COURT FILE NO.: FS-22-32563 DATE: 20241213 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Neeraj Monga Applicant -and- Dimple Monga Respondent

Counsel: Marcy Segal, for the Applicant Zoran Bozicc and Eduardo Barbosa, for the Respondent

Heard: October 7, 8, 9, 10, 2024 Final submissions: Applicant, October 28, 2024; Respondent: November 12, 2024; Reply by Applicant: November 18, 2024

Before: Des Rosiers, J.

Reasons for Judgment

Overview

[1] Neeraj Monga, the Applicant (“Mr. Monga” or “the father”)), met Dimple Bahtia, the Respondent (“Ms. Monga” or “the mother”)), on a virtual dating site. He went to meet her in person in India, and a few days later, they married on November 27, 2004. Mr. Monga sponsored his new wife to Canada, and she arrived in Toronto in April 2005.

[2] The parties have two children: a daughter, S., 17 years old, and a son, A., who is 13 years old. The parties separated without the possibility of reconciliation on February 28, 2022.

[3] This case involves the parents’ relationship with the children, including decision-making and parenting time. It also involves the resolution of the financial aspects of the end of their marriage, that is, equalization and spousal support. Finally, many post-separation issues must be addressed to determine what each spouse owes the other.

[4] This was a high-conflict litigation and a very emotional trial.

[5] After providing a brief history of the family, the general position of the parties and the history of the litigation, I will address the various issues in three broad categories: relationship with the children, end-of-marriage financial issues, and post-separation adjustments.

The family history

[6] Mr. Monga is a forensic accountant and financial analyst. He has several university degrees, one from Indore University in India and an MBA from the Ivey School of Business at Western.

[7] Ms. Monga has a Master’s Degree in Political Science from the University of New Delhi. She was a trainee at American Express in New Delhi when she married Mr. Monga.

[8] Until 2014, for the first nine-and-a-half years of the marriage, Mr. Monga was a partner at Veritas Investment Research Corporation (“Veritas”). The family enjoyed a very comfortable lifestyle. Ms. Monga began studies in Canada, but she did not work outside the home until 2013 or 2014. The parties had their two children. The family travelled often and purchased a house in an expensive neighbourhood in Toronto.

[9] Ms. Monga was very active in her children’s activities. She got involved in the school that they attended, including being the assistant librarian. She was also very active in the Indian community and in her faith.

[10] Mr. Monga was also an involved parent, supporting the children’s activities. Both parents cared for and are ambitious for their children.

[11] Through his work at Veritas, Mr. Monga became involved in an investigation of the Indiabulls Group of Companies, in India, that resulted in a very critical report of the Bank of India. In retaliation to the criticism, Mr. Monga and one of his Veritas partners were charged with criminal libel.

[12] To this day, Mr. Monga cannot return to India because he would be arrested. Interpol had a mandate for his arrest, which he successfully challenged. He is now able to travel internationally, just not to India.

[13] In April 2014, Mr. Monga decided to sell his shares in Veritas. He sold his interest for $1,000,000 on April 11, 2014. He continued to work for Veritas for 12 months and then worked solely for his own company, Antya. There is disagreement between the parties as to whether Mr. Monga’s departure from Veritas was voluntary or whether he was fired (Ms. Monga’s theory). This dispute is not relevant since it is acknowledged that Mr. Monga formed a new company, Antya, which is now the vehicle through which he earns his livelihood.

[14] At about the same time, Mr. and Ms. Monga started another company, Kala Designs Inc. (“Kala Designs”), which was to be directed and owned by Ms. Monga. Kala Designs imports scarves made in India for resale in Canada and the U.S. There is much dispute about the role and profitability of Kala Designs.

[15] The family lived on the $1,000,000 from the sale of Mr. Monga’s interest in Veritas, and Mr. Monga added a home equity line of credit (“HELOC”) to their residence.

[16] With Kala Designs costing more than expected and Antya growing slowly, the family overextended itself for several years. The family continued maintaining an elevated lifestyle. It contributed generously to the children’s RESP and sent the older daughter to a private school. It did not significantly pay down its mortgage or the HELOC.

[17] This financial crunch drove Mr. Monga to want to sell the matrimonial home and move to Oakville, which Ms. Monga was reluctant to do. This prompted many disagreements. Ms. Monga accused Mr. Monga of extramarital affairs. The couple separated in 2018, with Mr. Monga renting his own apartment.

[18] The couple reconciled, but in 2019, there was an incident of family violence for which Mr. Monga was charged. He again left the matrimonial home.

[19] The parties reconciled again in November 2021, after Mr. Monga received an absolute discharge for the family violence episode. However, after a Diwali party, when Ms. Monga accused Mr. Monga of flirting with other women, ignoring her and treating her in a humiliating fashion, Ms. Monga said that Mr. Monga hit her again. Mr. Monga denies that he did.

[20] This was the end of the relationship. Ms. Monga did not press charges against Mr. Monga. She left to go to India to stay with her family for six weeks.

[21] When Ms. Monga returned from India, she stayed in the matrimonial home and Mr. Monga, as he had done before, left on May 1, 2022.

[22] The parties agree that the date of separation is February 28, 2022.

[23] Mr. Monga continued to pay the mortgage on the matrimonial home, but did not formally pay child or spousal support. He would send Ms. Monga money on an ad hoc basis. When she asked for more money for Kala Design, he refused and she cashed in her RRSPs.

Parties’ positions

[24] The parties have different views about the relationship and its ending. Mr. Monga presents a story of his patiently working to save the marriage but being unable to sustain the emotional toll the mother was putting on the family. In his view, Ms. Monga cannot control her emotions, and life with her is chaotic. The acrimonious disagreements between the parties affected the children.

[25] Mr. Monga maintains that he shared financial information with his wife throughout the marriage and that any insinuation that he has hidden funds, accounts, or money is fanciful.

