COURT FILE NO.: FC-18-420 DATE: 2023/07/13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
NAGIRA CHOUDHURY Applicant – and – ZUBAIR AWAL Respondent
Counsel: John E. Summers, for the Applicant Hana Ahmad-Yousef, for the Respondent
HEARD: May 9, 10, 11, 12, 13, 2022, May 16, 17, 18, 20, 2022
REASONS FOR DECISION
Justice M. Fraser
1The issues in dispute in this divorce proceeding are:
(a) Child support, including the determination of the Respondent’s income and what income should be imputed to him. The Applicant seeks to impute income of $70,000 to the Respondent. The Respondent maintains that income should be imputed to him in the amount of $30,000.
(b) Whether the cost of the caregiving expense of two nannies providing nursing care for the parties’ child is a proper section 7 expense. The Respondent does not dispute the amount reported is currently being paid by the Applicant. Rather, he questions the need for two caregivers and takes the position that this is excessive.
(c) For the purpose of determining the appropriate equalization of the parties’ net family properties, the following issues need to be determined:
(i) the value of and whether real property in Bangladesh held at the date of separation in the name of the Respondent was gifted to the Respondent during the marriage and, as such, excluded from the Respondent’s net family property for equalization purposes. If included, then the value of that property needs to be determined;
(ii) whether debt incurred by the Applicant prior to the parties’ separation ought to be credited back to the Applicant (as part of a claim for an unequal division by the Respondent); and
(iii) what value is to be attributed to the matrimonial home.
2Once the property issues as set out above are determined, the parties did not dispute the Applicant having the matrimonial home transferred to her based upon a setting off the amounts owed to her by the Respondent against his share of the equity and a payment by her to the Respondent of any amount still owing to purchase the Respondent’s one-half interest (and paying out or assuming the mortgage and joint line of credit).
3The parties agree upon a divorce judgment.
Background:
4The parties were married on September 14, 1998. They separated on December 9, 2017.
5At the time of the marriage the Applicant was living in Canada. She moved to Canada with her family when she was twelve. She completed an undergraduate degree at the University of Ottawa. She is presently 42.
6The Respondent was born in 1973. When the parties married, he was resident in Bangladesh. The Respondent joined the Applicant in Canada in the year 2000.
7There is one child of the marriage namely A. Z. born [date removed] 2007.
Parenting:
8A. Z. has Dravet Syndrome which is a rare form of epilepsy. He also has autism. As a result, A. Z. has significant special needs. He functions at the level of a 2-year-old and requires constant supervision and care. A. Z. will require around the clock supervision and care for the rest of his life.
9Since the date of the parties’ separation, A. Z. has resided exclusively with the Applicant.
10The Office of the Children's Lawyer was appointed to investigate and make recommendations regarding parenting. Ms. Sandra Kapasky provided a report dated February 19th, 2019, wherein she recommended that the Applicant have sole custody (as it was then referred) of A. Z. and that the Respondent have access (as it was then referred) in accordance with the schedule that was in place at that time which was six hours during the day each Saturday and each Sunday. Additional access was to be as agreed upon and at the discretion of the parties.
11On March 26, 2019, and on consent of both parties, a temporary order was made by Phillips J. which provided temporary sole custody (as it was then referred) of A. Z. to the Applicant and which provided that the Respondent have parenting time with the Respondent as follows:
(a) every Saturday for six hours and every Sunday for six hours; and
(b) such other times as the parties may agree upon.
12By that same order and on consent, the Applicant was granted temporary exclusive possession of the matrimonial home.
13The parenting issues were ultimately resolved by the parties and terms incorporated into a consent final order by Engelking J.
14The parenting arrangements are:
(a) A. Z. resides with the Applicant who has sole decision-making authority;
(b) the Respondent has parenting time with A. Z. as follows:
(i) every Saturday and Sunday from Noon until 7:00 PM;
(ii) the Respondent may attend the Applicant’s home for additional parenting time depending on his schedule and whether A. Z. is attending school; and
(iii) the Respondent may have additional parenting time if he's available to provide additional assistance to the Applicant for his care in her home.
15Since this final order was made on the parenting issues, the Respondent has, on average, attended the matrimonial home for additional parenting time at least one to three hours on each weekday in addition to his parenting time with A. Z. on weekends. Additionally, there are occasions when the Respondent will assist with the parenting of A. Z. when requested. For instance, if A. Z. won’t sleep, he will pick up the child and bring him in his vehicle for a drive.
16I propose to deal with each of the contested issues in turn.
Child Support:
17Between the date of separation and the interim order of Phillips J. dated March 26th, 2019, the Respondent paid child support of $225. per month.
18Pursuant to the Order of Phillips J. dated March 26th, 2019, the Respondent was ordered to pay child support in the amount of $654. based on an imputed annual income of $70,000. This order was made retroactive to the date of separation. The amount of retroactive support ordered for the period December 2017 until March 2019 was fixed at $6864.
