Court File and Parties
COURT FILE NO.: FS-22-43448-0000 DATE: 2023 09 26
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
M.S., Applicant AND: M.A., Respondent
Counsel: A. Kanwal, agent for the Applicant Self-Represented, Respondent
HEARD: October 25, 26, and 27, 2022
Reasons for Judgment
Conlan J.
I. The Background
1This was a relatively short trial that lasted less than three days. The Applicant wife, M.S., had a lawyer assisting her at trial as an agent. The Respondent husband, M.A., represented himself.
2The parties were able to resolve all of the parenting issues before trial. They have a young son together.
3The wife’s agent outlined these two issues in the opening statement:
(i) what to do about three properties that the husband allegedly owns in Pakistan; and
(ii) retroactive and go-forward child support payable by the husband, including section 7 expenses, and his income for child support purposes.
4The husband agreed, in his opening statement, that those are the two issues to be decided.
5For the wife’s side, she and her father testified at trial. For the husband’s side, he testified, and he called one other witness (a lawyer in Pakistan) who testified via Zoom.
6The Court was called upon to make one mid-trial ruling that was contentious and of some significance – the admissibility of Exhibit 20 (formerly marked Exhibit B), the husband’s late father’s affidavit that was prepared by a lawyer in Pakistan (the same lawyer called at trial as a witness on behalf of the husband) and signed in Pakistan by the husband’s late father and by the husband.
7After hearing the evidence of the lawyer, Muhammad Chaudhary, and after hearing extremely brief oral submissions by the husband and by the agent for the wife, the Court ruled that the said document was admissible at trial for the truth of the statements contained therein.
8Some reasons for that ruling are set out below.
II. The Admissibility of Exhibit 20
9In my view, the affidavit marked Exhibit 20 (“affidavit”) was clearly admissible under the principled exception to the hearsay rule, considering the law set out in the leading authorities including the decisions of the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57 and R. v. Bradshaw, 2017 SCC 35.
10It should be noted that those authorities were mentioned by the Court. The parties did not cite any authorities in their very brief oral submissions on the issue (less than ten minutes total for both sides).
11It was not argued by the agent for the wife that the affidavit was not necessary. The declarant, the husband’s father, is deceased.
12It appeared that the agent for the wife had concerns about the reliability of the affidavit. It was not clear to the Court whether those concerns were directed at threshold reliability for the purposes of admissibility, or ultimate reliability, or both, but, in any event, I was satisfied on a balance of probabilities that threshold reliability had been established.
13Both the husband and Mr. Chaudhary testified at trial and were cross-examined about the affidavit. This is not a case where the other side was deprived of any chance to ask meaningful questions about the creation of the document, the content of the document, and the signing of the document.
14I accept the evidence of Mr. Chaudhary that he prepared the affidavit as per the instructions of the deceased, his client, which instructions were given to him by the deceased, in-person, at a meeting at Mr. Chaudhary’s office on a date not long before the date that the affidavit was signed. I accept the evidence of Mr. Chaudhary that the affidavit was signed by the deceased, and by the husband, and by two witnesses, in front of an oath commissioner, and in the presence of Mr. Chaudhary. I accept the evidence of Mr. Chaudhary that the deceased was of “prudent mind” and had the capacity to give the instructions for and to sign the affidavit. I accept the evidence of Mr. Chaudhary that the husband also signed the affidavit because his interests were affected by the content of the affidavit; the husband was admitting/acknowledging the statements contained in his father’s affidavit. In Pakistan, that is standard practice, Mr. Chaudhary stated, and I accept that evidence.
15There is no issue about the translation of the affidavit. Exhibit 20 consists of four pages – two in the original language and two in English. The translation was not the basis for the mother’s agent’s concerns.
16Based on the uncontroverted evidence of Mr. Chaudhary, threshold reliability had been established.
III. The Three Properties in Pakistan
17This issue is relevant to whether an equalization payment is owed by one party to the other.
18The wife testified that the three subject properties in Pakistan were purchased with the family’s income (the family being the parties). Those properties have nothing to do with the husband’s parents, according to the wife.
19According to the wife, the apartment in Pakistan was bought in March 2016, after the date of marriage. She wants half the value of that apartment, she testified. The commercial property in Pakistan was acquired by the parties in 2017, after the date of marriage, according to the wife. She wants half the value of that property as well, she testified. The third property in Pakistan, the plot of land, was transferred to the parties in 2015, also after the date of marriage. She wants half the value of that property as well, she testified.
