Court File and Parties

Court File No.: FC-21-56636 Date: 2023/01/05 Ontario Superior Court of Justice

Between: Nahid Sultana, Applicant And: Abu Salehin, Respondent

Counsel: Anna Towlson, for the Applicant Poroshad Mahdi, for the Respondent

Heard: February 7, 8, 9, 10, 11, 14, 15 and 16, 2022 Written Final Submissions: March 25, April 8 and April 14, 2022

Before: Gibson J.

Corrected Decision

In paragraph 1, Eshal’s age has been corrected from 16 to 14. On page 10, paragraph 54, item 8, the interest rate has been corrected from 3% to 4% and now reads as follows: Unless this Order is withdrawn from the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under it shall be paid to the Director, who shall then pay them to the person to whom they are owed. This Order bears post-judgment interest at the rate of 4% per year effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default.

Reasons for Judgment

Overview

[1] The applicant Nahid Sultana (“the applicant”), now 48, and the respondent Abu Salehin (“the respondent”), now 51, were married in Bangladesh in 1996. They then resided in the capital city of Dhaka at a building with the address of 1/3, Block A, Lalmatia, Dhaka, Bangladesh. They immigrated to Canada together in 2001. They are both now dual citizens of Canada and Bangladesh. They have two daughters, Arisha, now 17, and Eshal, now 14.

[2] The applicant commenced these proceedings by an Application dated December 5, 2017. Neither party sought a divorce in their original pleadings. The respondent amended his Answer on April 28, 2021, to seek a divorce. The divorce is not contested between the parties.

[3] The applicant took the position that the date of separation should be July 31, 2017. The parties disagree on the date of separation. The applicant agreed to use the respondent’s proposed date of separation of September 27, 2017, but seeks adjustments based on the alleged depletion of assets by the respondent leading up to this date. Her assertion is that the respondent depleted his assets significantly between January 2017 and September 2017 because separation was a foregone conclusion and he did not wish to divide his assets with the applicant. The parties attended mediation in June 2017 on two or three occasions.

[4] The applicant left the matrimonial home on September 27, 2017 with the two children, moving into a women’s shelter. The applicant moved back into the matrimonial home at 423 Tealby Crescent in Waterloo with the children in January 2018, at which time the respondent vacated the matrimonial home. The parties reached an interim agreement dated January 16, 2018.

[5] The parties resolved issues involving the children including the respondent’s child support obligations from January 21, 2021 onwards on a Final Basis and on consent by Minutes of Settlement reflected in the Order of Breithaupt Smith J. dated December 11, 2020. The divorce was severed from the corollary issues at that time. Pursuant to that Order, the respondent is to pay ongoing child support commencing January 1, 2021 of $1,664 per month, based on his 2020 income of $115,716. The issue of child support from the date of separation to January 1, 2021, is not resolved. The respondent has been paying child support pursuant to Interim Minutes of Settlement dated January 16, 2018, at a rate of $1,496 per month, and then at a rate of $1,402 per month pursuant to the Order of Nightingale J. dated March 1, 2019. The issue of arrears of child support and spousal support was left for trial. The applicant contends that the respondent is in arrears of child support in the amount of $23,880.26.

[6] Pursuant to the Temporary Order of Nightingale J. dated March 1, 2019, the respondent has been paying spousal support in the amount of $500 per month. Entitlement to spousal support is not disputed between the parties. The remaining issue is quantum, and what set-off, if any, should be given to take into account that since January 1, 2018, the applicant has been living in the mortgage-free matrimonial home. The applicant contends that the respondent is in arrears of spousal support in the amount of $42,093.

[7] Each party claims the other owns property in Bangladesh. Each denies the other’s claim. The applicant claims that the respondent owned property on the date of marriage and owns this same property on the date of separation. She claims that the property has been redeveloped and is now worth much more than it previously was. The respondent claims that the applicant purchased property in Bangladesh during the marriage. The issue of purported ownership of property in Bangladesh occupied the bulk of time at trial.

