Court File: FS-19-42382-0000
Date: 2023 07 06
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARIA DA CONCEICAO AFONSO DE BRITO MARTINS
Applicant
v.
JOSE MARIA DIAS MARTINS
Respondent
REASONS FOR JUDGMENT
BY THE HONOURABLE JUSTICE E. CHOZIK
on JULY 6, 2023, at MILTON, Ontario
APPEARANCES:
K. Bombardieri Counsel for the Applicant
J. Schmidt Counsel for the Respondent
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
WITNESSES:
Exam. in-Ch.
Cr-Ex.
Re-Ex.
...NO WITNESSES WERE CALLED AT THIS TIME
Reasons for Judgment Page 1
LEGEND
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Transcript Ordered (copy): September 26, 2023
Transcript Completed: August 20, 2023
Ordering Party Notified: August 20, 2023
THURSDAY, JULY 6, 2023
THE COURT: I am going to deliver my reasons for judgment orally. I reserve the right to edit the decision for citations and clarity, if the transcript is ordered. These are my reasons for judgment in the trial of Martins versus Martins.
R E A S O N S F O R J U D G M E N T
CHOZIK, J.: (Orally):
Overview:
The applicant is Maria Martins. She is now 51 years old. The respondent is Jose Martins. He is 62 years old. The second respondent is Antonio Martins. He is Jose's brother.
For ease of reference, and not intending any disrespect, I will refer to the parties as Maria and Jose and Antonio for the sake of clarity because their last names are all the same.
Jose and Maria were married in Portugal in 1988. They separated in June of 2018 after nearly 30 years of marriage. They have two adult children, Sandy and Miguel. In September of 2019, Maria and Jose entered into a partial separation agreement. There is no issue in respect of the validity of that agreement.
It provided for Jose to buy out Maria's interest in the matrimonial home, which is located on Wentworth Avenue in Oakville. The home was appraised at the time and valued at $850,000. It was unencumbered. Jose, using money that he borrowed from his family, bought out Maria's interest for $425,000. The transfer of title was completed in January of 2020 by Robert Cross, a real estate solicitor. At the time, Jose was represented in this family litigation by Rachel Williams.
About two years prior to separation in 2016, Jose retired. He had worked for 29 years as a labourer in highway construction. During that time, he earned 39 years of service. It was a physically demanding job. It was a unionized position.
At the time of the separation in 2018, his pension had been in pay for some time. Jose receives a pension of roughly $44,000 annually, but he admitted that for a year or two after he retired, he continued to work in construction.
Since his pension was in pay, Maria did not initially seek its equalization. She claims that at the time of the separation, she believed that if Jose died, she would continue to receive a portion of his pension.
In May of 2020, Maria's lawyer, Ms. Bombardieri, learned that in February of 2016, Maria had signed a waiver of survivor benefits in respect of Jose's pension. Correspondence between lawyers establishes that this was a surprise to Ms. Bombardieri.
In an email dated May 21st, 2020, Ms. Bombardieri put Ms. Williams on notice that Maria would be seeking division of the pension and pay by way of a lump sum payment. This email was forwarded by Ms. Williams to Lucy Martins, Jose's sister-in-law, and also forwarded to Jose the next day on May 22nd, 2020.
A number of emails between Lucy Martins and Ms. Williams followed. These emails form part of an agreed statement of fact entered into evidence at the conclusion of this trial.
Less than two months after Ms. Bombardieri had emailed Ms. Williams about Maria's intention to seek the division of the pension by way of a lump sum payment, Jose transferred the Wentworth property to his brother, Antonio. The transfer was done for love and affection for zero dollars.
The true purpose of that transfer, and Maria's understanding of the waiver of the pension survivor benefits are two of the main factual questions I must decide.
There are three issues in this trial. First, should Jose's pension be divided and equalized as part of the net family property by way of a lump sum payment?
Second, in respect of spousal support, should income be imputed to either party, and what quantum and duration of spousal support, if any, is appropriate.
The third and final issue relates to some of the post separation adjustments Jose claims in respect of money he says is owing to his sister, Rosa Martins, and other alleged debts and expenses he says Maria should be responsible for.
Background:
By way of background, Maria was 16 years old when she married Jose, who is 11 years older. Maria has a grade 3 education from Portugal. She has very limited proficiency in English.
