COURT FILE NO.: FS-23-45784

DATE: 2024-10-07

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Syed Mahabub Zunnurain

Michael Tweyman and Celeste Van Ameringen, Applicant’s Lawyers

Applicant

• and -

Sarahat Salma Chowdhury

David Tobin and Amruta Ponkshe, Respondent’s Lawyers

Respondent

HEARD: April 2-12 and 26, 2024

AMENDED REASONS FOR JUDGMENT

The Honourable Justice Ranjan K. Agarwal

I. INTRODUCTION

A. Introduction

1Syed Mahabub Zunnurain and the respondent Sarahat Salma Chowdhury seemed to have, from outward appearances, a storybook life. Syed is a self-made man: he established a successful garment brokerage business in Bangladesh despite no family wealth and little formal education. Sarahat’s family faced extreme violence when she was a child—she overcame this trauma to obtain two advanced business degrees, and now has a successful career of her own.

2Syed and Sarahat, who were childhood sweethearts, married in June 2003. They had four children over the next 10 years. They were, by any measure, wealthy: a house in Dhaka’s diplomatic enclave, household staff, including housekeepers, caregivers, and drivers, and family trips to Europe, the Middle East, Canada, and Southeast Asia. In 2015, they moved to Australia, where they owned and operated two of Melbourne’s most storied eateries. Their children went to Melbourne’s top private school, and they continued to employ household staff. In May 2019, Syed, Sarahat, and their children relocated to Canada, intending to become citizens. Syed and Sarahat invested in real estate, Sarahat got a job with a bank, and their children excelled in school, continuing the family’s social and economic rise.

3But these outward trappings hid a homelife marked by abuse, violence, intimidation, and fear, and allegations of infidelity, rape, extortion, and coercive control. In February 2020, Syed beat Sarahat—he was eventually convicted of assault and failure to comply with a release order. In September 2020, the parties finally separated. In 2022, Syed’s and Sarahat’s lawyers negotiated a settlement. But, at the 11th hour, Syed claimed that Sarahat had been pressuring him throughout the negotiations to accept an unfair settlement under threat of deportation and more criminal charges. The agreement was never signed.

4In January 2023, Syed started this proceeding. Despite these dark skies, there has been one silver lining—just before trial, Syed and Sarahat settled a parenting order, leaving only their financial claims for resolution at trial. That said, the financial issues are complicated. Unsurprising given their wealth, Syed and Sarahat had complex financial arrangements—multiple bank accounts, investments, gold jewellery, and real property in four countries on three continents—that aren’t easy to untangle.

B. Overview

5The parties’ separation and the settlement of the parenting order raise 14 issues to be decided:

Enforceability of the Separation Agreement

(a) is the settlement agreement enforceable even though it wasn’t signed?

(b) if it’s enforceable, should it be set aside as unfair?

Sale of the Matrimonial Home

(c) does Syed have a beneficial interest in the matrimonial home?

Equalization

(d) do Syed’s assets include his share of a plot of land in Bangladesh?

(e) do Syed’s assets include proceeds from the sale of properties in Australia?

(f) who owns the gold jewellery in Sarahat’s safety deposit box?

(g) what is the value of the Work Field businesses’ assets?

(h) is Sarahat liable for Work Field’s debts?

(i) are the funds in Sarahat’s Bangladeshi bank accounts excluded as gifts?

(j) what is the amount of any equalization payment?

Support

(k) what order should the court make for child support?

(l) what order should the court make for spousal support?

Tort Claims

(m) did Sarahat wrongfully discard Syed’s possessions or wrongfully prevent him from selling a property in Bangladesh?

(n) is Syed liable for abusing Sarahat or violating her privacy?

6For the reasons below, I order, adjudge, or declare as follows:

(a) the settlement agreement is void and unenforceable because the statute requires that it be signed;

(b) in the alternative, there was no unfairness in the making of the agreement;

(c) Syed is a beneficial owner of one-half interest in the matrimonial home—the home shall be sold per the parties’ agreement;

(d) Syed was the beneficial owner of half of the Bashundhara plot on the valuation date, which had a value of C$985,076.14;

(e) the value of the property that Sarahat and Syed owned on the valuation date includes $470,867.19 each in the proceeds from the sale of the Australian properties;

(f) the value of the property that Sarahat and Syed owned on the valuation date includes $136,389.66 each in gold jewellery—the jewellery (either all of it or what remains) shall be divided equally between Sarahat and Syed;

(g) the value of Work Field on the valuation date was C$4,591,316.72;

(h) Sarahat is liable for Work Field’s debts—as a result, on the valuation date, Syed has a debt of $10,999,245.35 and Sarahat has a debt of $5,499,622,67;

(i) the funds in Sarahat’s Bangladeshi bank accounts are excluded as gifts;

(j) neither party shall pay an equalization payment because they each have a negative net family property;

(k) Syed shall pay $1362 in monthly table child support, along with $157,552.09 in retroactive child support (to be set off against Syed’s share of money in Sarahat’s bank account in the amount of $109,583.06);

(l) there shall be no order for spousal support;

(m) Sarahat didn’t convert either Syed’s stuff or the deed to the Amicus property; and

(n) Syed is liable for assaulting, battering, and inflicting emotional stress on Sarahat in the amount of $200,000.

7There’s no storybook ending here. At bottom, this decision attempts to unravel the parties’ financial history, in the hopes that doing so might finally bring closure for them, and their children.

II. BACKGROUND

A. Background Facts

1. The Parties

8Syed and Sarahat started a relationship in 1994; they married in June 2003. They separated on September 4, 2020. There are four children of the marriage: AA (age 19), BB (age 16), CC (age 12), and DD (age 10).¹

9Syed has an undergraduate degree from National University, Bangladesh. He started working in the garment industry when he was 17. Sarahat has an MBA from East West University in Bangladesh and a Master of Applied Finance degree from Monash University. In Bangladesh and Australia, she worked as a university lecturer and in the family business.

2. The Parties’ Life in Bangladesh

10In 1998, Syed established Trade Founders Ltd., which brokered transactions between clothing manufacturers and international buyers. Syed’s siblings also worked in the business. He was the sole breadwinner for his immediate and extended family.

11In 2006, Syed partnered with one of his customers to start Luke Dhaka Co. Ltd., a clothing manufacturer that serviced mostly European brands. To avoid any conflicts of interest, Syed stopped operating Trade Founders. He wound it up in 2014.

12Syed also started Work Field Knit Wears, Work Field Fashion Wears, and Print Asia Limited in 2006. These were also clothing manufacturers. Work Field Knit Wears and Work Field Fashion Wears were sole proprietorships owned by Syed. He had a 50 percent interest in Print Asia; the other 50 percent was owned by a Luke Dhaka affiliate. Work Field operated from a factory in Gazipur, Bangladesh. Syed says that he bought the land for the factory in 2010 for around C$300,000, and the factory was sold in 2022 for C$4.6m.² Syed’s brothers all worked for Work Field in management roles. At its largest, Work Field had 3000 employees and an export capacity of US$1.8 million.

13In 2010, the parties purchased several plots of land in Bashundhara, a residential development in Dhaka. The land was purchased using funds from Work Field. At some point, Southeast Bank required that Syed provide the land as collateral for the company’s loans because of Work Field’s ongoing financial challenges. Syed transferred title for one of the plots to Sarahat in July 2019. As of the separation date, the land was still registered in the developer’s name, but Sarahat was identified as the purchaser. Sarahat sold the land in September 2022 for Tk7.2 million.

14In April 2013, Rana Plaza, an eight-story commercial building, collapsed, killing 1134 garment workers. Following this tragedy, many of Luke Dhaka’s clients stopped doing business in Bangladesh because of the reputational risk. Luke Dhaka discontinued operations in 2018.

15In 2014, Syed registered Work Field Knit Wears Limited. Syed and Sarahat owned the company equally. Sarahat was Chairman; Syed was Managing Director. The company didn’t have any operations or assets.

16That same year, the parties bought an apartment in Amicus Mansion ‘de Mansoor, Dhaka’s diplomatic enclave. This house was their family residence before they moved to Australia. The family lived lavishly: they had several housekeepers, a driver, and two homes. Syed has received several offers to buy the apartment (up to Tk40,000,000), but can’t sell it without the original deed (which is in Sarahat’s possession). In 2023, Work Field’s suppliers placed a lien or caution on the property, meaning that Syed can’t sell it in any event.

17The Work Field businesses stopped operating in 2019. The only financial statements introduced into evidence show that Work Field Knit Wears was profitable in 2017 (Tk14,873,350), but lost money after that. Work Field owes significant debts to its banks. As of March 2022, its total debt was Tk1.5 billion. In July 2022, City Bank sold Work Field’s assets for Tk370 million. Syed has sued City Bank for undervaluing these assets. City Bank has sued Syed, Work Field Knit Wears, Work Field Fashion, and Print Asia for the outstanding loans.

3. Move to Australia

18The parties and their children immigrated to Australia in 2015. They continued to engage housekeepers and a driver, and the children were enrolled in a top Australian private school. Sarahat enrolled in a postgraduate program at Monash University.

19In Australia, Syed and Sarah equally owned and operated Six Waves Pty. Ltd. They were both directors of Six Waves. Through Six Waves, they owned or operated Zio’s Restaurant, Richmond Hill Café & Larder, and Elsewhere Fashion Distributor Pty. Ltd. These business stopped operating in 2018 or 2019.

20Six Waves also owned a warehouse, on Atlantic Drive, in Keysborough, to store Elsewhere’s inventory. Six Waves bought the building for A$700,000 using funds from Work Field. Six Waves sold the warehouse in November 2019 for A$1,030,000. It netted around A$700,000.

21The family residence was on Waterside Drive in Waterways. Syed bought the land in 2012 for A$500,000. In December 2019, Syed sold the house for A$1.7 million. He netted A$660,895.37 from the sale.

4. Relocating to Canada

22In May 2019, Syed, Sarahat, and the children moved to Canada. Sarahat and the children began the process of settling in Canada, while Syed travelled to Australia and Bangladesh in 2019 and 2020 to wrap up their business interests. In January 2020, the family moved into the matrimonial home on North Park Boulevard in Oakville. Syed travelled to Bangladesh in February, and again in March. On March 8, 2020, Bangladesh confirmed its first cases of COVID, resulting in a travel ban. Syed finally returned to Canada in April 2020.

23Syed went back to Bangladesh in September 2020 to close the Work Field factories. He expected to be there for five to six months because he needed to stage the factories to maximize their sale price. Syed says that he and Sarahat agreed to buy a new home when he returned. In November 2020, while Syed was in Bangladesh, Sarahat entered an agreement to buy a house on Ironbridge Road in Oakville.

5. The Parties’ Separation

24While Syed was in Bangladesh, Sarahat sent Syed a “divorce letter” through his lawyer there. In December 2020, she complained to the police that Syed had assaulted her several months earlier. When Syed returned to Canada on May 10, 2021, he was arrested for assault. Syed was released on bail but he was subject to a restraining order.

B. Procedural History

25Sarahat started a family law case in January 2021. She withdrew the case a few months later.

26Syed started this proceeding in January 2023.

27In July 2023, Justice Emery ordered: (a) Sarahat release $50,000 to Syed; (b) she shall not dissipate funds held in certain accounts or encumber the matrimonial home or the Ironbridge property; and (c) Sarahat will have exclusive possession of the matrimonial home and may rent out part of that home and the Ironbridge house.

28The parties settled the parenting issues, leaving only the financial issues to be litigated at trial.

C. Evidentiary Issues

29Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Reliability engages consideration of the witness’s ability to accurately observe, recall, and recount events in issue. Any witness whose evidence on an issue isn’t credible can’t give reliable evidence on the same point. Credibility, on the other hand, isn’t a proxy for reliability: a credible witness may give unreliable evidence. See R v GF, 2021 SCC 20, at para 82; R v HC, 2009 ONCA 56, at para 41.

30I found the parties’ evidence credible and reliable on some issues. They seemed honest, and were able to make accurate and complete observations about the events. They seemed to have good memories, even of events from long ago. Their testimony was reasonable and consistent on these issues.

31That said, as I discuss below, there were major inconsistencies that were deliberate lies and not honest mistakes. These inconsistencies were localized to specific issues, and thus tainted the witnesses’ evidence on those issues.

32Syed’s three brothers also testified. He also introduced evidence from a Bangladeshi lawyer. Though these witnesses were credible and reliable, I didn’t find their evidence relevant or probative of the issues in dispute.

III. ANALYSIS AND DISPOSITION

33Again, this case presents 14 issues, each of which engages several sub-issues:

(a) is the settlement agreement enforceable even though it wasn’t signed?

(b) if so, is the agreement unfair?

(c) does Syed have a beneficial interest in the matrimonial home?

(d) do Syed’s assets include his share of the Bashundhara plot?

(e) do Syed’s assets include proceeds from the sale of the parties’ Australian properties?

(f) who owns the gold jewellery?

(g) what is the value of the Work Field’s assets?

(h) is Sarahat liable for Work Field’s debts?

(i) are the funds in Sarahat’s Bangladeshi bank accounts excluded as gifts?

(j) what is the amount of any equalization payment?

(k) what order should the court make for child support?

(l) what order should the court make for spousal support?

(m) did Sarahat wrongfully discard Syed’s possessions or wrongfully prevent him from selling the Amicus property in Bangladesh?

(n) is Syed liable for abusing Sarahat or violating her privacy?

34There’s one monetary issue that isn’t in dispute. Syed seeks judgment for $109,583.06, which is his share of funds in an RBC bank account held by Sarahat. I order and adjudge that Sarahat shall pay to Syed the amount of $109,583.06.

A. Issue #1(a): is the separation agreement enforceable even though it wasn’t signed?

1. Overview

35The separation agreement isn’t signed by either party. Under section 55(1) of the Family Law Act, RSO 1990, c F.3, a domestic contract is unenforceable unless made in writing, signed by the parties, and witnessed.

