COURT FILE NO.: FS-18-6696
DATE: 20230221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Chitranie Singh
Applicant
– and –
Tejeshwar Singh
Respondent
Rajni Tekriwal, for the Applicant
John Sheard, for the Respondent
HEARD: March 28-31, April 1, 4, 5 and 11, 2022
PINTO J.
REASONS FOR judgment
[1] This 8-day trial concerned a dispute between the parties about their financial obligations following the dissolution of their 25-year marriage.
[2] The parties, of Guyanese origin, were married in Canada on May 17, 1992 and separated on July 7, 2017.
[3] The parties have three adult children: A 27-year-old daughter Y, born October 1, 1995; a 25-year-old son M, born August 5, 1997; and a 23-year-old daughter D, born October 22, 1999. At the time of trial, the two daughters were living with the applicant mother, and the son was living with the respondent father.
[4] The eldest child, Y, graduated from university in 2017 and is working full-time. The middle child, M, graduated in 2021 with a degree in Civil Engineering and is working. At the time of trial, the youngest, D, was finishing off a graduate program and intended on commencing post-graduate studies in September 2022.
[5] The applicant alleges that she was in a physically and psychologically abusive relationship over the course of the marriage. She claims that the respondent treated her and the two daughters in a coercive and belittling manner based on extreme gender bias.
[6] The parties disagree on the reasons for their separation in July 2017. The applicant alleges that the respondent engaged in an incident of family violence that resulted criminal charges against him. The respondent denies all allegations of family violence or coercive control and notes that the criminal charges against him were withdrawn. He suggests that the applicant is using false allegations of domestic violence to gain leverage in the parties' financial dispute post-separation.
[7] The parties did not own real property. From about 2003 onwards, they lived in a 2-bedroom plus den rental apartment. At the time of trial, the applicant and two daughters continued to reside there.
[8] The most contentious issue at trial was the equalization of the parties' net family properties (NFPs). The respondent asserts that $894,000 in funds can be traced to gifts given to him by his father in 1992 and 2000. The respondent's father is now deceased. The respondent submits that these funds, found in 7 different financial accounts (4 belonging to the parties jointly, 3 belonging to him solely) should be excluded from equalization pursuant to section 4(2) of the Family Law Act, R.S.O. 1990, C. F.3 (“FLA”). As evidence of the gifts, the respondent relies on two letters purportedly given to him by his father. The letters explicitly direct that the gifted funds not be shared with the applicant. The applicant disputes the authenticity of the letters and submits that, even if the gifts were given, there is no evidence that the respondent intended to exclude the funds when equalizing NFPs.
[9] At the outset of trial, the respondent brought a contested motion to amend his Amended Answer dated October 14, 2021 to include a claim that a resulting trust applies to the funds in the four joint accounts. These accounts hold funds that the respondent claims are traceable to gifts. I granted the respondent's motion to amend his Amended Answer, and the applicant to amend her Amended Reply.
[10] For the reasons that follow, I find that:
(a) This was a traditional marriage where the applicant, notwithstanding her full time Scotiabank job, undertook the bulk of the domestic responsibilities.
(b) The respondent was a controlling husband and father who used physical discipline on the children.
(c) Even after the respondent was laid off and the applicant became a manager in 2003, the parties’ domestic contributions did not change all that much. The respondent concentrated on supervising the children’s homework, driving them around, and looking after the family’s finances.
(d) There was no mutual agreement between the parties in or around 2004 that the father would stop working outside the home to assist the applicant with child related and domestic responsibilities.
(e) The respondent made limited efforts between 2004 and 2017 to look for employment.
(f) The respondent’s income for support purposes is as follows:
2017 $35,299
2018 $57,591
2019 $57,591
2020 $27,325
2021 $27,325
2022 $27,325
(g) The applicant is healthy enough to work full-time in an office setting, but her health problems, namely the venous problem in her left arm which causes pain and heaviness, combined with her vision problems – which require that she use extra care when doing computer work – limit her income potential to routine and non-managerial tasks.
(h) It would be unjust to impute to the applicant, for the years 2018 and beyond, the $76,000 income that she was earning at Scotiabank.
(i) The applicant’s income for support purposes is $36,785.64.
(j) The applicant owes child support for the period when M lived with the respondent from January 5, 2020 until the time he graduated in May 2021.
(k) The respondent should pay child support arrears in respect of M based on his income as follows:
2017 $35,299
2018 $57,591
2019 $57,591
(l) The respondent should pay child support arrears in respect of D based on his income as follows:
2017 $35,299
2018 $57,591
2019 $57,591
2020 $27,325
2021 $27,325
2022 $27,325
(m) The respondent should pay ongoing child support for D based on his annual income of $27,325.
(n) The applicant should not pay any future child support in respect of M, as he is no longer a child of the marriage under the Divorce Act.
(o) The respondent is not entitled to spousal support.
(p) The respondent has not met his burden of proof that his father gifted him funds during the marriage.
(q) The respondent concocted a story about finding electronic copies of the gift letters on a hard drive.
(r) In the alternative, if the respondent’s father gifted him funds during the marriage, the respondent did not intend for the funds to be excluded from equalization of NFPs.
(s) Further, in the alternative, the gifts that the respondent’s father made cannot be traced to the $894,000 in funds on separation date that the respondent seeks to exclude.
(t) On equalization, the appropriate values for household goods on the NFP statement are $300 for the applicant and $2,500 for the respondent.
(u) The China and Flatware, Tools, Technology & Hobby Equipment, Electronics should all be deleted from the NFP statement.
(v) There was only one Gallihar and, for the purposes of equalization, it should be listed under the respondent’s assets with a value of $25,000, and there should be a corresponding date of marriage deduction of $25,000.
(w) The applicant’s jewellery should not be listed on the NFP statement.
(x) The respondent is entitled to claim a date of marriage deduction of $118,526.19.
(y) The applicant is entitled to claim a date of marriage deduction of $18,000.
(z) The applicant should immediately return to the respondent any photos from the respondent’s childhood.
(aa) Any amounts held in join accounts, post-separation, should be split jointly.
(bb) No further adjustments should be made in respect of the applicant’s MNBA card statement, or CPP Credit division.
(cc) A reciprocal non-contact, non-harassment order shall issue with a carve out permitting the parties to communicate with each in writing with respect to (i) a serious issue concerning one or more of their children; and (ii) any issue that the parties can mutually agree upon.
Facts
The Applicant's Background
[11] The applicant, now 58, was born in Guyana on July 3, 1964. She has a high school education and came to Canada in 1989. She was employed with the Bank of Nova Scotiabank (Scotiabank) from 1989 until January 18, 2018. The characterization of her departure from Scotiabank is contested. At the outset of trial, the applicant said that she was laid off, but the respondent maintains that she was fired. In any event, the applicant cashed out her pension from Scotiabank in 2018.
[12] The applicant obtained part-time employment with Hudson's Bay as a Sales Associate in October 2018. In 2019, this job overlapped with a contract job that the applicant had with Laurentian Bank. She then obtained full-time employment with Weins Canada on January 14, 2021. At Weins, she started off as a Greeter and at the time of trial, she was working as a Customer Experience Consultant (CEC). The applicant described her job at Weins as a mid-office or back-office position where she deals with customers over the telephone.
[13] The applicant's Line 150 income in 2017, when she was still with Scotiabank, was $96,706, based on $76,430 from employment income and the rest from investments.
[14] In 2018, the applicant's total Line 150 Income was $132,892. It was unusually high because that was the year that she received a separation package from Scotiabank.
[15] In the following years the applicant's Line 150 income was as follows:
2019 $42,417
2020 $53,237
2021 $29,775
The Respondent's Background
[16] The respondent, now 66, was born in Guyana on July 17, 1956.
[17] He received a Bachelor of Engineering degree in Mechanical Engineering from the University of Guyana in October 1981. He worked from July 1981 to May 1990 in Guyana as an Industrial Maintenance Mechanic (Millwright) with Banks DIH Ltd.
[18] The respondent opened his first bank account in Guyana in the 1970s. At the time, few electronic records existed. Because of this, the respondent claims that he always kept detailed and accurate financial records, a practice learned from his father. The respondent immigrated to Canada in 1990 at the age of 34. Upon arrival, he rejoined his parents who had already immigrated to Canada and were living here since 1979. The applicant retained hard copies of his financial records from Guyana.
[19] The respondent obtained a Certificate of Qualification as a Motor Vehicle Mechanic under the Apprenticeship and Tradesmen's Qualifications Act, effective September 10, 1990. He worked as a Mechanical Assembly / Quality Control Technician with Godfrey Aerospace Ltd. from 1991 to 1998, and as a Mechanical Assembly Technologist with Spar Aerospace Ltd. from 1998 to 2003. At the time of his layoff from Spar Aerospace, he was earning around $60,000 annually.