Since coming to Canada many years ago, she has worked as a cleaning lady. She earned cash and worked flexible hours. She was also a homemaker and responsible for childcare in respect of the parties now two adult children.
Jose worked in construction, as I have already described. His English is also limited. Both testified through interpreters. They have both obviously worked very hard. They own their own home. The home was unencumbered. They also own a condo in Portugal. Their children were looked after. They were part of a tight knit Portuguese family and the greater Portuguese Canadian community.
The marriage was a very traditional one. Maria was the primary caregiver to the children and a homemaker. She worked as a cleaning lady, earning cash until about 2012 or 2018. Jose was the primary income earner. When he came home from work, the house was clean, his meals were prepared and his laundry was done.
In 2012, Maria was diagnosed with undifferentiated connective disease, seronegative inflammatory arthritis and fibromyalgia. Doctor Patodia testified that undifferentiated connective disease is a condition where people have symptoms of connective tissue diseases, but not enough symptoms to be diagnosed for specific diseases such as lupus.
The symptoms of this condition include joint pain, joint swelling, fatigue, rashes, shortness of breath, chest pain, kidney problems and a long list of other symptoms. Blood tests were used to diagnose Maria's symptoms.
Maria testified that as a result of her health conditions, she was no longer able to work. Doctor Patodia agreed. Someone in Maria's condition could not know day-to-day whether she would experience painful or other symptoms or not.
Doctor Patodia explained that there's no job that someone in Maria's condition could do. Doctor Patodia felt qualified to give this opinion. She has for many, many years, been responsible for providing such opinions to the ODSP and other government agencies who rely on her expertise. I am prepared to accept her evidence in this regard.
According to Jose, he had no idea of Maria's health issues and he denied that she has any, even though she was diagnosed with them six years prior to separation.
At trial, Maria sought to establish that during the marriage and post separation, Jose was a bully, who acted in bad faith with the intention of depriving her of her fair share of the division of property post separation
Jose sought to establish that Maria was a conniving liar, set on depriving him of his hard earned savings. The determination of the issues in dispute depends on factual findings which rest on my assessment of the credibility and reliability of the witnesses who testified.
I will therefore start my analysis by dealing with credibility and reliability of the witnesses and their evidence.
Credibility and Reliability:
I received affidavit evidence and viva voce testimony of Maria and Jose, as well as their daughter, Sandy. Sandy was 33 years old when she testified. She was called as a witness by Maria.
As I mentioned, I also received evidence from Doctor Shaila Patodia, a specialist in rheumatology.
I also heard viva voce evidence from Jose, Jose's brother, Antonio, and Lucy Martins, Antonio's wife and Jose's sister-in-law. I also received the evidence of Jose and Antonio's sister, Rosa Martins, sister-in-law, Dina Marques, a neighbour, Claudia Esteves, and the wife of his Jose's former boss, Rosa Datorre.
These witnesses had prepared affidavits which were intended to be tendered as their evidence in-chief. During the trial, I ruled that portions of those affidavits were inadmissible. The inadmissible portions of the affidavits were so interwoven within those affidavits that they could not be edited or redacted. I ruled that those affidavits could only be used for impeachment purposes.
The assessment of credibility is not a contest between witnesses. I must not approach the evidence as a choice between whether I believe one witness or another. Rather, to assess credibility, I must consider all of the evidence.
In addition to credibility, I must assess the reliability of the evidence. These are two different concepts. Reliability has to do with the accuracy of a witness's evidence, whether he has a good memory, whether he can recount the details of the event and whether he is an accurate historian.
Credibility has to do with whether a witness is telling the truth. A witness who is not telling the truth is not providing reliable evidence. However, the reverse is not always the case.
Sometimes an honest witness will be trying his best to tell the truth and will believe the truth of what he is relating, but nevertheless be mistaken in his recollection. Such witnesses will appear to be telling the truth and will be convinced that they are right, but may still be proven by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable: R. v. Nyznik, [2017] ONSC 4392 at para. 15.
Demeanour, or the manner in which a witness testifies, is not particularly helpful in assessing reliability or credibility. The fact that a witness is emotional, adamant, shy or confident does not, in the normal course, make it more or less likely that events happened as he or she says. Demeanour is generally not a reliable indicator of truth telling. I do not rely on demeanour here.
