COURT FILE NO.: FS-17-416430-0001 DATE: 20230417 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Jimin Sha, Applicant – and – Toan Tran Buchan, Respondent
Counsel: Jeff J. Li, for the Applicant Stefan Juzkiw, for the Respondent
HEARD: March 20, 22, 23, and 24, 2023
FL Myers J
REASONS FOR JUDGMENT
This Proceeding
[1] The parties consented to hold a trial of an issue in this application. In her endorsement dated November 21, 2022, Kristjanson J. directed that the sole issue to be tried is whether the parties’ 2017 default judgment for divorce is valid. If the divorce is valid, the applicant’s property claims have been brought more than two years later and are therefore too late.
[2] The applicant Ms. Sha submits that the divorce is not valid for two reasons. First, she says she was never served with notice of the divorce proceeding. In addition, she submits that the date of separation used by the respondent Mr. Buchan to obtain the divorce was not truthful.
The Competing Stories and Outcome
[3] Ms. Sha says that the parties were married on July 18, 2013 and lived together as a married couple until 2020. She was not aware of any divorce proceeding or order in 2017. She only learned that Mr. Buchan had secretly obtained a divorce once the lawyers became involved after the parties separated in 2020.
[4] Mr. Buchan owns numerous properties that he rents to residential roomers and tenants. He says that in 2013 Ms. Sha was his tenant. She offered to pay him $80,000 to feign a marriage so she could obtain immigration status. He agreed and they were married. However, they never lived together as a couple. Rather, once Ms. Sha obtained her permanent residency, they divorced consensually by divorce order dated May 24, 2017.
[5] The outcome of this trial turns on credibility. For reasons that will become apparent below, both parties are so willing to give untruthful evidence that it is impossible to know when they are telling the truth. If either is to be believed, I must accept that they engaged in one or more deliberate plots to defraud the Government of Canada. Of course, that is entirely possible. But neither party seems to have realized that their admissions of immigration fraud, tax fraud, and generally saying anything they viewed as helpful at the moment might impact on their credibility more generally.
[6] Even the documents cannot be relied upon as providing an objective contemporaneous record in this case. Each party selectively denies authoring or receiving documents so as to make the written record subject to their personal credibility as well.
[7] Below is the story as best as I can make it out. Because I cannot tell whom to believe in most places, the burden of proof will loom large in the outcome.
[8] Ms. Sha challenged the August 1, 2015 separation date by claiming that the parties cohabited from February, 2013 right up to 2020. I find that Ms. Sha has not proven on a balance of probabilities that the parties ever cohabited.
[9] But no matter whose story is closer to the truth, the parties did not separate on August 1, 2015 as claimed by Mr. Buchan in the divorce proceedings. Ms. Sha says they separated in 2020. Mr. Buchan says they never lived together.
[10] Mr. Buchan admitted on the witness stand that nothing happened of note on August 1, 2015 to make that a separation date.
[11] I also find that Mr. Buchan did not establish that he served notice of the divorce proceeding on Ms. Sha. Mr. David Scott swore an affidavit of service and gave evidence in court. But he did not know what was in the envelope he claims to have given to Ms. Sha. Moreover, for reasons discussed below, I do not believe him in any event.
[12] The court sent the divorce order to Ms. Sha at an address provided by Mr Buchan. But the address that he provided for her was not Ms. Sha’s address at the time. So that does not help prove service or start a clock running for a motion to set aside the default divorce order.
[13] Part of the test to set aside a judgment obtained without notice involves an assessment of the merits. But part also involves an assessment of the overall justice of the case. As I do not find that the parties ever lived together, there is no defence to a divorce today to be sure. Moreover, there was no defence available to the applicant in 2017 for that matter. But the real issues are economic – especially whether the applicant has equalization rights. In my view, it is just in the circumstances to set aside the divorce order to prevent a limitation period for property relief from running from the date of a divorce of which the applicant had no notice. [2] Lee v. Jerome, 2018 ONSC 6032 at para. 15.
[14] It follows that I set aside the divorce order dated May 24, 2017.
The Facts
(a) Introduction
[15] The parties each delivered affidavits before the trial. In her trial scheduling endorsement, Kristjanson J. had allowed one hour for each party to give oral evidence-in-chief. It is typical in a summary trial with affidavit evidence to allow a brief period of oral evidence-in-chief in addition to the parties’ affidavits. The purpose is to give a brief “warm-up” to allow witnesses to become acclimatized to testifying before being subjected to cross-examination.
[16] On reading the parties’ affidavits, it was clear that they told drastically different stories. Although I normally provide only around 15 minutes for witness warm-up, counsel wanted the opportunity for their clients to give fuller evidence-in-chief in view of the importance to them of establishing their credibility. I agreed as this seemed like a helpful request. [3]
(b) The Parties Meet in 2012
[17] In July, 2012, Ms. Sha emigrated to Canada with her 10-year-old son. She spoke Mandarin and no English. She claimed refugee status on the basis that she faced persecution by the Chinese government because she was a follower or practitioner of Falun Gong.
[18] Ms. Sha’s evidence at trial was that, upon arriving in Canada, she went to work in the sex trade. She worked in a “spa” in downtown Toronto. Mr. Buchan became her customer.
[19] Ms. Sha was very evasive when asked to confirm that as a refugee claimant, she was not allowed to work in the sex trade.