[20] The respondent was not employed from 2004 to 2017. The reasons why he did not work are in dispute. The applicant claims that the respondent refused to take a job that would pay him less than $60,000, and then became comfortable staying at home while she worked at Scotiabank. The respondent claims that the parties mutually decided that he would stay at home and look after the three children, so that the applicant could advance in her banking career.
[21] In 2017, the respondent's Line 150 income was $35,299.
[22] The respondent last worked from April 2018 to September 2019 as a Fabrication Technician with Alumicor Ltd. His Line 150 Income was as follows:
2018 $57,594
2019 $38,616
2020 $27,325
2021 $27,325
2022 $27,325
Discussion
[23] I begin my discussion of the trial issues by analyzing the trajectory of each party's career. That will allow me to assess each party's claim about earning capacity which will guide my decision about imputation of income. I also discuss each party's contribution to domestic responsibilities. Once earning capacity and domestic contributions are examined, I will be in a position to determine the parties' child support and spousal support claims.
The parties' employment and domestic responsibilities during the marriage
[24] The respondent has a Mechanical Engineering degree from Guyana. When he immigrated to Canada in 1990, he was unable to work as an engineer. He worked from 1991 to 2003 with two different Aerospace companies in mechanical assembly, which I take to be an engineering technologist type of job. At the time of his layoff from Spar Aerospace, he was earning around $60,000 per year.
[25] I find that the reason why the respondent did not obtain his Professional Engineers Ontario (PEO) professional designation is that, even though he fulfilled the academic part of the credential by around the year 2002, he did not have the years of supervisory experience required. Two letters from Professional Engineers Ontario (July 2002, October 2004) were produced at trial and confirm this. After 2004, the respondent did not pursue his PEO designation.
[26] The critical question is whether, after 2004, the parties mutually decided that the respondent would stay home to assist on the domestic front, so that the applicant could advance in her banking career.
[27] I find it unlikely that the parties came to such an agreement.
[28] Instead, I find that the respondent made limited efforts to look for work after his 2003 layoff. Then, for the next 15 years, I find that the respondent was content to focus his energies on the tasks that he considered important, such as the children's academic success and the family's financial investments.
[29] I rely on a number of factors to arrive at this conclusion.
[30] The evidence suggests that, even though the applicant was employed outside the home, the parties had a traditional marriage. The children were born in 1995, 1997 and 1999. The applicant took six months of maternity leave for the first two children and breastfed all three children. The evidence at trial was that, notwithstanding the applicant's full-time job, she did all the cooking during the weekends for the upcoming week.
[31] The applicant only has a high school education. She started working at Scotiabank within a few months of arriving in Canada. The respondent is university educated and comes from a more well-educated family. I accept the applicant's evidence that the respondent chastised the applicant about her lower educational status, and said that she came from a "gutter rat" family.
[32] When the children were still young, between 1999 to 2005, the parties hired a nanny and a walker to walk the kids to school. This means that for about a year after the respondent lost his job in 2003, a nanny and walker continued to assist the parties. This was not a situation where the respondent took on the domestic chores after finding himself unemployed. To be fair, at least for a few months after he was laid off in 2003, the respondent put some effort into finding new employment. However, I believe the applicant's testimony that, by the time the respondent was between 48 to 50 years old, which would correspond to 2004 to 2006, he was already telling people that he was retired.
[33] I find it improbable that the respondent, who would have been 48 in 2004, would take on domestic chores such as cooking and cleaning and coordinating the children's activities, at that age and stage in his life. The evidence suggests that the respondent restricted himself to overseeing the children's homework and academic success, and driving the children to activities.
[34] In cross-examination, the respondent stated that there were no other driving activities involving the children other than going to their place of worship regularly. This struck me as an odd answer and led me to believe that the respondent was not as engaged in the children's activities as he claimed, since the children would certainly be involved in many more activities that required driving.
[35] I also find that the respondent was solely in control of the family's finances. Given what was learned at trial about a large number of investment, chequing, TFSA, RESP and other financial accounts, managing all the account was a significant responsibility.
[36] In March 2012, the respondent filled out an "Automobile Insurance Declaration for Retiree Discount" form where, on the face of the Declaration, he claimed that he was retired and 65 years old. While the respondent was only around 56 years old in 2012, and whether he deliberately or inadvertently made a false representation on the form, he likely subjectively believed, having not worked for almost a decade at that point, that he was in retirement mode. This is consistent with the applicant's narrative that the respondent considered himself retired. Moreover, although the respondent had some medical issues - a bad back for instance - he did not claim that this prevented him from working. His consistent position is that he was working on the home front, which assisted the applicant in advancing her banking career.
[37] I find that the respondent exerted strong control over the applicant and children generally. The applicant's evidence, which I find compelling, is that even though she had a driver's licence, the respondent did not permit her to drive, and then removed her name from the car insurance. Even in winter, the applicant had to use public transport. The applicant testified that, if the children got invitations, they had to be approved by the respondent on his terms and conditions.
[38] The father categorically denied that he physically disciplined the children. However, I believe the applicant's testimony that the respondent used physical violence on the children and justified it by claiming that this was the way he was disciplined by his father. The applicant testified that, upon coming home from work, she found welts on the children that had been caused by the father using a belt. On one occasion, the younger daughter called the applicant at work about the respondent beating the older daughter. On another occasion, the applicant found that the respondent had forced Y, the eldest daughter, to wear a dunce cap. The applicant produced a photograph of a belt that the respondent purportedly used to discipline the children. I am not sure that this belt was the one used by the respondent on the children, however, I am persuaded that the father used physical discipline on the children.
[39] Regarding the incident that precipitated the couple's separation, I prefer the applicant's version of events. She states that a verbal and physical altercation occurred on July 7, 2017 when the respondent did not like a piece of clothing worn by the eldest daughter Y. She would have been around 22 at the time. Apparently, Y's undergarment was showing through her blouse which did not sit well with the respondent. When Y called her father hypocritical, he clapped her on the back of the head. As the applicant and youngest daughter D tried to intervene, they got hurt in the melee. Someone - the applicant believes it was D - called the police. Then M, the middle son, came home and the physical altercation ended. The police confirmed that they had already received previous 911 calls from the home. The respondent left the residence and the parties separated.
[40] The respondent was charged criminally but the charges were eventually dropped. A restraining order was placed on the respondent who entered into a peace bond that lasted a year. As of the time of trial, there was no legal order preventing the respondent from having communication or contact with the applicant or the children. The applicant is seeking a non-contact order. The respondent denies that he wishes to have any contact with the applicant, but is concerned that if a non-contact order issues, it may lead to new criminal charges against him being laid, if the applicant claims that he has breached the order.
[41] Based on the foregoing, I find that:
(a) This was a traditional marriage where the applicant, notwithstanding her full time Scotiabank job, undertook the bulk of the domestic responsibilities.
(b) The respondent was a controlling husband and father who used physical discipline on the children.
(c) Even after the respondent was laid off and the applicant became a manager in 2003, the parties' domestic contributions did not change all that much. The respondent concentrated on supervising the children's homework, driving them around, and looking after the family's finances.
(d) There was no mutual agreement between the parties on or around 2004 that the father would stop working outside the home to assist the applicant with child related and domestic responsibilities.
(e) The respondent made limited efforts between 2004 and 2017 to look for employment.
The situation after separation in July 2017
The Respondent's Income after Separation
[42] After the parties' separation in July 2017 and the respondent not being employed for about 15 years, the respondent worked from April 2018 to September 2019 as a Fabrication Technician with Alumicor Ltd. The applicant submits that since the respondent earned $57,591 in 2018, this is what he was, and still is, capable of earning, and that this is the figure that the court should use when calculating the respondent's retroactive and go-forward child support obligations.
[43] The respondent disagrees and submits that, given his age, education, work history, and long absence from the work force until 2018, the court should simply use his actual annual income for support purposes.
[44] I find that the respondent did not provide much evidence of his efforts to look for work for the balance of 2019. I find that, had the respondent looked diligently for work, it is likely that he would have made the same income in 2019 as he did in 2018. Accordingly, factoring in the respondent's credentials and work experience, I find that the $57,591 figure should be used as his income for 2018 and 2019.
[45] However, I accept that for 2020 and beyond, due to the combined impact of COVID-19, the respondent's age (he turned 64 in 2020) and work history, the respondent's income for support purposes should only be the income that he actually earned.
[46] Accordingly, I find that the respondent's income for support purposes is as follows:
2017 $35,299
2018 $57,591
2019 $57,591
2020 $27,325
2021 $27,325
2022 $27,325
The Applicant's Income after Separation
[47] The respondent argues that:
(a) When the parties separated in July 2017, the applicant was earning approximately $76,000 a year as a manager with Scotiabank. Her Line 150 income at the date of separation was $96,706 due to the combination of her employment and investment income.
(b) The applicant was terminated for cause in January 2018 when she was caught impersonating her daughter on a phone call with the bank, and then complaining about the call.
