COURT FILE NO.: FC-16-2570
DATE: 2024/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
REBECCA HAPPY
Applicant
– and –
WADIE NAROUZ
Respondent
Julie Gravelle, for the Applicant
Self-Represented, for the Respondent
HEARD: March 12, 2024
(In Ottawa)
reasons for decision on Summary judgment Motion
aUDET J.
[1] This is a summary judgement motion brought by the Applicant wife (“the wife”) seeking the following relief which was sought in her Application:
A divorce;
The equalization of the parties’ net family property;
Prejudgment interest; and
Costs.
[2] The Respondent husband (“the husband”) filed an Answer in this proceeding. In his Answer, he seeks the following relief:
Spousal support for himself;
The unequal division of the parties’ net family property; and
Costs.
[3] Although he did not file a cross-motion seeking these claims (by way of his own summary judgment motion), with the consent of the wife, all these issues will be addressed in this summary judgement motion.
FAMILY BACKGROUND
[4] The parties were married in France on July 20, 1991. They moved to Canada in December 1993 and separated on May 9, 2016. They have two children; Barbara and Sophia, both of whom are independent (they were both adults by the time the parties separated).
[5] At the time of their separation, the parties resided in the matrimonial home located at 73 Rita Avenue in Ottawa. The wife left the home on May 9, 2016 with police escort and the husband has remained in sole possession of the home since. On consent of both parties, the home was transferred to the husband’s sole name on or about September 2020, in accordance with the consent order of MacEachern J. made on July 6, 2020 (the “2020 Order”), in exchange for the payment of $188,500 and other terms. The husband continues to reside in that home to this day.
[6] At the time the motion was heard, the wife was 61 years old, and the husband was 64 years old.
SUMMARY JUDGEMENT IS APPROPRIATE IN THIS CASE
[7] In my view, summary judgement is a fair and expeditious means of achieving a fair result in this case. While I see no need to cite all of the relevant legislation, rules and legal principles applicable to summary judgement motions in this decision, I confirm that I am relying on r. 16 of the Family Law Rules, O.Reg. 114/99, as well as on the legal principles applicable to summary judgement motions as set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, and later summarized and expanded by Sherr J. in A.E.A v. F.A.H., 2015 ONCJ 339.
[8] The matter has been ongoing without resolution for eight years now. The disputed issues are purely financial. Many of the facts relevant to the issues in dispute are not contested, although some are. I find that this matter has been ongoing without final resolution as a result, principally, of the husband being self-represented, his lack of understanding of the legal procedure and applicable legal principles, and his chronic and ongoing failure to provide all the relevant and necessary disclosure allowing the parties’ claims to be properly ascertained by the wife and the court. There were several detailed orders made in this case requiring the parties – but more especially the husband – to provide full disclosure of all documents supporting their claims. On July 25, 2022, I made a detailed order requiring each party to provide significant disclosure and ordered that neither party was entitled to use at trial documents not served on the other party by September 30, 2022, unless the document could not have been provided before that date due to its nature (for instance, a tax return). Despite this, the husband provided no additional disclosure even when given one last opportunity to do so by the wife in March 2023 (at a time when the husband was represented by counsel).
[9] The husband’s failure to provide timely disclosure and to abide by basic rules of procedure is further illustrated by the fact that, although he was served with the wife’s summary judgment materials back in November 2023, and was reminded weeks before the motion hearing of his obligation to serve and file responding materials, his responding affidavit sworn March 6, 2024 was only served days before the summary judgement motion and filed with the court on the day of the hearing. On consent of the wife, I accepted the responding affidavit despite its lateness. The wife did not have an opportunity to reply, although most of the husband’s allegations continued to be the same and had been addressed by the wife in her affidavit in chief. She just wanted this case to be over, understandably. Without the consent of the wife, however, I would not have accepted the husband’s responding affidavit.
[10] I am of the view that there is no genuine issue requiring a trial in relation to the outstanding issues in this case because I can reach a fair and just determination on the merits, based on the evidence that has been provided by the parties in this motion. To the extent that much evidence is still missing from the husband to support some of his claims or to allow for a just determination of the wife’s claims, delaying this matter further – or forcing the parties to proceed to trial – will not result in any further (or better) evidence being provided. The evidence before me in the context of this summary judgment motion allows me to make the necessary findings of fact, to apply the law to the facts, and is a proportionate, more expeditious and less expensive means to achieve a just result.