36Sarahat seeks a declaration that the agreement is nonetheless enforceable because it was authorized by the parties’ lawyers. This declaration, if granted, would effectively dispose of Syed’s application. Sarahat relies on various authorities from the Court of Appeal, the Divisional Court, and this court to argue that authorized separation agreements made before litigation starts are enforceable, even if unsigned. In response, Syed moves for a declaration that any unsigned separation agreement can’t be enforced based on a strict interpretation of the legislation. He says that none of the caselaw cited by Sarahat is binding on me or overrides the FLA.

37I agree with Syed. The FLA is unambiguous. The caselaw and policy reasons cited by Sarahat don’t allow me to override the legislature’s intention as expressed by the clear wording of the statute. This agreement wasn’t signed. As a result, it’s unenforceable.

2. Facts

38Sarahat started a family law proceeding in January 2021. Syed served and filed an answer in May 2021. In August 2021, Sarahat withdrew that proceeding. She says that Syed’s family was pressuring her to do so, and she acquiesced. Syed says they were reconciling. In any case, by early 2022, the parties started discussing divorce and a resolution of their family law claims.

39Between May and October 2022, the parties, through their lawyers³, exchanged settlement proposals and, eventually, draft separation agreements. There were over 20 letters and emails, including six iterations of the draft agreement. On October 25th, Sarahat’s lawyer sent Syed’s lawyer the “final version” of the draft agreement. Syed’s lawyer was away that week. Three days later, Sarahat’s lawyer emailed again:

I appreciate that you are away and I expect you to only respond next week. I just wanted to clarify that 6.1 b) is agreeable such that all terms have now been agreed upon from your client’s last proposal. The parties have a meeting of the minds and agreement on all terms and all that is left is to have the parties sign.

40There’s no dispute that the parties’ lawyers had authority to bind their respective clients. But neither party signed the final version of the draft separation agreement.

41On October 31st, Syed’s lawyer (after returning from vacation) contended that there was no “meeting of the minds” between the parties. Syed had recently disclosed to his lawyer that he was “under duress during negotiations of the agreement”. Syed alleged that this pressure led to Sarahat threatening him on October 22nd: if he didn’t sign the agreement, he would be charged and deported, and never see the children again. Sarahat denies this claim.

3. The Parties’ Positions

42Sarahat argues that the Court of Appeal, Divisional Court, and this court have all enforced unsigned separation agreements if the parties had legal advice.

43Section 55 of the FLA doesn’t apply to “authorized settlement agreements…made with legal advice during the pendency of court proceedings which, to be effective, require the intervention of the court” (emphasis added). See Geropoulos v Geropoulos (1982), 1982 CanLII 2020 (ON CA), 35 OR (2d) 763 (CA), at para 18. In that case, the applicant, through her lawyer, accepted the respondent’s offer to settle after she started a support and equalization lawsuit. The parties never signed a separation agreement, and the applicant refused to follow the terms of the settlement. The motion judge granted judgment on the terms of the settlement. On appeal, the applicant argued that even though the settlement was authorized and approved by the parties, it was unenforceable because it wasn’t signed or witnessed.

44The Court of Appeal dismissed the appeal:

• agreements made with “legal advice during the pendency of court proceedings” derive their effect from “an act of the court” and their “authenticity” is assured by the “court’s supervision and control over them”
• the court has the discretion to “enforce settlements or refuse to do so”, regardless of any agreement between the parties’ lawyers
• “no purpose is served” in allowing parties to withdraw from compromises made before or during trial—there’s an “established policy” of encouraging settlements and “recognizing and preserving the validity of settlements freely and properly entered into under advice”

45The purpose of section 55(1) is “to ensure a measure of formality in the execution of a domestic contract, to provide proof that it was in fact signed by the parties, and to ensure that it is free from undue influence, coercion or duress.” See Gallacher v Friesen, 2014 ONCA 399, at para 24; El Rassi-Wight v Arnold, 2024 ONCA 2, at para 6. In Gallacher, both parties signed a domestic contract, but the applicant’s signature wasn’t witnessed. The Court of Appeal upheld the motion judge’s decision that the absence of a witness didn’t preclude the respondent relying on the agreement: “the strict requirements of s. 55(1) may be relaxed where the court is satisfied that the contract was in fact executed by the parties, where the terms are reasonable and where there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract” (at para 27). In Janes v Janes, 2023 ONSC 4953, at para 31, Justice Jensen opined that “executed” in Gallacher “likely meant the parties had committed to the terms of the agreement and not necessarily that the parties had signed the agreement.”

46Geropoulos has been extended to circumstances where, “before any litigation”, the parties negotiate and confirm a settlement through their lawyers’ correspondence. See Pastoor v Pastoor, 2007 CanLII 28331 (Ont Sup Ct). In that case, Justice Perell identified two reasons for doing so:

• it’s consistent with the rationales identified in Geropoulos—section 55(1) shouldn’t be interpreted to impede either a lawyer’s authority to bind their client or the validity of settlement “freely and properly entered into by parties assisted by independent legal advice” (at paras 11-13)
• enforcing such settlements before litigation is started doesn’t undermine the policy that “matrimonial contracts be entered into with some care, solemnity, and formality” (at para 14)

See also Gorman v Gorman, 2021 ONSC 2577, at para 67; Zheng v Jiang, 2012 ONSC 6043, at para 33; and Harris v Harris, [1996] OJ no 2430 (Sup Ct) (QL). These cases are all cited in Gallacher.

47Sarahat also cites Lindsay v Lindsay, 2021 ONSC 7085 (Div Ct). She argues that the Divisional Court affirmed Pastoor and Harris: “parties can be found to be bound by an agreement made through counsel pending litigation” (at para 35). I disagree with Sarahat’s reading of the case. The Divisional Court, in that paragraph, is only repeating the motion judge’s statement of the applicable law. But the motion judge expressly didn’t decide whether Pastoor was “good law” because he held that there was no agreement between the parties (2021 ONSC 4674, at para 51).

48Based on all this jurisprudence, Sarahat argues that the statutory requirement that the separation agreement need be signed should be relaxed given that the agreement was otherwise freely negotiated between the parties’ lawyers. In her submission, the Court of Appeal, in Gallacher, has already extended Geropoulos to pre-litigation negotiations. Or I should follow Pastoor as a matter of judicial comity. See R v Sullivan, 2022 SCC 19, at para 75.

49Syed responds that there’s no binding jurisprudence that extends Geropoulos to unsigned agreements made before litigation starts, and only conflicting cases from this court. The formal requirements for domestic contracts “impress upon spouses the significance of their agreement and to encourage and preserve the validity of binding family property settlements.” See Anderson v Anderson, 2023 SCC 13, at para 42. See also El Rassi-Wight, at para 19.

50Justice Breithaupt Smith distinguished Pastoor in Greve v Shaw, 2022 ONSC 2598. She identified several reasons not to follow Pastoor:

• neither section 55(1) or section 56(4) (setting aside domestic contract) mention legal advice as a prerequisite
• litigation counsel and negotiation counsel have different duties
• relaxing the formalities under section 55(1) creates uncertainty—it requires an in-depth analysis of the scope of the parties’ legal advice
• without court oversight, there may be confusion about the specific requirements of the settlement, leading to uncertainty (at para 23)

See also Weber v Weber, 2007 CanLII 38583, at para 21 (Ont Sup Ct); Lynch v Lynch, [1994] OJ no 2065 (Prov Div) (QL); Davis v Gregory, 1990 CanLII 12280 (Ont Sup Ct); and Tanaszczuk v Tanaszczuk, 1988 CanLII 8639 (Ont Sup Ct).

4. Analysis and Disposition

51At bottom, there’s no binding authority on me. Geropoulos applies to separation agreements negotiated during litigation, not before. Gallacher and El Rassi-Wight deal with witnesses. Also, both decisions expressly tie the “formality” of domestic contracts to their “execution” and proof of signing. Lindsay (Div Ct) didn’t fully consider the issue. Pastoor and Greve (and the cases referred to in those decisions and that follow them) are in conflict.

52Sarahat’s argument, from a policy perspective, has much appeal. If parties retain lawyers, instruct them to settle their case, and then enter hard-fought negotiations that produce a draft agreement, it seems unfair and unwise to allow one of the parties to resile from the agreement by not signing it. To exclude pre-litigation separation agreements from the Court of Appeal’s flexible interpretation of section 55(1) in Geropoulos seems to encourage parties to sue each other, if only to have the protection of Geropoulos if they should ever settle the case.

53Alternatively, maybe such a policy shouldn’t be followed in family law cases. In effect, section 55(1) operates as a “cooling-off period”. Our law often provides for parties to have “buyer’s remorse”. See e.g., Consumer Protection Act, 2002, SO 2002, c 30, Sched A, ss 28, 35, 43, 51, Condominium Act, 1998, SO 1998, c 19, s 73, and Payday Loans Act, 2008, SO 2008, c 9, s 30. The situation here is no different: parties to a domestic contract, even one intended to settle the disputes arising from their separation, can resile from the agreement until it’s signed. That may be frustrating and expensive for the counter-party. But such a rule removes any ambiguity about what the parties agreed to and reduces litigation over unsigned agreements.

54In the end, there are good reasons to adopt one or the other approach. But courts must give effect to the legislature’s intention, “regardless of any reservations they might have concerning its wisdom.” Validly enacted legislation is “paramount over the common law.” See Ruth Sullivan, The Construction of Statutes, 7th ed (Toronto: LexisNexis 2022), at 530; Kosicki v Toronto (City), 2023 ONCA 450, at para 185.

55Section 55 is unambiguous: an enforceable separation agreement, like the one the parties negotiated here, must be signed by the parties. This agreement wasn’t signed. As a result, it’s unenforceable.

B. Issue #1(b): if the agreement is enforceable, was there any unfairness such that I should find it nonetheless unenforceable?

56If I’m wrong and the settlement between Syed and Sarahat is enforceable even though it’s unsigned, Syed argues that I should exercise my discretion not to enforce it because: (a) there was no “meeting of the minds”; (b) he was under duress; and (c) the separation agreement is unconscionable. I disagree—the parties mutually agreed to specific terms, and Syed hasn’t proven duress or unconscionability. As a result, if the lack of signature was no bar, I would’ve enforced the agreement.

57To be clear, I’m not being asked to set aside the agreement under section 56(4) of the FLA. Instead, as stated in Gallacher, the strict requirements of section 55(1) can be relaxed only if “there was no oppression or unfairness in the circumstances surrounding the negotiation and execution of the contract” (at para 27). Though Syed argues that the court’s discretion whether to enforce a separation agreement is an independent unit of analysis, my view is that it’s baked into the relaxed approach under section 55(1). That said, I don’t think it matters.

1. There was a meeting of the minds.

58Syed argues that there was no meeting of the minds because the parties expressly agreed that the separation agreement had to be signed:

• the initial letter from Sarahat’s lawyer proposing a separation agreement, dated May 16, 2022, states, “this is not an offer capable of acceptance, but instead a general basis for settlement”
• Sarahat’s counter-proposal dated June 10, 2022, included similar language, “…no term is agreeable on its own, but rather would only be agreed upon as part of a global settlement…”
• one of Sarahat’s lawyer’s emails attaching a draft separation agreement refers to “execution of the Agreement”
• on October 19, 2022, Sarahat’s lawyer emailed Syed’s lawyer, asking him to “finalize the remaining changes promptly as both of our clients are eager to sign this week”
• sometime during the negotiations, Sarahat texted Syed, “With Micheal , [sic] ask him to send the final reply with signature agreement with David”

59A separation agreement is a contract. Thus, it’s subject to the general law of contract regarding offer and acceptance. See Lindsay, at paras 32-42 (Div Ct). For a concluded contract to exist, the court must find that the parties: (a) had a mutual intention to create a legally binding contract; and (b) reached agreement on all the essential terms of the settlement. See Cook v Joyce, 2017 ONCA 49, at para 65.

60The parties’ “overt acts” usually determine whether they’ve “manifested mutual assent to specific terms”. See Bogue v Bogue, 1999 CanLII 3284 (Ont CA), at para 17. The court must employ an objective approach to the evidence, determining “what a reasonable observer would have believed the parties intended, taking into consideration the evidence of all the parties as well as the surrounding documentary evidence.” See McLean v McLean, 2013 ONCA 788, at para 10.

61The settlement negotiations here show that the parties intended to a create a legally binding contract. That’s demonstrated by, first, their agreement on the essential terms and, second, their exchange of draft agreements in the form of a legally binding contract.

62By October 28th, the parties had agreed on all the essential terms of the settlement:

• Syed’s lawyer sent Sarahat’s lawyer the sixth version of the draft agreement, asking: “Let me know if we are good to go based on my changes.”
• Sarahat’s lawyer responded: “I believe we have a final version. Please see my comments on your last draft as well as a clean copy attached.”
• the only outstanding dispute reflected in Sarahat’s draft was whether Syed would pay interest on any unpaid lump-sum spousal support
• Sarahat’s lawyer then emailed again that this clause was now agreeable to her

63So by that email (if not earlier, since it’s arguable that the interest clause wasn’t an essential term), the parties had an agreement.

64I don’t accept Syed’s argument that it was an essential term of the agreement that it be signed. The passing references to a global settlement, execution, and signing don’t create an essential term, especially given that all the other substantive terms were agreed to over several drafts. Also, this argument would render the section 55(1) analysis from Geropoulos circular—the agreement must be signed but the court can relax that requirement unless the parties agreed the contract had to be signed.

2. There was no duress.

65Syed also argues that the separation agreement is unenforceable because he was under duress. Syed alleges that Sarahat repeatedly threatened him with harm if he didn’t sign the separation agreement. According to him, Sarahat was effectively a puppet-master from the beginning of their negotiations—she would coach him on how to instruct his lawyer when responding to her lawyer’s offers.

66Duress is the “coercion of a person’s will through illegitimate pressure, with one party dominating the will of another at the time that a contract is executed.” See Ramdial v Davis, 2015 ONCA 726, at para 42. Duress can include “coercion, intimidation or the application of illegitimate pressure”. See Albaum v Albaum, 2024 ONSC 1595, at para 76.

