 2016 to Saudi Star Agricultural Development for Ethiopian Birr 27,573,000 (approximately $1.65 million), the expert attributed $1.65 million to the respondent’s income for 2016. The respondent disputes that the sale occurred.

206The expert explained that, based on the limited information that she had about the sale transaction, the majority shareholding in Green Valley Agro was held by GV Energy, as of December 31, 2013. Then somehow, the shareholding changed. She asked for an explanation in her production letter to the respondent but did not receive a satisfactory explanation. She also understood that Green Valley Agro received funds from UWA and Star Rock Capital.

207The expert was cross examined on the authenticity of the shareholder resolution document regarding the company sale which allegedly took place on July 22, 2016. The expert considered it an authentic document and even though it was stamped with the word DRAFT, she relied on it to indicate that the sale went through. The signature of a "Harinder Sethi" appears as the signatory for three of the five signatories to the shareholder resolution document. On July 11, 2016, UWA advanced a power of attorney for Mr. Sethi to effect the sale. The expert noted that, even though there was no signature on the line in the DRAFT shareholder resolution for "Mr. Said Hussein", one of the shareholders, there was a stamp affixed on the signature line with an initial in handwriting through the stamp.

208In closing submissions, the respondent relied upon an email dated December 8, 2020 from Mr. Sethi which claimed that the applicant represented to him that she owns Green Valley Agro through her holding company UWA. The email also purported to confirm that the documents marked DRAFT of an alleged sale of the company to Saudi Star "seem[ed] unauthentic, untrue and illegal" and that no such sale agreement occurred. It does not appear that respondent's counsel cross-examined anyone about this email at trial but, in any event, I draw an adverse inference against the respondent based on Mr. Sethi not testifying at trial. One would have thought that, on an issue where the expert was adding $1.65 million to his income, the respondent would have insisted on Mr. Sethi attending trial to set the record straight.

209With respect to Green Valley Agro, I find that the expert reached a reasonable conclusion in her report about the income attributed to the respondent.

f) Gorilla Finance Loan

210The expert attributed $740,000 to the respondent's 2015 income as a result of a loan from Gorilla Finance that appears to have not been paid back by the respondent. The expert report explained that Harpreet Singh, who testified at trial, was the 50 percent owner of Gorilla Finance. Mr. Singh acknowledged that he provided a loan of $740,000 to the respondent. The amount was comprised of a bridge loan of $700,000 for the purchase of 5 Meagan Drive in September 2015, and $40,000 which went to the respondent's payments for child support. The evidence was that the respondent subsequently obtained a mortgage from RBC which was registered on title.

211The dispute between the parties is whether the transaction is properly recorded as income, or whether, as the respondent claims, he remains indebted to RBC because Gorilla Finance only provided bridge financing which was paid back by the respondent.

212In cross-examination, respondent's counsel took the expert to the parcel register for 5 Meagan Drive which shows the respondent as having an ongoing mortgage with RBC for $750,000 as of February 16, 2016. Counsel suggested that because the register also shows the registration of a different charge (mortgage) by a "Robert Micheli" on September 16, 2015, followed by the deletion of the Robert Micheli charge on February 2, 2016, this was indicative of the respondent paying off his bridge financing loan to Gorilla Finance. It would follow that if the respondent paid off his bridge loan to Gorilla Finance and still had the RBC mortgage, the Gorilla Finance loan should not be attributed as income to the respondent for 2015.

213Ms. Barrett maintained her position that the $740,000 loan was properly treated as income. She indicated that the respondent was given a full opportunity to explain the Gorilla Finance transaction but failed to do so or provide sufficient documentation. She also pointed out that there was no dollar figure indicated on the "Robert Micheli" mortgage on the parcel register. While it is true that, in his most recent financial statement dated January 20, 2021, the respondent removed the Gorilla Finance loan and only showed the RBC mortgage, on his previous financial statements, the respondent listed both the Gorilla Finance loan and the RBC mortgage. Respondent's counsel claimed that the respondent listed both debts on his previous financial statements in error. Ultimately, Ms. Barrett had not received satisfactory documentation concerning the alleged payback of the Gorilla Finance loan, nor had the respondent adequately answered her questions. Accordingly, she continued to list the Gorilla Finance loan of $740,000 as income for the year 2015.

214Harpreet Singh provided an affidavit for trial. In it, he states that "I advanced a bridge loan of approximately $700,000 through Gorilla Finance to Vineet for the purpose of purchasing a house located at 5 Meagan Drive. This loan was later replaced by an RBC Mortgage."

215When asked at trial whether the respondent paid back the money that was loaned, Mr. Singh answered "I don't have that answer but he wouldn't - I don't - I don't know exactly when he would have paid."

216I find that a mystery continues to surround the Gorilla Finance loan. The responsibility for the mystery lies with the respondent. He could have provided Ms. Barret with all the relevant documentation but he did not. He could have explained the relationship, if any, between Robert Micheli and Gorilla Finance but he did not. Most tellingly, Mr. Singh could have simply stated in his affidavit or at trial that the respondent paid back the $740,000 loan, but he did not.

217I find that there is no reason to alter Ms. Barrett's conclusion that the $740,000 Gorilla Finance loan is a benefit that was granted to the respondent without any evidence of payback. It is therefore properly treated as income attributable to the respondent for the year 2015.

g) Rajvin Ltd.

218In the expert's Amended Schedule 1, she attributes between $242,000 to $294,000 annually to the respondent for the years 2014 to 2020 arising from Rajvin Ltd. The respondent disagreed with the attribution of income as he claimed that the company was held by his brother.

219Ms. Barrett conceded that she had no documentation to suggest that the respondent was a director or shareholder of Rajvin Ltd., however, she was advised by the applicant that the company is or was owned by the respondent.

220The expert had documentation of a Rajvin investment portfolio from February 2011 managed by Merrill Lynch worth approximately USD $4.2 million. The expert also had a copy of an email sent from a representative from Clariden Leu Ltd., a private bank based in Switzerland, that was only addressed to the respondent, and not to the respondent's brother, the alleged owner. The email stated, "Hi Vineet, kindly find the attached details of the portfolio. I have updated the portfolio on Excel. I would recommend to sell the portfolio and pay down the loan." As she did with UWA, the expert applied a 5.15% rate of return assumption to the Rajvin portfolio (based on the respondent's 2015 Client Investment Profiler) yielding an annual return of USD $219,217 which, due to exchange rate fluctuations, resulted in the range specified in the Amended Schedule 1.

221The expert was shown a letter dated February 18, 2019 from a company called GS Impex Pte Ltd based in Singapore. The one-page letter stated that the company had been engaged in business activities in the field of wholesale trading of goods and that it had multiple relationships with "Mr. Raj Mehra", presumably the respondent's brother, for over 20 years. The letter stated that Raj Mehra formed a company incorporated in the Cayman Islands named M/S Rajvin Limited and engaged in the business of investing in shares, securities and bonds, and looking for prospective investors. GS Impex purported to be an investor in Rajvin to the extent of about USD $200,000, which funds were further invested under the guidance of Raj Mehra. The letter state that Rajvin was wound up in 2012. Following negotiations, Impex was still apparently owed USD $150,000 from Rajvin.