EQUALIZATION
[11] The wife seeks an equalization payment in the amount of $46,982, plus $8,500 that the husband was ordered to pay in addition to any equalization payment he might owe, as per the 2020 Order.[^1] She also seeks an order continuing paragraphs 1, 2 and 6 of the 2020 Order which holds the matrimonial home as security for the equalization payment that will be owed to her. If the equalization payment is not then made, she seeks an order for the sale of the home.
[12] The husband seeks an unequal division of the parties’ net family property. The exact outcome that he seeks, however, is not clear. Based on his motion materials, it appears that he seeks an order that no equalization payment is owed to the wife, and that she is required to repay to him monies that she allegedly stole from him, or that he paid on her behalf post-separation.
[13] As reflected in the Net Family Property Statement (“NFP”) attached to these reasons as Schedule “A”, the value of many assets and debts relevant to the division of the parties’ net family property were not disputed. I will deal below with those that remain in dispute.
a) Husband’s interest in Canada 4287274
[14] The husband set up two corporations during the later years of the parties’ marriage with his business partner Louis Laroque. The first corporation was Canada 4287274, which owned three rental properties. The husband was listed as holding 49 percent of all issued shares in this corporation, and as the corporate secretary and treasurer since 2005. Foreclosure proceedings were started against the properties owned by this corporation in 2019, and they have since been re-possessed by the bank.
[15] The husband maintains that his business partner Louis Laroque passed away, but the wife has no personal knowledge of this, and the husband has provided no further details (such as a death certificate or even the date of his death) and no explanation (with back-up documentation) as to how this may have impacted his business interests.
[16] To date, the husband has disclosed only the corporate tax return for this corporation for the period of March 2015 to March 2016, and none of its financial statements. In a more recent NFP statement provided by him, and at the time of this summary judgement motion, the husband claimed that this company had a corporate debt of $114,764. He seeks to include this corporate debt in his NFP. No supporting documents were provided to support the corporate debt.
[17] For some time now, the husband has been taking the position that relevant disclosure related to this corporation was in his late partner’s possession and since he passed away, he has no ability to retrieve them. The husband was a shareholder and an officer of this corporation. I do not accept that he does not have access to these files.
[18] The wife is prepared to accept that this corporation had no value on the date of the parties’ separation. Given the complete lack of relevant disclosure with respect to this company, its net value and the respondent’s interest therein are set at zero.
b) Husband’s interest in Canada 4287282
[19] The second corporation set up by the husband and his business partner was Canada 4287282, which operates a pawn shop. The husband is listed as holding 49 percent of the issued shares of that corporation and as the corporate secretary and treasurer since 2005.
[20] The husband maintains that the value of his interest in that company at the date of the parties’ separation (and as of this day) should be one half of the value of the inventory that it owned (one half of $40,000). No business valuation was ever produced supporting this view.
[21] Corporate income tax returns and financial statements were produced by the husband for this company for the years 2016 to 2021. The wife noted that the husband’s position does not appear consistent with the corporation’s income tax return and financial statement at the valuation date. In the 2015 to 2016 corporate tax return, the inventory is set at $22,935, and the financial statement sets out an amount due to shareholders of $74,238. A debt due to a shareholder is an asset that needs to be listed in the shareholder’s NFP.
[22] The wife takes the position that, in the absence of a proper business valuation providing a different opinion, there should be an asset listed in Part 4(f) the husband’s NFP of at least $36,376.62 (being one half of the due to shareholder).
[23] However, to avoid the need for a trial over this issue, the wife is prepared to accept the husband’s position that his interest in this corporation was worth $20,000.
c) Wife’s interest in Happy Marketing Group
[24] For the first time in eight years of litigation, a few days prior to the hearing of this motion, the husband took the position that the wife’s interest in Happy Marketing Group (an online marketing business launched in 2008 by the wife as a sole proprietor) was worth $90,000.
