Court File and Parties
COURT FILE NO.: FS-21-00020955-0000 DATE: 20220107 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Amit Sondhi AND: Ritika Sondhi
BEFORE: Madam Justice Papageorgiou
COUNSEL: I. Indrakumaran for the Applicant M. Goyal for the Respondent
HEARD: January 6, 2022
Endorsement
[1] The Respondent Ritika Sondhi (“Ritika”) brings a motion for retroactive and ongoing child and spousal support based upon various imputed incomes to the Applicant Amit Sondhi (“Amit”) during different time periods.
[2] Amit disputes that any income should be imputed to him. He asserts that he only earns employment income in the approximate amount of $80,000, and that he has no other sources of income. He also asserts that there is no basis for any spousal support, that Ritika has failed to make appropriate efforts to obtain employment, and that income should be imputed to her.
[3] For the reasons that follow I am imputing income to Amit, and awarding Ritika both ongoing and retroactive child and spousal support. I am not imputing any income to Ritika.
Background
[4] Ritika and Amit were married in India on April 17, 2009 pursuant to an arranged marriage. There is one child (the “Child”).
[5] Ritika sponsored Amit to immigrate and paid all costs associated with his immigration.
[6] They initially lived at the maternal parents residence for three years and then purchased the Matrimonial Home in May 2013.
[7] They separated on January 1, 2019 and continued to reside in the Matrimonial Home in separate bedrooms.
[8] They sold the Matrimonial Home in October 2020 and ceased living together at that time.
Entitlement to Spousal Support
[9] In making a spousal support order, the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including:
a. The length of time the spouses cohabited; b. The functions performed by each spouse during cohabitation; and c. Any order, agreement or arrangement relating to support of either spouse.
Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 15.2(4)
[10] An order for spousal support should:
a. Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; b. Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; c. Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and d. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[11] On a motion for interim spousal support, the following governing principles are applicable:
a. The Applicant’s needs and the Respondent’s ability to pay assume greater importance; b. An interim order should be sufficient to allow the Applicant to continue living at the same standard of living enjoyed prior to the separation, if the payor’s ability to pay warrants it; c. The court achieves rough justice at best—and does not embark on an in-depth analysis of the parties’ circumstances; d. The court should not unduly emphasize one of the Divorce Act statutory considerations above the others; e. The need to achieve self-sufficiency is often of less importance; f. Interim support should be ordered within the range suggested by the SSAGs unless exceptional circumstances indicate otherwise; g. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and h. Where there is a threshold issue, it becomes less advisable to order interim support.
McConnel v. McConnel, 2015 ONSC 2243, at para. 47; Faccio v. Faccio, 2018 ONSC 1225 (“Faccio”), at paras. 31-32, 37.
[12] In my view, Ritika has established a prima facie case for entitlement on a compensatory as well as needs basis for the following reasons:
a. The parties have had a ten-year marriage. b. Ritika was the Child’s primary caregiver throughout the marriage while Amit was advancing his career. This is based upon evidence before me as well as Justice Glustein’s June 29, 2021 endorsement where he concluded that: “..the evidence on the present motion demonstrates that (i) Amit did not share parenting duties either prior to or post separation.” c. Ritika’s ability to advance her own career was impacted by the fact that she took one-year maternity leave from March 2015 until March 2016. She was then in a car accident in December 2015 and was on sick leave and income replacement until January 19, 2017. She received settlement funds which she used to contribute to household expenses. d. She began working in July 2018 as a law clerk, was diagnosed with depression and anxiety in 2019 and was laid off by her last employer in October 2019. e. In or around October 2019 she started collecting Employment Insurance Benefits which she received until August 2020. Afterwards she collected CERB in the amount of $2,000 per month. f. Ritika has been depleting her savings caring for the Child, buying groceries, and paying for various expenses. Amit’s argument that she should be compelled to deplete the monies advanced from the sale of the Matrimonial Home are unpersuasive and not in accordance with the law. Amit also received his share of proceeds from the Matrimonial Home. He does not share parenting on an equal basis, is able to work full time and has been able to use his share to purchase a three-bedroom home. He has not had to deplete his share of the proceeds and there is no good reason why Ritika should have to. g. Ritika’s Employment Insurance Benefits ended in October 2021 and she currently has no income from any sources. h. Ritika had to leave her residence in November 2021 because she could not afford the rent. She has moved in with her mother where she pays $1,000 for rent. i. Although Amit argues that income should be imputed to Ritika on the basis that she should be employed, as noted above, on an interim motion, the need to achieve self-sufficiency is often of less importance. On August 13, 2021, Justice Shore ordered Ritika to provide evidence of her efforts to find employment and Ritika has provided evidence that she has applied for approximately 24 law clerk jobs since September 2021. j. As well, when considering her efforts to find employment, the fact of the pandemic must be taken into account. During the motion counsel advised that Amit and Ritika decided that the Child should continue with on-line learning this year instead of attending school. Prior to this fall, school was on-line. Ritika is the primary caregiver. Therefore, the Child is at home with her, she must supervise on-line learning and this would have a significant impact on her ability to find suitable employment. k. Amit has made bald assertions that Ritika is unable to keep a job and/or has been depleting her savings due to gambling at casinos. He attached two undated GPS tracking reports which showed her at a casino. I find this evidence unpersuasive. l. He also asserts that she is earning cash income through an alleged sanitation business based upon 2 e-transfers which she received on May 25, 2020 and August 10, 2020 in the amount of $300. Ritika has explained these transfers but in any event I find this evidence unpersuasive. m. Finally, although Amit claims that he cannot afford to pay spousal support because of his current expenses, the evidence establishes that he is currently living in a three-bedroom home which he shares with his mother and brother. As set out below, he is basing his assertion on the fact that he is paying all expenses associated with this home, even though the parcel register shows that he is only a 1% owner and his mother is a 99% owner. While he says that his mother has no income and cannot afford to pay any expenses, he does not explain how she was able to afford advancing funds for the purchase of this home or pay any of her personal expenses. As well, as set out below his own evidence is that his brother contributes to expenses associated with the home.