There are two critical factual areas about which witnesses of this trial gave conflicting evidence. The first was about the transfer of the title to the Wentworth property from Jose to Antonio, and the second was about the waiver of the survivor benefits and whether Maria appreciated what she was signing when she signed it.
I want to deal with these two evidentiary issues first. Having considered all of the evidence, I find that Jose, Antonio and Lucy lied to this Court under oath. I also find that they colluded with each other and the other witnesses. Collusion, amongst themselves and with Miss Datorre, Esteves and Ms. Marques, makes the evidence unreliable.
Let me first deal with what I find is a lie. I find that they lied about the circumstances that led to the transfer of the property from Jose to Antonio.
Jose, Antonio and Lucy each claimed to have no knowledge of Maria's claim for a lump sum division of Jose’s pension prior to the transfer of the property in July of 2020.
A good portion of this six day trial was spent on evidence about this. Each was asked point blank, “At the time of the transfer, did you know that Maria wanted to be paid out a lump sum for Jose’s pension?” And each of them under oath, said, “No”.
They then went on to tell a tale of what they knew, when, and gave an elaborate story about why the property was transferred as it was. At the end of the trial, after all of the evidence had been called, rather than call Rachel Williams and Robert Cross to testify, the parties tendered an agreed statement of fact.
The agreed statement of fact is based on evidence that would have been given by the two lawyers and certain emails that were documented in their files. Those emails uncontrovertibly contradict the evidence given by Jose, Antonio and Lucy.
Robert Cross acted in respect of the transfers of the Wentworth property from Maria to Jose and then from Jose to Antonio, and Rachel Williams, who was Jose's family lawyer until a short time after the transfer to Antonio.
The agreed statement of facts makes it clear that Lucy immediately understood what it was that Maria was asking for. She says, this is on page four of the agreed statement of fact, “Is Lisa suggesting that Jose come up with half of the approximately $700,000 value now to pay Maria? That's ridiculous.”
All of the other emails simply support the fact that Lucy knew that Maria was seeking a lump sum payment of the pension and pay as early as May, or maybe as late as June of 2020. There can be simply no doubt about this.
When Lucy then testified and denied that she knew this and then went on to explain that by equalization she thought it meant Maria wanted half of Jose's monthly pension payment, she was deliberately lying.
Jose and the other Martins’ family members, whose English was limited, relied on Lucy to translate things to them and to explain to them the various emails and correspondences and documents. Lucy testified that she did so.
I conclude that Jose, Antonio and the rest of the family knew what Maria was after. They knew it in May or June of 2020. They then decided to transfer the property to Antonio. Within 20 days of the last email between Ms. Williams and Lucy, the property was transferred.
Their account for why the property was transferred was an after the fact rationalization designed to mislead the Court. Even without the agreed statement of facts, their story is full of internal inconsistencies. Their explanations did not make sense from the outset, but in light of the agreed statement of facts, I conclude that their evidence about it was patently false.
They told lies under oath to cover up that the transfer of the property was a conveyance intended to defeat any interest Maria might have had in the property for a lump sum payment of the pension.
Their story about why they transferred the property was internally inconsistent for a number of reasons. First, their loan to Jose for $425,000 was secured by way of promissory notes. It makes no sense why those were suddenly not good enough to secure their interest.
They each testified that in this family, money was ordinary loaned on trust without paperwork. They chose to have the paperwork (i.e. promissory notes) in this case to keep track of who and what amount was loaned.
Their explanation for why suddenly less than six months later, the transfer of the property was necessary to secure their loan made no sense. They said that they did it because they realized Jose could not repay the loan. At the same time, they said that they knew this at the time that they made the loan in the first place.
Second, their explanation for why they didn't simply secure their interest for the loan as a mortgage against the property made no sense either. Both Antonio and Lucy testified that Jose wouldn't have qualified for a mortgage at a bank.
We are not talking about a mortgage at a bank. We are talking about, why not take a mortgage out against the property to secure the loan? Mr. Cross had suggested this to them in an email on January the 9th of 2020.