[25] The wife states that she earned money for the first time with this website in 2021, reporting $6,865 in business income, $5,470 in business expenses, for a net business income of $1,395. It is not incorporated, owns no assets, has no debts, and does not employ anyone. The wife has produced all her income tax returns and Notices of Assessment for the relevant years, back to at least 2016. Because this business is a sole proprietorship, its business income and expenses are listed in detail in her personal tax returns (Statement of Business Income and Expenses) and were made available to the husband. They do not support the husband’s recent position that the wife’s business is worth $90,000.
[26] The husband has provided no other evidence supporting his view that the wife’s interest in this business had any value in 2016, or at any point in time. Additionally, I find that the husband is not able to raise such a claim for the first time at this stage in the proceeding. I find that the wife’s interest in this business at the valuation date was nil.
d) Loan associated with the wife’s Toyota Yaris
[27] The Toyota Yaris was and continues to be registered in the wife’s sole name. At the time of the parties’ separation, the balance owing on the Toyota financing was $7,000 and the market value of the vehicle was $8,000. The wife put this exact statement at paragraph 21 of her request to admit and the husband agreed to this statement in his response.
[28] For reasons unknown to me, the husband, during this motion, was disputing these values. I find that the wife owed $7,000 on the date of the parties’ separation in relation to her purchase of the Toyota Yaris, which was then worth $8,000.
e) Money held on the date of marriage
[29] The husband maintains that he had $43,000 in a bank account in Egypt on the day of his marriage. He has provided no disclosure other than a simple page that appears to be a cut and pasted excerpt from another document, it is illegible, and in Arabic. The husband was previously ordered to provide details, including banking statements on the date of marriage, translated in English, showing the name of the bank, account number, and account holder or other information supporting his position. He did not.
[30] I find that the husband has not met his burden to prove on a balance of probabilities that he had this amount of money in a bank account on the day of the parties’ wedding.
f) Personal injury claim
[31] From 1993 onwards, the husband was employed in the field of social work at L’Arche Ottawa. On or about 2000, he transferred his position to the Association pour l’intégration sociale d’Ottawa. In 2003, he was hit by a chair at work and suffered a rotator cuff injury. He underwent treatment and surgeries but for various reasons, he lost his employment.
[32] The husband pursued a claim against Desjardins Financial for his work-related accident. In early 2016, he settled his claim and after paying his lawyers and disbursements, he received the net sum of $167,381 ($240,000 as a settlement, plus costs in the amount of $115,000, minus legal fees and source deductions). The settlement funds were paid to him on March 9, 2016, exactly three months before the parties separated. Of that amount, the husband claimed $80,000 for taxable lost wages on his 2016 income tax return. On valuation date, there remained approximately $141,000 from these funds, which he held in his RBC savings account.
[33] In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, the Court of Appeal for Ontario held that damages received in a personal injury settlement, including those paid on account of lost income, are included in net family property unless specifically excluded under the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”). Section 4(2)3 of the FLA lists specific exclusions from net family property, but damages for lost income are not among them.
[34] In his NFP, up until the date this motion was heard, the husband had taken the position that he was entitled to an exclusion in the amount of $67,573. The wife does not oppose this as she concedes that a large part of the husband’s settlement were damages for personal injuries, and she did not wish to make this a triable issue. Also, this amount corresponds to what was left in the husband’s savings account on valuation date after deducting $80,000 for lost wages.
[35] During the motion before me, however, the husband sought to exclude the entire amount received on the basis that the entire settlement constituted damages for personal injuries (despite holding a different position throughout this proceeding). Other than the closing letter received from his personal injury lawyer on March 9, 2016, which does not provide any information as to the various heads of damages received, only the final settlement agreed upon is shown, the husband has not produced any evidence that would support his claim that the entire amount paid (other than costs) constituted damages for personal injuries. Indeed, the fact that $80,000 were claimed as “lost wages” in the husband’s 2016 income tax return completely contradicts the husband’s evidence on this issue.
[36] The husband’s evidence in this motion is that he claimed $80,000 as lost wages by mistake which was corrected in recent years. To support his position, he adduced his Notices of Reassessment for the years 2018, 2019 and 2020. While the 2018 and 2019 notices reflect (roughly) an important reduction in his income for those years, they both state that the Canada Revenue Agency has accepted to “modify your dividends” (emphasis added), based on the new information provided (“Nous avons accepté votre demande de modifier vos dividends”). For the year 2020, the Notice of Reassessment reduced the husband’s “gross business income” by $60,000. None of these documents establish that the portion of the husband’s income in 2016 attributable to lost wages has been changed in any way.
