Court File and Parties

COURT FILE NO.: FS-20-18003

DATE: 20220607

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Thi Thanh Tran

Applicant

– and –

Tom Khanh Tran

Respondent

Victor Pilnitz, for the Applicant

HEARD: Uncontested Trial - In writing

J. steele J.

Reasons for Decision

[1] This is an uncontested trial, heard in writing. Further to the endorsement of Justice Kraft, dated April 8, 2021, the applicant proceeded with a trial of her claims on an uncontested basis.

[2] The applicant seeks divorce, spousal support, imputation of income to the respondent, the continuation of a restraining order, and equalization of net family properties.

[3] The parties were married on May 14, 2014 and separated on July 4, 2020. The parties do not have children together.

Analysis

Imputation of Income for Spousal Support

[4] The applicant asks that the respondent be imputed income of $72,800.00. The applicant states that based on Trade Jobs in Canada, the average hourly wage of an electrician in Toronto is $35. Based on a 40-hour work week, the respondent’s annual salary would be $72,800.00.

[5] The same legal test applies for imputing income in spousal support cases as apply for child support purposes: Perino v. Perino, 2007 46919 (Ont. S.C.). Section 19(1) of the Federal Child Support Guidelines, SOR/97-175 provides that the court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where the spouse has failed to provide income information when under a legal obligation to do so.

[6] The respondent is a professional electrician with experience working in the field. The respondent did not file any responding materials in this proceeding, including a financial statement. The applicant argues that the circumstantial evidence supports the imputation of income. Specifically, she argues that the respondent’s income was sufficient to persuade Citizenship and Immigration Canada (“CIC”) that he is in the position to provide for the applicant and the applicant was issued a permanent resident visa as his spouse. Further, the applicant includes affidavit evidence from several friends who state that the respondent mentioned to them that he was an electrician earning more than $70,000.00 per year. The applicant’s evidence is that the respondent may also be earning rental income from a property he owns in Saint Catharines, Ontario. As an experienced electrician, I am satisfied that the respondent is capable of earning $72,800.00 per year and I impute this amount to him.

Spousal Support

[7] Section 30 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), imposes an obligation on every spouse to provide support for the other spouse in accordance with need, to the extent that the payor spouse is capable of doing so.

[8] The objectives that are to be achieved by a spousal support order include: (i) the recognition of any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown, (ii) the relief of any economic hardship of the spouses arising from the breakdown of the marriage, and (iii) as far as is practicable, the promotion of the economic self-sufficiency of each spouse within a reasonable period of time: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 15.2(6); FLA, s. 33(8).

[9] In this case the respondent had sponsored the applicant to Canada as a member of the family class. As part of the sponsorship application, the applicant states that the respondent would have signed the Undertaking of Assistance whereby he would have promised to CIC to support the applicant for 3 years after she became a permanent resident of Canada. The applicant became a permanent resident of Canada on March 9, 2018. An immigration sponsorship agreement is a factor in determining entitlement to spousal support: Kuznetsova v. Flores, 2016 ONCJ 203, [2016] O.J. No. 1912, at para. 52; Singh v. Singh, 2013 ONSC 6476, [2013] O.J. No. 4699, at para. 71.

[10] In Kuznetsova, the parties had been married for 19 months. The court imputed income to the sponsor of $50,800 and ordered that the sponsor pay indefinite spousal support in the amount of $967 per month. The court made the following comments pertaining to the spousal support application:

[44] Spousal support is not merely a consideration of needs and means. In determining the appropriate amount of spousal support, compensatory and non-compensatory considerations should be taken into account in an effort to equitably alleviate the economic consequences of the breakdown of the relationship. See Rioux v. Rioux, 2009 ONCA 569, [2009] 97 O.R. (3d) 102 (OCA). Entitlement can be based on compensatory, non-compensatory or contractual grounds. See Bracklow v. Bracklow, 1999 715 (SCC), 1999 715 (S.C.C.).

[52] Although an immigration sponsorship agreement is one factor to be considered in assessing spousal support, it is not determinative of the issue. It was found to be a strong factor in favour of ordering spousal support in Camilleri v. Camilleri, 2001 60971 (ON SCDC), [2001] O.J. No. 2602 (Ont. Div. Ct.); Cart-Pusey v. Pusey, 2015 ONCJ 382; Javed v. Kaukab, 2010 ONCJ 606 [4] and Gutierrez v. Petten, 2011 ONCJ 549.