19The parties continue to disagree on what the Respondent’s income is for the purpose of determining what child support should be paid.
20The Applicant is employed with the Federal Government. Her Line 150 income has been as follows:
(a) 2017 – $75,431
(b) 2018 – $71,765
(c) 2019 – $67,360
(d) 2020 - $76,412
(e) 2021 - $83,773
21Until the Covid-19 pandemic hit in March 2020 (the “pandemic”), the Applicant worked outside of the home. She then worked from home during the pandemic, but she has now returned to working outside the home.
22Once the Respondent came to Canada to join the Applicant, he worked various jobs during the marriage. He worked principally as a taxi driver and, for a brief period, as a driver for Uber. At the date of the separation the Respondent was working as a taxi driver.
23The Respondent’s has reported the following gross incomes on his Income Tax Returns:
(a) 2017 – $33,166
(b) 2018 – $44,342
(c) 2019 – $37,036
(d) 2020 – $29,246
24The Respondent has returned to Bangladesh for periods of time. In the summer of 2018, the Respondent went to Bangladesh for a period of 2 months. Then, in the summer of 2019, the Respondent went to Bangladesh for a period of 3 months. Finally, in the winter of 2020, the Applicant went to Bangladesh for a period of approximately 2 weeks.
25In April 2020 the Respondent stopped working as taxi driver and collected CERB for a period of seven months. The Respondent returned to work as a driver for Uber Eats in October 2020.
26The Applicant takes the position that the Respondent’s income is or should be greater than the gross income declared by him for income tax purposes. She recalled that his ability to contribute well financially was never an issue during the marriage and that it was her understanding that he was earning approximately $80,000. to $90,000. per year as a taxi driver and that this was why he remained in this field. On weekends, she asserts, he would make at least $1000. cash.
27According to the Applicant, the parties were able to live comfortably in their home, they took extended vacations, and they were not under financial pressure. They frequently travelled to Bangladesh. Sometimes they would also travel to other destinations, such as Saudi Arabia or the United States. The Applicant asserted that when they travelled, they would go for a month or so at a time.
28The Respondent is self-employed. The Applicant maintains that the Respondent would report to the Applicant what income numbers to provide their accountant. He kept a logbook. She did not review or question the numbers and only now, because of this court proceeding, she claims to now be aware of what he was declaring. She disputes the accuracy of his reported income given that as a family her experience is that they were financially comfortable.
29In 2008, the parties applied for mortgage financing for their home. The Applicant has produced the application which indicates that the Respondent represented to the mortgage broker that he earned $70,000. per year for his income.
30When A. Z. was young, and both parties were working, they relied upon the Applicant’s mother to care for A. Z. daily. The Applicant’s mother had an accident in late 2016. This prevented her from being able to continue to provide for A. Z.’s care. Therefore, the Respondent reduced his hours at that time in order to provide for A. Z.’s care. He began to work in the evenings only driving taxi. However, the parties found that the Respondent was unable to pay all his business expenses when he was only driving the taxi on a part time basis. He was not as able to contribute toward the family finances as a result. Therefore, in July 2017, the Respondent began to drive for Uber.
31A tax summary for 2017 produced by Uber reveals that the Respondent earned approximately $27,000 during a three-month period.
32In October 2017, the parties visited Bangladesh. When they returned, the parties separated. The Respondent returned to driving a taxi at that time. According to the Applicant the Respondent did so claiming it was more lucrative.
33The Respondent continued to drive a taxi in 2018, 2019 and until April 2020 when the pandemic hit, and the Respondent quit driving a taxi and collected CERB benefits until October 2020.
34From October 2020 to date the Respondent has been driving for Uber.
35The Applicant believes that the Respondent also receives income which has not been disclosed as a result of business interests she alleges he owns in Bangladesh. That income, she maintains, comes from several sources.
36First, the Applicant has produced a copy of a deed of land which purports to show it was titled in the name of the Respondent. I will address the ownership issue of this property below when addressing the equalization issue. For the purposes of determining the Respondent’s income, the Applicant argues that the Respondent is benefitting financially through the rental of the six shops and a garage located on the property.
37There is no evidence of the Respondent actually receiving a stream of income.
38The Applicant maintains that the rents are deposited into a bank account held in the name of the Respondent’s father. She suggests that the “income” is held by the Respondent’s father for the Respondent. The Applicant believes this to be the case as the father would send the Respondent copies of his bank account as though to account to the Respondent financially. That said, no evidence as to what, if anything, was in the account at any given time or whether any profit was achieved. Further the Applicant’s evidence was that she understood that the Respondent’s father was reinvesting any money received from the rents received into the property.
39I do not find that the Applicant’s evidence, when weighed on a balance of probabilities, is sufficient to warrant a conclusion that this was a business venture which has been providing the Respondent income. I decline to attribute income to the Respondent as a result of this property.