[26] Ms. Monga describes a relationship where she was completely vulnerable and abused psychologically and physically. She arrived from India on the promise of a good marriage with an intelligent and accomplished husband. She relied on him to manage the family’s finances since it was his profession. She described her husband as sometimes generous, sometimes giving her the silent treatment. According to her, he was controlling, quick to anger, a lady’s man, and one who repeatedly undermined her and called her names throughout the marriage, even in front of the children, often questioning her intelligence.

[27] Ms. Monga believes that Mr. Monga lied to her about the family’s finances. She says that Mr. Monga threatened to have her declared insane and leave her penniless and without her children. She believed him.

[28] The litigation has had a devastating effect on both parties, financially and emotionally.

Procedural history

[29] Mr. Monga filed his application in November 2022. His impetus was to have the matrimonial home sold.

[30] On July 21, 2023, at a case conference in front of Justice Vella, the parties agreed to a temporary, without prejudice order requiring Mr. Monga to pay $6,000 per month in uncharacterized support effective August 1, 2023, with the children residing primarily with the mother.

[31] The parties also agreed as part of Justice Vella’s Order that a Voice of the Child Report be sought.

[32] After the Case Conference, after a trip that Ms. Monga took in August 2023 to Atlanta for a fashion show for Kala Design, during which the children resided with Mr. Monga, the children decided not to return to their mother’s home and refused to speak to her.

[33] After the children’s refusal to move back with Ms. Monga, a further case conference dealing with parenting issues was held. On October 17, 2023, at the Case Conference in front of Justice Rhinelander, the parties agreed to an order which includes the following terms:

• The children shall reside equally with their parents on a week-about schedule on temporary and without prejudice basis.
• The parties shall actively encourage and support the other’s parenting time with the children.
• Neither parent shall expose the children to the litigation and financial or legal issues.
• Neither parent shall speak ill of the other to or in the presence of the children.
• Mr. Monga was ordered to provide an advance of $40,000 to Ms. Monga to value her company Kala Designs.

[34] Shortly after the Case conference of October 17, 2023, the Voice of the Child Report was completed and provided to the parties. The children in the report are said to prefer to stay primarily with their father.

[35] On November 23, 2023, a long motion before Justice Faieta was heard to determine child and spousal support. Pursuant to Justice Faieta’s decision:

• Commencing November 1, 2023, Mr. Monga was to pay interim child support, on a set-off basis, in the amount of $4,578 per month to Ms. Monga, based on a deemed salary of $360,000 for Mr. Monga and $30,000 for Ms. Monga.
• Commencing November 1, 2023, Mr. Monga was to pay interim spousal support of $5,711 per month to the Respondent mother.
• Commencing November 1, 2023, the parties were to share proportionately the children’s section 7 expenses, agreed upon in advance and in writing, such consent not to be unreasonably withheld, 93% payable by Mr. Monga and 7% payable by the Respondent.
• Commencing November 1, 2023, the parties were to be equally responsible for various expenses with respect to the matrimonial home.

[36] It is not debated that the orders were generally ignored. No shared parenting took place, and the children continued to reside mostly with the father. The father did not pay all the child support ordered, and the mother did not contribute to the expenses of the matrimonial home. The mother also described the father in negative terms to the children.

[37] On February 7, 2024, Justice Kraft found that Ms. Monga had not satisfied her disclosure obligations and also ordered that the family attend reintegration therapy with Richard Theoduloz, who eventually ended the therapy in the following terms: “Given the litany of allegations made by both parent’s [ sic ], outpatient family therapy is not advisable at this time. This family may wish to obtain further direction from the court and consider an open and evaluative process to investigate the allegations raised before any therapeutic support can be embarked upon”.

[38] On February 9, 2024, Justice Diamond assigned Justice Shin Doi as the Case Management Judge.

[39] On April 30, 2024, Justice Sharma varied Justice Rhinelander’s Order to provide parenting time mirroring the Voice of the Child Report, namely that the children would reside primarily with the father and have parenting time with the mother on weekends starting Saturday at noon.

[40] On an interim basis, Justice Sharma declined to make any order on decision-making and adjourned to the trial the allegations of alienation advanced to support a setting aside of the Voice of the Child Report. He declined to vary the child support orders since this relief was not requested. He ordered costs against Ms. Monga in the amount of $13,000.

[41] On September 27, 2024, Justice Horkins heard a motion brought by Ms. Monga to adjourn the trial date, which she dismissed. The trial proceeded on October 7, 2024.

[42] The matrimonial home has now been sold. It will be transferred to third parties on January 6, 2025.

Issues

[43] The issues before me include decision-making, parenting time, child support, equalization, spousal support and various post-separation adjustments, including child and spousal support arrears. I will deal with the issues in three different sections: Relationship with the Children, End of Marriage Financial Issues, Post-separation Adjustments and Arrears.

Relationship with the children

[44] Under this part, there are five issues before me:

A. What weight should be given to the Voice of the Child Report? B. What provisions should be made for decision-making for the children? C. What parenting time and primary residence should be ordered? D. What child support should be ordered? E. What should be the parties’ respective contributions to the children’s extraordinary expenses?

[45] For ease of reading in this part, I will refer to Mr. Monga as “the father” and Ms. Monga as “the mother”.

[46] The shared parenting orders were never implemented. At trial, the father explained that he thought the Voice of the Child Report validated his position that the children preferred living with him and were unsettled at their mother’s place, and that he ought not to upset them and should attend to their wishes when, as he states, they call him to leave their mother’s home. He eventually brought a motion in front of Justice Sharma in April 2024, who agreed with him on a temporary basis.

[47] The unchallenged evidence is that over time, the children have spent several nights a month with their mother, and the daughter has spent more time with her mother than her brother has.

The Voice of the Child Report

[48] The father says that the Voice of the Child Report relays the wishes of the children and should be implemented. On an interim basis, Justice Sharma made the same order. The mother objects to the Voice of the Child Report, which, she claims, was completed once the children had already been alienated from her by the father. She also claims they were “bribed” and that the father purposely offered them gifts, jewellery for the daughter and shoes for the son, such that the children felt a sense of gratitude and enhanced loyalty toward their father.