222The expert was asked why, if the company was wound up in 2012, she was still attributing income to the respondent for 2014 to 2020. She stated that she requested documentation such as bank statements, financial statements and organizational charts from the respondent but received no response. Ultimately, Ms. Barrett concluded on the basis of available information that the beneficial owner of Rajvin was the respondent, not his brother, and attributed income to the respondent for the years under review.

223While, at first blush, it may seem unreasonable to attribute income to future years from a company that was already wound up, the expert explained that it was not clear what actually happened with the portfolio of funds. I find that the Clariden Leu email directed to the respondent, not his brother, combined with words recommending that he sell the portfolio strongly suggest, the Impex GS letter notwithstanding, that the respondent was the beneficial owner of the portfolio. In her expert opinion, Ms. Barrett considered it proper to attribute income to the respondent and nothing in her cross-examination pointed to some better alternative.

224I find that the income from Rajvin Ltd. is therefore properly treated as income attributable to the respondent for the years under review.

h) American Express Expenses

225In the expert's Amended Schedule 1, she attributes between $93,530 to $252,636 annually to the respondent for the years 2014 to 2020 arising from "Charges to AMEX Centurion", a reference to a Singaporean American Express Centurion credit card purportedly used by the respondent, and other high net worth individuals invited to apply for the card. The annual card fee was 7,000 Singapore dollars (roughly CAD $6,500) as of 2019.

226After the respondent denied having control of the Centurion card, the applicant filed an application with a New York court seeking financial disclosure of the respondent's Black American Express Centurion credit card statements. The New York court ended up issuing a subpoena to American Express USA who delivered the credit card statements from June 30, 2013 to January 28, 2020 to the applicant. The applicant passed the statements on to her expert, Ms. Barrett.

227The expert disagreed with the respondent that the expenses on the statements were business related. The expert testified that the respondent provided inconsistent information as to which employer owned the card or what the expenses were for. The respondent advised that he held the card in his capacity as a Stemcor India employee and that the card was cancelled in 2015. Yet, the respondent also stated that the Centurion card was issued to Coal Trade India.

228The applicant also obtained a copy of the respondent’s completed American Express membership package which indicated that:

• The respondent was a director at Coal Trade India with a gross annual income of $500,000 Singaporean dollars ("S$").
• The card was for individuals, not businesses.
• A letter from HSBC Singapore confirmed that, as of April 24, 2013, the respondent's bank account held a balance in excess of USD $6.0 million.

229The expert indicated that, in 2019, the respondent requested an additional Centurion card to be issued to his banker, Mr. Ganesan.

230The respondent denied that the membership application package was authentic or that he maintained a balance of over USD $6.0 million. He claimed that he did not know where the application package came from.

231The expert noted that the items charged to the Centurion card included first class air travel, luxury hotels, restaurants, shopping and such items as:

Lilac Blue, London

S $26,453

Cartier, New Delhi

S $18,647

Louis Vuitton, Mumbai

S $4,971

Royal Club, New Delhi

S $9,253

232The credit card statement in the respondent's name dated January 28, 2020 was entered as an exhibit at trial. Some of the purchases listed are:

Date of Purchase

Item / Location

Expense in Singapore dollars (S $1 = 94.3 Canadian cents)

January 3, 2020

Rightchoice Tours N Tra Mumbai

S $10,198.27

December 27, 2019

Ralph Lauren Store 351 Georgetown, Ontario

S $416.62

December 28, 2019

Chuck E Cheese #873 Concord, Ontario

S $594.71

December 30, 2019

Coach #00073577 Georgetown, Ontario

S $1,317.10

January 2, 2020

Prada Halton Hills

S $311.45

January 13, 2020

Dubai Duty Free, Termin Dubai

S $894.36

January 21, 2020

Armani Hotel Dubai

S $1,518.64

233The expert also appended 8 pages of Amex charges in her Initial Production Letter which identified apparent luxury purchases such as:

Burberry Bangkok Thailand S$3,592.60

Jimmy Choo London S$788.93

Tiffany and Co Etobicoke S$2,682.77

Chop Steak House Mississauga S$660.64

Paul Smith Mumbai S$1,185.29

234I asked the expert to explain how a credit card expense gets translated into income attributed to an individual. She stated that, for a person to be able to spend money on a credit card, it is with after-tax dollars that the person received from an income source. She requested an explanation for how the respondent paid for the expenses but none was provided. The items appeared personal in nature which would represent a benefit to the respondent that was taxable.

235Based on the expert's analysis, which I find consistent with the Guidelines, and the court's own review of the credit card expenses, I find the American Express expenses should be attributed to the respondent for the years in question.

i) Other Line Items on Amended Schedule 1

236With respect to line items on the expert's Amended Schedule 1 not covered thus far in my Reasons, such as the remaining items under "Adverse Inferences", and the items under "Unreported Income", the respondent's counsel either did not cross-examine the expert on these items or, to the extent that she did, it did not make a material difference to the expert's analysis and conclusion about the income attributed to the respondent for the years 2014 to 2020.

237The one exception was the Notice of Garnishment listed on Amended Schedule 1 which resulted in an attribution of $1.61 million to the respondent's income in 2016.

238The expert explained that she had relied on a letter from RBC to the respondent dated September 12, 2016 indicating that the RBC branch located in Milton, Ontario had received a Notice of Garnishment (Lump-Sum Debt) in the amount of $746,299 arising from the parties' family law proceeding. This was in respect of the Uncontested Judgment of Myers J. which, at the time, was not set aside. The $746,299 amount had been grossed up by a factor of 1.1519 based on a tax rate of 53.53% to $1.605 million and rounded to $1.61 million.

239Counsel for the respondent suggested to the expert, and the expert agreed, that if the Notice of Garnishment was revoked because the underlying Uncontested Judgment was set aside, the attribution of income arising from the Notice of Garnishment would have to be backed out of the expert's income calculation for 2016. When asked to recalculate what the likely impact on the respondent's overall income for 2016 would be, the expert indicated that it would reduce the figure in her Amended Schedule 1 for 2016 by $3.0 million, so the revised figure for 2016 would be $7,870,000.

j) Conclusions re Respondent's Income

240In closing submissions, the respondent presented a chart which represented what his annual income would look like if the court adopted his position regarding each of the entities listed on Amended Schedule 1. For example, where the expert attributed millions of dollars for Coal Trade India, the respondent's alternate chart attributed no income arising from this entity. Similarly, where the expert had attributed $740,000 in respect of Gorilla Finance, the alternate chart listed zero dollars. The respondent's alternate chart showed annual income from UWA ranging from $31,000 to $37,000 on the respondent's alternate theory of calculating income attributable to UWA.