40The second source of income the Applicant alleges the Respondent was receiving from Bangladesh comes about as a result of her belief that the Respondent was a partner with several others in the ownership of a school. The Applicant asserts that the Respondent held a 10% interest in a Bengali and English medium school, namely DRN World School & College, which she claims was opened in Bangladesh by an acquaintance of the Respondent, Dr. Noor Hossain. The Applicant produced a copy of a photograph of Dr. Hossain with the Respondent and others which she maintains was posted on the school’s Facebook page. This photograph is titled “Partnership Agreement Signing of DRN: 03 July 2018.” The Applicant testified that she was privy to conversations, when they visited Bangladesh as a couple, in which Dr. Noor expressed his wish that they would become partners with him and invest in the school.
41The Applicant believes that the Respondent has become a partner. The Applicant produced a draft agreement which was unsigned. This agreement purports to be a draft partnership agreement between Dr. Noor and several others, including the Respondent, and which provided for the investment of moneys in the school.
42The Respondent denies he is a partner in the school. He denies that he signed the agreement.
43I do not find the Respondent’s evidence to be credible on this issue. The draft agreement was very specific with respect to the amount contributed by the Respondent. The amount was different than the amount of contribution by the other partners. I do not imagine this number was snatched from thin air. This, combined with the Facebook photograph would suggest that he is participating in this venture.
44However, that said, and accepting that the Respondent has likely acquired a partnership interest in the school, there is absolutely no evidence before me which would support the contention that the venture has been profitable and/or that the Respondent has been receiving income (even through his father) as a result of any ownership interest he may have acquired.
45While the Applicant testified that she believes that he earns about $250. per month from the shop rents and that she believes that with his interest in the school, he is receiving about $1500. total per month as a result of all of his Bangladesh interests and other investments, the Applicant has not provided any basis for what can only be described as a speculation at best. This evidence falls short on this issue. I am not prepared to draw the conclusion that income should be attributed to the Respondent as a result of this venture.
46The Respondent called a forensic accountant, Jean Charles Plante, as an expert concerning the Respondent’s income. In his opinion an appropriate 2021 projected income for the Respondent was $17,000.
47However, there were inaccuracies in Mr. Plante’s findings which underlines why due caution is required when presented with “expert” testimony which purports to conduct forensic accounting when the exercise necessarily requires an interpretation of the law from a non-lawyer.
48I place no weight on Mr. Plante’s conclusions for the following reasons:
Mr. Plante had access to two years of income tax returns only (being 2019 and 2020). For the better part of 2020, the Respondent was unemployed and therefore the 2020 income tax return would be of no assistance in predicting or assessing the Respondent’s income as a taxi/Uber driver. Mr. Plante did not, in my view, have sufficient data of the Respondent’s past records to appropriately estimate what the anticipated earnings and expenses in any given year would be.
Mr. Plante erred, in my view, in his belief that the CERB income replacement should not be included as income for the 2020 year. Mr. Plante misinterpreted the provision in Schedule III of the Child Support Guidelines which provides that social assistance not attributable to the spouse be excluded from income. As a result, Mr. Plante only attributed $2,000. to the Respondent for his income that year. This was a clear misinterpretation of that section.
Further, had Mr. Plante included the CERB benefit in the Respondent’s income for 2020, he then took a four-year average of the Respondent’s income to calculate what the Respondent’s income should be found to be as a taxi/Uber driver. In other words, he included the 2020 year when for the better part of that year the Respondent was not working due to the pandemic. The 2020 year was, quite simply, an anomaly and should not have been part of any consideration of the Respondent’s earning ability.
Mr. Plante’s research of the average income of taxi drivers was not, in my view, sufficiently broad in its scope. Mr. Plante relied upon the information compiled by Statistics Canada which is based upon reported income. While Mr. Plante maintains that he then conservatively added to the Respondent’s reported income about 12% for cash sales and tips, he provided no basis for why he considered this percentage to be appropriate.
Mr. Plante failed to note that the Respondent had improperly deducted “support” from his gross income. The Respondent was paying child support and not spousal support and his income tax return was clearly not correctly completed.
Mr. Plante did not examine the details or appropriateness of the expenses deducted by the Respondent when calculating his net business income. No capital cost allowance was added back. No examination was made of expenses which might, to other persons, have been a personal expense.
49A colleague of the Respondent, Shahadat Hossain, testified that he loaned the Respondent money in order to assist the Respondent in providing financial assistance to his family in Bangladesh and to assist the Respondent purchase a new vehicle. He asserts that he loaned approximately $25,000. The Respondent said that this loan is being paid back, interest free, in monthly payments of $500. He asserts that the Respondent has remained current in his repayment of this loan. In my view, the Respondent’s position with respect to his income lacks an air of reality if he has managed these payments monthly.
50Sections 19 of the Federal Child Support Guidelines, SOR/97-175 (the “Guidelines”) addresses imputing income to a spouse and sets out a non-exhaustive list of circumstances in which income may be imputed. These circumstances include intentional under-employment or a failure to report income from sources such as cash payments.