67Syed’s main example is from October 22nd, when Sarahat allegedly said she would have him charged or deported if he didn’t sign the separation agreement. According to Syed, Sarahat barged into his bedroom that evening, woke him up, kicked him, and then demanded that he sign the separation agreement at the risk of never seeing the children again. On October 30th, the police interviewed Syed in connection with Sarahat’s allegation that her bedroom had been vandalized—Syed reported the assault to the police at that time.

68In Sarahat’s telling, the children texted her that there was no food at Syed’s house, and they were hungry. Rather than have food delivered, Sarahat says she left a party and brought food to the children herself around 10pm. She denies any interaction with Syed around the separation agreement. She contends that Syed made up the allegation in retaliation for the police questioning him about the break-in.

69Neither party’s story makes sense. On October 21st, Syed’s lawyer sent the last version of the separation agreement to Sarahat’s lawyer. The major issues were removing Sarahat as a director or shareholder from their Bangladeshi companies, and interest on spousal support. Neither issue seems so critical that, on the last turn of the agreement after five months of negotiations, Sarahat would assault Syed in front of their children and threaten him with jail or deportation. And the ball was in Sarahat’s court—if she didn’t like Syed’s counter-proposal, presumably her lawyer could’ve rejected Syed’s offer, and demand he sign her draft. Sarahat’s version is slightly more believable but, even then, it doesn’t make sense that Syed had no food for his children, they preferred to text their mother at a party rather than ask him, and she would leave a party to hand-deliver food when food delivery apps are everywhere. But Syed has the burden of proving duress. I don’t find his evidence about what happened on October 22nd to be credible or reliable.

70Syed also points to several threatening text messages that he says support his claim. In one of the text messages referred to above, Sarahat also writes: “And you STOP acting like a non sense old mad dog” and “Shoeb [Syed’s nickname] do not drag matter with David- in the separation agreement there is nothing that can be further negotiated about.” In an October 4th WhatsApp message, Sarahat writes (translated from Bengali): “you have been kicked by everybody but you haven’t gone off my shoulders yet…you have destroyed my life…you son of a mad guy…you were sick and made me sick too…Anaconda venomous snake”. A few hours after this message, Syed pleaded with his lawyer: “Can you please close this separation agreement by this week. I have no more energy on this.”

71I don’t find any of these messages coercive or intimidating. Though Sarahat is aggressive and rude, there’s no threat or illegitimate pressure.

72I also don’t find Syed’s overall narrative to be credible. If Sarahat was coercing Syed from the beginning, why did he bargain with her for over five months? If he was under her will, it makes more sense that he would’ve accepted her offer in May 2022, or signed the first draft of the separation agreement in August 2022. Moreover, Syed had access to a family law lawyer and a criminal defence lawyer. Over the course of the trial, he mentioned several other lawyers in Bangladesh and Australia. Syed had means and opportunity, at any point between May 2022 and October 2022, to expose Sarahat’s alleged coercion. Also, as I discuss below, Syed’s overall narrative includes a coincidental but pleasant meeting with Sarahat’s new partner—it’s not believable that Syed would be under Sarahat’s will, but could still have a chit-chat with her new boyfriend.

73Finally, Syed points to a phone call from June 2023, when Sarahat threatened his liberty: “When you claim your share of money, I will go to the police to put you in jail.” This conversation happened months later—I can’t infer that because Sarahat threatened Syed in June 2023, she also coerced him in October 2022.

74As a result, I find there was no duress in the negotiation of the separation agreement.

3. The separation agreement isn’t unconscionable.

75Finally, Syed argues that the separation agreement as drafted is unconscionable: (a) he was under unfair pressure; and (b) the agreement doesn’t comply with the legislation.

76Though Syed doesn’t expressly cite Miglin v Miglin, 2003 SCC 24, his submission tracks the Miglin framework. To begin, the court must consider “the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.” See Miglin, at para 80. The court should be alive to “circumstances of oppression, pressure, or other vulnerabilities”, considering how long the spouses co-habited, the functions performed by each spouse during cohabitation, and the conditions under which the negotiations were held (e.g., duration and professional assistance). See Miglin, at paras 81-83.

77Syed hasn’t met his burden of proving unfairness in the making of the agreement. He hasn’t proven any vulnerability. There’s no evidence of duress. There’s no evidence that he had any other personal circumstances that disadvantaged him in the negotiations. There’s no evidence that Syed was in such a weak position that he would accept almost any terms. He’s a wealthy man, with lots of business experience, and was represented by a lawyer during the negotiations, which took several months.

78If the conditions under which the agreement were negotiated are satisfactory, the court must then ask itself “whether the agreement is in substantial compliance” with the legislation. In doing so, the court must consider:

• all aspects of the arrangement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves
• the court should defer to the parties’ wishes and give the agreement great weight if the court is satisfied that the circumstances under which the agreement was negotiated were satisfactory and the agreement substantially complied with the general objectives of the Divorce Act, RSC 1985, c 3 (2nd Supp), at the time of creation
• if the circumstances at the time of the application stray from the range of reasonable outcomes the parties anticipated, in a manner that puts them at odds with the goals of the Divorce Act, the court may be persuaded to give the agreement little weight

See Miglin, at paras 84-91.

79Syed points to two parts of the separation agreement as being offside the legislation. First, under the agreement, Syed gets only the Amicus property, and Sarahat gets all the other properties. In contrast, he submits that he’ll receive an equalization payment and an interest in the matrimonial home based on the trial evidence.

80But that’s not the appropriate comparator—it’s whether the circumstances at the time of the application represent a “significant departure from the range of reasonable outcomes anticipated by the parties”. See Miglin, at para 91; Faiello v Faiello, 2019 ONCA 710, at para 47. Here, there were no changed circumstances when Syed started this proceeding three months later. If I adopted Syed’s position, it would turn settlement negotiations on their head. A party could settle a claim but always reserve the right to argue that the settlement was improvident because they may do better at trial, even though there was no unfairness when the agreement was formed. The whole point of a settlement is that both parties agree to a compromise of their best position at trial. And, in any event, Syed isn’t receiving an equalization payment.

81Second, Syed says he can’t pay the support he agreed to because he’s no longer receiving rental income. Syed is unclear whether he means child support or spousal support. Under the separation agreement, Syed agreed to pay table child support based on his imputed income of $100,000, and $220,000 as lump-sum spousal support. Syed says his income is now $60,000. But, as I find below, his imputed income is $130,000, so the settlement wasn’t at odds with the Divorce Act. In any event, if a payor’s income decreases, the solution is a motion to change.

82As a result, I find that the settlement agreement isn’t unconscionable.

C. Issue #2: does Syed have a beneficial interest in the matrimonial home?

83Syed transferred his interest in the matrimonial home to Sarahat in November 2021, after they separated. Even so, he argues that he’s a beneficial owner of one-half interest in the home. Because the transfer was after separation, it’s irrelevant to equalization. Instead, Syed seeks an order for sale under section 3 of the Partition Act, RSO 1990, c P.4.

84Sarahat responds that she “gave value”, or paid consideration, for Syed’s interest. Thus, she says that there can be no resulting trust. See Holtby v Draper, 2017 ONCA 932, at para 33. Alternatively, she submits that Syed “intended”, at the time of the transfer, to gift the matrimonial home to her. See MacIntyre v Winter, 2021 ONCA 516, at paras 25, 28.

85I disagree with Sarahat—her assumption of the mortgage isn’t consideration, and she hasn’t provided “clear, convincing, and cogent” evidence of Syed’s intention to gift her the home. As a result, I find that Syed has a beneficial interest in the matrimonial home.

86A person may apply to the court for the determination of a question between that person and their spouse as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties, and the court may: (a) declare the ownership or right to possession; and (b) order that the property be partitioned or sold to realize the interests in it. See FLA, s 10(1); Alajajian v Alajajian, 2019 ONSC 4678, at para 108, aff’d 2021 ONCA 602.

87The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between spouses, as if they weren’t married. See FLA, s 14. In gratuitous transfer situations, the actual intention of the transferor is the governing consideration. If a gratuitous transfer is being challenged, the court will start its inquiry with the applicable presumption and weigh all the evidence to determine the transferor’s actual intention. See Kerr v Baranow, 2011 SCC 10, at para 18.

88A presumption of a resulting trust is the general rule that applies to gratuitous transfers. When such a transfer is made, the onus will be on the transferee to demonstrate that a gift was intended. Otherwise, the transferee holds that property in trust for the transferor. This presumption rests on the principle that equity presumes bargains and not gifts. See Kerr, at para 19.

89To establish a gift, Sarahat must satisfy three conditions: (a) Syed’s intention to make a gift, without consideration or expectation of remuneration; (b) an acceptance of the gift by Sarahat and (c) a sufficient act of delivery or transfer of the property to complete the transaction. See MacIntyre, at para 40.

90Here, there’s no dispute that Sarahat accepted the transfer of title to the matrimonial home, and title was delivered to her. So, again, the issues are whether: (a) Sarahat gave consideration; and (b) Syed intended a gift.

1. Sarahat didn’t give valuable consideration for the home.

91In November 2019, Syed and Sarahat agreed to buy the matrimonial home. In May 2021, they contacted RBC about refinancing their mortgage on the home so they could buy a new house. RBC advised them that they didn’t qualify for financing because Syed had a poor credit history. In August 2021, Sarahat contacted RBC again, this time to apply for refinancing on her own. Yuting Fu, an RBC banker, met with Sarahat and Syed to discuss their options. Following the meeting, Fu emailed Sarahat and Syed about Syed’s equity in the home:

Syed to expand on your question regarding adding you back on title later on. If we are going to keep existing property and sell all the investments in order to buy the new properly. Very likely we will not be approved to add you back even if your credit history improves because we don’t have the same amount of investments to support as Wealth Accumulator Program. [emphasis in original]

92In November 2021, Syed transferred his interest in the home to Sarahat. At the time, the existing mortgage was C$661,468.32. As part of the transaction, Sarahat assumed Syed’s share of the mortgage (C$330,734.16). The new mortgage she got from RBC was for C$1,072,500, which she used to discharge the existing mortgage.

93Syed says that he and Sarahat agreed to remove him from title so they could qualify for a higher mortgage. Sarahat says that Syed transferred the home to her as part of his efforts to reconcile with her.

94Sarahat argues that, by assuming Syed’s share of the mortgage, she gave consideration for his interest in the home, meaning there can be no resulting trust. Paying off a co-owner’s mortgage can be valuable consideration. See Styres v Martin, 2021 ONSC 1072, at para 85. In that case, the plaintiff wanted to transfer title in his home to the defendant. To do so, the defendant had to pay out the existing mortgage, which she did from her savings. The house was then transferred to her. The “pledging of credit” can also be valuable consideration. See Banihashemi v Behshad, 2021 ONSC 1145, at para 44. In that case, the respondent’s mother co-signed with the applicant for the mortgage and was a co-owner of the property. In both cases, the court rejected the applicants’ resulting trust claims because the other party gave value.

95Sarahat didn’t pay hard cash to discharge the mortgage like in Styres. She traded one debt for another, rather than an asset for a debt. And if I were to apply Banihashemi like Sarahat asks, it would mean that the sole mortgagor could always defeat a resulting trust claim by arguing they alone pledged their credit, which would seriously undermine the purpose of resulting trust claims in family law.

96In the end, I don’t accept that Sarahat’s refinancing was “valuable” consideration. And Syed concedes that if I find that he has a beneficial interest in the home, then he’ll assume half the liability.

2. The home wasn’t a gift.

97Sarahat must introduce “clear, convincing, and cogent” evidence to prove, on the balance of probabilities, that Syed intended to gift her the home. See MacIntyre, at paras 25.

98Sarahat relies on an alleged admission in Syed’s application:

For example, the North Park Home was transferred solely to Sarahat’s name in 2021 from joint only because Sarahat wanted to increase a loan against the house for a renovation. Because Syed had a criminal conviction, he was told that he could not be on title any more for this new loan. Syed is not sure if this is true, but that’s what he was told by Sarahat. Wanting to reconcile, Syed agreed to this.

99A formal admission is conclusive as to the matter admitted. See Champoux v Jefremova, 2021 ONCA 92, at para 34.

100I don’t read the pleading like Sarahat. That Syed wanted to reconcile with Sarahat may have motivated him to agree to her proposal, but the intention behind the transfer was the refinancing. As a result, I don’t find this alleged admission to be conclusive of whether Syed gifted the home to Sarahat.

101Absent the admission, Sarahat hasn’t met her burden of clear, convincing, or cogent evidence of the alleged gift. Instead, based on the evidence introduced at trial, I find that Sarahat and Syed made a strategic decision to transfer the home to her to get a bigger mortgage. The evidence from both parties and Ms. Fu is clear that Syed’s credit report impaired them doing so. Their intention is disclosed by Ms. Fu’s email—there would’ve been no reason for Syed to ask whether he could go back onto the title if the transfer was intended as some grand gesture of his love in hopes of reconciling with Sarahat.

102As a result, I order and declare that Syed is a beneficial owner of one-half interest in the home. Sarahat doesn’t oppose the sale of the home if I find that Syed is a beneficial owner. As a result, I order that the home be sold to realize the interests in it. The home shall be listed for sale within 60 days, by a real estate agent chosen mutually by the parties. The proceeds shall be disbursed such that any amounts owing to either party as a result of this judgment shall first be paid from the other person’s share of the proceeds.

D. Issue #3: did Syed’s assets include his share of the Bashundhara plot?

103Syed transferred a Bashundhara plot to Sarahat in July 2019, before they separated. She sold the property in 2022. Syed claims that he had a beneficial interest in this asset on the valuation date. Sarahat responds that Syed gifted the property to her—she says that the transfer documents show Syed’s intention.