(c) The applicant conceded in cross-examination that she lied in her pleadings about the circumstances of her dismissal and acknowledged that she diminished her income by her own actions.
(d) The appropriate consequence for such misconduct is that the court should impute the applicant's income for every year after 2017 in line with her 2017 employment income of $76,430, and add her actual dividends, investment income, capital gains, and other income for every tax year as set out in her T1 Generals.
[48] The applicant acknowledges that her actions were misguided, but reminds the court that she was suffering with grief and depression as a recently separated wife and mother. She submits that at the end of the day, Scotiabank reissued her Record of Employment (ROE) on the basis that she was laid off, and not that she was terminated for cause (i.e. fired).
[49] Subsequently, the applicant had part-time and contract jobs in 2018/19 with Hudson's Bay and Laurentian Bank respectively, and then obtained full-time employment with Weins Canada in January 2021. The applicant's NOA for 2021, her last full year of employment before the trial, was $29,775. In the applicant's most recent financial statement dated March 2, 2022, her annual income was $36,785.64.
[50] The applicant submits that she can no longer work and earn at the level that she did when she was at Scotiabank, since she is impeded by her lack of post-secondary credentials and increasing health problems. She claims that the serious vein problem in her left arm causes heaviness and pain, and that she has vision problems caused by a history of glaucoma and retinal tear.
Dr. Bharat Kalra
[51] The applicant called her family doctor, Dr. Bharat Kalra, to testify at trial. The applicant has been Dr. Kalra's patient since 1995. In his testimony, Dr. Kalra went through the applicant's medical records focusing on the period 2017 to the time of trial. In a medical report dated December 15, 2021, Dr. Kalra indicated that the applicant presented with the following ongoing conditions: Vitilago, Left Arm Congenital Venous Malformation, Allergic Rhinitis, Fibroid, and Eczema. He noted that her past medical history included: Tubal Ligation, Tonsillectomy, Retinal Tear, a Blood Transfusion in 2002, and Glaucoma. His medical report concluded that the applicant's prognosis is good and that "these conditions [do] not affect her ability to work."
[52] Dr. Kalra explained that, since birth, the applicant has Venous Malformation, an improper formation of the veins, in her left arm. This does not prevent her from working although it can cause heaviness in her arm and pain. Surgery for the Venous Malformation is not an option so it is recommended that the applicant wear a sleeve to deal with the problem. Dr. Kalra noted that the malformation is increasing in size and, if the applicant was cut in the area, she could continue to bleed.
[53] Dr. Kalra also testified that the applicant had a retinal treatment in 2003 and a history of bilateral retinal tear. The applicant has had glaucoma, but is not taking any medication or treatment for it. Dr. Kalra suggested that, while the applicant does not have extensive vision problems, she does present as someone with vision challenges. If the applicant does extensive screen work, she will get tired. Dr. Kalra clarified that, neither the Venous Malformation, nor the retinal tear, are degenerative conditions.
[54] Based on the applicant's and Dr. Kalra's evidence, I find that the applicant experiences some heaviness and pain in her left arm associated with the Venous Malformation. She also experiences some vision problems associated with her glaucoma and risk of retinal tear. However, as Dr. Kalra concluded, these medical problems do not compromise the applicant's ability to work full time in an office setting.
[55] Reflecting on the trajectory of the applicant's career, her present age of 58, her lack of a post-secondary education and her health challenges, and looking at her work experience since losing her job at Scotiabank, I find that it would be unjust to impute to the applicant, for the years 2018 and beyond, the $76,000 in income that she was earning at Scotiabank.
[56] I find that a significant reason why the applicant's income rose to the level it did at Scotiabank, was because of her long years of service with the bank. I doubt that, without a post-secondary credential, she can find a job earing $76,000.
[57] While I agree with the respondent that Dr. Kalra's testimony confirms that the applicant is healthy enough to work full-time in an office setting, this does not mean that she is capable of engaging in any kind of senior or supervisory role that would entail managing a complex operation or team. I find that the applicant's health problems, namely the venous problem in her left arm which causes pain and heaviness, combined with her vision problems - which require that she use extra care when doing computer work - limit her income potential to routine and non-managerial tasks.
[58] I disagree therefore with the respondent's position that the applicant's income for 2018 and beyond should be imputed to $76,000. I note that, in 2021, the applicant's annual income was $29,775 and, based on her last financial statement, her income for 2022 was projected to be $36,785.64. I would declare the applicant's income for support purposes to be $36,785.64.
Child Support
[59] The applicant seeks:
• Child support arrears in respect of M for 2017 to 2019
• Child support arrears in respect of D for 2017 to 2022
• Ongoing child support in respect of D, since she intended on pursuing post-graduate studies in September 2022, for so long as she is a child of the marriage.
[60] The applicant concedes that she owes the respondent child support arrears. This was for the period when M lived with the respondent from January 5, 2020 until the time he graduated in May 2021. However, the applicant denies that, should M return to school, she should pay the respondent child support. The applicant submits that M graduated in May 2021 and is fully independent. Conversely, the respondent seeks a ruling that, should M return to full-time studies, he would be considered a child of the marriage and, given that he lives with the respondent, the applicant would pay child support.
[61] The respondent is agreeable to paying child support for D so long as she remains a child of the marriage. However, the respondent submits that for both arrears and ongoing child support, his annual income should be based on his actual income for the year in question.
[62] As I determined the parties' incomes for the purposes of child support above, I find that the respondent should pay child support arrears in respect of M based on an income as follows:
2017 $35,299
2018 $57,591
2019 $57,591
[63] As for child support arrears in respect of D, the respondent should pay based on his income as follows:
2017 $35,299
2018 $57,591
2019 $57,591
2020 $27,325
2021 $27,325
2022 $27,325
[64] With respect to ongoing child support for D, I find that the respondent should pay child support based on his income of $27,325.
[65] The parties disagree on what should be done in case M returns to school. The respondent submits that if M returns to school and, assuming that M remains in his care, the applicant should pay child support just as he agreed to pay child support for D's post-graduate studies.
[66] Subsection 2(1)(b) of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) states that a "child of the marriage" means a child of two spouses or former spouses who, at the material time,
is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.
[67] In L. v. S., 2022 ONCA 270 at para. 33, the Court of Appeal stated:
When a parent claims child support for a child who is at the age of majority or older, that parent has the onus of proving that the child remains under parental charge. This onus can be satisfied by identifying circumstances such as, for example, the child being enrolled in higher education. [Citations omitted]
[68] In L. v. S, the Court of Appeal also referenced the Farden factors, which assist in determining whether an individual is a "child of the marriage": Farden v. Farden, 1993 BCSC 2570 at para. 15.
[69] The Farden factors are:
(1) whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;
(2) whether or not the child has applied for, or is eligible for, student loans or other financial assistance;
(3) the career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;
(4) the ability of the child to contribute to his own support through part-time employment;
(5) the age of the child;
(6) the child's past academic performance, whether the child is demonstrating success in the chosen course of studies;
(7) what plans the parents made for the education of their children, particularly where those plans were made during cohabitation;
(8) at least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.
[70] I disagree that the two children's positions are comparable. Whereas D, now 22, has not, on the evidence presented, worked full time in her profession and is continuing with her studies, M graduated with a degree in Civil Engineering in May 2021. It is now coming up to two years since he has graduated and M is now 25. There was very little evidence led at the trial about M's circumstances. However, assuming that M has been working in his profession for the past two years and earning a higher salary than the respondent, I fail to see how M can continue to be a child of the marriage. I find that it is preferable that the parties have closure on the issue of child support in respect of M. I decline to order that the applicant pay any future child support in respect of M, as I find that he is no longer a child of the marriage.
Section 7 Claims
[71] The parties agree that no section 7 claims are being pursued.
Spousal Support
[72] After the parties separated in July 2017, the respondent worked from April 2018 to September 2019 as a Fabrication Technician with Alumicor Ltd. but has not worked since.
[73] The respondent claims spousal support on a compensatory and non-compensatory basis. He argues that after he was laid off in 2003, the parties mutually decided that he would stay at home to look after the three children so that the applicant could advance in her banking career.
[74] I find that that the respondent has no entitlement to spousal support on a compensatory basis as the respondent did not sacrifice his career to advance the applicant's, nor was his contribution to the parties' child related and domestic responsibilities greater than that of the applicant. I find, for the reasons explained above, that the respondent unilaterally decided to stop working to focus on those areas that he took a great interest in - the children's academic success and the family's finances.
[75] I also do not find that the respondent is entitled to spousal support on a non-compensatory basis. For reasons explained above, post-separation, the applicant has been unable to earn the kind of income she did at Scotiabank and is currently employed at a relatively low paying administrative job earning a little over minimum wage. She does not have the means to pay support. And, I find that the respondent's need for support is unclear. The evidence at trial is that he is not paying rent to his mother and, as discussed below, he will be receiving an equalization payment from the applicant, albeit not as large as the one he claimed.