Third, it also made no sense why the entire property was transferred to Antonio if their story was even remotely true. If Jose were to retain a beneficial ownership of the property, which they flip-flopped about, but in the end, they seemed to agree that he still had an interest in the property, why not hold the title to the property jointly?
There was no valuation of the property done at the time of the transfer. There was not clear, there at one point there was testimony that the intention was for Jose to retain the beneficial ownership of the property and that it was to pass on to his children in the event that he died. But that simply would not happen if Antonio was holding the property. There was no documentation whatsoever to keep track of how the property would be divided in the event that that happened.
Jose, Antonio, Lucia and Rosa Martins all testified that they decided in April to transfer the property to Antonio. I do not believe them. I find that this and their entire version of the circumstances around the transfer of the property were deliberate lies. They had no intention of transferring the property to Antonio until Maria's claim against that property became known.
Having considered all of the evidence, I find that they lied under oath about a critical issue. They colluded with each other to give false evidence to this Court and conscripted others to come and give scripted evidence.
For example, Rosa Martins could not recall any details or answer any questions about the supposed April family gathering at which the family supposedly decided on the transfer. She could not answer anything that went off script. She was entirely incredible and unreliable as a result.
I reject Jose's evidence, I reject Antonio's evidence, and I reject use Lucy’s evidence. They lied to this Court under oath about when they knew about Maria's claim to divide the pension in half as a lump sum. As a result of their lies, I cannot believe or rely on anything, anything they have said.
I have made very strong statements about Jose’s, Antonio's and Lucy's credibility. It is not every day that a judge says a witness has deliberately lied under oath. In this case, I say it intentionally.
It is an affront to the administration of justice for people to come to court and tell lies under oath. It shows total disrespect for the Court and the administration of justice. Sadly, I find that this is exactly what happened in this case. The respondents acted in bad faith.
None of my findings in this regard are intended to cast dispersions against Mr. Schmidt. The nail in the proverbial coffin, the emails between Lucy and Ms. Williams, came to light at the end of the case, after all of the viva voce evidence had been called. Mr. Schmidt conducted this case with the utmost professionalism, competence and good faith.
The Waiver:
In respect of the waiver of survivor benefits, Jose claimed that Maria was happy and willing to sign the waiver, that Sandy explained the waiver to both of them and that Sandy persuaded Maria to sign it.
He called Ms. Marques, his former boss's wife, as a witness, who testified that Maria told her she was happy to have signed the waiver at the BBQ. She told her this at a barbecue in 2016. She testified that she and Maria agreed that they were independent women and did not need the survivor benefits, or words to that effect.
He also called the neighbour, Claudina Esteves, who claimed that Maria told her some time prior to separation that Jose had retired and that if he died, she would no longer receive a pension and that she was happy and satisfied with this.
I do not accept this evidence. As I have made it clear, in light of the lie told by Jose under oath about when he knew about Maria's claim to the division of the pension, I cannot accept any of his evidence.
But I also find that the evidence of Ms. Esteves is not reliable. Her affidavit was written by Lucy. Ordinarily, this would not be a big deal. Affidavits are written for people by lawyers or law clerks all the time. Except in this case, it again suggests collusion. A witness and a person with an interest in the proceedings writing an affidavit for another witness taints the evidence of both witnesses.
By her own admission, Ms. Esteves had not spoken to Maria in years. She could not recall whether her conversation with Maria happened in 2016 or 2018. She also testified that the Martins family spoke to her before COVID, before March of 2020, and told her that it was very important that she testify about whether Maria willingly signed the waiver. Before COVID, before March of 2020, the waiver was not an issue in this case. It could not have happened the way Ms. Esteves recalls.
Ms. Datorre's evidence is also not reliable. Lucy also scripted her affidavit. Her version of a conversation she had with Maria in 2016 makes no sense that Maria happily told her that she had signed the waiver, that they were both working women did not need the survivor benefits, makes no sense. According to Ms. Datorre, Maria said she was happy about the waiver because she could work. Again, this evidence makes no sense. She could work whether she signed the waiver or not.
Ms. Datorre testified that she did not read the affidavit she swore. Lucy simply explained it to her and she signed it. She had no appreciation that doing so was the same as testifying in court. I find this very concerning that a witness swears to evidence that she had not even read and has no appreciation for the significance of the oath.