[20] Mr. Buchan does not speak Mandarin. The parties communicated in English. Ms. Sha exaggerated her lack of English comprehension at trial. She also failed to mention until cross-examination that as part of her application for social benefits, Ms. Sha was required to take ESL. She says she started a course but did not finish it.
[21] Ms. Sha has been here for more than a decade and ran her own spa business from 2017 to 2020. At trial she often answered questions or shook or nodded her head before translation was completed. She acknowledged receipt of a particular government letter despite allegedly being unable to read it.
[22] I have no doubt that Ms. Sha is not proficient in English. I completely understand any party or witness using a translator in court to try to maximize comprehension and minimize loss of detail or nuance. It was Ms. Sha’s pretense of not understanding English at all, as late as this trial, and using language as a basis to deny involvement in pieces of the story that lacks credibility.
[23] In her first affidavit, Ms. Sha recounts how she met Mr. Buchan in 2012 and started a relationship with him. They sent text messages a few times each week. He would take her to his place once a week and they developed a romantic relationship. She added in court that he was teaching her English too.
[24] In her affidavit, Ms. Sha did not mention that she was working as a sex worker in a spa and that Mr. Buchan was her customer. The omission may be due to some embarrassment (although I do not know why in 2023). It may have been to hide the fact that she was working without a work permit. In any event, as is often the case, the omission is a worse wrong than had Ms. Sha told her story more completely.
[25] Ms. Sha tries to present the case as two people who met, fell in love, and then had a traditional marriage in which she stayed at home while he was the “breadwinner”. But at trial she agreed that she worked again in a spa for nearly a year starting in 2014. She also opened and operated her own spa from 2017 to 2020. This is not the picture she tried to paint under oath in her affidavits.
[26] Mr. Buchan claims that his relationship with Ms. Sha was strictly transactional throughout.
[27] Ms. Sha says that she initially refused Mr. Buchan’s request that she move in with him. He then offered to support her by paying her $500 per month and she agreed to move in with him.
[28] Ms. Sha says that on February 7, 2013, she and her son moved in with Mr. Buchan in one of his apartment units on Eglinton Avenue West. Mr. Buchan denies that he ever lived there with her. He says she was just his tenant and that he lived elsewhere.
[29] Ms. Sha became pregnant around that time. Mr. Buchan is recorded in hospital records as having accompanied Ms. Sha to the hospital when she suffered an urgent situation. Mr. Buchan tends to his properties daily doing maintenance, gardening etc. He says that he happened to be in the building when Ms. Sha suffered the emergency.
(c) The Parties Marry on July 18, 2013
[30] Mr. Buchan says that Ms. Sha was worried about her immigration status and offered him $80,000 to marry her to help her become a permanent resident of Canada. Mr. Buchan says he agreed to participate in a sham marriage of convenience. The money was to be payable when she received her immigration status.
[31] Once the parties married, Ms. Sha withdrew her refugee claim and made a claim for permanent residency as a spouse.
[32] Ms. Sha denied being concerned about her refugee claim. But she returned to China for a visit in 2018. She says she was not afraid that the Chinese government might persecute her then. I find this very hard to understand. It gives some credence to Mr. Buchan’s suggestion that Ms. Sha was not confident in her refugee claim and was looking for other ways to obtain immigration status.
[33] Mr. Buchan’s best case is that the parties’ marriage was a business transaction in which he agreed to commit immigration fraud in return for a promise of a significant payment.
[34] In furtherance of their fraudulent design, Mr. Buchan says that Ms. Sha called him on July 18, 2013 and said that she wanted to get married that afternoon. He grabbed a couple of cheap rings that he had in his apartment and went to City Hall with her to get married. He was wearing work clothes.
[35] Ms. Sha agrees that no family or friends were invited to the wedding. Ms. Sha had not even met Mr. Buchan’s two siblings who lived in the GTA. There were no invitations and there was no celebration. Ms. Sha says that Mr. Buchan brought some strangers to act as family or to be witnesses. He says that he brought two tenants and that Ms. Sha brought an old Chinese couple whom he did not know to be witnesses.
(d) 2014 to 2016 – The Parties Open a Spa and then Mr. Buchan gets Arrested
[36] Ms. Sha says that in 2014 Mr. Buchan gave her $12,000 cash. She says she did not know why. She used it for unspecified personal expenses. He says it was a loan towards a new spa that they agreed to open on St. Clair Avenue as 50/50 partners. Ms. Sha agrees that she worked for Mr. Buchan in his new spa. But she says he signed the lease; he hired the sex workers; and it was his business. She was just a receptionist of sorts.
[37] Mr. Buchan testified that he had no relationship and very little contact with his tenant Ms. Sha after they were married. He could not explain how he ended up loaning her money and agreeing to go into partnership with her in the sex trade. He is an electrician by training.
[38] The business did not last very long because a few months later Mr. Buchan was arrested on marijuana charges. Ms. Sha says she did not have enough proficiency in English to run the place on her own. I was not told what happened to the lease obligations or to the rest of the going concern. The business just closed. I was not told what became of the claimed $12,000 loan.
[39] When Mr. Buchan was arrested, he was released on bail conditions. One condition was that he had to sleep at the house of his surety. Ms. Sha was not Mr. Buchan’s surety. His surety was the sister of his first wife. The surety lived in a home with Mr. Buchan’s ex-wife and their young child (born in 2010).