Equalization
[76] Equalization is mandated under section 5 of the Family Law Act, R.S.O. 1990, c. F.3. When spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties (NFPs) is entitled to one-half the difference between them.
[77] The parties disagree on a number of issues around equalization. The parties provided me with a “Comparison of NFP Statements” chart (“CNFP”) that sets out their differences.
[78] Within the category of "Value of Assets owned on Valuation Date," the parties disagree about whether the respondent's second Gallihar[^1] ever existed, what the proper valuation of household items was on separation date, and whether amounts have been allocated correctly as between the parties, such as the funds held in joint accounts, keeping in mind that the respondent is asserting a resulting trust in funds held in certain joint accounts.
[79] Within the category of "Value of Debts and Other Liabilities on Valuation Date," the parties disagree about whether the respondent is entitled to claim a debt in respect of disposition costs for certain investments.
[80] Within the category "Property, Debts and other Liabilities on Date of Marriage," the parties disagree on the value of their household items and funds in their bank accounts on the date of marriage (DOM).
The Excluded Funds
[81] The biggest disagreement between the parties at trial concerns the category of "Exclusions" in the equalization of NFPs. The respondent claims that approximately $894,000 in funds held in 7 different financial accounts can be traced to gifts given to him by his now deceased father. The respondent seeks to exclude these funds from the NFP equalization process. Not surprisingly, the applicant strongly disputes that the respondent's father gave him gifts during the marriage. In the alternative, she argues that even if the gifts were made, there is no evidence that the respondent intended to exclude the amounts traced to the father's gifts from equalization of NFPs.
[82] The respondent arrived at the $894,000 figure as follows. First, with respect to each financial account, he ascertained what amount in the account on Separation Day (SD) could be traced to the gifted funds. For some accounts, the entire balance in the account on SD could be so traced, whereas for other accounts, only a partial amount of the SD balance could be traced. Next, the respondent determined if tax disposition costs applied to the amount. If so, the disposition costs had to be deducted from the appropriate amount to arrive at the Net SD Value.
[83] The results of this process applied to the 7 accounts are as follows:
| Account | Respondent’s Position | Calculation | Net SD Value |
|---|---|---|---|
| Scotia iTrade *6104 Joint | Balance derives entirely from gifts | $271,9887 - $81,566 | $190,321.00 |
| Scotia iTrade USD *4631 Joint | Balance derives entirely from gifts | $140,197.64 - $42,059.30 | $98,138.34 |
| Questrade *1387 Joint | Balance derives entirely from gifts | $378,111.39 - $113,433.42 | 264,677.97 |
| Questrade RESP *6998 Joint | Balance derives entirely from gifts plus CESGs[^2] | $104,000 + $129,522.43 - $64,761[^3] | $168,761.43 |
| Questrade RRSP *8424 Sole (Respondent) | Balance derives partially from gifts | $154,619 - $46,385.70[^4] | $108,233.30 |
| Questrade TFSA *9039 (Sole (Respondent) | Balance derives entirely from gifts | $59,415.03 - $0 | $59,415.03 |
| Republic Bank, Guyana *2385 (Sole Respondent) | Balance derives entirely from gifts | $4,560.00 - $0 | $4,560.00 |
| $894,107.07 |
The two gift letters
[84] To justify excluding the funds, the respondent relies on two gift letters purportedly given to him by his father during the parties' marriage. I have appended a copy of the alleged gifts letters to these Reasons.
[85] The first time the content of the letters was disclosed to the applicant was in the respondent's March 2, 2022 affidavit, just 2 weeks before trial.
[86] The relevant paragraphs of this affidavit state:
Gifts from my Father During the Marriage
During the marriage, my father two (sic) gifts to me (the "Gifts").
On July 18, 1992, my Father gifted me $4,254,407 Guyanese Dollars (worth approximately $41,894.92 CAD at the time), as well as a single share in Skeldon Cane Farmers Co-Op (the "Cane Farmers Share"). The letter that accompanied this gift expressly stated that:
These gifts, all interest and income derived, and any increase in the value of the interest and income, must be excluded from his net family property. Any appreciation in the value of the gifts must also be excluded from Tejeshwar's net family property.[^5]
The Second Gift from my Father
- On April 15, 2000, my Father gifted me $1,600,000 Guyanese Dollars (worth approximately $12,227.46 CAD at the time). The Letter he provided at the time of the gift stated:
I give the above stated amount as a gift to Tejeshwar Singh alone. This gift, all interest and income derived and any increase in the value of the interest and income, must be excluded from his net family property. Any appreciation in the value of this gift must also be excluded from Tejeshwar's net family property.[^6]
Exclusion of Interest, Income and Capital Appreciation
Both letters that accompanied the Gifts, specifically set out my Father's intention to exclude the original gift, as well as any interest, income, and any increase in value from my Net Family Property (both Gifts including derivative increases in value and income, referred to collectively as the "Gifted Funds").
My father spoke to me about the exclusion of gifted funds, and I understood that the letters he provided would serve as proof that the Gifts remained mine and mine alone. I never intended to share the Gifts with the Applicant at any time.
I told the Applicant about the Gifts, and that I intended to invest them. Beyond that, we did not discuss the Gifts further. I managed the Gifted Funds alone using various accounts.
[87] In the rest of the respondent's March 2, 2022 affidavit, he explains that:
(a) Originally, he deposited the gifted cash from his father in Guyanese bank accounts, the records of which remain in the applicant's possession.
(b) Around 1999, when the cash component of the first gift began to mature, he began to move the money from various Guyanese accounts to prepare to transfer it to Canada.
(c) The Cane Farmers Share also provided income, which the Co-op deposited periodically in various Guyanese accounts.
(d) One of the two files his son M gave to him in March 2018, contained bank records relating to the gifted cash as well as income from the Cane Farmers Share.
(e) He deposited the cash from the Second Gift in a Guyanese account, but does not have the record of the original deposit, or the transfer to Scotiabank Guyana.
(f) In 2005, the Cane Farmer's Co-op ceased operations and his income from the Cane Farmers Share stopped at that time.
(g) He attaches records of the funds that he transferred from Guyanese term-deposit accounts to Scotiabank Guyana for further transfer to Canada.
(h) He used Gifted Funds to transfer additional amounts to Canada.
(i) From the time he began transferring the Gifted Fund to Canada in 1999, he transferred a total of CAD $156,321 to Canadian accounts.
(j) From the Canadian accounts, he transferred the Gifted Funds into various other investment accounts.
(k) At separation, the records specifically relating to the transfer of Gifted Funds into Canadian investment accounts remained in the third drawer from the top of the steel filing cabinet in labelled folders.
[88] In the balance of his affidavit, the respondent traces how the Gifted Funds ended up in 7 different accounts and the investment assumptions he made to arrive at the figures he used in his NFP document.
[89] At trial, the respondent testified that he managed to find copies of the gift letters on one of three external hard drives that his son M retrieved from the matrimonial home in March 2018. As the cables and power supply cords for the hard drives were not provided until October 16, 2021, it was only a few days later that he was able, with M's assistance, to retrieve a copy of the letters from the hard drive.
[90] With respect to the gift letters themselves, the respondent testified that:
(a) The witness "S. Balkaran", on the first gift letter dated July 18, 1992, was one of his father's friends and is now deceased.
(b) The witness "M. Beepat", on the second gift letter dated April 15, 2000, was also one of his father's friends and is now deceased.
(c) His signature is also on each letter, and he signed each letter at the same time as his father and the witness.
(d) To the best of his knowledge, neither he nor his father received legal advice about the letters.
(e) At one point, he had a hard copy of the original letters but the last time he saw them was "a long time ago."
(f) He last saw the gift letters when it was in one of his files back in the parties' apartment.
[91] In cross-examination, the respondent testified that:
• The content of both letters was identical except for the differences in dollar amounts and dates
• His father did not have a legal background, but he read a lot and had friends who were in legal practice
• The letters were not signed in the presence of his mother but his mother was aware of the gifts
• He did not consult a handwriting expert
• He did not retain a professional to conduct a forensic accounting of the tracing of the funds
• The copies of the gift letters are not "fakes" that he created for trial.
[92] When applicant's counsel pointed out that the respondent's signature and that of his father's was unusually similar - especially the "Singh" part - the respondent denied this, but later conceded that "there are a lot of similarities" to their signatures.
[93] When asked whether his father "drafted and typed up this letter," the respondent answered "he provided the letter, that's right."
[94] Given that the first gift letter was written in July 1992, a mere two months after the parties' May 1992 wedding date, the respondent was asked whether his father was expecting a marriage breakdown. He answered that his father "had suspicions that we talked about," and that his father was not sure of the applicant's intentions.