241If the court wholly adopted the respondent's position, his annual income for the stated years would be as follows:

	2020	2019	2018	2017	2016	2015	2014
Respondent	$213,000	$305,000	$387,000	$349,000	$430,000	$424,000	$295,000

242I note that the respondent's position, at the end of the trial, was significantly different from the position that he took just before trial in his trial affidavit, where he deposed that his Guidelines income for support purposes was:

	2020	2019	2018	2017	2016	2015	2014
Respondent	$99,000	$167,000	$185,000	$128,000	$109,000	$219,000	N/A

243As the respondent's position was contradicted by the preponderance of the evidence at trial and not supported by the independent expert who testified at trial, I reject the respondent's calculation of his annual income.

244The respondent submitted that before any weight can be attached to an expert's opinion, the facts upon which the opinion are based must be found to exist: R. v. J.-L.J., 2000 SCC 51, [2000] 2 SCR 600, at para. 59. I find that there was an ample foundation of facts which the expert carefully examined before she came to her conclusion. Of course, she also made a set of assumptions and drew adverse inferences based on the foundation of proven facts. I have no difficulty finding that Ms. Barrett's expert opinion can be relied upon even where she had to make a number of assumption and inferences in arriving at her ultimate conclusion on the respondent's global income. This is amply supported by the Guidelines.

245In closing submissions, the respondent did not argue that the expert was biased. Rather, the respondent simply disagreed that the evidence concerning UWA in its totality pointed to him being the beneficial owner. With respect to other entities that contributed to his annual income, he submitted that it was methodologically unsound for the expert to arrive at the numbers that she did by extrapolating from known information, for instance with respect to Coal Trade India or Rajvin Ltd. Essentially, the respondent was asking the court to disregard the expert in an area that was at the heart of her expertise - income determination based on the Guidelines - without any competing expert opinion. I found the expert to be prudent, methodical and to have carefully laid out her analysis and conclusions in her expert report and in her testimony at trial. She withstood cross-examination and provided well-thought out answers concerning the various entities that contributed to the respondent's global income.

246Based on the extensive evidence that was canvassed at trial, I find that the respondent's Guidelines income for the years listed should be as follows:

	2020	2019	2018	2017	2016	2015	2014
Respondent	$7,120,000	$7,280,000	$7,380,000	$6,900,000	$7,870,000	$7,020,000	$4,870,000

247The only significant difference between my findings and that of the expert in her Amended Schedule 1 is that I have reduced the respondent's income by $3.0 million in 2016 to adjust for the fact that the garnishment notice issued to RBC was presumably withdrawn when the Uncontested Order of Myers J. was set aside.

C. Applicant's Income

a) Description of Applicant’s Income

248No expert evidence was presented regarding the applicant's income. Instead, the respondent prepared a chart that summarized the applicant's income, based on the applicant's financial statements, and her Line 150 Income from her Income Tax Returns as follows:

	FS Aug 25, 2015	FS Dec 18, 2015	FS June 16, 2017	FS Jan 30, 2018	FS Mar 7, 2019	FS Apr 22, 2020	FS Jan 29, 2021
Income	$46,836	$18,048	$103,269	$149,181	$145,089	$173,689	$137,952
Line 150 Income	$22,983 (2015)	$82,482 (2016)	$135,742 (2017)	$219,589 (2018)	$219,589 (2018)	$239,958 (2019)	$165,000 from HSBC + other sources

249The Applicant provided the following breakdown of her income in the listed years:

Income

Employ-ment

Child Tax (UCCB)

Interest Investment

Rental Gross

Rental Net

Support

Other

Mgmt Adm Fee

Line 150 Total Income

2014

$1,200

$11,400 (Sandwich St.)

$4,527.58 (Sandwich St.)

$5,905

$4,043.52

$11,632

2015

$33,153.74 (Sandwich St.)

$19,507.28 (Sandwich St.)

$2,316.15 (Gross Self-employment / business)

$22,983

2016

$69,332

$960

$5,977.10

$44,500 (Sandwich St.)

$7,173.41 (Sandwich St.)

$4,043.52 + $1,243 (Office Expenses)

$82,482

2017

$108,062

$5,871.41

$13,600 (Sandwich St.) $39,600 (Mariner St.)

$4,705 (Sandwich St.) $15,620 (Mariner St.)

$1,484

$4,835 (Sandwich St.) $8,520 (Mariner St.)

$135,742

2018

$135,655

$8,748.59

$15,300 (Sandwich St.) $37,200 (Mariner St.)

$5,584.46 (Sandwich St.) $8,881.59 (Mariner St.)

$56,062

$4,657.37

$4,835 (Sandwich St.) $8,520.48 (Mariner St.) $4,915 (Professional Fees)

$219,589

2019

$165,919

$17,592.38

$15,250 (Sandwich St.) $40,500 (Mariner St.)

$5,208.79 (Sandwich St.) $12,873 (Mariner St.)

$38,364

$4,835 (Sandwich St.) $8,520 (Mariner St.) $3,616 (Professional Fees)

$239,958

250The respondent submitted that the applicant had not declared the following amounts of spousal support on her income tax returns:

• 2015: $22,860
• 2016: $7,000
• 2017 (January to June): $21,000; 2017 (July to December): $19,182

251The respondent also submitted that, given the applicant's extensive real estate holdings which should have generated rental income, greater income should be imputed to the applicant.

252The applicant was cross-examined on her real estate holdings over the last decade or so. I allowed cross-examination on this topic to proceed on the basis that such questions went towards: (a) whether the holdings could have generated rental income; (b) whether the applicant was entitled to spousal support; and (c) the applicant's credibility.

b) Sandwich Street in Windsor, Ontario

253The applicant purchased a condo in 2011 on Sandwich Street in Windsor, Ontario. The applicant stated that the money was gifted to her by her grandparents, which she gave to the respondent who gave the funds back to her to purchase the condo.

254The applicant confirmed that, over the years, she has derived rental income from Sandwich Street which was included in her financial statements, as described above.

c) Space Edge Office in Gurgaon, India

255The ownership of an office property in India became an issue at trial because the respondent wanted to impute income to the applicant, however, the applicant denied that she has any beneficial ownership over the property or that she received any rental income.

256To understand the Space Edge Office issue, it is first necessary to delve into the background of Indigo Power Ventures, a Canadian company incorporated by the applicant’s family. This company was registered as a corporation under the Canada Business Corporations Act, R.S.C. 1985, c. C-44, on July 29, 2010. The applicant testified that her father was the sole contributor of capital to the Indigo corporation. She denied that she had an ownership interest in the company even though on some financial statements she wrote that, as Director, she had either a one-third or one-quarter ownership interest. She claimed that she mistakenly believed that, as a director, she must put down an ownership interest on her financial statement but later understood that to be incorrect.