Her affidavit also contains an important inconsistency with her evidence at trial. In her affidavit, she said that Maria told her she was happy to sign the waiver because this meant she would receive a higher monthly payout from the pension, whereas at trial, Ms. Datorre recalled no such thing. Again, this raises concerns about scripting and collusion and casts a shadow over the reliability of all of Ms. Datorre's evidence.
Dina Marques testified that Maria told her she was happy about signing the waiver. She said the conversation happened at her house some time after Jose retired in 2016. According to Ms. Marques, Maria told her that she signed the waiver, that Sandy had explained everything and that she would get a few hundred extra dollars a month, which was to be set aside for her future.
I accept Ms. Marques's evidence in this regard. It conforms with Maria's evidence and Sandy's evidence. Maria had signed the waiver. Sandy had, “explained it”, and she was getting a few hundred dollars a month extra that was supposed to be set aside for her future.
However, Ms. Marques's evidence that Maria knew and understood the consequences of signing the waiver, which is that if Jose died, she would no longer be entitled to any of his pension, is not reliable. This is her understanding now, but I do not accept that this was Maria's understanding of the waiver then, years ago, when the conversation allegedly happened.
I find that the most trustworthy evidence about the circumstances that led to the signing of the waiver was that of Sandy, the party's adult daughter. Her evidence was trustworthy in part because she had no motive to come to court and lie.
Sandy was obviously torn to be here in court. She was distraught about having to testify against her father, Jose. She testified that Jose basically pestered and harassed her to get Maria to sign the waiver, that she did eventually relent and pressured Maria to sign it, but that at the time, neither she nor Maria really appreciated what it meant. She concluded her testimony by saying she could not believe that her father would do something like that to her mother.
I accept Sandy's evidence. She really has no reason to lie. Her recollection of the events seems reasonably accurate and fresh in her mind. There were no internal inconsistencies in her evidence. She was otherwise consistent. Her evidence is both accurate and, in my view, reliable.
It is also confirmed by Jose's evidence, or lack of evidence, about what explanation or documentation he provided with the waiver for Sandy to explain to Maria. Jose could not point to anything or produce anything that explained the waiver to either of them.
As a result, I find that Maria did not fully appreciate that by signing the waiver, she would be giving up her right to survivor benefits under Jose’s pension plan.
I also find confirmation for this in the fact that Maria's lawyer, Ms. Bombardieri, was taken by surprise, that there were no survivor benefits. The correspondence between the lawyers proves this. When the waiver was discovered, the litigation strategy changed.
I therefore reject Jose’s and the other witnesses’ evidence that Maria was fully aware of the consequences of signing the waiver. Their evidence about this is neither credible nor reliable.
In respect of Jose's evidence generally, even in the absence of the agreed statement of fact, I found his evidence to be incredible and unreliable. When he testified, he was evasive, he was non responsive, he was not forthcoming.
I found his evidence to be scripted and rehearsed like his sister, Ms. Martins. He clearly had an agenda when he testified. Rather than answer questions truthfully to the best of his ability, which is what I repeatedly explained to him was his role as a witness, he continually evaded questions and launched speeches. Many of them were repetitive. He had an agenda and a script, and he was sticking to it no matter what.
Whenever a question asked him to go off script, he said he didn't understand. He testified through an interpreter. The questions asked of him were clear or repeatedly explained and simplified, yet he still claimed not to understand.
I find that his lack of understanding was feigned and deliberately aimed to frustrate cross-examination. He also repeatedly contradicted evidence he had given at questioning. In the end, I do not believe his evidence and I cannot rely on any of it.
In respect of Marie's evidence, I found her evidence to be generally credible and reliable. Her evidence in respect of her health conditions was confirmed by Doctor Patodia. Her evidence in respect of Jose's and his family's conduct towards her post separation was confirmed by Sandy's evidence, as well as the fact that these people colluded against her to lie to this Court.
While I found Maria's evidence to be generally credible and reliable, I had some concerns about whether Maria comes to court with clean hands. For example, on questions about her current income, she seemed not very forthcoming.
She was not very forthcoming about the details of a loan she made, and some of the deposits that were made to her account. There were bank statements and details and other information that she may not have disclosed to Jose.