[95] The respondent claimed that, although he did not immediately provide copies of the letters to the applicant or her counsel, he did provide it to the new lawyer that he retained in November 2021.
Did the respondent's father gift funds to the respondent during the marriage?
[96] Under subsection 4(3) of the FLA, the onus of proving an exclusion from NFP is on the person claiming it.
[97] For the reasons that follow, I find that the respondent has not met his burden of proof that his father gifted him funds during the marriage. Moreover, I find, that the respondent has concocted a story about finding electronic copies of the gift letters on a hard drive. There are many problems with the respondent's evidence and the facts do not add up.
[98] I begin my analysis by stating the obvious. The respondent's father is deceased. The only evidence of the father's intentions comes from the respondent himself. The respondent relies on copies of two gift letters from 1992 and 2000 that confirm the father's intention to exclude the applicant from receiving any funds traceable to the gifts.
[99] I draw an adverse inference from the respondent's failure to call his mother to testify about the father's alleged marriage gifts since the respondent testified that his mother knew of the gifts. This was almost a $900,000 issue to the parties. The respondent had no explanation of why he did not call his mother to testify on this critical point.
[100] The respondent is relying on copies of the gift letters, not on the original gift letters themselves. When pressed, the respondent conceded that while he lost the originals a long time ago, the last time he saw them was 2000. This means that the alleged gift letters are not necessarily part of the documents that the respondent claims are still in the applicant’s possession which she refuses to return to the respondent.
[101] I find it strange that, if the respondent discovered electronic copies of the signed letters around October 16, 2021, he waited 4 months to disclose this critical information to the applicant's counsel. He did so in his March 2, 2022 affidavit, a mere two weeks before trial.
[102] The respondent was very vague about how an electronic copy of the gift letters ended up on the hard drive. When asked, in cross-examination, whether the letters were saved in a computer, the respondent answered “I don’t know. He[^7] will know where he got it from.” He did not testify that he, his father, or someone on his father's behalf, copied a scanned version of the signed letters on to the hard drive. Neither did the respondent state that his father sent him emails attaching a copy of the signed letters, in which case the email(s) could have been produced. I am mindful that in 1992 email may not have been as available as it is today. In any event, the respondent did not testify about the metadata for the electronic versions of the two letters allegedly found on the external drive. The metadata would have assisted the court in determining the provenance of the copies of the letters.
[103] Further, if the gift letters truly existed, I find it puzzling that the respondent would not have remembered them from the very beginning of the litigation, and made a reference to them in his earlier pleadings and financial statements. In my view, the letters that were presented speak so directly to the exclusion point, that the memory of the letters would surely have been top of mind, even if the respondent did not have possession of the actual letters or copies of them.
[104] The respondent had three sets of lawyers before Mr. Sheard, his trial lawyer, was retained in November 2021. One would think that the line of questioning by any lawyer assessing the applicant's equalization claims would have involved questioning the respondent about why he sought to exclude a vast amount of his wealth from the equalization process. If the gifts and the gift letters actually existed, I assume the respondent would have said something about them to his lawyers which would have prompted counsel to ask if there was any documentation in that regard. The respondent did not testify that he forgot about the letters until he found a copy of them when the hard drive became operational on or around October 16, 2022. In fact, the respondent's March 2, 2022 affidavit is silent about how he came across a copy of the letters. It was only at trial that the respondent claimed that he found electronic copies of the gift letters on one of the hard drives once he received the cables to operate the drive.
[105] In earlier financial statements, not only did the respondent not mention any gifts during marriage by his late father, he specifically turned his mind to exclusions and identified unrelated gifts.
[106] In the respondent's January 15, 2019 financial statement, under "Part 7: Excluded Property", the respondent wrote under Details "Inheritance from father's estate in Guyana" with a value as "TBA". This bears no relation whatsoever to the alleged gifts that the respondent now relies upon, supposedly made while the respondent's father was still alive.
[107] In the respondent's next financial statement dated March 7, 2019, under "Part 7: Excluded Property", the respondent wrote "Inheritance from father and grandmother's estate in Guyana" with a value of $32,000. Once again, this bears no relation to the alleged gifts in question.
[108] It was only in the respondent's March 15, 2021 financial statement, some two years after his first financial statement, that the respondent refers for the first time to "Father's gift during marriage" under Part 4(c): Bank Accounts, Savings, Securities and Pensions and also under Part 7: Excluded Property. Yet, the respondent did not write to the applicant and advise that the evidence of the father's gifts were two letters from years ago that the respondent had lost and was still searching for.
[109] I have serious reservations about the authenticity of the gift letters themselves.
[110] The two witnesses are deceased. Coincidence? Maybe, but it could also be that the respondent simply made up the name of two witnesses who he knew would not be able to testify at trial.
[111] The wording of the letters are virtually identical even though they were apparently written 8 years apart. This could make sense if they were authored by a person using the same template, but the respondent did not provide any information about how his father came up with the language of the letters.
[112] I find the language of the letters is unusual. On the one hand, it appears that only a lawyer could have drafted the language since it explicitly refers to "net family property," and also excludes "all interest and income derived, and any increase in the value of the interest and income." It seems unlikely that the respondent's father, someone who is not a lawyer or legally trained, would have chosen the exact language required to exclude funds, and all amounts derived from funds, from the respondent's NFP.
[113] On the other hand, there are a number of indications to suggest that a lawyer was not involved in the drafting of the document. First, if the respondent's evidence is taken at face value, neither he nor his father received legal advice about the letters. Also, if a lawyer had been involved, I find that the gift letters would have likely been in the form of an affidavit sworn by the respondent's father and commissioned by a lawyer. Unusually, for a gift letter, there is a signature line for the recipient of the gift, in this case the respondent. This was a gift letter and not a contract between the respondent and his father. On balance, I find it likely that the letters were written by a lay person with only a glancing knowledge of the law, but someone who was highly motivated to ensure that the applicant did not ever receive the gifted funds.
[114] The applicant submits, and I agree, that no independent legal advice was apparently provided to the respondent's father, the respondent or the applicant with respect to these two marriage gifts.
[115] In cross-examination the respondent conceded that there were a lot of similarities between his signature and that of his father. While I am cautious not to step into the role of a handwriting expert, the "Singh" parts of the respondent and his father's signatures look almost identical.
[116] The applicant's evidence with respect to the 1992 letter was that it made no sense that only two months after her marriage, her father-in-law would write a letter behind her back excluding her from a gift. Similarly, the applicant stated that she had a positive relationship with her father-in-law. I did not find the respondent's answer very convincing that, notwithstanding his father's amicable relationship with the applicant, the father had "concerns" about her true intentions. The respondent provided no elaboration as to what his father thought the applicant's "true intentions" were.
[117] On a balance of probabilities, I find that the copies of the gift letters presented by the respondent are not authentic. Accordingly, my conclusion is that the respondent concocted the letters in the hope that they would tilt the evidence at trial in his favour.
[118] Since I have declined to accept the factual basis for the father's gifts during marriage which can be traced to the $894,000 that the respondent now seeks to exclude, I could move on to the other items in dispute around equalization, such as the Gallihar and household items. However, in case I am wrong about the authenticity of the letters and that the respondent's father did, in fact, make the two gifts during marriage, this does not automatically mean that the $894,000 is excluded.[^8]
[119] The respondent would still have to satisfy the court about two more things:
(a) that, having received his father's gifts, he intended for the funds in question to be excluded from the equalization of NFP; and
(b) that the funds from the gifts, once invested by the respondent, can be traced to the $894,000 in funds on SD that the respondent now seeks to exclude.
[120] I will turn to each of these issues.
Did the respondent intend for the funds traceable to the gifts to be excluded from equalization of NFP?
[121] For the following reasons, I find that the answer is no.
[122] For starters, I find that if the respondent intended for his father's gifts, and funds on the SD traceable to the gifts, to be excluded from equalization, he would have made this claim in his earlier financial statement and pleadings, but he did not do so.
[123] Above, I already discussed how, in earlier financial statements, the respondent did not mention any gifts during marriage by his late father, and when he specifically turned his mind to exclusions, he identified unrelated gifts.
[124] Now, I will move on to his pleadings. The respondent's original Answer dated January 14, 2019 contained the following language:[^9]
Despite being at home, the Respondent made efforts to earn. He made financial investments in shares, stocks and bonds. At present his investments are limited to stocks.
The Respondent sacrificed his career and job prospects in order to take care of the family and to allow the Applicant to pursue her career. The Respondent is in need of both compensatory and non compensatory spousal support.
The investment from the joint account is still present in the accounts and was not depleted. Whatever monies were spent are duly and properly accounted for and the evidence will show this. On the contrary, it was the Applicant who made changes to our income and retirement plans. [the balance of this text in this paragraph has been omitted]
At all material times, the Respondent and the Applicant arranged their financial affairs in a mutually agreed upon basis. Their dealings were fair and equitable.