[37] It was open to the husband to provide better disclosure establishing the various heads of compensation received as a settlement with Desjardins Financial in 2016. He was ordered to provide that disclosure many times but has failed to do so.
[38] I find that the husband is entitled to an exclusion in the amount of $67,573 on his NFP representing the balance of the settlement funds received by him for his personal injuries, and which remained in his bank account on the date of the parties’ separation.
g) Jewellery
[39] The husband alleges that when the wife left the matrimonial home on May 9, 2016, she changed the combination to the parties’ safe and he was unable to open the safe until one of his friends was able to access its content eight years later, in June 2023. He claims that it is at that time that he discovered the wife “had taken his 21-carat gold chain, 115 grams, having a value of $15,000”. He also claims that the safe contained “other jewellery belonging to both parties including jewellery that he had purchased from the wife’s sister”, which were removed and kept by the wife. As a result, he wants to add a $15,000 value to the wife for the gold chain and an unidentified amount for the rest of the jewellery.
[40] There is no evidence before me as to the existence (at any time) of this gold chain and other jewellery, or their alleged value, other than the husband’s bald allegations as stated above. The husband has not met his burden to convince me on a balance of probabilities that this jewellery existed, that the wife retained it, or that it was worth $15,000 or more.
[41] Further, it is not disputed that the husband retained the entire content of the matrimonial home after the wife left the home on May 9, 2016 (she fled the home after a marital dispute and never returned). The wife is not claiming her share of the value of such content. If I had found the husband’s allegations with regards to the jewellery credible, which I do not, I would have attributed to the husband’s NFP an equivalent amount on account of the household content that he kept.
h) Conclusion on the equalization
[42] In light of the above, I conclude that the wife is entitled to an equalization payment in the amount of $46,180, plus $8,500 (as per MacEachern J.’s order).
UNEQUAL DIVISION OF NET FAMILY PROPERTY
[43] Section 5(6) of the FLA provides that the court may award a spouse an amount that is more or less than half the difference between the net value of the parties’ family property if the court is of the opinion that equalizing net family properties would be unconscionable having regard to several criteria which are set out in the subsection. For instance, when it is found that the spouse has incurred debts or depleted their property recklessly, intentionally or in bad faith. The threshold that must be met is very high: Berdette v. Berdette (1991), 1991 CanLII 7061 (ON CA), 47 O.A.C. 345. “Correcting or adjusting for bad decisions and financial mismanagement within a marriage is not authorized under s. 5(6) [of the FLA]. Barring unconscionable conduct relating to the family property or an unconscionable result, s. 5(6) [of the FLA] is not engaged” (emphasis added): Maguire v. Stephenson, 2022 ONSC 6656, at para. 291.
[44] The husband’s claim for an unequal division of the parties’ net family property in his favour is based on his allegation that the wife, during the marriage, diverted approximately $139,000 from joint accounts, lines of credit, and credit cards to fund her online marketing business Happy Marketing Group. He also alleges that she emptied his RRSP account in 2014, which contained $13,000, as well as the entire joint TD Wealth account containing $5,488.
[45] On a summary judgment motion, the respondent party has an obligation to put their best foot forward: Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281, at para. 24. To defeat the motion, the responding party must present some evidence demonstrating that there is a genuine issue for trial. A party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. While the onus remains on the moving party to show that there is no genuine issue for trial, the responding party must “lead trump or risk losing”: Pizza Pizza Ltd. v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225 (Gen. Div.); 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 CanLII 1686 (ON CA), 21 O.R. (3d) 547 (C.A.).
[46] To support his claims above, the husband produced various spreadsheets that he created himself listing the total of expenses he claims the wife spent on her online business during the years 2009 to 2016. He also produced “a sample” of the detailed expenses included in his spreadsheets, namely, monthly statements of the parties’ joint Visa RBC credit card for the period of January 2016 to August 2016, which indeed show that the wife was paying a variety of business expenses with the parties’ joint card during those months.
[47] The husband has produced no evidence supporting his claim that the wife withdrew $13,000 from his RRSP.