257The applicant testified that the respondent originally provided money to Indigo Power Ventures to purchase a gas station in Canada, but the deal fell through. Instead, the respondent, through UWA, transferred funds to Indigo Power Ventures to buy an office in India in August 2010. Additional funds were provided by the applicant's family members but those funds were paid back by the respondent in 2011. The office, called Space Edge Office, is located in Gurgaon, India. The applicant stated that she was on title, however, the property is being held in trust for Indigo Power Ventures because Indigo wrote a cheque for the purchase of the Gurgaon office.

258The applicant testified that she was a director of Indigo from the company's inception until she was formally removed as a director on December 15, 2017. However, she had resigned as director earlier in 2016 when she accepted a job with HSBC Bank Canada. She resigned as director to avoid breaching the bank's conflict of interest guidelines. In any event, the dissolution of Indigo occurred on May 21, 2016.

259The applicant disagreed with the suggestion that her financial statements were misleading because they suggested that the Space Edge Office was being held in trust for the Indigo corporation when, in reality, the respondent was the beneficial owner. The applicant testified that if and when Indigo Power Ventures is paid back, it will reimburse the respondent.

260The applicant also testified that the respondent is still in possession of this property, and runs his 25 or so businesses from there employing at least 30 staff.

261The applicant also disagreed with the suggestion that UWA and Indigo are one and the same and owned by the applicant and/or the Lakhtakia family.

262I note that the respondent did not push back on the suggestion that his businesses are run out of the Space Edge Office. There was no evidence that the applicant derives rental or other income from this office property in India.

d) Office Property in Manesar, India

263The applicant was also questioned about an office property in CyberWalk Technology Park in Manesar, India (near New Delhi) where the parties are jointly on title. The applicant explained that UWA transferred USD $890,000 to Indigo to purchase the Manesar property. She stated that the funds were sent to a builder, Gyan Marketing Associates, who listed the respondent and applicant as the primary and secondary account holders respectively. When the applicant retained a lawyer in India and attempted to obtain her half of the rental proceeds from the Manesar property for 2015 to 2017, she was advised by CyberWalk that she needed a "no objection" letter from the respondent before her half of the rent could be released to her. As the respondent never provided a "no objection" letter, the applicant never received any rental income from this property.

264The applicant further testified that she found out in January 2021 after receiving some court ordered disclosure from the respondent (specifically an Indian tax document called a 26AS which describes all the tax payor's income outside of employment) that the Manesar property was sold by the respondent in June 2018 without her consent.

265The applicant testified that she has made inquiries with the Manesar Land Titles office but, due to COVID and her not being physically present in India, she has not obtained further information. Her family law lawyer in India cannot assist her because, apparently for land title matters in Manesar, she needs to physically attend the Land Titles office and show her identification before the office will assist her. She has not been back to India since 2014.

e) Mariner Terrace in Toronto, Ontario

266A property in Toronto located at Mariner Terrace, was purchased by the applicant in May 2015 for $515,000. Initially, the applicant and her father were jointly on title, however, in May 2018, the title was transferred fully to the applicant. The applicant used the funds from the sale of the Heron condo in the UK to purchase the Mariner Terrace property outright. Initially, there was no encumbrance on the Mariner property because she paid for the purchase entirely in cash.

267The applicant testified that the Heron condo was gifted to her by the respondent. The respondent's friend, Matthew Stock, helped the respondent purchase the condo in 2010. It was purchased as a pre-construction condo in June 2010, placed in the applicant's name in September 2010, and ready for move in by September 2013. The Heron condo was sold in January 2015 for UK £1.2 million or CAD $1,664,000 and closed in March 2015.

268The applicant took $515,000 from the Heron condo sale proceeds to pay for the purchase of Mariner Terrace in Toronto. In October 2015, she obtained refinancing whereby CIBC bank provided her with $515,000 using Mariner Terrace as collateral to purchase a different property, Yorkland Boulevard, in Brampton, Ontario in November 2015.

269The applicant confirmed that she has derived rental income from Mariner Terrace from 2015 to the present, as included in her financial statements and described in the above chart.

f) Yorkland Boulevard in Brampton

270The purchase price for Yorkland was only $390,000, leaving a surplus of $125,000 from the CIBC refinancing. The applicant paid $100,000 to her father and used the rest for expenses. The applicant testified that her father needed some money so she loaned it to him but he then returned the $100,000 to her in two tranches of $50,000 in March and December 2016.

271After purchasing Mariner Terrace with the proceeds of sale from the Heron condo in 2015, the applicant explained that the balance of funds sat in a lawyer's trust account until 2020, at which point she moved the funds into investment accounts. Other proceeds from the Heron condo sale went towards the applicant's legal fees and a down payment on another condo, Summitridge Court in Brampton, Ontario.

272The applicant testified that, despite owning Yorkland from 2015 to August 2019, she never rented it out. She stated that, due to a combination of her work changing, moving downtown then back in with her parents, and dealing with her multi-jurisdiction family law proceeding, she was not able to successfully find tenants for the Yorkland condo in Brampton.

g) Summitridge Court

273The applicant purchased the Summitridge condo in July 2019 for $730,000 and sold her previous condo Yorkland for $530,000. The difference is $200,000. The applicant already had an outstanding mortgage on Yorkland of $167,000, so CIBC combined the amounts and provided her with a mortgage of $367,000.

274The applicant acknowledged that she had not rented out Summitridge from the date of its purchase in July 2019 until the present. The applicant indicated that it is her intention that Summitridge be her and N's primary residence. As of the date of trial, she lives at her parents' residence on Valleyside Trail in Brampton, Ontario, which has been her residence since September 2013.

h) 159 Dundas Street in Toronto

275The applicant claimed that she has no ownership interest in this property which is owned by her sister. She loaned $15,000 to her sister and her sister paid back this amount.

i) Sajan Tiwana

276Before I conclude my analysis of the applicant’s income, I wish to address an issue that was raised a few times at trial, whether the applicant was the owner of a gas station in Brampton.

277Sajan Tiwana was called to testify by the respondent on this point. If the point of calling Mr. Tiwana was to establish that the applicant is or was the owner of a gas station in Brampton, things did not go as planned. Mr. Tiwana provided an affidavit dated October 30, 2017 that expressed Mr. Tiwana’s intention to expose the applicant and her father who “cause[d] me extreme financial distress by fraudulent misrepresentation and duress”.

278Mr. Tiwana’s affidavit, on its face, stated that he leased a gas station in Brampton, Canada from Indigo Power Venture which was represented to him as a holding company of “United World Assets BVI (UWA)”, a Singapore based investment firm owned by the applicant and managed by the parties. The gist of Mr. Tiwana’s affidavit was that it was only upon meeting the respondent at a temple in 2017 that he learned that the parties had separated years earlier. He held the applicant and her father responsible for him having to pay $900,000 “as a penalty to terminate the lease agreement.”

