





CITATION:
Khamis v. Noormohamed, 2011
          ONCA 127



DATE: 20110215



DOCKET: C50751



COURT OF APPEAL FOR ONTARIO



Moldaver, Gillese and LaForme JJ.A.



BETWEEN



Shiraz Khamis



Appellant (Applicant)



and



Yasmin Noormohamed



Respondent (Respondent)



Alnaz I. Jiwa, for the appellant



Michael J. Polisuk, for the respondent



Heard: February 9, 2011



On appeal from the judgment of Justice Nancy Backhouse of the
          Superior Court of Justice, dated June 1, 2009.



By The Court:



INTRODUCTION

[1]

The
    appellant husband and respondent wife were married on April 27, 1996, and
    separated on March 27, 2006.  Both of
    them are currently 61 years old and there are no children of the marriage.

[2]

The
    trial lasted six days with the major issue being the equalization of net family
    property under the
Family Law Act
,
    R.S.O. 1990, c. F.3.  The trial judge,
    after providing comprehensive reasons for her findings, ordered that:

(i)        The divorce be granted;

(ii)      The husband is to pay $84,999 to the
    wife.  Of this amount, approximately
    $65,000 was for equalization and $20,000 was pursuant to the contract of Maher
    the parties entered into at the time of marriage;

(iii)     An
    equal division of jointly held mutual funds; and

(iv)     The sale of the matrimonial home, which is
    to be divided equally after the wife first receives $84,999.

[3]

The
    husband appeals from the trial judges decision. In concluding that the appeal
    must fail, we note at the outset that the grounds of appeal are almost entirely
    fact driven.
The appeal raises no
    issues of law except in relation to the marriage contract (the Maher), which
    the trial judge considered and found to be valid and not contrary to Ontario
    law.  As we address further below, we
    agree with her analysis and conclusions as well as her factual findings
    supporting its validity.  The remainder
    of the case, as we have said, is fact driven and dependent largely on the trial
    judges findings of credibility.

[4]

In sum, the trial judge gave thorough and
    persuasive reasons for her factual findings.  We do not accept that she misapprehended the evidence by failing to
    consider or appreciate all of the relevant evidence.  Nor do we accept that the trial judge erred
    by considering matters that had not been pleaded.

GROUNDS OF APPEAL

[5]

The
    three main grounds advanced by the husband are as follows.  First, he submits that the trial judge erred
    in her treatment of the $100,000 the wife received in connection with her
    settlement of a motor vehicle accident claim.  Second, he argues that the trial judge erred in concluding that the
    husband recklessly depleted matrimonial assets in connection with
    $216,000.  Third, he submits that the
    trial judge erred in her treatment of assets the parties had at the date of
    marriage.

[6]

What
    follows are our reasons for dismissing the appeal.  We deal first with the husbands complaints
    about the pleadings.

DISCUSSION

The Pleadings

[7]

The husband contends that the trial judge erred in deciding
    two issues against him that were not pleaded, namely: (1) the wifes claim that
    she was entitled to exclude from her net family property $100,000 that
    represented damages for pain and suffering she received from a motor vehicle
    accident; and (2) the unequal division of assets for an alleged investment loss
    occasioned by the husband on the ground of reckless depletion.  We would not give effect to either submission.

[8]

With
    respect to the $100,000, the husband did not seek an adjournment or further
    production when he learned of the wifes position regarding it. Instead, he
    argued the matter fully and relied on deficiencies of proof in the wifes
    evidence.  Accordingly, he cannot
    complain at this stage.  As for the
    unequal division of assets, the wife was clear in her answer to the husbands
    position; she sought an unequal division of assets. In the circumstances,
    nothing further was required.  No one was
    taken by surprise at trial. The issues in dispute were known to the parties and
    fully canvassed.  No unfairness was
    occasioned.

The Maher Agreement

[9]

The trial judge provided cogent reasons for
    concluding that the Maher Agreement was enforceable.  At para. 69 of her reasons, she set out some of
    the factual underpinnings for her conclusion:

The marriage contract in this
    case was in writing and signed by both parties.  The parties signatures were both witnessed.  There is a certificate by the Mukhi and
    Kamadia who officiated at the marriage that the parties signed the marriage
    contract of their own free will, and volition.

