Court File and Parties

COURT FILE NO.: FS-21-100651-00 DATE: 2023 03 23 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Gulnaz Mehboob AND: Masood Hamid and GM Real Estate Limited

BEFORE: André J.

COUNSEL: R. Niman, for the Applicant M. Zalev, for the Respondents

HEARD: February 15, 2023

Endorsement

André J.

1The Applicant, Ms. Gulnaz Mehboob, brings a motion for the following relief: temporary spousal support, retroactive to March 1, 2020, full and complete financial disclosure, an order for the retention of an expert to ascertain Masood Hamid’s income for 2019, 2020, and 2021, questioning and permitting the Applicant to retain a financial expert to advise on the outstanding issues in this matter. The Respondent opposes the Application on the grounds that a) a settlement conference has been set for May 2023, and b) the Applicant has unilaterally withdrawn huge sums of money from their joint account. Consequently, the Respondent seeks an order that his spousal support obligations be terminated effective immediately upon his retirement, or an order that the Respondent pay spousal support in the amount of $1.00 per year.

Background Facts

2The parties were married on February 25, 1982 and have four children.

3The parties separated on February 8, 2018. The Respondent financially supported the Applicant for two years following their separation but ceased doing so in March 2020.

4The Respondent has not provided financial disclosure to enable the Applicant’s expert to gauge his income for 2019, 2020, and 2021, despite at least one court order dated January 17, 2022 requiring him to do so.

5The Respondent lives and works in Saudi Arabia and Pakistan. He reportedly has assets in many jurisdictions in the Middle East. The Applicant and the children live in Ontario. The latter are no longer considered “children of the marriage” for child support purposes.

6The Applicant resides in the matrimonial home which is jointly registered in the names of both parties. The parties own another home in Mississauga where the Respondent resides. They owned seven properties at the date of separation but have sold two and divided the proceeds of sale. The parties’ three sons also reside in the matrimonial home at the insistence of the Respondent.

Employment History

The Applicant

7The 57-year-old Applicant was a stay-at-home mother during the marriage and the main caregiver to the children. The Applicant and the children immigrated to Canada in 2000 while the Respondent continued to reside in Saudi Arabia while making periodic trips to Canada. The Applicant currently enjoys income from her investments, rental income from property purchased after separation and rental income from the parties’ jointly owned properties.

The Respondent

8The 69-year-old Respondent has been employed by an electrical power supply company in Pakistan for some forty years. He also owns business interests in Saudi Arabia where he provides consulting services in the field. He has also been involved in property development on his own and with one of his friends. While the Respondent maintains that he no longer works for the electrical power company in Pakistan, he continues to conduct business with the company. He reportedly stopped working as a result of the COVID-19 pandemic but resumed working in 2021.

9According to the Applicant, the Respondent earned in excess of $1 million annually during their marriage. He gave large sums of money to friends and family and also paid $70,000 for golf club memberships for his family.

10In 2018, the parties jointly retained Paul Mandel of RSM Canada Consulting to calculate the Respondent’s income for the years 2015 to 2018. Mr. Mandel reported the Respondent’s income as follows:

2015 $1.9 million 2016 $2.2 million 2017 $1.26 million 2018 $910,000

11The three year average for the Respondent’s income from 2016 to 2018 was therefore $1.45 million annually. Based on this annual average, the Applicant’s monthly spousal support is $36,000.

Analysis

12The motion raises the following issues:

a) Should the Respondent be required to pay retroactive and ongoing spousal support to the Applicant? b) Should the Respondent be required to provide full and complete financial disclosure to the Applicant? c) Should the Applicant be permitted to retain her own expert to gauge the Respondent’s income over the last three years?

13The Respondent’s counsel submits that an order for spousal support is not warranted at this time for the following reasons:

a) A settlement conference has been set for May 2023. b) The Applicant’s net worth has increased by $1.8 million since separation while the Respondent’s has decreased by $425,000. c) The Respondent consented to the Applicant withdrawing $51,000 from the parties’ joint account and consented to her withdrawing another $400,000 from another account. Prior to separation, she removed $150,000 from another account and an additional US $156,000 from the joint account. The Applicant also withdrew significant amounts of money from the parties’ joint account in October 2019. Furthermore, the Respondent has paid the Applicant $339,000 in spousal support since separation. She has received $2.8 million from the Respondent and from their joint accounts. The Respondent therefore submits that the Applicant’s request for retroactive spousal support is unreasonable.

