Court File and Parties
Court File No.: FS-18-4651 Date: 2023-12-06 Ontario Superior Court of Justice
Between: Sumaya Shabbir Kasuji, Applicant – and – Mohammed Soeb Chhibu, Respondent
Counsel: Dumoluhle Siziba, for the Applicant Bradley Berns, for the Respondent
Heard: September 11, 12, 13, 14, 15, and 27, 2023
Before: Akazaki, J.
Reasons for Judgment
Introduction and Basic Facts
[1] The trial of this Ontario divorce case between two devout Indian Muslim individuals ostensibly concerned the usual issues pertaining to equalization of net family property, child support, and spousal support.
[2] Although not an arranged marriage, the respondent husband travelled back to his home village in India in 2008, with the sole intention of bringing back a wife to start a family in Toronto. The parties met and agreed to marry after a courtship consisting of several minutes of pleasantries. It was not proven that the applicant wife already had a love interest of whom her family disapproved, but she did have a male friend who would later follow her to Canada and become her lover when she decided to leave her husband. The wife moved in with her husband at a Jones Ave. home, where he already lived with his parents, siblings, and his siblings’ spouses and children. The parties raised three children of their own at the home, until the wife left in 2018. Presently, one of the children lives with the wife and the other two live with the husband.
[3] The applicable guidelines under statutory divorce law allocated the support entitlements and remedies without much difficulty. Equalization was more complicated. The issue turned on the nature of the husband’s “interest” in the Jones Ave. home, both to qualify it as a matrimonial home under s. 18(1) of the Family Law Act, R.S.O. 1990, c. F.3 (FLA) and to be valued as “net family property” under the definition in s. 4(1). To have value capable of being equalized, that interest had to be a beneficial interest in 2018. This property law question entailed the constellation of multiple factual, cultural, and legal reference points, including: the legal title to the multigenerational home registered to the husband and his father as tenants in common, the expectation of the family members when it was purchased, and communal living by at least two other married couples at various points in time.
[4] I will, in turn, address the property issue first, and then those relating to support.
Equalization of Net Family Property
[5] Apart from personal belongings of little or no market value, the only potential asset to be equalized pursuant to s. 5 of the FLA, was the Jones Ave. home. There was no dispute that, for the purposes of the second clause of the definition of “matrimonial home” in s. 18(1) of the FLA, the couple ordinarily resided there at the time of their separation, on May 2, 2018. If the husband had an interest in the home at that time, the home would also satisfy the first clause in that definition and would be a matrimonial home. The legal issue of whether a bare legal title to property constituted an interest need not be decided, because the wife had no claim except for possession under s. 19 and for its inclusion in the equalization under s. 5. For the house or any portion of it to be included in the equalization claim, the husband’s interest had to be capable of being valued, as of the 2018 separation date. It is on the questions of that interest and that value that the issue turns.
[6] On December 28, 2005, Natalina Borghese sold her ‘single-family home’ on Jones Ave. to members of the Chhibu family for $239,500. The sale was completed by a transfer registered to Abdulsamad Chhibu and his son Mohammed Chhibu, as tenants in common. The tenancy in common, on its face, gave rise to 50/50 ownership of the property. The court heard and received extensive evidence of the rationale for bestowing half the title on the eldest son even though, as a recent immigrant working as a labourer, he likely contributed the least, if anything, to the purchase.
[7] The mother’s affidavit stated that her children contributed most of down payment monies for the purchase. The father’s bank statement from November to December 2005 showed various deposits, including a $25,000 deposit corroborating the evidence of the husband’s sister Zaheda that she contributed that amount toward the purchase. Hers was the only deposit that was documented at the time, but it was the largest. The husband’s other siblings stated in affidavits that they contributed lesser amounts, between $7,000 and $10,000, all of which appear to correspond to deposits and transfers on the same bank statement.
[8] There was some ambiguity whether the husband, Mohammed Chhibu, contributed in like manner. In paragraph 6 of his affidavit, he claimed not to have contributed to the purchase. The father’s bank account showed two entries not accounted for by the siblings’ contributions. Despite the imperfect record, I find that the husband did contribute either $2,000, $3,000, or combined as $5,000, toward the down payment. He therefore cannot disclaim a beneficial interest on the sole basis that he contributed nothing to the purchase. Moreover, the fact that he lent his name to the title and mortgage, as well as the implied undertaking to help his parents manage the property, constituted some consideration on a par with that of the other contributing siblings.