[40] Ms. Sha agrees that every night for the next two years, Mr. Buchan slept over with his ex-wife, his son, and his surety. He told Ms. Sha there was no room for her to stay there with him.
[41] Ms. Sha obtained her permanent residency status in June, 2015. Mr. Buchan says that it was conditional on her continuing to be married for another two years. So, he says, he agreed to her request that he defer a divorce until mid-2017.
[42] In October, 2016, Mr. Buchan and his ex-wife had a second child together.
[43] Although Mr. Buchan slept at a house with his ex for two years and fathered a second child with her, Ms. Sha says he came home to her early every morning and he only left to go to the surety late at night. They still lived as a family. Moreover, she says that when the St. Clair spa closed, she went to work for Mr. Buchan as an assistant of sorts. She would accompany him on his rounds to his various properties every day to assist with maintenance chores. She collected rents for him as well. She says that she did not need to speak English just to pick up cash from the tenants.
[44] Ms. Sha says she did not pay rent herself. She only paid rent for three months early-on after the parties had a fight. She says that Mr. Buchan hit her and then moved out. She paid rent for three months and then they reconciled. She forgave him.
[45] In 2014, Ms. Sha discovered women’s hair at another of Mr. Buchan’s properties on Weston Road. He apparently admitted to taking his ex-wife and possibly other women there. Ms. Sha says she asked for a divorce and Mr. Buchan refused. She forgave him.
[46] Ms. Sha says she also asked for a divorce when she discovered that Mr. Buchan had a new baby with his ex-wife. He refused once again and she forgave him. [4]
[47] Mr. Buchan denies all of this. He says he had no relationship with Ms. Sha. He did not go to her apartment every morning from 2014 to 2016 as she says. She never accompanied him or worked with him on his properties. She was just a tenant with whom he had a business deal to participate in a sham marriage.
[48] Mr. Buchan produced no documents about his properties and rents. He did not produce a rent ledger to show that Ms. Sha paid him rent throughout as he claimed. His tenants pay him cash. From the descriptions of some of the properties it sounds like many are more like rooming houses than legally recognized multi-unit rental facilities. Record-keeping was not a priority for Mr. Buchan.
[49] It is noteworthy that Ms. Sha never paid Mr. Buchan anything after getting her permanent residency status. He did nothing to try to enforce the $80,000 he says he was due. As discussed below, he also kept her on as a tenant, helped her obtain a $10,000 Refundable Child Tax Credit payment, and then helped her get a lease to establish her own spa business. That hardly sounds the acts of someone who feels cheated out of $80,000.
(e) 40 Walsh Avenue
[50] Once Mr. Buchan’s criminal charges were resolved (without conviction) in October, 2016, Ms. Sha says the family moved to another of Mr. Buchan’s properties at 40 Walsh Avenue.
[51] In his first affidavit, Mr. Buchan denied that Ms. Sha ever lived at 40 Walsh Avenue. He swore that he had no idea why she used that address on some of her documents as discussed below.
[52] Mr. Buchan’s memory improved at trial. He now recalls that Ms. Sha did move to Walsh Avenue in late 2016. It probably helped him that the neighbour from 38 Walsh Avenue, Ms. Lily Chetana, gave evidence that she saw Ms. Sha living there. Mr. Buchan’s witness Mr. Scott also recalls Ms. Sha moving to 40 Walsh Avenue as well. Mr Buchan’s initial evidence on this point was simply untrue.
[53] The evidence of Ms. Chetana and Mr. Scott diverge on a key point. Ms. Chetana believes that she saw Ms. Sha, her child, and Mr. Buchan living at 40 Walsh. Mr. Scott’s evidence is that Mr. Buchan lives in Scarborough and always has.
[54] Ms. Chetana tried to give helpful evidence. But her dates were very mixed up. She initially said that she thought Ms. Sha and Mr. Buchan moved in next door to her in or around 2011 (10 – 12 years ago). But Mr. Buchan only bought the house in 2014. She then thought that perhaps they moved in three to four years ago i.e., before the pandemic. She surmised this because she said that she did not see them during the pandemic and realized they had left. At most, she spoke to Ms. Sha once when Ms. Sha came to inquire if Ms. Chetana’s security camera might have recorded a burglar at her house on the prior night. Ms. Chetana did not speak to Mr. Buchan because he and his maintenance people kept dropping their grass clippings on her driveway.
[55] Ms. Chetana had no actual evidence that Ms. Sha and Mr. Buchan lived together at 40 Walsh Avenue. She saw others living there too at times (which is consistent with it being a sort of rooming house). She did not recall others living there while Ms. Sha was there. She only saw Mr. Buchan doing yard work, taking out the garbage, or shoveling snow. This is consistent with his evidence that his daily work included doing maintenance on his properties.
[56] Ms. Chetana thought she saw the parties’ cars at the house on a daily basis. But she thought Ms. Sha’s car was an SUV. It was not. She was able to identify Mr. Buchan’s white work van. She agreed that while she does not think Mr. Buchan lives at Walsh now, she still sees his van there often. She saw him there cutting the grass shortly before court.
[57] Unfortunately, Ms. Chetana’s evidence was too uncertain and too loaded with inferences to be much proof of anything. She was unwilling to sign a more definitive affidavit when requested to do so by Ms. Sha’s counsel. She declined because she was so uncertain about the dates. She had no evidence that Mr. Buchan lived with Ms. Sha and her son as a family beyond seeing Mr. Buchan’s truck and seeing him come and go doing maintenance work regularly.
