Court File and Parties

COURT FILE NO.: FS-97720/CV-21-2118 DATE: 2024 03 19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Hardeep Nijher Applicant

Lalit Kalra, for the Applicant

- and -

Manpreet Dhaliwal Respondent Plaintiff in the Civil Action

-and-

Gurmeet Singh Nijher, Devinder Kaur Nijher, Mandeep Kaur Nijher and Jaspreet Randhawa Defendants in the Civil Action

Self Represented (for Manpreet Dhaliwal) Siddharth S. Joshi for the Defendants

HEARD: January 22, 23, 25, 29-31, February 1 and 2, 2024

REASONS FOR JUDGMENT

LEMAY J

[1] The Applicant, Hardeep Singh Nijher and the Respondent, Manpreet Dhaliwal, were married on May 11th, 2018 and separated fourteen months later on July 10th, 2019. There are no children of the marriage.

[2] The Applicant applied for a simple divorce in this matter. The Respondent brought a series of claims for the return of jewelry, for equalization (including a claim that both she and the Applicant had an interest in the property his parents owned), for spousal support and for damages for the intentional infliction of mental distress.

[3] The Respondent also brought the claim for intentional infliction of mental distress against the Applicant’s parents, sister and one of the neighbours who lived near the house where the Applicant and his parents live. The Applicant also brought a claim in the Small Claims Court for the return of various items of jewelry.

[4] At the outset of trial, I was advised that the parties had resolved the issues in respect of the jewelry. The remainder of the matters proceeded to trial. For the reasons that follow, I have dismissed all of the Respondent’s claims, except for her claim for an equalization payment in the amount of $6,534.50. I have also dismissed the Applicant’s request for an unequal division of family property.

Background

a) The Parties

[5] In the course of these reasons, I will refer to the Applicant and the Respondent as the Applicant and the Respondent. I will refer to the remainder of the parties by their first names, as three of them share a last name. No disrespect is intended by this.

[6] The Applicant was born in Brampton in 1990 and has a Bachelor of Computer Science degree. He has worked for IBM and Aviva as a business systems analyst and an IT manager. He is currently self-employed and has been since the end of 2021. During the marriage, the Applicant was a senior business analyst and then a manager at Aviva.

[7] The Respondent was born in India in 1994 and obtained a B.Sc. in India in 2015. In July of 2016, she moved to British Columbia to pursue a master’s program in administrative science. She completed that program in April of 2018, shortly before the parties got married. In 2019, during the marriage, the Respondent began a program as an immigration consultant at Humber College. She completed this program in September of 2020. She has also completed a payroll certification through the National Payroll Institute.

[8] The Defendant Gurmeet Singh Nijher (“Gurmeet”) is the Applicant’s father. He was born in India in 1962 and graduated from the University of Delhi. He also has certifications in Heating, Ventilation and Air Conditioning (“HVAC”) and runs his own business. During the marriage, he lived with his wife (another Defendant), the Applicant and the Respondent in a home in Brampton.

[9] The Defendant Devinder Kaur Nijher (“Devinder”) is the Applicant’s mother. She was born in India and completed grade 12 there. She moved to Canada in 1979, obtained further schooling here and worked in the sewing industry as a supervisor. After that, she obtained a real estate license and worked until about 2016. She has been a full-time housewife since 2016 although she only gave up her real estate license in the last couple of years. During the marriage, she lived with the Applicant, the Respondent, and her husband Gurmeet in a home in Brampton.

[10] The Defendant Mandeep Kaur Nijher is the Applicant’s older sister. She has a BSc from York University as well as post-secondary education in nursing. She is a registered nurse and worked for Toronto Public Health for ten years before starting her own business in medical esthetics last year. She lives with her husband and child in a separate residence.

[11] Finally, the Defendant Jaspreet Randhawa, also known as Jassi Singh, is a neighbour and long-time friend of the Nijher family. She currently works for a hedge fund and as a private equity administrator. She lives in the house that backs onto the Nijher’s property in Brampton along with her husband and child. She has known the Nijher family since 2007 and views them as part of her own family.

b) The Marriage and Relationship

[12] The parties met through an on-line dating site in the spring of 2017. They began to chat on-line. Ultimately, the Applicant visited the Respondent in Vancouver where she was living and going to school. These visits would be for several days at a time, and the Applicant would stay with family members who lived in the Vancouver area. During the courtship, the Respondent did not visit the Applicant or his family in Brampton.

[13] After three visits, the Applicant and the Respondent decided to become engaged. They also decided that they would live in Brampton in the Respondent’s parents’ home. The Respondent had been living with his parents in the home, which was at 13 Valley Ridge Crescent in Brampton. He had lived there for all but two years from the time his parents bought the property in 2007. The Applicant lived in Ottawa from 2014 to 2016.

[14] The parties were married on May 11th, 2018 in Brampton. They spent ten days in Banff on their honeymoon and then returned to Brampton and the Applicant went back to work. The Respondent began looking for a job. In her pleadings, the Respondent claimed that the Applicant, his sister and his parents were all opposed to her getting a job for the first few months as they wanted her to stay at home and learn the “family traditions”. The Applicant testified that this was not correct, and that the Respondent was supported by both the Applicant and his family in her job search efforts.

[15] In the course of the trial, the Respondent modified her claim and testified that it was only the Applicant’s parents who were opposed to her getting a job. Resolving this factual dispute is key to resolving the Respondent’s claim for intentional infliction of mental stress, and I will return to it below.

[16] The Respondent ultimately found work in August of 2018 at Active Security as the Business Development manager. That position paid $40,000.00 with no bonus for the first year. The Respondent worked in that job for about a year and then became a payroll administrator for the same company. Her income increased while she was with this company. In 2022, she changed companies but remained a payroll manager. She also had some periods post-separation where she had income from self-employment, over and above what she earned from her regular employment.

[17] The Respondent also learned to drive during the course of the marriage. She did not have a driver’s license at the time the parties got married, but she had managed to complete both a driving course and obtain her G2 license by the time the parties separated. The Respondent testified that her in-laws were opposed to her obtaining a driver's license because they wanted to keep her dependent on them. The Applicant testified that the rest of the family, including his parents, wanted the Respondent to get her driver’s license and helped her prepare for the driver’s test. The testimony from the Applicant’s parents supported his position. I will address this issue below.

[18] The Applicant testified that he was very family focused and, as a result, liked spending time with family members and going to family events. The Respondent testified that she was not comfortable meeting new people and not comfortable making new friends. She wanted to do things on her own with the Applicant and not with his parents.

[19] The differing views of how family events should be treated and whether the parties should attend them was a significant source of stress during the course of the marriage. In addition, the Applicant testified that the Respondent was, in my words, moody and uncommunicative when she did not get her way. The Respondent testified that she was physically abused by the Applicant during the relationship. The Applicant denied all of the allegations of abuse. I will set these allegations out in detail below.

[20] The parties had discussed separating on a couple of occasions as early as March of 2019. However, events came to a head in July of 2019. The Applicant’s uncle, Balbir Nijher, had purchased a Boston Pizza franchise in Bolton. The Applicant and his family were invited to the grand opening, which took place on the evening of Friday, July 5th, 2019. The Respondent did not want to go and, instead, told the Applicant that she wanted to go to the Bramalea Town Centre for dinner. The parties ultimately went to the Bramalea Town Centre.

[21] I note that, in her evidence, the Respondent testified that it was the Applicant’s decision not to go to the Boston Pizza opening. I reject that evidence. Given the Applicant’s interest in socializing with his family, it is far more likely that the impetus to avoid the Boston Pizza opening came from the Respondent.

[22] That night, after the parties came home, the Applicant’s parents explained to him and the Respondent that they were disappointed that the Applicant and Respondent did not come to the opening, as it was a big deal and the whole family had been there. The Applicant became concerned with what the Respondent was doing and decided that he needed some space over the course of the weekend to think about things.

[23] The Respondent told the Applicant that he needed some space and, on the evidence I heard, the only interaction between the two of them over the weekend was when the Applicant took the Respondent to the spa. On the Sunday evening, July 7th, the Applicant told the Respondent that he wanted to separate from her.

[24] On the Monday morning, July 8th, the Respondent offered to drive the Applicant to the GO Station so he could catch the train to work. The Applicant wanted to go to the GO Station on his own.

[25] On the morning of July 9th, 2019, the Applicant again wanted to go to work on his own. He had a brief discussion with the Respondent and then attempted to move his car out of the garage. The Respondent’s car was parked behind the Applicant’s car, and she refused to either move her car or to engage with the Applicant. The Applicant went back inside the house and eventually the Respondent drove off.

[26] The Applicant did not go to work that day. The Respondent decided to go to the police because, on her testimony, she was concerned that the Applicant’s family was going to evict her from the house. The Respondent also told the Applicant that she had called the police.

[27] The Applicant, Gurmeet and Devinder viewed the Respondent as having “crossed a line” by calling the police. On the evening of July 9th, 2019 Gurmeet told the Applicant that he and the Respondent needed to leave the house. The Applicant packed some clothes and left the Valley Ridge property to stay with his grandparents. The Respondent locked herself in the bedroom for the night.

[28] On the next morning, July 10th, 2019, Gurmeet called the police and asked them to have the Respondent leave the Valley Ridge property. The Respondent had gone to work that morning and returned at the end of the day with her brother. She left the Valley Ridge property in the company of the police sometime after she returned home from work. The Respondent testified that she was verbally abused or several hours by everyone who was present prior to her final departure from the house.

[29] The Applicant was not present for this incident, having gone to his grandparents. I heard testimony from Gurmeet, Devinder, Mandeep and Jassi about this incident. They were all present because, when the Respondent called the police the previous evening, Gurmeet had become concerned and asked Mandeep and Jassi to come and be at the home with him and Devinder when the police came to ask the Respondent to leave.

[30] The testimony of the remaining witnesses was at variance with the Respondent’s testimony. I will resolve those differences below.

[31] The Applicant and the Respondent had very little communication after the date of separation, and this litigation began. I now turn to the litigation history.

c) The Litigation History

[32] The Applicant originally commenced an Application for a simple divorce. The Respondent brought a series of other claims as set out above. A case conference was held before Van Melle J. on October 30th, 2020. At that time, the parties were encouraged to move the matter to trial as quickly as possible.