[9] According to the evidence of the husband and the relatives testifying on his behalf, the property was registered half in his name because he was the oldest son, according to the family’s custom in India to register men on title and not women. They also stated that Shariah law provided that the property remained that of the husband’s parents, to be distributed to the children equally after the death of both of them. On cross-examination, several of these witnesses admitted that the women of the family do own property and have their names on title. I do not place much weight on this contradiction, because I understood their evidence to apply to how the first generation wanted to be done with the property, and that they themselves have assimilated to Canadian practices including the equal status of women in the family. I also gleaned that, whether customary or not, the practical advantage of the arrangement was that the adult son could see to the duties of managing the property on behalf of the elderly parents. It was not that much different from the practice in Canada and other Western countries of appointing the eldest sibling to run a family-owned company whose shares are held by the parents. “Family-owned” usually means owned or controlled by the parents and passed on to the children on their deaths.
[10] Counsel for the wife, in cross-examination of some of the Respondent’s witnesses, also suggested that the apparent gifting of half of the home to the Respondent mirrored a practice under Shariah inheritance law to bequeath a larger share of the estate to the first-born son and a smaller share to daughters. The witnesses voiced disagreement with this proposition. (It did sound like the seigneurial system of land inheritance in New France, abolished in the 19th century.) Perhaps it is or was part of Islamic law, but there was no affirmative evidence that this was in fact the law as the family understood it at the time of purchase. The only evidence on point was in their answers and in their affidavits that their understanding was that the Shariah inheritance law required the parents to look after the children in equal measure. The family witnesses’ evidence therefore stood up to cross-examination, and I have no basis to disbelieve them.
[11] None of the propositions regarding customary and Islamic law were by no means proven. There were no foreign legal experts, and the regional customs of a country as vast as India are undoubtedly as varied as religious sects, languages, and dialects. Moreover, principles governing the disposition of testamentary property are governed by the lex rei sitae, Ontario: John D Falconbridge, “Conflict of Laws: Examples of Characterization,” 1937 15-4 Can. B. Rev. 215, at p. 231. The court has not been asked to enforce the propositions as law. Whether a foreign law barring women from certain property rights could be enforced is subject to a very different conflicts of law analysis: Boardwalk Regency Corp. v. Maalouf (1992), 6 O.R. (3d) 737. Rather, the significance of the explanation reflected the will of the first generation to govern themselves by the customs they grew up with and to recreate their communal village life in the Toronto Riverdale neighbourhood. The evidence regarding the rationale for putting the eldest son’s name on title informs the issue of intent, which is all important to the issue of resulting trust. What the parents wanted for the organization of the Jones Ave. homestead and what the siblings understood the parents to want were more significant than the validity of their interpretation of particular laws or customs.
[12] Since the 18th century, the English law of resulting trust, also called an implied or constructive trust, provided an equitable remedy for a person who advances purchase money but intentionally is not named as the legal owner on title. It is, at its core, the operation of an equitable presumption against gifts. The contributor of purchase funds may vest title in the trustee, but the presumption is that the latter is holding title on behalf of the former. An expanded notion of the “common intention” resulting trust existed in Canadian law for a while, but the Supreme Court of Canada has distanced itself from while preserving the traditional doctrine: Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, at paras. 12-29. The traditional formulation continues to be used in family law as an ersatz tool for post-separation division of property among unmarried couples.
[13] On the surface of the 2005 purchase, the trust could lead to a finding that the husband and the grandfather held the property in trust for themselves and for the husband’s siblings, oddly shutting out the grandmother out save for her statutory rights. The problem with this outcome is that it was contrary to the intentions of all participants, that it was to be the siblings’ parents’ home until they died and passed it on to them. In fact, from the faith they had in each other, I doubt they cared much how the property vested on such death. Their expectations were that if they decided, as siblings, to sell it at that time, the proceeds would be divided equally; and that if there were further generations living there, there might not need to be any reason to sell it. Such seemed to be their idea of the intergenerational homestead, either back in the village in India or here.