The Applicant paints the picture as if she was the sole bread winner in the home. While she was the person working full time, the Respondent took care of the family and also earned money from investing and trading. [emphasis added]
[125] In the respondent's Amended Answer dated October 14, 2021, paragraphs 15, 22, and 37 stayed the same as in his Answer, and the contents of paragraphs 42 and 43 were again included in the amended pleading but simply renumbered as paragraph 44 and 45. In other words, more than two and a half years later, the respondent had still not indicated anywhere in his pleading that his father had provided him with gifts during the marriage, the traceable funds of which he intended to exclude from equalization.
[126] Moreover, the underlined words in the Answer suggest that, since the respondent was no longer working outside the home, he still considered it his responsibility to take care of the family and he did this through investing and trading. The respondent's claim that the parties' dealings were fair and equitable is also more consistent with the non-exclusion of gifted funds.
[127] It was not as if the respondent was self-represented. He had legal representation at each point that he filed his pleadings. The respondent's first lawyer prepared his Answer, his third lawyer prepared his Amended Answer, and his fourth and trial lawyer, Mr. Sheard, prepared his Amended Amended Answer.
[128] It was only the very last pleading, dated March 28, 2022, filed after the trial began where the respondent referenced his father's gifts during marriage. Paragraph 52 of the respondent's Amended Amended Answer states:
- During the marriage, the Respondent transferred gifts from his father, from Guyana to Canada at certain points, and deposited them into joint accounts. He did not intend to share those gifts with the Applicant but rather used joint accounts to make use of the Applicant's preferential access to exchange rates and low fees through her employment at Scotiabank.
[129] The applicant also highlights the fact that some of the funds that the respondent wants to exclude are in accounts jointly held with the applicant. The applicant relies on caselaw such as Finch v. Finch, 2018 ONSC 5575, for the proposition that gifted funds lose their exclusionary character when put into a joint account, therefore any qualified amount would need to be halved as it is a joint account. Section 14 of the FLA creates a presumption that amounts deposited in a joint account during marriage are intended to be jointly owned. The presumption may be rebutted by the spouse seeking to have the funds excluded from net family property.
[130] The applicant argues and I agree that, instead of rebutting the presumption that the funds in the joint account were jointly owned, the respondent affirmed the presumption by claiming 50% of his income for tax purposes and attributing the rest to the applicant's income. In other words, the respondent cannot have his cake and eat it too. For tax purposes, he has declared that the funds are jointly owned but now at trial, he submits that they are not and that a resulting trust is imposed on certain joint accounts. I find that the respondent has failed to rebut the presumption and, notwithstanding whatever his father's intent was, the respondent's intent at the material time was to treat the funds as a family investment that he was responsible for to grow the entire family's wealth, not just his own.
Can the gifts that the respondent's father made in 1992 and 2000 once invested by the respondent be traced to the $894,000 in funds on SD that the respondent seeks to exclude?
[131] Once again, I find that the answer is no.
[132] I agree with the respondent that funds held in joint accounts may still be excluded where the evidence of gift or inheritance permits: Townshend v. Townshend, 2012 ONCA 868, 113 O.R. (3d) 21 at para. 35; Paddock v. Paddock, 2009 ONCA 264 at para. 9; Schaefer v. Schaefer [1986] O.J. No. 20105. However, the problem here is that, even if I accept that the respondent's father made gifts in 1992 and 2000, there is too much of an evidentiary gap to fill to trace those funds prospectively to the $894,000 that the respondent now seeks to exclude.
[133] The respondent provided a document "Transfer of Gifted Funds within Guyana" appended to his March 2, 2022 affidavit where he traced the gift funds from Guyanese accounts from decades ago to the present Canadian accounts. But one of the serious impediments to tracing, is that the respondent has no documentation earlier than 1999. He blames the applicant for surreptitiously holding on to documentation and submits that that it is unfair that the lack of documentation is a reason to disbelieve his tracing analysis. But, looked at the other way, the respondent is asking me to simply accept his narrative about what happened between 1992 and 1999, even though I do not have any documentation whatsoever. At the end of the day, it was respondent's burden to prove that the funds can be traced, and I find that he has failed in this regard.
[134] Recall also that the applicant denies that the respondent ever discussed treating as his own property any of the funds placed in joint accounts with the applicant. This is obviously a credibility point but I would resolve that point in the applicant's favour given that the evidence demonstrates that the respondent is a very meticulous man who supposedly learned the importance of keeping records. Yet, there is not one email, letter, or note that he can point to in 25 years of marriage which suggests that he had a discussion with the applicant about the excluded funds.
[135] In the respondent's March 2, 2022 affidavit, which lays out his theory of tracing, the respondent indicates that he used the Control Account *5423 as a conduit to pass through gift funds. Yet there was money constantly coming in and out of this account. The respondent did not satisfy me that the original gift funds could be confidently traced to the current $894,000 at issue after the tortuous path of tracing, which involves a path from Guyana to Canada and through the extremely active Control Account *5423. If the respondent is unable to trace gift funds into any of the particular accounts or assets he had at SD, he has failed to meet his onus: Onogi v. Elguindi, 2005 CanLII 23686 (ON SC) at para. 69.
[136] I agree with the applicant's submission that it is difficult to objectively rely on the respondent's own re-creation of tracing: Rogers v. Rogers, 2013 ONSC 1859 at para. 12. The respondent did not use the services of a forensic accountant or other financial expert to demonstrate the tracing of funds.
What is the impact of my finding no exclusions related to respondent father’s alleged gifts?
[137] Recall that the respondent alleged that around $894,000 in funds from his NFP ought to be excluded if the court found that the funds were traceable to the gifts his father provided in 1992 and 2000. Since I have not found in the respondent’s favour on this point, the NFP equalization is affected as follows.
[138] Under Part 1, “Value of Assets Owned on Valuation Date,” section (c) Bank Accounts and Savings, Securities and Pensions the appropriate figures should be:
| Category | Institution | Account | Applicant | Respondent |
|---|---|---|---|---|
| Investment | Scotia iTrade – Joint | *6104 | $135,943.40[^10] | $135,943.40 |
| Investment | Scotia iTrade – Joint | *4631 | $70,098.82[^11] | $70,098.82 |
| Investment | Questrade – Joint | *1387 | $189,055.69[^12] | $189,055.69 |
| RESP | Questrade – Joint | *6998 | $126,808.54[^13] | $126,808.54 |
| RRSP | Questrade – sole | *8424 | $0 | $285,021.31 |
| TFSA | Questrade – sole | *9039 | $0 | $59,415.03 |
| Savings | Republic Bank, Guyana – sole | *2385 | $0 | $4,560.00 |
[139] Under Part 2, “Value of Debts and Other Liabilities on Valuation Date”, the appropriate figures should be:
| Category | Institution | Account | Applicant | Respondent |
|---|---|---|---|---|
| Contingent Disposition Costs | Scotia iTrade – Joint | *6104 | $40,783[^14] | $40,783 |
| Contingent Disposition Costs | Scotia iTrade – Joint | *4631 | $21,029.65[^15] | $21,029.65 |
| Investment | Questrade – Joint | *1387 | $56,716.71[^16] | $56,716.71 |
| RESP | Questrade – Joint | *6998 | $38,042.56[^17] | $38,042.56 |
| RRSP | Questrade – sole | *8424 | $0 | $85,506.40[^18] |
Under Part 4 - “Value of Property Excluded under subsection 4(2) of the FLA”, since I have not permitted the respondent to exclude the amounts allegedly traced to his father’s gifts during marriage, the appropriate figures are all $0 as follows:
| Category | Institution | Account | Applicant | Respondent |
|---|---|---|---|---|
| Investment | Scotia iTrade – Joint | *6104 | $0 | $0 |
| Investment | Scotia iTrade – Joint | *4631 | $0 | $0 |
| Investment | Questrade – Joint | *1387 | $0 | $0 |
| RESP | Questrade – Joint | *6998 | $0 | $0 |
| RRSP | Questrade – sole | *8424 | $0 | $0 |
| TFSA | Questrade – sole | *9039 | $0 | $0 |
| Savings | Republic Bank, Guyana | *2385 | $0 | $0 |
Other Equalization Issues in Dispute
[140] There were other items in dispute in respect of equalization. I will follow the organization of items set out in the CNFP. I have not addressed items in the CNFP that the parties agree on.
Household Goods
[141] The applicant claims that she returned 95% of all household items to the respondent by October 16, 2021. At trial she assigned a SD value of $30,000 to the respondent for those contents and claimed that the SD value of her household contents was $300. The respondent denies that he received the bulk of the household contents, or that their SD value was anywhere near $30,000.
[142] In cross-examination, the applicant was confronted with the fact that, in her earlier financial statement dated March 11, 2019, at a time when she was still in possession of the bulk of the household items, she assigned a SD value of $2,800 for the “Total Value of General Household Items and Vehicles.” Her response was that it was only later, at the point of handing over items to the respondent, that she realized their higher value.