[33] The Applicant sought to have the divorce severed from the remainder of the issues. The Respondent opposed that request on the basis that the Applicant had signed an undertaking with the Canadian Government to provide her with benefits for three years after she became a permanent resident and that, if a divorce was granted, he might not be able to continue to maintain her on his benefits plan. On February 10th, 2021, Trimble J. directed that the Applicant maintain the Respondent on his benefits plan until August 24th, 2021. He also made orders in respect of support and dismissed a request to have the case referred to only by initials. The Respondent was able to obtain coverage for some dental and eyewear expenses as a result of this Order. The Applicant did not advance any claims for any dental or medical expenses that she was out of pocket in this litigation.

[34] A settlement conference was held on August 26th, 2021. At this point, Doi J. was advised that the Respondent had commenced a companion civil action. Doi J. told the parties that they needed to consider whether that action should be tried together with the matrimonial litigation.

[35] On June 19th, 2022, the parties were granted a divorce by Stribopoulos J. The rest of the litigation continued. A trial management conference was held on April 14th, 2023 where Doi J. set out a timetable for this matter. He also noted that the Applicant had brought two other actions in addition to the issues raised in her reply in the matrimonial action:

a) A civil claim, seeking general, punitive and/or exemplary damages from all of the Defendants as well as aggravated damages from the Defendant Mandeep. This civil claim raised issues that had also been raised in the matrimonial litigation.

b) A small claims court claim that addressed the issues of the jewelry. Again, those issues had already been raised in the matrimonial litigation.

[36] In the trial management conference, Doi J. confirmed that Bielby J. had ordered that all three actions were to proceed together during the trial sittings starting on September 11th, 2023. Doi J. also set out the issues in dispute and confirmed with the parties that, subject to the trial judge’s discretion, no other issues could be raised. The parties have generally confined themselves to the issues that were identified at the Trial Management Conference, although the Respondent revised or modified her position on both legal and factual points as the trial progressed.

[37] Doi J. also set out a timetable for the action and provided allocations of time for each of the various witnesses. He also set out a timetable for amending pleadings and for the exchange of documents and the preparation of document books.

[38] The matter was placed on the blitz list for September of 2023. The matter was not reached, and it was then moved to the January, 2024 blitz list. It was conferenced by McGee J. in both September and January. At the commencement of the trial, the parties advised me that the jewelry issues had been resolved. I understand that means that the jewelry issues in both the Small Claims Court litigation and the matrimonial litigation have been resolved. The other issues were the subject of litigation.

[39] I should briefly note that, as part of her exit pre-trial endorsement, McGee J. set restrictions on the amount of time that the Applicant and the Respondent would be permitted to testify. Each would be limited to a total of two (2) days, one for examination-in-chief and one for cross-examination. These limitations were enforced, as the amount of time that is spent on this case needed to be proportional to the issues in dispute in this case. Counsel for the Applicant and counsel for the Defenants attempted to expand the time allocated for both cross-examination and closing. There was no basis for either of these requests.

[40] Finally, it is important to note the order of proceedings. The Applicant only sought a simple divorce. The Respondent sought considerable other relief in response to the Applicant’s application. As a result, although the Applicant would normally have gone first, the Respondent presented her case first.

Evidence

[41] I heard viva voce testimony from the Applicant, the Respondent, all of the individual defendants and two experts called by the Applicant. The two experts were Mr. Bojun Richard Chen, an appraiser and Dr. Donald Allen Young, a registered psychologist and neuropsychologist. Mr. Chen was tendered as an expert in the appraisal and valuation of residential properties. Dr. Young was qualified as an expert in clinical and forensic psychology and psychological conditions. I will return to the evidence of both experts below.

[42] However, I should briefly note that, in both cases, the Respondent consented to them being qualified as experts. In addition, I have considered the factors set out in White Burgess Langille Inman v. Abbott and Haliburton Co. 2015 SCC 23 and R. v. Mohan, [1994] 2 S.C.R. 9. In summary, given the issues that are in dispute in this case, I found that the evidence of both experts was necessary. I will also explain why I found it to be reliable and that its’ admission was appropriate when I address the issues that the experts testified about.

[43] In addition, there were the notes of the Respondent’s psychotherapist. The psychotherapist had died prior to the commencement of the trial, and there was an issue as to the admissibility of the evidence. Counsel for the Applicant wanted me to determine the admissibility of these notes in a voir dire. I rejected that request for the following reasons:

a) The Respondent’s best recovery in this case was, at the outset of trial, less than $75,000.00. A ten-day trial to determine the outcome of this case was, at best, barely proportional to the amounts in dispute. Bifurcating the trial so that we could conduct a voir dire would have been a waste of both Court resources and the parties’ resources.

b) The overlap between the evidence on the voir dire and the evidence on the merits, particularly from Dr. Young, would have been significant and that overlap did not justify a separate voir dire procedure.

c) Context in terms of the reliability of the psychotherapist’s notes would be required to determine whether they were admissible. That would require a consideration of the merits of the case in any event.

d) The matter had been before the Courts for a considerable period of time and needed to be promptly resolved on the merits.

[44] However, for reasons that I will explain, I have determined that I will place no weight on these notes.

[45] Finally, there were a few evidentiary points that arose during the course of the trial. I will now deal briefly with the most significant of those issues.

[46] First, during her cross-examination of the Applicant, the Respondent sought to rely on a series of text messages that had not previously been included in the record. I provided the following directions in respect of those messages:

a) If the message, or something similar, had previously been produced it could be relied upon.

b) There were messages between a third party and the Respondent that had not been the subject of testimony by the Respondent. It was not open to her to cross-examine the Applicant about those messages, and they were not admissible unless she had testified about them in her examination.

c) There were messages about the engagement party that had not been disclosed. Having reviewed those messages, I determined that there was limited prejudice in permitting the Respondent to cross-examine the Applicant on those messages although she had not testified about them herself.

d) There were messages from the Respondent that were a partial conversation about support that the Respondent said was from mid-2019. She wanted to rely on these messages to show the extent of the promise that the Applicant had allegedly made. They had not been disclosed previously or discussed in the Respondent’s testimony. I ordered that they be excluded as the late introduction of these messages would be prejudicial to the Applicant.

[47] Second, the Respondent had difficulties in maintaining a consistent position on issues. For example, in the course of cross-examining the Applicant, the Respondent wanted to show him a document that she claimed everyone had. After the break, the Respondent had to acknowledge that not everyone had the document. She then denied she’d ever said that everyone had the document. This is one example of the Applicant’s shifting positions, which made this case more difficult to decide. I will come to other examples in the course of my reasons, but I note that these shifts in position also raise concerns about the Respondent’s credibility and reliability.

[48] Third, there was a great deal of irrelevant evidence led in this case, particularly by the Respondent. For example, the fact that she didn’t like the original engagement ring that was chosen for her and wanted a different one had no bearing on the issues that I was required to decide.

[49] Finally, there was a tendency to ask a witness what was in another witness’s mind, or what was in a non-witness’s mind. The Respondent did this regularly and counsel also did this on occasion. I had to remind everyone that this type of evidence was not admissible and, where it did form part of the record, I have not considered it.

Credibility, Reliability and the Weighing of the Evidence

[50] Credibility and reliability are related concepts. As the Respondent was self-represented, I referred her to cases that discuss these concepts. Credibility is the question of whether the witness is telling the truth to the best of their ability. Reliability is the question of whether the witness can accurately observe, recall and recount the events in question. R. v. H.C. 2009 ONCA 56, 244 O.A.C.288 at para 41.

[51] In assessing credibility, the Court applies the principles cited in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at para 10:

The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[52] In this case, we have the Respondent on one side and the Applicant and his family and friends on the other side. They have told me very different versions of events. There is no rule requiring the Court to accept the evidence of many witnesses when it differs from a single witness on the other side. The evidence must be carefully weighed in context to determine what fits with the underlying circumstances and, where there are different versions, what is more believable.

[53] In this case, where the Respondent’s evidence differs from either the documents in evidence or the evidence of other witnesses, I have generally rejected the Respondent’s evidence. Where I have relied on the Respondent’s evidence in the face of other testimony or evidence, I have specifically explained why. I generally found the Respondent’s evidence to be neither credible nor reliable. I will now set out three examples to illustrate the reasons for my conclusion.

[54] First, the Respondent testified that she was abused and put down for failing to attend Mandeep’s New Year’s party at the end of 2018. However, the text messages sent between the Respondent and Mandeep show that Mandeep was not upset by the fact that the Respondent and the Applicant had decided to do something else for New Year’s. In fact, Mandeep’s text messages show that she provided the Respondent with suggestions as to other things to do for New Year’s Eve.

[55] When confronted with these text messages, the Respondent changed her story and said that she was abused for failing to attend another party around Christmas in 2018. However, Mandeep testified that she didn’t hold any other parties around this time and there are no other text messages to support the Respondent’s changed evidence. I can only conclude that the incident described by the Respondent did not happen.

[56] Second, in her testimony before me, the Respondent testified that, in the months after separation, she earned income from self-employment as well as her regular work. However, her Form 13.1 dated July 22nd, 2020 showed no income from any self-employment. This is an example of the Respondent’s tendency to downplay, or outright ignore, facts that were not helpful to her case.

[57] Third, the Respondent testified that she consumed approximately 1 to 2 alcoholic drinks 2 to 3 times per week. The financial records that the Respondent produced showed almost no consumption of alcohol from the date of separation to the end of the period covered by the records. When confronted by this fact, the Respondent testified that her brother purchased the alcohol for her. This evidence makes no sense, and illustrates the difficulties that the Respondent had in providing clear or straightforward evidence.

[58] When I step back and view the Respondent’s evidence as a whole, I note that it is vague and it generally does not accord with the documentary evidence that I have received, the testimony of the other witnesses or the preponderance of the circumstances. I have already set out at paragraph 21 the reasons why I rejected the Respondent’s evidence in respect of the Boston Pizza incident. I will set out other examples below. Generally, however, I do not believe the Respondent’s evidence.