[14] In contrast, the position taken by the wife in this case is essentially an application of an opposing doctrine, the presumption of advancement. Her position was that the property was half her husband’s, and that this was what the parties to the purchase intended. In the trust doctrine, ownership rebounds in favour of the contributor, but the presumption of advancement implies a gift forward. In the case of a transfer of property to a minor, there is a presumption of a gift, because of parents’ legal obligation to look after their children: Kerr, at para. 20. The Supreme Court has rejected the extension of the presumption in the case of transfers to adult children. The rationale is that transfer of title or the inclusion of adult children as joint account holders allows the children to provide assistance in the management of financial affairs when they become elderly: Pecore v. Pecore, 2007 SCC 17, [2007] 1 SCR 795, at para. 34. The equitable principles outlined in Pecore operated to refuse a claim by a 50% gratuitous legal titleholder to an equivalent beneficial ownership claim, in Oudeh v. Prior-Oudeh, 2021 ONSC 3718, at para, 82:
[82] Based on the facts as I have found them and the legal analysis of the resulting trust in favour of Patricia, all as set out above, I find that the value of the respondent’s 50% interest in 705 Hillsdale should not be included in her net family property as of the date of separation on December 1, 2015 as she did not have a beneficial ownership interest in this property at that time. Her beneficial 50% ownership interest in this property only crystalized upon Patricia’s death in April 2020, long after the valuation date for purposes of determining the respondent’s net family property.
[15] The wife argued that this line of cases could be distinguished, because the husband here did not receive a gratuitous transfer “but rather the Respondent contributed to the purchase of the property and hold (50%) as a tenant in common.” She also contended that her husband was paying the mortgage and household bills, both through a joint account with the father and in his own personal account. She also referred to the husband’s interest as confirmed in affidavits filed with the court on the death of the siblings’ father, permitting title to the other half to be transmitted to their mother. I concur that the contribution of a few thousand dollars to the down payment (compared to $25,000 by sister Zaheda) could give rise to a form of contractual theory or unjust enrichment based on the husband’s probable contribution of between $2,000 and $5,000.
[16] Neither of these theories give rise to valid claims in property law bringing the value of the house as of the separation date into the husband’s net family property. At most, the payment by the husband could represent a claim for equitable damages for a particular stake in the inheritance value of the home. The problem with this reasoning is that the siblings’ understanding was that they would all inherit one sixth of the property’s value if sold after their parents died, even though the siblings contributed unequal amounts. The contractual theory therefore depends on a testamentary entitlement that comes into being after the valuation date for the purpose of equalizing net family property. The unjust enrichment claim also falters, because (a) he would be the enriched party, receiving a higher share of the legacy than the proportion of his contribution, and (b) none of the siblings could be “enriched” prior to their mother’s death. The theory that is more faithful to the evidence is that the siblings gifted their contributions, to allow their parents to buy a home. In turn, the parents wanted to buy the home to provide a roof over the heads of the extended family – the way they would have liked to live if they had continued their communal family life in India.
[17] Payment of mortgage and household expense payments do not give rise to any proprietary interest but are, rather, subject to an unjust enrichment claim against the beneficial owner: Dosu v. Dosu, 2022 ONSC 5053, at para 165. To give effect to the “payment of expenses” theory would open up family law to claims for “survived values” by non-titled spouses based the “joint family venture” theory: Djekic v. Zai, 2015 ONCA 25, at para. 13. In Sidhu v. Sidhu, 2023 ONSC 4618, at para. 7, a similar multigenerational home case, this court declined to find that an interest on title combined with payment of expenses allowed the court to confer a beneficial ownership interest before the end of the parent’s life.
[18] The evidence of the respondent, his siblings and his cousin clearly established the intention of the two grandparents to have the respondent on title for the purpose of managing the house. The fact that some payments were made by him through the joint account with the wife only proved that he was contributing to household finances as a communal resident. Now that the sibling’s father is deceased and their mother is elderly and infirm, the practicality of having the respondent on the bank accounts and on the title to the house is quite manifest.