20This Court has no reliable evidence of the values of these three properties. The wife pointed the Court to a single document – Exhibit 4, page 185. That appears to be some document from a real estate consultant and developer in Pakistan, named Rajasunited. It is a single page. It is dated October 29, 2019, around the time of the parties’ separation. No witness testified from that company. The document contains very few details about the three properties listed therein. There is no currency specified in the document but simply values – “5.5 Million to 6 Million”, for example, for some property described as “Plot (G 415)”.
21The said document is hearsay. It is not helpful to the Court. I place no weight on it.
22The Net Family Property Statement (Form 13B) completed by the wife similarly does not assist this Court. As pointed out to the wife during her evidence at trial, the values contained therein are as of April 22, 2022, three years after the valuation (separation) date.
23The evidence at trial from the wife’s father, Safdar Hussain, was also unhelpful to the Court. His affidavit dated September 15, 2022 (Exhibit 8) alleges that the husband is the sole owner of the three properties in Pakistan, but the exhibits attached to the affidavit, alleged to be in support of that assertion, are illegible.
24According to the husband, the apartment in Pakistan was bought after marriage. He paid 42% of the purchase price, and his parents paid the other 58%. Title was put in his name alone because that is the way it is done in Pakistan, he testified.
25The husband testified that both the plot of land and the commercial property in Pakistan were purchased before the date of marriage. He stated that he is on title for both but paid nothing for either because he holds those interests for his parents. He testified that there is an ongoing court case in Pakistan in which his family is suing him to force the transfer of the three properties in Pakistan from him to them. He has been reluctant to do that because he does not want to be criticized for doing something during the currency of the litigation here in Ontario that would effectively defeat the wife’s claims regarding those three properties (the court case in Pakistan was commenced after the wife started the proceeding in Ontario, he testified).
26Exhibits 19 and 20 (the affidavit of Mr. Chaudhary dated September 14, 2022, and the affidavit of the husband’s late father, respectively) both support the evidence of the husband as it concerns the three properties in Pakistan.
27With regard to the three properties in Pakistan, this Court prefers the evidence of the husband, supported by Exhibits 19 and 20, over that of the wife and her father. Mr. Chaudhary, in particular, was the closest that this Court had the benefit of in terms of an independent witness.
28I find that the plot of land and the commercial property were both acquired before the date of marriage and that the husband has no ownership interest in either. As such, the wife’s claim that she entitled to half the values of those two properties, whatever those values are, is dismissed.
29I find that the apartment was acquired after the date of marriage and that the husband has a 42% ownership interest in it. As such, the wife should be compensated, however, there is no reliable evidence before the Court as to the value, at separation, of the apartment. Thus, unfortunately for the wife, no order can be made by this Court.
30I warned the parties, repeatedly, at trial about the lack of a proper evidentiary record in this case. The result is the dismissal of the wife’s claims regarding the properties in Pakistan. And the further result is that this Court orders that there is no equalization payment owing from either party to the other.
IV. Child Support Payable by the Husband, Arrears and Ongoing, Including Section 7s.
31The wife’s position, as reflected in her draft final order attached to her written closing submissions, is that the husband ought to pay child support for the child, H.N. (eight years old), based on an imputed annual gross income of $40,520.00, commencing on November 1, 2022.
32The wife calculates the $40,520.00 figure by taking a full-time minimum wage income, which she asserts is $32,240.00, and then adding to that what she claims is the husband’s income from an investment property in Pakistan, $690.00 monthly or $8280.00 annually.
33The husband wants to have the child support based on his 2021 Notice of Assessment, $10,226.00 gross per year.
34I accept the husband’s evidence at trial that he has not received any rent or lease payments of any kind for any property in Pakistan since the year 2017. The wife has not produced any reliable evidence to the contrary. Thus, I am not imputing any income to the husband that is based on any property in Pakistan.
35I do not accept the husband’s position that his income for child support purposes should be a measly $10,000.00, approximately. First, that is contrary to his own opening statement at trial, during which he agreed that his income should be based on a full-time minimum wage. Second, I am satisfied that the husband is intentionally unemployed or under-employed, and that the said intentional unemployment or under-employment is not by virtue of his reasonable educational or medical needs, and that an income that is appropriate to impute to him for child support purposes is that suggested by the wife - $32,240.00 (a full-time minimum wage job in Ontario at $15.50 per hour). Drygala v. Pauli, at paragraph 23.
36It must be remembered that the husband has a university degree in engineering, although not from a Canadian institution. He has his high school equivalency in Canada. He was scheduled to complete a 3-year diploma course at Centennial College in August 2023. He has worked in Canada. Although he had surgery on his knee as a result of an accident that he had, that surgery and physiotherapy for it was well more than one year ago. He is more than capable of earning a full-time minimum wage income in order to support his young son, and that was the case commencing in November 2022.