279In cross-examination, Mr. Tiwana acknowledged that his affidavit was in error and that he, in fact, was the landlord, who leased land to Indigo. He paid $2.3 million for the property in 2010 and leased it out. He acknowledged that he borrowed money from Indigo in the amount of $421,300. Mr. Tiwana further acknowledged that his numbered company eventually signed a lease termination agreement with Indigo dated March 4, 2016. Whatever was negotiated was done with lawyers on both sides.

280I find that Mr. Tiwana provided no evidence that the applicant had anything to do with his business dispute with Indigo. However, he confirmed that he was the owner of a gas station in Brampton, not the applicant.

j) Determination of the Applicant's Income

281I find, based on the evidence at trial and the foregoing discussion, that the only adjustment to the applicant's income should be the addition of undeclared spousal support income.

282Whereas the respondent urged me to impute rental income in respect of Yorkland and Summitridge since the applicant did not rent out these properties, I find that the respondent did not provide proper opinion evidence concerning what those rents ought to have been. While the respondent appended a single-page letter from a real estate agent to his trial affidavit, on the objection of applicant's counsel that the respondent was trying to provide opinion evidence without having a property qualified real estate appraiser testify, respondent's counsel withdrew her question. Accordingly, the court was left without proper evidence of what the rents should have been, or the net income that the applicant ought to have received had she rented out the Yorkland and Summitridge properties.

283Accordingly, I would only add $22,860 to the applicant's income in 2015, $7,000 in 2016, and $40,182 for 2017, all of which derive from adding undeclared spousal support. The parties did not make submissions on whether to gross up these amounts.

D. Conclusion re: the Parties' Incomes

284I find, after adjusting the applicant's income, and having previously determined and adjusted the respondent's global income, the parties' incomes for 2014 to 2020 for support purposes is:

	2020	2019	2018	2017	2016	2015	2014
Applicant	$165,000 from HSBC + other sources	$239,958	$219,589	$175,924	$89,482	$45,843	$11,632
Respondent	$7,120,000	$7,280,000	$7,380,000	$6,900,000	$7,870,000	$7,020,000	$4,870,000

E. Child Support and Section 7 Expenses

285The applicant requests that child support payments of $20,000 per month be ordered from January 1, 2015 and ongoing child support be based on the income of the respondent as determined by the court.

286The respondent does not dispute paying child support but takes exception to the expert’s assessment of his annual income.

287In D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 38, the Supreme Court of Canada affirmed the core principles of child support which include: “child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent”.

288Sections 33(7) of the Family Law Act describe the purposes of a child support order:

Purposes of order for support of child

(7) An order for the support of a child should,

(a) recognize that each parent has an obligation to provide support for the child;

(b) apportion the obligation according to the child support guidelines.

289Section 4 of the Guidelines indicates how to deal with payor incomes over $150,000:

4. Where the income of the parent or spouse against whom an order for the support of a child is sought is over $150,000, the amount of an order for the support of a child is,

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the parent’s or spouse’s income, the amount set out in the table for the number of children under the age of majority to whom the order relates,

(ii) in respect of the balance of the parent’s or spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each parent or spouse to contribute to the support of the children, and

(iii) the amount, if any, determined under section 7.

290The applicant provided a number of DivorceMate calculations. The applicant recognized that the Guidelines Table amount may be inappropriate for payor incomes over $150,000. Still, based on the respondent’s income of $7,160,000 and the applicant’s income of $239,958, the monthly Table child support amount is $51,771. In her draft order, the applicant is requesting the sum of $20,000 per month commencing January 1, 2015 and each month thereafter.

291In Plese v. Herjavec, 2018 ONSC 7749, 18 R.F.L. (8th) 292, affirmed 2020 ONCA 810, 49 R.F.L. (8th) 28, the parties separated after a 24-year marriage. The husband, whose annual income ranged from $5.5 million to $6.5 million, was ordered to pay child support of $14,233 per month based on a “summer only” formula for an adult child attending university. In Colivas v. Colivas, 2017 ONSC 4730, the payor was required to pay $30,000 per month for 2013, where his monthly Table amount exceeded $67,000 against his annual income of almost $6.0 million: at paras. 323, 331 and 332.

292In the somewhat factually similar British Columbia case of Devathasan v. Devathasan, 2019 BCSC 661, 27 R.F.L. (8th) 388, appeal dismissed as abandoned, 2020 BCCA 209, a high-earning neurologist husband was ordered to pay monthly child support of $34,000, $29,052, and $16,000 against his annual income of $4.6 million (2016), $3.9 million (2017), and $3.1 million (for 2018 and following) respectively. In addition to the comparably high incomes, Devathasan similarly involved an applicant living in Canada applying for support from a high-earning husband living abroad (in that case, Singapore); a complicated lattice of income, assets, and loans; and attempts to resist full disclosure.

293I find that the amount of child support being requested by the applicant is supported by the case law on high-income earners. The respondent did not make submissions regarding the quantum of child support. In all the circumstances, including looking at the condition, means, needs and other circumstances of the child who is entitled to support, and the financial ability of each parent to contribute to the support of the child, I find that the applicant’s request that the respondent pay $20,000 in child support effective January 1, 2015 and each month thereafter to be appropriate.

294The issue of section 7 expenses was not raised in the evidentiary phase of trial, however, in closing submissions the applicant requested that the respondent pay to the applicant a 75% share of all special and extraordinary expenses for N even though this is far less than the respondent’s proportionate share, based upon the applicant filing proof of such expenses with the Family Responsibility Office. The respondent did not make submissions on section 7 expenses. I am prepared, in the circumstances, to order that the respondent pay 75% of all special and extraordinary expenses for N.

F. Spousal Support

295The applicant requests that spousal support payments of $20,000 per month be ordered from January 1, 2015 to October 31, 2020.

Entitlement to Spousal Support

296Sections 33(8) of the Family Law Act describe the purposes of a spousal support order:

Purposes of order for support of spouse

(8) An order for the support of a spouse should,

(a) recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse;

(b) share the economic burden of child support equitably;

(c) make fair provision to assist the spouse to become able to contribute to his or her own support; and

(d) relieve financial hardship, if this has not been done by orders under Parts I (Family Property) and II (Matrimonial Home).

297At trial, the respondent argued that the applicant is independently wealthy and that she did not really make any sacrifices during the relationship, nor was she sufficiently impacted by the separation to be entitled to spousal support.

298I disagree. I find that the applicant is entitled to support on a compensatory and non-compensatory basis.

299Compensatory claims are based either on the recipient’s economic loss or disadvantage as a result of the roles adopted during the marriage or on the recipient’s conferral of an economic benefit on the payor without adequate compensation: Kendra D.M.G. Coats et al., Ontario Family Law Practice, 2021 ed. (Toronto: LexisNexis, 2020), p. 522.

300Here I find that, prior to marriage in or about 2005, the applicant decided to stay in Canada following university graduation, but the respondent decided to return to India where, in 2006, he joined Stemcor India. When the parties got married in 2008, it had a disproportionate impact on the applicant. She left her job in Canada as a consultant with IBM and moved to India where she obtained a comparatively lower paying job. Following the birth of N in December 2013, the applicant took on child caring responsibilities that prevented her from furthering her own career.