[19] The evidence at trial established that any beneficial interest held by the husband was an expectation of equal division of proceeds, if the siblings decided to sell it after their mother’s death. This, of course, could lead to disagreements: what if one or more wanted to sell, and the others did not? The question does not matter, because none of them had any expectation of any entitlement until after their mother’s death. Based on the totality of this evidence, I find the husband had no right to dispose of his 50% legal share without the consent of the mother and all the siblings. His authority over the property is clearly subject to the rule in Saunders v. Vautier (1841), Cr. & Ph. 240, 41 E.R. 482 (Ch. D.), that the terms of a trust can be varied or the trust can be terminated if all beneficiaries of the trust, being of full legal capacity, consent: Buschau v. Rogers Communications Inc., 2006 SCC 28, [2006] 1 SCR 973, at para 2.
[20] The rule in Saunders is commonly circumvented to preserve trusts, by limiting adult beneficiaries’ interests to life interests and requiring them to hold property in trust for further generations. The rule requiring the consent of all beneficiaries is also subject to the Variation of Trusts Act, R.S.O. 1990, c. V.1, in that the court has the authority to vary or revoke that part of the trust that Mohammed is holding for himself. I do not have the authority under that Act to change the trust, because the mother and siblings, whose interests could be affected, were not parties to the case. There is no need to vary the trust because those involved in the purchase are content to leave it as is. It was the wife, not a party to the purchase, who wanted the husband’s interest to be realized before his mother’s death.
[21] I therefore hold that the neither the husband’s legal title as a tenant in common nor his contribution to the original down payment gave rise to a beneficial interest in the property, except that he holds a five-sixths share of it in trust for his siblings and one sixths in trust for himself, upon the death of his mother. As in the Oudeh case, this interest does not beneficially crystallize until the death of the mother. Accordingly, he did not have a beneficial interest at the time of separation, for inclusion in his net family property.
[22] Before concluding this topic, I observe that the husband’s Net Family Property statement asserted an equalization payment to him, based on her appropriation of $45,000 in “Monies taken by the Applicant” as well as funds held by her that included the $27,430.99 she admittedly took from their joint bank account at the time she left the home. There was competing and inconclusive evidence regarding jewelry belonging to the wife and alleged to have been kept by the Chhibu family. Similarly, there was no cogent evidence of the $45,000 in cash. The funds in joint bank accounts are a wash, for the purposes of equalization, although it is relevant to support. The fact that the wife paid herself from jointly held funds after she left did not make it exclusively part of her net family property. Rather, it could be the subject of unjust enrichment or a set-off against spousal support. For his part, the husband has the vehicle he uses to drive for Uber, acquired during the marriage and valued at $11,382. This was the only property to be equalized. Therefore, I conclude that the husband owes the wife an equalization payment of $5,691.
Income for Support
[23] The wife’s declared income consists of $1,057 monthly income consisting of social assistance. The husband’s declared income consists of $10,390 in income from driving an Uber cab. Both parties receive the Federal Child Tax Benefit that is exempt from the support calculations.
[24] The parties have each sought to impute income against the other. The husband seeks to attribute minimum wage to the wife in the amount of $34,424.00 and states that his income should not be imputed as higher, and the wife seeks to impute up to $96,000 as the amount he could earn driving the Uber or as a taxi driver, if he truly applied himself.
[25] The wife contended that she was forced to stay at home and that she was essentially required to become a domestic servant for the husband as well as the others in the home. She testified she was never allowed out of the house except accompanied by another family member, similar to the life of a handmaid in Atwood’s Republic of Gilead. She said she could not work outside the home and could not learn English or take courses to prepare her better for the Canadian working world. Given that the husband was sleeping off his taxi night shift during the day, he could not have been the instrument of such confinement. At the end of the marriage, she was able to go to the bank, set up her own bank account and transfer all the funds from the couple’s joint bank account into her own. She has also been living independently of the family since the separation. Despite the assistance of Gujarati interpreters for the parties and most of the witnesses, I found that all except for the grandmother had some functioning ability in English, including the wife and the husband. (He would have to have some English, to drive a taxicab.) English is a common language in India, and the wife did attend an English private school for a while.
[26] Based on the evidence presented at trial, neither of the parties disclosed any functional disabilities or of any significant job searches showing that they were unable to enter the workforce to earn at least minimum wage. The Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), s. 15.1 and 15.2, and the Federal Child Support Guidelines (SOR/97-175) (CSG), s. 19, although applied differently, speak to duties to earn income to support children, former spouses, and themselves. I am therefore inclined to impute some income to both of the parties.