[49] The Voice of the Child Report provides a complex series of affirmations on the part of the children. Although the preferences expressed indicate that they want to live mostly with their father, they profess a love for their mother and want to spend time with her as well. There are many statements in the Report that must be assessed in the context in which they were given.

[50] A Voice of the Child Report is a summary of the children’s wishes at the time that they were sought, that is, in the fall of 2023. As stated in the Report, “No other contextual information was gathered for the purpose of the report, and no recommendations to the court are made”. A Voice of the Child Report is a mechanism to obtain evidence from the children without subjecting them to a courtroom.

[51] The children were interviewed twice, on September 27, 2023 and on October 3, 2023.

The daughter S.

[52] The daughter, S., who was then 16 years old, expressed her preference for her father to have sole decision-making and for parenting time with her mother on weekends from Saturday at noon to Sunday at 7:00 p.m., and the rest of the time with her father.

[53] The daughter expressed a variety of contradictory emotions toward her mother. She says “she (the mother) can be a great mom sometimes and would give good advice”. She described her mother as really “nice and social at first”, that she (the daughter) laughed and made jokes with her mother. Her criticism of her mother involves the way in which the mother relates to the father. S. blames the mother for harassing her father, for treating him like a “slave”, and generally for talking negatively about the father since separation and “going crazy when she is mad”.

[54] The daughter is critical of her mother’s faith, which she says prevents her from recognizing her children’s accomplishments by attributing them to Guru-ji. The daughter is also critical of her mother’s work and constant travel to India. She feels her mother has not demonstrated enough interest in her daughter’s life.

[55] With respect to her father, the daughter welcomes his advice and support on schoolwork. This academic support is important to the daughter as she prepares to apply to universities and wishes to attend Stanford University.

[56] Despite her expressed preference for living with her father, there was evidence at trial from Mr. Monga that S. now visits her mother often during weekends and spends several nights at her mother’s place when she does.

The son A.

[57] The son A was twelve years old when he was interviewed in the fall of 2023. He also expressed deep resentment and sadness about his parents’ discord and intense disputes, particularly the current legal proceedings. He resents his mother disparaging his father.

[58] The son also expressed a preference for living with his father “because his (the father’s) residence is closer to his school and tutor … 5 minutes away from his swimming location compared to 15 minutes from his mother’s residence. In addition, his basketball sessions are 10 minutes away from his father’s residence compared to the 30 minutes from his mother’s residence”.

[59] Such reasons are not compelling.

[60] The son was not happy to return to the matrimonial home where the mother lived, which reminded him of the constant conflicts between his parents.

[61] The son preferred a flexible schedule with the liberty to attend whichever residence he chose at any point in time, including the option of going to his mother during the week and his father during the weekends. He wanted to spend Halloween, Thanksgiving and the first two days of Diwali with his mother, the last two days with his father, generally weekdays with his father and weekends with his mother, extending into Monday drop off at school.

[62] At trial, the evidence was that A. spends more time with his father than with his mother. When he goes to his mother, he sometimes calls his father to pick him up. The mother explains that the children fight and that when they do, A. wants to return to his father’s place.

[63] The mother’s evidence was that the Voice of the Child report was biased because the children had received gifts from their father prior to their attendance. Mr. Monga did testify that he told the children not to ask money from their mother.

[64] The mother argued that the Report should be set aside on the basis that it was obtained when the children had already been alienated from her by the father. The evidence on this issue was not convincing. It is not necessary for me to find that the children were alienated to assess the weight to be given to the Report on a final basis, after having heard the entire trial evidence.

[65] A Voice of the Child Report is not binding on the Courts. It is not the Voice of the Court. It is one element to consider in assessing the best interests of the children.

[66] The Voice of the Child Report is based on two interviews in the midst of a very high conflict dispute between the parents where the children were caught in the middle. Neither parent was particularly skilled at sparing the children from the conflict and its financial and emotional impact. The daughter was able to read the legal materials on her father’s computer since it was not secured and she had his general password. The mother was quite vocal about her feelings about the father and the litigation with both children.

[67] I conclude from the Report that in the fall of 2023, both children were tired, saddened and distressed about the level of conflict between their parents. They blamed their mother for the intensity of the conflict. They preferred to stay at their father’s place during school days, because it was closer to the school (the son) and provided access to academic help (the daughter). It was also a calmer place for them.

Decision-making

[68] The Divorce Act provides that all decisions relating to the children must be made with their best interests in mind. It states:

16. (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

(a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

(b) the nature and strength of the child’s relationship with each spouse , each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

(c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

(d) the history of care of the child;

(e) the child’s views and preferences, giving due weight to the child’s age and maturity , unless they cannot be ascertained;

(f) the child’s cultural , linguistic, religious and spiritual upbringing and heritage , including Indigenous upbringing and heritage;

(g) any plans for the child’s care;

(h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

(i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another , on matters affecting the child;

[Emphasis added.]

[69] The parties agree that they should have joint decision-making authority with respect to the now 14-year-old son, A., and that any disagreement should be resolved through mediation.

[70] As for the daughter, S., she is 17, and will turn 18 in February 2025.

[71] According to the Voice of the Child Report, S. would prefer that her father have sole decision-making authority.

[72] At trial, the father nuanced this position as he recognized that both he and the mother are important figures in S.’s life and that the daughter can benefit from the advice and support of both of her parents. In his final submissions, the father suggested that he make the final decision after consultation with the mother.

[73] The mother seeks joint decision-making for S.

[74] I agree with the mother. Considering all factors pursuant to Section 16 (3) of the Divorce Act , I find that the mother can provide valuable support to S. She is also the parent who can provide access to her maternal side of the family. The mother was an important part of the children’s care throughout their life prior to separation.

[75] Despite the daughter’s indications that there are conflicts between mother and daughter, the daughter chooses to go and spend time with her mother regularly. The daughter complains about her mother’s religious beliefs and her emotional character. Neither of these traits are described as harmful. Rather, they are described as disappointing or annoying.