301Non-compensatory claims involve claims based on need. “Need” can mean an inability to meet basic needs, but it has also generally been interpreted to cover a significant decline in standard of living from the marital standard: Coats, at p. 523.

302Here, the marriage was not particularly long, about 6 years, but based on the evidence at trial, there was a drop in the applicant’s standard of living after separation up to about 2018. The applicant became pregnant and gave birth to the parties’ child in December 2013. The applicant changed countries following separation in November 2014 in fairly dramatic circumstances (as discussed below) and had to resettle in Canada with a very young child. Her evidence was that it was only in May 2016 that she commenced employment again with HSBC Bank Canada earning $88,000. Her evidence, which I accept, is that her contemporaries at IBM were earning six-figure salaries a decade later from when she started with them as an IBM consultant in Canada in 2005.

303I find that the separation left the applicant in need of financial support and that the respondent had the means to pay for such support.

304I find that the parties’ marriage, the birth of N, child care responsibilities, and the moves back and forth between Canada and India, had a far greater impact on the applicant than the respondent who suffered no economic disadvantages as a result of the marriage or its breakdown. See Dewan v. Dewan, 2012 ONSC 503, 19 R.F.L. (7th) 132, at para. 115.

Quantum of Spousal Support

305Section 33(9) of the Family Law Act provides that the court shall consider the circumstances of the parties in determining the amount of support as follows:

Determination of amount for support of spouses, parents

(9) In determining the amount and duration, if any, of support for a spouse or parent in relation to need, the court shall consider all the circumstances of the parties, including,

(a) the dependant’s and respondent’s current assets and means;

(b) the assets and means that the dependant and respondent are likely to have in the future;

(c) the dependant’s capacity to contribute to his or her own support;

(d) the respondent’s capacity to provide support;

(e) the dependant’s and respondent’s age and physical and mental health;

(f) the dependant’s needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

(g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

(h) any legal obligation of the respondent or dependant to provide support for another person;

(i) the desirability of the dependant or respondent remaining at home to care for a child;

(j) a contribution by the dependant to the realization of the respondent’s career potential;

(k) Repealed: 1997, c. 20, s. 3 (3).

(l) if the dependant is a spouse,

(i) the length of time the dependant and respondent cohabited,

(ii) the effect on the spouse’s earning capacity of the responsibilities assumed during cohabitation,

(iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

(iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

(v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,

(v.1) Repealed: 2005, c. 5, s. 27 (12).

(vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and

(m) any other legal right of the dependent to support, other than out of public money.

306Section 34(1)(f) of the Family Law Act also permits orders for retroactive support.

307I also considered the provisions of the Spousal Support Advisory Guidelines (SSAG)⁵ and the Revised User’s Guide⁶ in respect of high income earners.

308As Justice Shore stated in Zahelova v. Wiley, 2019 ONSC 5024 at paras. 23 and 24:

23The SSAG’s do not apply when a payor’s annual income exceeds $350,000: see Elgner v. Elgner, (2010), 2010 CanLII 100055 (ON SCDC), 99 O.R. (3d) 687 (C.A.). The formulas and amounts set out in the SSAG’s are no longer presumptive once the payor’s income exceeds the “ceiling” of $350,000 of income. The Spousal Support Advisory Guidelines: The Revised User’s Guide (Ottawa: Dept. of Justice, 2016) states at p. 57:

The formulas are not to be applied automatically above the ceiling, although the formulas may provide an appropriate method of determining spousal support in an individual case, depending on the facts.

[24] With income above the ceiling, spousal support requires an individualized, fact-specific analysis, having regard to the legislative framework. There is further discretion given to the court in these circumstances. The SSAG’s can and have been used as a starting point for support in cases where the payor’s income far exceeds $350,000, but their use has been subject to an examination of the parties’ individual circumstances. [Emphasis in original.]

Duration of Spousal Support

309Under the SSAG, under the with child support formula, there are time limits for receipt of spousal support but they are more flexible and typically implemented through variation and review as follows: at the upper end of the range, the longer of the length of marriage, or the date the last or youngest child finishes high school; at the lower end of the range, the longer of one-half the length of marriage, or the date the youngest child starts full-time school.

310The length of the marriage was 6 years.

311The applicant withdrew her request for spousal support on November 9, 2020, so the spousal support claim is for 6 years (2015 to 2020), essentially the same as the length of the marriage.

312I note that property division is being decided by the court in India so no submissions concerning the relationship between net family equalization and spousal support were made. There was very little evidence presented at trial about the parties’ lifestyle for the 5 years, 2008 to 2013, that they lived in India.

313I find that the appropriate duration of spousal support is 6 years from January 1, 2015 to December 31, 2020.

Quantum of Spousal Support

314In Plese, the payor husband’s annual income was determined to be $5.9 million and the recipient wife’s was $679,725: at paras. 276, 296. The mid-range of spousal support under the SSAG was $178,664 and the court ordered Mr. Herjavec to pay $125,000 per month: at paras. 333, 344.

315In Plese, the Court of Appeal also confirmed, in respect of its earlier Halliwell decision:

57Halliwell does not require the court to impute the payor’s income at the mid-way point between the SSAGs “cap” and the payor’s actual income. Rather, Halliwell, at para. 116, emphasizes what the SSAGs have always stated: “Above the $350,000 ceiling, an additional formula range is created: appropriate income inputs range anywhere from $350,000 to the full income amount. Entitlement is important to determine a location within that range”.

316In Zapfe v. Zapfe, 2019 ONSC 4065, 29 R.F.L. (8th) 321, on an interim support motion, Kurz J. found the payor husband’s annual income to be $2.09 million and the recipient wife’s annual income to be $30,000: at paras. 3-4. He found the wife’s claim to be non-compensatory in nature. He ordered the husband to pay $30,00 per month in spousal support using the SSAG to find a support figure “just over the high end of the mid-way point between $350,000 and $2,090,000”: at paras. 58-59.

317In Devathasan, cited earlier, the British Columbia court ordered the payor husband to pay $100,000 in monthly spousal support based on his deemed income which ranged from $4,623,000 in 2016 to $3,102,000 in 2019 and following years: at para. 368. After the division of assets has taken place, the court ordered that spousal support be reduced to $70,000 per month: at para. 375. The court noted a difficulty inherent in the use of the SSAG formulas in that they are income-driven, based on a comparison of the net after-tax disposable income available to each party, after payment of child support: at para. 350. An underlying premise is that spousal support is tax-deductible: SSAG, at pp. 74-75. This is the case for Canadian tax payers, but Dr. Devathasan paid taxes in Singapore and his spousal support payments were not tax-deductible: at para. 350.

318The respondent in the present case did not make submissions on the tax impact of various support orders and whether the support payments to the applicant would be tax-deductible.