[48] In her affidavit, the wife explained that following the husband’s injury in 2003, and his subsequent dismissal from his employment, he struggled with alcohol addiction and prescription drugs and was charged twice for driving under the influence, losing his driver’s licence prior to the parties’ separation. It is after he lost his employment that he started his business endeavours with his business partner, including the pawn shop. She explains that in 2005, the parties refinanced their matrimonial home (for $100,000) to support the husband’s business endeavours.
[49] The wife also explains that during the last few years of the parties’ marriage, she took an interest in the field of marketing. She registered for some online courses and workshops. She says that from her perspective, the marriage was not in a good place, and she sought to better herself and her life. She cashed in all her RRSPs during those years and deposited every single pay from her employment into the joint account for the family’s needs and for her own education. She admits that she spent some money on her education and online business, however, she says that this was not excessive nor done in secret, and it started back in 2008. Over many years during the parties’ marriage and following their separation, the wife pursued her online marketing endeavours part-time hoping to earn extra income (she was only earning employment income in the range of $35,000 in the later years of the marriage). She indicates that every single purchase she ever made was from the parties’ joint account and joint credit card. As such, the husband was fully aware of her spending, and never complained about it until the parties’ separated.
[50] The wife’s evidence is that the money contained in the TD Wealth account was money that the parties saved up for their children’s education. She says that the amount of $5,488.32 contained in the account on valuation date was paid in full to the parties’ daughter, Sophia, on July 9, 2018 for her studies. This was confirmed by the parties’ financial advisor by way of an email dated March 23, 2022.
[51] The wife confirmed that she contributed to an RRSP account with TD Wealth during the marriage but explains that she cashed in the entire amount during the marriage to support the family’s needs, especially when the husband was struggling with his health. She produced the statement confirming that by September 9, 2014 (two years before the separation), there was no money left in that account.
[52] Considering the above, the husband has fallen short of establishing a claim for an unequal division of the parties’ NFP. His claim, therefore, is dismissed.
[53] The husband also claims that post-separation, he has assumed the following joint expenses on behalf of both parties, and that the wife owes him one half of all these payments:
The mortgage;
Home insurance;
Joint life insurance;
Line of credit with RBC; and
Visa RBC.
[54] This claim should have been framed as one for post-separation adjustments, not for an unequal division of the NFP as these payments were made after the date of separation.
[55] The Visa RBC was in the husband’s sole name on the valuation date, and as such is a debt that is listed in his NFP and for which he gets a deduction. No adjustment is required in that regard.
[56] As for the expenses related to the matrimonial home, the husband has retained exclusive possession of the jointly owned property from the date the parties separated until it was finally transferred to him on consent by virtue of MacEachern J.’s order in 2020. On July 3, 2018, Doyle J. had ordered the sale of the home, but due to the husband’s failure to cooperate, it was never sold. This is what led the wife to eventually consent to an order, two years later, for its transfer to the husband on the following terms:
The Respondent will purchase the Applicant’s one-half interest in the matrimonial home located at 73 Rita Avenue in Ottawa, Ontario based upon a market value of $560,000. The Respondent will pay the joint line of credit and the joint credit card through his refinance of the home. He will pay the Applicant the amount of $188,500.00. This is based upon the mortgage owing as of today of approximately $170,000. If the amount owing on the mortgage is different, the parties shall make the necessary adjustment.… The joint credit card and line of credit shall be closed and/or the Applicant’s name removed.
[57] Both parties were represented by counsel at the time they agreed to this order. It is clear that they put their minds to the financial benefits/costs associated with the fact that the husband had made all home-related payments since the date of the parties’ separation. Even if they had not, the husband’s claim for the payment of one half of all expenses related to the matrimonial home is easily countered by the wife’s entitlement to occupational rent during those years (which was added and preserved by MacEachern J.’s order), as she did not benefit from the use of her own joint property.
[58] This claim by the husband is therefore dismissed.
[59] The husband also claims that he paid the wife’s car loan payments from the date of separation until September 2019, totalling $4,932, as well as the monthly premiums on the parties’ joint life insurance (totalling $16,454, for which he seeks $8,227 from the wife), and the wife’s car insurance payments ($4,932).
[60] The difficulty with these claims is that despite being ordered in 2022 to produce back up documentation confirming that he made these payments, the only evidence adduced by the husband is an Excel spreadsheet that he prepared himself, without providing back up documents.