But I accept Maria's evidence that she chose to act this way, not to mislead the Court, but because she fears repercussions from Jose and the rest of the Martins family. There is a clear power and balance in her relationship with them and she is protecting herself.
I therefore decline to draw a negative inference about her secretiveness, particularly her secretiveness about her boyfriend, the loan she made and other such personal details. In the end, these details, the loan and who deposits money into her account and where, do not really impact my decision on any issue. Having made those findings of credibility and reliability, I will now turn to the first issue and that is whether the value of the pension should form part of the net family property to be equalized or as income and should be divided at source.
Issue One: The Pension
The value of the pension as of separation is not disputed. It was $799,999.69. If it is to be included in the net family property and divided, and taking into account some other minor equalizations, Maria will receive approximately $356,000 by way of equalization.
If, since it is in pay, it is part of Jose's income, Maria will be entitled to receive a share of it as spousal support. There are no survivor benefits, therefore, when Jose dies, Maria will receive no further support or pension. She is 11 years younger than Jose.
The legal principles are not in dispute. Before a pension is in pay, it must be included in the recipient’s net family property and divided or equalized. There is no other option than a lump sum payment or transfer. The interest of one spouse in another spouse’s pension benefits has long been recognized as a matter of matrimonial or family property.
But once a pension is in pay, it is usually not included in net family property, but divided at source. However, in the 2018 case of Fawcett v. Fawcett, the Court of Appeal made clear that a pension and pay is not limited to being split at source. When a pension is in pay, the Court may order either a lump sum payment or transfer, or order that it be divided at source.
In other words, I have discretion in how to deal with it. In exercising this discretion, there are five factors that I must consider. They are set out in section 10.1(4) of the Family Law Act.
The first is the nature of the assets available to each spouse at the time of the hearing.
The second is the proportion of a spouse's net family property that consists of the imputed value for family law purposes of his or her interest in the pension.
The third is the liquidity of the lump sum in the hands of the spouse to who will be transferred.
The fourth is any contingent tax liabilities and respect of the lump sum that will be transferred.
And the fifth is the resources available to each spouse to meet his or her needs in retirement, and the desirability of maintaining those resources.
The goal of the exercise of discretion is to achieve a division of assets that is fair to both parties: Fawcett v. Fawcett, supra. The choice of a method for settlement of an equalization obligation is highly contextual and fact based: Best v. Best, 1999 CanLII 700 (SCC), [1999] 2 S.C.R. 868 (S.C.C.) at para. 109.
In my view, the determination of whether to order a division of the pension and payment by lump sum turns on the last factor, the resources available to Jose and Maria to meet his or her needs in retirement, and the desirability of maintaining those resources.
At the same time, I have considered all of the other factors. But because of the waiver, Maria will have no ability to meet her needs in retirement. She is, as I will discuss, entitled to indefinite spousal support.
Yet when Jose dies, which could for any of us be tomorrow, she will have no way to support herself. She is not required to deplete her capital to support herself. Both Maria and Jose received $425,000 from the division of the matrimonial home, but neither is required to deplete that amount to support themselves.
As a result, to achieve a fair distribution of the assets between the parties and to ensure that each can meet his or her needs in retirement, I conclude that the pension must be divided by the payment of a lump sum.
I also have no hesitation in finding that the transfer of the Wentworth property from Jose to Antonio was fraudulent, as defined in the Fraudulent Conveyances Act. It was made with the intent to defeat or hinder Maria's claims to the division of the pension by way of a lump sum payment and to frustrate her ability to collect that payment.
Issue Two: Duration and Quantum of Spousal Support:
I will now turn to the issue of spousal support.
This was a 30 year traditional marriage. Jose was the main income earner. Maria was the primary caregiver to the parties' two children and housekeeper. In the end, Jose did not dispute that Maria is entitled to spousal support and that her entitlement is indefinite.
The critical question is the quantum of spousal support. The answer turns on whether income should be imputed to either party and, in my view, on whether the pension is divided by way of a lump sum. If no income is imputed to Jose, then that same pension is his only income.
Maria takes the position that I should impute income to Jose of $50,000 a year. She argues that he has historically worked as a labourer, earning additional cash since his retirement. She argues that he is now, post separation, deliberately underemployed.