[58] In addition to having an unusually casual wedding ceremony, Ms. Sha had no real evidence of living with and building a life with Mr. Buchan as a couple. Ms. Sha’s evidence is that they liked to have barbecues, including a few at a park, and they celebrated Chinese New Year with a party at least once. She says they enjoyed a conjugal relationship throughout. But no witnesses gave evidence that they ever saw the two together as a couple or socialized with them. No one says she or he went to their home. Ms. Sha put three ambiguous pictures into evidence. There were no pictures of the family at special events, at relatives’ significant events, at weddings, or religious events.
[59] Mr. Buchan is religious and goes to church. Not only was their wedding not in a church, but there is no evidence of Ms. Sha and her son ever participating in any church-based event with Mr. Buchan as a family.
[60] Ms. Sha did not display any gifts that either spouse bought the other. She did not bring into court any property that Mr. Buchan might have left at home when he left her allegedly in 2020.
[61] Ms. Sha says she worked with Mr. Buchan from 2014 to 2016 collecting rent and doing maintenance chores with him. There was no evidence of any tenant of the various properties or any friend or relative who could place Ms. Sha working with Mr. Buchan.
[62] Mr. Scott testified for Mr. Buchan that Ms. Sha did not do maintenance or collect rents for him. Mr. Scott was the person whom Mr. Buchan hired to help with maintenance on an as needed basis.
[63] Ms. Sha’s son is now around 20-years-old. Ms. Sha says that Mr. Buchan treated him like his son to some degree. He helped with homework and took the child to school at times. Ms. Buchan denies this completely.
[64] While I can readily understand a mother not wanting to involve her child in the trial, there was no evidence of any of the child’s teachers, a parent of the child’s friends, a crossing guard, or anyone who could place Mr. Buchan with the child at all.
[65] Ms. Sha adduced was no objectively verifiable evidence that the parties lived together. Her story turns on her credibility as a witness.
(f) The Multiplicity of Addresses for Different Purposes
[66] One problem with looking for documentary proof of the facts in this case is that the parties used multiple addresses. At the trial, Mr. Buchan admitted to documents showing him using at least five different addresses. He maintained a cloak of opacity or at least confusion around his affairs.
[67] Ms. Sha has a slimmed down case of the same affliction. While she blames Mr. Buchan for creating most of her documents, she had the ability to create truthful materials when she chose to do so. In October, 2016, when she moved to Walsh Avenue, she opened bank accounts and credit card accounts showing her new address.
[68] However, she kept her driver’s licence address showing her old Eglinton Avenue address despite the legal requirement to notify the Ministry of Transportation of a change of address within six days of moving. She says she did not change the address because she repeatedly failed her drivers’ test. She said she was waiting to pass the test to get a new licence showing her new address. That makes little sense to me. She could have submitted a change of address online or on any of her any attendances at Ministry offices for drivers’ tests. Successful completion of a test was of no relevancy.
[69] In 2017, Ms. Sha decided to open her own spa. It was to be her business alone. Ms. Buchan was not involved in the ownership or operation of the spa.
[70] Ms. Sha went to the City and obtained a business licence for her spa. Although she lived at Walsh Avenue by then, she used her old Eglinton Avenue address for the new business. She says the City required to use her driver’s licence address. That makes no sense. If the City wanted her address and asked for proof, she could have shown a credit card statement and told them that she was in the process of changing her driver’s licence address.
[71] Ms. Sha also could have proven her current Walsh Avenue address from a property tax bill. Although she is not a titled owner of the property, Mr. Buchan put her name on the property tax account with his. He says he did this to give her evidence of living with him as a married couple for her immigration application in 2015 (before she moved to Walsh Avenue). This is another overt act in furtherance of an immigration fraud admitted by Mr. Buchan.
[72] Ms. Sha did not deny that she used property tax bills for her immigration application. She did not produce her immigration lawyer or her file. In fact, Ms. Sha says she now forgets the name of her immigration lawyer.
[73] So, Ms. Sha had documentary proof of living at Walsh Avenue available to her if the City truly needed it for her business licence.
[74] After obtaining a business licence, Ms. Sha rented premises for the business on Keele St. Mr. Buchan went with Ms. Sha to meet the landlord and helped her with the lease. Why he did this is not clear. Ms. Sha used her Eglinton Avenue address on this lease as well.
[75] In March, 2017, at the same time that Ms. Sha was opening her new business, she applied to the CRA for payment of the Refundable Child Tax Credit.
[76] Ms. Sha applied for this government benefit on the basis that she was not married in 2017. She used her old Eglinton Avenue address to support the application.
[77] It appears that Ms. Sha used her Walsh Ave. address to say she was married to Mr. Buchan. She used Eglinton Avenue when she wanted to say she was single.
(g) The Refundable Child Tax Credit Fraud
[78] Ms. Sha says that Mr. Buchan told her in 2017 that she could get money from the government because she had a child. She says that he took her to meet a friend of his, a nurse named Ms. Margaret Pipe, who helped them fill-in the forms.
[79] The money from the Refundable Child Tax Credit went solely to Ms. Sha. She says that it benefited Mr. Buchan however because in 2017 he stopped giving her any money. That is why she opened her own spa at that time. (I note parenthetically that this undermines her evidence that he was the breadwinner in the relationship.)
[80] Mr. Buchan says that Ms. Sha approached him for help to obtain the government benefit. Mr. Buchan took her to Ms. Pipe to help Ms. Sha file her benefit claim.