319I find this is a case deserving of retroactive spousal support. The within application was commenced on August 26, 2015. For approximately 3 years, the respondent refused to attorn to the jurisdiction of Ontario. The respondent breached multiple disclosure orders that prevented the parties from determining their child and spousal support obligations without a full trial. I do not find any delay on the applicant’s part in seeking support but, to the extent there was any, I find the reasons for delay reasonable. I find that there was blameworthy conduct on the part of the respondent. The circumstances of the N are that she is deserving of child support, and I do not find that there would be potential hardship to the payor based on his income and financial circumstances: DBS, Colucci and Simone v. Van Nuys, 2021 ONCJ 652, at paras. 126-48.

320The applicant provided a number of DivorceMate calculations in support of her request for spousal support. The calculations show that the mid-range spousal support amounts according to the SSAG would be far higher than $20,000 a month:

Year Income Mid-Range Spousal Support

2015 $5,730,000 $166,702

2016 (omitted – should replace respondent’s income with $7,680,000)

2017 $6,900,000 $194,294

2018 $7,550,000 $209,908

2019 $7,310,000 $202,443

2020 $7,160,000 $198,248

321The applicant recognized that the SSAG amount may be inappropriate for payor incomes over $350,000. Still, based on the respondent’s income of $7,160,000 and the applicant’s income of $239,958, the monthly “with Child Support” low, mid and high amounts were $182,730, $198,133 and $213,536 respectively.

322Based on the above findings, I find an order of spousal support of $20,000 from January 1, 2015 to October 31, 2020 is justified.

G. Conclusions regarding Child Support and Spousal Support

323The parties agree that the respondent shall be given credit for his past payments of child support in the amount of $91,784, spousal support in the sum of $108,698, and $60,701 in uncharacterized support.

324I would attribute the $60,701 in uncharacterized support as a credit to the respondent’s obligation to pay spousal support.

325I find that the child support and spousal support orders requested by the applicant in her Draft Trial Order be ordered, with the exception that the respondent’s income for 2016 should be $7,680,000, not $10,680,000.

Trial Issue #2: Supervised Parenting

326The second major trial issue is whether the court should order that the respondent’s parenting of N be supervised. This issue was raised due to the applicant’s concern that if the respondent were to abduct N and take her to India or the United Arab Emirates ("UAE") (or some other non-Hague Convention jurisdiction), it would be very difficult to secure her prompt return.

327The respondent clarified at trial that with decision-making having been granted on consent to the applicant in 2019, his position has evolved and he is only seeking unsupervised visitation rights with N in Ontario.

328The parties each retained an expert to opine on the law and processes available in India and/or the UAE regarding the return of a child to her home country.

A. Expert Evidence of Jeremy Morley

329The applicant retained Jeremy Morley, an American law professor and international law practitioner, to provide an expert report concerning the international family law aspects of this case. Mr. Morley was asked to opine on the ability of the applicant to have the parties’ daughter returned to Canada if the respondent took the child to India, the UAE, or another non-signatory to the Hague Convention, and ignored an order from the Ontario Superior Court requiring the child’s return.

330Mr. Morley’s expert report was dated March 6, 2019 and constituted the bulk of his evidence-in-chief. His report was to be used for the trial that was to proceed in 2019 but was adjourned. At the trial before me in 2021, Mr. Morley confirmed that his opinion had not changed in the two years since he authored his report.

331Mr. Morley concluded that:

a) It would be exceedingly difficulty and mostly likely impossible for the applicant to secure the child’s return home;

b) Any court proceeding in India or Dubai seeking the child’s return to Toronto would be exceedingly slow, unpredictable and difficult, and would likely require the repeated personal presence of the applicant over extended periods of time;

c) The courts in India and the UAE will not normally honor or enforce Canadian child custody court orders;

d) The courts in India and UAE do not issue mirror custody orders;

e) India and the UAE are safe havens for international child abduction;

f) In attempting to secure the return of the child to Canada or to secure access to the child in India or the UAE, the mother would need to spend very considerable sums on legal fees, travel costs and other expenses; and

332Mr. Morley’s ultimate conclusion in his expert report was that:

If the Father is able to remove the Child from Canada in defiance of Canadian court orders, there is an extremely significant risk that the Mother will be unable to secure the Child’s return or even to obtain access to the Child. The facts with which I have been presented, if true, show that there is a significant risk that the Father will not comply with the terms of a Canadian court order. The likely destination countries are havens for international child abduction. The only way to effectively prevent the Father from taking the Child overseas is to require that the Father’s access to the Child be strictly supervised.

333The respondent did not contest Mr. Morley’s qualifications, experience or expertise to provide expert opinion evidence in the area that he was proffered.

334I accepted Mr. Morley as an expert qualified to provide expert opinion evidence before the Ontario Superior Court of Justice. Among Mr. Morley’s qualifications and experience relevant to this case are that he is:

• An American attorney admitted to the New York Bar in 1975 who has practiced law consistently thereafter
• A professor of international family law who has handled hundreds of matters concerning international child abduction and the Hague Convention
• The author of International Family Law Practice, a leading treatise on international family law, and of the Hague Abduction Convention, a treatise on the Hague Convention published by the American Bar Association, and of numerous articles on international family law
• A fellow of the International Academy of Family Lawyers, a past co-chair of the International Family Law Committee of the International Law Section of the American Bar Association
• A frequent lecturer to the judiciary and to other bodies on the topic of international child custody and abduction

335Notably, Mr. Morley was accepted as an expert by the Ontario Superior Court of Justice in Mahadevan v. Shankar, 2010 ONSC 5608, 98 R.F.L. (6th) 82, per Pazaratz J., where he provided an expert affidavit on securing the return of a child from India.

336He has also been accepted as an expert in several other Canadian courts including:

• Shroff v. Shroff, Supreme Court of British Columbia, Canada, expert report on child custody laws of India, 2013
• Wieczorek v. Bowman, Ontario Court of Justice, Canada, regarding child custody laws and procedures of Minnesota, USA, 2018
• Koshiba v. Honeyman, Alberta Court of Queen’s Bench, Canada, regarding risks of child abduction to Japan, 2018

337Mr. Morley has been accepted as an expert on international child custody issues in many jurisdictions including Canada, Australia, England and the United States in respect of securing the return of children from countries around the world including India, the UAE and Singapore.

338Mr. Morley has specific expertise in India as he has been retained by clients in the United States and around the world on child custody issues in India. He has researched Indian family law extensively and consulted with Indian and foreign lawyers about India-related issues. He has written numerous articles on Indian family law.

339Mr. Morley has also handled many international family law matters concerning the UAE, particularly the Emirate of Dubai. He has researched UAE family law extensively, especially concerning international child custody matters. He has also lectured in Dubai to international family law lawyers from around the world and consulted with lawyers globally concerning UAE-related issues.

340Stutee Nag, an attorney licensed to practice in the courts of India who was previously a law clerk in the Punjab and Haryana High Court in India, assisted Mr. Morley in the preparation of his expert report in this case.