[61] The wife explained that despite her many requests post-separation, the husband refused to allow their broker to separate the joint life insurance policy and eventually, she was able to have it cancelled. Given the husband’s refusal to separate the policy, he has only himself to blame for having had to continue making those payments.
[62] The husband’s claims for post-separation adjustments are hereby dismissed due to his failure to produce and adduce admissible and/or satisfactory evidence supporting them.
SPOUSAL SUPPORT
[63] The husband seeks spousal support retroactive to the date of the parties’ separation.
[64] The parties were married for twenty-five years and had two children together. The wife has been employed by L’Arche Ottawa since 1994. L’Arche is an international federation of faith-based communities, creating homes and day programs with people who have developmental disabilities. The wife is a community life coordinator and does part developmental social work. Her income for the three years leading to the parties’ separation and since then was as follows;
2013: $34,874;
2014: $37,747;
2015: $36,424;
2016: $33,983;
2017: $44,196;
2018: $46,462;
2019: $45,364;
2020: $45,238;
2021: $37,688;
2022: $47,167;
2023: $37,829.[^2].
[65] As stated earlier, the husband was employed in the field of social work until he suffered a workplace injury and his employment was subsequently terminated. Beginning in 2005, the husband became a shareholder in two corporations and transitioned from social work to being an entrepreneur. One of these businesses owned income-producing real estate, the purchase of which was financed in part by remortgaging the matrimonial home, and the other one operated a pawn shop which the husband continues to operate to this day despite his business partner’s passing.
[66] The husband took the position in these proceedings that his income is $0 and that he has survived only through loans from friends and family. Despite many court orders requiring him to disclose evidence of these alleged loans, he has provided none.
[67] The wife’s evidence is that since purchasing his business in 2005, the husband always had large sums of cash on his person and would mostly make purchases in cash, including groceries, gas, and other kinds of store purchases.
[68] Despite making a claim for spousal support, and being ordered to disclose many times, the husband has not provided all the documents relevant to establishing his true income for support purposes, including – notably – some of his tax returns. This is what we know of his income since the year the parties’ separated:
2017: no disclosure;
2018: initial tax return produced, $45,240; Notice of Reassessment issued in 2023, $7,500 (no explanation provided for the reduction);
2019: initial tax return produced, $49,450.00; Notice of Reassessment issued in 2023, $7,500;
2020: $85,000; part of a Notice of Reassessment issued in October 2023 shows a reduction in gross business income from $69,000 to $6,000 (no explanation provided for the reduction);
2021: no disclosure;
2022: disclosed for the first time on the day of the motion, $32,197, comprising of CPP and “other income”.[^3]
[69] Despite the above, it is not disputed that the husband has been able to maintain his home (the matrimonial home) since the parties’ separated in 2016 and to this day. On his mortgage application to purchase the wife’s interest in the home in 2020, he declared an income of $59,745. In 2022, the husband renewed his mortgage. According to his financial statement, his monthly mortgage payments (alone) are $3,833.45, and his mortgage is in good standing. In the eight years that this litigation lasted, the husband has never brought a motion to obtain temporary spousal support.
[70] I conclude that the husband’s income is at least equal to the wife’s income over the years since they separated if not more. As a result, no spousal support is owning by the wife to the husband, regardless of entitlement.
[71] The husband’s claim for spousal support is dismissed.
OTHER ISSUES
[72] In accordance with MacEachern J.’s 2020 consent order, the joint RBC line of credit and Visa accounts were to be paid off and closed. As a result of misunderstandings and a complete lack of ability to communicate, the parties have been unable to get this done. The husband confirms that the line of credit and Visa card were paid off by him as required by MacEachern J.’s order, but after the closing of the transfer of the matrimonial home and due to the parties’ inability to close these accounts, he has had to resort to these credit facilities to pay expenses. He acknowledges that any money currently owing on the line of credit and visa card are his own and that the wife is not liable to repay them.
[73] The parties shall immediately take all necessary steps to attend the bank and sign all documents necessary to have the wife’s name removed from these accounts. This shall be done within ten days of receiving this decision.
[74] I am prepared to order pre-judgement interest on the equalization payment owing from the date the matrimonial home was transferred to the husband to this day, but not for the years before that. In my view, the parties share responsibility for not bringing this matter to final completion earlier.