104These documents are ambiguous. As a result, again, Sarahat hasn’t introduced “clear, convincing, and cogent” evidence that Syed intended to gift this property to her. For equalization, I find that Syed was the beneficial owner of half of the Bashundhara plot on the valuation date, and it had a value of C$985,076,14.

105To begin, Sarahat argues that this court has no jurisdiction to adjudicate on the “right and title to lands not situate within its borders.” See Johnston v Adam, 2011 ONSC 3808, at para 23, citing Duke v Andler, 1932 CanLII 32 (SCC), [1932] SCR 734; Tezcan v Tezcan, 1987 CanLII 157 (BCCA).

106I’m not being asked to make an order regarding the beneficial interest in the plot itself; it’s since been sold. Instead, I’m being asked to make factual findings to ensure the equalization of the parties’ assets accurately reflects their ownership interests. When spouses are separated and there’s no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. See FLA, s 5(1). Before property can be equalized under the FLA, a court must first determine the “net family property” of each spouse. This exercise requires first that all questions of title be settled. See D’Angelo v Barrett, 2016 ONCA 605, at para 19.

107To effect the transfer of the Bashundhara plot, Syed signed an affidavit:

If the schedule described plot is registered in the name of the mentioned person, my wife Sarahat Salma Chowdhury I do not or will not have any claim. If, in future, I or someone from my behalf raises any objection, that will be null and void in all the courts. It should be noted that, form now on, I have explained all the papers of the mentioned plot, such as- the original receipt of payment from the company, temporary allotment papers, photo, copy of voter card/ passport etc. to Sarahat Salma Chowdhury. From now on, I ma [sic] applying to register and transfer the schedule described plot to Sarahat Salma Chowdhury. If in future I or my heirs raise any objection or create any legal complexity regarding the ownership of the below schedule described plot, I will be responsible for that. The Messers East West Property Development (Pvt.) Lt. authority will not be responsible for that. Even if they are responsible, that will be null and void in all the courts in all aspects according to the country’s law. [emphasis added]

108Sarahat argues that this document proves that Syed intended to gift the Bashundhara plot to her because he’s releasing any claim to the asset. Syed’s response is that the transfer documents, including this affidavit, are standard-form documents that can’t be edited by the parties. He says that he and Sarahat had a mutual intention to transfer the plot to her to avoid their creditors, so they could sell the plot to move money to Canada. He stresses that the instalment payments for the plot were paid through Work Field (though on behalf of “Mr./Ms. Syed Mahabub Zunnurain”). One of the transfer documents, in Syed’s name, states that the transfer is a “family decision”. He also relies on a text message from Sarahat in September 2022, where she tells him about the incoming proceeds from the sale of the plot: “No matter what- I don’t have that blood where I will need to steal money from you- and which are my children’s rightful ownership”.

109Sarahat replies that Syed transferred only one of the five Bashundhara plots he owned to her—if he was trying to avoid their creditors, why didn’t he transfer all of them?

110The intention to defeat creditors doesn’t necessarily defeat a resulting trust claim. Although the general rule is that a party can’t rely on their own “illegality” in claiming a resulting trust, the parties’ intention is always “a question of fact to be determined from the evidence.” See Holtby, at para 53.

111Sarahat hasn’t proven that Syed intended to gift the Bashundhara plot to her. I find that Syed’s intention was to protect the plot from their creditors so they had an asset they could sell. The transfer document isn’t evidence of his intention to gift the property—I wasn’t provided any evidence on Bangladeshi law, but one interpretation of the document suggests that he’s releasing East West Property Development (Pvt.) Ltd. from any liability arising from the transfer to Sarahat. I don’t know why he didn’t transfer the other plots to Sarahat. One explanation is that they only needed the proceeds from one plot to start their life in Canada. Of course, Syed’s plan may have been ineffective given Sarahat’s guarantees to the banks. But, like in Falsetto v Falsetto, 2024 ONCA 149, at para 28, his intention in avoiding his creditors—whether it was effective—aligned with his transfer of title to Sarahat.

112The parties also disagree over the value of the asset because there’s no contemporaneous valuation. Sarahat sold the land in September 2022 for Tk72 million (less a Tk100,000 commission). In her 2020 tax return, she valued the property for C$948,720 (which is around Tk69.5 million). Based on this evidence, Syed argues that the plot was worth C$985,076.14. Sarahat argues that its value is C$610,000. She used a “money changer” in Bangladesh to transfer the sale proceeds to Canada, which netted her C$720,115. She discounts this amount given the valuation date was September 2020 but the plot sold in 2022.

113I prefer Syed’s position. First, there’s no evidence about how Sarahat arrived at a discount rate. Second, she used a money changer with a 12.5 percent commission. Syed’s evidence is that she could’ve transferred the money to Canada at a better exchange rate if she’d used Bangladesh Bank, which makes sense. As a result, I find that the value of the property that Syed owned on the valuation date includes half of the Bashundhara plot on the valuation date, and it had a value of C$985,076.14.

E. Issue #4: did Syed’s assets include proceeds from the sale of the Australian properties?

114The parties owned two properties in Australia while they were married. Both properties were sold in late 2019, before separation. The proceeds are held by Sarahat. Syed argues that Sarahat was holding the proceeds from the sale of these two properties in trust for him. In his application, he requests an order, “on the basis of a resulting or constructive trust”, that he’s the beneficial owner of the properties and the “proceeds of sale” from them. In closing submissions, Syed submits that if he’s right, then most of the proceeds (now held in bonds) are an asset he owned on the valuation date. Sarahat responds that Syed’s claim is limitations-barred and, in any event, she owned the sale proceeds on the valuation date, so they’re all her asset for equalization.

115I find that Syed’s claim isn’t limitations-barred—it’s a claim for equalization, so it’s within the statutory limitation period for that type of claim. But I reject Syed’s argument that he owned most of the asset—the parties treated the proceeds jointly, so they each owned $470,867.19 in bonds on the valuation date.

116Syed bought the Waterside Drive house in 2015. The parties and their children lived there until 2019. Syed sold the house on December 11, 2019—he netted A$660,897.37 after paying out the mortgage and fees. The funds were deposited to SixWaves’s Commonwealth Bank account on December 12th. The funds were then immediately transferred to Sarahat to buy bonds in Singapore.

117SixWaves owned the Atlantic Drive warehouse. Syed and Sarahat were equal shareholders of SixWaves. In October 2019, SixWaves sold the Atlantic Drive warehouse. The sale proceeds of A$660,895.37 were deposited to SixWaves’s bank account on November 14, 2019. SixWaves transferred A$670,000 to Sarahat’s Commonwealth Bank account. On November 25th, SixWaves transferred C$250,000 (A$281,023.59) to Sarahat’s RBC bank account. SixWaves transferred another A$315,030 to Sarahat’s UOB bank account on November 26th.

118On the valuation date, Sarahat held C$941,734.37 in bonds at UOB. Eventually, most of these funds, pooled with Sarahat’s other assets in Singapore, were transferred to Canada. Syed says that these funds can be traced to Sarahat’s purchase of the Ironbridge property so he has a trust interest in that house. He hasn’t proven this claim given that the funds were comingled. As a result, I’m not prepared to make that finding.

119^

1. Syed’s claim isn’t statute-barred.

120To begin, Sarahat submits that Syed’s claim is statute-barred. Syed’s application was started on January 16, 2023. The parties separated on September 4, 2020. The divorce order became effective on April 13, 2024. There are three possible limitation periods at issue:

• the basic two-year limitation period under the Limitations Act, 2022, SO 2002, c 24, Sched B, s 4—September 13, 2022 (because of the COVID Emergency Suspension Period, Limitation Periods, O Reg 73/20)
• the ten-year limitation period for real property claims under the Real Property Limitations Act, RSO 1990, c L.15, s 4—September 13, 2030
• the limitation period for equalization claims under the FLA, s 7(3) (which starts on the earlier of two years after the divorce or six years after the parties separate)—April 13, 2026

121On it’s face, he’s out of time under the basic limitation period. But he’s in time under the RPLA and the FLA.

122The parties’ submissions disclose that Syed’s claim is for equalization. As a result, Syed’s claim isn’t statute-barred. Like the Bashundhara plot, I’m being asked to make findings of fact about the parties’ assets on the valuation date to determine their net family property.

2. The parties jointly own the bonds.

123There’s no dispute that Sarahat owned the bonds on the valuation date. She says Syed gifted the proceeds to her. Syed makes two interrelated responding arguments to try to show that, in fact, he owned most of the bonds. First, he asks the court to pierce the corporate veil. Second, he says he has a resulting trust in the proceeds.

124Like with the matrimonial home and Bashundhara plot, Sarahat, as the transferee, must show that Syed intended to gift the sale proceeds. Like with those other properties, she hasn’t met her burden for “clear, convincing, and cogent” evidence. Syed owned the Atlantic Drive house, although it was the parties’ family residence. SixWaves owned the Waterside Drive factory, which was used for the parties’ Australian businesses. When the properties sold, the proceeds started in, effectively, a joint account (since Syed and Sarahat were the joint principals of SixWaves). The monies were transferred into Sarahat’s name to buy bonds in Singapore, and eventually most of the monies found their way to Canada to support the parties’ life here.

125If Syed had intended to gift the sale proceeds to Sarahat, she needed to introduce evidence showing why he did so. In contrast, Syed explained that it was easier to transfer money from Singapore than Bangladesh, which offers at least a partial explanation for why they moved the money to Singapore. I don’t know why they moved it to her single account, but it’s Sarahat’s burden to prove Syed’s intention.

126I don’t need to “pierce the corporate veil”. The courts “will disregard the separate legal personality of a corporate entity where it is completely dominated and controlled and being used as a shield for fraudulent or improper conduct.” See FNF Enterprises Inc. v Wag and Train Inc., 2023 ONCA 92, at para 18. This test should be applied flexibly in family law litigation. See Wildman v Wildman, 2006 CanLII 33540 (Ont CA). This flexible approach doesn’t mean that the legal test can be ignored; it only means that the rule of “corporate separateness” is relaxed. Here, there’s no evidence that SixWaves was used for “fraudulent or improper” conduct. Moreover, the parties’ oral evidence is that they both, as shareholders and directors, decided together to transfer the sale proceeds to Sarahat.

127That all said, I don’t accept Syed’s argument that he was the beneficial owner of all the bonds. The parties owned SixWaves together. Syed’s evidence is that the money was supposed to be used to fund their new, joint life in Canada. He’s introduced no evidence to prove that he alone owned the sale proceeds. Thus, I find that Syed had a beneficial interest in only 50 percent of the bonds.

128As a result, I find that the value of the property that Sarahat and Syed owned on the valuation date includes $470,867.19 each in bonds.

F. Issue #5: who owns the gold jewellery?

129Sarahat has a lot of gold jewellery. She says it’s hers; Syed says it’s both of theirs. I prefer Syed’s evidence and, as a result, I find that the value of the property that Sarahat and Syed owned on the valuation date includes $136,389.66 each in jewellery. I order that the gold jewellery (or what remains of it) be divided equally between them.

130Syed claims that he and Sarahat brought a lot of gold jewellery to Canada when they immigrated here. He’s introduced into evidence nine invoices, which he says lists the 115 pieces of gold jewellery now stored in a safety deposit box that only Sarahat has access to (he doesn’t dispute Sarahat’s evidence that one of the invoices is a duplicate). The total value of the gold, according to the invoices, is Tk17,667,053.86. The invoices are all addressed to Sarahat, which Syed says is the custom in Bangladesh—she’s the purchaser, but he paid for the jewellery.

131Sarahat argued that these documents aren’t invoices but valuations created to support the parties’ immigration to Canada. She insisted that these documents were made in 2019. Rather than show gold jewellery that either she or Syed bought during the marriage, she says they are appraisals of jewellery that were gifted to her from parents or her grandmother, or were wedding gifts. Her position is that she brought only some pieces to Canada (totaling Tk5,939,537.75). She also contends that Syed is incorrect to use the “Total Amount” shown on the invoices (which includes the “Value of the Ornament”, “taxes”, and “Making Charge”). She says the total value of the gold jewellery in the safety deposit box is Tk4,840,802.40 (or C$74,741.99 using a $0.01544 foreign exchange rate). Sarahat also said that some of the jewellery was sold when she and Syed were in Bangladesh, and she gave the sale proceeds to Syed.

132I don’t find Sarahat’s evidence credible:

• the invoices are each dated, going back to February 2003—it makes no sense that an appraiser, almost 20 years later, would backdate the appraisal to the purchase date
• the first invoice lists Sarahat’s address as 101 Shantinagar, Dhaka—it similarly makes no sense that an appraiser or Sarahat would, 20 years later, use the parties’ address at that time
• the invoices all include a “Seller’s Signature & Seal”—it makes no sense that an appraiser would represent that it was the seller of the jewellery that Sarahat said she received as gifts from family
• some invoices include a “Paid” stamp, with the date in ink—if Sarahat is to be believed, the appraiser certified that the jewellery was paid for even though it isn’t necessarily the seller (and rolled back the date on the stamp to match dates presumably provided to him by Sarahat)
• all but two invoices are stamped by CBSA on January 7, 2020—if Sarahat didn’t bring this jewellery to Canada, why did she show CBSA the appraisals?

133Syed denies selling the jewellery in Bangladesh or receiving its proceeds. Sarahat’s deliberate lie taints all her evidence on this issue. I accept Syed’s evidence that:

• he and Sarahat bought the gold jewellery together for Sarahat to use and wear
• the value of the jewellery is Tk17,667,053.86 (or $272,779.32 using Sarahat’s exchange rate)
• Sarahat brought all this jewellery to Canada
• all of it was in Sarahat’s possession as of the valuation date

134The gold jewellery wasn’t produced for inspection. Given Sarahat’s evidence, perhaps some of it has been sold or gifted since the parties separated. I could make an order that the gold be divided in its actual form. But if Sarahat has since sold some of the gold, that would be unfair to Syed. As a result, I find that the value of the property that Sarahat and Syed owned on the valuation date includes $136,389.66 each in jewellery. I also endorse an order that the gold jewellery (either all of it or what remains) shall be divided, within 60 days of my order, equally between Sarahat and Syed, using the values on the invoices introduced at trial.