37This Court orders that the husband shall pay child support, in accordance with the Federal Child Support Guidelines, starting on November 1, 2022, and on the first day of every consecutive month thereafter, based on an imputed annual gross income of $32,240.00. A Support Deduction Order shall issue for enforcement through the Family Responsibility Office.
38Since the parties agree on the wife’s annual gross income, $69,488.34, this Court orders that the parties shall contribute to the child’s special or extraordinary expenses (section 7 expenses) in proportion to their respective incomes – 68% for the wife and 32% for the husband.
39Regarding eligibility of certain section 7 expenses, to avoid yet further disputes between the parties down the road, this Court orders that swimming lessons, Quran class, before and after school childcare, and medical and dental expenses for the child that are not covered by a benefits plan shall all be considered proper special or extraordinary expenses, regardless of whether the husband approves of them in advance. For everything else, this Court orders that the wife shall obtain the approval of the husband in advance of incurring the expense, and the husband shall not unreasonably withhold his approval.
40This Court makes no order on account of child support arrears (between the date of separation in October 2019 and October 2022), including section 7 expenses.
41Although the wife is claiming $17,043.16 in arrears, that figure is premised on this Court imputing an income to the husband starting at the date of separation. I decline to do so. I think it is more appropriate to use the husband’s actual Notices of Assessment Line 150 incomes for 2019, 2020, and 2021, and those figures are all at or below $15,000.00, approximately, and actually at or below the threshold level of $12,000.00 for two of those years. His very short stint working for Hercules, his accident, his injuries, his knee surgery, and his physiotherapy all contribute to this Court’s conclusion that there should be no imputation of income to the husband before November 2022.
42In addition, I must confess that I do not understand the wife’s calculation of the $17,043.16 figure. Reviewing her evidence at trial, her written closing submissions, and her draft final order, (i) I do not comprehend how the $9040.00 in “retrospective child support” is arrived at, and (ii) the $8003.16 in section 7 arrears appears to be based on a fixed monthly payment that the husband was expected to make, which submission I do not accept.
V. Other Issues Not Raised in the Opening Statements but Mentioned During the Trial
43Likely the wisest thing for this Court to do is to simply dismiss all other requests made by both parties in their written closing submissions and in their respective draft final orders, on the basis that the requests were not properly pleaded and/or were not presented to the Court as issues during the parties’ opening statements at trial.
44I will not do that, however, because my notes and the transcripts of the trial proceeding indicate that there were some items that the parties were prepared to agree on. It is only fair that the Court make an order in accordance with those consent matters, and I do so below.
45A Divorce Order shall issue, effective immediately.
46This Court orders that (i) the husband shall, forthwith, make every reasonable effort to obtain a life insurance policy that is in an amount not less than $100,000.00 and that names the wife, and alternatively the child, as the irrevocable beneficiary, and (ii) the husband shall provide proof of the policy to the wife immediately once he obtains it, and (iii) the husband shall maintain that policy in good standing for as long as the child remains eligible for support.
VI. Conclusion
47A Final Order shall be issued in accordance with these reasons.
48To make them easier for the parties to understand, the portions of these reasons for judgment that contain an order are underlined.
49All other claims by both parties are dismissed.
50On costs, this Court orders that each side shall bear her/his own costs. On the controversial issues, mainly the properties in Pakistan and the husband’s income for child support purposes, overall, there has been roughly equally divided success. The most fair, just, and reasonable result is no order for costs.
51Finally, it should be noted that the parties waited a very long time for these reasons for judgment. Far too long. The reason for the delay was explained to the parties in the Court’s Endorsement dated June 14, 2023 – an administrative error in that I was never provided with the parties’ written closing submissions and draft final orders until mid-June 2023, even though the trial concluded in October 2022. The Court was under the impression that the case had settled, as it appeared that was very likely by the time the trial evidence had been completed. Upon discovering the administrative error, and upon realizing that the parties had in fact filed written closing submissions and draft final orders in November 2022, this Court immediately ordered a complete transcript of the trial and all Exhibits filed and used those, together with my comprehensive notes, to prepare these reasons as expeditiously as possible. Fortunately, my notes were thorough, and I still had a good recollection of the parties, the witnesses, the issues, and the evidence in general. Again, the parties deserved better, and the Court sincerely apologizes to them for the inordinate delay, as I did in my June 14th Endorsement.
52I wish the parties much success moving forward. This case should have settled. The parties made a mistake in forcing it on, however, that cannot be undone now. They should focus on their child and move on with their lives. They are both quite intelligent, and they should put those smarts to better use than more litigation.
Conlan J.
Released: September 26, 2023