51The onus is on the party seeking to impute income to the other party to establish an evidentiary basis on which this finding can be made.
52As noted by the Court of Appeal in Drygala v. Pauli (2002), 61 O.R. (3d) 711 (Ont. C.A.), at para. 44, when considering the proper basis for imputing income under s. 19 of the Guidelines, there must be "a rational basis" underlying the figure selected and the exercise of the court's discretion must be "grounded in the evidence." See also: Mason v. Mason, 2016 ONCA 725 (Ont. C.A.), at para. 127.
53It is clear in this instance that the Respondent’s income tax returns and notices of assessment do not accurately reflect his income or his ability to earn income.
54I am satisfied that, in all of the circumstances, the Respondent is earning or is capable of earning an annual salary of $70,000. per annum as an Uber or taxi driver. This amount should be imputed to him for the purpose of determining what his income is for child support purposes.
55I make this finding based upon the following factors in particular:
The nature of the Respondent’s income includes a component of cash receipts which have not been properly accounted for by the Respondent;
The Respondent represented this as his income to his bank when applying for mortgage financing in 2008;
In reporting his past income, it is clear that the Respondent has included in his calculation’s periods of unemployment as well as years in which he has chosen to travel to Bangladesh for two to three months at a stretch. He maintains he was not earning income in Bangladesh. If so, I find that he is choosing to be underemployed during these periods and in my view, this is not an option given his obligation to support A. Z.; and
It is clear that he has at one point when employed with Uber earned approximately $27,000. in a three-month period.
56As such an order shall issue that the Respondent shall pay child support to the Applicant for the support of A. Z. in the amount of $654. per month, based upon an imputed income of $70,000.
57Given my finding that the Respondent was capable of earning $70,000. per annum, I am not prepared to make any adjustments to child support retroactively.
Section 7 Expenses:
58The Applicant has claimed the cost of caregivers for A. Z. as a special or extraordinary expenses pursuant to s. 7 of the Guidelines and she asks that the parties share this expense in proportion to their respective incomes.
59The parties receive funding on an annual basis to cover a portion of A. Z.’s care and to provide respite services to the Applicant. This funding is applied for on an annual basis. The Applicant has been solely responsible for applying for the funding on an annual basis.
60Pursuant to the Order of Phillips J. dated March 26th, 2019, the Respondent is to pay 49.4% of all extraordinary expenses in accordance with the following formula:
(a) the Applicant shall apply for funding to cover all expenses;
(b) the Applicant shall provide proof that she has applied for all available funding for any extraordinary expense;
(c) the Applicant shall provide a consent authorizing the Respondent to obtain confirmation of funding available and dispersed to the Applicant for s. 7 expenses from John Ranney, Case Manager of Service Coordination for People with Developmental Disabilities and from service coordination for People with Disabilities in general;
(d) the Applicant shall provide official receipts or evidence from the funding organization regarding the amounts that have either been dispersed to her or the amounts for which she has been reimbursed for out-of-pocket expenses.
61In 2019 the total available funding of $14,660. was broken down as follows:
(a) $9660. from special services at home;
(b) $3500. from Enhanced Respite;
(c) $1500. from Autism Spectrum Disorder.
62In 2020 the total funding received was $13,910.
63In 2021 the total funding received was $14,160.
64In 2022 the total funding received is $13,160.
65Evidence with respect to A. Z.’s daily care and needs as well as the cost the Applicant is incurring to meet those needs is relevant to the issue of what section 7 expenses should be recoverable.
66At the time of trial A. Z. had turned 14. He is now 15 years old.
67A. Z. is fully dependant. He is diagnosed with Dravet’s Syndrome which is a severe form of epilepsy that doesn’t respond to medication. In any given week, he will have three to four grand mal seizures. Those seizures usually occur at night. He is often cranky, anxious, and he is afraid to go to sleep as a result. A. Z. suffers frequent more minor seizures during the daytime. A. Z. has also been diagnosed with autism and global developmental delay.
68The Applicant describes A. Z. as non-functioning. He is non-verbal. He can not express his needs. He functions at the level of a two-year-old on a good day. He can not hold a glass to drink and requires assistance. He continues to use diapers and is not able to independently use the toilet. He needs assistance to get in and out of a bathtub and to dress. He can not walk on his own. He has one leg shorter than the other and his feet are flat. He needs support to walk. He uses a wheelchair. He is unable to sit or get up on his own.
69A. Z. attends school if he is seizure free. He does not attend if he is tired or has had a seizure during the night. For the past three years, A. Z. has attended on average two to three times per month for two to three hours at a time. When he does, the Applicant will often drop him at school and the Respondent will pick him up.
70Since 2017, after the parties separated, the Applicant has been primarily responsible for A. Z. ’s care and A. Z. has resided with her.