[81] Ms. Pipe gave evidence at the trial. She too is a tenant of Ms. Buchan. She says he approached her to help his tenant Ms. Sha. She knew that, like herself, Ms. Sha was a single mother and an immigrant to Canada. She said she agreed to help Ms. Sha gratuitously.
[82] Ms. Pipe gave evidence that she met Ms. Sha twice. Mr. Buchan brought her but was not involved in the conversations. Ms. Pipe pointed to two handwritten letters to the CRA that she says she wrote for Ms. Sha. The first letter is from 2017 and was the cover letter that enclosed Ms. Sha’s application for benefits form. The other is from 2018 and was a response to the CRA’s request for further information.
[83] Ms. Pipe was ostensibly an independent witness. She denied receiving any consideration from Mr. Buchan for her testimony. She is a professional nurse and set herself apart and independent of the parties. Unfortunately, her evidence was demonstrably not truthful on the key point.
[84] Ms. Pipe says she wrote two letters and filled-in the Refundable Child Tax Credit application form for Ms. Sha.
[85] Ms. Pipe said that she filled out the application form with information provided by Ms. Sha in English. Ms. Pipe acknowledged that Ms. Sha’s English was not strong. But she understood and could make herself understood by Ms. Pipe.
[86] Ms. Pipe repeated several times her assertion that all information in the letters and benefit application form came from Ms. Sha. She seemed very defensive to me knowing now that the entries for Ms. Sha’s address and marital status are in issue.
[87] Ms. Pipe made a date error that completely undermined her testimony. The first letter that she claims to have authored is dated “10/3/17”. In para. 7 of Mr. Buchan’s affidavit and para. 39 of Ms. Sha’s, they agree that the date of the application and letter was March 10, 2017.
[88] Ms. Pipe mis-read the date and said she met Ms. Sha on October 3, 2017 (reading 10/3/17 as month/day/year instead of day/month/year). In itself, that mistake is inconsequential. But Ms. Pipe also said that at her first meeting with Ms. Sha, Ms. Sha told her that she had been married to and was then already divorced from Mr. Buchan.
[89] Ms. Pipe testified that Ms. Sha brought her Certificate of Divorce with her to their very first meeting.
[90] Ms. Pipe recalls this point particularly because she remembers being surprised to learn that Ms Sha and Mr. Buchan had been married and were now divorced. Ms. Pipe had met Mr. Buchan’s ex-wife and his two children. She did not know Mr. Buchan had married Ms. Sha. Ms. Pipe testified that when she asked Ms. Sha about being married, Ms. Sha responded by basically waving off the marriage and saying it was just “business”.
[91] The Certificate of Divorce mentioned by Ms. Pipe is found in the documents produced for the trial at the end of a group of documents that are the enclosures to the second letter authored by Ms. Pipe in October, 2018. When questioned about this, Ms. Pipe was clear and resolute that although the document may be included in an exhibit for trial with documents from the second letter, Ms. Sha showed it to her at their first meeting in 2017 when Ms. Pipe wrote the first letter to CRA with Ms. Sha’s benefits application form.
[92] Ms. Pipe said that she gave the letter, the application form, and the Certificate of Divorce to Ms. Sha and instructed her to sign the letter and send the bundle to the CRA.
[93] Ms. Pipe says Ms. Sha told her to use her Eglinton Avenue address and to show her on the application form as being “single”. Ms. Pipe got defensive when asked why she did not tick the box for “divorced” on the application form if she was told that Ms. Sha was divorced. Once again, she said she just did as she was told. But I thought that the whole point of the exercise was that Ms. Sha was coming to Ms. Pipe for help with forms that she might not understand. If Ms. Pipe was told about the divorce and saw the Certificate of Divorce, Ms. Pipe had no reason not to tell Ms. Sha to tick the “divorced” box on the benefits application form.
[94] But here’s the kicker. The divorce order obtained by Mr. Buchan is dated May 24, 2017. The court issued the Certificate of Divorce on July 28, 2017.
[95] Ms. Pipe said they met in October, 2017. But neither the divorce nor the Certificate existed yet on March 10, 2017 when Ms. Sha actually met Ms. Pipe the first time and they filled-in the benefits application form.
[96] I considered whether both parties might have been wrong about the date of the first meeting and perhaps Ms. Pipe was correct. But Ms. Sha opened a new bank account to receive the CRA benefits in March, 2017. It would not have made sense for Ms. Sha to have opened the bank account showing an Eglinton Avenue address seven months before even applying to the CRA for the Refundable Child Tax Credit using that address. [5]
[97] I find that the first meeting with Ms. Pipe occurred on March 10, 2017 as both parties agreed in their affidavits.
[98] Ms. Sha could not have known of the divorce nor had the Certificate of Divorce with her months before either existed. It follows that Ms. Pipe’s evidence that Ms Sha told her of the divorce, gave her the Certificate of Divorce, and that Ms. Pipe included the Certificate of Divorce in the first letter was not correct. Given her assuredness about the discussions occurring and the document having been provided to her at the first meeting, I unfortunately must conclude that Ms. Pipe’s evidence was untruthful. On her misreading of the date of the first letter as October 3, 2017, Ms. Pipe constructed a story that had Ms. Sha telling her about the divorce and giving her the Certificate of Divorce before either existed.