[76] Despite their different personalities and disagreements, the parties shared an unbounded love for their children. They both participated in the children’s activities and rejoiced in their children’s successes. They were ambitious for their children and spoiled them at times. Their genuine commitment to the children sustained them for many years.

[77] Although it is unlikely that major decisions will need to be taken before February 2025, when S. turns 18, I find that joint decision-making is in the best interests of S. Joint decision-making for both children is in their short and long-term best interests. Both children should have access to their parents’ different strengths.

[78] One issue that will arise is the possibility of international travel with the children. Both parties are content that international travel should be done with the consent of the other parent, and that consent will not be unreasonably withheld.

[79] The father has indicated that he does not wish for the children to travel to India because he fears that the children could be withheld as a ploy to have him come to India and, hence, submit himself to the arrest warrant that is still outstanding against him. Because the mother is travelling often to India, she might eventually want to take the children to India. She has asked to be able to travel internationally without the father’s consent.

[80] This may be an issue that will have to be mediated. With appropriate legal guarantees and safeguards to protect A., as a minor child, from being detained at the border, it might be appropriate to offer the children the possibility of visiting India and their extended families who live there.

[81] I will not make an order on that point since the issue is not live. S. will be eighteen in a few months and A. may or may not be interested in visiting India in the coming years. A fuller record of the legal risks would have to be considered.

Parenting Time

[82] In the Voice of the Child Report, both children indicate that they want to spend weekdays with their father and spend time with their mother over the weekends, although the son wishes the schedule to be more flexible and that he could decide when he wants to go to which house.

[83] It seems clear that the children are the decision-makers and the parents exercise little control. The children move between the two households at their leisure. In his testimony, the father explains that his son A. often calls him when he is at his mother’s house for the father to pick him up. In Mr. Monga’s assessment, A. spends at most 4 to 7 nights per month at his mother’s house.

[84] At some point in his testimony, the father suggested that if the matrimonial home did not sell, he would buy the mother out and live with the children in the matrimonial home, fulfilling the threat that the mother fears the most, that she would end up with nothing: no home and no children.

[85] The fact that the father presented this option to the Court speaks to his reflex to push the mother aside and diminish her role in the children’s lives.

[86] As described above, the children, through the Voice of the Child Report, identified that they love both of their parents and that they know that both parents love them.

[87] It may appear futile to make a parenting time order, in light of S.’s age and A.’s strong preferences for flexibility and being allowed to move freely between the two households.

[88] I find that there is value in reinforcing the obligations of both parents to support the other parent’s role in their children’s lives and not attempt to undermine it. In this respect, the mother’s role needs to be re-emphasized.

[89] I find the mother credible in her recounting of the father undermining her intelligence in front of the children. Because academic success is highly valued by the family, and particularly by the father, such negative assessment of the mother in front of the children motivated them to choose to stay with their father, particularly during school days when they can seek his help.

[90] Once the vitriol of the current proceedings dissipates and the mother no longer lives in the matrimonial home, she may be in a more convenient location for the son. It will then be easier for the children to maintain a healthy relationship with their mother. The son should spend at least 40% of his time with the mother.

[91] The parenting time order below should be used as a guide, to ensure that the children are supported in developing a meaningful relationship with both parents. It should be used as a flexible tool, considering that both parents may travel for work.

[92] Holidays should be split equally between the parents.

[93] A. should be encouraged to spend generally Monday night to Thursday morning with his father and Friday night to Monday morning with his mother. Every second week, he shall spend Thursday night with his mother.

[94] This should be flexible, as A. may want to spend some weekends with his father and more weekdays with his mother.

[95] This schedule does not provide weekends with the father. I believe that the children on their own will want to organize weekend events with their father.

[96] The Order will be that parenting time for A. shall be:

• Monday, Tuesday and Wednesday nights with the father
• Friday, Saturday and Sunday nights with the mother
• Alternating Thursday nights with each parent
• When father and son want to spend some weekends together, the schedule shall be reversed.

[97] I decline to make a fixed parenting time order for S. She will continue to manage her own schedule. She should also be encouraged to spend time with her mother, including weekends and holidays. For the purposes of calculations of child support, I assess that she will mostly reside with her father until she goes to university.

[98] I am conscious that any parenting orders may be disregarded as previous orders were. I make the order for two reasons. First, it is in the best interests of A. that he has a meaningful relationship with his mother and her side of the family. Without an order, the father may attempt to minimize the mother’s role. Second, a parenting time order is material to the child support issue.

[99] I will reiterate orders on proper language of respect for each parent. The mother must understand that she cannot display her negative feelings toward Mr. Monga in the presence of the children. The order requires that Ms. Monga stop disparaging Mr. Monga in front of the children. It is a responsibility that she must take seriously, and it comes with the role of a parent. If she is unable to provide the children with a home free of recriminations, the children will choose to spend less and less time with her.

Child Support

[100] In light of my findings regarding parenting time, section 9 of the Federal Child Support Guidelines (“Child Support Guidelines) is applicable.

[101] Section 9 provides:

“If each spouse exercises not less than 40% of parenting time with a child over the course of a year, the amount of the child support order must be determined by taking into account

(a) the amounts set out in the applicable tables for each of the spouses;

(b) the increased costs of shared parenting time arrangements; and

(c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.”

[102] Section 9 of the Child Support Guidelines invites the Court to assess whether set-off child support (that is, an assessment of child support owing for each parent and a calculation of the amount owing once the lesser amount is deducted from the higher amount owed) is appropriate. I find that this is a case where it is in the best interests of A. that set-off child support be ordered.

[103] During her testimony, the mother said that she did not want child support from the father.

[104] Child support is the right of the child. In the present circumstances, there is great economic disparity between the two households. A child support set-off order recognizes that children should not choose where to live based on one parent’s wealth or financial advantages. Child support will be needed to ensure that the mother can provide comfortable surroundings for the children in her residence.

[105] Pursuant to Section 9 of the Child Support Guidelines, I must first consider the amounts set in the applicable tables for each spouse. To do so, I must establish each spouse’s income.

