NEWMARKET COURT FILE NO.: FC-19-59650-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Wenwen Numair
Applicant
– and –
Muhammad Numair Respondent
Applicant – Self-represented
Respondent - Self-represented
HEARD: May 18-20, 24-27, 30, 31 and June 1 and 2, 2022
reasons for decision
I. OVERVIEW AND RELIEF SOUGHT
1The applicant (“the wife”) and the respondent (“the husband”) were married on June 8, 2008 and separated on April 24, 2019.
2The outstanding issues to be determined are as follows:
(a) property issues: equalization of net family property or unequal division;
(b) post-separation adjustments after September 1, 2019: use of the joint line of credit; payment of the matrimonial home expenses (mortgage, property taxes, insurance, utilities); occupation rent; allocation of fees from the certified business valuation conducted by AP Valuations (the “CBV”); and
(c) spousal support, child support and section 7 expenses from September 1, 2019 onwards.
II. BACKGROUND AND LITIGATION HISTORY
3The facts as I find them are set out below and are based on the testimony provided by the witnesses as well as the documentary evidence submitted at trial. The facts will provide context for the analysis. Further facts will be referred to in the analysis as required.
Early Years
4The parties met in 2000 while they were attending Seneca College. The wife immigrated from China and the husband immigrated from Pakistan.
5From 2003 to 2007, the wife attended Trent University and Western University. She holds a Master’s degree in Computer Science. The wife’s parents provided financial support while she was a student.
6The husband holds a college degree from Seneca College. The husband supported himself with the assistance of funds from an uncle in the United States, and employment income.
7The wife returned to Toronto from London, Ontario in 2007 and the parties began to cohabit at that time.
8The parties purchased a new-build home in Richmond Hill after the date of marriage.
9There are two children of the marriage, Umayr (age 12.5) and Nile age (9.5). Nile has been diagnosed with a Global Developmental Delay and Autism Spectrum Disorder. He has high needs and requires one-to-one care. Nile attends a specialised classroom that provides considerable supports to meet his needs.
Marriage Breakdown
10The parties’ relationship broke down, at least in part, due to stressors on the family. The husband was working long hours, six days per week, at the Pizza Pizza franchise (about one hour away from the matrimonial home). The wife was primarily responsible for the children. The parties had poor communication. The husband wanted (and initially expected) the wife to work at the Thai Express franchise after its purchase in 2018, however, she declined to do so. Nile’s needs require considerable attention and are expensive to meet.
11The parties had conflicting views on important issues. The husband disagreed with the wife’s views: (a) against vaccinations for the children; (b) in favour of naturopathic care, as he preferred traditional medical care for Nile; and, (c) that people are being harmed by the government’s use of Chemtrails and electromagnetic forces.
12The parties’ cultural backgrounds, and the husband’s religious beliefs were other sources of conflict. After the separation in April 2019, the parties’ finances and disclosure issues increased the conflict between them.
13The husband moved out of the jointly owned matrimonial home (19 Overhold Crescent, Richmond Hill) on September 1, 2019. He resides in a rented basement apartment in Mississauga.
14The children reside primarily with the wife. They remained in the matrimonial home until March 2021, when it was listed for sale.
15The wife and children now reside in a rented two-bedroom condominium in Richmond Hill.
16The parties resolved the parenting issues, on consent, by Court orders dated June 3, 2021 and March 21, 2022.
17The children are scheduled to be in the husband’s care on alternate Sundays. The husband has declined parenting time due to concerns that the wife will continue to report him to the police or have him followed by private investigators.
18The wife is agreeable to providing the husband with additional parenting time, so long as she is informed where the children are staying overnight while in the husband’s care.
19The wife commenced the Application on September 27, 2019. Both parties filed Amended pleadings.
The Parties’ Incomes and Support
20During the early years of the marriage the husband was employed in the call center for Rogers Communications Inc. (“Rogers”) and he earned an annual income of approximately $45,000. He lost his employment position in 2012. At that time the wife was employed in IT and earned an income of approximately $58,000. She ceased working in 2014, because of Nile’s special needs and the time required to meet those needs.
21Following the 2013 purchase of a 50% interest in a franchise (“Pizza Pizza or 2340409 Ontario Inc.”), the husband has worked at the pizza store.
22On a temporary without prejudice basis, the husband has paid child support in the amount of $500 per month since November 2019. The child support increased to $991 per month in March 2022.
23The wife receives various forms of government support, including financial assistance designed to meet Nile’s needs, including: Child Tax Benefit, Ontario Tax Benefit, Child Tax Benefit – Disability, GST/HST rebates, Trillium funds and an Easter Seals grant.
24The wife has been primarily liable for the children’s section 7 expenses.
25The husband’s stated income from 2017 to 2020 differs from that presented to Canada Revenue Agency and that as assessed by the jointly retained Certified Business Valuator (“CBV or AP Valuations”).
26As of March 2022, and on a without prejudice basis, the husband pays child support on an income of $65,000 per year in the amount of $991 per month.
27The wife’s current annual income of $65,000 is derived from an employment position that she commenced in 2020 as a computer programmer.
28The husband disagrees, but is satisfied, with the parties’ respective incomes as assessed by the CBV. The wife is not. She believes that the husband’s income is higher than as assessed.
29The husband has paid no spousal support since he moved out the matrimonial home. However, the wife had access to (and maxed out) his credit card from September to November 2019, and she continued to reside with the children in the matrimonial home until March 2021.
The Parties’ Relationship with Mr. and Mrs. Butt and the Business Interests
30Mr. Butt was a long-standing friend of the husband, and the two couples were family friends during the marriage. They became partners in two franchises.
31As stated by the franchise agreement, the husband holds a 50% interest in Pizza Pizza (which had a total purchase price of $545,000). Mrs. Tamara Ann Butt (now deceased) was his partner. The husband took on a partner as he could afford to purchase Pizza Pizza on his own.
32The value (and percent interest) of the husband’s interest in Pizza Pizza is contested, with the husband agreeing to the amount as assessed by the CBV, and the wife believing that it has a higher value. She also alleges that the husband holds a 65% rather than a 50% interest in 2340409 Ontario Inc.
33At the time of the purchase Mrs. Butt took on some responsibilities for Pizza Pizza (while also working as in insurance agent for some period of time). The husband was more involved in Pizza Pizza, where he worked long hours six days per week, as this was his full-time employment (having lost his employment with Rogers in 2012).
34About three years before her death in summer 2021, Mrs. Butt became increasingly ill and decreasingly involved in Pizza Pizza. Her husband, Mr. Ahmed Butt became more involved (attending at the store, later working at the store, signing cheques, taking on some management responsibilities and later leaving his full-time employment to focus on Pizza Pizza and the Thai Express franchise).
35In 2018, the wife purchased a 50% interest in 2607742 Ontario Inc., a franchise (“Thai Express”). Mr. Ahmed Butt is her partner.
36The value and ownership of the wife’s 50% interest in Thai Express was hotly contested during the litigation. The wife disagreed that the value was nil, and she believed that the asset and related debt ought to be attributed to the husband on the basis that he was the beneficial owner of same. The husband disputed same. To the parties’ credit, they consented to an order mid-trial that resolves the Thai Express issues outside of this litigation.
37I find Mr. Butt’s testimony during this hearing to be credible and reliable. I accept that he no longer considers either the husband or the wife to be his friend. He is upset that the couple involved him in this messy litigation, causing him to lose time with his dying wife and two young children. He believes that the friendship with the husband cannot be repaired. He does not wish to continue to be business partners with the husband or wife.
38Mr. Butt testified that the relationship between the two families broke down after the wife called Mrs. Butt in July 2019, to report that he was hiding assets and made negative comments about his cultural background. He was in the car at the time. The wife reported these allegations to the York Regional Police on July 29, 2019.
39The relationship between the wife and Mr. Butt further deteriorated when the wife withdrew the sum of $2,500 from the Thai Express corporate account in January and February 2020, without his consent. Thai Express was losing money and Mr. Butt was using his personal funds (including his personal line of credit) to sustain the business.
40In winter/spring 2020, the husband was experiencing mental health and physical health issues. He was admitted to hospital and was under the care of a psychiatrist. The litigation and his inability to see the children formed at least part of the issues that lead to his health challenges. The husband was no longer working regular shifts at Pizza Pizza.
41Mr. and Mrs. Butt took steps to remove the husband as a director of Pizza Pizza and to remove the wife as a director of Thai Express. At that time neither spouse was supporting either business, either by working regular shifts or by investing funds in Thai Express (which has operated at a loss since its purchase in April 2018). Mr. and Mrs. Butt sent notices to each of the parties that were drafted by a lawyer. Mrs. Butt ultimately removed the husband as director of Pizza Pizza.
42The husband responded to the notices by seeking employment as an Uber/Uber Eats driver, which he disclosed to the wife. He also attempted to mend the relationship with Mr. Butt by attending at Pizza Pizza and Thai Express, and doing some work at each location.
43The wife responded to the notice (which stated that she owed approximately $43,000 to the business on account of losses) by retaining legal counsel.
44The wife also hired a private investigator, Top Tier Private Investigations as she did not trust the information provided by the husband. In May and June 2020, the private investigators observed the husband acting as an Uber driver, spending time at Pizza Pizza and behind the counter at Thai Express.
45During this period Mrs. Butt’s health continued to deteriorate and she became less and less involved in Pizza Pizza. Mr. and Mrs. Butt spent considerable time at hospitals and medical appointments attending to her needs.
46The husband and Mr. Butt now operate Pizza Pizza. The shares continue to be held by Mrs. Butt’s estate due to the non-dissipation order in this matter.
47As a consequence of this litigation, Mr. Butt testified (and I accept) that he has been primarily responsible for managing and working at Pizza Pizza and Thai Express for some time. This litigation (and the parties’ lack of current involvement in the two businesses) has taken a toll on Mr. Butt and his family.
The Matrimonial Home
48The matrimonial home sold for the sum of $1,208,000 in July 2021. The mortgage and line of credit amounted to approximately $542,880 and were discharged on closing.
49The parties have accessed some capital from the net proceeds of sale ($25,000 each as well as approximately $75,000 collectively for CBV expenses), and they each report more debt today than at the date of separation.
50Aside from the husband’s interest in Pizza Pizza, the only asset of value that remains today is the sum of approximately $480,000 from the net proceeds of sale.
The Trial and the Lack of Proportionality
51The litigation is best characterized as high conflict, and has come at a significant financial, employment and emotional cost to each of the parties.
52The triable issues relate to the parties’ finances and costs.
53The wife originally intended to call at least 17 witnesses to trial, however, some were not summoned properly and others declined to attend. She originally intended to call a third valuator (notwithstanding the limitation imposed by the Family Law Rules that limits additional valuators where there is a joint expert report, and in the absence of any critique report). Ultimately, the wife called four witnesses including herself, the CBV, the private investigator and the forensic accountant. She also submitted a letter from her friend. The husband called three witnesses including himself, Mr. Butt and Mr. Ahmed Naveed. There were sufficient witnesses for the Court to address the issues to be determined.
54Over the past three years there have been numerous requests for urgent attendances, urgent motions/conferences, motions and conferences. The attendances primarily relate to financial disclosure, support and the sale of the matrimonial home. The Court has issued 21 endorsements.
55The wife originally intended to submit 6,000 pages of exhibits, which I declined to accept due to the excessive nature of same.
56If the wife had called 17 witnesses and submitted 6,000 pages of exhibits, the trial likely would have continued for over one month.
57The trial ought to have been completed within five days or, at most eight days (given that the parties were self-represented). However, the trial continued for 12 days, notwithstanding the reduced number of witnesses, the reduced number of exhibits and my attempts to repeatedly re-focus the parties (and in particular the wife) on the issues before the Court.
58The litigation was complicated by the way in which the husband organized his financial affairs and the wife’s disbelief and suspicions about hidden and dissipated assets and unreported income.