[59] The Applicant’s evidence, on the other hand, was straightforward and clear. His evidence was consistent with the contemporaneous and underlying documentation. I am also persuaded that he was genuinely attempting to tell me the truth.

[60] The remainder of the witnesses were generally credible, but I will address their evidence as I come to it.

Issues

[61] There are three issues in this case, as follows:

a. Whether the Respondent is entitled to an equalization payment.

b. Whether the Respondent is entitled to spousal support; and

c. Whether the Respondent can claim any damages for intentional infliction of mental stress.

[62] I will deal with each issue in turn. I will address equalization before spousal support because that is the way that those issues are supposed to be considered. Greenglass v. Greenglass 2010 ONCA 675 at para 44. The torts issues raised by the Respondent are addressed after the statutory issues are considered. Ahluwalia v. Ahluwalia 2023 ONCA 476 at paras 140-141, so I will address them at the end. However, I note that many of the factual findings I have made in respect of the tort claims have informed my findings on the other issues. In that respect, I note that the opinions of Dr. Young are supported by my factual findings, but that I have made the factual findings before analyzing Dr. Young’s opinions.

[63] In addition, the Respondent made a number of arguments about the fact that she had a right to remain in the Valley Ridge home. Those arguments tended to shift between a claim to exercise the rights that come with a tenancy and a right to an ownership interest in the Valley Ridge home. I will address those issues last.

Issue #1- Equalization and Other Adjustments

[64] The parties were able to file a joint Form 13C, Comparison of Net Family Property Statements. This joint statement reveals that there were two disputed issues, as follows:

a) A dispute over the value of the investment property that the Applicant owned in Caledon.

b) A dispute over whether the Applicant owed his uncle the sum of $20,000.00 on account of a loan for wedding expenses.

[65] I will resolve each issue in turn. In addition, the Respondent has claimed an interest in the property owned by the Applicant’s parents. She claims this interest on the basis of payments made by the Applicant to his parents throughout the course of the marriage. I will address that issue after considering the first two issues, and I will then address the Respondent’s assertion that there should be an unequal division of family property in this case.

a) The Value of the Investment Property

[66] The investment property is a townhouse in Caledon that the Applicant had purchased sometime before the parties were married. The parties both agree that the property was worth $720,000.00 on the date of marriage. They disagree about the valuation on the date of separation. The Applicant says that the property was worth $725,000.00 on the date of separation, while the Respondent says that it was worth $744,000.00 on the date of separation.

[67] The Applicant had Mr. Bojun Richard Chen perform an appraisal of the property effective the date of separation. Mr. Chen performs real estate appraisals for a living, and has been a licensed appraiser since 2016. He has a background in accounting and in the real property assessment program at Seneca College. He had signed the acknowledgement of expert’s duty and acknowledged his responsibility to provide independent evidence.

[68] Mr. Chen’s evidence meets the requirements of White Burgess and Mohan. His evidence is necessary, in that I have no idea how to value a residential property. The evidence was reliable, and Mr. Chen was a properly qualified expert with considerable experience in the area of residential property appraisals, having done hundreds of them over the past seven years. Therefore, I qualified Mr. Chen as an expert in the appraisal and valuation of residential properties.

[69] Mr. Chen testified that he used the direct comparison approach to value this property. What he did was find three or four other properties and compared their selling prices to this property. Mr. Chen also testified that, because this appraisal was done at the height of the COVID-19 pandemic, it was a modified appraisal that was permitted by the Appraisers Institute of Canada.

[70] Mr. Chen walked around the outside of the property and examined pictures of the interior. He also obtained information from the Municipal Property Assessment Corporation (“MPAC”) and other databases to value both the Applicant’s property and the comparable properties. There does not appear to be any reason to question the specific examples that Mr. Chen has chosen or the specific adjustments that he has made. I accept those calculations as establishing the value of this property as of the date of separation at $725,000.00.

[71] Mr. Chen discussed some of the market factors that affected the value of the property. First, there are seasonal fluctuations in the marketplace. The property prices tend to be hotter in March/April and lower in the summer and winter months. Second, there was the introduction of the foreign buyers’ tax in 2017 that caused some softening in the property market. However, in valuing the property, Mr. Chen viewed these factors as less important than what was happening in the local market and focused his analysis on the local market factors.

[72] The Respondent argued that the property should have had a higher value than $725,000.00, as it would mean that there was only a $5,000.00 change in the value of the property over the course of fourteen months. The problem with this argument is twofold. First, the Respondent did not provide any evidence from an expert to explain why Mr. Chen’s appraisal was incorrect. Indeed, as Mr. Chen noted, the valuation is based primarily on local market factors, and he considered four properties from the neighbourhood and explained the differences in the prices and how he made the adjustments. His evidence was both easy to follow and persuasive.

[73] Second, Mr. Chen explained why the increase might have been relatively small when he talked about the seasonal fluctuations in the marketplace. The parties were married in early May of 2018, at a time when seasonal real estate prices would be higher. They separated in July, at a time when seasonal real estate prices would be lower.

[74] At trial, the Respondent wanted to call an appraiser. I did not permit her to call this witness. She had not identified an appraiser as a possible expert at the pre-trial conference before Doi J., and no appraiser was identified in the Trial Scheduling Endorsement Form. Further, at the exit pre-trial in August of 2023, McGee J. confirmed that only two experts (Mr. Chen and Dr. Young) were scheduled to give evidence. No advance notice of the Respondent’s possible expert witness had been provided prior to trial. As a result, I concluded that it would be prejudicial for the Applicant to have to respond to a report at such a late date.

[75] I accept the valuation of the property as of the date of separation as $725,000.00, as proposed by Mr. Chen. I will address the Respondent’s argument that there should be an unequal division of family property once I have considered the other issues.

b) The $20,000 loan to the Applicant’s Uncle

[76] There is no dispute that, shortly after the marriage, the Applicant paid $20,000.00 to his uncle. The parties have a dispute over whether this was a loan that the Applicant owed his uncle, or whether it was a payment made by the Applicant to his uncle on account of a debt that Gurmeet owed.

[77] The Applicant’s evidence was that the loan was between his father, Gurmeet, and his uncle Tarlochan Nijher. Gurmeet supported this testimony and testified that he had originally borrowed $20,000.00 from his brother in order to purchase equipment for his HVAC business. This money was borrowed from Tarlochan in 2014, and Gurmeet testified that it was a “slower” time in his business.

[78] Gurmeet confirmed that there was no documentation to support the existence of a loan and that Tarlochan had not demanded repayment. Gurmeet testified that, up to 2018, he had not paid the money back because he was continuing to reinvest it in the business.

[79] Gurmeet also testified that he did not ask the Applicant to pay the loan back. The Applicant decided to do that on his own. Gurmeet also testified that he was not aware of any loan between the Applicant and Tarlochan.

[80] The Respondent insisted that this money was the repayment of a loan that the Applicant had taken out from his uncle in order to defray expenses related to the wedding. Neither party had any documentation to directly support their version of what these payments were for. Therefore, while I am mindful of the criteria for determining whether an advancement of funds is a loan or a gift as set out in Barber v. Magee 2015 ONSC 8054, aff’d 2017 ONCA 558, (2017) 139 O.R. (3d) 78, I am required to consider other facts to resolve this dispute.

[81] I reject the Respondent’s assertion that the Applicant borrowed money from his uncle for the wedding for two reasons:

a) There is no other evidence at all to support that the Applicant borrowed money from his uncle for the wedding.

b) The Applicant paid for the wedding expenses himself out of his own savings. The NFP statement that was filed showed that, as of the date of the wedding, the Applicant had $43,000.00 in savings and very little debt other than the mortgage on his rental property. It is unlikely that he would have borrowed money from his uncle to pay for the wedding when he had those savings on hand. He certainly would not have had to borrow funds from his uncle to pay for the wedding.

[82] That does not end the matter, however. The Respondent raised a couple of points that I must address. First, in cross-examination, the Respondent pointed out that the Applicant transferred the money to Tarlochan in two tranches, one in May and one in August. Given that he had the savings, the question is why he did not transfer it all at once.

[83] During the evidence, I heard no good answer to that question. However, I am also not sure that it matters. I have found that this was not a loan owing by the Applicant to his uncle. As a result, it is not money owing on the Applicant’s Net Family Property statement as of the date of marriage.

[84] The Respondent’s alternative argument is, in essence, that this was an improvident payment that should result in an unequal division of assets. I will address that issue below. I would also note that it is a payment that was made on behalf of the Applicant’s parents, and I turn to that question now.

c) The Payments to the Applicant’s Parents

[85] I was provided with a series of documents in respect of the payments that the Applicant made to his parents during the course of the marriage. The most helpful of these documents a summary of the monies that the Applicant paid to his parents. It reflects a total expenditure of approximately $46,000.00. It includes the $20,000.00 for the uncle’s loan that I have discussed in the previous section.

[86] As a result, the Respondent is essentially arguing that the Applicant made a series of improvident payments to his parents that resulted in the depletion of his net family property. The claim, over and above the claim for the uncle’s debt, is approximately $26,000.00. The Respondent argues that these payments were improvident and unnecessary. I disagree.

[87] It is important to consider what the bulk of these payments were made for. Until the end of January 2019, the Applicant was paying Gurmeet’s credit card bill in random amounts. Beginning in February of 2019, the Applicant began to contribute $2,000.00 per month to the household expenses. I will analyze each of these amounts separately.

[88] I start with the random payments by the Applicant to Gurmeet’s credit card. In the time period between the date of marriage and the end of January 2019, there were a number of expenses that Gurmeet paid for, including:

a) $8,750.00 for the car payments for a Mercedes ML 350. This car was used by the Applicant daily between May and October of 2018.

b) $3,508.00 for the car payments for a Mercedes C300 that was driven by the Respondent and by Devinder between the date that the Respondent got her driver’s license and when she bought her own car in February of 2019.

c) Approximately $2,700.00 for car insurance for the various cars that were driven.

d) $2,500.00 on account of cell phones and cell phone bills for both the Applicant and the Respondent from prior to the marriage until the date of separation.