[106] The father admits that his annual income is $396,634, which his expert calculated as the proper income for support calculations. I am satisfied that this is the proper income to be used.

[107] The parties disagree as to the income to be imputed to the mother. The father argues that an annual income of $100,000 should be imputed to the mother. The mother argues that an annual income of $35,000 should be attributed to her.

[108] Section 19 of the Child Support Guidelines provides that a court may impute “such amount of income to a spouse as it considers appropriate in the circumstances” when a spouse is intentionally “underemployed”. The court must have evidence to impute income and cannot choose an arbitrary number: Drygala v. Pauli (2002) , 61 O.R. (3d) 711 (Ont. C.A.), at para. 44 .

[109] The wife never worked outside of the home until she began Kala Designs. She has never been employed in Canada. She does recognize that she has an obligation to become self-sufficient, and provide for her children, but, understandably, she is worried about her ability to do so.

[110] The parties disagree as to the impetus for starting Kala Designs. The father testified that he wanted to support the mother’s dream of owning a business and encouraged the venture. According to his testimony, he acted as the company’s CFO for a few years, then concentrated on his own business and resigned from Kala Designs.

[111] The mother testified that the business was built on her creative strengths. She testified that the father was involved throughout and that she relied on him for contacts, financial information and help.

[112] Eventually, the father decided that Kala Designs was costing too much to the family and was not a good investment. A loan agreement was signed by the mother whereby she acknowledged that she (through Kala Designs) owed $350,000 at an annual rate of 12% interest accruing.

[113] The parties have different narratives with respect to this loan. The father testified that Kala Designs cost too much for the family, and he wanted to protect the family’s assets by ensuring the mother repaid the loan. In his testimony, the father was critical of Kala Design’s business model of selling scarves made in India, which, in his view, was not a good business plan as scarves can be made much more cheaply in China. The mother described the process of signing the loan agreement as made under duress. She testified that the father threatened to divorce her if she did not sign and that she would be left penniless.

[114] The loan agreement was signed by the mother and the father. The mother received no legal advice prior to signing it. Although the father maintains that a 12% interest rate was a competitive rate for a business that could not be eligible for a bank loan, it would have been more compelling if there was evidence of attempting to secure a proper loan for Kala Designs.

[115] In his application, the father sought repayment of the full $350,000 from the mother. At trial, the father conceded that he was no longer seeking the enforcement of the loan agreement.

[116] There is also evidence from the father that the mother asked him for money for Kala Designs after the separation. He refused, and she cashed in her RRSPs to support the business.

[117] The mother eventually expanded and diversified her business beyond scarves to include women’s clothing more generally. She now operates a different company, Trident Buying House.

[118] The father is seeking to impute $100,000 per year of income to the mother on the basis of her business income from Kala Designs and her new company (post-separation), Trident Buying House.

[119] I find that Kala Designs began mostly as a hobby business, and was never intended to provide for a steady living wage. It offered the mother the opportunity to travel to India and the United States, and deduct the expenses, which may have suited the father at the time. At best, the father probably wished that Kala Designs would break even and not require as much infusion of capital as it eventually required.

[120] The father cannot have it both ways. On the one hand, he criticizes the business model and the mother’s business acumen in starting a scarf business and spending excessively on the company. On the other hand, he seeks to impute her an annual business income of $100,000.

[121] The evidence before me is that Kala Designs never made substantial profits. It has never paid enough for the mother to be able to live on its profits.

[122] The mother concedes that an income of $35,000 per year (the minimum wage income), should be imputed to her. I agree. Justice Faieta imputed an income of $30,000 for the purposes of his determination of interim child and spousal support in the fall of 2023. In her testimony, the mother acknowledges her duty to become self-sufficient. She has started another business and gives herself a year to see whether it will be profitable. If it is not profitable, the mother agrees that she will have to reinvent herself and find other employment.

[123] For one child in a shared arrangement (more than 40% of the time) and the other child residing primarily with the father, child support calculations on the basis of $396,634 for the father and $35,000 for the mother lead to the following conclusions: table monthly amount of $3,075 is payable by the father to the mother, and table monthly amount payable by the mother to the father is $532, for a final tally of $2,543 payable by the father to the mother.

[124] I find that child support in the amount of $2,543 per month is owed by the father to the mother for the child, A., on a set-off basis, based on an annual salary of $396,634 for the father and an imputed annual income of $35,000 for the mother.

[125] Pursuant to the Child Support Guidelines, the parties must disclose their income annually and calculate the child support that is due.

[126] I am concerned that the parties will not comply with this provision. I order that the father shall provide an updated letter from his valuator by June 30th of every year. The mother shall provide the income tax information for all of her corporations, Kala and Trident and any employment income that she has secured by June 30th of every year. If either party fails to comply, income increases of 10% per year will be deemed to have taken place. For example, if Ms. Monga fails to provide financial information by June 30, 2025, Mr. Monga shall presume that her income is $35,000 + 10%, equaling $38,500, and for every year thereafter. Either party may bring the issue back to court if they believe that the other is earning more than a deemed increase of 10% and is not complying with the disclosure obligations.

Section 7 expenses

[127] Section 7 of the Child Support Guidelines provides for the shared contributions of parents to children’s “extraordinary expenses”. The parties have agreed that such expenses include private school fees, university education, driving lessons and other extracurricular expenses up to $2,000 per year for each child.

[128] Based on annual incomes of $396,634 for the father, and $35,000 for the mother, each parent’s share is 92% for the father and 8% for the mother.

Financial issues

[129] The financial issues arising out of the end of the marriage involve two main issues: equalization and spousal support.

Equalization

[130] The Family Law Act provides for the equalization of the net family properties of the spouses. The purpose of the Act is to implement the public policy objective that married couples should share equally in their increased wealth accumulated during marriage. The Family Law Act recognizes that during marriage, couples make different contributions to the well-being of the family and that at the end of the marriage, the couple should share equally in the increase in value of their respective assets.

[131] Mr. Monga’s calculations lead him to suggest that he owes Ms. Monga an equalization payment of $32,074.49.