59However, as set out in greater detail below, the parties’ poor financial situation at the time of separation and until today stems from my finding that they lived beyond their means during the marriage and following the separation. The Thai Express investment was ultimately a bad investment that put a further drain on their resources. The family incurred considerable debts (to banks, credit card, families and to the husband’s friends).
III. PRELIMINARY CONSIDERATIONS
The Parties are Self-Represented Litigants
60The parties were originally represented by counsel. At various times the wife was represented by lawyers (from four law firms and later by the limited scope retainers). The husband was represented by one law firm (who continues to offer assistance on a limited scope basis). By March 2020, the husband was self-represented and by August 2021, the wife was self-represented. Leading up to and during the trial, the parties each relied on “behind the scenes” assistance.
61As stated by the Ontario Court of Appeal in the recent decision, Grand River Conservation Authority v. Vidhya Ramdas:1
(a) Self-represented litigants are expected to familiarize themselves with the relevant practices and procedures pertaining to their case and respect the court process;
(b) The Court has the duty to ensure that self-represented litigants receive a fair hearing;
(c) The Court must permit the represented party and the self-represented party to explain how they understand where things stand in the litigation;
(d) The Court may swear the party in before he/she makes submissions so that all admissible evidence can be relied upon; and,
(e) It is open to a judge to engage in active adjudication in order to obtain relevant evidence. However, a judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate.
62Recognizing the importance of providing appropriate assistance in cases where a party is self-represented, the Court took the following steps in this case:
(a) the first two hours of the trial were spent reviewing expectations, how to examine and cross-examine witnesses (with examples), addressing the proposed exhibits and trial organization;
(b) based on the written Opening Statements, I provided the parties with a draft summary of the issues for trial, which they reviewed and agreed reflected the issues to be determined;
(c) I reminded the parties of the need to present only admissible evidence that is relevant to the issues to be determined and not otherwise excluded in accordance with the rules of evidence;
(d) I advised the parties that while they are expected to comply with the Family Law Rules and the evidentiary rules, that I would be more flexible recognizing that they are self-represented;
(e) I encouraged the parties to obtain legal advice during the course of the trial, and to attempt to narrow or settle the issues;
(f) I requested that the parties produce various charts to assist them and the Court to understand their position on each issue;
(g) in order to ensure proportionality, to limit costs and to ensure that the Court’s time was used judiciously for this matter (and other matters awaiting trial), I worked with the parties to reduce the trial to eight days from 14 days (although ultimately the trial lasted for 12 days);
(h) while I declined to order arrest warrants for various witnesses who failed to attend the trial, as requested by the wife, I advised that documentary evidence could be submitted as business records, if appropriate. I also stated that I would be more flexible about the provision of hearsay evidence. Given that the parties’ jointly retained CBV produced a report and was a witness at the trial, it was not necessary or proportionate to serve arrest warrants on the various lawyers, accountants and friends who the wife wanted to call as witnesses. One lawyer2 (who sent letters to the wife on behalf of Mr. Butt) did comply with the summons. The witness’s testimony was not particularly relevant nor helpful;
(i) I employed active adjudication and asked questions where there were gaps. I did so to ensure that the parties were focussed on the issues to be decided and to ensure that I had the available evidence to make the required determinations; and
(j) when the wife advised that she had omitted to provide evidence in respect of the CBV report, I permitted her the opportunity to do so. When her evidence yielded further questions for the CBV, I re-called him as a witness.
Credibility and Reliability
63Jarvis J. summarizes the relevant considerations when assessing credibility and reliability as follows:3
28As has been frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,
…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attach different weight to different parts of a witness’s evidence (see R. v. D.R., 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291 (S.C.C.), at paragraph 93; R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.) at paragraphs 51-56; McIntyre v. Veinot, 2016 NSSC 8 (S.C.), at para. 22).
64Each party alleges that there are credibility issues in respect of the other party. I agree.
65The husband’s evidence has the following issues with credibility and reliability:
(a) he drafted and executed various applications for credit, and to support the purchase of Thai Express, that listed his annual income at a minimum of $96,000 per year, and the wife’s income at $48,000. This was an overestimation of his income, and the wife was not employed outside of the home during the relevant timeframe;
(b) he represented to Canada Revenue Agency that he had nominal income during the marriage and following separation, which contradicts the applications for credit, and is not reliable given the parties’ expenses, even after accounting for stated debts;
(c) throughout the litigation the husband claimed that he had no involvement with Thai Express and that this was the wife’s initiative and her place of employment. However, the husband attended the meeting with the lawyer to execute the purchase documents related to Thai Express. Mr. Butt was his friend/business colleague. The private investigator observed the husband working at Thai Express. Moreover, Mr. Butt testified that it was the husband and not the wife who informed him that the wife would be employed there regularly. There is no evidence that the wife agreed to same, particularly since the location was one hour from the matrimonial home and she was primarily responsible for Nile’s needs. At various times during the litigation the husband misrepresented the wife’s relationship with Mr. Butt and her involvement with Thai Express;
(d) the husband did not share information about the family’s finances, his debts and other payments between himself, Mr. Butt (and his parents), Mr. Imran Attiq and Mr. Kashif Naveed (collectively the “three friends”);
(e) the husband was not honest when the wife inquired about the family’s finances, and he responded that they were fine; and
(f) the husband did not initially provide a reasonable amount of disclosure in a timely manner.
66The wife’s evidence has the following issues with credibility and reliability:
(a) she denies an understanding of, or having had any opportunity to review, the various documents related to the purchase of the Thai Express. However, the wife is a highly educated person, who met with legal counsel acting on her own behalf;
(b) the wife signed at least one application for credit that listed her income at $48,000 (CIBC mortgage application), when she was not working. In order to lease a new car, the wife did not object when the husband represented to Honda Canada that the family’s income was $168,000 in May 2019;
(c) the wife stated (for the first time during the trial) that the husband forged her signature on various bank, corporate and lease documents, notwithstanding that one was commissioned by a notary public and that she admits to being present at all of the meetings with the relevant professionals. The executed documents all afforded benefits to her a (a jointly owned Mercedes that she primarily drove, a Honda car lease and a 50% ownership interest in Thai Express). The wife provided no evidence that she reported the alleged forgeries to the banks or the police;
(d) the wife denies any knowledge that the family was experiencing financial hardship, however, she is well aware that the family’s debt increased dramatically from when the parties obtained the original mortgage with TD Bank in August 2010 ($341,690 with no amount owing on the line of credit) and when they moved the mortgage to CIBC in November 2016 and consolidated the line of credit ($398,000);
(e) the wife wrote letters to Community Living York South on March 8, 2017 and she attended an interview seeking financial support for Nile’s therapies and programming. Her letter included the 2015 Pizza Pizza balance sheet (with information from 2014 – 2016) listing the corporate net income at approximately $20,000. The wife wrote, “my husband is the sole income source for the family and his approximate income per month is $1,385 on his 2015 notice of assessment and business assessment. He splits his business income with his partner”;
(f) while the wife denies knowing about the husband’s use of the CIBC line of credit, she admits to knowing that funds were taken towards the purchase of Thai Express in 2018;
(g) the wife agreed to loan or contribute the sum of $40,000 gifted to her by the maternal grandparents towards the purchase of Thai Express, as funds were needed for the acquisition;
(h) the wife claims that she first learned of the husband and family’s significant debts after separation. However, on rare occasions during the marriage the wife raised questions about the family’s finances. She was also aware of the general costs being incurred to support the family (including housing, therapies and section 7 expenses for the children and vacations), and the fact that she was not employed;
(i) during the marriage the parties used the government payments that were provided to meet Nile’s needs to pay the mortgage and house-related expenses (which is confirmed in the Douglas J. order dated March 4, 2020);
(j) to the extent that the wife was not fully aware of the family’s financial issues, she was willfully blind. She could have asked more questions of the husband, met with Mr. Butt her Thai Express business partner, and/or reviewed the joint bank, mortgage and credit card statements that were sent to joint mailbox at the matrimonial home;
(k) the wife’s claims in respect of the husband’s hidden assets, considerable undeclared cash income, and a higher value for Pizza Pizza (that exceeds the franchisor’s stated value and the CBV’s assessment) is not supported by the evidence and is not reliable;
(l) the wife’s refusal to make any concessions in the face of clear evidence that contradicts her position (such as the lack of ownership of the Oshawa property) significantly impacts her credibility;
(m) where the wife disagrees with the information/evidence provided by a third party (such as the CBV, Mr. Naveed or the police records) she attempts to discredit same. She does so even where there is clear evidence that contradicts her position. I also find that the wife attempted to prevent this case from moving forward (by refusing to instruct the CBV to issue the report, impeding payment of the CBV account, and taking multiple steps to prevent the matter from being heard in the May 2022 trial sittings). All of the above impact the reliability of her evidence. The wife is so invested in her version of the facts and in her agenda, that her trustworthiness is best defined as questionable; and
(n) the wife prefers to rely on uncredible evidence than on credible evidence. This includes the reliance on an “asset report” created by her unnamed private investigator that lists allegedly undisclosed bank accounts (with no evidence of any connection to the husband), and the evidence of her forensic accountant (who admits that he had insufficient documentation to make any income or valuation determination).
67Given that the main factual issues in dispute, being the value of Pizza Pizza and the parties’ incomes (including an alleged cash income) were addressed by the joint valuation report produced by the CBV, third party expert evidence enables the Court to rely less on the parties’ evidence than if there was no such evidence available. The CBV was well aware of the wife’s concerns and investigated same. Moreover, the Pizza Pizza documentation supports the conclusions reached by the CBV.
68The wife admits that her beliefs that the husband has hidden property, has dissipated the family’s assets and has undisclosed cash income cannot be proven. Her claims would require me to make findings based on documentation that was never produced and allegations that cannot be substantiated (as there is insufficient documentation or explanations). I have considered these allegations and the available documentation and oral evidence in my determinations. I have also considered that the wife has had tunnel vision throughout these proceedings. From the wife’s perspective the facts are what determines them to be and there can be no other reasonable explanation. I disagree. As stated above, the wife’s unwillingness to make concessions in the face of persuasive evidence (such as in respect of the Oshawa property) negatively impacts her credibility.
69I find that many of the credibility concerns that arise from the parties’ evidence can be addressed by the availability of reliable expert evidence, documentary evidence and the evidence of other witnesses, and by examining the facts collectively to form “the big picture.”
Analysis of the Financial Disclosure Issues, the Impact on the Litigation and Delay
70As stated above, the parties’ poor communication during the marriage, and the wife’s wilful blindness in respect of the family’s finances, contributed to the shock that she experienced when she learned about their economic circumstances following the separation. She acknowledged same in July 2019, when the wife informed the police (who she called twice that day) that the parties were continuing to live together as they could not afford separate residences.