DIVORCE
[75] I am prepared to grant the divorce; however, I do not have an Affidavit of Divorce or a copy of the Marriage Certificate. These can be forwarded to my attention and a further endorsement will be made at that time in relation to the divorce.
ORDER
[76] For the reasons set out above, I make the following final order:
There shall be no spousal support owed by either party to the other.
The Respondent husband shall pay to the Applicant wife an equalization payment in the amount of $46,180.
The Respondent husband continues to be required to pay the additional amount of $8,500 to the Applicant wife in accordance with the Order of Justice MacEachern dated July 6, 2020.
The Respondent husband shall pay the final amount of $54,680 ($46,180 + $8,500) within 60 days, failing which the home located at 73 Rita Avenue shall be listed for sale and the amount owed to the Applicant wife shall be paid to her directly from the proceeds from its sale.
If the Respondent husband does not cooperate with the sale of the home, the wife is free to bring a motion seeking directions for its sale.
COSTS
[77] The wife is successful on this motion. If the parties are unable to agree on costs, I will accept written submissions on costs not exceeding five (5) pages, double-spaced, not including Bills of Costs and Offers to Settle, in accordance with the following timelines:
The Applicant wife to serve and file by June 7, 2024;
The Respondent husband to serve and file by June 21, 2024; and
The Applicant wife’s brief reply, if any, to be served and filed by June 28, 2024.
Madam Justice Julie Audet
Released: May 27, 2024
Schedule “A”: Net Family Property Statement
ONTARIO
Court File Number
(Name of Court)
at
Form 13B: Net Family Property Statement
(Court office address)
Applicant(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Rebecca Happy
Julie Gravelle
Respondent(s)
Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any).
Wadie Narouz
Self Represented
My name is (full legal name)
The valuation date for the following material is (date)
May 9, 2016
The date of marriage is (date)
July 20, 1991
(Complete the tables by filling in the columns for both parties, showing your assets, debts, etc. and those of your spouse)
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND
| Nature & Type of Ownership (State percentage interest) | Address of Property | APPLICANT | RESPONDENT |
|---|---|---|---|
| Matrimonial Home | 73 Rita Avenue, Ottawa (as per MacEachern J., net equity in the home set at $370,000) | $188,500.00 | $188,500.00 |
| 15. Totals: Value of Land | $188,500.00 | $188,500.00 |
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
| Item | Description | APPLICANT | RESPONDENT |
|---|---|---|---|
| Household goods & furniture | |||
| Cars, boats, vehicles | Toyota Yaris | $8,000.00 | |
| Jewellery, art, electronics, tools, sports & hobby, equipment | |||
| Other special items | |||
| 16. Totals: Value of General Household Items and Vehicles | $8,000.00 | $0.00 |
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
| Category (Savings, Checking, GIC, RRSP, Pensions, etc.) | Institution | Account Number | APPLICANT | RESPONDENT |
|---|---|---|---|---|
| Checking (joint) | PC-Simplii Financial | XXX608 | ($200.00) | ($200.00) |
| Checking (sole) | Simplii Financial | XXX337 | $6.63 | |
| Checking (joint) | RBC | XXX8300 | $620.10 | $620.10 |
| Savings (sole) | RBC | XXX1110 | $141,000.00 | |
| PSE (joint) | TD Wealth (paid out to parties’ child for studies post-separation) | XXX030V | $2,744.16 | $2,744.16 |
| 17. Totals: Value of Accounts And Savings | $3,170.89 | $144,164.26 |
PART 4(d): LIFE AND DISABILITY INSURANCE
| Company, Type & Policy No. | Owner | Beneficiary | Face Amount ($) | APPLICANT | RESPONDENT |
|---|---|---|---|---|---|
| 18. Totals: Cash Surrender Value Of Insurance Policies | $0.00 | $0.00 |
PART 4(e): BUSINESS INTERESTS
| Name of Firm or Company | Interests | APPLICANT | RESPONDENT |
|---|---|---|---|
| Canada 4287274 | Husband 49% interest | $0.00 | |
| Canada 4287282 | Husband 49% interest | $20,000.00 | |
| Happy Marketing Group | Wife’s sole proprietorship | $0.00 | |
| 19. Totals: Value Of Business Interests | $0.00 | $20,000.00 |