341In his expert report, Mr. Morley indicated that India has chosen not to accede to the Hague Convention, the fundamental international treaty that protects the rights of abducted children and serves to have them returned properly to the country of their habitual residence. Over a hundred contracting states have adopted the treaty, but India has purposefully chosen not to do so.

342In 2009, the Law Commission of India issued a report concerning the need for India to accede to the Hague Convention. In subsequent years, the Indian government debated whether to adopt the convention but recently the Indian government announced that it would not do so for the express purpose of protecting the rights of Indian parents to take their children to live in India. None of the remedies provided in the treaty are available to deter abductions from Canada.

343Mr. Morley’s conclusion, based on his client and academic work regarding children abducted to India, is that “it is usually fruitless to initiate litigation there and I counsel against it unless the left-behind parent has great fortitude and very substantial funds.” He opined that “Indian courts generally do not enforce foreign custody orders. The law in India is that they are merely items to consider as part of an overall de novo custody review of the best interests of the child.”

344In cross-examination, Mr. Morley explained that, in India, the trial court or court of first instance would use a de novo custody review of the “best interests of the child test”, however, the Indian courts have tremendous discretion as to how they approach that test. Then the first court’s decision is reviewed by a first appeal court, and then a second appeal court. Mr. Morley described that it is “utterly unpredictable” as to whether the process would be expedited. He testified that there are many ways in which the parent who wants the child to remain in India can use the procedures of the Indian legal system to lengthen the time over which the court considers the issue. Then, given that a long time has passed, the Indian court determines that the child has become well settled in India so it would be unfair to return the child to the foreign jurisdiction.

345Mr. Morley disagreed that the current state of the law in India relating to the enforcement of foreign custody orders allows for the expeditious return of the child to the custodial parent through a writ of habeas corpus. He explained that the context of habeas corpus in India for international child custody cases is very different than in Canada or the U.S., in that the Indian court has pure discretion whether to hold a summary inquiry or detailed investigation into a case. India follows a procedure of detailed, bulky, written pleadings, followed by hearing arguments at length. Depending on the workload and other matters occupying the judiciary, it is impossible to define a timeframe for deciding a child custody dispute.

346Mr. Morley also disagreed with the suggestion that Indian jurisprudence since 2018 has evolved and allows for the issuance of a “mirror order” whereby an Indian court would issue an order that contains all the terms of an order of a foreign court. He indicated that, to date, mirror orders do not exist in Indian family law as doing so would contravene Indian law itself. Moreover, he clarified that there have been a couple of Indian cases where the Indian courts have asked courts in foreign jurisdictions to issue a mirror order, but that does not constitute the Indian court issuing a mirror order.

347With respect to Dubai, UAE, Mr. Morley indicated that the UAE has chosen not to accede to the Hague Convention. The U.S. government has reported to Congress that “The UAE does not adhere to any protocols with respect to international parental child abduction.” The UAE authorities persistently failed to work with the American Department of State to resolve child abduction cases. 50% of requests for the return of abducted children remained unresolved for more than 12 months.

348Mr. Morley further explained that the concepts of child custody in the UAE are completely different than a Canadian or American context and encompass age-specific and gender-specific criteria. He states, “in the pending case, if either party brings a case concerning the custody of the child in Dubai, and if the Father is a lawful resident of Dubai, the courts in Dubai will normally deem him to be the legal guardian of the Child with the right to decide where she should live”, and “if the Child is taken to the UAE, the Father will be able to place a travel ban on the Child leaving the country except with the Father.” The UAE does not enforce foreign custody orders or use mirror orders. There is no extradition treaty between Canada and the UAE.

B. Expert Evidence of Anil Malhotra

349The respondent proffered Anil Malhotra as an expert witness on custody, access and child abduction in India, and on the wrongful removal of children to India and their return to their country of origin.

350Mr. Malhotra is a senior advocate who has practiced law for the past 37 years in the Indian courts. He obtained his LL.B. degree in 1983 from Punjab University in Chandigarh, India, and his LL.M. from the University of London, U.K, in 1985.

351Mr. Malhotra provided a report dated March 14, 2019 that constituted the bulk of his evidence-in chief. I note that, at the time of his retainer, the respondent was represented by different counsel and that, in the retaining letter, Mr. Malhotra was asked to provide “an opinion regarding what safeguards are available in India to ensure the return of N to Ontario should Mr. Mehra remove N to India.”

352Initially, Mr. Malhotra had not included, in the curriculum vitae section of his report, a list of cases where he had been retained as an expert. In cross-examination, he testified that, in India he is not permitted under the Advocates Act to display all his work in a public document. However, he indicated that he would be prepared to provide a list of cases in which he has acted as an expert. Upon the court’s request, Mr. Malhotra supplemented his CV with this information.

353In cross-examination, Mr. Malhotra acknowledged that he has never been declared by a Canadian or American court to be on expert on custody, access and child abductions.

Applicant’s Challenge to Mr. Malhotra as an Expert

354Mr. Malhotra was accepted as a duly qualified expert by the parties on a previous version of the TSEF leading up the trial in 2019 that was adjourned. Different counsel acted on both sides at the time. On December 11, 2020, Mr. Benmor advised his counterpart that he accepted the qualifications of Mr. Malhotra as an expert. However, before me, Mr. Benmor sought to challenge the admission of Mr. Malhotra as an expert primarily on two grounds under the Mohan factors: his purported expertise was no longer necessary because the respondent had changed his plea of relief and no longer sought to travel with N to India; and because Mr. Malhotra was not sufficiently qualified in his purported areas of expertise. Mr. Benmor reminded me that the court is the ultimate gatekeeper of expert evidence.

355The inquiry for determining the admissibility of expert opinion evidence is divided into two steps. At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four factors set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9: relevance, necessity, absence of an exclusionary rule and a properly qualified expert. Evidence that does not meet these threshold requirements should be excluded. At the second discretionary gatekeeping step, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 24.

356On the first “necessity” argument, the applicant submitted that I should distinguish between the issue of whether the respondent is a flight risk, and the issue of whether the judicial system in India and elsewhere would promptly return N to Canada if she were taken without the applicant’s consent and in defiance of an Ontario judicial order. The applicant argued that Mr. Malhotra was not an expert on flight risk. And, with the respondent amending his relief to only seeking visitation rights in Ontario, the purported expert opinion of Mr. Malhotra was no longer necessary, as that related to N’s potential return to Ontario.

357I agree that the two issues are different, but I still find them related. Obviously, if the respondent has unsupervised access to N, he can more easily flee with N to India or Dubai or some other non-signatory to the Hague Convention and then, to the extent that that such jurisdiction will not facilitate her prompt return to Ontario, supervised parenting may be seen as necessary. I therefore reject the applicant’s suggestion that, because the respondent has changed the relief being sought, Mr. Malhotra’s evidence is not necessary.

358On the second “not sufficiently qualified” point, the applicant placed undue emphasis, in my view, on Mr. Malhotra not having been