71As set out throughout the wife’s testimony and closing arguments, she has been suspicious about the husband’s finances since separation (and until today) for the reasons set out below:
(a) the husband’s initial sworn Financial Statement disclosed an income close to minimum wage, upon which they could not have lived their lifestyle. The personal Income Tax Returns disclose an even lower income;
(b) the husband has not fulsomely responded to the requests for disclosure produced by her lawyer or various accountants;
(c) while the wife acknowledged that some funds from the TD Line of Credit (“LOC”) and the CIBC LOC may have been used towards the purchase of the business interests, she believes that husband inappropriately increased the parties’ joint debt during the marriage. The TD LOC went from a $0 balance in 2012, to close to the maximum balance of $120,000 when it was rolled over to CIBC in November 2016. The CIBC Line of credit went from $0 balance to approximately $160,090 when she froze it in summer 2019;
(d) the parties enjoyed an above average lifestyle – they had traveled on vacations, the children attended several activities, Nile received privately funded services from a Naturopath and each party drove a Mercedes and the basement had been renovated;
(e) the bank statements and LOC statements contain many deposits and credits of payments with little/no details, and considerable funds moving in and out of the accounts. Payments were made to the three friends. However, the wife does not know why the funds were being moved around. The wife believes that the husband gifted or loaned money to his friends (and dissipated the parties’ assets);
(f) the husband disclosed 17 bank accounts, credit cards and loans/lines of credit;
(g) the wife found a compliance document in the matrimonial home. She believes that as of 2017 the husband had an interest in a new-build property in Oshawa (the “Oshawa property”);
(h) the husband owned Pizza Pizza, which she believes has an undeclared cash income. During the marriage the husband often gave cash to the wife to deposit in the bank;
(i) the Pizza Pizza records were missing a general ledger, payroll ledger. They disclose missing funds and high expenses relative to the revenue;
(j) the husband received benefits from Pizza Pizza which were not accounted for in his sworn Financial Statement or Income Tax Returns;
(k) Mr. Butt has not produced the disclosure that she requested from Thai Express; and
(l) the wife and children has less access to funds after the husband moved out of the matrimonial home (September 1, 2019).
72As part of this legal proceeding the following disclosure orders were made:
(a) Jarvis J. order dated June 22, 2020 – Non-depletion of business and property, and disclosure against the husband and Mr. and Mrs. Butt;
(b) Kaufman J. consent order dated September 20, 2020 – Authorizing the wife to obtain documents from Canadian banks in respect of the husband’s banking records;
(c) Bruhn J. consent order dated August 31, 2020 – Joint valuation by the CBV and disclosure;
(d) Cameron J. order dated December 24, 2021 – Declining to grant the additional disclosure sought by the wife and a request for an affidavit from the CBV about any outstanding disclosure that is required to complete the report; and
(e) Cameron J. consent (in part) order dated January 18, 2022 – The provision of documentation to the CVB and, for a second time, authorizing the wife to obtain documents from Canadian banks in respect of the husband’s banking records and in relation to Pizza Pizza and Thai Express, as well as disclosure in respect of the Oshawa property.
73In January 2020, the husband attended for questioning, however, the wife was not satisfied with the responses, or the disclosure provided before or after that attendance. Missing disclosure included the Pizza Pizza business loan applications provided to RBC (to purchase the franchise) and TD Bank (for the renovation loan).
74The wife’s distrust of the husband’s disclosure led to the involvement of six professionals to assess the husband’s income, and to address her concerns about the husband’s dissipation of joint funds, the diversion of assets, hidden income and the value of Pizza Pizza, which are as follows:
(a) the wife retained Duff and Phelps, an accounting firm who made a request for financial disclosure in February 2021;
(b) in summer 2021, the wife retained Dover Valuations (Greg Silas) to conduct a forensic analysis of the Pizza Pizza bank account and to provide an opinion about the value of Pizza Pizza and the husband’s income. Mr. Silas is not a certified business valuator. He had insufficient disclosure to complete the requested tasks;
(c) the wife retained Top Tier Investigations (Mark Sabourin) who followed the husband for five days in April and May 2020;
(d) the wife retained an unnamed private investigator who produced an “asset report” that lists allegedly undisclosed bank accounts (with no evidence of any connection to the husband). She relied on this hearsay evidence during at least one motion and at the trial, notwithstanding that none of the banks listed in the report produced any records relating to the “asset report.” At least one bank (HSBC) advised that they have no records of any open or closed account in the name of 2340409 Ontario Inc. operating as Pizza Pizza, or the husband;
(e) the wife rejected the valuation of the husband’s 50% interest in Pizza Pizza which was provided by the franchisor (“Pizza Pizza Head Office”). They assessed the value at $163,500; and
(f) in August 2021, the parties jointly retained the CBV to complete a formal valuation of Pizza Pizza and Thai Express, and to complete income valuations for 2018 to 2020. The wife requested that income valuations be prepared for 2017.
75The husband’s testimony and closing arguments in respect of the disclosure issues are as follows:
(a) the husband provided extensive disclosure to at least two of the wife’s lawyers;
(b) in January 2020, the husband voluntarily attended for questioning;
(c) at various times the husband explained the parties’ considerable debts at the time of separation, the loans and re-payments made between himself and the three friends, and the use of no/low interest offers on credit cards as a means of constraining the debts;
(d) at various times the husband explained (and documentation was ultimately provided) in respect of his lack of ownership interest in the Oshawa property;
(e) following separation, the husband provided the Pizza Pizza Head Office valuation, which was available free of charge. He asserts that since the Head Office acts as broker for, and exerts considerable control over the listing and sale of franchise locations, no other disclosure or valuation was needed;
(f) the husband asserts that there was no point in conducting an income or business valuation on his own, as the wife would never have been satisfied with any valuation conducted without her input. I agree;
(g) the valuation costs were not affordable nor a good use of the family’s resources;
(h) the husband eventually provided consent for the wife to speak with professionals employed at Pizza Pizza Head Office, a decision that he regrets for the following reasons:
i. the wife’s repeated requests for information, and her refusal to accept the responses angered Mr. Hogan (the franchise specialist);
ii. the wife’s decision to serve motion materials on several Head Office employees was demeaning and embarrassing. His personal life and the wife’s allegations are now known at Pizza Pizza Head Office;
iii. the threats/attempts to summons Pizza Pizza Head Office professionals to the trial, and various threats made by the wife in respect of the involvement of the Court; and
iv. as a consequence of the above, the husband is concerned that there may be ongoing issues with Pizza Pizza Head Office. They have yet to send the renewal of the franchise agreement (which expires in August 2022).
(i) in addition to the disclosure produced by the husband, he signed several consents (and consented to two orders) that enabled the wife and/or her counsel to obtain disclosure from all Canadian banks and institutions. Aside from a dormant Tangerine account (holding $14), nothing material came out of the wife’s repeated requests for disclosure from the banks. I agree with the husband that there is no evidence of any hidden personal or corporate account;
(j) moreover, at an early stage in the litigation the husband offered to attend with the wife and/or with her lawyer at various banks in an attempt to expedite the requested disclosure. This offer was never responded to by the wife or her counsel;
(k) in August 2021, the husband agreed to the joint valuation of Pizza Pizza, Thai Express and their incomes, which was conducted by a firm put forward by the wife. However, she continued to pursue further disclosure on her own, notwithstanding that the CBV was working with the husband, his accountant and Pizza Pizza Head Office;
(l) throughout the litigation the husband, the CBV, and Pizza Pizza Head Office answered the same questions/addressed the same concerns raised by the wife repeatedly. Moreover, the same issues were discussed several times at various Court attendances;
(m) the wife was ultimately unsatisfied with the voluminous disclosure that he produced and the CBV’s business and income valuation, which led to this unnecessary trial; and
(n) the wife failed to provide a value for her interest in a condominium in China (jointly owned with the MGM), and her jewellery business income.
76I find that the wife’s early concerns about the husband’s finances were understandable, given the poor economic circumstances that became apparent to her after the separation, the husband’s interactions with the three friends and her perceptions of the disclosure issues.
77However, the wife’s refusal to make concessions once provided evidence and reasonable explanations were provided was unreasonable. Plenty of evidence was provided as of at least 2020, and repeated at the trial, to refute the allegations respecting the dissipation of joint funds, the diversion of assets, hidden income and the value of Pizza Pizza.
78Throughout the litigation, and continuing through closing arguments, the wife maintains that her position on the financial issues should be accepted. She admits that the allegations cannot be proven (and the documentary evidence that does not support her position). The wife argues that the husband’s imperfect disclosure such as his failure to produce general ledgers for Pizza Pizza (which never existed), and his failure to provide written loan agreements between the three friends (who testified that friends do not paper these loans om their culture), are not sufficient.
79However, on the two major issues before the Court, being the husband’s income and the value of the Pizza Pizza shares, the CBV was ultimately satisfied with the husband’s disclosure. The CBV noted scope of review limitations and made assumptions that favoured the wife over the husband in the absence of supporting documentation. Before and after the delivery of the draft report, the wife raised her concerns with the CBV. These concerns were considered by the assessors repeatedly.
80The wife continues to reject the CBV’s income determination for the husband’s 2017 to 2020 income. She believes that his income is considerably higher than as assessed, as there is a undeclared cash.
81The wife continues to reject the valuation of Pizza Pizza. She declines to accept the market value for the franchise, as provided by Pizza Pizza Headquarters. She declines to accept the expense of the required renovations, and she refuses to acknowledge the evidence respecting the use of cash.
82Both parties agree that Mr. Morgan Mcintyre is an expert in the field of business valuations and income assessment. Mr. Mcintyre provided clear and cogent evidence as to the basis for the conclusions in respect of each party’s income and the husband’s interest in Pizza Pizza. He and Ms. Alterman (the founding partner of AP Valuations) addressed each party’s questions and concerns prior to the trial, and Mr. Mcintyre responded to the same questions and concerns when asked questions by the wife during the trial. I find the report produced by the CBV to be reliable and, as set out far below, I generally accept the conclusions reached therein.
83I accept Mr. Mcintyre’s evidence (as confirmed in an email exchange) that the wife caused the delay of the delivery of the final report. She also declined to consent to the payment of the outstanding invoice until the start of the trial when I directed that the payment be made in order to facilitate Mr. Mcintyre’s attendance at the trial.
84After the delivery of the joint CBV report the wife retained another valuator, Davis Martindale. As no critique or other report was produced in accordance with the Family Law Rules, the wife did not pursue a plan to bring this proposed expert to testify at the trial. In any event, I would have been disinclined to permit such a witness as I agree with the statements made by Riakes J. in Zantingh v. Zantingh:4
74The predominant purpose of retaining a joint expert is to avoid the battle of competing experts. That usually means a savings of time and expense, and often aids in resolution of some or all issues.
75A neutral, independent, jointly retained expert investigates the issue(s), sets forth the facts on which his or her opinion is based, sets out the documents he or she relied on, and provides an opinion and the rationale for that opinion: r. 20.2(2),(3), and (5). The expert owes a duty to the court to be fair, objective and non-partisan. That duty to the court trumps any obligation owed by the expert to a party: r. 20.1(3).
76Where the parties have engaged a joint expert, no other litigation expert may present opinion evidence on that issue unless the court orders otherwise: r. 20.2(13). Thus, once the expert report is finalized and absent a supplementary report, the parties are not permitted to adduce other expert evidence on the issue without leave of the court.
85I also agree with the husband’s submissions in respect of the conclusions reached in Zantingh v. Zantingh, and the application to the case before me:
(a) parties are required to “cooperate fully with the expert and make full and timely disclosure of all relevant information and documents to the expert”: r. 20.2(12). The Court may draw any reasonable inference against any party that fails to do so: r. 20.2(12).” (para 73). The CBV was ultimately satisfied with the husband’s disclosure and made adverse findings where documents were not available (such as the general ledger);
(b) while one party may not trust the other to provide complete and accurate information, that party cannot simply say that they do not trust the other party so they cannot trust the report based on what he told the expert. “Reasonable reliance on the expert’s experience and thoroughness is appropriate” (para. 83); and
(c) a party should have the opportunity to raise any questions or concerns with the report before it is finalized. This opportunity was available to the wife and she provided questions, comments and concerns.
86In respect of the overall impact of the financial disclosure issue and the impact on the trial and delay, the parties each blame the other for the fact that the matter did not resolve on consent and has taken three years to reach the trial stage.
87From an early stage in the proceeding the husband requested that the parties engage in mediation or conduct a meeting to settle the dispute, as he believed that the ongoing legal fees were not affordable. The wife was unprepared to do so because of her concerns about the husband’s financial disclosure, (which led to her concerns about the dissipation of joint funds, diversion of assets, hidden income and the value of Pizza Pizza).
88The wife relies on the Family Law Rules5 and the Ontario Court of Appeal decision, Roberts v. Roberts6 to support her position that disclosure is of utmost importance. I agree. However, fulsome financial disclosure is not perfect disclosure. Many family law disputes have some element of imperfect disclosure.