G. Issue #6: what is the value of Work Field’s assets?

135Syed claims, as an asset on the valuation date, the value of Work Field Knit Wear and Work Field Fashion Wears. He asserts that the businesses’ value is C$4,591,316.72—City Bank sold Work Field’s factories and machinery in July 2022 for this amount. That said, Syed has sued the bank, alleging that they sold Work Field’s assets for a “shocking low” price.

136Sarahat argues that the businesses should be valued at C$6 million. The June 2020 financial statements showed that the businesses had fixed assets valued at Tk848,145,065 (or $13,103,841.25).

137Based on all the evidence, I find that the value of Work Field on the valuation date was C$4,591,316.72. Syed has an interest in puffing up his claim against the bank. But that claim is unproven. That Syed’s accountant valued the assets to be much more is one thing—but I prefer the realized value of the assets. Though the assets were sold almost two years after separation, Sarahat has introduced no evidence that allows me to gross up value of the assets to $6 million.

H. Issue #7: is Sarahat liable for Work Field’s debts?

138In the parties’ Comparison of Net Family Property Statements, Sarahat seeks a deduction of C$21,998,490.69 for Work Field’s various loans and debts. She guaranteed the loans. She says it was reasonably foreseeable that the banks would look to her for recovery. Syed argues that there was no such risk: (a) the banks have never tried to enforce against Sarahat; (b) there’s no evidence they will do so now, given the passage of time and her relocation to Canada; and (c) even she didn’t consider the debts to be a real financial risk.

139I accept Sarahat’s evidence that there was a risk that the banks would collect on the debts from her. That said, the risk is low: I value the Work Field debts at 50 percent for Syed and 25 percent for Sarahat.

140“Net family property” means the value of all the property that a spouse owns on the valuation date, after deducting, the spouse’s debts and other liabilities. See FLA, s 4(1). Contingent liabilities are to be considered as long as they are “reasonably foreseeable.” In determining the present value of a contingent liability, courts have looked at what was reasonably foreseeable on the valuation date. See Greenglass v Greenglass, 2010 ONCA 675, at paras 26-27.

141That said, the court shouldn’t “simply insert the face value of the debt into the NFP calculation” unless the evidence supports an assumption that the spouses would pay off the debt during the marriage. If there was a “real possibility” that the guarantee would be called on, the court can assign a value to the liability where the amount can’t be predicted with certainty. See Greenglass, at paras 27; Zavarella v Zavarella, 2013 ONCA 720, at para 34. For example, in Poole v Poole, 2001 CanLII 28196 (Ont Sup Ct), Justice Heeney discounted the husband’s share of a loan from his parents to 10 percent of its face value because it was “highly improbable” that they would enforce the loan. Where courts have found no or a low risk that a guarantee would be called at the valuation date, the value of the contingent liability is nil. See Greenglass, at paras 27.

142Sarahat points to several communications that she says show there was a real possibility the debts would be enforced against her:

• in November 2018, City Bank demanded repayment of Work Field’s loans—the letter was addressed to Syed but copied to Sarahat with a note “please note that as a Guarantor you are equally liable to adjust the liabilities otherwise bank will initiate legal action against you as per law of the land”
• in July 2019, Syed asked his Bangladeshi lawyers to transfer Work Field’s liability to Work Field Knit Wears Limited—Syed’s and Sarahat’s evidence is that he made this request to try to limit Sarahat’s liability
• in March 2021, City Bank approved a restructuring of Work Field’s debts—the bank’s terms include that Sarahat will provide a personal guarantee, and the bank can “appropriate” funds from the guarantor’s accounts to repay the debt
• in September 2021, Sarahat raised significant concerns with her and Syed’s lawyers that she’d guaranteed Work Field’s debts—her lawyer advised that even if she “withdrew” from Work Field, she would remain liable as a “3rd party guarantor”

143In Sarahat’s prior family law proceeding, she pleaded the debts and her guarantee, and claimed that Syed was trying to “scapegoat” her by “purposefully running his businesses to the ground” (January 2021). In her answer, she pleaded her concern that she’ll be liable for the “debts he solely incurred” because she’s a guarantor (February 2023).

144Syed raises three arguments in response. First, the banks haven’t tried to enforce Work Field’s debts against Sarahat. The Bangladeshi banks didn’t try to enforce their debt against Sarahat’s ownership interest in the Bashundhara plot. More generally, there’s no evidence of the banks pursuing enforcement of the debts against Sarahat.

145Second, he contends that Sarahat’s guarantee is a “technicality”, and the banks aren’t going to pursue her liability now that she’s living in Canada. Syed doesn’t expand upon this argument but I take him to mean that the passage of time and Sarahat’s relocation to Canada makes it unlikely that the banks will pursue the guarantees.

146Third, in each of her January 2021, February 2023, and September 2023 Financial Statements, Sarahat doesn’t list the Work Field debts. She didn’t do so until March 2024. Syed relies on Peerenboom v Peerenboom, 2020 ONCA 240, at para 67, aff’g 2018 ONSC 7562, at paras 184-191, in which the court emphasized the respondent’s failure to include the debts on two financial statements. In that case, the court valued the respondents’ debts to his father as nil. The court found that the respondent viewed the debts as a gift and, as such, he didn’t show them on his financial statements. This finding was bolstered by the trial judge’s finding that the father likely wouldn’t pursue repayment because he didn’t do so until the parties separated, and he believed the debts would be offset by their inheritance.

147In my view, Sarahat has met her burden of proving that there was a real possibility, in September 2021, that Work Field’s creditors would call on her to pay the debts. The bank’s demands are clear that she’s equally liable, as a guarantor, for the debts. In September 2021, a year after the parties separated, her lawyer advised her that she would remain liable as a guarantor. Syed’s hindsight argument doesn’t assist—I have to look at the risk at the valuation date, which is best-informed by Sarahat’s ongoing status as a guarantor through this period, and her lawyer’s view that she remained at risk a year after the parties separated and she’d moved to Canada. Syed’s perspective isn’t relevant, in part because it’s self-serving. The exclusion of the debts from Sarahat’s financial statements is telling, but I’m satisfied by her explanation: Syed was working to sell the businesses, with its liabilities. Unlike Peerenboom, she didn’t exclude the debts because she didn’t think they were real—indeed, that would contradict her pleadings.

148That all said, I’m persuaded that the risk to Sarahat is low. As each day goes by without either a lawsuit against her in Bangladesh or here, it becomes more and more likely that the bank has written off the debt. And Sarahat is only a guarantor—the banks sued Syed but not her. Finally, Sarahat has liquidated her assets in Bangladesh. Though it’s not impossible, I anticipate the costs of pursuing judgment against Sarahat in Bangladesh, and then seeking recognition of that judgment against her here, and enforcing that judgment against her assets may prove disproportionately costly.

149But, for many of the same reasons, I find that the risk of enforcement to Syed is also low. Though he wasn’t only a mere guarantor, the passage of time and his relocation to Canada makes it less and less likely that the banks will pursue these loans or enforcement of a judgment.

150Fixing a discount rate is no easy task. The caselaw in this area shows very different circumstances. In Cade v Rotstein, 2004 CanLII 24269 (Ont CA), and Peerenboom, the loan was from a family member ($192,500 in Cade and $60,000 in Peerenboom). In Testani v Haughton, 2019 ONSC 174, Justice Jarvis discussed several cases where all the loans were from family members or friends. The discount rates range from 75 percent to 100 percent. I’ve been provided no cases where the debts are in the millions and the debtor is a bank. Given that a bank has more resources to pursue the debt and given that the size of the loans gives them an incentive to do so, I value the Work Field debts at 50 percent for Syed and 25 percent for Sarahat. I differentiate because Syed is the named borrower and still has assets in Bangladesh.

151As a result, I find that, on the valuation debt, Syed has a debt of $10,999,245.35 and Sarahat has a debt of $5,499,622.67.

I. Issue #8: are the funds in Sarahat’s Bangladeshi bank accounts excluded as gifts?

152Sarahat claims that she received gifts from her father and, as such, under section 4(2) of the FLA, they should be deducted. These funds are in six Bank Asia and LankaBangla bank accounts, totaling $475,657.57 on the valuation date.

153Sarahat’s uncontradicted evidence is that her father gifted her these amounts after the parties were married. She testified that she couldn’t get documents from her family to prove the gifts. In cross-examination, Syed acknowledged that Sarahat received some money from her father.

154Though Syed argues that Sarahat must do more to prove this claim, like calling her father as a witness or introducing bank records, I disagree. Sarahat’s oral evidence, if reliable and credible, is enough to support a finding that she was gifted these amounts. See Skrak v Skrak, 2024 ONSC 1574, at para 56. Syed offered no contrary evidence—though he had ample financial disclosure, he didn’t seek to trace these monies to their joint or his sole assets. Syed’s only evidence is his bald statement that he arranged these transfers and the funds came from him. Even though Sarahat admits that she’s estranged from her father, that doesn’t preclude gifts.

155As a result, I find that the assets in Sarahat’s bank accounts at Bank Asia and LankaBangla, totaling C$475,657.57, don’t form part of her net family property.

J. Issue #9: what is the amount of any equalization payment?

156The amount of the equalization payment is nil. If a spouse’s net family property is less than zero, it shall be deemed to be equal to zero. See FLA, s 4(5); Nixon v Lumsden, 2020 ONSC 147, at para 130.

157Attached as Schedule A is a Net Family Property worksheet.⁴ Both parties had a negative net family property—their respective debts were more than their assets on the valuation date, and they didn’t declare any date of marriage assets.

K. Issue #10: what order should the court make for ongoing and retroactive child support?

158A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage. See Divorce Act, s 15.1(1). A court making an order under section 15(1) shall do so in accordance with the Federal Child Support Guidelines, SOR/97-175. See Divorce Act, s 15.1(3).

159Sarahat seeks several orders for child support, based on her argument that Syed’s income should be imputed at $150,000 annually and her estimated 2023 income of $100,000: (a) Syed shall pay set-off child support of $1598 monthly starting May 1, 2024; (b) Syed shall pay 60 percent of the children’s special and extraordinary expenses; and (c) judgment for $191,035.58 in retroactive child support, inclusive of retroactive section 7 expenses. Syed’s position is that there should be no retroactive support, and any table child support going forward should be based on his imputed income of $60,000 annually and Sarahat’s reported income.

160I find that Syed’s income is imputed to be $130,000 annually. Based on this imputed income and Sarahat’s 2022 reported income of $134,428, the set-off table child support amount is $1362 monthly. I order that the parties shall share the children’s special and extraordinary expenses in proportion to their income. Finally, I order that Syed shall pay $157,552.99 in retroactive child support, including section 7 expenses.

1. Syed’s income is imputed at $130,000 annually.

161The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, including where the spouse is intentionally under-employed, other than where the under-employment is required by the needs of a child of the marriage, or any child under the age of majority, or by the reasonable educational or health needs of the spouse. See Guidelines, s 19(1).

162Section 19 of the Guidelines doesn’t allow the court to arbitrarily select an amount as imputed income. There must be a rational basis underlying the selection of any such figure. The amount selected as an exercise of the court’s discretion must be grounded in the evidence. When imputing income based on intentional under-employment, a court must consider what’s reasonable in the circumstances. The factors to be considered are age, education, experience, skills, and health of the parent, standard of living during the parties’ marriage, the availability of job opportunities, the number of hours that could be worked in light of the parent’s overall obligations including educational demands, and the hourly rate that the parent could reasonably be expected to obtain. See Drygala v Pauli, 2002 CanLII 41868 (Ont CA), at paras 44-45; Duncan v Donaldson, 2023 ONSC 5114, at para 33.

163Syed admits that he’s intentionally unemployed. He proposes that the court impute an annual income of $60,000 to him, which is based on the monthly loan he receives from his brothers. He argues that this amount is significantly higher than Ontario’s minimum wage (around $40,000 per year). Syed’s reported income is negligible. In 2020, he earned $23,603.15 though the source is unclear. In 2021, he reported no income. During this period, he received $25,000 per month in rental income from his Bangladeshi property. In 2022, he earned $11,835.20 working at Buy Buy Baby before it went bankrupt. In 2023, he again reported no income.

164Sarahat argues that the court should impute an annual income of $150,000 to Syed. She bases this submission on several factors:

• between September 2020 and July 2023, Syed received $444,376.65 from third-party sources, including his brother and SixWaves
• around $115,000 was cash deposits from unknown sources
• Syed’s Financial Statement, dated February 8, 2024, discloses no liquid or other assets that can explain this income
• Syed didn’t report his rental income on his income tax return
• Syed’s financial statement discloses annual expenses of $92,000, suggesting a significant shortfall if his brother is only lending him $60,000 per year

165Syed responds that he was prepared, at trial, to explain the cash deposits but this evidence was introduced through Sarahat, after he’d testified. Leaving aside whether there’s a trial fairness issue here, I don’t find this evidence probative. As the evidence discloses, both parties were wealthy, with complex financial arrangements. They deposited and withdrew money from banks on three continents with some regularity. I’m not persuaded that unidentified deposits help me determine Syed’s income.

166That said, I don’t believe Syed has been candid with the court. He’s a self-made man. He’s run several businesses (though his lawyer argued that he wasn’t exactly the most successful entrepreneur given the trail of debts behind him). Syed’s brothers own and operate TexMC, which brokers sales deals between garment manufacturers in Bangladesh and retailers or distributors outside Bangladesh, just like Work Field. TexMC’s website lists Syed’s home address as the company’s “Canada Office”. Syed and his brothers say that he has a “sales agreement”, under which he’s contracted to do some marketing, but he hasn’t earned any commissions under this agreement yet. It doesn’t make sense that Syed, back in business with his brothers doing a job that he has lots of experience in, has generated no sales, preferring instead to borrow from his other sibling.