At paras. 73 and 74, the trial judge made the following
    observations:

Setting aside a marriage contract under s. 56(4) of
the Family Law Act
is discretionary.
    This is not a case where the parties were opting out or giving up rights under
    the
Family Law Act
where understanding
    the legislative scheme and the other partys financial position were critical.
    The terms of the marriage contract were simple. Other than the payment of the
maher
amount of $20,000, the parties
    retained their rights under the
Family
    Law Act
. The evidence satisfies me that the husband understood the promise
    he made and understood that it was binding upon him. I am not persuaded that,
    in these circumstances, the court should exercise its discretion to set aside
    the contract.

The husband submitted that if the $20,000
maher
was enforceable, then his net
    family property at the date of separation should be reduced by the $20,000 for
    the debt then owing. The $20,000 obligation was entered into and in existence
    at the date of marriage and comes within the definition of net family
    property.  It also existed at the date
    of separation.  Accordingly, there is no
    effect on net family property.  By
    necessary implication of the words in addition and without prejudice to and
    not in substitution of all my obligations provided for by the laws of the
    land, the
maher
amount is excluded
    from net family property.  Otherwise it
    would undermine the express intention of the agreement and the contract would
    have no meaning.  I find that the $20,000
maher
also comes within the meaning
    of s. 4(2)6 of the
Family Law Act
and
    therefore is excluded from net family property.  It provides:

4(2)6. Property
    that the spouses have agreed by a domestic contract is not to be included in the
    spouses net family property.

[10]

We see no basis for interfering with the trial judges
    analysis or conclusion.  We therefore
    reject this argument.

The Remaining Grounds of Appeal

[11]

As
    to the remaining grounds of appeal, to repeat, this was a fact driven case in
    which the trial judge had to decide the issues based on the evidence presented
    at trial.  Whether that evidence could
    have been more or better is not the test.  Rather, the test on appeal is whether there was sufficient evidence upon
    which the trial judge could make the findings she did and whether those
    findings are reasonable.

[12]

The
    findings by the trial judge in this case are all grounded in the evidence
    presented at trial.  A significant part
    of this evidence was the testimony of the husband and the wife.  The trial judge believed most of the evidence
    of the wife and rejected most of the evidence of the husband.  Her findings of fact based on the evidence,
    including credibility findings of these witnesses, are entitled to deference
    unless it can be demonstrated that they are manifestly wrong.

The $100,000 Exclusion from the Motor Vehicle Claim

[13]

The
    husband argues that other than a self-serving letter from the lawyer who acted
    for [the wife], no other documentation was givenupon which the payments were
    made to her.  His position appears to be
    that on this evidence, the trial judge could not have found that $100,000 of
    the damage award was for pain and suffering and therefore should not have been excluded
    from the wifes assets.  We see no merit
    to this submission.

[14]

The
    trial judge did not err in excluding the $100,000 from the assets of the
    wife.  The letter from the lawyer was not
    at all self-serving; rather it was a solicitors letter explaining the
    breakdown of the settlement of funds the wife received from a motor vehicle
    accident.  There was no reason why the
    trial judge could not rely on this letter, together with the evidence of the
    wife whom the trial judge believed on this issue.  Moreover, there was no evidence to the
    contrary.

[15]

The
    evidence was sufficient, therefore, to permit the trial judge to find that the
    wife received these monies pursuant to a settlement for her claim for damages arising
    out of a motor vehicle accident and that the amount of $100,000 was for pain
    and suffering.  There was no error in the
    trial judges finding that this amount should be excluded from her net family
    property.

The Joint Account

[16]

The
    husband argues that the trial judge misapprehended, ignored or misapplied
    relevant evidence in finding that the husband recklessly depleted $216,000 from
    the parties joint bank account.  He
    submits that the evidence at trial established that the investments made by him
    with these funds were made with the consent and knowledge of the wife.  We disagree.