[89] There are other expenses for smaller amounts that are listed by the Respondent in his materials. It is not necessary to review them. The evidence makes it clear that a significant proportion of the payments being made by the Respondent to his parents had a corresponding expenditure by his parents that benefitted both the Respondent and the Applicant.

[90] This brings me to the $2,000.00 monthly payments that were made by the Respondent to his parents beginning in March of 2019. Those payments were, in many ways, in the form of rent. The uncontradicted evidence that I had about household expenses was as follows:

a) In 2018 and 2019, the mortgage property on Valley Ridge was approximately $2,100.00 per month.

b) In 2018 and 2019, the property taxes on Valley Ridge were approximately $700.00 per month.

c) In 2018 and 2019, the home insurance on Valley Ridge was $130.00 per month.

d) In 2018 and 2019, the utilities (gas, hydro and water) were approximately $500 to $600 per month.

[91] The Respondent argues that the payments made by the Applicant created an interest in the property that was owned by Gurmeet and Devinder. She also argues that she and the Applicant were promised that this property would one day be theirs. I reject both arguments.

[92] I start with the effect of the payments. In my view, these payments did not create any equitable interest in the property for either the Applicant or the Respondent. They were simply payments made on account of the fact that the Applicant and the Respondent were both living in Valley Ridge and were not contributing to any of the household expenses. They were approximately half of the regular maintenance expenses for the property (excluding internet). They did not take into account any of the capital upkeep of the property.

[93] On that point, the evidence was also that Devinder did the bulk of the meal preparation and that Gurmeet was responsible for the lawn maintenance and the snow shoveling. Again, this suggests that the money that the Applicant was paying did not create an interest in the property. Instead, it was an acknowledgement of the costs of having the Applicant and the Respondent residing at the property.

[94] I should also note that Gurmeet and Devinder purchased the Valley Ridge property in 2007, when the Applicant was seventeen. They put approximately $450,000.00 in equity into the property that they had from a previous home that they had owned since the Applicant was very young. Gurmeet and Devinder had made all of the payments for the maintenance and upkeep of Valley Ridge. From those facts, and from the amount of money that the property cost to maintain, I infer that neither the Applicant nor the Respondent were entitled to an interest in the property as a result of the payments that they made over the course of a year.

[95] On this point, I note that the Respondent relies on the Supreme Court’s decision in Cowper-Smith v. Morgan 2017 SCC 61, [2017] 2 S.C.R. Morgan is not applicable to the facts before me. In Morgan, the brother had given up his life in England and moved back to Victoria to care for his aging mother for a number of years. In this case, the Respondent has not given up anything substantive. As a result, Morgan is not applicable to the facts of this case.

[96] This brings me to the claim that the Respondent was promised an interest in the property. The Applicant and Gurmeet both deny this claim, and I accept their evidence. Gurmeet acknowledges that he may have said something along the lines of my house is your house, but that it would have been done in casual conversation. In my view, this comment would have been too vague to found any sort of actionable promise.

[97] I have also pointed out my significant concerns with the credibility and reliability of the Respondent’s evidence elsewhere in these reasons, and I prefer the evidence of the Applicant and Gurmeet on this point. I am of the view that this is another occasion where the Respondent has heard something different than what has been said.

[98] Finally, I should address the issue of the Applicant’s payments to Tarlochan. While the circumstances surrounding this payment are not entirely clear to me, the Applicant did testify that he had not previously paid his parents for the expenses associated with living with them. I accept his evidence on this point, and conclude that it would not be unreasonable for the Applicant, especially given his relationship with his parents, to pay off this loan for his father.

[99] As a result, I find that there should be no adjustments to the NFP calculation to take account of any of the payments made by the Applicant to his parents.

d) The Unequal Division Issue

[100] I understand the Respondent to be arguing that there should be an unequal division of property under section 5(6) of the Family Law Act, R.S.O. 1990 c. F.3 as am. That section states:

(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[101] As I understand it, the Respondent is arguing that the payments made by the Applicant to Darlochan and Gurmeet were a deliberate depletion of net family property. I disagree for four reasons. First, the test for establishing an unequal division of family property is very high. Serra v. Serra 2009 ONCA 105, (2009) 93 O.R. (3d) 161. It is particularly difficult for the Respondent to satisfy this test in a short marriage where her assets increased as well.

[102] Second, as I have outlined above, a significant portion of the payments made by the Applicant were on account of expenses that a married couple would otherwise have had to incur if they had been living on their own. There is nothing unconscionable about these transfers. The most that can be said of them is that they might be higher than the Respondent wishes them to be.

[103] Third, these payments were made shortly after the Applicant and the Respondent got married. They do not appear to have been made in order to deplete the Applicant’s NFP as there was no prospect of separation when he made the payments in May and August of 2018.

[104] Finally, in analyzing the Respondent’s position on an unequal division, it is also important to note that her net family property grew by almost $10,000.00 during the course of the fourteen-month marriage, in spite of the fact that she was earning nothing for the first three months of the marriage, and approximately $50,000 per year before taxes for the remaining 11 months of the marriage. This significant growth is as a result of the fact that the Respondent was not making any contribution to the household expenses.

[105] I also note that the Applicant has suggested, at least in his closing argument, that the Respondent should not be entitled to an equalization payment given the length of the marriage and his pre-existing assets. This argument was not advanced very forcefully, and for good reason. There is no merit to it, as the net family properties of both parties increased during the marriage. They were married and the legislative scheme strongly supports the view that the marriage is a joint enterprise, and they are both entitled to the profits from it.

[106] For these reasons, I see no basis to require an unequal distribution of the net family property in this case.

e) Conclusion

[107] For the foregoing reasons, the Applicant shall pay the Respondent the sum of $6,534.50 on account of equalization.

Issue #2- Spousal Support

[108] There are three bases for spousal support: compensatory, needs and contractual. Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 15. The Respondent is claiming support on all three bases. I will deal with each claim in turn.

[109] In assessing these bases, I acknowledge that the factors set out in section 15.2(4) and the objectives set out in section 15.2(6) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as am.) need to be taken into account. In that respect, I note at the outset that this was a marriage of short duration and that there were no children of the marriage. I also note that spousal support is not aimed at achieving an equalization of the incomes between the parties. Ross v. Ross, (1995) 168 N.B.R. (2d) 138 (at para. 14).

a) The Compensatory Basis

[110] The rationale for compensatory spousal support orders was explained in Moge v. Moge, [1992] 3 S.C.R. 813. Compensatory support orders are made to recognize the sacrifices that were made during the course of the relationship that either had a negative effect on the party making the spousal support claim or advantaged the party who is being asked to pay support.

[111] The Respondent seeks spousal support on a compensatory basis because of the “loss that I have suffered because of this marriage and its breakdown”. The Respondent argues:

a) That the Applicant “callously abandoned” her after she gave up her social and family ties in B.C. to marry him.

b) That she lost opportunities to start her consulting business in B.C., and that the business would have done better there than it has here.

c) That twenty-five was the appropriate age in the parties’ culture to get married and that she has lost opportunities to find a suitable partner.

[112] None of these claims have any merit. First, I reject the “callous abandonment” argument for two reasons, as follows:

a) The Divorce Act generally has a no-fault scheme for addressing separation and divorce. Cruelty and adultery are the only grounds that import any fault. I heard no allegations of adultery and, as I have detailed elsewhere in these reasons, there is no basis whatsoever for a claim of cruelty either.

b) The facts do not support a claim of “callous abandonment”. The evidence I heard leads me to the conclusion that the Applicant genuinely tried to make the marriage work, but that the parties are incompatible with each other.

[113] Second, the Respondent provided no evidence of any “lost opportunities” in British Columbia to start a consulting business or do anything else of that nature. Therefore, she cannot establish the claim that she is making. In any event, even if the Respondent had provided that evidence, it would have to be counterbalanced with the fact that she was sponsored as a permanent resident by the Applicant and that he and his family funded her residence for the fourteen months of marriage, allowing the Respondent to save money and enhance her personal wealth.

[114] It should be noted that the Respondent only worked part-time while she was going to school in British Columbia. This fact makes it even more difficult to see what lost opportunities the Respondent might have had by moving to Ontario to marry the Applicant.

[115] Third, the Respondent’s Form 13.1 dated July 16th, 2023 show a substantial increase in the Respondent’s net worth from Valuation date to July 16th, 2023. In particular, her bank balances (net of borrowing) have gone from a net negative number to a positive number of around $50,000.00. It is clear that the Respondent has been able to amass significant additional financial assets since separation. It is, therefore, difficult to see how she has been disadvantaged as a result of the end of the marriage.

[116] Fourth, the Respondent claims that she has lost opportunities to find an appropriate match. To that end, she provided excerpts from a dating website to show the types of matches that were attracted to her profile. There are three problems with this evidence:

a) I have no idea as to whether it is the complete picture of the profiles that the Respondent received matches from.

b) The Respondent testified that she was in a new relationship for some period of time after the parties separated.

c) Most importantly, the fact that a party “lost out” on another match because they married someone, and that marriage failed is not a claim that is compensable under the Divorce Act.

[117] Fifth, the Respondent was able to attend at, and complete a Humber College program during the course of the marriage. This also suggests that the Respondent did not lose any opportunities as a result of the marriage.

[118] For these reasons, the Respondent’s claim for spousal support under the compensatory basis is dismissed.

b) The Needs Basis

[119] The Respondent also argues that she needs spousal support because there has been a significant decline in her standard of living. She argued that, after separation, she had been living in shared rental units that were unhygienic and poorly maintained. She claims that the breakdown of the marriage has had devastating financial consequences for her.

[120] The Respondent is correct in her assertion that the needs basis does not just look at minimum self-sufficiency. As the Court of Appeal noted in Fisher v. Fisher 2008 ONCA 11, (2008) 88 O.R. (3d) 241 at para. 53:

[53] Self-sufficiency, with its connotation of economic independence, is a relative concept. It is not achieved simply because a former spouse can meet basic expenses on a particular amount of income; rather, self-sufficiency relates to the ability to support a reasonable standard of living. It is to be assessed in relation to the economic partnership the parties enjoyed and could sustain during cohabitation, and that they can reasonably anticipate after separation. See Linton v. Linton (1990), 1 O.R. (3d) 1 (C.A.), [1990] O.J. No. 2267 (C.A.), at pp. 27-28 O.R. Thus, a determination of self-sufficiency requires consideration of the parties' present and potential incomes, their standard of living during marriage, the efficacy of any suggested steps to increase a party's means, the parties' likely post-separation circumstances (including the impact of equalization [See Note 13 below] of their property), the duration of their cohabitation and any other relevant factors.