167The appropriate amount of income to impute to Syed is $130,000 annually, going back to 2020 when the parties separated. My basis is Syed’s expenses—for him to cover $92,000 in expenses, he would need to earn $130,000 in income before taxes. Given Syed’s young age, his entrepreneurial experience, his standard of living before separation, and his parenting obligations, it’s reasonable that he could earn much more than $60,000 per year. He’s either earning an income from unreported sources, or he’s choosing not to be earning an income.

2. The table child support amount is $1362 monthly.

168On the eve of trial, the parties settled a parenting order:

• for child support, BB has equal parenting time with each of Syed and Sarahat
• CC and DD have parenting time with Syed on alternative weekends from Friday 8pm to Sunday 8pm and Wednesdays and Thursdays from 6pm to 9pm (which I calculate as 1560 hours annually, or around 18 percent)
• AA, who is in university, lives with Sarahat during the summer break

169To determine table child support, I need to make two additional findings. First, what is Sarahat’s income? Sarahat’s Total income in the T1 General form issued by CRA for 2022 is $134,430.22. She earned $58,110.96 in employment income; the balance of her income was from dividends, investment income, and rental income. Sarahat’s evidence is that she earned less rental income in 2023 because one of the rental properties was intermittently vacant. For this reason, she proposes using an annual income of $100,000.

170I’m not persuaded by this evidence. Rents go up. Tenants leave. Rather than guessing, section 16 of the Guidelines provides certainty by using the parties’ Line 15000 income. Though section 17(1) of the Guidelines allows the court to consider the party’s pattern of income, that doesn’t help Sarahat since her income has spiked since 2020. Sarahat didn’t lead any evidence on her 2023 income (for example, tax slips or pay stubs). As a result, I’ve based my order on a finding that she earned $134,430.22 in 2023, like she did in 2022.

171Second, should AA’s child support be based on shared parenting time, or only summer support? Courts have ordered the full table amount in the months the child is living at home with a lesser amount when the child is away at school (i.e., summer support). But courts have also maintained robust support obligations even during periods when the child is living away from home. This continued support obligation is based on the “reality” that while the recipient parent will have modest reductions in expenses when the child is away at school, maintaining a permanent home for the child leads to incidental expenses that continue even in the child’s temporary absence. See Hristovski v Hristovski, 2022 ONSC 5972, at paras 62-63.

172At the time of the trial, the parties don’t really know how AA would manage her summer—she had just finished her school year. But her permanent home is with Sarahat. Though I didn’t hear much evidence about the parenting dynamics given parenting time was settled, the little evidence I did hear left me with the strong impression that AA would “come home” for the summer. Syed lamented the fact that he doesn’t have a large enough apartment to accommodate all the children—it’s a one-bedroom, and he sleeps on the floor when the children visit. It’s unlikely that AA, after living away for school, would make her permanent home with Syed.

173As a result, I endorse orders that:

• starting November 1, 2024, Syed shall pay monthly table child support of $2543 to Sarahat based on his imputed income of $130,000
• starting November 1, 2024, Sarahat shall pay monthly table child support of $1181 to Syed based on her income of $134,430.22
• starting November 1, 2024, the amount to cover all the children’s special and extraordinary expenses shall be shared by Syed and Sarahat in proportion to their incomes (49%/51%)

3. Syed shall pay $87,627.93 in retroactive child support.

174Sarahat claims $103,534 for retroactive table support based on imputing $150,000 income to Syed and using $100,000 income for herself. In response, Syed submits that no retroactive child support should be paid by either party even though Sarahat owes him child support. He makes this argument on three grounds:

• he only received effective notice of Sarahat’s claim for child support in May 2022
• he and Sarahat have had shared parenting time since then
• his imputed income should be $60,000

175A court of competent jurisdiction may make an order varying, rescinding, or suspending, retroactively or prospectively a support order or any provision of one. See Divorce Act, s 17(1).

176“Retroactive” awards aren’t truly retroactive. They don’t hold parents to a legal standard that didn’t exist at the relevant time. But they’re “retroactive” in that they’re not being made on a go-forward basis: the payor is being ordered to pay what, in hindsight, should have been paid before. See DBS v SRG, 2006 SCC 37, at para 2.

177This case engages the first of the three situations identified in DBS: when there has already been a court order for child support, but this amount has been arguably inadequate for some time. See DBS, at para 62.

178There are four key factors to consider before making a retroactive child support order:

• the reason support or variation of support wasn’t sought earlier
• conduct of the payor parent
• circumstances of the child at the current time and at the time the support should have been paid
• hardship occasioned by the retroactive award to the payor

See DBS, at paras 94-116.

179“Effective notice” for retroactive decreases is different than that for retroactive increases. This difference reflects the informational asymmetry. For retroactive increases, it is sufficient for the recipient to broach a potential increase. See DBS, at para 121. In decrease cases, “effective notice” requires that the payor provide reasonable proof of changes that is enough to allow the recipient to independently assess the situation. See Colucci v Colucci, 2021 SCC 24, at para 90. The payor also has an ongoing obligation to engage in meaningful dialogue with the recipient about any further changes to income or economic capacity. Failure to do so may impact the period of retroactivity when the court applies the discretionary DBS factors. See Colucci, at para 90.

180In order to determine whether Syed should pay retroactive child support, some discussion of parenting time is needed, even though the parties have consented to a final order.

181From the parties’ separation in September 2020 until May 2021, Syed was in Bangladesh. I heard no evidence on whether the children had any virtual parenting time with Syed. If there was any parenting time, I infer it was split given that Syed wasn’t physically here.

182On May 20, 2021, Justice Kurz made an interim parenting order:

• the children’s primary residence was with Sarahat
• BB, CC, and DD had virtual parenting 4 days a week, for one hour
• AA could participate if she wanted
• otherwise, Sarahat would facilitate additional parenting time as requested by the children or Syed—the only evidence I heard was that some or all of the children had occasional overnight parenting time with Syed
• Syed would pay $5874 monthly for child support, along with $900 monthly for section 7 expenses (he only ever paid $9874 total)

183Syed claims that he only received effective notice of Sarahat’s demand for child support on May 16, 2022, when Sarahat’s lawyer wrote to him. This letter doesn’t affect the analysis. Syed had notice that Sarahat was seeking child support from before Justice Kurz’s order, and had to pay child support under that order from at least May 2021. And the letter was a without prejudice offer to settle.

184Starting in March 2023, AA lived intermittently with Syed.

185On April 28, 2023, Justice Kurz made another interim parenting order:

• BB, CC, and DD had shared parenting time with Sarahat and Syed, on a week-about basis
• again, for AA, parenting time was at her discretion

186In Fall 2023, AA moved into the university dorm. BB lived intermittently with Syed from September 2023 to December 2023.

187I’ve calculated the retroactive child support owing as follows:

Year	Syed's Income	Syed's CSG Table Amount	Sarahat's Income	Sarahat's CSG Table Amount	Syed's Child Support
2020	$130,000	$2845	$75,109.33	$0	$11,006.89
2021	$130,000	$2845	$104,137.25	$0	$34,140
2022	$130,000	$2845	$134,430.22	$0	$34,140
2023 (to April 28)	$130,000	$2845	$134,430.22	$0	$11,037.04
2023 (from April 28)		$2927		$(666)
2024	$130,000	$2845	$134,430.22	$2927	$(328)
TOTAL					$89,329.93

188My order is based on the factual findings:

• Syed’s imputed income is $130,000 for each of 2020 to present
• Sarahat’s income for 2023 and 2024 is the same as her 2022 income
• the parties had split parenting time from September 2020 to April 2023—the children lived mainly with Sarahat
• Sarahat concedes that the parties had shared parenting time after April 2023 and until April 2024
• Syed was ordered by Justice Kurz to pay child support starting in May 2021 but he unilaterally stopped doing so

189Syed paid only $9874 under Justice Kurz’s temporary order. In addition, he must pau $8172 in child support from May 1st to now. As a result, I order and adjudge that Syed shall pay retroactive child support of $87,627.93 for September 4, 2020, to October 31, 2024.

4. Syed shall pay $69,925.06 in retroactive section 7 expenses.

190Sarahat claims $87,501.58 in retroactive child support for the children’s special and extraordinary expenses. Sarahat relies on receipts for 29 categories of expenses, including university tuition, childcare, private tutoring, and after-school activities (coding, karate, and swimming). Syed submits that nothing should be ordered because Sarahat made this claim in the middle of trial. Alternatively, he submits that he’s paid over $40,000 to Sarahat, the children, and service-providers for these expenses, and he contributes over $37,000 annually to these expenses.

191Both parties pleaded that the other party should pay a proportionate share of the children’s section 7 expenses. As a result, I find that Syed had sufficient notice that this issue was disputed for the trial. I didn’t hear any submissions on whether Syed was properly notified that Sarahat was incurring these expenses. Syed didn’t challenge these expenses as not covered by section 7 of the Guidelines (though I question whether karate, coding, and swimming lessons are “extraordinary”). Sarahat had to pay for these expenses out-of-pocket.

192Though Syed says he transferred money to the children and Sarahat, there’s no evidence that these payments were to cover their section 7 expenses. Syed hasn’t led any admissible evidence of the expenses he’s incurred (such as receipts for karate, gym memberships, cell phones, or cars, though again these may not be special or extraordinary expenses). As a sophisticated businessperson engaged in family law litigation since 2020, Syed would have known that he needed to keep records of these expenses if he intended to claim them.

193As a result, I order and adjudge that Syed shall pay retroactive child support to cover the children’s special and extraordinary expenses in the amount of $69,925.06:

Year	Total Section 7 Expenses	Syed's Income Share	Syed's Section 7 Expense
2021	$27,048	56%	$15,146.88
2022	$40,286.60	49%	$19,740.43
2023	$53,296.67	49%	$26,115.37
2024	$18,208.94	49%	$8,922.38
TOTAL			$69,925.06

194Syed shall also pay 49 percent of any special and extraordinary expenses since May 1, 2024.

L. Issue #11: what order should the court make for spousal support?

195A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay such lump sum or periodic sums as the court thinks reasonable for the support of the other spouse. See Divorce Act, s 15.2(1). The court may make an order under section 15.2(1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions, or restrictions in connection with the order as it thinks fit and just. See Divorce Act, s 15.2(3).

196In making an order under section 15.2(1), the court shall take into consideration the condition, means, needs, and other circumstances of each spouse, including: (a) how long the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and (c) any order, agreement, or arrangement relating to support of either spouse. See Divorce Act, s 15.2(4).

197There are three dimensions to spousal support: (a) entitlement; (b) amount; and (c) quantum.

1. Sarahat is entitled to spousal support.

198There are three bases for spousal support: (a) contractual; (b) compensatory; and (c) non-compensatory. See Bracklow v Bracklow, 1999 CanLII 715 (SCC), [1999] 1 SCR 420, at para 37. Sarahat’s claim is for compensatory support.

199Compensatory support aims to provide equitable sharing of the economic consequences of marriage. The goals of a compensatory award are to provide some compensation for economic loss or disadvantage experienced by the recipient spouse because of the roles adopted during the marriage or following separation, or for the economic benefits which the payor spouse derived from the claimant’s sacrifices and contributions, for which the claimant hasn’t been adequately compensated. See Moge v Moge, 1992 CanLII 25 (SCC), [1992] 3 SCR 813, at paras 68-70; Bracklow, at para 18. A compensatory award recognizes that such sacrifices, contributions, and benefits experienced or conferred often lead to interdependency between the spouses and merger of their economic lives. See Cassidy v McNeil, 2010 ONCA 218, at para 71. Compensatory support can compensate a spouse for diminished earning capacity or loss of future prospects. It can also be used to allow the spouse to share in economic advantages enjoyed by the other spouse that their sacrifices made possible. See Thompson v Thompson, 2013 ONSC 5500, at paras 55-58.

200Compensatory support responds to two objectives under the Divorce Act: (a) recognizing the economic advantages or disadvantages arising from the marriage or its breakdown (s 15.2(6)(a)); and (b) apportioning financial consequences arising from the care of any child of the marriage beyond any obligation for support of any child of the marriage (s 15.2(6)(b)).

201I find that Sarahat has a compensatory spousal support claim. Sarahat was the primary caregiver for the parties’ four children. To the extent that she earned any income in Bangladesh or Australia, she was a secondary earner. She had primary care of the children after separation, at least until May 2023. In Australia, she worked a little but only in the family business. Syed’s businesses, in Bangladesh and Australia, benefitted from Sarahat’s sacrifices. She made it possible for him to have both a family and be a successful entrepreneur. The best example is his departure for Bangladesh in 2020 and 2021—he could only go there for a long time span because Sarahat was home to take care of the children.

2. The appropriate quantum is nil.

202The Spousal Support Advisory Guidelines provide guidance for the appropriate range of support. The quantum and duration ranges generated by the SSAG simply provide a general framework for the exercise of the court’s discretion. It’s therefore open to the court to go above and below the ranges in appropriate circumstances. See Alalouf v Sumar, 2019 ONCA 611, at paras 21-25; Kinsella v Mills, 2020 ONSC 4785, at para 107.

203The SSAG range here is $0. As a result, I decline to order any spousal support. Given that, I need not decide duration.

M. Issue #12: did Sarahat wrongfully discard Syed’s possessions or wrongfully prevent him from selling the Amicus property in Bangladesh?

204Syed claims for damages for the tort of conversion. First, he alleges that Sarahat wrongfully disposed of his household goods in the amount of $100,000. Second, he alleges that Sarahat refused to provide him the deed for the Amicus property, which prevented him from selling it. He claims $350,000 in damages.⁵ Syed hasn’t proven his claims.

205A claim for conversion involves a wrongful interference with the goods of another, such as taking, using, or destroying these goods in a manner inconsistent with the owner’s right of possession. See Del Giudice v Thompson, 2024 ONCA 70, at para 38.