[17]

The
    trial judge found that the husband was not candid in his evidence about how the
    amount of $216,000, which he removed from the joint account, was used by him. It
    was the wifes position that he used the funds, without her knowledge, to make
    speculative investments. She also maintained that the husband was depleting
    their joint assets in contemplation of the breakdown of their marriage.
    Significantly, the evidence at trial included a written acknowledgment from the
    husband admitting to these two facts. The acknowledgment was freely signed by
    him and executed in the presence of a trusted leader in the Muslim community.

[18]

The
    trial judge noted that the husband could not explain why $197,000 of the
    $216,000 was returned to him and deposited into a personal  account belonging to him six weeks after he
    gave the funds to a friend [Lloyd Robinson] to invest.  Further, he had no documentation to verify
    what happened to the funds after he withdrew them from his account and
    investments were not made in his name.  In the end, the trial judge concluded that in all the circumstances,
    the husband removed the funds for which the wife was jointly liable without
    her knowing about it and that he plotted with Lloyd Robinson to prevent her
    from finding out about it and to keep these funds from her. Notably, the
    husband did not call Mr. Robinson to give evidence at trial.

[19]

On
    the evidence, it was open to the trial judge to find that the husband
    intentionally dealt with this money so as to prevent the wife from knowing
    about it and to keep these funds from her. It was also open to her to find that
    he recklessly depleted the funds in speculative investments. Thus, she did not
    err in applying s. 5(6)(d) and s. 5(6)(g) of the
Family Law Act
.

Date of Marriage Assets

[20]

The
    husband submits that the trial judge erred in giving the wife credit for bringing
    to the marriage half of the proceeds from the sale of a property on St. Clair
    Avenue that the wife claimed she and her sister owned.  He suggests that the property really belonged
    to the wifes parents.

[21]

Again,
    we see nothing in this argument.  The
    trial judge had before her documents from the lawyer who completed the sale
    transaction showing that half of the proceeds were paid to the wife.  This was confirmed by income tax documents
    the wife filed at the relevant time.

[22]

The
    trial judge did not accept fully the wifes evidence as to the savings she
    brought to the marriage.  She reduced
    those sums based on documentation that the wife produced that was close in time
    to the date of marriage.  She accepted
    that the wife could not have acquired all the RRSPs and savings that she proved
    unless she held some of them at the date of marriage.  These findings were clearly open to the trial
    judge on the record.

[23]

The
    husband claimed that he brought a substantial amount of gold, totalling some
    $207,000, into the marriage.  The trial
    judge found that his evidence lacked any credibility.  In this regard, she observed that the husbands
    evidence was not supported by any documentation.  She further noted that the husbands evidence
    as to the value of the gold did not conform with his prior sworn statements and
    seemed to have been given for the first time at trial.  In the end, the trial judge concluded that
    the husband did not have any gold from his former jewellery business at the
    date of the marriage, that he gave none to the wife, and that he concocted the
    story  to increase his property claim.

[24]

It
    was open to the trial judge to make those findings.  While the husband complains that the wife did
    not produce bank records, which he says would have shown that she used monies
    from the sale of his gold to pay down an outstanding loan he had with the
    Laurentian Bank, the husband did not ask the trial judge to order production of
    the wifes bank records.

[25]

Given
    that the husband bore the onus of establishing the deduction, and bearing in
    mind the inadequacies of his evidence, his failure to seek production of the
    wifes bank records,  and the wifes
    evidence on the subject, which the trial judge believed, we would not give
    effect to this argument.

[26]

We
    find it unnecessary to address the remaining grounds of appeal as specified in
    the husbands factum.  They too are fact
    driven and we see no merit in any of them.

DISPOSITION

[27]

For
    these reasons, the appeal is dismissed.  The wife is awarded her costs of the appeal fixed in the amount of
    $7,500 inclusive of disbursements and applicable taxes.


Signed:
    M. J. Moldaver J.A.


E.E. Gillese J.A.

H. S. LaForme J.A. »

RELEASED:  EE
    FEBRUARY 15, 2011