To prove that Jose is working for cash, the only evidence she cites is the fact that he suffered a broken leg while on the construction site of one of his brothers. Jose disputes this. He testifies that he was on that site because he goes to the construction sites to have something to do, to leave his house and be less lonely.
Ms. Marques confirmed Jose's evidence about this. As I have said, I accept Ms. Marques's evidence generally and in particular I accept her evidence about this because it was not scripted. The evidence came out in response to my questions, which Ms. Marques could not have anticipated.
In respect of her income, Maria testified that her health issues prevent her from working. She might have worked occasionally between 2012 and 2018, but she did not earn very much. She couldn't work very many hours, and she certainly cannot work now.
Jose denied that he is underemployed. He testified that he is retired. He worked the equivalent of 39 years in construction, and he is entitled to stop working, he says. He is not underemployed. He just cannot do physical labour anymore. His body cannot take it.
While he claimed to suffer from a host of health conditions, Jose called no medical evidence to confirm this. He admitted in his affidavit that after he started to draw his pension of 2016, he continued to work for a time.
He disputed that Maria has any health issues that prevented her from working. He took the position that Maria should have taken steps to become self-sufficient and that she has failed to do so.
Having considered all of the evidence, I decline to impute income to either party. In respect of Jose's evidence, I have already found his evidence to be incredible and unreliable. He has deliberately lied to this court.
As a result, it is difficult to accept anything he says. I suspect that he has worked post retirement and post separation probably more than he admits. It is also implausible that he had no idea of Maria's health issues in light of the medical evidence at this trial.
At the same time, I do not find that he is underemployed. He retired during the marriage. He did not retire to avoid paying spousal support. He is now 62 years old.
While there is no medical evidence to support his claims about any particular health issues, it makes sense that after 29 years of hard labour and, at his age, his body is not capable of working in a physically demanding job.
He may have worked in construction, post retirement and post separation, but I am not satisfied that any cash work he could do now amounts to or could reasonably be assumed to amount to $50,000 a year. I therefore decline to impute income to him going forward. I find that his only income going forward is his pension.
I also accept that Maria cannot work. As I have already set out, she adduced medical evidence, which I accept, to confirm this. I accept that she cannot work in any meaningful capacity and that she cannot even earn a minimum wage income.
I also accept her evidence that because she has no official history of employment, she's not eligible for ODSP and possibly other government support programs. There's no evidence before me that proves otherwise. I therefore decline to impute minimum wage income to her.
It is also unreasonable to expect her to become self-sufficient as Jose asserted she should. She is 51 years old. She has a number of debilitating medical conditions. She has a grade 3 education. She does not speak English. She has been financially dependent on Jose since she was 16 years old.
After a 30 year traditional marriage, she's entitled to spousal support indefinitely. But the sad reality is, is that there's no income other than Jose's pension, from which Jose can pay any spousal support.
Having ordered Jose to pay a lump sum for the division of the pension, he has nothing left except the income he receives from that same pension. To equalize the pension and order Jose to pay half of it to Maria as spousal support on a monthly basis would not be fair.
It would result in an unfair, uneven distribution of the net family income and assets. It would be unfair to allow double dipping in this particular case: Boston v. Boston, [2001] S.C.C. 43 at para. 62-64. I therefore decline to order any ongoing spousal support.
For the same reason, I decline to order Jose to pay Maria any further support retroactively. But I also decline to credit Jose with anything he has already paid by way of spousal support because, as I have found, he was probably working for some portion of the time after separation and earning cash income he did not report.
To be fair to both parties and in the interests of finality, there shall not be any further recalculation of retroactive support in addition to what he has already paid, no ongoing spousal support.
Issue Three: Post-separation Adjustments
With respect of the third issue, the post separation adjustments, Jose claims a list of post separation adjustments. Those are set out in this draft order at paragraph 9, which is Exhibit 2. Where they are not admitted by Maria, and most of them are not, I decline to give his claims any effect.
As I have made clear, I do not believe his evidence or the evidence of his sister, Rosa Martins, in respect of any loan outstanding. Neither he nor Miss Rosa Martins are credible or reliable witnesses. His other claims for those post separation adjustments are dismissed.
So, in conclusion, I find that Jose's pension, which is in pay, must be included in his net family property and divided. I find that this results in Jose owing an equalization payment to Maria of $356,950.18. This amount is payable to Maria within 60 days.