89The wife argues that a failure to abide by the fundamental principle (of the obligation to provide financial disclosure) impedes the progress of the action, causes delay and generally acts to disadvantage the opposite party.7 Once again, I agree. However, these same issues arise when, as in the present case, there are repeated and unrelenting requests for more and more disclosure (some of which does not exist or may be irrelevant or unnecessary).
90The wife also submits that the absence of financial disclosure impacts the administration of justice, unnecessary judicial time is spent, and the final adjudication is stalled. Once again, I agree. However, these issues also arise in cases such as the present one, where the wife refuses to accept the disclosure that is provided and disputes the evidence and valuations. The were great measures taken by the wife to prevent the issuance of the final valuation report and to delay the May 2022 trial. These include steps taken to appeal the Order of MacPherson J. from December 7, 2021 directing the matter to trial (which she later abandoned), a 14B request to adjourn that I denied on March 7, 2022 and an adjournment request at the MacPherson J. Trial Scheduling Endorsement Form Conference on March 16, 2022.
91There were disclosure issues in respect of both parties’ actions, yet the matter needed to proceed to trial. This case has been outstanding since 2019 and has caused both parties considerable financial and other costs. Well before the matter was set down for trial, the wife ought to have provided a value for the property in China, notwithstanding that she made a claim that it is excluded from the equalization of net family property calculation.
92Moreover, well before August 2021, the husband ought to have consented to a joint valuation. The Pizza Pizza Head Office’s valuation report differs from a CBV report (which is the favoured report when there are business valuation/income valuation disputes in family law). Moreover, the Pizza Pizza valuation provided no assessment of the husband’s income for support purposes.
93The wife’s complaints about the husband’s financial disclosure and her related concerns continued through her closing submissions. She made no meaningful concessions in terms of the relief sought, notwithstanding the persuasive evidence to the contrary that was heard during the trial.
94I find that while both parties contributed to the delay in the resolution of this matter, it was the wife’s unrelenting requests for further disclosure, her unwillingness to accept the evidence and the reasonable explanations provided by the husband and the CBV that had a significant contribution to the delay and the significant legal and accounting costs incurred by the parties.
IV. THE PROPERTY ISSUES
Equalization of Net Family Property or an Unequal Division
The Parties’ Positions Regarding Division
95The wife claims that there should be an unequal division of net family property for the following reasons: (a) to account for the considerable unexplained debt that the husband incurred during the marriage, and without her knowledge; (b) as the husband loaned funds to the three friends who have yet to re-pay the debts; and (c) as the husband held an ownership interest in the Oshawa property, which he dissipated to defeat her equalization claim.
96The husband argues that there is no basis to deviate from the principles of the equalization of net family property for the following reasons: (a) while the husband acknowledges that debt was incurred with various banks and credit cards during the marriage, he states that the family’s net worth increased during the marriage. By the date of separation, the parties owned the matrimonial home and a 50% interest in two franchises. The debts arose from the down payments made to purchase the parties’ interest in the two franchises and to support the family’s lifestyle. The husband solely supported the family from the income that he derived from Pizza Pizza, which was insufficient to cover these expenses; (b) many of the alleged loans to the third parties were in fact the repayment by the husband of funds previously loaned to him; and (c) the husband never had any ownership interest in the Oshawa property.
Law and Analysis
97The Preamble of the Family Law Act,8 (the “Act”) describes the legislative purpose as follows:
Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children[.]
98Sections 4(1) and 5(1) of the Act define and address the equalization of net family property, as follows:
4(1) “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage;
4(1.1) The liabilities referred to in clauses (a) and (b) of the definition of “net family property” in subsection (1) include any applicable contingent tax liabilities in respect of the property. 2009, c. 33, Sched. 2, s. 34 (2).
5(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family property is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).
99Section 5(6) of the Act permits the Court to adjust a presumptive equalization of spouses’ net family property in exceptional circumstances.
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family property if the court is of the opinion that equalizing the net family property would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;
(g) a written agreement between the spouses that is not a domestic contract; or
(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).
5(7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family property, subject only to the equitable considerations set out in subsection (6).
100Courts have universally accepted that the Act is intended to promote predictability and discourage litigation.9 “Ontario deliberately chose a fixed valuation date approach. For most practical purposes, that date is the date of separation.”10
101There are public policy reasons to avoid deviating from the equalization provisions for married spouses. The regime discourages litigation while providing for an equal sharing of the debts and assets held by the parties for the duration of the marriage.
102In Serra v. Serra, the Court of Appeal described Ontario’s property regime (in the context of a discussion about section 5(6)) as follows:
The design of the legislation is to promote the goals of certainty, predictability and finality in the resolution of property matters following the breakdown of marriage. This, in turn, is founded on the central premise articulated in s. 5(7) that "inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of [their joint] responsibilities, entitling each spouse to the equalization of the net family property, subject only to the equitable considerations set out in subsection (6) (emphasis added).
103As per Ontario Family Law Property 101, litigants take a “snapshot” of each party’s assets and debts on the date of marriage (nominal/none here) and a “snapshot” of his/her assets and debts on the date of separation. The party with the higher net family property pays the sum equal to one-half of the difference to the other party (subject to special provisions respecting the matrimonial home, trust issues, and notional disposition costs).
104I would not make a finding of unconscionability for the reasons that follow.
105As stated previously, the wife testified that she was completely unaware of the family’s finances until separation. For the reasons described above, I have already determined that she was somewhat aware of the family’s finances and was otherwise wilfully blind. The wife is a smart and educated person. She participated in various meetings and signed various documents that impacted the family’s finances (including the purchase of Thai Express, the purchase of a jointly owned Mercedes, the consolidation of family debt and the new line of credit at CIBC). Moreover, the wife had access to the parties’ joint account statements and was well aware of the family’s expenses (including vacations, the basement renovation (paid in cash) and the children’s section 7 expenses).
106At trial the wife produced various charts that she based on the family’s bank accounts (joint and solely held by the husband), the lines of credit (TD LOC (until November 2016) and CIBC LOC (thereafter)) and the husband’s credit card statements. She relies on the significant number of transfers/cash withdrawals and deposits/cheques to support her argument that the husband was inappropriately incurring debt and dissipating assets.
107The wife also submits that the husband’s inability to explain many of the specific deposits and credits, and the lack of a direct connection to a specific expense or asset, lends itself to the conclusion that the husband’s actions are untoward.
108The evidence does not support such a finding on the balance of probabilities.
109The parties had a modest family income from the time that the husband lost his employment position in 2012, and onwards. For example, the CBV income valuation concludes that the husband’s income was as follows: 2017 - $98,000; 2018 - $45,000; 2019 – $48,000; 2020 - $78,000 (not including CERB). Aside from one employment contract, the wife had no meaningful income from 2014 onwards.
110During the marriage the parties had significant expenses over and above servicing the mortgage/LOC and day to day/household expenses. These included: over $10,000 per year in section 7 type expenses for the children (including naturopathic medical expenses for Nile that were not covered by OHIP), several family vacations (to Pakistan, Asia, Jamaica and elsewhere), the purchase of a seven-seater Mercedes, the basement renovation (approximately $30,000 paid in cash) and down payments on the Pizza Pizza and Thai Express.
111The anticipated annual expenses for the parties when the wife and children continued to reside in the matrimonial home and the husband rented a basement apartment was approximately $130,000. This is set out in the parties’ first sworn Financial Statements (wife – September 27, 2019 ($54,060) and husband - November 1, 2019 ($77,000)).
112I conclude that the parties incurred the significant debts (including the $120,000 on the TD LOC up to November 2016 and the $160,090 on the CIBC LOC from November 2016 to summer 2019 and credit card debt), as they were living beyond their means and investing in the Pizza Pizza and Thai Express (which ultimately turned out to be a poor investment).
113The wife was well aware of the $120,000 TD LOC when the debt was rolled into the new CIBC Mortgage (which she signed) in November 2016. There is no evidence that she raised any concerns about that debt at that time. The wife acknowledges that some of the funds were used towards the husband’s share of the Pizza Pizza deposit (which was $100,000) and his share of the Pizza Pizza initial expenses ($30,000). Some contributions were deposited first into Mr. Butt’s account, so that they would be available when Pizza Pizza Head Office contacted the partners (as one must prove that the capital is readily available). Other funds were used directly towards the deposit and initial expenses.
114I also accept the husband’s evidence that he often serviced the debts by accepting offers made by various banks to obtain new credit cards (as they offered low interest/interest-free access to funds for an extended period of time). He would then use these funds to pay down debts that were continuing to accrue interest. I also accept the husband’s evidence, and that of Mr. Butt and Mr. Naveed, who all testified as follows. When the husband had no new credit card offers, he would request that one of his friends accept such an offer and loan him funds (which they did from time to time for each other).
115The husband’s Certificate of Financial Disclosure dated January 6, 2020, lists 17 personal and business accounts and credit products with TD, CIBC, RBC, Simplii Financial, Canadian Tire, MBNA, and American. The high number of credit vehicles (some which had no debt on the date of separation) supports the testimony provided by the husband and the three friends about the use of multiple credit cards and lines of credit to constrain the accrued interest by moving funds from one credit card or line of credit to another.
116In addition to accessing each other’s credit, the three friends also loaned one another funds on an as-needed basis. They repaid the loans from time to time.
117As explained by Mr. Butt and Mr. Naveed, in their culture one typically does not create a formal loan document when borrowing funds amongst friends.
118The documentary evidence (bank and credit card statements and the wife’s charts) support my finding that funds were being moved between the husband’s accounts and the three friends. There are multiple examples of deposits being made by the three friends to the husband’s accounts and payments being made to the three friends from his accounts.
119I decline to accept the wife’s argument that the three friends are indebted to the husband for unpaid loans in the amount of $100,000 on the basis of cheques written from the TD LOC. I also decline to accept the wife’s argument that the three friends are indebted to the husband on the basis of cheques written in the amount of $21,225, from the CIBC LOC.
120I accept Mr. Naveed’s testimony that he loaned cash to the husband. Some of the cash was used to fund the basement renovation.
121The wife believes that there is a purchase agreement in respect of the Oshawa property, however the husband and Mr. Naveed have failed to disclose same (in violation of a disclosure order). There is no evidence to support the wife’s claim.
122The wife produced a compliance statement from the builder dated April 28, 2017, that confirmed that deposits had been made towards a soon to be built townhome. The husband acknowledges writing cheques in the amount of $45,674.24 to the builder’s lawyer, in trust. The husband wrote another cheque to Mr. Butt for the amount of $11,225 (equal to one of the required deposits) from the CIBC LOC. Shortly thereafter Mr. Butt wrote a cheque back to the husband for the amount of $11,225. They testified as follows.
123The husband and Mr. Butt confirmed that in 2017 they attended at the builder’s office to book the lot at Mr. Naveed’s request as he was travelling in Pakistan at the time (as confirmed by his passport). Mr. Naveed was a real estate agent (and now is a broker) who wanted to purchase the soon to be built townhome as an investment property.
124Mr. Naveed requested that the husband pay the deposit from funds owed to him at that time. The statements confirm that the initial deposit was paid by the husband, as was the second deposit. Upon Mr. Naveed’s return to Ontario, he repaid the sum of the second deposit to the husband as this exceeded the amounts that were owed to him.
125Mr. Naveed also testified his name was subsequently added to the booking of the property, and, at a later date, Mr. Butt and the husband signed a document with the builder removing their names.
126I find Mr. Naveed’s evidence to be credible and reliable. He answered questions in a straightforward manner and produced documentation (the purchase and sale from the builder to him in 2019, and the sale to a third party in 2021) to support his testimony that he owned the Oshawa property.