[27] The main difference between the parties’ household economies is that the husband lives in a communal multi-generational house in which basic expenses are shared by multiple breadwinners and kept low from a life without extravagance. However, his earnings have more purchasing power when pooled with other members of the household. He also has the family support to look after children when he is at work. I appreciate that, anecdotally, there may be Uber drivers earning large incomes. I do not accept that the circumstance of the husband, with his parental commitments and responsibilities to his mother, would be able to drive all hours to be a high-earning Uber driver. Nevertheless, I do not accept that $10,390 is all he is capable of earning. While it is true that he is shouldering two-thirds of the childcare, the daughter in the wife’s care is also his responsibility. Bak v. Dobell, 2007 ONCA 304, at para. 75, stands for the proposition that regular or dependable subsidies (legally classified as gifts) from family members can be considered income for family support purposes. The husband’s evidence that he likes to drive around the city, as opposed to holding a job like the one he used to hold at his relative’s wholesale outlet, is a self-indulgence.
[28] To the extent that the Chhibu family may have to support the husband’s support obligations to some extent, the fact that the wife left the Chhibu household does not affect some expectation of continued support, through the legal obligations of the husband. Neither the husband nor his family members expressed any animosity toward the wife. Their disappointment about her adultery and flight from the home, based on religious teachings, nevertheless did not appear to shake their generosity. I therefore attribute $40,000 of income to the husband, as an amount commensurate with his education and work experience. It is an amount less than the $50,000 middle income I imputed to the husband in Osanebi v. Osanebi, 2023 ONSC 2546, at para. 18, because I was not convinced that that level of income was realistic for Mr. Chhibu in this case.
[29] Similarly, because the wife does not have the family support for caring for her daughter that the husband possesses, I do not impute an ability to work at a full-time job. Instead of $34,424.00, I will impute an income of $25,000 to her.
Child Support
[30] The parties have three children, all of whom resided with the husband until the oldest daughter, now thirteen years old, moved in with the wife in March 2022. This means s. 8 of the CSG applies to this case:
- If there are two or more children, and each spouse has the majority of parenting time with one or more of those children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
[31] Using the DivorceMate inputs provided by the husband’s counsel, the wife currently has a net child support obligation of $17 payable to the husband. The husband did not assert a claim for retroactive child support, either for this amount or for the period when he and his family were looking after all three. The above monthly amount will start as of January 1, 2024.
Spousal Support
[32] Despite the fact that I have imputed income to both parties beyond their actual reported incomes, the issues of entitlement and quantification of spousal support are not automatic. For these issues, I will need to provide further detail of the marriage and the breakup.
[33] The husband never harboured illusions that the marriage to a woman almost half his age was to be a love match. Family tradition, religion and culture governed his destiny. Nevertheless, he had given up a stable but limiting job as a packer in his uncle’s wholesale electronics business to drive a taxicab during the overnight shift. He earned less doing this, but it would allow him “to see the city.” By this I took his testimony to mean that driving a taxi or an Uber at a lower income allowed him either to escape the domesticity of the home or relieve it of overcrowding – perhaps something of both. He could afford to earn less than he did before, because his wife was looking after the children and helping to run the household.
[34] The wife arrived in Canada not knowing much English, although she had been enrolled in an English school in India. As the youngest woman in a traditional patriarchal household, the change of scenery emphasized the irony that not much other than the scenery had changed. She felt that her sister-in-law was relieved to find someone to pass the yoke of housework and child rearing. She may have travelled halfway around the globe, but her life seemed to her no different from having married a local man. Toward the end of the marriage, when her family found out she had been having an extramarital affair with an old acquaintance from her village who had also come to Canada, the relatives on her side felt dishonoured and reported her to the Chhibu family. Although I do not find that she was confined to the house as she alleged, I accept that her status in the home left her in a position where her power to lead her own life would have been diminished.