14I do not subscribe to the view that the Respondent should be absolved from his responsibility to pay spousal support because of an upcoming settlement conference. The Respondent has not paid any support for three years. He claimed that he was not working for some time following the onset of the COVID-19 pandemic but resumed working in 2021. He did not resume paying the Applicant spousal support. She should not be deprived of support the Respondent is required to pay because of an impending hearing which would attempt to resolve the issues between the parties.

15I agree that the increase in the Applicant’s net worth post-separation should be assessed in determining the amount of support that the Respondent should be ordered to pay. This is because in ascertaining the quantum of spousal support that the Respondent should be required to pay, I must assess the means, needs, and circumstances of each spouse. I must therefore consider the large sums of money that the Applicant withdrew, on consent, from the parties’ joint account. These amounts, in my view, must be considered in ascertaining the Applicant’s needs, conditions and circumstances.

16That said, I disagree with the Respondent’s counsel that no support order should be made because of the money which the Applicant has withdrawn from the parties’ account, with or without his client’s consent. Furthermore, the Applicant has deposed that she withdrew some of the money “out of necessity” following the Respondent’s decision to stop paying spousal support. She also withdrew funds from one account based on his instructions. The Respondent has failed to provide full disclosure as would enable the Applicant to ascertain his true income in 2016, 2017, and 2018. He cannot benefit from that failure by unilaterally deciding that he should not pay any spousal support.

17I am unwilling to accede to the Respondent’s requests for an order to terminate spousal support immediately not only because he has failed to provide complete disclosure, but also because of my concerns that he may not have been forthright about his financial situation. He unilaterally claimed that his net family property (NFP) on the date of separation was $5.2 million compared to $3.5 million for the Applicant. He now claims that his NFP has shrunk to $3.2 million. The fact that he has not fully provided information about his income and savings in other jurisdictions raises concerns about the veracity of this information.

18Given the length of their marriage, and that the Applicant stayed home to care for the parties’ four children, I have sufficient evidence to conclude, based on the principles set out in the Divorce Act, R.S.C, 1985, c. 3 (2nd Supp.), that the Applicant is entitled to receive spousal support for an indefinite period. While I agree with the Applicant’s counsel, relying on Elgner v. Elgner, at para. 28, that a wife should not have to eradicate her savings to pay for her living expenses, there is little risk in this case of the Applicant having to do so given her income and the amount of money she has withdrawn from the parties’ joint accounts.

19I am therefore reluctant to order the quantum of monthly spousal support of $37,000 sought by the Applicant. The amount which the Respondent may have been required to pay could either exceed that amount or is less than that amount. Full disclosure of his myriad business interests may ultimately determine the true amount. What may be required is for the court to fix an amount, without prejudice, with the amount of spousal support owing to be determined by the trial judge if this issue is not resolved.

20The Applicant’s counsel recommends that the Respondent be required to pay a lump sum payment of $336,000 from the date of separation to the day he stopped paying spousal support in March 2020, and ongoing monthly spousal support of $37,000.

21I am prepared to make an order requiring the Respondent to pay retroactive and ongoing spousal support to the Applicant for lesser amounts on a without prejudice basis.

Orders

22Order to go that:

a) The Respondent Masood Hamid shall pay spousal support to Gulnaz Mehboob in the amount of $20,000 monthly commencing March 1, 2023, on an interim basis, without prejudice, b) The Respondent Masood Hamid shall pay retroactive spousal support to Gulnaz Mehboob in a lump sum payment of $200,000 for the period from April 1, 2020 to February 28, 2023 on an interim, without prejudice basis, c) Both parties shall exchange written requests for full and complete financial disclosure within fifteen (15) days of today’s date, d) The Applicant shall retain her own expert to examine the financial disclosure provided by the Respondent to ascertain his income for the years 2019, 2020, and 2021.

Costs

23The Applicant’s counsel, who was called to the Bar in 2011 and whose hourly rate is $495, seeks costs in the amount of $57,000 and $34,000 on a full recovery and partial recovery basis respectively.

24The Respondent’s counsel, who was called to the Bar in 2005 and whose hourly rate is $550, seeks costs of $51,000 and $38,000 on a full and partial recovery basis respectively.

25In determining what costs are fair and reasonable in the matter, I consider the following:

i) The matter required a considerable amount of preparation including the compiling of many documents, the preparation of facta and the review of the materials filed by opposing counsel; ii) While the Applicant was not entirely successful, she got much of what she sought in the motion; and iii) While the matter was hotly contested, neither side acted in an offensive fashion. However the action of the Respondent unilaterally ceasing to pay spousal support in March 2020 and seeking to immediately terminate the payment of spousal support appears to be very unreasonable.

26Based on the above, I order that the Respondent pay costs, fixed in the amount of $25,000 inclusive, to the Applicant, within sixty (60) days of today’s date.

André J.