127Mr. Butt’s recollection of the events supports the evidence provided by Mr. Naveed and the husband. The evidence provides a further example of the loans that were made between the husband and his friends, and the repayment of same.
128For these reasons the wife’s claim that the Oshawa property was the subject of a fraudulent conveyance is unfounded. I am not including the sum of $45,674.25 in the husband’s net family property, nor do I find that he purchased or gave away any interest in the Oshawa property.
129The Serra v. Serra decision reiterates the high bar that is required to success with a claim for unequal division of net family property:
To ensure adherence to the policy choices made by the legislature, and reflected in s. 5(7) and the preamble of the Act, equalization of net family property is the general rule. …Judicial discretion with respect to equalization payments is therefore severely restricted, by statutory design, but it is not eliminated altogether since there is discretion to order an unequal payment where "the court is of the opinion that equalizing the net family properties would be unconscionable": see, for example, Skrlj v. Skrlj, supra, at p. 309 R.F.L.” (para. 57)
130I decline to find that the family’s debts or other liabilities were incurred recklessly or in bad faith by the husband. I also decline to find that the husband intentionally or recklessly depleted his net family property. On the evidence before the Court, the wife has failed to persuade me to exercise my severely limited discretion to award her an unequal division of net family property.
The Value of the Disputed Properties
131The parties disagree as to the value of several items contained in their respective Net Family Property Statements. Below are my findings for inclusion in the equalization calculation.
Pizza Pizza
132In September 2021, the CBV was jointly retained to complete a business valuation report in respect of the husband’s interest in Pizza Pizza, and income assessments for both parties (as well as a valuation of the wife’s interest in Thai Express).
133The report was authored by Vivian Alterman (MBA, CPA, CA, CBV) and Morgan Mcintyre (CFA, CBV). Both professionals have considerable expertise and experience in the field of family law, and their work accords with the principles set out by the Canadian Institute of Charted Business Valuators.
134In order to prepare the report, the CBV had access to the Pizza Pizza Financial Statements and Corporate Tax Returns, the weekly statements produced by Pizza Pizza Head Office, the corporate bank account statements. The CBV also received documentation from the husband and Mr. Butt, and the pivot tables/working papers produced by Mr. Patel (the accountant from 2019 onwards). The CBV engaged in meetings with Pizza Pizza Head Office, the parties and the accountant. Voluminous materials were provided to the CBV following two requests and in response to an affidavit that the wife compelled the CBV to produce for Court in January 2022.
135The wife sent unsolicited materials and emails to the CBV, following her own ongoing investigation into Pizza Pizza. This includes a lengthy five page letter with attachments that she sent on January 4, 2022, in the final stages of the draft report being produced.
136The draft report was issued on February 8, 2022. The parties had further opportunities to ask questions and make comments.
137The CBV set out some of the wife’s concerns in an email dated February 22, 2022, including dissatisfaction with the level of due diligence and the scope of work undertaken. She also raised concerns about the assumptions made in the report in respect of: unreported cash income and the production of an Estimate Report (including reliance on unaudited Financial Statements). The CBV responded to the wife’s concerns in that email.
138While the wife initially objected to the release of the report, on March 8, 2022, it was issued to the parties (and made available at the upcoming Settlement Conference).
139As per the CBV report, as of the date of separation the husband holds a 50% interest in Pizza Pizza. The value of his shares is $102,000, with a discounted notional disposition cost of $17,000. There is a loan receivable of $24,988.
140The husband testified that he is generally satisfied with the value of his interest in Pizza Pizza. The wife is not.
141The wife believes that AP Valuations has undervalued the husband’s interest in Pizza Pizza for the following reasons:
(a) the CBV conducted an Estimate Report rather than a Comprehensive Report;
(b) the husband has provided insufficient disclosure;
(c) the wife believes that the husband holds a 65% share of Pizza Pizza as he has been more involved in the operation and management of the franchise. She also believes that the husband loaned the sum of $85,000 to Mr. Butt for his wife’s share of the Pizza Pizza, which has not been re-paid. In addition, the wife relies on the husband’s statement that he invested the sum of $125,000 to $130,000 towards the required down-payment of $200,000;
(d) the wife believes that the market value of the Pizza Pizza is $600,000, which is a 2% increase in value per year from 2013 to 2019. She also relies on a document that she found with a listing of a Pizza Pizza franchise for the sum of $600,000 in 2019;
(e) the wife disputes the combined market value and adjusted cost base valuation approach, and states that the value of property, plan and equipment ought not to be deducted from the business value;
(f) the wife disputes the inclusion of the renovation loan in the amount of $180,000;
(g) the wife disputes the 20% minority discount;
(h) the wife disputes the notional disposition costs; and
(i) the wife states that the husband has used corporate funds to pay for personal expenses.
142The wife requests that I attribute a value of $421,389 to the husband’s (65%) share of Pizza Pizza.
143I am not persuaded by the wife’s arguments, nor do I accept her calculations.
144I do not find that the husband holds more than 50% of the Pizza Pizza shares. The franchise agreement and renewal confirm same. The husband and Mr. Butt confirm same. More active involvement by the husband (than by Mrs. or Mr. Butt) does not equate to a greater shareholder interest.
145I accept the evidence of Mr. Butt and the husband that they each contributed an equal amount to the down payment and start-up costs ($100,000 and $25,000 to $30,000), and that some funds were directed to Mr. Butt before they were transferred to Pizza Pizza Head Office. In fact, the wife acknowledged the husband’s 50% interest in Pizza Pizza when she requested subsidized programs for Nile in a 2017 letter to Community Living York South. The wife’s allegations that Mr. Butt has unpaid loans of $85,000 or that Mr. Butt failed to contribute her fair share to the purchase of Pizza Pizza are not substantiated.
146I accept the calculations provided by the CBV, the neutral third party who was jointly retained by the parties to value the husband’s business interests. I accept the expert evidence that the shares have a value of $102,000, and that the husband has a loan receivable of $24,988. I also find that discounted notional disposition costs of $17,000 are appropriate.
147My findings are based on the evidence provided by Mr. Mcintyre, the Pizza Pizza Head Office documentation (franchise and renewal agreement, emails from Jack Hogan (Head Office Franchise professional), as well as additional documentary evidence that was included in the exhibits) and the report.
148On May 20, 2022, Mr. Mcintyre provided oral testimony to explain the process and the conclusions, and he responded to the wife’s questions and concerns. He provided further testimony on May 30, 2022, in response to new issues raised by the wife in her redirect.
149I agree with the CBV that an Estimate Report (based on unaudited Financial Statements), accounts for the vast majority of reports issued in family law litigation, and is appropriate. The added cost of a Comprehensive Report (at a time that both parties were objecting to the fees as they exceeded the estimate), and the lack of evidence that such a report would yield material differences to the conclusions, did not warrant the corresponding delay to the finalization of the report. Such a report would have required additional time and fees and the husband did not consent to same. This would not have been a productive use of the parties’ limited resources.
150Mr. Mcintyre testified that he and Ms. Alterman were ultimately satisfied with the husband’s disclosure. While imperfect, (as some documents such as a shareholder agreement does not exist), the CBV had the required information to draw conclusions about the husband’s interest. Alternate information including the weekly statements from Pizza Pizza Head Office and the accountant’s pivot tables were appropriate replacements for the lack of a general ledger (which also did not exist). Where necessary, the CBV made assumptions.
151Mr. Mcintyre explained the significant control exerted by Pizza Pizza Head Office on the functioning of its franchises. This includes considerable control over the sale of a franchise (to whom and an approximate price), which formed the basis for the market value of the Pizza Pizza ($550,000 – based on the recent sale of similar store locations, market conditions and revenue). He was satisfied the information provided in communications with Mr. Hogan.
152Pizza Pizza Head Office has advised that the market value has decreased since separation. This vitiates the wife’s claim that there has been a 2% inflationary increase in value, a claim included in the updated Net Family Property Statement that she submitted on the last day of the trial, and in the absence of any testimony or evidence.
153The significant control by Head Office also prevents a franchisor from making unreported cash sales. Pizza Pizza Head Office carefully accounts for the franchise’s use of royalty items (pizza boxes and bags), controls the Point of Sale cash registers in the stores, processes the vast majority of sales (as they control the online and phone orders) and has a camera that is situated on the cash register. These measures are taken by Pizza Pizza Head Office to prevent the franchise from unreported cash sales, which would impede their revenue (as they receive a percentage of sales). In other words, while customers may pay cash to purchase pizzas (though much less so since the onset of Covid-19), this is not unreported cash.
154Mr. Mcintyre testified as to the reason for the combined valuation approach of market value and adjusted cost base (wherein one subtracts the book value and adds back the fair market value of the underlying assets in the corporation (namely the property, equipment and inventory, as well as goodwill). This forms part of the analysis that includes any other assets or liabilities held in the corporation. Mr. Mcintrye was very clear that a failure to consider the underlying assets and liabilities would be a material valuation error.
155The CBV explained the renovation loan must be accounted for as it is a mandated liability for all franchises (and, in fact, was incurred by the husband in 2020).
156I accept Mr. Mcintyre’s evidence in respect of the minority discount. There is no shareholder agreement to address the resolution of disputes between the partners. The husband is unable to exert unilateral control over Pizza Pizza (such as the issuance of the dividends or bonuses or the sale of a 50% or 100% interest (which would need to be approved by Mr. Butt and by Pizza Pizza Head Office)). While the minority discount of 10% to 15% might have been appropriate if the partners had executed a shareholder agreement, that is not the facts of this case. Therefore, a 20% discount is reasonable in these circumstances.
157The notional disposition costs are also a valid consideration, since the husband will dispose of his shares at some date in the future. The CBV provided various alternatives, and I accept the discounted rate based on the disposition at age 65. An undiscounted rate would be inappropriate as there is no evidence that the husband intended to sell his shares at the date of separation.
158Therefore, the net family property calculation sets the value of the husband’s shares at $102,000, with a discounted notional disposition cost of $17,000. The calculation includes a loan receivable to the husband of $24,988.
Other Disputed Values
159The wife makes a claim of excluded property of funds held in her TSFA in the amount of $11,158,19. She testified and provided evidence that her parents gifted her funds during the marriage in the amount of $50,000. She also testified that the sum of $40,000 was her contribution towards the purchase of Thai Express. This is not disputed by the husband. I accept the wife’s evidence that the remaining funds, which are traceable, are appropriately excluded as a gift from a third party after the date of marriage.
160There is no evidence that the wife’s jewellery business had any value on the date of separation, and which no longer exists. I have attributed a nil value.
161The amount held in the Pizza Pizza business chequing account is not properly included in the husband’s net family property, and I have removed same.
Conclusions in Respect of the Property Claims
162I dismiss the wife’s claims for an unequal division of net family property.
163The equalization payment owing by the husband is $36,715.27. The net family property calculation will be provided to the parties.
V. POST SEPARATION ADJUSTMENTS
Occupation Rent
164The husband claims occupation rent of $2,000 per month commencing September 1, 2019 and ending on May 31, 2021. He bases that amount on an estimated market rent for the matrimonial home of $4,000 per month (which is between the low rent of $2,550 and the high rent of $5,900 in a summary of available rental homes in Richmond Hill as of February 2020).
165The husband testified that he felt compelled to vacate the matrimonial home for fear of criminal charges being levied against him, which is supported by two calls to police by the wife in July 2019, and several calls after he vacated the home. The husband made repeated requests for the matrimonial home to be sold, as it was not affordable, and he required access to his capital.
166The wife refutes the husband’s claims on the basis that he was not obliged to move, she had no alternate accommodations for herself and the children and insufficient support.
167In the recent decision of Jasiobedzki v. Jasiobedzka, the Court summarized the current state of the law as follows (paragraphs 90 – 93):
A claim for occupation rent is brought under s. 122(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which states:
An action for an accounting may be brought by a joint tenant or tenant in common, or his or her personal representative, against a co-tenant for receiving more than the co-tenant’s just share.
