



COURT OF APPEAL FOR ONTARIO

CITATION: Sharma v. Sharma, 2016 ONCA 329

DATE: 20160503

DOCKET: C59404

Laskin, Pepall and Brown JJ.A.

BETWEEN

Jyotsna Sharma

Applicant (Respondent)

and

Tarun Sharma

Respondent (Appellant)

Geoffrey Wells and Ryan Kniznik, for the appellant

S. Giannandrea, for the respondent

Richard Startek, for Pawan Sharma

Heard and released orally: April 26, 2016

On appeal from the judgment of Justice Randolph Mazza of
    the Superior Court of Justice, dated August 22, 2014.

ENDORSEMENT

[1]

At the beginning of the appeal we added the appellants brother Pawan
    Sharma as a party to the appeal. He has an interest in the appeal and his claim
    was adversely affected by the judgment at trial. Our intervention order,
    however, was on the following terms: (1) Pawan Sharma must accept the trial
    record; (2) the appeal would not be adjourned; and (3) his counsel would have
    20 minutes for oral argument.

[2]

On the appeal itself Mr. Sharma makes three main submissions:

(1)

The trial judge erred by
    failing to find that Mr. Sharma had a debt to his brother of $265,000 arising
    from their joint real estate investments;

(2)

The order for spousal
    support should be set aside and the issue should be sent back for trial because
    the trial judge erred in determining Mr. Sharmas income; and

(3)

The trial judge erred in
    making vesting orders in favour of Mrs. Sharma for two of the three properties
    in issue in these proceedings  the two Kitchener condominiums. Mr. Sharma also
    emphasizes that the matrimonial home should not be vested in Mrs. Sharma, but
    should be sold, as otherwise he is prejudiced because he will be deprived of
    any increase in the homes value.

[3]

Pawan Sharma submits that because the trial judge erred in his entire
    approach to the ownership of the properties and the calculation of an
    equalization payment, the only just result is to order a new trial.

[4]

Dealing first with Mr. Pawan Sharmas submission, we do not think a new
    trial is either necessary or desirable. In the light of the trial judges
    findings of fact and Mr. and Mrs. Sharmas agreement on the values of the
    properties, we are in a position to correct any errors made by the trial judge.

(1)

Alleged debt to Pawan Sharma

[5]

As Mr. Wells candidly acknowledged in oral argument, this is a difficult
    appeal for Mr. Sharma because the trial judge rejected his principal claim that
    he owed his brother a $265,000 debt arising out of their real estate
    investments as not plausible. The trial judges finding was amply supported
    in the record. The debt was alleged to have arisen largely in connection with a
    $20,000 advance by Pawan Sharma to help his brother and sister-in-law purchase
    their first home at 19 Jacqueline Boulevard. The brothers alleged before the
    trial judge that Pawan Sharmas $20,000 was for a half-interest in the home,
    that the $20,000 was never repaid and that Pawans half-interest escalated in
    value because of the increases in values of the parties later real estate
    purchases.

[6]

However, the trust agreement and later transfer signed by Pawan Sharma
    evidenced that he had no beneficial interest in the Jacqueline property.
    Moreover, the trial judge reasonably inferred that his $20,000 was repaid when Pawan
    Sharma signed a transfer of the Jacqueline property and put a $23,000 down
    payment on his own home.

[7]

Additionally, Pawan Sharma claimed that he had made ongoing cash
    contributions to the upkeep of the properties. There was no contemporaneous
    documentation that supported this claim. The only support for the claim was his
    and his brothers evidence, which was rejected by the trial judge. Thus, Mr.
    Sharmas first submission must fail.

[8]

Once we disregard the alleged debt owed to Pawan Sharma, the parties
    agree on the equalization payment Mr. Sharma owes to Mrs. Sharma  it is
    $217,058.

(2)

Spousal Support

[9]

The trial judge imputed yearly income to Mr. Sharma of $197,000 and
    based on that amount ordered lump sum spousal support of $106,018. Mr. Sharma
    submits that the trial judge erred in the determination of his income for the
    purpose of spousal support. We disagree.