[121] However, there are two points to note about this principle. First, in a short marriage (such as this one), self sufficiency is often more attainable than it is in a long marriage. Fisher, at 54. Second, it requires a consideration of all of the circumstances.

[122] However, even when these principles are applied to this case, the Respondent’s claim suffers from several factual flaws. Each of these factual flaws would be fatal to that claim. First, the Respondent was asked to produce her address so that the quality of her living conditions could be assessed. She declined to do this unless she was given a restraining order against the Applicant and his family. Ultimately, she agreed that she would not pursue the argument that her living conditions were sub-standard if she did not have to provide her address.

[123] During the course of the trial, the Respondent changed her position and argued that the substandard accommodation was as a result of the marriage breakdown. She claimed that it entitled her to support on the needs basis. This is an example of the Respondent’s shifting positions that both made this case more difficult to litigate (and adjudicate) and raised questions as to her credibility. Put simply, if the Respondent wanted to raise her living conditions as an issue, then she should have provided the information that would have allowed it to be investigated prior to the trial. The Respondent’s last minute change in position makes it difficult to accept that her accommodations are substandard as there is no opportunity for the Applicant to investigate that claim.

[124] Second, the Respondent has not provided any factual basis for concluding that her living conditions are sub-standard. The only evidence that the Respondent has provided is her viva voce evidence that she is in a rental unit along with some photos of dirty dishes in a sink, some yellow liquid on the back of a toilet and some photos of a dirty oven. These do not establish any ongoing problems. The mere fact that the Respondent’s co-tenants are messy or that she herself is messy is not a standard of living issue. It is easy enough to clean the property, and there is no information to suggest that the property is substandard.

[125] I also note that the fact that the Respondent is living in shared accommodation is not a change from when she was married. Although she was living with family, she still lived in shared accommodation and did not have the entire property to herself. I have no evidence to show that there is any difference in the quality of her accommodation.

[126] For these reasons, the Respondent has failed to establish a claim for support on the needs basis.

c) The Contractual Basis

[127] The contractual basis for spousal support is based on the undertaking that the Applicant signed when he sponsored the Respondent as a permanent resident to Canada. That undertaking says:

I undertake to provide for the basic requirements of the sponsored person and his or her family members who accompany him or her to Canada, if they are not self-supporting. I promise to provide food, clothing shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care. eye care, and other health needs not provided by public health care. I understand that the money, goods or services provided by me must be sufficient for the sponsored people to live in Canada.

I promise that the sponsored person and his or her family members will not need to apply for social assistance.

I make these promises so that the sponsored person and his or her family members listed on this undertaking can be admitted to Canada as permanent residents. understand that the sponsored person and his or her family members will be admitted solely on the basis of their relationship to me las sponsor] and that they do not need to have the financial means to become established in Canada.

I understand that the validity period of this undertaking begins on the day on which the sponsored person enters Canada if that person enters Canada with a temporary resident permit or, If already in Canada, on the day on which the sponsored person obtains a temporary resident permit following an application to remain in Canada as a permanent resident, and in any other case on the day on which the sponsored person becomes a permanent resident The length of the undertaking will wary according to the relationship of the sponsored person and his or her family members to me las sponsor and their age and it ends:

A. if the sponsored person is my spouse, common law partner, or conjugal partner, on the last day of the period of 3 years following the day on which they become a permanent resident;

[128] The undertaking goes on to say that it continues to be binding even if the circumstances change and the parties separate and divorce. The law has accepted that these undertakings are “very much relevant” to the determination of spousal support. As a result, Courts have found them to be agreements that can be considered under section 15.2(4) (c) of the Divorce Act. Segal v. Qu.

[129] In this case, the agreement was signed on August 24th, 2018. The matter was previously the subject of a motion before Trimble J. His Honour issued an endorsement on February 8th, 2021 in respect of dental and other benefit coverage.

[130] Trimble J. determined that the undertaking required the Applicant to maintain benefits coverage for the Respondent until August 24th, 2021, three years after the agreement was signed. I understand that this was done. Certainly, the Respondent has not provided any evidence to show that she is out of pocket for any benefits expenses in this time period.

[131] As a result, the undertaking applies until August 24th, 2021. The question is what does this undertaking require of the Applicant? A number of cases were relied upon by the parties in respect of what the legal effect of this clause is. I have considered all of these cases.

[132] One of the earliest cases, Samy v. Samy 2000 BCSC 1211. In that decision, the Court stated (at para. 13):

[13] There is no doubt that the sponsorship agreement is a contractual arrangement between the husband and the Government of Canada. It imposes an obligation on the husband to provide for and maintain his wife for a maximum period of ten years. The husband has agreed by way of an undertaking to provide for the “essential needs … including shelter, food, clothing and other goods or services necessary for day to day living” for his wife. I have no doubt that the wife relied on that agreement in that she left Fiji for Canada knowing that her husband would provide for her. In determining entitlement, the undertaking cannot be ignored. To do so would render it meaningless. Moreover, it would be contrary to public policy to permit a person who has given an undertaking to provide support for a spouse to simply ignore the legal obligation to do so. Obviously, the Government of Canada in requiring such stringent undertakings from prospective sponsors has taken into consideration the inherent difficulties that some persons experience in making the necessary adjustments in coming to a new country and becoming self-sufficient. It should also be noted that the agreement specifically states that separation or divorce from a sponsored spouse does not cancel sponsorship obligations. Therefore, the agreement is very much relevant in determining entitlement. However, the agreement that would otherwise bind the husband for ten years cannot supersede the specific laws that deal with maintenance. In other words, sponsorship agreements cannot impose obligations greater than those imposed by the family law. The sponsorship agreement must be considered together with the general principles applicable to spousal maintenance. In the circumstances the provisions of both the Divorce Act and the Family Relations Act are nevertheless applicable.

[133] There are two points that emerge from this passage. First, the immigration undertaking can trigger contractual obligations for support. Second, that the undertaking is not intended to go beyond statutory entitlements.

[134] This brings me to some more general observations on the cases that the parties have provided. In Segal, the Court was concerned with a relatively brief marriage, although not as short as the one in this case. In that case, the parties had signed a marriage contract in which Ms. Qu had given up her right to spousal support, but Mr. Segal had also signed an undertaking to support Ms. Qu with Immigration Canada. The Court found that Mr. Segal’s undertaking was binding and required support to be paid.

[135] Similarly, in Samnani v. Galmani 2018 ONSC 7280, the Court awarded support on the basis of the undertaking to Immigration Canada for a three year period. In that case, the judge ordered that the parties’ incomes be equalized.

[136] In both cases, however, the party receiving support was not working. In Samnani, the receiving spouse had given up a full-time job in England to move to Canada to marry the paying spouse. These are different from the case before me. Indeed, one of the features of many of the cases that the parties relied upon was that the spouse seeking support was unemployed or had been otherwise disadvantaged by the marriage.

[137] The case before me is distinguishable from all of these other cases. The Respondent in this case entered the marriage as an unemployed recently graduated student. She left the marriage fourteen months later as a permanent resident of Canada with a full time job that paid her in excess of $50,000.00. She had also been able to take a further course to add to her education. She also started a business shortly after separation, and her Line 150 income at the end of 2019 (the year she separated) was $62,319.00 after she had re-filed her tax return to reflect her income from her business.

[138] The late-filed tax return was part of a larger problem with the Respondent’s evasiveness about both her income from her business and her financial capacity. Other examples include her evasiveness about money that she was loaning to friends and her evasiveness about other business that she may or may not have had. I also note that, in cross-examination, the Respondent acknowledged that she received payments for her services in cash. These concerns leave me with a real question as to whether the Respondent has an even higher income than she has declared.

[139] This brings me back to the terms of the undertaking. It is a measure that is designed to ensure that people who are sponsored to become permanent residents do not become an additional burden on the Canadian health or social benefits system. Those obligations are placed on their sponsors. However, the obligations are defined by the terms of the undertaking.

[140] I acknowledge that it is the existence of the undertaking and not its terms that are “very much relevant” to the determination of support. Samnani, para. 166. However, the obligation to pay support cannot exist without some reference to the terms of the agreement. Those terms make it clear that the basic requirements for the sponsored person must be met.

[141] In my view, those obligations include the dental care and benefits obligations that Trimble J. imposed on the Applicant. Those requirements are specifically mentioned in the agreement and the agreement creates meaningful legal obligations. In my view, on the facts of this case there are no further obligations that exist.

[142] I have reached that conclusion in part because of the facts set out at paragraph 137. The Respondent has been advantaged by her marriage to the Applicant. She is now able to be independent and does not require further support. Creating a support obligation based on the immigration undertaking would be going beyond what the statutory entitlements would require in the face of a contract that required only “basic” support to be provided. It would result in an equalization of the incomes between the parties for a period of time that is much longer than the marriage actually was, an outcome that is not supported on either the law or on the terms of the undertaking.

[143] For these reasons, I have concluded that the Respondent has not established entitlement to spousal support on the contractual basis.

[144] I have also performed the calculations for spousal support based on the Applicant’s income of approximately $116,000 and the Respondent’s income of approximately $62,000 in 2019. That produces a range of spousal support between $80 and $106 for a period of 7 to 14 months. Had the Respondent been entitled to spousal support, I would have awarded it at the bottom end of the range, given the fact that her ability to earn income had been enhanced during the marriage. That would have produced an award of $80 per month for 7 months.

d) Conclusion

[145] The Respondent has not established an entitlement for spousal support under any of the bases. As a result, her claim for spousal support is dismissed.