I also find that the conveyance of the Wentworth property from Jose to Antonio was fraudulent within the meaning of the Fraudulent Conveyance Act. The property was transferred to Antonio in order to defeat any interest in the property that Maria might have.
If Jose does not pay Maria the $356,950.18 within 60 days, the conveyance shall be voided and the property sold in accordance with the terms proposed by Maria in the draft order that is Exhibit 1.
Until the payment of the $356,950.18, prejudgment and post judgment interest and costs as made, the CPL against the Wentworth property shall continue.
In respect of spousal support, I find that, while Maria is entitled to indefinite support, there is simply no money from which this support could be paid. I decline to impute any income to either Jose or Maria. It would not be fair to allow Maria double recovery in this case.
I decline to order Jose to pay retroactive support in addition to what he has already paid, but I also decline to recalculate what he has paid and give him any credit.
I reject Jose's claims for various post separation adjustments. I cannot accept his evidence or that of his witnesses about those claims as credible or reliable.
So the order I make is going to be in accordance with Exhibit 1, paragraph 8, 9 and 10. That is, there will be an order pursuant to the Family Law Act, that the respondent, Jose Maria Dias Martins, shall pay the applicant, Maria Da Conceicao Afonso De Brito, an equalization payment in the amount of $356,950.18 within 60 days of this order.
There shall be an order pursuant to the Courts of Justice Act that the respondent pay the applicant prejudgment interest on that amount for the period of June 9th, 2018 until October 28th, 2022, in the amount of $23,667.56, also, within 60 days of the order.
There will also be an order that in the event that the respondent does not pay the equalization payment and the prejudgment interest, there will be an order voiding the fraudulent conveyance of the Wentworth property.
There will be an order that Antonio immediately transfer the ownership of that property back to Jose, at Jose's expense. There will be an order that Jose immediately list the property for sale.
And the other orders I am going to make are in accordance with paragraphs 10, 9E, F, G, H, of the draft order. I am not going to read them to you, but they deal with the terms of the listing.
There will be an order that the remaining proceeds of the sale of the matrimonial home will remain in trust until the issues of costs in these proceedings is determined and the post judgment interest will be in accordance with the Courts of Justice Act.
The divorce shall be severed from the corollary relief and either party can obtain the divorce on an uncontested basis.
In respect of costs, given the nature of my findings, I strongly encourage the parties to settle the question of costs. In the event that they are not able to settle it, I will receive their written submissions and make a decision. Written submissions shall not exceed five double spaced pages plus a bill of costs.
The applicant may file her submissions first. The respondent can file his and then I will allow a brief reply of one page, if necessary. I am prepared to set the dates for those submissions now.
If you are not able to settle costs, how long do you need, Ms. Bombardieri, to file written submissions on that?
MS. BOMBARDIERI: I am happy to sort of - maybe by the end of the month? Would July 31st work?
THE COURT: Yes. So the applicant shall serve and file by the end of July, July 31st, and then, Mr. Schmidt, how long, do you need to file a response?
MR. SCHMIDT: I’m taking a quick look at my calendar. Perhaps the end of August, August 25th or a week after that?
THE COURT: Okay. So, the respondent shall serve and file his costs by August 25th and then, Ms. Bombardieri, is a week enough for you to file a one page reply?
MS. BOMBARDIERI: Yes, Your Honour.
THE COURT: Okay. Applicant shall file the reply, if any, by September 1. But again, I strongly encourage you to settle the issue of costs. All right. That is my decision. I thank you for your attention and I want to thank all counsel for their conduct of this challenging case.
...PROCEEDINGS ADJOURNED
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Joyce Tuyp, certify that this document is a true and accurate transcript of the record of Maria Da Conceicao Afonso De Brito Martins v. Jose Maria Dias, at the Superior Court of Justice, held at 491 Steeles Avenue East, Milton, Ontario, taken from Recording No. 1211_5_20230706_094920__10_CHOZIKE.dcr, which has been certified in Form 1.
August 20, 2023
Date (Signature of authorized person)
7140359941
(Authorized court transcriptionist’s identification number –
if applicable)
Mono, Ontario
, Canada.
(Province of signing)