[143] I find that the applicant has not provided a satisfactory explanation for why, having handed over certain household items to the respondent, their SD value became more than 10 times higher than when they were in her possession.
[144] The appropriate values for Household goods on the NFP are $300 for the applicant and $2,500 for the respondent.
China and Flatware
[145] In cross-examination, the applicant conceded that the China and Flatware were gifts that the parties received for their wedding. I have insufficient information to determine which party is in possession of this item and, in any event, I would not separate this item out from “Household Goods.” Accordingly, I would delete the China and Flatware item entirely from the NFP.
Tools
[146] The applicant has assigned a SD value of $700 to Tools that, on SD, were in the respondent’s possession. I disagree with this approach as it appears to be a case of “double-counting” the tools, once under “Household Goods,” and then again as “Tools”. I would delete Tools from the NFP.
Jewellery / Gallihar
[147] The respondent claims that he owned two Gallihars as of his wedding date, one given to him by each of his paternal and maternal grandmothers. The respondent acknowledges that the applicant returned one of the Gallihars to him on October 16, 2021, but alleges that the applicant is holding on to the other Gallihar. The applicant disagrees and claims that there was only one Gallihar during the marriage which, prior to its return to the respondent, was stored in a safety deposit box.
[148] The evidence demonstrates that, notwithstanding the respondent’s trial position, at an earlier point in the litigation, he only referenced there being one Gallihar in the following documents:
• His Answer
• His Financial Statement dated January 15, 2019
• His Financial Statement dated March 7, 2019
• His Financial Statement dated March 15, 2021
• His list of personal items to be returned entitled Doc A
[149] As well, the respondent provided a document dated May 9, 2004 confirming that his mother handed him all his jewellery including “one coin Gallihar” left to him by his “Ajee” (meaning Grandmother).
[150] When pressed, the respondent claimed that he had pictures of this second Gallihar that he gave to his lawyer (he did not specify which one), but did not produce the pictures at trial.
[151] I find that the respondent only introduced the concept of a second Gallihar late in the litigation. The preponderance of the evidence supports there only being one Gallihar which was returned by the applicant to the respondent in October 2021.
[152] Since the respondent assigned a value of $50,000 to two Gallihars, I find that the correct treatment of the Gallihars for the purpose of equalization is that one Gallihar should be listed with a value of $25,000 on SD under the respondent’s assets, and there should be a corresponding DOM deduction of $25,000 for the one Gallihar.
[153] The respondent also claims that the respondent has failed to return his “chain with pendant” (SD value $1,000) and “Gold wrist band” (SD value $1,000). I find that there is insufficient evidence that the applicant is still holding on to these items. These items should not be listed on the NFP statement.
[154] The respondent claims that the applicant had a significant jewellery collection on SD and that the applicant used matrimonial funds to acquire the jewellery. The respondent submits that the court should order the applicant to have her jewellery appraised so that its value can be equalized. The applicant claims that the jewellery was a gift from her parents. Once again, I find that there is insufficient evidence that the alleged jewellery in the applicant’s possession was purchased during marriage or that it has significant value. The “applicant’s jewellery” should not be listed on the NFP statement.
Technology & Hobby Equipment / Electronics
[155] The respondent maintains that the applicant is still in possession of:
• $5,000 worth of equipment which includes a TV, Audio/DVD player sets, 2 Video and 2 still cameras worth approximately $3,000 (1996 to 2013), exercise bike, and model airplane kit); and
• $1,500 worth of electronic equipment (1 video and 1 SLR camera).
[156] The applicant claims that she returned all these items to the respondent and is no longer in possession of any of this equipment. On a balance of probabilities, I find it difficult to believe that the applicant has any use for this equipment and/or is holding on to this equipment out of spite against the respondent. I doubt, in any event, that this equipment, even on SD in 2017, had much value. I would not include these items on the NFP statement.
Applicant’s Scotiabank Employee Pension Plan *4836
[157] The difference in the parties’ positions concerning this item is methodological. I prefer the respondent’s approach which lists the SD value as $237,567.40 as an applicant asset on SD, and then, because of tax liability, lists an applicant debt of $12,276.00. The net effect of both parties’ approaches is the same, as the net amount is $225,291.00.
Applicant’s Solium Employee Share Ownership Plan *1619
[158] Again, the difference in the parties’ positions is methodological. I prefer the respondent’s approach which lists the SD value as $199,718.03 as an applicant asset on SD, and then, because of capital gains, lists a contingent tax liability as an applicant debt of $12,767.24.
[159] The applicant’s approach is to use a slightly different SD value of $199,495.02, apply a 30% tax rate to the entirety of this amount which is $59,848.50, to arrive at $139,646.51, which the applicant lists under her SD assets as a net amount.
[160] The respondent submits that only 50% of the capital gain is taxable as income and that the tax rate is 30%. I agree with this approach. To arrive at the capital gains, I take the difference between the respondent’s SD figure of $199,718.03 and deduct the ACB[^19] of $114,603.12, which is $85,114.91.[^20] 50% of this is $42,557.45 and, applying the 30% tax rate, I arrive at $12,767.24.
[161] The result of using the respondent’s approach, which I adopt, is that the net amount for this line item is $186,950.79. Had I adopted the applicant’s approach, the comparable figure would be $139,646.51.
Applicant’s Scotiabank iTrade RRSP *2099
Once again, the difference in the parties’ positions is methodological. Again, I prefer the respondent’s approach which is to list the SD asset of $357,939 on the applicant’s side and then, to list the contingent tax liability of 30% of half of the applicable capital gains.
Applicant’s Questrade TFSA *1880, Scotiabank Money Master *4424, Joint Scotiabank *5423 and Joint Scotiabank USD *6321
[162] For these 4 accounts, the difference in the parties’ positions appears to revolve around which date the party is using as a proxy for the SD balance. I prefer the respondent’s approach and would use the respondent’s figures. For instance, for the Scotiabank USD *6321 account, the applicant does not appear to have accounted for conversion of American into Canadian dollars.
BNS and other financial institutions
[163] It is unclear whether the applicant is still pursuing this claim but her position appears to be that the respondent had sole control over one or more Guyanese bank accounts and failed to disclose documentation that was in his possession. I am satisfied that these accounts were either closed or had no SD balances. I find that there are no accounts to disclose, or documents to disclose as between the parties.
LIRA – Scotia iTrade *3578
[164] I prefer the respondent’s approach to recognize the respondent’s SD balance of $68,932 as an asset and I also recognize the 30% contingent tax liability of $20,679.60 as a respondent debt.
Several TD Accounts, Several Tangerine Accounts, Sole Account *3723
[165] To the extent that the applicant is still pursuing this point, I find that the applicant was given authorization to access the respondent’s bank accounts and either found none or, if she did, did not disclose them at trial. There are no further accounts in this category to disclose.
Guyana Pension, Multiple Guyana Accounts, Cane Farming Shares
[166] It is unclear whether the applicant is still pursuing these claims, however, I am satisfied with the respondent’s evidence and submissions that these accounts do not exist, were closed, held no SD value, and that he has met his disclosure obligation.
[167] On the CNFP, under “Debts and Other Liabilities, under the category ‘Tax’”, the applicant has claimed a debt of $208.78. I agree with the respondent that the source of this claim is unclear and I would disallow it. It should be deleted from the NFP statement.
[168] On the CNFP, under “OSAP” – “Funds owed to Y” and “Funds owed to M,” the respondent proposes to split the OSAP loans equally since I have not excluded the RESP from the property. The applicant claims that the debt was owed to Y and M as of the SD. I find that the OSAP loan should be split equally by the parties.
Date of Marriage (DOM) deductions claimed by the parties
[169] On the CNFP, under “Bank accounts, savings, securities, pensions”, I am not persuaded that, although the respondent shared a joint account *0195 with his father, the father was only added to have a right of survivorship and the beneficial interest belonged wholly to the respondent. Instead, since this was a joint account, I find that the better course is to halve the amount available to the respondent. I would divide the DOM bank balance of $10,348.39 and, for this account, permit the respondent to claim a DOM deduction of $5,174.19.
[170] The respondent prepared a chart showing a DOM balance of $93,352 arising from amounts gifted to him by his grandmother in 1975. The applicant is critical of this figure as she submits that the respondent should only be entitled to claim the DOM deduction if the funds were actually in existence on the DOM. I found the respondent credible on this point and, since I also found him to be meticulous, on balance, I find that he presented what available evidence that he had of his DOM holdings. I would allow the respondent’s $93,352 DOM deduction.
[171] The respondent also provided documentation for Canada Savings Bonds (CSBs) of $20,000 which I would accept.
[172] Accordingly, I would allow the respondent to claim a DOM deduction of $118,526.19 ($5,174.19 + $93,352 + $20,000).