[8] The amount and value of gold jewellery possessed by the applicant was an issue between the parties. This has now been resolved by the agreement of the parties during the trial.

Evidence

[9] The trial was conducted virtually on the Zoom platform.

[10] The applicant wife called two witnesses, herself and her expert witness regarding documents concerning property in Bangladesh, Nusrat Jahan. Ms. Jahan is a solicitor who practices both in Bangladesh and in Ontario. The respondent husband called two witnesses, himself and his expert witness regarding documents concerning property in Bangladesh, Faisal Miah. Mr. Miah practices law in Bangladesh.

[11] A large number of documents were submitted in evidence.

Issues

[12] There were seven issues on this trial:

1. The validity of a foreign divorce;
2. Ownership of foreign property;
3. Equalization of Net Family Property;
4. Adjustments to Net Family Property/Claim for Unequal Division;
5. Child and Spousal Support Arrears;
6. The Respondent Husband’s Claim for Occupation Rent; and,
7. Post-Separation Adjustments for Home Insurance and Property Taxes.

Assessment

[13] Both parties gave evidence at this trial. The applicant was generally a credible witness. She answered most questions directly and in a straightforward manner. However, she clearly experienced some challenges answering questions in English. Further, she struggled to identify and appreciate the contents and relevancy of some of the Bangladesh documents that she produced and relied upon.

[14] The respondent was frequently not a credible witness. He was often evasive, and his factual evidence was contradicted by other evidence.

Issue 1: The Validity of the Foreign Divorce

[15] The respondent produced evidence that he applied for and obtained a divorce in Bangladesh.

[16] Foreign law is a fact to be proved by expert evidence: Abraham v. Gallo, 2022 ONCA 874 at para. 22.

[17] Bare talaq divorces, without more, are not recognized as valid in Canada: Abraham v. Gallo, at para. 20.

[18] The parties had no real and substantial connection to Bangladesh at the time of the divorce. Neither party was a resident nor had been a resident of Bangladesh since October 31, 2001. Yet, the respondent provided an address for himself and his wife in Bangladesh on the forms he submitted.

[19] I find that the Bangladesh divorce is invalid and of no force or effect in Ontario.

Issue 2: Ownership of Foreign Property

[20] Both parties claim the other owns real property in Bangladesh. Both parties deny that they do so. Most of the time at trial was focused on this issue.

[21] Both parties obtained, produced and submitted voluminous documentation in this proceeding that allegedly proves the other owns real property in Bangladesh. Each party claims that their documentation is authentic, and alleges that the other’s documents are false and were fraudulently obtained.

[22] Both parties engaged experts to report on the authentication of the documents. The applicant engaged an expert, Ms. Jahan, to report on the authentication of both parties’ documents. The respondent engaged an expert, Mr. Miah, to report only on the applicant’s documents.

[23] The applicable standard of proof regarding these documents is on the balance of probabilities. However, even on this standard, there are insufficient indicia of authenticity and reliability to make findings of fact regarding the ownership of property by either party in Bangladesh.

[24] I have not been persuaded by either party that the evidence is sufficiently reliable to do so.

[25] Both experts, and the counsel of both parties in their submissions, remarked on the notorious prevalence of corruption and document fraud in Bangladesh. This forms the background against which the claims of both parties as to the provenance and authenticity of their documents must be assessed.

[26] Both experts were overtly partisan in their evidence, which detracts from the weight that I would ascribe to their opinion evidence. But even beyond this, the respondent’s expert Faisal Miah was not credible. His evidence was problematic in a number of areas. He did not present as knowledgeable on the topics for which he was purportedly an expert. I do not accept the evidence of the respondent’s expert Mr. Miah. His evidence was riddled with obvious errors. Moreover, I accept the applicant’s submission that Mr. Miah’s testimony led the respondent not to call his next listed witness, Mr. Saiduzzaman Khan. Mr. Khan was expected to testify that he attended at the land registry office and obtained the land registry documents relied upon by the respondent, but this was contradicted by other evidence. The evidence presented by the respondent regarding the purported evidence of the applicant’s ownership of property in Bangladesh was a stew of confusion, obfuscation and deceit.