In Griffiths v. Zambosco (2001), 2001 CanLII 24097 (ON CA), 54 O.R. (3d) 397 (Ont. C.A.), at para. 49, the Ontario Court of Appeal set out the factors used to determine occupation rent in a family law context:
a. The timing of the claim for occupation rent;
b. The duration of the occupancy;
c. The inability of the non-resident spouse to realize on his or her equity in the property;
d. Any reasonable credits to be set off against occupation rent; and
e. Any other competing claims in the litigation.
In Higgins v. Higgins (2001), 9 R.F.L. (5th) 300 (Ont. S.C.), at para. 53, this Court identified the following relevant factors:
a. The conduct of the non-occupying spouse, including the failure to pay support;
b. The conduct of the occupying spouse, including the failure to pay support;
c. Delay in making the claim;
d. The extent to which the non-occupying spouse has been prevented from having access to his or her equity in the home;
e. Whether the non-occupying spouse moved for the sale of the home, and if not, why not;
f. Whether the occupying spouse paid the mortgage and other carrying charges of the home;
g. Whether children resided with the occupying spouse, and if so, whether the non-occupying spouse paid, or was able to pay, child support;
h. Whether the occupying spouse has increased the selling value of the property.
Where the property is a matrimonial home, a claim for occupation rent by one spouse against the other will only be granted in exceptional cases. To qualify, the spouse not in possession must show that the remedies to gain possession of the property, to receive payment from the spouse in possession, or support from him or her under the FLA, are either not available or insufficient to render justice between the parties: Foffano v. Foffano (1996), 24 R.F.L. (4th) 398, 1996 CanLII 8097 (Ont. S.C.), at para. 26.
168I have considered the factors listed above in respect of the husband’s claim for occupation rent. I accept the husband’s evidence that he believed that it was best to vacate the matrimonial home as of September 1, 2019, and I also accept that at an early stage in the litigation he made a claim for the partition and sale of the matrimonial home. He also brought two urgent motion requests for the sale of the home.
169However, I am dismissing the husband’s claim for occupation rent for the following reasons:
(a) the wife had a nominal income at the time of separation and no source of funds (other than access to his Canadian Tire credit card until November 2019);
(b) the wife and children had no alternate accommodations;
(c) the husband underpaid child support commencing January 1, 2020;
(d) I am dismissing the wife’s claim for spousal support for the reasons set out below. In doing so I have considered that she had the benefit of living rent-free for 20 months. I note that 50% rent on the matrimonial home is between $25,500 and $59,000 in accordance with the husband’s summary of available rental properties;
(e) I am holding the wife solely liable for the rent that she incurred from March to May 2021, when she opted to vacate the matrimonial home before it was sold (an expense of $6,523.44); and
(f) the husband’s interest in the matrimonial home increased in value from the date of separation (when he estimated the total value at $900,000, as per his November 1, 2019 Financial Statement) and when the property was sold in March 2021 (for the amount of $1,208,000). In accordance with his own sworn Financial Statement the husband’s interest increased approximately $154,040.
Valuator Fees
170Both parties request that I attribute the entirety of the CBV fees to the other party. Each party alleges that the other is liable for the fees and, in particular for the amounts in excess of the high end of the estimate ($45,000) as per the executed engagement letter dated September 10, 2021.
171To date the parties have incurred approximately $70,000 in CBV fees. As per the Bruhn J. order dated August 2021, the CBV fees were to be shared equally (except for the fees associated with the husband’s 2017 income valuation (which were to be paid by the wife)). All of the fees could be re-allocated by the Court.
172I find that both parties should be equally liable for all of the CBV fees for the following reasons:
(a) while the husband argues that the CBV role was unnecessary as Pizza Pizza Head Office provided a valuation of his 50% share of Pizza Pizza, this valuation was not conducted in accordance with the family law approach to valuing assets. Pizza Pizza Head Office did not account for the liabilities and assets of the franchise, merely for the market value. Further, Pizza Pizza Head Office provided no income valuation for the husband, and his declared income to Canada Revenue Agency and his annual income as per his sworn Financial Statements fall below the income as determined by the CBV. The wife’s request to engage a joint CBV was not unreasonable;
(b) while the wife argues that each party is generally required to be liable for the valuation expenses in respect of that party’s business interests (Pizza Pizza - husband and Thai Express – wife), and to assess their own income (if self-employed) that is not appropriate in this case. While the Pizza Pizza and the husband’s income valuations were more costly than the Thai Express and the wife’s income valuations, the wife’s actions increased the costs materially;
(c) Mr. Mcintyre testified as to the contributing factors that led to the elevated costs of the engagement, and which were set out in CBV email dated February 22, 2022. He attributed liability as follows:
i. voluminous unsolicited emails and documents – the wife;
ii. repeated request for answers already provided by the CBV – the wife;
iii. assessment of the husband’s income and Pizza Pizza value, which required additional documentation and discussions with third parties due to challenges in obtaining documentation, the fact that some documentation that did not exist and the ways in which the husband’s accountant allocated expenses and revenue – the husband;
iv. compulsion to require Ms. Alterman to draft an affidavit – the wife;
v. separate calls rather than joint calls – the wife;
vi. AP Valuations being required to review the same issues repeatedly - the wife; and
vii. the impediments to (and delay of) the finalization of the reports – the wife.
173I appreciate that AP Valuations provided an estimate of the breakdown of fees in accordance with the task, however, this is not helpful, as both parties’ actions had an impact on the various tasks. Therefore, it would be inappropriate to allocate the costs to the tasks.
174On the facts of this case the most appropriate and reasonable way to approach the costs incurred by the parties (including the husband’s 2017 income assessment) is to attribute them equally to each of them.
Post Separation Date Adjustments
175The parties’ requests for post-separation date adjustments and my determinations are below.
176The wife’s request for the husband to be solely liable for interest accrued post separation on the alleged loans to the three friends (in the amount of $4,194) is dismissed. I have previously addressed the reasons why I dismissed the wife’s claims in respect of these alleged loans.
177The wife shall be solely liable for the Legal Aid Ontario lien that was repaid from joint funds at the time of the closing of the sale of the matrimonial home. The wife owes the sum of $3,746.97.
178The wife owes the sum of $1,981.95 on account of 50% of the purchases that she made with the husband’s Canadian Tire Mastercard from September 1, 2019 to November 2019 that are not otherwise section 7 expenses. I accept that the balance of $1,981.95 is attributable to the children as a form of child support, which I will address later in these reasons. While the wife states that the amount of $1,981.95 is properly spousal support, as I am dismissing that claim it is not properly characterized in that way.
179The husband shall be solely liable for the amounts that he withdrew from the CIBC LOC from February 1, 2012 to May 2021, to fund his 50% share of the matrimonial home’s mortgage and property taxes. The amount of $5,500 was repaid from joint funds at the time of closing of the matrimonial home. The husband owes the sum of $2,250.
180The husband owes the wife the sum of $1,151.18 on account of 50% of the wife’s overpayment towards the mortgage and property tax payments from September 2019 to July 2021. I find that the wife paid the amount of $17,520.15 and the husband paid the amount of $15,532.79.
181The husband owes the wife the sum of $495.53 on account of 50% of the wife’s overpayment towards the CIBC LOC.
182The husband owes the wife the sum of $850 for window glass replacement and $731.68 on account of the installation of a camera. The husband shall not contribute to the utilities or water bills, as these are expenses properly attributable to the wife, who was residing in the home.
183The above amounts shall be paid from each party’s one-half share of the total amount of funds ($488,311.84) that remain in trust and are being held by the real estate solicitor, Daniel Goldlist.
VI. CHILD SUPPORT AND SPOUSAL SUPPORT
The Parties Incomes for Support Purposes
184On March 8, 2022, the CBV provided an assessment of each party’s income for support purposes from 2018 to 2020 (and 2017 for the husband). As stated previously, I find that AP Valuations has considerable expertise in this area. The report itself along with Mr. Mcintyre’s testimony reveal an appropriate application of the Child Support Guidelines (the “Guidelines”), SOR/97-175 and in particular sections 17, 18 and 19. The CBV also applied the Schedule III adjustments.
185The CBV report appropriately considered the husband’s pattern of income, non-recurring losses, and his status as a shareholder, director or officer of Pizza Pizza. The CBV also appropriately imputed an income to the husband as his income as declared to Canada Revenue Agency, and the sworn Financial Statements are not reflective of his income for support purposes. I have carefully considered the CBV income analysis and the parties’ positions as set out below.
186The wife seeks an order that the parties’ incomes for support purposes be attributed as follows:
(a) to the husband – an imputed annual income from 2019 onwards of $120,000; and
(b) to the wife – a fixed annual income of: (i) 2019 - $12,000 line 150 Income Tax Return; (ii) 2020 – $34,000 line 150 Income Tax Return; (iii) 2021 - $62,271 declared employment income; (iv) 2022 (first half) - $12,084 from January to June 2022 to account for reduced hours due to trial preparation and 2022 (second half) and onwards - $65,000 anticipated employment income based on full-time hours.
187The husband seeks an order that that the parties’ incomes for support purposes be attributed as follows:
(a) to the husband – an imputed annual income of: (i) 2019 - $44,000 as determined by the CBV after accounting for bad debt based on cancelled and/or unpaid orders; (ii) 2020 - $69,000 CBV after accounting for bad debt based on cancelled and/or unpaid orders; (iii) 2021 and onwards - $52,000 based on the average of his 2018-2020 income as determined by the CBV after accounting for bad debt based on cancelled and/or unpaid orders; and
(b) to the wife – the husband does not dispute the incomes as set out by the wife for 2019 to 2020. He states that the income for 2021 onwards should be fixed at $65,000 as it was unreasonable for the wife to reduce her hours in order to focus on trial preparation.
Income Determination in Accordance with the Guidelines
188The starting point for this analysis are sections 17, 18, 19 and Schedule III of the Guidelines. The relevant subsections are as follows:
Pattern of income
17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.
Non-recurring losses
(2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.
Shareholder, director or officer
18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include
(a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or
(b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.
Adjustment to corporation’s pre-tax income
(2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.
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;
(e) the spouse’s property is not reasonably utilized to generate income;
(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
Reasonableness of expenses
(2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.
189The leading case that defines intentional under-employment in Ontario is Drygala v. Pauli.12 “Intentionally” means a voluntary act. The person required to pay support is intentionally under-employed if that person chooses to earn less than he or she is capable of earning. The person required to pay support is intentionally unemployed when he or she chooses not to work when capable of earning an income.
190When imputing income based on intentional under-employment or unemployment, a court must consider what is reasonable in the circumstances.13 The factors include age, education, experience, skills and health of the parent. The availability of job opportunities, number of available work hours (in light of the parent's overall obligations including educational demands), and a reasonable hourly rate may be considered.
191My findings in respect of each party’s income is as follows.
The Husband’s Income
192The CBV report sets out the basis for the determination of the husband’s income for 2017 to 2020. They confirm that they have made the following adjustments, as set out in Schedule 1 of the Guidelines, including: (a) adjusting the husband’s income to include the actual amount of dividends received rather than the taxable amount; (b) using the grossed-up dividend income to reflect that his income is taxed at lower rates than ordinary employment or business income; (c) deducting RRSP income as the amount does reflect the income drawn but relates to funds drawn on account of the home buyer’s plan; (d) summarized, estimated and added back 50% of the discretionary expenses relating to vehicle expenses, travel and insurance; (e) included an income tax gross-up on the discretionary expenses to reflect the tax benefit of having these amounts expensed through the corporation. They utilized the income tax rate of 20.05% based on the husband’s estimated marginal rate; (f) considered the extent to which the Corporate Pre-Tax Income (“CPTI”) may be available to the husband while noting that the husband holds a 50% minority interest in Pizza Pizza, Mrs. Butt/Mr. Butt is an arms length business partner, and the fact that Pizza Pizza reported profits in fiscal years 2017 to 2019. While there were reported losses in fiscal 2020, when adjusting for the unreported sales the corporation was profitable in all years under review.