[60] The existence of a sponsorship agreement can be a factor in extending the durational limits of the SSAG or ordering support at the high end range. See: The Spousal Support Advisory Guidelines, A New and Improved User’s Guide to the Final Version, Department of Justice Canada, March 2010, Chapter FV 7(b) by Carol J. Rogerson and D.A. Rollie Thompson, …

[11] The applicant has been unemployed since November 23, 2020. Based on the record before me, I am satisfied that the applicant is entitled to spousal support on the basis of need.

[12] The applicant seeks support at the high end of the range for 6 years. In determining the amount and duration of spousal support, the court is required to consider all the circumstances of the parties, including those specifically set out in s. 33(9) of the FLA.

[13] The parties were married for 6 years. The applicant is 32 years old and the respondent is 54 years old. The applicant is young and there is no evidence that she is incapable of working. Her evidence is that the respondent insisted that the applicant borrow money from her family and start working, instead of completing her college program. In or about 2016 the applicant obtained a work permit and started to work at “Time for Nails & Spa.” The applicant’s financial statement, dated June 30, 2021 states that she has been unemployed since November 23, 2020. Her 2020 income from all sources was $23,296.00. As noted above, the existence of a sponsorship agreement can be a factor in ordering support at the high end of the range and also in extending durational limits: Kutznetzova, at para. 60.

[14] Given that the respondent chose not to participate in these proceedings nor file any materials, the only evidence before the court is that filed by the applicant.

[15] Taking into account all the circumstances of the parties, and in particular the sponsorship of the applicant by the respondent, I have determined that support at the high end of the Spousal Support Advisory Guidelines (“SSAG”) is appropriate. The respondent shall pay the applicant spousal support at the high end of the SSAG in the amount of $495 per month for 6 years, commencing as of July 4, 2020.

Equalization of Net Family Properties

[16] The applicant claims that the respondent owes her an equalization payment in the amount of $122,017.00. The applicant relies on 50% of the following for her equalization claim:

a. The parties have a joint safety deposit box and after separation the respondent removed jewelry from the box worth approximately $15,000.00.

b. The respondent has kept and refused to return personal belongings of the applicant worth approximately $2,000.00.

c. In or about 2018, the respondent sold a property he owned in Burlington and concealed the proceeds of sale from the applicant. She is claiming half the increase in the property value in the amount of $100,000.00.

d. The applicant had paid the rent in their home for the month of July and August 2020. She claims that the two pre-paid months of rent unjustly enriched the respondent at her expense. The total amount is $2,034.79.

e. The applicant states that the respondent sent her text messages threatening to pay his lawyer $25,000.00 to send her to Vietnam if she did not return to him. If the applicant returned to him, the respondent said he would buy a house with a $100,000.00 down payment.

[17] The applicant’s evidence is that the respondent owned real estate in Burlington at the time of their marriage. He also owned property in Saint Catharines. She states that “[d]uring the relationship, the Applicant and the Respond[ent] traveled numerous times by that property and the Respond[ent] repeatedly bragged that this property was not the only one that he owned.” The respondent has not participated in the process. He has not provided any financial or property information. The evidence is that he owned at least two properties during the time of the marriage. The applicant’s evidence is that at least one of the properties increased in value over the time of the marriage. Accordingly, I accept the applicant’s evidence that there was an increase in the Burlington property during the marriage. However, I have not included the amounts set out in e. above. These were statements made by the respondent, and the money he referred to could very well be the proceeds of sale of the Burlington property. In the circumstances, the respondent shall pay the applicant an equalization payment in the amount of $59,517.40.

Restraining Order

[18] The applicant seeks a permanent restraining order against the respondent based on the following grounds:

a) Justice Goodman made a temporary restraining order on November 20, 2020 and Justice Kraft extended that temporary order on April 8, 2021.

b) The respondent was previously charged with assault contrary to section 266 of the Criminal Code, R.S.C. 1985, c. C-46 and continued to text message the applicant even after the first temporary restraining order was made.

c) There was a domestic incident with the parties on July 4, 2020.

[19] The applicant states that the respondent has repeatedly harassed and threatened her. In her affidavit the applicant stated:

As of about mid 2019, the Respondent started exhibiting aggressive behaviours towards the Applicant. Occasionally he would threaten to harm or kill the Applicant and say that he would send her back to Vietnam if she complained to police.

The Respondent also made threats that if the Applicant committed adultery or left him, he would kill her.

[20] Under s. 46 of the FLA, the court may make a final restraining order against a former spouse if the applicant has reasonable grounds to fear for her own safety.