[27] The greatest weakness in the applicant’s case regarding the documents is the lack of evidence as to how the documents she relies upon were actually obtained and came into her hands. Her account that they were obtained by her father’s driver is dubious, and her father was not called as a witness to substantiate her claims. Notwithstanding the extensive evidence from Ms. Jahan about the documents, and submissions by her counsel, this lack of satisfactory evidence of how the documents were obtained is fatal to her claim. That the documents appear to have been stamped by a Notary Public is not sufficient in the circumstances to satisfactorily prove their authenticity or reliability.

[28] The documents presented by the respondent are entirely unreliable. Some have the whiff of fraud.

[29] The burden is on the applicant to prove on a balance of probabilities that the respondent owns property if she asserts this claim. I find that there is insufficient reliable evidence to find that the respondent currently owns property in Bangladesh, even on the standard of a balance of probabilities. Further, even if the evidence surpassed this threshold, there is a paucity of reliable evidence about what the current value of the property would be. It would be unsafe to make findings of fact on the evidence presented at this trial. The position of the applicant invites an unsustainable speculation on the part of the Court.

[30] The burden is on the respondent to prove on a balance of probabilities that the applicant owns property if he asserts this claim. There is no credible evidence that the applicant owns property in Bangladesh. I have a considerable concern that the documents produced by the respondent purportedly demonstrating this are fraudulent.

[31] I find that neither party has demonstrated to the requisite standard of proof that the other currently owns property in Bangladesh.

Issue 3: Equalization of Net Family Property

[32] For the purposes of the uncontested divorce and for calculating NFP, the date of separation is September 27, 2017.

[33] As submitted by the applicant’s counsel, a determination of the preceding issue of ownership of properties in Bangladesh was necessary before this issue could be addressed.

[34] The parties are not otherwise far apart in their positions regarding NFP. As I have found that neither party has substantiated their claims about ownership of property in Bangladesh, equalization of NFP can proceed on the basis set out in the applicant’s NFP Statement calculation. This takes into account the agreement reached during the trial for a fair division of gold jewelry.

Issue 4: Adjustments to Net Family Property/Claim for Unequal Division

[35] The applicant submits that the respondent intentionally depleted his assets leading up to separation, and that the amounts removed should be added back and the NFP adjusted accordingly. I agree with this submission.

[36] The evidence discloses, and I find, that leading up to the date of separation, the respondent removed $20,000 from his Tax-Free Savings Account 614W66-J on March 28, 2017, $22,000 on April 6, 2017, and then $754.35 to close the account on July 11, 2017.

[37] The respondent says that this money was used to pay back a family debt owing to his brother. The applicant disputes this and asks that $42,754.35 be equalized.

[38] I do not believe the respondent’s claim that he owed a debt to his brother. The respondent’s testimony regarding debit vouchers and deposit vouchers and how they were signed is illogical and not credible. The respondent could not explain how he came to calculate what he purportedly owed his brother at the time he allegedly paid his brother. The respondent did not call his brother to testify to corroborate his assertion that a debt was owed and paid off. The evidence does not support the contention that the family was in need of loans to fund the various trips asserted by the respondent. I find that the alleged loan was a contrivance by the respondent to attempt to avoid his equalization obligations to the applicant, and that he is not entitled to a deduction in this regard.

[39] From January 19, 2017 to June 13, 2017, the respondent removed $56,109.96 by cash withdrawals. The applicants asks that this amount be equalized.

[40] The respondent withdrew $5,074.51 from account 6552335 on June 20, 2017, and closed the account.

[41] From January 2017 to September 27, 2017, the respondent withdrew $11,819.54 from his Registered Group RSP account.