193Mr. Mcintyre testified about various assumptions that were made as a result of the imperfect disclosure, some contradictory information and other challenges. These are listed as scope limitations and in the assumptions part of the report.
194On one significant issue, the CBV utilized the figures that provide for a higher income to be attributed to the husband in respect of Pizza Pizza’s revenues, by using the revenue declared by Pizza Pizza Head Office in the filing of the HST/GST returns, rather than that disclosed in the Financial Statements and Corporate Tax Returns.14
195Other challenges included the inability of the prior accountant, Mr. Kushwah (who prepared the Financial Statements through to year ending March 31, 2018), was not able to provide an explanation about the differences in the HST/GST and revenue reported in the Financial Statements and Corporate Tax Returns. Mr. Kushwah did not provide his working papers/pivot tables, such that the CBV had less information up to 2019.
196With respect to the CPTI, the CBV included the additional unreported sales and adjusted the fiscal 2020 CPTI to reverse the amount of the “returns” (a weekly adjustment by Pizza Pizza Head Office to reflect any overcollection of sale proceeds above the amount required to pay the franchise’s rent and royalty…). The CBV determined that the accountant had mistakenly reported the returns as other direct expenses in the Financial Statements. However, the returns are a cash flow adjustment and not revenue or expense.
197The CBV added 50% of the adjusted CPTI (after deducting the pre-tax equivalent of the dividends paid) to the husband in accordance with is 50% interest in the corporation.
198The CBV also considered the cash payments made to contract pizza delivery drivers. They accepted the husband’s explanation (which he also provided at the trial), that Pizza Pizza expends approximately $230,000 per year to pay three to five drivers per day to deliver pizzas. The husband provided a small sample of the hand-written logs that he creates to monitor the driver’s receipts and cash. The drivers are paid approximately $13 to $14 cash (and they receive tips) to organize supplies and deliver pizzas from 10:30 a.m. to 2:00 a.m./3:00 a.m., seven days per week. As Pizza Pizza has a “30 minutes or free” program a high number of drivers are required as the franchise must provide the free pizzas in the event of late delivery. The delivery expense accounts for approximately 17% of revenue (or about $3 per $20 pizza order).
199The wife alleges that as of 2020, there are unexplained and significant cash withdrawals from the corporate bank account. The husband acknowledges that since the onset of the Covid-19 pandemic there have been a higher amount of cash withdrawals from the corporate bank account. He testified, and I accept, that more customers pay for their orders electronically. Since the contract drivers are paid in cash there are insufficient cash funds paid at the time of delivery, or in the store’s cash register. This accounts for the increase in cash withdrawals. I find that this is not indicative of any hidden or undisclosed cash that is available to be attributed to the husband as income.
200In assessing the reasonableness of the Pizza Pizza revenue and expenses (which varied widely amongst the years), the CBV considered that the largest expenses are controlled by and paid to Pizza Pizza Head Office. The franchisor collects the vast majority of the revenue and makes payments to franchisees that are significantly lower than the revenue collected, on account of the significant fees and expenses that they levy on the individual stores. This is confirmed by the weekly statements that set out the amounts invoiced by, and the expenses paid to, and by Pizza Pizza Head Office.
201Finally, the CBV compared the husband’s income from Pizza Pizza as compared to its (U.S.) competitors, Dominos Pizza and Pizza Hut. Using IBISWorld, a market research company, the CBV determined that the husband’s income as assessed, is in the high range of income (once the required material adjustments are made).
202As has been the wife’s approach throughout this case she disputes the CBV’s report and evidence as it does not accord with her beliefs. The wife believes that that husband has a materially higher income, as more of the personal expenses are attributable to him than to Mrs. Butt and there are undisclosed cash pizza sales. The wife takes issue with the amounts attributable to the delivery drivers, believing that this is another form of cash income taken by the husband. I prefer the evidence of the CBV and the report over the wife’s claims.
203The wife relies on the fact that the husband often gave her cash to deposit in their account alleging that this too was undisclosed (and ignoring the evidence that these amounts were included as dividends in the Financial Statements and Tax Returns). The wife complains that the cash deposits sharply declined in 2020, which she believes is suspicious. She appears to reject the explanation that customers opted to pay electronically rather than by cash since the onset of the Covid-19 pandemic. Finally, the wife rejects the conclusions reached by the CBV as they relied on unaudited Financial Statements and did not complete a forensic analysis of the Pizza Pizza’s finances. Once again I favour the findings set out in the CBV report and Mr. Mcintyre’s testimony.
204The wife also seeks to impute income on account of the husband’s employment at Thai Express, which I decline to do. The husband admits that in spring 2020, he worked some shifts at Thai Express in food preparation and as a cashier. He did so in a way to improve his relationship with Mr. and Mrs. Butt (who was increasingly unwell), who were unable to work shifts at the store. I accept that he was not paid for the work as Thai Express operated a loss from the time of purchase (2018) and until today. There is no evidence to support the wife’s claim. I accept Mr. Butt’s evidence that he has been investing funds (from his personal line of credit and his personal funds), to pay the Thai Express expenses. Aside from the $5,000 that the wife removed from the corporate bank account (and which the accountant treated as income), no one from the Butt or Numair family has received employment income from Thai Express. The wife admits that there are no T-4 or T-4a issued to any of them (except as above).
205The wife’s request to impute the husband’s income to $120,000 per year is not reasonable. While Dover Accounting (Mr. Silas) came to an estimate in that range, Mr. Silas admitted that he had insufficient information from his review of the Pizza Pizza bank account statements to make an accurate assessment. He also admitted to attributing all questionable amounts taken by the husband as income and grossing up same (even though some of these amounts were clearly not income -such as the return of the deposit made by the husband and Mrs. Butt to purchase a second Pizza Pizza franchise). There is insufficient evidence to support the imputation of any Thai Express income or any additional gross-up.
206The husband’s request to discount his income on account of bad debt is also not reasonable. The CBV found no evidence of unpaid pizzas, returned pizzas, cancelled pizzas or other bad debt in the Financial Statements or in the weekly statements produced by Head Office. Given that Pizza Pizza oversees the vast majority of orders, and that they assess a store’s revenue, it is more likely than not that any “bad debt” falls within their assessment of revenue.
207I find that the husband’s income is as determined by the CBV, without accounting for the bad debt and without including the CERB which was a one time payment.
208As the husband did not provide an income assessment for 2021 or 2022, I am using the 2020 annual income of $78,000 for support purposes. It may be that 2021 or 2022 could be different than 2020 (higher or lower). I note that the husband’s 2021 or 2022 income may be impacted by the wage subsidies, the fact that take out/ delivery restaurants generally did well during the Covid-19 pandemic, that Pizza Pizza had a new renovation loan of $180,000, that Pizza Pizza hired a manager as Mr./Mrs. Butt and the husband were not fulfilling that role or the required hours, and that revenues decreased in fiscal 2021. However, I am not in the position to find that the husband’s 2021 or 2022 annual income is higher or lower than $78,000.
The Wife’s Income
209At the time of separation, the wife was self-employed making and selling jewellery on the Etsy website. The husband alleges that she also had a cash income from Facebook sales and markets. At trial no evidence was presented to support that claim, nor did the CBV make any such findings.
210Given that the wife had not been employed outside of the home since 2014, aside from one contract, and given that the best evidence is the Etsy summaries and the 2019 Income Tax Return, I find that the wife’s 2019 income is $12,000.
211The wife asserts that her 2020 income should be fixed at $34,000, as declared to the Canada Revenue Agency. The wife provided no evidence as to her attempts to secure employment in 2019 or 2020, nor did she explain the delay of 17 months between the date of separation and the commencement of her current employment position with Consolidated Fastfrate Inc. The wife secured employment as a computer programmer (working from home) earning an annual income of $60,000 as of September 1, 2020.
212The starting point is whether income should be imputed to the wife and if so when and how much. There must be an evidentiary basis to impute income (see Drygala v. Pauli (2002), 2002 CanLII 41868 (ON CA), 219 D.L.R.(4th) 319; Lawson v. Lawson, 2006 CanLII 26573 (ON CA), [2006] O.J. No. 3179).15
213The husband made no request that the wife be imputed an income in 2020 on account of any unreasonable delay of the wife’s return to the workforce, or otherwise. In the absence of evidence to explain the reasonableness/unreasonableness of the delayed employment (particularly during the Covid-19 school/camp closures), and in the absence of evidence, I am not prepared to impute an income to her.
214However, I am also unprepared to fix the wife’s income at less than $34,000, as this is nominally more than minimum wage (approximately $30,000) and neither party disputes such a finding.
215The wife’s 2021 income is fixed at $62,271, which is the actual income that she earned from her employment, as declared to the CRA.
216The wife’s 2021 income, and onwards, is also fixed at $62,271. I decline to accept that it was reasonable for the wife to materially decrease her work hours (from five days per week to part-time hours three days per week as of January 2022, with a further decrease to approximately one day per week in the weeks leading up to the trial). Foregoing one’s employment income in favour of trial preparation is not reasonable. The wife, like the husband, is expected to work full-time as the children are in need of support. Therefore, I have set the wife’s income at close to the amount that she ought to be earning in 2022 ($65,000), recognizing that the wife’s attendance at the trial itself has an impact on her income.
The Wife’s Claim for Spousal Support
217The wife seeks an order for spousal support on a compensatory and/or non-compensatory basis. She seeks an order for time-limited spousal support from September 2019 to July 2022, based the Spousal Support Guidelines, (“SSAG”).
218The Court has jurisdiction to make a spousal support order pursuant to section 15.2(1) of the Divorce Act.
219The guiding factors for a Court to consider when making a spousal support order are set out in section 15.2(4) and are as follows:
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses;
(b) the functions performed by each spouse during cohabitation, and
(c) any order, agreement or arrangement relating to support of either spouse – none other than the interim child support order
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp), as am., sections 15.2(1) and 15.2(4)
220The “condition” of a spouse includes such factors as their age, health, needs, obligations, dependants and their station in life. A spouse’s “means” encompasses all financial resources, capital assets, income from employment and any other source from which the spouse derives gains or benefits.16
221The Ontario Court of Appeal determined that the factors and objectives outlined in the Divorce Act require a balancing of “the parties’ circumstances, including the duration of the parties’ cohabitation, their ages, their incomes and prospective incomes, the effects of equalization, the stages of their careers, contributions to the marital standard of living, participation in household responsibilities, the absence of child-care obligations, [and] the parties’ reasonable expectations.”17
222The Supreme Court of Canada held that all of the stated objectives in section 15.2(6) of the Divorce Act must be considered since no single objective is paramount. However, trial judges have a significant amount of discretion to determine the weight that should be placed on each objective based on the particular circumstances of the parties. The purpose of spousal support is to relieve economic hardship that results from marriage or its breakdown.18
223There are three conceptual bases for entitlement to spousal support:
(a) compensatory: This is in recognition that upon marriage breakdown, there should be an equitable distribution between the parties of the economic consequences of the marriage. Specifically, compensatory support is intended to compensate a spouse upon relationship breakdown for contributions made to the relationship and to recognize sacrifices made and the advantages to one spouse and disadvantages to the other, both during and after the breakdown of that relationship. It is to compensate for foregone careers and missed opportunities during the marriage, and to serve as reimbursement for hardships accrued as a result of the marriage breakdown;
(b) contractual: This entitlement may arise from express or implied agreements between spouses that purport to either create or negate a spousal support obligation; and
(c) non-compensatory: This entitlement arises as result of the needs of a spouse, even if that need does not arise as a result of the roles adopted during marriage. This basis for spousal support is founded on the view that marriage is a relationship involving mutual obligations and interdependence that may be difficult to unravel when the marriage breaks down.19
224With respect to compensatory spousal support, Nolan, J., stated the following in Friedl v. Friedl,20:
The court in DelGuidice v. Menard,21 provides a concise description of compensatory spousal support: it is “intended to address a recipient’s economic loss or disadvantage or the recipient’s uncompensated conferral of an economic benefit on the payor, arising out of the respective roles assumed during the marriage.” Most often, the economic disadvantages suffered by a spousal support claimant will be in the form of foregone opportunities for career or educational advancement, and will usually stem from the parties’ decision that the claimant spouse will be primarily responsible for the care of the parties’ children in the performance of associated domestic duties.