[99] Counsel for Ms. Sha followed the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.) and suggested to Ms. Pipe in several different ways that she was not telling the truth. But it escaped everyone’s notice while Ms Pipe was on the witness stand that Ms. Pipe had reversed the dates. So, she was never asked expressly how she could have been told of the divorce and seen a document at the first meeting with Ms. Sha when neither existed on the true date of the meeting.
[100] The best that Ms. Pipe might have been able to say was that she had confused the meetings. That would have been equally disastrous to her credibility as a witness given the degree of certainty that she expressed about the order of events.
[101] In addition, I am also troubled by the inclusion of the Certificate of Divorce in the bundle of documents that are said to be the enclosures with the 2018 letter to CRA.
[102] In a letter from October, 2018, CRA asked for better evidence that Ms. Sha and Mr. Buchan were no longer living together. Ms. Sha admits to receiving this letter. I was not told how she could identify this one letter if she cannot read English.
[103] Ms. Sha acknowledges that if she and Mr. Buchan were still together, the total family income would have precluded her from receiving the tax benefit. She understood that to get the benefit she had to say she was not living with Mr. Buchan. One might have thought then that if the parties had divorced, the divorce would have been front and centre in the response to the CRA.
[104] But there is no mention of the divorce in the second letter supposedly written by Ms. Pipe for Ms. Sha. The letter refers to Mr. Buchan as Ms. Sha’s spouse and, in an added interlineation, an “x-spouse”. The letter lists the various documents that were attached that show that Mr. Buchan had a different address from Ms. Sha. The list of enclosures is specific and detailed. The Certificate of Divorce is not listed as an enclosure in the letter.
[105] Given that the second letter was explicitly aimed at proving the parties were not living together, I do not accept that the failure to mention a divorce was just an oversight. Moreover, given the specificity of the references in the letter to the documents enclosed, I find the omission of any mention of the supposedly enclosed Certificate of Divorce utterly incongruous. It follows that I do not accept that the Certificate of Divorce was an enclosure in the October, 2018 letter. It is more likely that it was added to the pdf bundle of enclosures by Mr. Buchan in preparation for the trial.
[106] Mr. Buchan says he was not involved at all in Ms. Sha’s application for the Refundable Child Tax Credit. He says he just took Ms. Sha to meet Ms. Pipe and while there he did maintenance chores on the building in which Ms. Pipe rented her unit.
[107] Ms. Sha’s evidence is that Mr. Buchan ran the process. He filled-in the application form. He filled-in her address on Eglinton and he filled-in her status as “single”. Mr. Buchan acknowledges that a legend across the tops of the letters showing the file number and reference numbers were written by him. Why was he writing on the letters if he was not involved?
[108] If Mr. Buchan actually wrote the 2017 letter and filled-in the application form, that might help explain why Ms. Pipe got the date format wrong as well.
[109] Mr. Buchan was then questioned about how it was that he came to possess and produce the two letters and enclosures in his affidavits. He had the original of one of the letters although both letters were ostensibly sent to the CRA by Ms. Sha.
[110] Mr. Buchan took a long pause before answering this question. He then came up with a brand-new story. He testified that when Ms. Sha left Walsh Avenue in 2020, she left behind a desk in which he found the documents. This is from the witness who initially said that she never lived at Walsh Avenue at all. Even if Ms. Sha left the documents behind, why would Mr. Buchan - the landlord with no relationship with her - keep them? Why wouldn’t he return them to her to or throw them out? The evidence did not pass the giggle test as it emanated from Mr. Buchan.
[111] Ms. Sha was cross-examined on her evidence that Mr. Buchan was responsible for using the wrong address and wrongly calling her “single” to the CRA. After significant questioning, she reluctantly conceded that she knew what he was doing, and she knew it was “not good”. She said that Mr. Buchan told her it would be “no problem” to lie to the government, so she went along.
[112] I know the story gets confusing. It is important to recall that it is Ms. Sha’s evidence that the parties remained married and living together on Walsh Avenue until 2020. Another way of stating Ms. Sha’s evidence then, is that she knew Mr. Buchan was having her lie to the government by saying that she was single and lived separately on Eglinton Avenue. But to obtain government money, she knew she was not entitled to receive, she went along with the fraud because Mr. Buchan assured her it would be no problem. She accepts no moral agency.
[113] Ms. Sha had a mandarin speaking accountant at the relevant time. She filed tax returns independently. Her tax returns stated that she was married until 2016. Starting in taxation year 2017, she filed her taxes as “single”. Mr. Buchan says this shows she knew of the divorce in May, 2017. But it is equally consistent with her participation in the Refundable Child Tax Credit fraud by saying she was single when she was still married.
[114] Ms. Sha gave two reasons for changing her status from married to single on her income tax returns starting in taxation year 2017. First, she said that if she showed Mr. Buchan as her spouse, she would lose her eligibility to the Refundable Child Tax Credit because their combined income would be too high. That is, she was knowingly committing tax fraud. Then she said that her accountant told her that she needed to include her husband’s Social Insurance Number on her income tax return. She said that Mr. Buchan would not share his S.I.N. with her. Therefore, her accountant told her she had to file as single.
[115] To the surprise of no one, Ms. Sha could not remember the name of her accountant who told her she had to file as “single” knowing that she was married. If she needed but did not have Mr Buchan’s S.I.N., how she was able to file taxes showing her status as “married” until 2016? Once again, she denies any moral agency in her decision to lie to the government (if she is telling the truth now that the parties were indeed married throughout).