[132] Ms. Monga initially claimed an unequal division of assets. She is no longer claiming an unequal division of assets. However, she argues that she is entitled to $258,752.69 as an equalization payment.

[133] For reasons below, I find that Mr. Monga owes Ms. Monga $32,074.49.

[134] The issues raised by the parties with respect to the equalization calculations are as follows:

• Has the husband proved the date of marriage deductions that he is claiming?
• What is the appropriate treatment of the various accounts owned by the husband?
• Is the HELOC on the matrimonial home a jointly owned debt or should it be paid solely by the husband?
• What is the proper treatment of the BMW car in both parties’ names but driven by the wife?
• What is the appropriate treatment of the jewellery that the husband attributes to the wife?

Introduction

[135] Ms. Monga is no longer pursuing her claim for unequal division. However, she testified that Mr. Monga had hid assets throughout the marriage and that this should be taken into account. Her allegations of the dissipation of assets on the part of Mr. Monga rest on the suspicion and belief that Mr. Monga is hiding money or assets in India or sending money to his family. Although there were discrepancies between the different financial statements filed by Mr. Monga, the evidence supporting the allegation of funds being siphoned out of Canada is insufficient for me to find that there was dissipation of assets.

[136] I found that Ms. Monga was generally credible. She testified in an emotional way about the impact the marriage and the litigation has had on her and her family. Her knowledge of the family’s finances, according to her own testimony, was limited. During the marriage, the parties did not communicate well. Financial matters were an area of dispute between the parties. Although she acknowledged that Mr. Monga complained that money was tight and that Ms. Monga was overspending, I find that Ms. Monga was kept mainly in the dark. She saw herself as needing permission to spend Mr. Monga’s money, and she said that “she never spent his money without his permission”. She testified that Mr. Monga was often very generous, and she grew accustomed to a very high standard of living.

[137] I find that, purposely or not, Mr. Monga made financial decisions without Ms. Monga’s input because he believed this was his expertise, and he did not value Ms. Monga’s opinion on such issues. Because she had been excluded from financial decision-making, Ms. Monga grew suspicious that she was being lied to.

[138] Ms. Monga was truly surprised by the level of indebtedness and the lack of financial resources available to the parties and this prompted her suspicion of dissipation of assets.

[139] Ms. Monga has not established that significant income was dissipated.

[140] I found Mr. Monga credible on this issue. I find that Mr. Monga may have given some money to his family, but he was not in a position to support them substantially. When times were good, the family had a significant capacity to spend money. However, his company Antya was not immediately profitable and certainly Kala Designs was never so. The family lived beyond its means for a few years.

Marriage deductions

[141] Ms. Monga argues that Mr. Monga should not be entitled to any deduction at the time of marriage. Mr. Monga provided evidence of his contribution of $70,000 to an RRSP as well as a valuation of his shares in Veritas at the time of marriage. The reason why spouses get credit for assets they own at the date of marriage is that the marriage allows a couple to jointly share in the increase in value of the assets, not a complete sharing of all assets that either spouse owns.

[142] Ms. Monga married Mr. Monga partly because he presented as a successful forensic accountant. He had assets before he married her. He has provided proof of the value of such assets at the time of marriage. Such values are properly deducted from his Net Family Property.

[143] I find that Mr. Monga is entitled to claim the deductions to his Net Family Property for his RRSPs accumulated before marriage and the value of his shares in Veritas at the time of marriage.

Accounts

[144] Ms. Monga claims that Mr. Monga’s savings in various bank accounts should be split at the source and that she should be entitled to half of every account that he had at the date of separation.

[145] The Family Law Act is not a joint ownership of assets regime. The Act provides for a sharing of the accumulation of wealth by each party. Parties retain their properties, value them and share equally in the increased value, which they then pay to the other spouse.

[146] Ms. Monga’s position reflects her belief that the parties’ finances were intermingled throughout the marriage. There is evidence that Mr. Monga used the HELOC on the home to finance the parties’ lifestyle, his business, and Ms. Monga’s business.

[147] If Ms. Monga was correct in her interpretation of a joint venture, she would have to similarly share all of her accounts and participate in the debt load. She cannot have it both ways.

The HELOC on the matrimonial home

[148] The parties are heavily in debt. There is a significant HELOC on the matrimonial home. This debt was the mechanism Mr. Monga used to finance investment in his business and in Ms. Monga’s business, and to support the couple’s daily expenses.

[149] Even if Ms. Monga was not consulted on the debt load, she benefitted from it. She cannot avoid the reality of the debt load.

[150] The HELOC is a debt that belongs to both parties.

The BMW and the jewelry

[151] The BMW is registered in both parties’ names but it is used exclusively by Ms. Monga. Mr. Monga has purchased another vehicle for himself.

[152] Ms. Monga may have to sell the car and it should be formally transferred to her. I find it appropriate to include the value of the car in her assets.

[153] Mr. Monga included $11,000 worth of jewelry as part of Ms. Monga’s assets. I am satisfied that Ms. Monga owns jewelry that was given to her either as a marriage present or throughout the marriage. It was her burden to provide a value to the jewelry. Since she did not, I must rely on the approximation of $11,000.

[154] I conclude that Mr. Monga owes Ms. Monga $32,074.49.

Spousal Support

[155] There are three issues to be decided arising out of the claim for spousal support:

• Is Ms. Monga eligible for spousal support?
• What is the appropriate amount of spousal support that should be ordered?
• For how long should Ms. Monga be eligible for spousal support?

Eligibility

[156] The parties agree that the wife is eligible for spousal support. They disagree on the income to be imputed to her, the range of quantum applicable, and the duration of the support.

[157] I find that Ms. Monga is entitled to spousal support on a compensatory basis as she looked after the children and the house for the first 10 years of the marriage. Although both parents were actively involved with the children, Ms. Monga acted as the primary caregiver, was involved in the school, and took the kids to their medical appointments.

