



COURT OF APPEAL FOR ONTARIO

CITATION: Qaraan v.
    Qaraan, 2014 ONCA 401

DATE: 20140515

DOCKET: C56483

Doherty, Epstein and Benotto JJ.A.

BETWEEN

Amneh Qaraan

Applicant (Respondent)

and

Abdelaziz Qaraan (also known as Aziz Qaraan)

Respondent (Appellant)

Norman A. Pizzale, for the
    appellant

Monique Rae Bennett, for the
    respondent

Heard: May 12, 2014

On appeal from the order of
    Justice Victor Mitrow of the Superior Court of Justice, dated December 13,
    2012, with reasons reported at 2012 ONSC 6017, [2012] O.J. No. 5938.

ENDORSEMENT

[1]

The appellant appeals the trial judges findings that:

1.

Disallowed a deduction for property in Al Taibeh, Jordan owned at the
    date of marriage;

2.

Fixed the value of date of marriage investments at $75,000 instead of
    the $215,000 claimed by the appellant;

3.

Imputed income to the appellant for child support and made orders
    pursuant to the
Child Support Guidelines,
SOR//97-175 including an
    order for the oldest child, Fatima, who was born in 1992;

4.

Awarded the respondent spousal support.

[2]

For the reasons that follow, the appeal is dismissed.


BRIEF BACKGROUND

[3]

The parties were married on September 27, 1990, and separated on February
    28, 2007.  The parties have three children who were ages 20, 19 and 7 at the
    time of trial.

[4]

The appellants income was derived from ownership and rental of
    apartment buildings.  Some of these buildings were owned by the appellants
    corporation, however, all rental income from apartments owned by the
    corporation was treated as the appellants personal income.  Likewise, sales of
    apartments owned by the corporation were reported on the appellants personal
    income tax returns.

[5]

During the marriage, the respondent did not work outside of the home.

THE APPEAL

Date of Marriage Deductions:

[6]

Section 4(3) of the
Family Law Act
R.S.O. 1990, CHAPTER F. 3, provides
    that the onus of proving a deduction under the definition of net family
    property rests with the person claiming it.  The trial judge did not accept
    the appellants evidence with respect to either the property in Jordan or the
    value of the investments.  He allowed no deduction for the former and reduced
    the amount claimed for the latter.

[7]

The appellant testified that an approximate 28 percent interest in the
    Jordan property had been given to him by his grandmother prior to the date of
    marriage. He did not produce evidence to corroborate what percentage of the
    land was owned by him at the date of marriage and did not obtain a proper
    valuation of the property.  Absent documentation or corroboration, the trial
    judge held that the onus had not been discharged.

[8]

The appellants claim to a deduction of $215,000 for investments at the
    date of marriage was based on benefits received as a result of the death of his
    first wife, and to the appellants inheriting their joint investments. Again,
    the appellant did not produce documentation to support his claim.  However, the
    trial judge determined that his interest income could be used to substantiate
    the value of the investment.  The trial judge accepted the appellants evidence
    that he earned 13 percent interest on his investments in the year of marriage. 
    Using the analysis provided by the appellant's accountant, the trial judge
    found, at para. 150, that this translates to a capital investment of
    $77,346.  The amount of $75,000 was allowed as a deduction.

[9]

At para. 146, the trial judge explains why he rejected the appellants
    testimony that the amount of the investment was larger than that awarded. Key
    reasons included: the trial judge did not accept the appellants evidence that
    he did not spend any of the amount received; most of the amounts received would
    have been invested for almost the entire year and there was no evidence that
    the appellant must have invested the money in a one year guaranteed
    certificate.

[10]

We
    agree with the trial judge that the appellant failed to discharge the onus
    required to obtain deductions claimed in his net family property.  The
    appellant did not provide sufficient documentation to justify these deductions.
    In these circumstances, the limited deduction allowed by the trial judge was
    appropriate.

Income for Child Support:

[11]

The
    trial judge imputed income to the appellant for several of the years after
    separation. The most significant amount in issue is the year 2007 when the
    trial judge found that the appellants income for child support purposes was
    1.3 million dollars. This raised two issues: the amount of income determined by
    the trial judge and whether using the table amount to calculate support was
    inappropriate.

[12]

The
    appellants line 150 income was $592,125.  The trial judge added to that figure
    the non-taxable capital gain received in the year.  Section 19(1) (h) of the
Child
    Support Guidelines
provides that these capital gains may be imputed as
    income.  The trial judge was correct to do so.

[13]

The
    appellant argues that the table amount of the
Guidelines
should not
    have been awarded on this income since the amount is too high. The trial judge
    addressed s. 4 of the
Guidelines
and found that, despite the high
    amount of the child support award, the table amount was not inappropriate in all
    the circumstances: see
Francis v. Baker
[1999] 3 S.C.R. 250. We see no
    reason to interfere.

[14]

With
    respect to the years 2010-2012 the trial judge imputed income to the appellant
    in the amount of $75,000 for 2010 and $100,000 for each of 2011 and 2012.  The
    appellant submits that, for each of these years, the income should be limited
    to his pension income of $40,000.  In rejecting this submission, the trial
    judge made specific findings that the appellants income tax returns for these
    years did not reflect his true income, that he was not living only on capital,
    and that he had not explained how he was covering his deficit. The
Guidelines
provide wide discretion to the trial judge to impute income as is appropriate
    in the circumstances.  It was open to the trial judge to make these findings.

[15]

The
    trial judge awarded child support for Fatima, having found that up until March
    1, 2012 she was a child of marriage because she was attending school.  This
    finding was open to him on the evidence.

Spousal Support:

[16]

The
    trial judge found that the respondent was entitled to spousal support on a
    compensatory basis and a non-compensatory basis.  The appellant argues that she
    should be entitled to neither.  She left the marriage with a significant
    equalization payment and has now remarried.

[17]

The
    trial judge concluded that compensatory support was warranted based on the
    respondents economic disadvantage as a result of childcare obligations but
    that the amount to which she was entitled was not large.  In dealing with
    non-compensatory support, the trial judge, focusing on the fact that the
    respondent not only remarried but also failed to disclose her new husbands
    financial circumstances, concluded that the spousal support award should
    primarily be based on her entitlement to limited compensatory support.

[18]

The
    trial judge summarized his assessment of the respondents entitlement to
    support at para. 369, as follows:

Given that the primary component of [the respondents] support
    entitlement is non-compensatory and, given [her] non-disclosure regarding her
    husbands income, financial circumstances and contribution to household
    expenses, I find that the support obligation should be reflective primarily of
    the compensatory portion of [her] spousal support entitlement

[19]

The
    trial judge then awarded the relatively modest amount of $500 per month for 2011
    and $400 per month for 2012.  These amounts were a mere fraction of the amounts
    suggested by the
Spousal Support Advisory Guidelines
and reflect a
    significant discount as a result of the issues raised by the appellant.

[20]

The
    determination of spousal support is highly individual and discretionary.  On
    the basis of the evidence and the trial judges analysis, we see no reason to
    interfere with the exercise of his discretion in this regard.

DISPOSITION

[21]

The
    appeal is dismissed with costs to the respondent fixed at $15,000 inclusive of
    all applicable taxes and interest.

Doherty
    J.A.

Gloria
    Epstein J.A.

M.L.
    Benotto J.A.