PART 4(f): MONEY OWED TO YOU
| Details | APPLICANT | RESPONDENT |
|---|---|---|
| 20. Totals: Money Owed To You | $0.00 | $0.00 |
PART 4(g): OTHER PROPERTY
| Category | Details | APPLICANT | RESPONDENT |
|---|---|---|---|
| 21. Totals: Value Of Other Property | $0.00 | $0.00 |
| APPLICANT | RESPONDENT | |
|---|---|---|
| 22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21]) | $199,670.89 | $352,664.26 |
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
| Category | Details | APPLICANT | RESPONDENT |
|---|---|---|---|
| Credit card | PC Mastercard | $1,321.39 | |
| Credit card (joint) | RBC visa | $222.48 | |
| Car loan | Bank of Montreal | $7,000.00 | |
| RBC line of credit (joint) | Account no. XXX001 | $6,656.00 | $6,656.00 |
| Credit card | RBC visa | $1,605.07 | |
| 23. Totals: Debts And Other Liabilities, (TOTAL 2) | $15,199.87 | $8,261.07 |
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
| Category and Details | APPLICANT | RESPONDENT |
|---|---|---|
| Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation). | ||
| General household items and vehicles | ||
| Bank accounts and savings | ||
| Life and disability insurance | ||
| Business interests | ||
| Money owed to you | ||
| Other property | ||
| 3(a) TOTAL OF PROPERTY ITEMS | $0.00 | $0.00 |
| Debts and other liabilities (Specify) | ||
| 3(b) TOTAL OF DEBTS ITEMS | $0.00 | $0.00 |
| 24. NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3) | $0.00 | $0.00 |
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF "FAMILY LAW ACT"
| Item | APPLICANT | RESPONDENT |
|---|---|---|
| Gift or inheritance from third person | ||
| Income from property expressly excluded by donor/testator | ||
| Damages and settlements for personal injuries, etc. | $67,573.00 | |
| Life insurance proceeds | ||
| Traced property | ||
| Excluded property by spousal agreement | ||
| Other Excluded Property | ||
| 26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4) | $0.00 | $67,573.00 |
| APPLICANT | RESPONDENT | |
|---|---|---|
| TOTAL 2: Debts and Other Liabilities (item 23) | $15,199.87 | $8,261.07 |
| TOTAL 3: Value of Property Owned on the Date of Marriage (item 24) | $0.00 | $0.00 |
| TOTAL 4: Value of Excluded Property (item 26) | $0.00 | $67,573.00 |
| TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4) | $15,199.87 | $75,834.07 |
| TOTAL 1: Value of Property Owned on Valuation Date (item 22) | $199,670.89 | $352,664.26 |
| TOTAL 5: (from above) | $15,199.87 | $75,834.07 |
| TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5) | $184,471.02 | $276,830.19 |
EQUALIZATION PAYMENTS
| Applicant Pays Respondent | Respondent Pays Applicant |
|---|---|
| $0.00 | $46,179.59 |
Signature
Date of signature
COURT FILE NO.: FC-16-2570
DATE: 2024/05/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
REBECCA HAPPY
Applicant
– and –
WADIE NAROUZ
Respondent
reasons for decision on summary judgement motion
Madam Justice J. Audet
Released: May 27, 2024
[^1]: In exchange for the transfer of the home into his sole name, the husband agreed to pay $188,500 to the wife but he was short $8,500. The wife agreed to proceed with the transfer nonetheless, but the court order confirms that this is an outstanding debt in the amount of $8,500 and the former matrimonial home continues to act as security for this debt.
[^2]: These amounts were taken out of the wife’s affidavit. Although she filed a duly completed and sworn financial statement for this motion, the actual income tax returns were not provided (other than 2022). As a result, I am not able to ascertain whether this income includes net business income (which may also be a deduction which decreases her other income if expenses exceeded income in any given year). The husband did not file any of her income tax returns to support his position that the wife earns significant income through her business.
[^3]: The husband did not file a duly completed, sworn financial statement for the purpose of this motion, nor did he adduce any income tax return for the relevant years. These amounts were taken out of the wife’s affidavits and were not disputed by the husband. I have no idea what the nature of the husband’s income was for those years.