[21] Based on the record before me, including the two prior temporary restraining orders and the evidence of the applicant, I am satisfied that the applicant has reasonable grounds to fear for her safety. Accordingly, I am ordering a permanent restraining order with the following terms:

a. Tom Khanh Tran is restrained from communicating or attempting to communicate with Thi Tranh Tam Tran, directly or indirectly. For clarity, he shall not phone her, e-mail her, text her; post a note, letter, document or item to her or courier a note, letter, document or item to her. Further he shall not attend within 100 meters of her home (if her address is known to him), her place of employment or any other place he has reason to believe she may be;

b. For further clarity, he shall also not take any steps to cause (that, to ask, direct, instruct or suggest that) a third party communicate with Thi Thanh Tam Tran on his behalf in any of the ways that are referred to in paragraph a. above.

Costs

[22] The applicant claims costs on a full indemnity basis, in the amount of $45,762.57. She argues that the absence of any financial disclosure by the respondent compelled the applicant to prepare nine affidavits of witnesses who provided evidence regarding the respondent’s income. She argues that the respondent has acted in bad faith and in a manner that frustrates the process of the Court. As of the date of the applicant’s affidavit, the respondent had not filed any materials and had not paid any of the costs award against him.

[23] In terms of bad faith, the applicant points to an instance where the respondent attempted to terminate these proceedings by personifying her and sending instructions to her counsel. In her November 20, 2020 endorsement, Justice Goodman stated:

The parties separated on July 4, 2020. The documents that were filed or provided to me at the case conference indicate that, on August 17, 2020, Mr. Tran was served with Ms. Tran’s Application and supporting documentation. The evidence before me for the case conference indicates that, later that day and shortly after Ms. Tran had texted Mr. Tran, asking him to stop sending messages to her and to direct all inquiries to her lawyer, Mr. Tran purported to be Ms. Tran and sent an email to her lawyer, asking him to cancel Ms. Tran’s case. Ms. Tran was actually in her lawyer’s office when the email came in.

[24] The applicant argues that this type of blameworthy conduct amounts to bad faith and possibly merits the award of punitive damages. The applicant seeks only her costs on a full recovery basis in accordance with Rule 24(8) of the Family Law Rules, O. Reg. 114/99 which states:

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[25] Rule 24(12) of the Family Law Rules sets out the factors the court must consider in making a costs award:

a. The reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. Each party’s behaviour,

ii. The time spent by each party,

iii. Any written offers to settle including offers that do not meet the requirements of rule 18,

iv. Any legal fees, including the number of lawyers and their rates,

v. Any expenses properly paid or payable, and

b. Any other relevant matter.

[26] As set out in Mattina v. Mattina, 2018 ONCA 867, [2018] O.J. No. 5625 at para. 10, modern family costs rules are intended to foster the following fundamental purposes:

a. To partially indemnify successful litigants;

b. To encourage settlement;

c. To discourage and sanction inappropriate behaviour by litigants; and

d. To ensure that cases are dealt with justly pursuant to Rule 2(2) of the Family Law Rules.

[27] In the circumstances, it is my view that costs on a full indemnity basis are appropriate. The respondent shall pay the applicant’s costs on a full indemnity basis, in the amount of $45,762.57, forthwith.

Disposition

[28] In the result, therefore, Order to issue as follows:

a. The respondent shall pay the applicant spousal support in the amount of $495 per month for the duration of 6 years commencing July 4, 2020 and ending on July 4, 2026.

b. A permanent restraining order with the following terms:

i. Tom Khanh Tran is restrained from communicating or attempting to communicate with Thi Tranh Tam Tran, directly or indirectly. For clarity, he shall not phone her, e-mail her, text her; post a note, letter, document, or item to her or courier a note, letter, document, or item to her. Further he shall not attend within 100 meters of her home (if her address is known to him), her place of employment or any other place he has reason to believe she may be;

ii. For further clarity, he shall also not take any steps to cause (that, to ask, direct, instruct or suggest that) a third party communicate with Thi Thanh Tam Tran on his behalf in any of the ways that are referred to in paragraph a. above.

c. The respondent shall pay the applicant one half the difference between the net family properties in the amount of $59,517.40.

d. The respondent shall pay the applicant’s costs of $45,762.57 forthwith.

e. SDO to issue.

J. Steele J.

Released: June 7, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Thi Thanh Tran

Applicant

– and –

Tom Khanh Tran

Respondent

REASONS FOR JUDGMENT

J. Steele J.

Released: June 7, 2022