[42] I find that that respondent removed these sums, adding up to $115,683.85, to liquidate his bank accounts leading up to separation in order to try to avoid equalizing his assets. Pursuant to s.5(6)(d) of the Family Law Act, there should be an adjustment.

[43] The applicant concedes that she too withdrew monies and closed an account prior to September 27, 2017, in the amount of $10,192.29.

[44] Performing the relevant calculation, $115,683.85 minus $10,129.29 equals $105,491.56. This amount divided in half equals $52,745.78. This amount should be added in equalization adjustments.

Issue 5: Child and Spousal Support Arrears

[45] The proper and final amounts of child support and spousal support payable by the respondent to the applicant from the date of separation to January 1, 2021, remained outstanding and to be determined at trial, as per the Final Order of Breithaupt Smith J. dated December 11, 2020, at para. 21.

[46] I accept the calculations made at the chart produced by the applicant created using the parties’ Line 150 incomes per their tax returns with appropriate adjustments for spousal support received by the applicant. Spousal support should be paid at the SSAG mid-range amount, and child support pursuant to the Child Support Guidelines.

[47] Arrears of child support as at February 28, 2022, are fixed at $23,800.26

[48] Arrears of spousal support are fixed in the amount of $42,093.00 as at February 28, 2022.

[49] From March 1, 2022, the respondent should pay spousal support in the amount of $883.00 per month.

Issue 6: The Respondent Husband’s Claim for Occupation Rent

[50] Occupation rent is exceptional relief and not meant to be the norm.

[51] The onus is on the party requesting occupation rent to prove it. The respondent has not advanced sufficient evidence at trial to support or advance a claim for occupation rent, or to permit its quantification.

[52] Moreover, given the circumstances, this is not an appropriate case to order occupation rent to be paid by the applicant.

Issue 7: Post-Separation Adjustments for Home Insurance and Property Taxes

[53] There is no mortgage on the matrimonial home. The applicant has lived in the house since January 2018. She has not paid occupation rent. The parties had agreed to list the home for sale by April 26, 2018. This did not happen for reasons disputed between the parties. The parties agreed in the Interim Minutes of Settlement dated January 16, 2018, that they would share the costs of property taxes and property insurance. Neither has fully complied with their obligations pursuant to this agreement. In these circumstances, it is not appropriate to order post-separation adjustments in respect of home insurance and property taxes.

Order

[54] The Court Orders that:

1. The respondent shall make a payment in respect of the equalization of NFP to the applicant in the amount of $49,752.73;
2. The respondent shall make an additional payment to the applicant for equalization adjustment of $52,745.78;
3. Arrears of child support as at February 28, 2022, are fixed at $23,800.26;
4. Arrears of spousal support are fixed in the amount of $42,093.00 as at February 28, 2022;
5. Commencing March 1, 2022, the respondent shall pay spousal support in the amount of $883.00 per month;
6. Support Deduction Order to issue;
7. For as long as child support is paid, the payor and the recipient must both provide updated income disclosure to the other party, within 30 days of the anniversary of this Order, in accordance with section 24.1 of the Child Support Guidelines;
8. Unless this Order is withdrawn from the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under it shall be paid to the Director, who shall then pay them to the person to whom they are owed. This Order bears post-judgment interest at the rate of 4% per year effective from the date of this Order. Where there is a default in payment, the payment in default shall bear interest only from the date of default;
9. The matrimonial home at 423 Tealby Crescent, Waterloo, Ontario, shall be listed and sold by a Multiple Listing Service (MLS) listing through a real estate agent. The house shall be listed for sale by May 1, 2023. If the parties are unable to agree on the listing real estate agent, the agent shall be chosen by the respondent. The applicant shall be responsible for paying property taxes and home insurance for the property until it is sold; and,
10. A Divorce Order shall issue.

Costs

[55] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the respondent; the respondent a further 14 days to respond; and the applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the applicant’s initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.

M. Gibson, J. Date: January 5, 2023