[13] I am satisfied that Ritika is entitled to ongoing spousal support from the date of this Order. I will address the amount below, after I address arguments related to imputation of income.
Retroactive Spousal Support
[14] Retroactive support may be ordered on an interim motion: Faccio, at para. 49.
[15] Factors which govern an award of retroactive spousal support include:
a. The extent to which the claimant established past need (including any requirement to encroach on capital) and payor’s ability to pay; b. The underlying basis for the support obligation; c. The requirement that there be a reason for awarding retroactive support; d. The impact of a retroactive award on the payor and in particular whether a retroactive order will create an undue burden on the payor or effect a redistribution of capital; e. The presence of blameworthy conduct on the part of the payor such as incomplete or misleading financial disclosure; f. Notice of an intention to seek to support and negotiations to that end; g. Delay in proceeding and any explanation for the delay; and h. The appropriate of a retroactive order pre-dating the date on which the application for divorce was issued.
[16] I am satisfied that there is an underlying basis for support, that Ritika has had to encroach on capital to support herself. Further there has been blameworthy conduct on the part of Amit regarding incomplete or misleading financial disclosure which I will discuss more fully in the section below related to imputation of income. In this case, Amit argues that Ritika never claimed any entitlement to spousal support until she brought this motion. Ritika says that made many requests, but as this issue is disputed it is best left for trial.
[17] In all the circumstances I am satisfied that retroactive spousal support should be ordered dating back to January 2021.
Child Support
[18] Ritika also seeks ongoing and retroactive child support dating back to the date of separation on January 1, 2019. As noted above, the parties were still residing together until November 2020.
[19] There is no question that Ritika is entitled to ongoing child support and the only issue is how much, taking into account any imputation of income to Amit.
[20] With respect to retroactive child support, in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 SCR 231 at para 5 the Court directed that courts should strive for a holistic view of circumstances before them and decide each case on the basis of its particular factual matrix. The court must consider the following four factors, none of which are determinative:
a. The recipient’s excuse for not seeking support sooner; b. The payor’s conduct in relation to his or her support obligation; c. The needs and circumstances of the child; and d. The hardship to the payor of a retroactive award.
[21] Ritika did not provide any compelling excuse for not seeking child support sooner, although this is only one factor and is not determinative.
[22] Although Amit claims that when the parties resided together until October 2020, they shared parenting, Justice Glustein has already determined that the evidence does not support this. My review of the evidence, which includes additional affidavits, not viewed by Justice Glustein, also does not support that the parties ever had a shared parenting arrangement.
[23] Although Amit claims that he paid the majority of groceries and other expenses related to the Child while they resided together until October 2020, the evidence does not support this. Amit provided evidence that he spent an average of $250 a month on groceries and that he did not keep track of all purchases made on a cash basis. Given that his groceries were generally purchased on a PC credit card, it makes no sense that he would have been making any significant cash purchases of groceries. $250 per month would not have been close to sufficient to support the groceries of Amit, his mother, Ritika and the Child.
[24] Ritika has produced evidence that she spent approximately $23,000 on expenses related to the Child, compared to Amit’s evidence that he spent approximately $5,000 during this period.
[25] There are also concerns related to Amit’s payment of child support after October 2020. Amit paid child support but only based upon an alleged shared parenting arrangement which was found by Justice Glustein not to have ever existed. Justice Glustein specifically found that there was no basis for any set-off in his June 29, 2021 endorsement. I note that during the period when Amit was setting off his child support obligations, he was not actually sharing parenting and there was no basis for this.