[35] With both families condemning her conduct, the wife left the home with two of the children. She went to the bank and drained the joint account by transferring $27,430.99 to a new account in her name. Her husband reported her to the police, not for the money but out of worry that she had taken the children and was not in her right mind. (The money belonged to her as much as to him. As a matter of equity, half of it should be offset against any spousal support.) The children were returned to the Chhibu home. She moved in with a friend. Her lover, a married man with a family home of his own, eventually had a second affair, and she left him. The family law case took its course, and now one of the children live with her, and the other two with their father.
[36] I find that the husband owes the wife spousal support on both a compensatory and a needs basis. In Canada, adultery is no defence to the imposition of spousal support obligations. It only allows for the granting of a divorce before waiting a year after separation. While I do no find there was credible evidence of cruelty or familial abuse against the wife, I need not find any in order to establish compensation as well as need for spousal support. If she had arrived in Canada as an unmarried person lacking higher education or business experience, however unlikely that would have been from an immigration perspective, the argument might be that she could have enrolled in full-time education to obtain high-school equivalency and perhaps college. The more likely scenario in a less tradition-bound home would have been for her to arrive in Canada married to Mr. Chhibu, and for him to have encouraged her to obtain these qualifications part-time while helping her look after the children and the home. I appreciate that from a cultural perspective this may have seemed highly unrealistic. However, the Chhibu family included successful and accomplished women. What seemed to be stopping the husband from encouraging his wife to pursue a life outside the home was his age and diminished empathy for a wife who, at such a young age, had been transplanted to a new country. He wanted a mother for his intended children. He should have looked after her interests and needs better, as a life companion.
[37] Had the husband encouraged the wife to pursue a Canadian education and pursue some kind of career, I would have been more inclined to say that the marriage did not cause the wife to be impeded in self-sufficiency. Undoubtedly, there was some familial pressure in the Chhibu household that held her back from asking for such opportunities. Evidence that he did not prevent her from going out, meeting friends outside the family, and pursue education and training was not sufficient, having regard to her age and needs. This is not a moral judgment on the husband’s conduct. It simply means that his lack of encouragement, given the circumstances of the Chhibu household, held the wife back from being more self-sufficient. I therefore find that the wife is entitled to spousal support on a compensatory basis as well as need.
[38] The DivorceMate calculations used for child support also set a range under the SSAGs between a low end of zero, a middle figure of $176, and a high end of $462 per month, for a minimum of six years and a maximum of twelve years. The high end is likely the application of the with-child-support formula with the expectation of support until the eldest daughter graduates from high school. Based on my findings regarding the bases of entitlement, I hereby find that the husband owes the wife spousal support in the amount of $462 per month for a period of ten years.
[39] I find that the wife was entitled to retroactive spousal support. What complicates this is that she did re partner for a period of time, and for a while she was also living off the funds she withdrew from the joint bank account. Rather than enter a detailed ex post analysis, I will allow the husband a $13,715 set-off from the said funds and estimate that the retroactive support amounted to $6,000 in total. I therefore award $6,000 in retroactive spousal support as well as the monthly spousal support of $462, starting January 1, 2024.
Conclusion
[40] The parties’ claims are therefore resolved in a final order to go, as follows:
The respondent shall pay the applicant an equalization payment of $5,691.
The applicant shall pay the respondent table child support in the net amount of $17 per month, starting January 1, 2024, on the basis of the applicant’s imputed annual income of $25,000 and the respondent’s imputed annual income of $40,000. The formal order shall include the names and birthdates of the children in the parties’ care.
A support deduction order shall issue for the child support.
The respondent shall pay the applicant retroactive spousal support in the amount of $6,000, within 30 days.
The respondent shall pay the applicant spousal support in the amount of $462 per month, starting January 1, 2024 and ending December 1, 2034.
A support deduction order shall issue for the spousal support.
[41] If costs are not settled on or before January 1, 2024, the parties may submit their bills of costs, any relevant offers, and costs submissions on or by January 15, 2024. The submissions are not to be longer than two pages, double-spaced. These materials shall be served and filed as well as forwarded to my attention via my judicial assistant.
Akazaki, J.
Released: December 6, 2023
Court File No.: FS-18-4651 Date: 2023-12-06 Ontario Superior Court of Justice
Between: Kasuji v. Chhibu
Reasons for Judgment
Akazaki, J.
Released: December 6, 2023