71Initially, the Respondent would see A. Z. on weekends only. He now attends at the Applicant’s home during the weekday for an hour or two to assist with A. Z. ’s care. He usually helps to feed A. Z. lunch. He has the benefit of the assistance of the hired caregiver when he is at the Applicant’s home. During these visits the Respondent will sometimes bring A. Z. for walks or a ride in his car. On weekends, the Respondent brings A. Z. swimming.
72The Respondent also accompanies A. Z. to his appointments along with the Applicant. If the Respondent is not available, the Applicant arranges for a caregiver to come along as she could not properly talk to a specialist regarding A. Z. ’s needs and care for A. Z. at the same time.
73The Applicant claims that a typical day for A. Z. consists with his waking up and sitting in bed for a long time. Eventually the Applicant tries to get him to eat some breakfast. This usually takes the involvement of two people – one distracting him while the other tries to get him to eat.
74If it is a good day, the Applicant gets A. Z. dressed and takes him to school. However, A. Z. attends school infrequently as he is usually not well enough to attend.
75On most days the Applicant maintains that A. Z. remains in the home and often just sits on the sofa. He frequently suffers from different forms of minor seizures throughout the day. The Applicant or the caregiver typically tries to get A. Z. out to walk a little bit. Sometimes the Respondent attempts to get A. Z. out for a walk. A. Z. ’s bones are very weak, and he is not therefore very mobile. He has had bone breaks, and this has been diagnosed as osteoporosis. A. Z. has suffered vertebral compression fractures which has caused him severe pain without his being able to verbalize it. The Applicant believes this contributes to his reluctance to walk.
76From the time of the parties’ separation until the pandemic hit in 2020, the Applicant has hired a caregiver for A. Z.. The first individual stayed until April 2018 as a live-in caregiver. She would return to her home in Montreal for weekends. However, issues arose due to her not to always arriving when scheduled. The Applicant therefore let her go.
77In 2018 A. Z. had a succession of three different caregivers. The Applicant has found that hiring a reliable caregiver has proven difficult. It is a challenging job, and this is made more so given A. Z. is a medically fragile child. This is also further complicated by the fact he is non-verbal and that his language comprehension is in Bengali, not English.
78In late 2018, the Applicant hired a live-in caregiver from Antigua who stayed for about five or six months (until January 2019).
79The Applicant has found it to be very overwhelming at times to cope with the non-stop demands of caring for A. Z.. She spoke with his case workers, and they felt she should look at hiring a foreign worker through the government’s program. In 2019, the Applicant began to look and put ads on specialized websites, and she has since successfully hired through that program.
80Due to the type of disability A. Z. has and the fact that his needs are unpredictable, the Applicant asserts it is impossible for one person to manage and assist A. Z. alone during the night and so a second person is needed. Additionally, she needs someone who is prepared to sit with A. Z. when necessary while she gets some sleep as she needs to be able to work during the daytime. According to the Applicant, A. Z. ’s case manager, who has reviewed A. Z. ’s needs, has concluded that she requires from sixty to sixty-five hours of care per week. The Applicant maintains that this is the only way she can be in the workforce and also have some respite.
81The caregivers provide the Applicant with ongoing help during the day, and they remain at home with A. Z. while the Applicant is away at work. Because she has had difficulty retaining caregivers and given the amount of care required, the Applicant has felt the need to have a contingency plan. Hiring two workers ensures that one is always available especially when the other falls through. On this basis, the Applicant has hired two caregivers for thirty hours per week and she has done so since January 2021.
82For the fiscal year April 2019 to March 2020 the salary paid to caregivers totalled $46,454.93. Once the government funding was factored in, the net expense for the year was $38,084.93.
83While the Respondent has questioned the necessity of two caregivers being hired for A. Z., I am satisfied that two caregivers is both reasonable and necessary. To the extent that the Respondent has questioned whether the Applicant is presenting the expenses honestly, I do not accept the suggestion that one of the caregivers might actually have been providing care to the Applicant’s mother rather than A. Z..
84With an income of $70,000 imputed to the Respondent, his proportionate share toward this expense is 49.4%. His share for the 2019-2020 year comes to $18,813.96.
85On the same basis, the Respondent’s share for 2020-2021 is $12,308.32 and his share for 2021-2022 is $19,103.23.
86Prior to June 2021, the Respondent did not complain about the expenses incurred for the caregiving of A. Z.. However, since then he began to question the hiring process, the duties and responsibilities, and the rate the Applicant was paying them. The Respondent claims that he never saw a second caregiver. This evidence was refuted, in my view, by the Applicant’s evidence and the testimony of that caregiver.
87The obligation to contribute toward the cost of special and extraordinary expenses is found in the Guidelines. The applicable sections are as follows:
3.(1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is
(a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and
(b) the amount, if any, determined under section 7.