1. Syed hasn’t proven his claim for the household goods.

206In October 2022, Syed shipped almost 950kg of household goods from Bangladesh to the matrimonial home. The inventory list includes a guitar, which the parties acknowledge belongs to Syed. Syed also claimed ownership of a bike—Sarahat didn’t dispute this. The list also included many household goods, like dishware, linens, wall hangings and photo frames, and electronics. Both Syed and Sarahat each claim these items belonged to them. Finally, the list includes women’s garments, which Syed didn’t dispute belonged to Sarahat.

207Sarahat believed that all the items belonged to her, and she gave them away. She didn’t explain why she gave away the guitar and bike.

208Other than the bike and guitar, Syed hasn’t proven that he had a right of possession over the other items in the cargo containers. Though his name is on the shipping labels, that doesn’t prove ownership of the items inside (and Syed doesn’t dispute that some items belonged to Sarahat).

209Moreover, the claimant must prove damages. Syed led no evidence about the value of the guitar or the bike. As a result, he hasn’t proven an essential element of the claim, so it’s dismissed.

2. Syed hasn’t proven his claim for the Amicus deed.

210Syed submits that he tried to sell the Amicus property but needed the original deed, which Sarahat wouldn’t produce to him. Syed requested the deed several times between November 2022 and January 2023. Sarahat finally proposed that the parties jointly retain a lawyer in Bangladesh to help sell the property (I infer that she planned to provide the deed directly to the lawyer). Sarahat was concerned that Syed would “dissipate or hide the proceeds of sale”.

211Syed’s claim is too speculative. First, Syed led no concrete evidence about the property sale—him and his Bangladeshi lawyer said there were prospective buyers, but Syed didn’t produce any documents either supporting an offer or a demand for the original deed. Second, a supplier sued Syed, and encumbered the property before any potential buyers made offers. The property can’t be sold until that case is finished. Finally, there’s no evidence of Syed’s damages—no evidence was introduced at trial about the property’s value, the encumbrances on the property, the sale price, or the fees associated with selling it that would allow the court to calculate Syed’s lost profit. For these reasons, Syed’s claim is dismissed. That said, now that the litigation is over, I don’t see any reason for Sarahat to continue withholding the deed from Syed.

N. Issue #13: is Syed liable for committing violence against Sarahat or violating her privacy?

212Sarahat sues Syed for the torts of battery, assault, intentional infliction of mental suffering, false imprisonment, and public disclosure of private facts. A party in a divorce proceeding may join a tort claim to a family law proceeding. See Ahluwalia v Ahluwalia, 2023 ONCA 476, at paras 39-46; Booth v Booth, 1995 CanLII 8948 (Ont CA), at para 3.

213Sarahat claims $325,000 in general and aggravated damages for 13 tortious acts, including physical and sexual assault. She also alleges that Syed caused her to be forcibly confined in a hospital against her will. Finally, she alleges that Syed invaded her privacy by sharing intimate photos of her with family and friends. Syed denies each of these allegations.

214Intimate partner violence is a “pervasive social problem”. Nearly half of women have experienced IPV, which includes physical abuse, forced confinement, sexual abuse, and coercive control. See Ahluwalia, at para 1; Children’s Law Reform Act, RSO 1990, c C.12, s 18(1).

215As I discuss below, I don’t find Syed’s evidence to be credible. He pleaded guilty to assaulting Sarahat, but then concocted a story about how she entrapped him into doing so. He either lied at his plea hearing, or he lied in this proceeding. There’s also evidence that Syed has tried to control Sarahat’s movements and relationships—his attempt to provide an innocent explanation for his actions was incredible. In total, I find that Syed’s deliberate lies have tainted all of his evidence on this issue. As a result, I find that he’s liable for assaulting, battering, and inflicting emotional suffering on Sarahat, and I award her $200,000 in damages. That said, she hasn’t proven forcible confinement or public disclosure.

1. Syed battered and assaulted Sarahat. He intentionally inflicted mental suffering on her.

216Battery involves “actual physical contact” or “bringing about harmful or offensive contact with another person.” The tort of battery requires “direct interference with one’s person.” Interference is direct if it’s the “immediate consequence of a force” caused by the defendant’s actions. See Ahluwalia, at paras 61-62.

217Assault involves “intentionally causing another to fear imminent contact of a harmful or offensive nature.” Damages are recoverable by someone who is “made apprehensive of immediate physical contact, even though that contact never actually occurs.” See Ahluwalia, at para 61, 64.

218The tort of intentional infliction of emotional distress has three elements: (a) the defendant’s conduct was flagrant and outrageous; (b) the conduct was calculated to harm; and (c) the conduct caused the plaintiff to suffer a visible and provable illness. See Boucher v Wal-Mart Canada Corp., 2014 ONCA 419, 120 OR (3d) 481, at para 41.

219In this case, Sarahat and Syed offer starkly different versions of the alleged assaults. As a result, the parties’ credibility and reliability is fundamental to resolving this issue. IPV is “notoriously difficult to prove”—it often takes place “behind closed doors” and can’t be corroborated. See Barendregt v Grebliunas, 2022 SCC 22, at para 144.

220In support of her argument that Syed isn’t believable, Sarahat points to several inconsistent or unreasonable statements made by Syed. She also points to an example of coercive control—she says that Syed’s lack of credibility about this event undermines his denials to her assault allegations. I agree.

i. The Admitted Assault

221Syed pleaded guilty to assaulting Sarahat in February 2020. He was sentenced to two years’ probation.

222Sarahat didn’t want Syed to travel to Bangladesh and leave her and the children in Canada. Syed pulled Sarahat off the couch and kicked her. Sarahat suffered bruises to her hip and back. Even though Syed pleaded guilty, he denied the assault at this trial.

223He has a complicated story for why he pleaded guilty. After being arrested for allegedly assaulting Sarahat, he was released on bail. He says that Sarahat tricked him into violating his bail conditions and, because he didn’t have a surety in Canada, he was denied bail. According to Syed, the jail conditions were so poor, he pleaded guilty just to get out.

224I don’t believe his story about how he ended up in jail. Syed says that Sarahat’s fiancé was allegedly extorting her by sending semi-nude pictures of Sarahat to Syed in February 2021. Despite his no-contact bail condition, Syed contacted Sarahat to tell her about the pictures, and then sent her the photos. Sarahat then complained to the police that Syed violated the no-contact order, leading to Syed’s re-arrest. Syed implies that Sarahat and her fiancé manufactured the threat in an elaborate attempt to entrap him. But Syed also says that he helped Sarahat report the alleged extortion to the Bangladesh High Commission in Qatar (where her fiancé lived).

225Syed’s version of events doesn’t make sense. First, in early 2021, the parties were in the midst of litigation over parenting time. Syed had a lawyer, both for the criminal charges and the family law proceeding. His immigration status in Canada was temporary. It’s unreasonable to believe that he would take the unnecessary risk of breaching the no-contact order, or do so without first seeking advice or counsel. Second, it makes no sense that he would then help Sarahat complain to the embassy about an alleged exploitation that he says was a ruse.

226I don’t accept Syed’s explanation. Either he lied at the guilty plea, or he lied at this trial. I’m not prepared to go behind Syed’s conviction. He battered Sarahat.

ii. The Contested Assaults

227Sarahat also claims that Syed physically and sexually assaulted on many other occasions, in Bangladesh and Australia:

• in October 2003, Syed slapped Sarahat in front of his sister and mother because she complained that they had no privacy in their new home—Sarahat says she took 10 sleeping pills to deal with the shock of Syed’s actions and was severely depressed
• in 2004, Sarahat refused to consent to sex because she was menstruating and feeling unwell—Syed raped her despite that she was bleeding and crying, causing her extreme pain
• in 2008, Sarahat accused Syed of infidelity—Syed pushed her on to the bed, bit her neck and lips, and raped her, saying “I have a license to fuck you as many times as I want because I am married to you”
• in 2010, Sarahat accused Syed of cheating on her with one of his employees—in response, Syed slapped Sarahat, pulled her hair, pushed her onto the floor, and kicked her stomach and back, leading her to miscarry their unborn child
• that same year, during another argument about Syed’s infidelity, Syed threatened to kill himself, and then turned the knife on Sarahat and chased her out of the house—when she returned, Syed slapped her and raped her
• in 2013, Sarahat fled the family residence with the children—her father instructed her to return home and, when she did, Syed raped her
• in 2015, Syed accused Sarahat of having an affair with their driver—when she denied it, he slapped her face, chased her around the house, and threatened to slash her with a broken shard of glass, causing Sarahat to flee the house without her children
• in June 2015, after returning from Monomita Hospital, where Sarahat had been admitted for mental illness, Syed raped her and threatened to return her to the hospital if she didn’t comply
• after moving to Australia, Syed pushed Sarahat to the floor, slapped her, and orally abused her—Sarahat again fled the family home but returned after being convinced to do so by Syed’s cousin
• in May 2019, Sarahat confronted Syed about his brother’s involvement in the family business, an ongoing dispute—Syed slapped Sarahat, causing her nose to bleed
• later that month, the day the parties were moving to Canada, Sarahat asked Syed to help her pack while she cleaned the house—he got angry, slapped her and pushed her to the floor

228Taken together, Sarahat suffered “constant threats of imminent harm, solidified by actual harm”. The “pattern of abuse” caused her to live in “near-constant fear of imminent harm.” See Ahluwalia, at para 67. Asking for more privacy or help packing triggered Syed. Refusing sex triggered Syed. Denying infidelity triggered Syed. Accusing him infidelity triggered Syed.

229Syed’s beatings caused Sarahat “visible and proven illnesses”: depression, a miscarriage, bruises to her back and hips, extreme pain, soreness, and a fever. See Ahluwalia, at para 70. The victim of IPV or a sexual assault is presumed to have suffered emotional distress. See Victims’ Bill of Rights, 1995, SO 1995, c 6, s 3(2).

230Sarahat reported two of the incidents to the police. For one, she was encouraged by Syed’s cousin to recant the complaint. For the other, she testified that the family’s precarious immigration status created vulnerabilities, which encouraged her not to press charges.

231Sarahat also testified that cultural norms in Bangladesh and in her Muslim family encouraged her to maintain her relationship with Syed, despite the risk to her safety. Family pressure meant that she didn’t receive empathy or support despite her claims. Though Sarahat couched her evidence in Muslim cultural norms, I accept her subjective belief that it would be difficult to leave Syed despite the alleged violence because of her community’s and family’s beliefs.

232In his defence, Syed simply denies every allegation. He relies on irrelevant evidence (e.g., she delayed in reporting the incident to the police until after he left for Bangladesh). He relies on inadmissible evidence, like hearsay statements from AA or CAS notes. He and his brothers testified that Sarahat hit Syed—I don’t understand the relevancy of this evidence, as he hasn’t sued for tort damages and he doesn’t claim self-defence.

233In sum, I’m left with little or no independent evidence. I believe Sarahat. Though there were contradictions in her evidence, I don’t find that these inconsistencies undermine her credibility. Witnesses can’t be expected to have faithful memories of “minor incidents that occurred during a traumatic event”. The “inability to recall a minor or insignificant event” doesn’t detract from the witness’s overall reliability or credibility. See R v GMC, 2022 ONCA 2, at para 38.

234In contrast, I don’t believe Syed. I don’t find his evidence credible. Syed’s repeated denial that he assaulted Sarahat in 2020, even though he pleaded guilty, taints all of his evidence on this issue. This isn’t a mere inconsistency—he denied the assault and then compounded that position by alleging that Sarahat entrapped him to explain how he ended up in jail again.

235In making this finding, I rely on two other pieces of evidence. First, Sarahat introduced emails with Syed’s cousin and Syed about the abuse.

236In April 2013, Sarahat emailed Syed’s cousin Rishad Syed about Syed’s assaults: “He has beaten me few days before to my face, my head, he took a knife from the kitchen and pretended to commit suicide just to stop my mouth.” In December 2013, Sarahat emailed Syed: “DURING THE LAST 10 YEARS, YOU HAVE ABUSED ME PHYSICALLY, RAPED ME BY SALE OF SEX, FORCED ME TO SEX AGAINST MY WISH, YOU HAVE INSULTED ME REPETEDLY [sic]”. Sarahat relies on these emails as contemporaneous evidence documenting Syed’s assaults. Syed objects on the grounds that these are prior consistent statements.

237Prior consistent statements are presumptively inadmissible. There are several rationales for this rule, including that prior consistent statements: (a) lack probative value; (b) are often self-serving; and (c) are hearsay. See R v DK, 2020 ONCA 79, at para 34. Sarahat’s statements can’t be admitted to enhance her credibility or corroborate her in-court testimony. But they’re admissible to “appreciate the ‘chronological cohesion’” of Sarahat’s narrative and evaluate her credibility and reliability. See DK, at paras 37-38.

238Sarahat’s emails show the fact and timing of her complaints, which help me assess her credibility and truthfulness. She said she confronted Syed about his abuse. She said she told his cousin about his abuse. These emails show that she’s telling the truth about that disclosure. That said, they can’t be used to confirm the truth of her allegations. See R v Dinardo, 2008 SCC 24.

239Second, during his testimony, Syed concocted a tale about meeting Sarahat’s partner, Ishtiaque Ahmed. In doing so, Syed’s narrative showed that he engaged in coercive control. Coercive control is where someone uses “tactics of isolation, manipulation, humiliation, surveillance, micro-regulation of gender performance, economic abuse, and threats” to control their partner. See Jennifer Koshan et al., “Introduction: Domestic Violence and Access to Justice within the Family Law and Intersecting Legal Systems”, (2023) 35:1 Can J of Fam L 1 at 12; Ahluwalia, at para 103; SVG v VG, 2023 ONSC 3206, at para 100.

240Though Sarahat doesn’t allege that Syed’s coercive actions are tortious, I find his explanation of the events to be incredible, so much so that they taint all of his evidence on the abuse issue.