[116] At the end of the day, this whole episode is relied upon by Mr. Buchan to show (a) that the parties lived apart throughout; and (b) that Ms. Sha knew of the divorce in 2017. It does neither. I don’t know who wrote which document. I don’t know from these documents whether the lie is that they were separate or together. I do not accept that Ms. Sha told Ms. Pipe about the divorce before it happened or that the Certificate of Divorce was enclosed in either letter to the CRA. I do not accept that Mr. Buchan found the documents in Ms. Sha’s desk by happenstance in 2020 and kept them pristinely. He was intimately involved in the process for reasons that are not at all clear. Ms. Sha says I am to believe her now because she knew she was lying then.
(h) The Divorce
[117] There is no doubt that Mr. Buchan issued a divorce application on April 4, 2017. He reattended at the courthouse on May 8, 2017 to file motion materials for an uncontested divorce. Mr. Scott and Mr. Buchan both say that Mr. Scott was with Mr. Buchan both times. On the second attendance at the courthouse, Mr. Scott signed an affidavit of service in which he swore that he personally served the application for divorce on Ms. Sha at her old Eglinton Avenue address on April 7, 2017 at 11:30 a.m.
[118] Ms. Sha was already living on Walsh Avenue by then. Moreover, Mr. Buchan and Ms. Sha testified that she had opened her spa and was working. She would not have been home at 11:30 a.m.
[119] Mr. Buchan says that he was with Mr. Scott and saw him serve Ms. Sha. Mr. Scott says that Mr. Buchan stayed in the car when he went into Eglinton Avenue building to serve Ms. Sha at Unit #4. They cannot both be correct.
[120] For reasons that are not at all clear, Mr. Scott re-swore his affidavit of service before Mr. Buchan’s counsel in 2022. Mr. Scott seemed to have no recollection of doing so. He became very confused between the two versions of his sworn affidavit of service and the question of whose handwriting was on each.
[121] Mr. Scott also claimed that he served the Certificate of Divorce on Ms. Sha. But the Certificate is sent by the court by mail. Mr. Buchan testified that he gave the court staff two stamped envelopes in accordance with Family Law Rules.
[122] Finally, as I mentioned above, Mr. Scott said that he did not know what was in the envelope he supposedly gave to Ms. Sha. That too is hard to understand if he had attended with Mr. Buchan at the courthouse to issue the application just a few days before.
[123] Mr. Scott also gave evidence about Mr. Buchan living in a loving relationship with his ex-wife throughout the past decade. He did not explain why they were divorced or why Mr. Buchan lived in a house with roommates throughout the period (except when sleeping over with his surety under his bail conditions).
[124] Mr. Buchan gave evidence that Mr. Scott was his friend and employee. He agreed that Mr. Scott would do whatever Mr. Buchan wanted. Mr. Scott denied this suggestion. But his evidence was so full of holes, and he was so easily shown to be wholly confused, that I cannot accept his evidence.
[125] In all, the burden of proving that the divorce application was served personally on Ms. Sha lay with Mr Buchan. I do not accept that they served her at an address she had left many months earlier. The inconsistencies between the evidence of Mr. Scott and Mr. Buchan as well as the lack of credibility generally of both witnesses precludes me from finding that Mr. Buchan met his burden of proof.
[126] Accordingly, I find that Mr. Buchan has not proved that he served the notice of application for divorce on Ms. Sha.
(i) Credibility and Confusion
[127] This case is a prime example of Sir Walter Scotts’ aphorism,
O, what a tangled web we weave, When first we practise to deceive! [6]
[128] If Mr. Buchan is to be believed, he agreed to engage in an immigration fraud for $80,000. To help convince the government, he added Ms. Sha to the property tax account of his Walsh Avenue property well before she moved there. He had no relationship with Ms. Sha. Yet he went into partnership with her in a spa. He was never paid the $80,000 but still kept her on as a tenant, helped her apply for the Refundable Child Tax Credit, and then helped her lease premises for her new spa in 2017.
[129] If Ms. Sha is to be believed, she had a loving relationship with Mr. Buchan but had a marriage ceremony surrounded by strangers. She was a loving housewife whose husband slept over for two years with his ex-wife and had a child with her. He was the “breadwinner”, but she went to work with him in a spa in 2014 and then he cut her off in 2017. So, she let him fraudulently apply for her for the Refundable Child Tax Credit and she opened her own spa – all while not speaking English. She then lied about her marital status on her tax returns. She knew that she had provided her immigration lawyer with documentary proof that she and Mr. Buchan lived at Walsh Avenue. But she also knew that she did not qualify for the Refundable Child Tax Credit and that Mr. Buchan and Ms. Pipe used her Eglinton Avenue address to make her appear to be single. The City of Toronto and Ms. Sha’s spa landlord both positively required Ms. Sha to use her old address because she did not change over her driver’s licence because she had not yet passed her final driver’s test. The story turns back on itself over and over. Every fact has a counter-fact that then is someone else’s fault.
[130] I accept neither party’s evidence as truthful or credible. I accept that I have very little insight into what actually happened between these parties over the years. Neither presented a story that was internally consistent or supported by objectively verifiable evidence. Both require me to accept that to find their story truthful today they committed one or more significant frauds on the government. Both said entirely implausible things at trial to try to get around weaknesses or inconsistencies in their evidence. I do not believe either of them.