Issue #3- Damages for Intentional Infliction of Mental Stress

[146] I will set out the general principles of law that apply in this case and then set out both my findings of facts on the various incidents that were raised by the Respondent and my conclusions on their legal significance.

a) The Law

[147] The leading case on damages for torts in the family law context is Ahluwalia. In that decision, the Court of Appeal determined that it was not necessary to create either a tort of domestic violence or a tort of coercive control. The Court of Appeal found that the longstanding torts of assault, battery and intentional infliction of mental stress were generally sufficient to address domestic violence issues that arose during a marriage.

[148] The Court of Appeal concluded as follows:

[91] In summary the trial judge’s concern that “long-term, harmful patterns of conduct that are designed to control or terrorize” are not captured by existing torts is misplaced. She found that the appellant had subjected the respondent to years of physical, psychological, emotional and financial abuse constituting behaviour calculated to be coercive and controlling. These facts fall squarely within the existing jurisprudence on battery, assault and intentional infliction of emotional distress. The jurisprudence cited above demonstrate that patterns of recurring behaviour are addressed.

[92] As set out in Merrifield, this desirable gradual evolution, with significant change best left to the legislature, means that new torts should not be created where existing torts suffice. The existing torts are flexible enough to address the fact that abuse has many forms. Recurring and ongoing abuse, intimidation, domination and financial abuse exist can be patterned into daily life. Trial judges should be alive to these dynamics. The trial judge here recognized the ability of existing torts to address the harm when she found that liability under the existing torts had in fact been established.

[149] In this case, the Respondent has brought a claim of intentional infliction of mental stress against the Applicant, his family members and his neighbour. The test for intentional infliction of mental stress was set out in Prinzo v. Baycrest Centre for Geriatric Care, 60 O.R. (3d) 474 and Colistro v. Tbaytel 2019 ONCA 197 (at para. 14):

a. Flagrant or outrageous conduct;

b. Calculated to produce harm; and

c. Resulting in a visible and provable illness.

[150] The first and third branches of the test are assessed on an objective standard, while the second branch is assessed on a subjective standard. Colistro at para 15, Piresferreira v. Ayotte 2010 ONCA 384, (2010) 319 D.L.R. (4th) 665. In this case, the Respondent’s claim does not meet any of the elements of the test. I will now set out why.

b) The Conduct of the Defendants

[151] The parties both testified about tensions in the marriage. It is clear to me that there were considerable differences between the parties in terms of what they wanted out of life. The Applicant is a very sociable and family focused person who wished to spend free time with his family and friends. The Respondent was much more introverted and was not interested in spending time with the Applicant’s family and friends. That fact alone does not support a claim for damages.

[152] The Respondent claimed that there were numerous occasions where the Applicant and/or his family demeaned her. The most significant of those occasions were:

a) The Respondent’s claim that the Applicant’s family did not want her to get a job because they wanted her to remain at home and learn the “family values”.

b) The Respondent’s claim that the Applicant’s parents did not want to let her get a driver’s license because they wanted to control her.

c) The incident where the Applicant and the Respondent did not go to dinner at Manpreet’s house during the Christmas holidays.

d) The incident where the Respondent accidentally put diesel into her car.

e) The Respondent’s departure from the family home on July 10th, 2019.

f) The Respondent’s allegations of physical and sexual abuse throughout the course of the marriage.

[153] I will set out my conclusions on each of these issues and whether they actually took place. I would note that there are other examples that were sprinkled through the Respondent’s testimony and documents. However, as will be seen, I have rejected the Respondent’s testimony about most of these events. I have concluded that there were no incidents of flagrant or outrageous conduct on the part of either the Applicant or any of the Defendants.

Finding a Job

[154] The Respondent originally alleged that everyone in the Applicant’s family did not want her to find a job as they wanted her to stay at home and learn the “family values” first. I reject this assertion for a number of reasons.

[155] First, it is not supported by contemporaneous text messages that were produced in evidence. Indeed, the opposite conclusion flows from the text messages. For example, Mandeep sent a number of text messages in which she gave the Respondent advice about where to look for a job and what to include in her resume. If the Applicant’s family did not want the Respondent to get a job, then Mandeep would not have been trying to help her get a job.

[156] Similarly, the Applicant was very supportive of the Respondent’s efforts to get a job. Indeed, he provided her with information on job opportunities at Aviva, where he was working. He also encouraged her to apply for various jobs and to try and find a position that she wanted. In that regard, I accept his testimony that he would have expected his spouse to work outside of the home.

[157] Second, in her evidence, the Respondent acknowledged that her claim that the Applicant and his family were preventing her from getting a job should be limited to a claim that it was the Applicant’s parents who wanted her to stay at home. Even that limited claim is not supported by the evidence. The Applicant’s father drove her to at least one job interview, and there were no specific examples given of any efforts that either of the Applicant’s parents made to prevent the Respondent from getting a job. I also note that both of the Applicant’s parents had worked outside of the home. This also suggests that the Applicant’s parents would have been content to have the Respondent get a job.

[158] Therefore, I reject the Respondent’s evidence that the Applicant’s parents wanted her to remain at home and not work outside of the house.

Getting a Driver’s License

[159] The Respondent asserted that neither the Applicant nor his parents wanted her to get a driver’s license as it would be too expensive to add her to the insurance, and they wanted to control her. Again, I reject this evidence for three reasons.

[160] First, the text messages all suggest that the Applicant and his parents were trying to help the Respondent get her driver’s license. There are suggestions about ways to improve her driving, and there are also text messages congratulating her when she got her license.

[161] Second, Gurmeet was the one who suggested that the Respondent should use a particular driving school. This fact is confirmed from a text message that was sent by the Respondent herself. It is impossible to reconcile the Respondent’s claim that she was being prevented from driving by her in-laws with the fact that they were the ones who recommended which driving school she should attend.

[162] Third, Gurmeet actually took the Respondent out for driving practice. It is also impossible to reconcile this activity with the Respondent’s claim that the family did not want her to get a driver’s licence because they wanted to control her. I reject the Respondent’s claim in this regard.

The Christmas Holidays Incident

[163] The Respondent alleges that she was “abused” for not attending at Mandeep’s house for a New Year’s Eve party. I have set out at paragraphs 54-55 why I have rejected the Respondent’s evidence on this point. I simply note, again, that this incident did not happen in the manner described by the Respondent in her evidence. It is another example of an unsubstantiated claim of abuse made by the Respondent.

The Diesel Fuel Incident

[164] The Respondent purchased a car in February of 2019. She alleges that the family forced her to buy the car from one of the Applicant’s uncles. I reject that assertion. Instead, I accept the evidence of the Applicant and Gurmeet that the Respondent wanted a bill with a lower amount on it so that she could avoid paying all of the HST that would otherwise have been due.

[165] Sometime in early March of 2019, after the Respondent had purchased her vehicle, she accidentally filled it with diesel fuel. The engine seized up on the way home, and she called the Applicant to come and get her. The Applicant was at home with his parents, so both the Applicant and Gurmeet came to get the Respondent. This was at approximately 6:00 p.m.

[166] When they arrived, Gurmeet asked the Applicant to get out of the car so that he could try and start it. At that point, Gurmeet noticed the receipt for the fuel and confirmed with the Applicant that it was hers. Gurmeet and the Respondent decided to call Gurmeet’s father, as he had a membership with CAA. Gurmeet also told the Applicant that he knew a mechanic who could fix the car, but that it would not be fixed until the morning.

[167] The Respondent’s brother arrived on the scene and advised that he also knew a mechanic. The Respondent insisted that the car be fixed that evening and decided to send it to a mechanic that her brother knew rather than the mechanic that Gurmeet had recommended. At this point, Gurmeet went home.

[168] Ultimately, the mechanic recommended by the Respondent’s brother was also not able to fix the Respondent’s car that evening, and the repair had to wait until the next morning. The Applicant and the Respondent got home late that evening, and Gurmeet discovered that the car was not going to be fixed until the morning in any event. There was a discussion between the parties and some raised voices. There were also some insults exchanged. For example, I accept the Respondent’s evidence that Gurmeet referred to her as being lower than his “joothy”, which I understand is Punjabi for shoe. I accept this evidence in large part because it was not contradicted by any of the other witnesses.

[169] The tension continued in the house until the weekend. At that point, Mandeep came over for a visit to the house and noticed the tension. She asked her father, Gurmeet, what had happened. He told her his perspective. The Respondent came out from her bedroom and joined the conversation. There were, again, raised voices and insults.

[170] This was not an incident of flagrant or outrageous conduct on the part of Gurmeet or the Applicant. The Respondent had made a significant mistake, putting diesel into her car. When her father-in-law offered to help her sort the problem out, she decided she wanted to do things her own way and ended up with a result that was very similar to what she would have gotten if she had done things her father-in-law’s way. The fact that Gurmeet yelled at the Respondent in this case does not amount to flagrant or outrageous conduct.

[171] The last word on this incident should belong to Mandeep, who observed in a text message she sent to the Respondent after the fact, that “no one is going to get a trophy.” However, as I have said, the incident does not amount to flagrant or outrageous conduct.

The Respondent’s Removal from the House

[172] At paragraphs 25 and following, I have set out some of the events of the time period between July 9th and 10th, 2019 when the parties separated. There is no dispute that the Applicant left on the 9th of July to go to his grandparents’ house. There is also no dispute that Gurmeet asked both Mandeep and Jassi to come over to the house on the 10th of July because he was concerned that he did not want Devinder to be alone in the Valley Ridge property when the Respondent returned from work.

[173] It is also not disputed that, on the morning of July 10th, 2019, Gurmeet called the police and asked them to remove the Respondent from the Valley Ridge Property. What is in dispute is what happened between the time the Respondent returned home from work and the time that she left the Valley Ridge property with her brother.

[174] The Respondent says that she was verbally abused by everyone else who was present for three to four hours. She also said that she was on her knees begging Gurmeet not to throw her out of the house when Jassi approached her, accused her of having married the Applicant for the purposes of getting her permanent resident status, and pushed her. The Respondent also testified that Jassi told her that they would get her charged unless she left the house.

[175] The rest of the witnesses testified that none of this happened. Instead, they generally testified that the Respondent came back to the Valley Ridge property after work, and was there with her brother. They all testified that there was no abuse, and that none of the events described by the Respondent happened.