241In October 2022, Syed discovered that Sarahat and Mr. Ahmed, a lawyer, were in a relationship. Syed says he was, coincidentally, looking for an Indian or Bengali lawyer to help him with a mortgage transaction. He says he called Kapoor Law because it sounded like it had Indian lawyers—the receptionist confirmed the firm had a Bangla-speaking lawyer. The receptionist set up an appointment. As it turned out, the lawyer was Mr. Ahmed. According to Syed, he and Mr. Ahmed talked about Sarahat, including how they each met her. Sarahat suggests that Syed engineered the meeting, and then confronted Mr. Ahmed about Sarahat.

242Syed’s narrative isn’t believable. He knew that Sarahat and Mr. Ahmed were in a relationship. He knew that Mr. Ahmed was a lawyer. Syed had retained several Canadian lawyers since immigrating—he showed no difficulty in communicating with them, and a mortgage transaction doesn’t need special language skills. There’s also no evidence that Syed was about to enter into a mortgage. Even more incredibly, this meeting happened in the midst of his and Sarahat’s settlement negotiations, when Syed claims he was the victim of Sarahat’s undue pressure. That doesn’t make any sense. I find that he manufactured an excuse to confront Mr. Ahmed.

243Syed’s actions had the effect of sending a warning to Sarahat that despite their separation, he could and would monitor her new life. Syed’s lack of credibility on this incident is another example of his overall lack of credibility when it comes to whether he assaulted and battered Sarahat.

244In conclusion, Syed battered Sarahat. He assaulted her. He intentionally inflicted emotional distress on her.

iii. Damages

245Sarahat claims $25,000 for each incident of physical or sexual assault ($300,000 in total). She doesn’t distinguish between general and aggravated damages. She also claims $100,000 in punitive damages. Syed argues that Sarahat should be awarded only “nominal damages”.

246Damages serve the purpose of putting the plaintiff in the position they would’ve been in but for the injury. Non-pecuniary damages can’t be “arithmetically calculated” because they compensate the plaintiff for “intangible losses” arising from loss of “enjoyment of life, esthetic prejudice, physical and psychological pain and suffering, inconvenience, loss of amenities, and sexual prejudice”. See Cinar Corporation v Robinson, 2013 SCC 73, at para 95; McIntyre v Docherty, 2009 ONCA 448, at paras 31-32.

247In assessing non-pecuniary damages, the court may look to awards made in analogous cases. See Cinar Corporation, at para 106. That said, each case must turn on its own unique facts. No two personal injury claims are identical, and awarding damages involves an exercise of judgment.

248Aggravated damages are compensatory. They’re awarded “when the reprehensible or outrageous nature of the defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff’s feelings”. See Barker v Barker, 2022 ONCA 567, at para 257.

249. Damage awards should reflect society’s abhorrence towards the “evils of intimate partner violence”, and its harms. See Ahluwalia, at para 128. Courts have considered the pattern of abuse as a reason to award higher damages. See Ahluwalia, at para 80.

250There are several analogous cases since Ahluwalia, in which the Court of Appeal upheld the trial judge’s award of $50,000 for each of compensatory and aggravated damages:

Case	Damages
Mikhail v Mikhail, 2024 ONSC 4427	$100,000 in in aggravated and compensatory damages
Pichie v Pichie, 2024 ONSC 2868	$75,000 in general damages $25,000 in aggravated damages
Hunt v Hunt, 2024 BCSC 1048	$20,000 in general damages $5000 in aggravated damages
Wang v Li, 2024 ONSC 2352	$75,000 in damages

251In Ahluwalia, at paras 73-85, the Court of Appeal cited several IPV cases where the total damages ranged from $4000 to $175,000.

252I order and adjudge that Syed pay $175,000 in compensatory and aggravated damages to Sarahat for battery, assault, and intentional infliction of emotional distress.

253I acknowledge that this award is higher than Ahluwalia and the cases following it. In making this award, I’m loathed to find that the facts here are “worse” than in the analogous cases. I’m also reluctant to find that a specific incident of assault or battery is “worth” some amount.

254Instead, this case demands an award that reflects our collective “abhorrence” of IPV. Syed used physical and sexual violence to control Sarahat. For almost 20 years, Sarahat has lived in fear that Syed would beat her or rape her. Sarahat suffered physical pain and emotional distress following these repeated assaults. She felt that she couldn’t report this abuse either to the police or a medical professional because of the cultural and religious stigma around IPV in her family and community. As the abuse trailed her from country to country, Sarahat’s precarious immigration status further isolated her. When she returned home after a beating, she was greeted with more abuse. Syed believed that he had a “right” to rape her. She miscarried their unborn child. Syed’s actions were evil.

255Punitive damages in tort cases are exceptional: their purpose is to punish a defendant for conduct that’s reprehensible, and a “marked departure from ordinary standards of decent behaviour”. They should be awarded, along with the compensatory damages already awarded, when rationally required to punish a defendant to meet the objectives of retribution, deterrence, and denunciation, in an amount no greater than necessary to satisfy these objectives. See Humphrey v Mene Inc., 2022 ONCA 531, at para 79. But they should only be awarded where compensatory damages are “insufficient to achieve the goals of denunciation and deterrence.” See Whiten v Pilot Insurance, 2002 SCC 18, at para 94.

256I order and adjudge that Syed pay $25,000 in punitive damages to Sarahat. It’s one thing for Syed to assault Sarahat. But it’s another thing for him to either lie at his assault trial, or lie to this court about the guilty plea. Syed concocted an elaborate tale to, once again, harm Sarahat, this time from the witness stand. He should be punished for doing so. Parties should be deterred from lying to explain away their guilty pleas, especially where doing so once again degrades their ex-partner.

2. Syed isn’t liable for false imprisonment.

257Sarahat alleges that Syed arranged for 12 people, including doctors and nurses, to apprehend her, drug her, and then admit her to Monomita Hospital, where she was confined for eight or nine days. Syed, for his part, doesn’t dispute that Sarahat was admitted to Monomita Hospital. But he says she suffered a mental breakdown, and her father encouraged Syed to have her apprehended. He denies that there were several participants or that he encouraged them to drug her.

258Sarahat must prove three elements to establish the tort of false imprisonment:

(a) she must have been totally deprived of liberty;

(b) this deprivation must have been against her will; and

(c) it must be caused by the defendant.

The onus then shifts to Syed to justify the detention, based on legal authority under common law or statute. See Kovacs v Ontario Jockey Club, 1995 CanLII 7397, at para 46 (Ont Sup Ct).

259Syed didn’t argue that Sarahat could leave Monomita Hospital or that she consented to the admission. But I’m not persuaded, on the evidence before me, that Syed “caused” the confinement. Unless “the defendant personally has detained the plaintiff or has been responsible for the detention, the tort cannot be made out.” See Lewis Klar and Cameron Jefferies, Tort Law,7th ed (Toronto: Thomson Reuters, 2023), at p 72.

260Syed didn’t personally detain Sarahat. And I don’t know whom to believe on whether Syed was responsible for the detention. On one hand, the detention was sparked by events in the days before. Sarahat fled Bangladesh for Singapore after Syed accused her of an affair. She returned after Syed was admitted to the hospital. The day before the apprehension, at the hospital, she threw her shoe at Syed’s brothers in the midst of a heated argument. According to Syed, these events prompted Sarahat’s father to encourage an apprehension on the basis that Sarahat had a mental health breakdown. On the other hand, Syed says the final decision whether to apprehend Sarahat were made by the professionals—he merely contacted them at the urging of his father-in-law. Either way, I don’t find that Syed was responsible for her apprehension at Monomita Hospital.

3. Syed isn’t liable for the tort of public disclosure of private facts.

261Sarahat alleged that Syed shared the semi-nude photos he received from Sarahat’s fiancé with her family, Mr. Ahmad, and their children. Syed denies doing so. The parties didn’t introduce any other evidence about this disclosure.

262To establish liability for the tort of public disclosure of private facts, Sarahat must prove:

(a) Syed publicized an aspect of Sarahat’s private life;

(b) Sarahat didn’t consent to the publication;

(c) the matter publicized or its publication would be highly offensive to a reasonable person; and

(d) the publication wasn’t of legitimate concern to the public.

See Jane Doe 72511 v NM, 2018 ONSC 6607, at para 99; Ahluwalia, at para 82.

263Again, I don’t know whom to believe. Though witnesses don’t always have to corroborate their oral evidence with documents, I’m left doubting Sarahat’s narrative absent copies of the messages being introduced into evidence or oral evidence from the recipients. As a result, I can’t find that Syed publicized this aspect of Sarahat’s life.

264Sarahat also makes passing reference to the tort of intrusion upon seclusion. This tort doesn’t apply, given that Syed received the photos from Sarahat’s fiancé. He didn’t “intrude” into Sarahat’s phone, for example, to take the photos. See Jones v Tsige, 2012 ONCA 32, at para 71.

IV. CONCLUSION

265As I said from the start, there’s no fairytale ending here. But having resolved their parenting dispute, in the best interests of their children, I hope that the finality of this order on the monetary issues will allow Syed and Sarahat to move on from this painful chapter of their lives.

266This judgment shall bear interest at the rate of seven percent per year starting as of the date of this order.

267Syed shall prepare the draft order. The parties can send it to my judicial assistant to be signed. If Sarahat disagrees with the form or content of the draft order, Syed will come to court for settlement of the order.

268The parties will engage in meaningful discussions and negotiations respecting the costs of this trial. If they can’t resolve costs, any party seeking costs will serve, file, and upload to Case Center costs submissions (2500 words), any relevant offers to settle, and their bill of costs by October 25, 2024, 4pm. The other party’s responding submissions (2500 words) will be served, filed, and uploaded to Case Center by November 25, 2024, 4pm.

Agarwal J.

Released: October 7, 2024

Corrected decision: The text of the original decision was corrected on January 21, 2025. First, paragraph 122 is amended to align with the supplementary reasons for decision. See Zunnurain v Chowdhury, 2025 ONSC 143. Second, on consent, paragraph 102(b) was amended to change how the proceeds from the sale of the matrimonial home are distributed. Third, the parties agreed that my finding in paragraph 119 that there were C$308,067.89 in bonds was not based on the evidence and, as a result, should be deleted. Finally, Schedule A has been changed to correct an error in Item 23.

SCHEDULE A

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 / Address of Property	APPLICANT	RESPONDENT
Matrimonial Home	$637,500	$637,500
(Disposition Costs)	($38,278.75)	($38,278.75)
Amicus Mansion	$350,000
Bashundhara Plot	$492,538.07	$492,538.07
15. Totals: Value of Land	$1,441,759.32	$1,091,759.32

PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES

Item / Description	APPLICANT	RESPONDENT
Household goods & furniture
Cars, boats, vehicles	2017 Audi Q7	$23,000
	2016 Honda Civic	$14,362.50
Jewellery, art, electronics, tools, sports & hobby, equipment	$136,389.66	$136,389.66
Other special items
16. Totals: Value of General Household Items and Vehicles	$159,389.66	$150,752.16

PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS

Category / Institution / Account Number	APPLICANT	RESPONDENT
Savings, Chequing	$582,077.08	$1,005,399.66
Investment
17. Totals: Value of Accounts And Savings	$582,077.08	$1,005,399.66

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
Work Field Knit Wear Ltd.	$4,591,316.72	$0.00
19. Totals: Value Of Business Interests	$4,591,316.72	$0.00

PART 4(f): MONEY OWED TO YOU

Details	APPLICANT	RESPONDENT
Den Mahr	$0.00	$16,940.01
20. Totals: Money Owed To You	$0.00	$16,940.01

PART 4(g): OTHER PROPERTY

Category / Details	APPLICANT	RESPONDENT
21. Totals: Value Of Other Property	$0.00	$0.00
22. VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21])	$6,774,542.78	$2,264,851.15

Table 2: Value Of Debts and Liabilities on Valuation Date

PART 5: DEBTS AND OTHER LIABILITIES

Category / Details	APPLICANT	RESPONDENT
Mortgage	$342,000	$342,000
Work Field Loans	$10,999,245.35	$5,499,622.67
Other	$44,200	$8434.55
23. Totals: Debts And Other Liabilities, (TOTAL 2)	$11,385,445.35	$5,850,057.22

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		$476,657.57
Income from property expressly excluded by donor/testator
Damages and settlements for personal injuries, etc.
Life insurance proceeds
Traced property
Excluded property by spousal agreement
Other Excluded Property
26. TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4)	$0.00	$476,657.57

	APPLICANT	RESPONDENT
TOTAL 2: Debts and Other Liabilities (item 23)	$11,385,445.35	$5,850,057.22
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	$476,657.57
TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4)	$11,385,445.35	$6,370,754.29
TOTAL 1: Value of Property Owned on Valuation Date (item 22)	$6,774,542.78	$2,264,851.15
TOTAL 5: (from above)	$11,385,445.35	$6,370,754.57
TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5)	($4,610,902.57)	($4,105,903.42)
EQUALIZATION PAYMENTS
Applicant Pays Respondent	$0.00
Respondent Pays Applicant		$0.00

Footnotes

1. 1Three of the four children are minors. They’re not parties to this proceeding. Parenting time and decision-making authority aren’t at issue. As a result, I see no reason to intrude upon their privacy by disclosing their names.
2. 2The documents and the parties’ oral evidence refer to several different currencies and units of measurement, including crore (which is 10 million) and lakh (which is 100,000). In describing the facts, I’ve repeated the parties’ evidence to avoid any misunderstanding because of fluctuating exchange rates. The parties agreed on the applicable exchange rates for various events. My order is in Canadian dollars.
3. 3Syed’s trial counsel represented him in the negotiations; Sarahat had a different lawyer.
4. 4The parties’ lawyers provided the court with Form 13B in the form of an Excel spreadsheet. They parties filled in the values they agreed on. They highlighted the values they disagreed on. The spreadsheet included formulas, which made it easy for the court to calculate the NFP.
5. 5At the start of trial, Syed sought leave to amend his application to add these claims. Though Sarahat at first opposed the motion, she consented by the close of the trial. For certainty, I endorse an order that Syed may amend his pleadings to claim the tort of conversion.