7.(1) In a child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation:
(a) childcare expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
(b) that portion of the medical and dental insurance premiums attributable to the child;
(c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;
(d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs;
(e) expenses for post-secondary education; and
(f) extraordinary expenses for extracurricular activities.
(1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means
(a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or
(b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account
(i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,
(ii) the nature and number of the educational programs and extracurricular activities,
(iii) any special needs and talents of the child or children,
(iv) the overall cost of the programs and activities, and
(v) any other similar factor that the court considers relevant.
88I conclude that the Applicant’s claim for s. 7 expenses respecting the hiring of two caregivers for A. Z. is both reasonable and necessary and that this is an expense which properly qualifies as a s. 7 expense. The net expense, after deducting any funding received and/or eligible tax credit, should be shared proportionate to the parties’ respective incomes based upon the Applicant’s line 150 income for any given year and the Respondent’s imputed income of $70,000 or his line 150 income for any given year, which is greater.
89I note that Phillips J. had already made an order with respect to the Respondent’s obligation to contribute toward these expenses on an interim basis. To the extent to which it is necessary, I confirm that the amounts provided by the Applicant with respect to what she expended as a caregiver expense prior to trial as recoverable.
Equalization of the parties’ net family properties:
Matrimonial home:
90The matrimonial home is jointly owned by the parties. It remains in the joint names of the parties.
91Since the date of separation, the Applicant has paid all expenses and costs related to the matrimonial home save for the January 2018 to March 2018 when the Respondent made mortgage payments.
92The Respondent moved out of the matrimonial home in December 2017.
93As of April 2022, the expenses for the home paid for by the Applicant, not including utilities, are as follows:
(a) Mortgage - $68,411.21;
(b) Property tax - $25,993.02;
(c) Home insurance - $5,750.49; and
(d) Renovations - $29,497.61
94No proper valuation was obtained with respect to the matrimonial home by either of the parties. The Applicant’s position is that she was not made aware that the Respondent was disputing the issue of the value of the matrimonial home until immediately before trial.
95The Applicant has produced the MPAC assessment is $417,000. She has investigated a possible listing for the home and asserts the suggested listing price would be about $549,000. Her inquiries have satisfied her that the other homes in her neighbourhood would support this price. She was not cross-examined on this issue nor did the Respondent produce any evidence to support a different value.
96I am prepared to accept the Applicant’s evidence on this issue given it was not contested at trial by the Respondent.
Bangladesh property
97The Applicant asserts that the value of property in Bangladesh (the “Bangladesh property”) ought to be included as an asset in the Respondent’s net family property. At the date of separation, title to this property was held in the Respondent’s name. The Respondent asserts the Bangladesh property was gifted to him from the Respondent’s father and is therefore excluded property pursuant to section 4(2) of the Family Law Act R.S.O.1990, C. F.3 (the “Family Law Act”).
98It is not disputed that the Bangladesh property was initially owned by the Respondent’s father. The Applicant asserts that in or around 2006 the Respondent purchased the Bangladesh property from his father. The Respondent, on the other hand, maintains that this property was gifted to him after the parties’ date of marriage and is therefore excluded property.
99The Applicant points to inconsistencies in the Respondent’s position with respect to this property to support her contention that a conclusion should be drawn that the property was purchased by the Respondent, not gifted.
100For instance, the parties scheduled a motion in 2019 before Phillips J. in March 2019. The Applicant submitted material in December 2018 which purported to be a copy of the deed of transfer. It was a translation of the transfer. At that time the Respondent denied that he had any ownership in property.
101Then the Respondent’s father commenced an action in Bangladesh to sue the Respondent for title of the property to be returned to him. The Respondent in response transferred title of the property back to his father. The Applicant accessed the documentation prepared for the Respondent’s father. The Respondent’s father maintained that the property had been transferred to the Respondent in order to assist the Respondent immigrate to Canada. It appears that in response to the lawsuit, title to the property was voluntarily transferred back to the Respondent’s father and the lawsuit was withdrawn.
102This claim that the Respondent’s father transferred the property to his son in order to support the son representing that he owned property to obtain a visa to immigrate to Canada does not make sense. The Respondent came to Canada in the year 2000. The transfer occurred in 2005 when the Respondent was already a Canadian citizen.
103The Applicant produced several receipts from Western Union which would seem to show that the Respondent was sending funds to his father in 2004 and 2005. She suggests these were payments for the property. She asserts that the fact the document claims to be “gifted” is simply a common practice in Bangladesh to register a transfer as a “gift” to avoid paying taxes on the transaction.
104I note that the evidence of money, which was sent to the Respondent’s father does not, in its amount (approximately $20,000.00), approach the proposed value the Applicant suggests be attributed to the property.
105The Applicant has produced a copy of a document which purports to be a building construction permit. She found this document at the matrimonial home. The permit application was made by the Respondent’s father.