[26] Regarding the alleged hardship to Amit, I have concerns about Amit’s statements as to his expenses and his income as set out below. In any event, there are currently still funds held in trust from the sale of the Matrimonial Home which can be used to pay any retroactive child support order.
[27] Balancing all factors, in my view it is just and appropriate that a retroactive child support order be made dating back to January 1, 2019.
Imputation of Income
[28] Based upon his notices of assessment, Amit’s income has been as follows over the last two years:
2019: 80,430 2020: 80,674.
[29] Ritika asks that income be imputed to him pursuant to section 19(1) of the Federal Child Support Guidelines which provides as follows:
19(1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
a. the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse; b. the spouse is exempt from paying federal or provincial income tax; c. the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada; d. it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines; e. the spouse’s property is not reasonably utilized to generate income; f. the spouse has failed to provide income information when under a legal obligation to do so; g. the spouse unreasonably deducts expenses from income; h. the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and i. the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
[30] The main sources of additional income which Ritika alleges is rental income from Amit’s brother who currently resides in the new home which Amit purchased in January 2021. She claims that the brother is or should be paying rent in the amount of $1,500 per month. She also claims he has earned no less than $3,000 per annum from an “IPTV business”.
[31] First, it is clear that Amit’s employment income is insufficient for him to pay all of the expenses which he has set out in his Financial Statement in the amount of $98,767.
[32] Ritika says that over the years, Amit’s brother has lived with them and when he does so, the brother pays cash rent. This is denied by Amit in his June 14, 2021 affidavit.
[33] However, in his affidavit dated May 28, 2021, Amit indicated that he is able to manage his expenses “with the help of his brother who lives with him” in response to a disclosure request.
[34] While his June 14, 2021 affidavit disputes that his brother continuously resided with them in the past, he admits that in January 2021, he moved to the new home with his mother and brother.
[35] Amit further indicated that his brother volunteers to pay for utility bills, groceries or credit card bills.
[36] Amit provided proof that his brother paid $1,000 towards Amit’s Mastercard on March 15, 2021, April 9, 2021 and June 7, 2021. Therefore, in 2021 at a minimum, his brother provided $3,000 towards expenses in addition to any amounts he volunteered for utilities or groceries.
[37] There are also some concerns about Amit’s evidence because of inconsistencies and various misstatements.
[38] First, in his financial statement dated May 6, 2021, Amit indicated that he owns as “sole property” the new home. The parcel register shows it was purchased for $730,000 with a mortgage of $560,000. Therefore, there was a $170,000 down-payment made.
[39] His June 14, 2021 affidavit indicates that he borrowed money to purchase this property from his sister, brother and friends. He does not say how much he borrowed from whom or provide any evidence supporting this other than his bald statement.
[40] It is odd that he would have been able to borrow any money from his brother given his evidence that his brother has been a student for several years, recently graduated from university, and his counsel’s submission that his brother is currently earning less than $30,000 per annum.
[41] As well, the parcel register for the new home indicates that Amit owns 1% while his mother owns 99% which is completely inconsistent with his sworn financial statement dated May 6, 2021.
[42] There are other inconsistencies in his affidavit evidence as well. In his December 23, 2021 affidavit he attaches part of his disclosure brief. In the portion of his disclosure brief dealing with section 7 expenses, Amit indicated that statements from his TD chequing account ending in 2285 from the months February 2019, July 2019, August 2019 and September 2019 are missing. No explanation is provided for why that is the case given that these statements can be printed from on-line banking or be obtained directly from his bank if he does not have on-line banking. Then in the portion of his disclosure brief dealing with his payment of utilities and household expenses from the same TD chequing account ending in 2285, he makes specific reference to details of payments from this account during the months of February 2019, July 2019 and August 2019 - months he previously said the statements are missing from.
[43] As well, at Exhibit D to his December 23, 2021 affidavit, he specifically attached a deposit account history from his TD account ending in 2285 which referenced the month of February 2019 - a month he said the statements were missing in his disclosure brief (contained in the very same December 23, 2021 affidavit). As well, this financial enquiry appears to be generated from an on-line banking search which indicates that it was an enquiry for all transactions from 01/01/2018 to 04/19/2021. Notwithstanding that he searched for all these transactions, he has only attached the results with respect to February 2019 and even this portion appears to be cut and pasted together. It is concerning that he has access to all of these statements on-line, said that he did not have access to them and did not provide disclosure of all of them.