[173] Moving to the applicant’s side, I agree with the respondent that the tax slips that the applicant produced appear to relate to the same bond holdings, so whereas the applicant wishes to claim that she held $20,000 in CSBs, I find that she held $10,000 on the DOM. However, I was satisfied with the applicant’s documentation that her parents gave her $8,000 ($5,000 + $3,000) and so, in total I would allow the applicant to claim a DOM deduction of $18,000 ($10,000 + $8,000).
[174] I note that under “Exclusions,” the applicant seems to want to claim $8,000 as an exclusion for “Monetary gifts from parents.” I agree with the respondent that this is not appropriate as, to make this claim, the applicant would have to trace the gift funds prospectively to a SD balance, which she has not done. Accordingly, the $8,000 that the applicant has listed under “Exclusions” on the NFP statement should be deleted.
[175] I direct the parties to rework the NFP statement based on my above findings and provide me with a revised NFP statements. If I have failed to address a point in contention regarding equalization, or if there is a calculation error, the parties can advise the court.
Further Correction in respect of Equalization
[176] The respondent made submissions that he made a calculation error with respect to the amount of contributions made to the RESP in Questrade RESP *6998. My understanding of the evidence is that whereas the respondent initially advised of contributions of $104,000, this is an error as the correct contribution amount is $79,000, since there was a withdrawal of $25,000 on or around March 29, 2017. As I have disagreed with the respondent that the SD funds in the *6998 fund should be excluded, I direct the parties to advise me what further adjustments need to be made to this line item.
Post- Separation Adjustments
[177] Respondent counsel prepared a document “Chart of Disputed Accounts” that served as a guide to the disputed withdrawals from various accounts. I understood from the chart that the respondent’s position is that, post-separation, he withdrew $53,550 from the RESP and moved that into the *5423 account that he solely controlled. The respondent submitted that he contributed $38,392 in funds to M’s post-secondary education. The evidence was very confusing on this point but my overall understanding is the respondent’s submission that, if I refuse to accept the funds as excluded funds, then the net effect is that the respondent did not make a contribution towards M’s education since these were RESP funds. Further, if I accept this characterization, it means that no further post-separation adjustments need be made in respect of RESP funds.
[178] The consequence is that any amounts held in joint-accounts, post-separation, should be split jointly.
[179] There was also a line item where the parties disputed whether a MNBA card statement was paid off from the respondent’s sole account or whether it was a join account. I prefer the respondent’s submissions on this point and find that no further adjustments should be made in respect of this line item.
[180] To the extent that the respondent is still pursuing a CPP Credit division, I would dismiss the claim as it was not pleaded.
Non-Contact Order
[181] The applicant requests that a non-contact order be put in place as she fears contact or communication from the respondent. The respondent submits that he has no intention of contacting the applicant, however, he objects to the court putting a non-contact order in place because this could lead to criminal charges against him, should there be inadvertent contact between the parties. Further, the respondent submits that, due to the parties being the parents of three adult children, there may be some legitimate need for the parties to communicate with each other. In particular, the parties agree that they must deal with the funding of D’s graduate education.
[182] I do not favour ordering a full non-contact order. I find that the appropriate solution is to order a reciprocal non-contact, non-harassment order, but with a carve out to allow the parties to communicate in writing about a serious issue concerning their children. This does not have to be just about the children’s health or education but written communication between the parties should be limited to: (a) a serious issue concerning one or more of the children; and (b) any other issues that the parties can mutually agree upon.
Conclusion
[183] The respondent strongly urged me to find that the applicant was not credible at trial. I agree that, on a number of occasions, the applicant acknowledged that the first answer she gave was incorrect and, in some instances, she agreed with respondent’s counsel that she lied. The respondent suggested that, in any area of the evidence that required a ruling based on credibility, this favoured the respondent’s narrative. Had I found only the applicant to have credibility problems, this approach may have made sense. But, on one of the central disputes at trial – whether the respondent’s father provided the respondent with gift letters directing that gifts be excluded from NFP; I not only found in favour of the applicant, but I also found that the respondent had concocted these letters in an effort to sway the outcome of the trial. Accordingly, I declined to rely heavily on credibility assessments and, in any event, I found that I could make my decisions based on the significant documentary and testamentary evidence at trial, and inferences drawn from that evidence.
[184] Further, while the parties pointed fingers at each other about deliberately holding back important documents and household contents, I ultimately concluded that it was not possible to come to any firm conclusion about who was responsible for documents or items that could not be found. The parties separated in July 2017 and this matter was litigated in March 2022. I made rulings on the items that I considered important such as the respondent’s Gallihar.
[185] In conclusion, this trial was primarily a dispute between the parties about the proper resolution of their financial affairs after a long 25-year marriage. Each party claims to have health problems. It is my hope that, while they will likely disagree about certain aspect of my judgment, that my decision will bring some closure to a difficult chapter in their lives.
[186] By March 3, 2023, the parties shall provide me with a Draft Order approved as to form and content, and a clean copy of the Draft Order for my signature. The Draft Order shall be sent via email to my judicial assistant’s email address: Patricia.Lyon-McIndoo@ontario.ca in Word format. If the parties are unable to agree on the form of the Draft Order, they may write to the court.
Costs
[187] If the parties cannot agree on costs, the parties shall make written submissions as to costs as follows. Within three weeks of the release of these Reasons, the applicant shall provide her costs submissions. The respondent will then have two weeks thereafter to respond. Reply submissions will only be permitted with leave of the court. Such written submissions shall not exceed five double-spaced pages, exclusive of Costs Outlines, Bills of Costs, Offers to Settle, and authorities. Submissions are to be forwarded to my judicial assistant at her email address, Patricia.Lyon-McIndoo@ontario.ca.
Pinto J.
Released: February 21, 2023
COURT FILE NO.: FS-18-6696
DATE: 20230221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Chitranie Singh
Applicant
– and –
Tejeshwar Singh
Respondent
REASONS FOR JUDGMENT
Pinto J.
Released: February 21, 2023
[^1]: A traditional gold necklace in the Guyanese culture. [^2]: Canada Educational Savings Grant [^3]: Net SD Value = non-taxable contributions of $104,000 plus after-tax net value of $129,522.43 increase in value; $129,522 at 50% tax = $64,761 on SD [^4]: The respondent is seeking exclusion of the Net SD Value that comes from gifts (being SD balance derived from gifts less continent tax of 30% on portion derived from gifts) [^5]: A copy of the July 18, 1992 letter from the father and a document indicating the Guyanese to Canadian exchange rate were attached as Exhibits 14 and 15 to the respondent’s affidavit at this point in the affidavit, but are not included here in my Reasons. [^6]: A copy of the April 15, 2000 letter from the respondent’s father and a document indicating the Guyanese to Canadian exchange rate were attached as Exhibit 16 and 17 to the respondent’s affidavit at this point in his affidavit but are not included here in my Reasons. [^7]: Which, I take to mean the respondent’s father. [^8]: Logically, there is yet another possibility, namely, that while the gift letters themselves are a fiction that the respondent created in an attempt to bolster his case, the underlying gifts from his father were real. However, the respondent never pursued this argument, always insisting that the basis of his father’s gifts in 1992 and 2000 were the two gift letters. Accordingly, I did not go down the path of the letters being a fiction, but the gifts being real. [^9]: A copy of the April 15, 2000 letter from the respondent’s father and a document indicating the Guyanese to Canadian exchange rate were attached as Exhibit 16 and 17 to the respondent’s affidavit at this point in his affidavit, but are not included here in my Reasons. [^10]: I have used the respondent’s SD balance figure of $271,887 and, because it is a joint account, attributed half to each party. [^11]: I have used the respondent’s SD balance figure of $140,197.64 and, because it is a joint account, attributed half to each party. [^12]: I have used the respondent’s SD balance figure of $378,111.39 and, because it is a joint account, attributed half to each party. [^13]: I have used the respondent’s SD balance figure of $253,617.09 and, because it is a joint account, attributed half to each party. [^14]: I have taken the respondent’s disposition figure of $81,566, which is 30% of the SD balance of $271,887, and split it between the parties. [^15]: I have taken the respondent’s disposition figure of $42,059.30, which is 30% of the SD balance of $140,197.64 and split it between the parties. [^16]: I have taken the respondent’s disposition figure of $113,433.42, which is 30% of the SD balance of $378.111.39 and split it between the parties. [^17]: I have taken the SD balance of $253,617.09 and applied a 30% disposition cost which is $76,085.13 and split it between the parties. [^18]: I have taken the respondent’s SD balance of $285,021.32 and applied a 30% disposition costs which is $85,506.40 but, because it is the respondent’s account, I have not split it between the parties. [^19]: The respondent submits that this is calculated by adding total “Average Cost plus Amounts Reinvested” as set out in the Solium Capital July 2017 statement. [^20]: For reasons that are unclear, the respondent’s figure is $84,891.90.