[158] I also find that Ms. Monga is entitled to spousal support on a needs basis. She requires a significant transition period to be able to provide for herself in a way resembling the lifestyle that she enjoyed during the marriage. This may no longer be possible and she may have to adapt to a different life than that which she has enjoyed and that she expected when she left India.

Amount

[159] To determine quantum (the amount of spousal support), courts look to various factors: the strength of the compensatory claims, the level of the recipient’s needs, the impact of the property division, the needs and ability to pay of the payor, and the capacity for self-sufficiency: Mason v. Mason , 2016 ONCA 725 , 132 O.R. (3d) 641.

[160] Ms. Monga has a significant compensatory claim. She was the dependent spouse throughout the marriage. She did not work outside of the home until she began her business and did not have employment in Canada.

[161] There is a great discrepancy between the parties’ income levels and their capacity to earn an income. Mr. Monga can generate an income of close to $400,000, while I am satisfied that Ms. Monga’s earning potential is presently at the minimum wage level. It could be that her new business will become very successful, or that she will have to find other employment to support herself and the children.

[162] The property division to which she is entitled is not generous in light of the debt load carried by the parties. Mr. Monga’s real asset is his earning capacity.

[163] I find that Ms. Monga is entitled to spousal support toward the upper end of the mid-range Spousal Support Advisory Guidelines (“SSAG”), in amount of $8,500 per month.

Duration

[164] Ms. Monga will have to work hard to become completely self-sufficient. She will require support for several years to do so.

[165] The parties disagree as to the duration of spousal support. Mr. Monga proposes that the parties review the spousal support arrangements in five years on June 30, 2028. He further proposes that his obligation to pay spousal support terminate on June 30, 2033, in nine-and-a-half years.

[166] Ms. Monga proposes that the review take place in June 2027. She proposes that after sharing financial information, if the parties are unable to reach an arrangement, the matter be mediated or arbitrated. Ms. Monga further suggests that her entitlement should terminate on June 30, 2036.

[167] Ms. Monga is 49 years old. The marriage lasted 17 years and three months, since it began in November 2004. The “rule of 65” is that when the length of the marriage plus the age of the recipient amount to more than 65, the entitlement to spousal support should be unlimited. Ms. Monga is content to have her entitlement terminate on June 30, 2036, at a time when Mr. Monga will himself turn 65.

[168] I find that the date of June 30, 2036 is more in line with the caselaw on spousal support for a marriage of close to 18 years, even in light of the fact that there were intermittent separations during the marriage.

Time of review

[169] This matter was high conflict. Both parties changed counsel. Ms. Monga had much difficulty complying with her financial disclosure obligations, which she never completely fulfilled. I find that it is not in the interests of the parties nor of their children to have this matter relitigated early.

[170] I order that barring a material change in circumstances, loss of employment or serious illness of either party which would materially impact their earning capacity, the renegotiation of spousal support shall take place not earlier than June 30, 2028, at which time parties shall exchange financial information. If they are unable to agree, their dispute shall be mediated or arbitrated.

Post-separation adjustments

[171] There is disagreement between the parties as to the basis upon which the post-separation adjustments should be calculated. In particular, the issue of child support arrears presents particular difficulties in light of the fact that court orders were ignored.

[172] Mr. Monga is claiming child support arrears from Ms. Monga on the basis that his son A. lived mostly with him from the summer of 2022 to present and that the daughter has lived mostly with him since the summer of 2023, despite the Orders of Justices Vella, Rhinelander and Faieta which ordered or were premised on a shared parenting arrangement.

[173] Mr. Monga claims that his son has lived with him mostly since July 2022. Ms. Monga claims that both children were mostly with her until the summer of 2023.

[174] Mr. Monga continued to pay the carrying costs of the matrimonial home and the children’s expenses. He provided Ms. Monga with some funds on an ad hoc basis. However, he refused to help her with her business, and she had to cash in her RRSPs to invest in her business and pay her bills.

[175] At the first case conference, Mr. Monga agreed to pay $6,000 per month in indiscriminate support.

Spousal support arrears

[176] Mr. Monga agrees that his income should be fixed at $396,634 for the years 2022 onwards until the proposed review in 2028. I have found that an income of $35,000 is to be imputed to Ms. Monga. This imputed income is higher than what Justice Faieta used in his calculations on an interim basis.

[177] Ms. Monga has agreed to spousal support being fixed at $6,713 per month for the year 2022 and $7,263 for 2023. I have used these amounts.

[178] I have given credit to Mr. Monga for the amounts proven to be received by Ms. Monga.

[179] The table below describes the calculations for arrears of spousal support.

Period # of months Husband’s income Wife’s income Monthly Amount Total Paid Owing by Mr. Monga March -Dec. 2022 10 $396,634 $35,000 $6,713 $67,130 ($35,850) $31,280 Jan -Dec 2023 12 $396,634 $35,000 $7,263 $87,156 ($40,000) $47,156 Jan – Nov.30 2024 11 $396,634 $35,000 $7,263 $79,893 ($79,893) Total $78,436

Child support arrears

[180] The following calculations are made using my findings with respect to the factual and legal parenting arrangements between the parties.

[181] From May 1, 2022 until July 2022, the children lived with the mother in the matrimonial home. The father should have paid child support, which I calculate on the basis of his agreed upon income of $396,634.

[182] From July 1, 2022 until August 1, 2023, there is disagreement between the parties about the children’s situation. The father claims that his son A. moved in with him in July 2022 and never returned to his mother. This claim does not coincide with his application materials filed in November 2022 in which he states that both children are living with both parents and states that the children live at least one-half of the time with the Applicant on a flexible schedule. I find that informal shared parenting was taking place during that time.

[183] From August 1, 2023 until October 27, 2023, the children lived with the father.

[184] On October 27, 2023, on consent, the parties agreed to a shared parenting arrangement which was never implemented. From October 27, 2023, until April 20, 2024, the legal framework was that of a shared parenting arrangement, but the reality was otherwise. The mother claims that during that time, the children were alienated from her.

[185] The mother now concedes that the children did not live with her. Child support is due for that period.