[44] He also alleges in his December 23, 2021 affidavit that Ritika does not come to court with clean hands because she was “charged with fraud due to her involvement in withdrawing large sums of money from Bank of Montreal after depositing fraudulent cheques.” However, the Small Claims Court Statement of Claim issued April 9, 2012 attached in support of this allegation is merely a claim by the Bank of Montreal claiming the sum of $8,107.44 pursuant to an overdraft on an account Ritika shared with her sister. There is no allegation of fraud whatsoever in this Statement of Claim.
[45] In his June 14, 2021 affidavit, Amit states that his mother does not financially contribute to household expenses at the new home because she has no income and he believes it is the responsibility of the children to take care of their elderly parents. However, his December 23, 2021 affidavit states that his mother uses her savings to pay her own expenses. While it may be culturally customary for Amit to care for his mother, this does not trump his legal obligations to provide child and spousal support. Given his mother’s significant ownership of the new home and her ability to pay her own expenses using her savings, she should be paying a significant portion of the expenses associated with this home.
[46] Regarding the alleged income from an IPTV business, IPTV is a streaming service like Netflix. Amit’s evidence is that he purchased 5 subscriptions which he shares with friends so that they all benefit from the lower price of one person having one subscription. In my view, Ritika has not established on this record that he is running any business related to IPTV.
[47] Nevertheless, I am satisfied that income should be imputed to Amit such that any child or spousal support from January 2021 onwards should be based upon income of $98,767 for all of the reasons set out above in particular: a) This is the amount of his expenses which he is able to pay; b) His expenses vastly exceed his income; c) Amit has admitted that his brother helps with expenses; d) Amit’s mother has a significant ownership share of the property and as such she should be paying a significant portion of the expenses despite the cultural basis for his wish to support her; e) As noted above, I have concerns about Amit’s credibility given missing disclosure and inconsistencies set out above.
[48] I note that the divorcemate calculation provided in Ritika’s affidavit is based upon imputed income of $98,674 and Ritika’s 2021 income of $28,302 which is what she was earning when receiving government assistance. This divorcemate calculation shows a range of spousal support from a low of $563 to a high of $1,421.
[49] With respect to retroactive spousal support, I am awarding Ritika spousal support at the mid-range in the amount of $1,030 for 2021.
[50] With respect to ongoing spousal support in 2022, Ritika has not provided any calculations which take into account her current income of zero. Her notice of motion only requests ongoing support in the amount of $1,421. Given her current income of zero, the actual range of spousal support in the SSAG is from a low of $1,851 to a high of $2,345. Therefore, the spousal support which Ritika currently claims on an ongoing basis is below the lowest spousal support calculation in the SSAG. Ritika’s request is more than fair and reasonable and I am awarding it on an ongoing basis beginning February 2022.
[51] With respect to child support, the CSG directs that for the years 2021 and onwards when Amit’s imputed income is $98,767, his child support obligation is $900 per month. To the extent that child support he has paid during 2021 is below that, I am awarding retroactive child support.
[52] I have not found any basis to impute any income to Amit prior to January 2021.
[53] Therefore, for the years 2019 and 2020, I am calculating Amit’s child support obligation based upon his employment income (without any imputation of income) in the amount of $80,430 (2019) and $80,674 (2020), respectively, taking into account Ritika’s income of $45,771 (2019) and $28,302 (2020). His annual child support obligation for each of these years is therefore $749 in 2019 and $752 in 2020. To the extent that he has paid less than these amounts, I am awarding retroactive child support.
Conclusion
[54] Therefore, I order on an interim and without prejudice basis the following:
a. Amit shall pay Ritika interim spousal support commencing on February 1, 2022 and payable each 1st of the month thereafter; b. Amit’s spousal support and child support going forward shall be based upon imputed income of $98,767; c. Amit shall pay spousal support to Ritika in the amount of $1,421 per month commencing February 1, 2022. In the event Ritika becomes employed, she shall immediately advise Amit of the details whereupon the parties may address any changes which may be appropriate to the interim spousal support order; d. Amit shall pay retroactive spousal support for the year 2021 in the amount of $1,030 per month as well as $1,421 for the month of January 2022. e. Amit shall pay child support to Ritika commencing on February 1, 2022 in the amount of $900 per month. f. Amit shall pay retroactive child support calculated on the basis of $749 per month for 2019, $752 for 2020 and $900 per month for 2021 to the extent that there are any amounts outstanding taking into account these monthly required payments and any amounts he has already paid. The parties shall submit to my attention the calculation of any arrears owed based upon these calculations. If they cannot agree, then they may arrange a case conference. g. Any retroactive child and spousal support so ordered shall be paid directly from Amit’s share of the proceeds of sale of the matrimonial home currently held in trust. h. The parties shall prepare a draft order respecting this matter to my attention as well as a Support Deduction Order. i. The parties may submit cost submissions to my attention, no longer than 7 pages as follows: I. Ritika within 7 days; II. Amit within 7 days thereafter.
Released: January 7, 2022