[10]

Mr. Sharmas application for a line of credit at TD Bank stated his
    annual income was $137,000. The trial judges bump up to $197,000 was justified
    in the light of Mr. Sharmas more than comfortable lifestyle, which included
    ownership of three cars and rather expensive vacations. And even if the bump up
    was not entirely justified, the trial judges support order, if anything, was
    low. Thus, we decline to give effect to Mr. Sharmas submission on spousal
    support.

(3)

Vesting orders

[11]

On the numbers the parties have agreed to, or have been ordered to pay
    by the trial judge, Mr. Sharma owes Mrs. Sharma $375,864 broken down as
    follows:

·

Equalization payment - $217,058

·

Spousal support - $106,018

·

Trial costs - $55,000

·

Less lump sum child support - $2,212

[12]

In his October order, as security for the payment of this amount, the
    trial judge vested the two Kitchener condominiums in Mrs. Sharma. In our view,
    he was entitled to make that vesting order under s. 100 of the
Courts of
    Justice Act
, and s. 9(1) of the
Family Law Act
.

[13]

On Mrs. Sharmas net family property summary statement, version one, the
    two Kitchener condominiums are valued at $240,000 ($135,000 for one and
    $105,000 for the other). Deducting this amount from the amount owed by Mr.
    Sharma leaves a balance of $135,864. Also on the net family property summary
    statement, version one, Mr. Sharmas half interest in the matrimonial home is
    $133,843 taking account of the line of credit against the property, but not any
    disposition costs, real or notional. Thus, Mr. Sharmas equity in the three
    properties closely approximates the amount he owes to Mrs. Sharma.

[14]

In his judgment after the trial, the trial judge vested the matrimonial
    home in Mrs. Sharma as security for the money owing to her. But in his later
    October order, the trial judge vacated this vesting order. We think he was
    right to do so.

[15]

Mr. Sharma and the parties daughter are currently living in the home.
    Mr. Sharma has asked not to vacate the home for 90 days from todays date. That
    is a reasonable request. Within 90 days, the home should be listed and then sold,
    largely in accordance with paragraph 108(d) of Mrs. Sharmas factum. The
    conditions of sale are as follows:

(a)

Mrs. Sharma shall have control of the listing and sale process;

(b)

Mrs. Sharma shall list the home for sale within 90 days after Mr. Sharma
    and his daughter have vacated the home;

(c)

Mrs. Sharma, through her counsel, shall inform Mr. Sharma of the listing
    agreement and the closing of the sale;

(d)

Mr. Sharma shall be responsible for any increase in the line of credit
    from todays date to the date of sale;

(e)

Mr. Sharmas net proceeds of sale shall be used to pay the balance owing
    to Mrs. Sharma under this order.

[16]

We were advised by her counsel that Mrs. Sharma intends to sell the two
    Kitchener condominiums. If, after calculating the net proceeds of sale of all
    three properties, the total amount is less than the amount owing to Mrs. Sharma,
    Mr. Sharma shall remain liable for the deficiency. Conversely, if the net
    proceeds of sale of the three properties exceed the amount owing to Mrs.
    Sharma, she shall pay the excess to Mr. Sharma. To give effect to this
    provision, Mrs. Sharma, through her counsel shall advise Mr. Sharma of the
    listing agreements and closings of the sales on the two Kitchener properties,
    as well as on the matrimonial home.

[17]

And finally, if any issue arises pending the sale, or in connection with
    the completion of the sale of any of the three properties, the parties may
    return to the trial judge for directions.

[18]

In the light of these reasons, the appeal is dismissed. The respondent
    is entitled to her costs of the appeal, fixed in the amount of $35,000,
    inclusive of disbursements and applicable taxes.

John
    Laskin J.A.

S.E.
    Pepall J.A.

David
    Brown J.A.