106The Applicant states that at one point the parties were visiting Bangladesh and that they went to see this property. It has six shops and a body shop built on it. This construction occurred after the property was transferred to the Respondent and yet there is no indication that the Respondent was involved in this construction. It was the Applicant’s understanding that the Respondent’s father managed the tenants and collected the rents. She also understood that the money was kept in his father’s account and reinvested. She advises that his father would send bank account statements from time to time to the Respondent.
107As in all cases, credibility is an important consideration, particularly where there are different versions of events advanced by the parties.
108In this respect, I found the Applicant's evidence to be forthright and straightforward throughout the course of the trial. The manner in which she presented the evidence was logical and overall, I found her to be credible.
109However, this aspect of the Applicant’s evidence was very much based upon conjecture and not any direct knowledge she had. I am surprised there was no evidence given of direct discussions between the parties about the nature of the Respondent’s interest in the property. The Applicant did not give evidence of specific communications between them which I would have felt would form the basis for her belief or understanding. She does not claim that the Respondent represented himself to be the owner.
110The Respondent’s position at trial was that the Bangladesh property was gifted to him. He maintains that he never considered the Bangladesh property to be his and that he held title with the expectation that the property would be shared with his siblings upon the death of his parents and that until that time, any income from the Bangladesh property was considered his father’s and used for the support of his parents.
111The Respondent maintains that, after the parties’ separation, the Applicant asserted her claim to an interest in the value of the property. In reaction to this, the Respondent’s siblings and parents demanded that he transfer title back to the Respondent’s father given that they did not believe she had a right to assert such a claim.
112The Respondent asserted that he always understood that regardless of the paper transfer in title, that as long as his father was alive, the property was considered his father’s property. The Respondent maintains that his father looked after the property, managed the rentals and kept any money derived from that property. He stated that it was intended to be and is the main source of the father’s income during his retirement.
113I recognize that the Applicant points to the inconsistencies in the Respondent’s evidence and submits that the Respondent’s position cannot be accepted on this basis.
114However, notwithstanding the inconsistencies, I am satisfied that the property was gifted to the Respondent. I accept the Respondent’s evidence that, as the eldest sibling, this property was being entrusted to him with the understanding that he would hold the property for the continued benefit of his parents and siblings.
115While the actions taken by the Respondent and his father following the parties’ separation could support the contention that such actions were taken to hide an asset from division with the Applicant, in my view this is not sufficient. In my view the actions complained of could also be understood as an attempt by a family unfamiliar with our legal system to protect (by self-help) a property which they had believed was gifted to the Respondent. I found the Respondent’s evidence to be credible on this issue.
116I conclude on a balance of probabilities that the Bangladesh property was gifted to the Respondent during the marriage and as such is excluded property and shall not form part of the Respondent’s net family property.
117Notwithstanding my finding that this property is excluded, I propose nonetheless to address the issue of the Bangladesh property’s value. Each party adduced expert evidence with respect to the appropriate value to be attributed to it.
118The Applicant called Shahadat Hussain. He provided an opinion with respect to the value of the land only. Mr. Hussain placed a value on the property in 2017 of $199,056. The structures on the property were not included in this valuation. Mr. Hussain admitted that he did not attend at the property to examine same. Applicant then asks that $112,000 be attributed to the value of the structures on the land.
119The Respondent called Masiur Rahma Pathan. The Bangladesh property is, in Mr. Pathan’s view, worth $111,740. This valuation was conducted by inquiring with property owners in close vicinity to the land in a comparative approach to arriving at a market value. The results of these inquiries were not provided.
120Neither of parties, through their experts or otherwise provided, in my view, the comprehensive information one expects to see in order to assess the value of a piece of property. I have concluded that I do not find one expert to have provided a more compelling reason to prefer their valuation over the other. I do not find that either of the assessments can be preferred. If I needed to make a finding with respect to what ought to be attributed to the property as a value, I would have made a finding of value at the midpoint between the two.
Debts incurred in the years prior to the date of separation
121The Respondent claims an unequal division of the parties’ net family properties based on an apparent $69,000 he asserts the Applicant removed from a bank account prior to the parties’ separation. He asks that that amount be credited back to the Respondent.
122Pursuant to section 5(1) of the Family Law Act, when spouses divorce or separate with no reasonable prospect that they will resume cohabitation, the spouse with the lesser net family property as defined in section 4 of the Act is prima facie entitled to receive an equalization payment of one half the difference between the parties' net family properties.
123Section 5(6) of the Family Law Act grants the court the discretion to vary the amount of the equalization payment to an amount that is more or less than half the difference between the parties' net family properties if an equalization would be "unconscionable" having regard to the factors listed in that section, which are as follows:
Variation of share
5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties 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.
124The Ontario Court of Appeal described the steps that must be undertaken when a request for a variation of the equalization payment is made pursuant to section 5(6) of the Family Law Act in Serra v. Serra, 2009 ONCA 105. As indicated in that decision, the court must first ascertain the parties' respective net family properties applying the principles set out in section 4 of the Act and must then determine what the equalization payment would be pursuant to section 5(1) of the Act. Finally, before making an order for equalization under section 5(1), the court must decide whether ordering an equalization of the net family properties would be "unconscionable" having regard for the factors outlined in section 5(6).