[176] I reject the Respondent’s evidence and accept the evidence of the other witnesses for the following reasons:

a) The Respondent’s claim that the verbal abuse allegedly took place over a period of three to four hours is impossible to square with the fact that the Respondent worked that day and had left the Valley Ridge property by 6:00 p.m. There was simply not enough time for the alleged abuse to have gone on as the Respondent claimed. The Respondent’s evidence is, at a minimum, clearly exaggerated.

b) The Respondent had already called the police. Although she claimed that it was to make sure that she could not be thrown out of the house, it is also clear that she was complaining about the conduct of the Applicant and his family.

c) The Respondent’s evidence that she was begging Gurmeet “not to do this thing” when it was the Applicant who had made the decision to separate does not make sense to me. The Respondent was being asked to leave the house because the Applicant wanted to separate from her.

d) The version of the events given by the other witnesses was generally consistent, and generally fits with the other circumstances, such as the Respondent’s complaint to the police, the presence of the Respondent’s brother at the time and the fact that the Applicant had already told the Respondent he wanted to separate.

[177] I also note that the Respondent could have called her brother to support her version of events. She chose not to do so. Although there is no property in a witness, the Respondent’s brother is both related to her and easily accessible to her as a witness. Given that she has known that there would be a dispute over the essential events of this day and that her brother was present, I also infer that the Respondent’s brother’s evidence would not have been helpful to her case.

[178] I have no doubt that the conversations between the various parties would have been tense and probably would have involved some disagreement and expressions of mutual unhappiness. However, the Respondent’s version of events is simply not credible and I reject it. As a result, I find that there was no flagrant or outrageous conduct on the part of any of the Defendants on this day.

The Allegations of Physical and Sexual Violence

[179] The Respondent alleged that, on her birthday in 2019, she was wearing a dress that the Applicant had bought for her. On that occasion, she said that the Respondent did not like the dress on her. He told her to change her dress, and then slapped her and pulled her hair. She then hit her head on part of the dressing table.

[180] This allegation was part of the larger claim by the Respondent that she suffered physical, mental and sexual abuse on many occasions during the marriage. The rest of the allegations that I have dealt with are allegations of mental abuse. I will deal with the physical and sexual abuse allegations together.

[181] Allegations of domestic violence are serious and must be treated seriously by the Courts. In this case, however, I am persuaded that these allegations did not occur for a number of reasons. This is not a case where the evidence is insufficient to establish the Respondent’s claim. It is a case where I reject the Respondent’s evidence and accept the Applicant’s evidence.

[182] I start with the communications between the parties. The Applicant and Respondent texted each other on a regular basis and there was a wealth of text messages. In cross-examination, the Respondent was forced to acknowledge that the Applicant never swore at her, never said anything to put her down, never said anything humiliating or inappropriate, and never made any threats to her. The fact that she claims their in-person interactions were completely different is troubling to me. It is not, in and of itself, dispositive, but it does raise concerns.

[183] This brings me to the incident where the Respondent claims to have been slapped. This incident was not reported in a timely way. In the criminal context, a delay in the disclosure of an allegation of sexual assault, standing alone, will never give rise to an adverse inference against the Complainant’s credibility. R. v. D.D., [2000] 2 S.C.R. 275 at para. 65. I see no reason why the same rule would not apply in the civil context.

[184] However, the Respondent’s delay in raising this allegation does not stand alone. In addition to a disconnect between the written communications between the Applicant and Respondent and what the Respondent says happened in person, this allegation has the following additional problems:

a) The Respondent did not mention this allegation of a slap to the police either when she called them or at any point afterwards.

b) The Respondent did not mention this allegation when she first filed her Family Law answer in 2020.

c) The Respondent specifically provided an Affidavit about the incident around her birthday in February of 2021, but did not mention the assault. This is a curious omission that raises concerns given that the Respondent was speaking about the precise events.

d) The Respondent has no explanation for why the Applicant did not like a dress that the Applicant had purchased for her. This evidence does not make any sense.

e) The Applicant denied that this event ever took place. I have outlined why I prefer his evidence to the Respondent’s evidence, and this is another occasion where those observations apply, over and above the concerns I have set out.

f) The geography of the assault as alleged by the Respondent is also difficult to comprehend. The Respondent claimed that she was slapped in the face but fell forward and hit her head. Although this is a less significant issue, it still gives me difficulties in understanding how the assault could actually have happened.

[185] As a result, I do not believe the Respondent’s evidence and I find that the assault, as described by the Respondent, never took place. This brings me to the allegations of sexual assault more generally. The Respondent raised unparticularized allegations of sexual and physical assault and claimed that they took place throughout the marriage. These allegations suffer from a lack of particularity as well as the fact that the Respondent’s evidence has other significant credibility problems. The Applicant denies that anything like this ever took place, and I accept his evidence.

[186] I should also note that the only time that there was any mention of issues in the parties’ intimate relationships in the text message exchanges was an occasion where the Respondent had wanted to initiate intimacy and the Applicant had rejected her because he was not happy with the way that she had been conducting herself earlier in the day. This evidence suggests that the parties were prepared to discuss these issues over text messages, and that the lack of any other discussion about them is significant.

Conclusions on the Conduct of the Defendants

[187] As set out above, I have found that none of the Defendants engaged in conduct that was flagrant or outrageous. On that basis alone the claim for damages for intentional infliction of mental stress is dismissed.

[188] However, the Respondent’s claim also fails on the second branch of the test. Neither the Applicant nor any of the Defendants engaged in any conduct that was calculated to produce harm. In order for the conduct to be calculated to produce harm, the party that engaged in the conduct must either want to produce the consequences that follow or must know that the consequences are substantially certain to follow. Prinzo at para. 61.

[189] In this case, there was no evidence of either the desire or the knowledge that negative consequences would follow any conduct. What has been described above are normal human interactions. The Applicant’s family and friends were, in my view, genuinely attempting to help the Respondent engage with the family that she had married into. Ultimately, these efforts were unsuccessful. However, the conduct does not meet this element of the test either.

[190] I should also note that, in an e-mail sent after the parties separated, the Respondent herself referred to the Applicant as a toddler, told him that he was not mature and that she should have never married him. The Respondent also told the Applicant that her father had, when they got married, told her that the Applicant looked like a child. The Applicant testified that, during the course of the marriage, the Respondent would regularly put him and his family members down through insults and demeaning comments.

[191] All of this conduct is as bad as anything that I have found that the Applicant or his family engaged in. However, there was no sense from the Respondent that she had done anything at all wrong in saying these things to the Applicant, either during the marriage or after it ended. The testimony that I have heard strongly suggests that the Respondent was very sensitive to any real or perceived insult that she might have been subject to but was completely unaware of either any inappropriate conduct she might have engaged in or the effect of that conduct on anyone else. These observations feed into the testimony of Dr. Young, which I will address in the next section.

c) Visible and Provable Illness

The Legal Test

[192] Establishing a visible and provable illness does not require expert medical evidence. It is satisfied when a physical or mental illness results from the conduct. Saadati v. Moorhead 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 2. Ahluwalia, para. 70.

[193] Both Saadati and Ahluwalia accept the standard set out in Mustapha v. Culligan of Canada Ltd 2008 SCC 27, [2008] 2 S.C.R. 114 at para. 9, as follows:

[9] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and Feldthusen, at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation, or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties, and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply, minor, and transient upsets do not constitute personal injury, and hence do not amount to damage.

[194] However, a Court is still required to weigh the evidence that is presented in assessing both whether the Respondent has a visible and provable illness and whether that illness is related to the conduct of the party or parties against whom damages are claimed. In this case, the Respondent did not provide any medical documentation from her treating physicians. It was her position that the Applicant or the Defendants could have gotten it. However, it is up to the Respondent to provide the evidence that proves her case. I now turn to the available evidence.

The Expert Evidence

[195] As I indicated above, I qualified Dr. Young as an expert in clinical and forensic psychology and psychological conditions. Dr. Young provided detailed testimony about the clinical interview, documentary review and testing that he performed on the Respondent. The testing that Dr. Young performed included administering the Minnesota Multiaxial Personality Inventory (“MMPI”) and the Personality Assessment Inventory (“the PAI”). Both tests include validity indices.

[196] Based on the results, Dr. Young determined that the testing was salient for two features. First, he confirmed that the test results showed an extreme amount of exaggeration on the part of the Respondent. She depicted herself as having severe symptoms, including symptoms of schizophrenia and psychosis, that would have resulted in her hospitalization. She also depicted herself as having an extreme level of anxiety.

[197] Dr. Young concluded that these symptoms were being exaggerated by the Respondent, in part because of the fact that her clinical presentation was inconsistent with these symptoms. Dr. Young testified that, if the data was taken at face value, the Respondent would have had to have been hospitalized. I note that her clinical presentation supports the evidence that she has functioned well in society since the separation. This includes the fact that she not only held down a job, but she was able to work on the side and obtain jobs of increasing pay and responsibility since the separation.

[198] Dr. Young testified that there were a number of reasons why people might exaggerate their symptoms. Those could include seeking sympathy and caring from other people, and as a cry for help. However, Dr. Young testified that the most common reason for exaggeration was secondary gain, which was to seek financial compensation. Dr. Young testified that this is often associated with legal actions, but that one cannot be certain what the motivations for exaggerating are.

[199] The second point that came out of the testing was that the Respondent exhibited a number of very problematic personality and character traits. These are traits that Dr. Young testified would have been present from the time that the Respondent was a child. They include a lot of hostility, anger and resentment towards others. Dr. Young testified that the Respondent would be “exquisitely sensitive” to any slights and put-downs to the point where the Respondent may not be able to see the reality of what has happened. As I noted at paragraph 191, these observations fit with the evidence that I heard during the testimony.

[200] Ultimately, Dr. Young concluded that the Respondent suffered from a mild adjustment disorder of the type that he commonly sees at separation and that this adjustment disorder would have been transitory. Dr. Young provided an addendum to his report, in which he addressed the fact that the Respondent was being treated for hypothyroidism. Dr. Young acknowledged that he was not an expert in physical medicine, but observed that psychologists often have to deal with the psychological effects of physical conditions. He noted that depression was often present with hypothyroidism, which meant that his diagnosis of a mild adjustment disorder at the time of separation might be affected by the hypothyroidism.