225The parties have provided SSAG calculations to support their positions. In Fisher v. Fisher, 2008 ONCA 11, the Court recognized that, while not replacing the need for an individual analysis of the appropriate award for spousal support, the SSAGs provide a useful “litmus test” of the range of spousal support that might be generated on the basis of the ages and incomes of the parties, along with the length of the marriage.
226The wife’s claim for spousal support is premised on her role as the primary caregiver to the children from 2013 onwards. Both parties agree that concerns in respect of Nile’s significant medical and developmental needs, along with the services and appointments, lead to the joint decision that she cease working in 2014.
227The husband acknowledges that he worked long hours and six days per week at Pizza Pizza, which is located approximately one hour away from the matrimonial home.
228The parties disagree whether the wife should have returned to work once the children were enrolled full-time in daycare and school.
229The wife was employed for a period of time, however, that position ended when she was unable to complete the required work in a timely manner.
230The children reside full-time with the wife. During the Covid-19 pandemic the children remained with the wife whenever the school/daycare/camps were closed.
231The above are important factors to consider in respect of the wife’s request. However, once I consider the other relevant evidence, I am not prepared to make an order for spousal support for the following reasons:
(a) at the time of the marriage, both parties were employed on a full-time basis. The husband’s annual income as a technical support representative at Rogers Communications was $45,000 and the wife’s annual income as a systems analyst at IBI Group Inc. was $58,000;
(b) the wife was only out of the workforce for six years;
(c) once the wife returned to full-time employment in 2020, she earned an annual income of $60,000. This was increased to $65,000 in 2021;
(d) the wife provided no evidence that she would have earned a higher income following the separation if she had continued to be employed full-time during the marriage;
(e) after paying the table amount of child support and the proportionate share of section 7 expenses, the husband has no ability to pay spousal support;
(f) the wife receives considerable additional financial support from the government and non-profit/charitable calculations. These include: CCB, CCB – disability credit, OCB, GST/HST credit, Ontario Trillium Benefit, ACSD Program for Nile (non-taxable) and Incontinence grant for Nile (non-taxable);
(g) the wife and children have considerably more available funds than the husband;
(h) the wife (and children) live a higher quality of life than the husband (who resides in a one-room basement and works long hours six days per week); and
(i) the SSAG calculations clearly indicate that there is no spousal support payable on the incomes as determined by me earlier in these reasons.
232While I am not awarding the wife spousal support, I recognize that once the husband vacated the home on September 1, 2019, she had insufficient funds to support herself and the children. At that time no child support was paid, although the wife used the husband’s Canadian Tire credit card (for approximately $10,000 of expenses). I have considered the wife’s circumstances in my consideration to decline to award the husband occupation rent. The option of remaining in the matrimonial home through May 2021, had a monetary value to the wife of between $25,500 and $59,000 (in after-tax dollars).
233The wife’s claim for spousal support is dismissed.
Quantum of Child Support and Section 7 expenses
234Section 15.1 of the Divorce Act deals with child support, the relevant provisions of which are (1), (3), (4) and (6).
235As set out above, I find that the husband’s income for child support purposes and the table amount of child support owing is as follows:
(a) 2019 annual income is $44,000 – Table amount is $656 x 4 = $1,312 – $1,000 ($500 x 2 child support paid) - $1,981.95 (wife’s credit card expenses used to support the children) = (-$1,669.95);
(b) 2020 annual income is $78,000 – Table amount is $1,182 x 12 = $14,184 – $6,000 ($500 x 12 child support paid) = $8,184;
(c) 2021 income is $78,000 – Table amount is $1,182 x 12 = $14,184 - $6,000 ($500 x 12 child support paid = $8,184; and
(d) 2022 income is $78,000 – Table amount through June 30, 2022 is $1,182 x 6 = $7,092 - $ 4,964 ($991 x 4 = $500 x 2) child support paid = $2,128.
236The child support arrears owing to the wife are: $16,826.05, which shall be paid from the husband’s share of the funds held in trust by the real estate solicitor.
237Commencing July 1, 2022, the table amount of child support is $1,182 per month based on an imputed income of $78,000.
238In addition to table child support, the wife claims a contribution by the husband to the children’s special or extraordinary expenses pursuant to section 7 of the Guidelines.
239As stated above the wife’s income for the section 7 calculation is as follows: 2019 - $12,000; 2020 – $34,000; 2021 - $62,271; 2022 onwards $65,000.
240The parties’ proportionate share of the children’s section 7 expenses is as follows: 2019 – husband 79% and wife 21%; 2020 – husband 70% and wife 30%; 2021 - husband 56% and wife – 44%; 2022 onwards – husband 55% and wife 45%.
241The parties shall provide the Court with the calculation of the husband’s proportionate share (taking into account the any tax credits for child-care/camp) of the $8,924.92 that were incurred in section 7 expenses.
242I have estimated the arrears of section 7 expenses at $5,122.24, which is 70% of the total amount paid with a credit for the contribution provided to date. The parties may consent to another amount, however, the funds will continue to be held in trust until that issue is resolved.
243On a go-forward basis, the husband shall make his proportionate share of child-care/camp to the service provider who will issue receipts to him in the amount paid. The balance of the section 7 expense shall be paid directly to the wife, in accordance with the terms agreed to in the Bruhn J. order.
244On March 22, 2022, the parties consented to an order that sets out most of the anticipated section 7 expenses and the costs of same. The parties are expected to use the agreed-upon list to determine the arrears of section 7 expenses that are owed by the husband.
245With respect to potential orthodontic expenses for either child, each party may obtain an opinion as to the need (if health related as opposed to cosmetic), the cost and any health insurance coverage that may be available. The parties should work together to determine if such an expense is necessary, given that the expense may be significant.
246The child support shall end for each child when he is no longer a “child of the marriage” as defined in section 2(1) of the Divorce Act.22, and in accordance with the termination dates set out in the order.
247If Umayr attends post-secondary school on a full-time basis and resides away from home (in residence, in rental accommodations or with a relative to whom rent is being paid), the table amount of that child shall be reduced to 4/12 of his share (as the husband will be contributing to housing expenses as part of the section 7 post-secondary expenses).
VII. LIFE INSURNANCE
248The husband currently has no life insurance. While he would prefer not to obtain life insurance for cultural reasons, he is prepared to do so. However, he requests that the wife obtain life insurance as well.
249The children reside primarily with the wife (and currently have nominal time with the husband). As the support payor it is the husband who must have appropriate security for child support.
250Security for child support is imperative, particularly since Umayr will hopefully follow his parents’ footsteps and obtain a college or university degree. Nile may continue to be a “child of the marriage” as defined by the Divorce Act throughout his life.
251I am concerned that in the event of the husband’s death his estate will have insufficient funds and illiquid assets to meet the children’s needs, unless there is life insurance in place.
252While I appreciate the husband’s request that the wife be ordered to obtain life insurance, given the children’s high expenses, the quantum of child support and her income, I am not prepared to order the parent with primary care of the children to obtain life insurance.
253Given the ages of the children and the husband’s imputed income of $78,000 the appropriate quantum of life insurance is $150,000.
VIII. COSTS AND PRE-JUDGEMENT INTEREST
254As compared with their draft orders, neither party has been particularly successful. The wife’s claim for spousal support is dismissed, and I decline to use her proposed figures for the husband’s imputed income or the value of Pizza Pizza. I find that the husband has no ownership interest in the Oshawa Property. The husband’s claim for occupation rent is dismissed, I decline to order that he receive any equalization of net family property payment, and I impute an income to him that is higher than he proposed. I have set his proportionate share of the section 7 expenses at more than 50%. The husband must obtain life insurance. Both parties acted unreasonably and caused the resolution of this matter to be delayed (although the wife more so than the husband).
255Unless either party has met or beat the significant terms of any Offer to Settle, I may be inclined to order no costs. The parties are encouraged to resolve any costs or pre-judgement interest on consent.
256If the parties are unable to resolve these issues, they shall comply with the following (Applicant within five days of the release of these reasons; Respondent within five days later; no right of reply):
(a) submissions shall be single page, double-spaced (12-font Times New Roman) and limited to four pages. They shall form part of the Continuing Record;
(b) materials shall be filed through the Family Submissions Online Portal and a second copy emailed to the Judicial Assistant (Nurit.suzana@Ontario.ca) when they have filed their submissions;
(c) Offers to Settle shall be summarized in a chart that sets out the offer made on each issue, the degree of success on each issue (less favourable, as favourable or more favourable), and whether the terms of the Offer to Settle was severable. The actual Offer to Settle shall be attached to the chart. Bills of Costs shall be filed by the deadlines above but not form part of the Continuing Record;
(d) calculations for pre-judgement interest, if any;
(e) if no submissions are filed, there shall be no order as to costs or pre-judgement interest and the parties can jointly advise the real estate solicitor to release the security for costs to each of them; and
(f) the parties are not to contact the Judicial Assistant except for the provision of the costs submissions as set out above.
IX. FINAL CONSIDERATIONS
257The three years of litigation have taken a significant emotional and financial toll on the parties.
258The trial was challenging for everyone.
259It is unlikely that either party will be content with the order. However, it is important for the children that they move past the conflict and this litigation and towards a civil and respectful relationship with one another.
260There are two children, one with special needs, who will benefit from good relationships with each of the parents.
261I encourage them (again) to reach out to York Hills Mediation services now to work on their co-parenting and communication and, in the future, if a change to the child support may be appropriate.
X. DISPOSITION
262Order to go in accordance with draft order signed by me this day.
263All other claims made in the Amended Application and the Amended Answer are hereby dismissed.
Justice A. Himel
Date: June 13, 2022
Footnotes
- 2021 ONCA 815 at paras. 18 - 21.
- Ms Farzana Tabassum. She advised that she was not properly summoned and had not received the required funds – which the wife denied.
- Jayawickrema v. Jayawickrema, 2020 ONSC 2492, at para. 28.
- 2021 ONSC 7959.
- O. Reg. 114/99.
- 2015 ONCA 450.
- Roberts, at paras 11 to12.
- R.S.O. 1990, c.F.3, s. 5(1).
- Ward v. Ward, (2012) 2012 ONCA 462, 111 O.R. (3d) 81 (Ont. C.A.) at para. 25.
- Serra at para. 41.
- Drygala v. Pauli, 2002 CanLII 41868 (ON CA) at para. 28.
- IBID, at para. 45.
- The discretionary was explained by Mr. Patel as being related to the difference in timing of the filing of the HST/GST returns and the Financial Statements. Undeclared 2020 revenue will be declared in 2022.
- 2020 ONSC 5839.
- Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] 1 S.C.R. 420 (S.C.C.), paras. 36 and 39; Smith v. Smith, 2012 CarswellOnt 3113 (S.C.J.), para. 69.
- Fisher v. Fisher, 2008 ONCA 11, 2008 CarswellOnt 43 (C.A.), at para. 84.
- Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.), at paras. 44, 53-54; Bracklow v. Bracklow, supra, at para. 35; Smith v. Smith, supra, at para. 70.
- Smith v. Smith, supra, at para. 72.
- 2012 ONSC 6337.
- 2012 ONSC 2756 at para. 53.
- RSC, 1985, c. 3 (2nd Supp.)
- 2022 ONSC 1854