[186] On April 30, 2024, Justice Sharma amended Justice Rhinelander’s Order to implement a parenting arrangement where the children spend most of their time with the father and see their mother during the weekends. This arrangement has again been varied in practice with the daughter spending more time with her mother than prescribed in the order. For the purposes of calculating child support, I conclude that for the period between May 1, 2024 and December 1, 2024, the children resided primarily with the father, and the mother owes child support calculated on the basis of an imputed income of $35,000.

[187] The following table reflects calculations of child support arrears.

Period # of Months Parenting Father’s income Mother’s income Monthly Child support Total Paid * Owing by Mr. Monga May – July 2022 2 With mother $396,000 $35,000 $5,037 $10,074 0 $10,074 July 2022 – August 2023 13 Shared $396,000 $35,000 $4,505 ($5,037 - $532) $58,565 0 $58,565 August 2023 –October 2023 2 With father $396,000 $35,000 By mother $532 $1,064 0 ($1,064) November 2023 – May 2024 6 De facto with father $396,000 $35,000 B mother $532 $3,192 0 ($3,192) May 2024 –December 2024 7 With father $396,000 $35,000 $532 $3,724 0 ($3,724) Total $60,659 *the amounts credited to spousal support paid are not credited again here.

Contribution to expenses and occupancy rent

[188] As Justice Faieta ordered, it is appropriate to require Ms. Monga to contribute to the carrying costs of the matrimonial home in light of the retroactive spousal support ordered. I find that she owes: $47,691.44 (50% of the carrying costs of the home and repayment of the car lease) and $7,000 (50% of the staging costs incurred for the house to be put up for sale), for a total of $54,691.44.

[189] Mr. Monga also claims that Ms. Monga owes an additional $30,000 (50% of the interest owing on the line of credit). I decline to order this reimbursement. The evidence in front of me was not clear that this amount was spent solely on the matrimonial home and not to service other debts or business investment.

[190] Ms. Monga has agreed that she owes $46,000 in occupancy rent. She also owes $13,000 in costs and $40,000 which were advanced to her to pay for the valuation of Kala Designs which was not completed.

[191] The Table below is the summary of the post-separation adjustments:

Spousal support arrears $78,436 Child support arrears $60,659 Contribution to carrying costs ($54,691.44) Other (agreed upon) ($99,000) Total ($14,596.44) Owed by Ms. Monga to Mr. Monga

Divorce

[192] The parties agree to an uncontested divorce. They have been separated for more than one year. The parties disagree as to who should pay for it. I find it appropriate to order that the costs be borne by the party initiating the divorce.

Costs

[193] Success was divided. Ms. Monga was successful in her claims for her imputed income. Mr. Monga was successful in his claims for equalization. Neither was completely successful on the parenting issues.

[194] Each party should bear their own costs.

Order

[195] The following Order will issue:

Divorce

1. The parties agree to an uncontested divorce. The costs of the application shall be borne by the party initiating the application.

Decision-making

2. The parties shall have joint decision-making for the two children, S. and A., until S. turns 18 in February 2025. Thereafter, they shall continue to have joint decision-making power for the child A. Should they disagree on a major issue, they shall jointly retain the services of a mediator/arbitrator to resolve the issue, and pay in proportion to their income.

Parenting time

3. The children shall reside with both parents at their convenience. The child A. shall be encouraged to spend Friday night to Monday morning with Respondent (when she is not travelling) and Monday night to Thursday morning with the Applicant. A. shall spend alternating Thursday nights with each parent.
4. Neither party shall pressure the children to abide by the schedule. If the children prefer to spend Friday night with the Applicant, the Respondent will not attempt to pressure them otherwise. If the children seek to return to one of the parent’s homes at any time, the other parent shall comply.
5. The parties shall share the summer holidays equally with the children in accordance with the children’s wishes.
6. The children shall spend the first two days of Diwali with the Respondent and the last two days with the Applicant.
7. The children shall spend Halloween with the Respondent.
8. The parties shall refrain from making any derogatory remarks regarding the other parent to the children or in the presence of the children.
9. The parties shall communicate through Appclose, unless the parties agree, in advance, to communicate by text and/or email and/or telephone and/or in person.

Child support

10. Child support is on a set-off basis with S. residing mostly with her father and A. in a shared parenting arrangement. The Applicant shall pay child support in the amount of $2,543 per month based on his annual income of $396,634 and the Respondent’s imputed income of $35,000.
11. Parties shall exchange income information by June 30th of each year, to re-assess the amount of child support owed by each party.
12. If a party fails to provide the required information by June 30th of each year, the other party is entitled to presume that the income of the party who has failed to provide the information has risen by 10%.

Section 7 expenses

13. Both parties shall contribute to the section 7 expenses on the following basis, subject to a re-evaluation annually on June 30 of each year: the Applicant, 92% and the Respondent, 8%.
14. The agreed-upon section 7 expenses include: a. University/College tuition for the first undergraduate degree. b. Extra curricular activities for each child while they are children of the marriage to a maximum of $2,000 annually per child. c. Medical expenses. d. Driving lessons. e. Private school tuition. f. University/College applications.

Equalization

15. The Applicant shall transfer to the Respondent $32,249.47 as part of an equalization payment pursuant to the Family Law Act . He shall make such transfer from his share of the proceeds of the sale of the matrimonial home.

Spousal support

16. Starting December 1, 2024, The Applicant shall pay $8,500 per month to the Respondent.
17. The parties shall provide each other with income information by June 30, 2028 and re-establish the spousal support to be paid.
18. Spousal support shall end on June 30, 2036.

Post separation Adjustments

19. The Respondent owes the Applicant $14,596.44. She shall make such payments from her share of the proceeds of sale of the matrimonial home.

Costs

20. Each party to bear their own costs.

Des Rosiers J. Date: December 13, 2024

COURT FILE NO.: FS-22-32563 DATE: 20241206 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Neeraj Monga Applicant -AND- Dimple Monga Respondent

REASONS FOR JUDGMENT Justice Des Rosiers Released: December 13, 2024