[201] I also noted that the Respondent had tendered the notes of a psychotherapist, a Mr. Amin Lakhani, to establish her claim that she was suffering from Depression, Anxiety and Post-Traumatic Stress disorder related symptoms. Mr. Lakhani duly confirmed that the Respondent was suffering from all three of these conditions.

[202] I do not have a resume or a Form 53 Acknowledgement of Expert’s Duty from Mr. Lakhani. All I know about his qualifications are what is set out in his report. He was, according to his resume, a Registered Psychotherapist who had a Bachelor of Medicine and a Bachelor of Surgery degree from the University of Karachi, graduating in 1988. His resume indicates that he is “an internationally trained Psychiatrist”, but there is no indication that he was qualified or registered as a psychiatrist in Ontario or in any other jurisdiction.

[203] In addition, Mr. Lakhani did not testify at trial because he had passed away in April of 2023. Both counsel for the Applicant and counsel for the remaining Defendants argued that Mr. Lakhani’s report should not be admitted, or should be given no weight. For the reasons set out at paragraph 43, I determined that the admissibility of this report should be addressed at the end of the proceedings.

[204] There is case law on the issue of whether a Court should consider an expert report from a witness who has died. Two decisions set out the law on this issue. They are Gaudet v. Grewal 2014 ONSC 3542 and Moore v. Getahun 2014 ONSC 237, aff’d 2015 ONCA 55, (2015) 124 O.R. (3d) 321).

[205] In those decisions, it is clear that the Court must consider the probative value of the medical evidence when weighed against the prejudicial effect of its admission or exclusion. In this case, there will be prejudice to the Applicant and the Defendants if the evidence is admitted, and prejudice to the Respondent if the evidence is excluded.

[206] However, it is not necessary to weigh the prejudice on each side of the admissibility question in this case, as the evidence of Mr. Lakhani is of such limited probative value that it should not be admitted at all.

[207] To support this conclusion, I start by noting Dr. Young also outlined his concerns with the report that Mr. Lakhani provided. Those concerns were as follows:

a) The nine tests done by Mr. Lakhani were all self-reporting tests. None of them contained anything like the validity indices in the MMPI or the PAI.

b) Mr. Lakhani’s title of an “assistant psychiatrist” was not something that was known in Ontario medicine.

c) Mr. Lakhani is a registered psychotherapist. As a result, he is not entitled to give diagnoses under the Regulated Health Professions Act 1991, S.O. 1991, Ch. 18.

d) Mr. Lakhani did not conduct a proper document review, as the only document he looked at was the Respondent’s drivers’ licence.

[208] I have concluded that Mr. Lakhani’s notes should not be given any weight in my deliberations. I have reached that conclusion for the following reasons:

a) Mr. Lakhani’s reports are based on the self-reporting of the Respondent. Her evidence is so completely unreliable as to render Mr. Lakhani’s reports unreliable.

b) On a related point, Mr. Lakhani’s notes make reference to the significant abuse that the Respondent suffered. I have made detailed factual findings concluding that this alleged abuse did not actually take place.

c) Mr. Lakhani did not perform any testing that had validity measures built into it. Instead, all of his testing was based on self-reporting from the Respondent. Based on Dr. Young’s evidence, I infer that validity testing at the time of Mr. Lakhani’s investigations would have revealed the same symptom exaggeration.

d) As noted by Dr. Young, Mr. Lakhani was not qualified in Ontario to offer the diagnoses that he offered.

e) Mr. Lakhani’s report exists in a vacuum. There is no medical evidence from the Respondent’s treating physicians that would even give context to the assertions that he made.

[209] I would note that I could not have been able to reach all of these conclusions without hearing the evidence from the trial, including the evidence of the Respondent. I would emphasize again that the request of the Defendants and the Applicant to have this evidence addressed by a voir dire would have consumed additional time and resources. Counsel should not have continued to pursue this issue during the course of the trial.

Conclusions- Provable Medical Illness

[210] When the evidence is reviewed, it is clear that any psychological illness that the Respondent is suffering from would be related to the personality and character traits that Dr. Young has observed that she has. The Respondent has failed to provide any information that would demonstrate a provable medical illness, and I conclude that she is unable to establish this element of the test either.

Issue #4- The Respondent’s Claim of an Interest in the Valley Ridge Property

[211] The Respondent has claimed that she had an interest in the Valley Ridge property. The nature of the Respondent’s claim drifted back and forth between a claim for a constructive trust over the property and some sort of leasehold/matrimonial property claim. None of these claims have any merit.

[212] I start with the trust claim. That has been dealt with at paragraphs 92 and following. Neither the Respondent nor the Applicant were making any payments that resulted in an unjust enrichment of Gurmeet or Devinder. Instead, the Applicant was assisting in defraying expenses for the Valley Ridge property where they were living. The Respondent was not making any contributions to these payments.

[213] This brings me to the claim of a tenancy. The Respondent argues that she was improperly removed from the Valley Ridge property on July 10th, 2019. She claims that she was a tenant in the property and entitled to protections in either the Residential Tenancies Act, 2006, S.O. 2006, c. 17 (“the RTA”) or the Commercial Tenancies Act, R.S.O. 1990, c. L.7 (“CTA”).

[214] The RTA can be very briefly dealt with. Section 5 (i) states:

(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located;

[215] In this case, the Respondent shared both a bathroom and a kitchen facility with the owners, Gurmeet and Devinder and their child, the Applicant. The RTA does not apply to any tenancy that might have existed in this case.

[216] This brings me to the question of whether this was a commercial tenancy. The CTA does not specifically address this type of situation, except to say that the CTA does not apply where the RTA applies.

[217] The Respondent did not explain how a tenancy had been created in this case. I have reviewed the CTA and the facts of this case. I see no basis to conclude that a tenancy of any kind was created in this case. The Respondent lived with her in-laws on the basis that she was married to the Applicant. When the relationship ended and the parties separated, the Respondent lost the right to live in the home that she shared with her in-laws. She had no right to remain there after the end of the relationship and was properly removed by the police.

[218] In any event, however, there are no damages that flow from this claim even if the Respondent had established the claim. The Respondent was able to live with a friend for a short period of time and was then able to find a place of her own to live.

[219] As a final matter, I note that the shifting nature of these claims were another problem with the Respondent’s positions in this case. The Respondent did not really commit to one specific position. It appeared to me that the Respondent was attempting to tailor her position for whatever argument would give her the most advantage in the litigation. It was another example of the reasons why I generally rejected the Respondent’s evidence.

Issue #5- The Applicant’s Claim for an Unequal Distribution of Property

[220] This claim can be very briefly dealt with. I have set out the test for a claim of unequal distribution of property at paragraph 100. The equalization payment in this case is less than $7,000.00 for a marriage of fourteen months. I see no factual or legal basis to support an unequal distribution of net family property in this case. This claim is dismissed.

Conclusion and Costs

[221] For the foregoing reasons, I am ordering as follows:

a) The Applicant shall pay an equalization payment of $6,534.50.

b) The Respondent’s claim for spousal support is dismissed.

c) The Respondent’s claims for other financial relief are dismissed.

d) The Applicant’s claim for an unequal distribution of family property is dismissed.

[222] The claims for intentional infliction of mental stress are dismissed as against the Applicant and all of the Defendants to the civil action.

[223] I ordered that the parties upload their costs outlines to CaseLines by February 9th, 2014. I can confirm that these were duly uploaded to CaseLines.

[224] The parties are encouraged to agree on the costs of this action. Failing agreement, the parties are to provide costs submissions of no more than three (3) single-spaced pages exclusive of bills of costs, offers to settle and case-law within twenty-one (21) days of the release of these reasons. The submissions are to include what each party was prepared to agree to for legal costs.

[225] Each party shall be permitted to file a reply to the other party’s costs submissions of no more than two (2) single-spaced pages, exclusive of case-law within fourteen (14) days after receiving the other side’s costs submissions.

[226] Costs submissions are to be both uploaded to CaseLines and provided to my judicial assistant by e-mail. She may be reached at Samantha.Alves@ontario.ca.

[227] The timetable for costs submissions cannot be extended, even on consent, without my leave. In the event that I do not receive costs submissions in accordance with the timetable set out above, there shall be no order as to costs.

[228] As Ms. Dhaliwal is self-represented, I am going to set out two principles in respect of costs submissions for her benefit. First, in terms of self-represented litigants, there are different principles that apply to claims from self-represented litigants. Those principles have been described in Fong v. Chan, as follows:

[26] I would also add that self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant who retains counsel. As the Chorley case, supra, recognized, all litigants suffer a loss of time through their involvement in the legal process. The self-represented litigant should not recover costs for the time and effort that any litigant would have to devote to the case. Costs should only be awarded to those lay litigants who can demonstrate that they devoted time and effort to do the work ordinarily done by a lawyer retained to conduct the litigation and that, as a result, they incurred an opportunity cost by forgoing remunerative activity. As the early Chancery rule recognized, a self-represented lay litigant should receive only a "moderate" or "reasonable" allowance for the loss of time devoted to preparing and presenting the case. This excludes routine awards on a per diem basis to litigants who would ordi narily be in attendance at court in any event. The trial judge is particularly well-placed to assess the appropriate allowance, if any, for a self-represented litigant, and accordingly, the trial judge should either fix the costs when making such an award or provide clear guidelines to the Assessment Officer as to the manner in which the costs are to be assessed.

[229] These principles have recently been applied in Benarroch v. Fred Tayar and Associates P.C., 2019 ONCA 228. I note that these principles apply to costs claims made by self-represented litigants. They do not apply to claims made by counsel. Those are covered by Rules 18 and 24 of the Family Law Rules.

[230] Second, the Applicant may argue that the Respondent acted in a bad faith manner in this case and that he should therefore be entitled to full indemnity costs. I would note that the test for full indemnity costs is very high. In that respect, I direct the parties attention to Jackson v. Mayerle, 2016 ONSC 1556.

[231] Providing this case-law to the parties is intended to assist them in framing their submissions. It should not be taken as providing a view, even on a preliminary basis, as to how the costs in this matter should be resolved.

LEMAY J. Released: March 19, 2024