125The onus is on the party seeking a variation of the equalization payment under section 5(6) to establish that a variation is warranted. In order to succeed under the section, the party seeking a variation must bring their case within one or more of the subparagraphs of section 5(6).
126Once it is established that the case engages one or more of the factors set out in those subparagraphs, the court must then determine whether the implications of those factors considered in light of the overall factual context of the case at hand are such that an equalization of net family properties would be unconscionable.
127The threshold for establishing "unconscionability" under section 5(6) is exceptionally high. The test is not met by showing that equalization would lead to hardship to one spouse, or by the fact that an equalization payment would leave the parties with a different net worth. Nor is it met by simply demonstrating that an equalization of net family properties would be unfair, harsh, inequitable or unjust. In order to satisfy the test of unconscionability, the circumstances of the case must be such that equalization would be "repugnant to anyone's sense of justice" or that it would "shock the conscience of the court” (See: Smith v. Smith, 2012 ONSC 1116).
128Although unconscionable conduct is an appropriate consideration in carrying out the analysis required under section 5(6), the true target of the section is a result that is unconscionable to one of the parties.
129The Applicant maintains that the funds removed from the account were, in part, provided to the Respondent, applied toward debt for their mutual benefit and to finance one of their trips to Bangladesh.
130The Respondent’s evidence on this issue falls woefully short and does not, in my view, approach a finding of unconscionability, particular given my finding that the Bangladesh property is to be excluded from the Respondent’s net family party.
131The Respondent’s claim for an unequal division therefore fails.
132Having made my findings with respect to the property issues that the parties identified as “in issue”, I note that the parties represented at the outset of the trial that they agreed upon the calculation of the parties’ net family property except to the extent the above issues needed to be determined.
133However, when I reviewed the Net Family Property Statements (“NFP Statement”) filed by both parties, they do not match. In addition to the issues I was asked to determine in this trial, there is a discrepancy as a result of a line of credit identified in the Applicant’s NFP Statement which is not included in the Respondent’s NFP Statement, different values are attributed to the Respondent’s accounts with CIBC and the TD Bank, the parties do not agree upon the amounts to be attributed to each of them for the general household items and vehicles, and a credit card debt is attributed to the Applicant in one of their NFP Statements only.
134No evidence was led in the trial by which I have any way to resolve these discrepancies.
Disposition:
135An Order shall therefore issue in the following terms:
The Respondent shall pay child support to the Applicant in the amount of $654 per month, based on an imputed income of $70,000.00, the Respondent shall pay child support of $654.00 per month in accordance with the Child Support Guidelines;
The parties shall share s.7 expenses in proportion to their incomes using the Applicant’s line 150 income in any given year and the Respondent’s imputed income of $70,000. The employment of two caregivers for the care of A. Z. born [date removed] 2007 will be considered appropriate s.7 expenses.
To determine the section 7 amount, the parties will apply the following formula:
(a) The Applicant shall apply for funding to cover all expenses;
(b) The Applicant shall provide proof that she has applied for all available funding for any extraordinary expense;
(c) If requested by the Respondent, the Applicant shall provide a Consent authorizing the Respondent to obtain confirmation of funding available and disbursed to the Applicant for s.7 expenses from whatever source; and
(d) The Applicant shall provide official receipts or evidence from the funding organization regarding the amounts that have either been disbursed to her or the amounts for which she has been reimbursed for out-of-pocket expenses.
The parties shall, within 20 days from the release of this Judgment, confer and remit to me a Net Family Property Statement which accurately sets out the calculations agreed upon by them based upon my findings above and their agreement on the other items. If they cannot do so, they may arrange an appearance before me to make submissions on this issue.
The parties shall calculate the outstanding debt (for s. 7 expenses) and reimbursement for expenses paid by the Applicant on the matrimonial home for the Respondent’s one-half-share shall be offset against the Respondent’s equity in the matrimonial so that a calculation of what payment is to be made in order to permit the Applicant to assume the mortgage and the joint line of credit and receive a transfer of the Respondent’s interest in the matrimonial home. That calculation shall be provided to me within 20 days of the release of this Judgment as well. If they cannot agree upon this calculation, they may arrange an appearance before me to make submissions on this issue.
If the parties are unable to agree upon the issue of costs, they are to appear and make submissions on that issue by scheduling a date through the trial coordinator.
Upon filing any further documentation required to support the claim for divorce, a divorce order may issue.
M. Fraser J.
Released: July 13, 2023
COURT FILE NO.: FC-18-420 DATE: 2023/07/13 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: NAGIRA CHOUDHURY Applicant – and – ZUBAIR AWAL Respondent Reasons for decision Fraser J.
Released: July 13, 2023