[131] Ms. Sha took on the burden of proving the parties lived together from February 2013 to 2020 to show that the separation date used by Mr Buchan in the divorce proceeding was not truthful. On the paucity of credible evidence, I cannot find on the balance of probabilities that the parties ever lived together at Eglinton Avenue or at Walsh Avenue.
[132] I acknowledge that there was evidence presented by each side that is consistent with their positions. For example, Ms. Sha produced a medical record that ostensibly shows her telling a therapist that she was married in 2019. The document is hearsay and cannot be used for the truth of its contents. It is probably a prior consistent statement that amounts to oath-helping in any event. It might be counter-productive ostensibly to go for therapy and then mislead one’s own therapist about one’s circumstances. On the other hand, both parties showed themselves to be keen to develop documents they could use to support their various frauds.
[133] Ms. Sha also bought a car once she opened her spa in 2017. She put the registration and insurance in her Eglinton Avenue address although she lived on Walsh Avenue at the time. She says, once again, that the dealership salesman who helped her register title and obtain insurance said that she had to use the address on her driver’s licence. Once again people who dealt with Ms. Sha seem unusually fixated on her driver’s licence and, once again, she denies any responsibility for her acts.
[134] Ms. Sha’s counsel points to a document from Ms. Sha’s bank in March, 2017 that has been produced in redacted form by Mr. Buchan. It appears that the Walsh Avenue address may have been partially covered. Mr Buchan could not explain why he had this document and why it was redacted. I would not be surprised if it shows the Walsh Avenue address to the bank. Ms. Sha had already told banks of her new address by that time. The important point is that this was an account associated with the receipt of the Refundable Child Tax Credit and the parties gave the bank the old address consistent with the evidence they gave CRA to show they lived separate and apart.
Outcome
[135] The trial of an issue was limited to the validity of the divorce and the separation date. To undermine the validity of the divorce, Ms. Sha set out a story of a relationship before and after the divorce order was made. This invited Mr. Buchan to challenge the entire relationship as well. The seemingly discrete issues of service of the application for divorce and the date of separation became bound up in the assessment of the witnesses’ credibility and this required assessment of a far broader story.
[136] The date of separation was expressly in issue on this trial. I find that the parties did not separate on August 1, 2015. Ms. Sha could not prove that they ever lived together. In rejecting her evidence, I am not accepting Mr. Buchan’s evidence. But there is a binary outcome here. Once I find that Ms. Sha did not prove that the parties ever lived together, to resolve the issue before me, I am driven to the legal conclusion that the parties separated on the day of their marriage July 18, 2013. That is the outcome of Ms. Sha’s failing to prove the facts of cohabitation that she took on the burden to prove.
[137] The divorce application was never served on Ms. Sha. It would be unjust to allow it to stand as a date to commence the limitation period for Ms. Sha’s property claims. The divorce order dated May 24, 2017 is therefore set aside on both grounds raised by Ms. Sha.
Costs
[138] The applicant was ostensibly successful on the trial of the issues. But the finding that the parties separated on July 18, 2013, if res judicata, may end this application in any event. This may be a case then of winning a battle but losing the war.
[139] In the circumstances, I raise the question of whether costs ought to be deferred pending the outcome of the application?
[140] If the parties cannot agree, the applicant may deliver costs submissions of no more than three pages by May 1, 2023. The respondent may deliver cost submissions of the same length by May 15, 2023. In addition, the parties shall each deliver bills of costs. They may also deliver copies of any offers to settle on which they rely for costs purposes.
FL Myers J Released: April 17, 2023
Notes and Revisions
[1] On April 18, 2023 these reasons were revised as shown in paras. 11, 54, and 134 to correct typos. In addition, paragraph numbering was corrected to reflect the omission of para. 11 in the original.
[2] My findings may well still leave the applicant’s claims susceptible to a different limitation period. But that issue is not before me.
[3] I am not sure that counsel or I did the clients a great service. When they simply recited evidence already contained in their affidavits, as prior consistent statements, they did little to improve or enhance their credibility. But, where the witnesses’ evidence given in examination-in-chief moved off their prior sworn affidavit evidence, I learned much. Oral examination-in-chief then was fraught with risk due to the existence of the affidavits as sources of prior inconsistent statements.
[4] Ms. Sha’s evidence of her requests for divorce makes little sense. If Ms. Sha was in a marriage of convenience, she could not ask for a divorce without risking her immigration status (at least not in 2014). But if they were in a true marriage, why would Mr. Buchan get a secret divorce in 2017 based on a non-existent separation in 2015 and then continue living with Ms. Sha until 2020? Why would he refuse a divorce in October, 2016 after Ms. Sha’s immigration status was assured, he had just had a new baby with someone else, and just months before he brought his own divorce proceeding? Ms. Sha’s evidence that she twice asked for divorce and Mr. Buchan refused fits neither narrative and was probably an allegation added by Ms. Sha to try to appear jilted and then forgiving.
[5] I mention below that the bank form shows a redacted address as well as Eglinton. Even if the form showed Walsh Avenue too, there was no reason for Ms. Sha (or Mr. Buchan) to give the bank her Eglinton address except in association with the Refundable Child Tax Credit application. Accordingly, the opening of the bank account places the Refundable Child Tax Credit application in March, 2017 rather than October.
[6] Sir Walter Scott, Marmion, a Tale of Flodden Field (John Sharp, London, 1809)