



COURT OF APPEAL FOR ONTARIO

CITATION: Mahtani v. Mistry, 2021 ONCA 492

DATE: 20210702

DOCKET: C67558

Tulloch, Roberts and Thorburn
    JJ.A.

BETWEEN

Vishal Mahtani

Applicant

(Appellant)

and

Videshi Mistry

Respondent

(Respondent)

Stephen P. Kirby, for the appellant

Robert A. Fernandes, for the respondent

Heard: June 18, 2021 by video
    conference

On appeal
    from the order of Justice Michael G. Emery of the Superior Court of Justice
    dated September 11, 2019, with reasons reported at 2019 ONSC 5260 and a
    corrigendum at 2020 ONSC 1142, and the costs order dated June 3, 2020, with
    reasons reported at 2020 ONSC 3454.

REASONS FOR DECISION

[1]

The appellant husband appeals
    from the order for spousal and child support, as well as for equalization of
    property granted to the respondent wife. While he initially sought leave to
    appeal costs, the appellant now takes the position that the costs order of
    $129,313 made in favour of the respondent should be set aside if the appeal is allowed
    but agrees that it should stand if the appeal is dismissed.

[2]

At the conclusion of the
    hearing of the appeal, we dismissed it with reasons to follow. These are those
    reasons.

[3]

At issue on appeal, as at
    trial, are the questions of the amount of income to be imputed to the appellant
    under s. 19 of the
Federal Child Support Guidelines
S.O.R./97-175, and
    the valuation of his 50% interest in his business, VAMS Canada Inc., for the
    purposes of determining support and equalization of property. Both parties
    called expert evidence at trial on these issues.

[4]

The appellant submitted that
    the trial judge made the following reversible errors: he erred in accepting the
    evidence of the respondents expert to impute income to the appellant because
    the experts calculations were based on generalized data without regard to the
    parties particular circumstances, and the expert exceeded the scope of his
    expertise; and he made inconsistent findings with respect to the valuation of
    VAMS Canada Inc. as at the dates of separation and marriage for the purpose of
    the equalization calculation.

[5]

We do not accept these
    submissions.

[6]

The trial judges findings
    about spousal support and equalization largely flowed from his negative
    credibility assessment of the appellants evidence which, in turn, materially
    affected the validity of his experts opinion where it depended on the
    appellants evidence. Where there was a conflict, the trial judge preferred the
    evidence given by the respondent and her expert. The appellant does not point
    to any error in the trial judges credibility assessment, which is in any event
    entitled to deference on appeal.

[7]

With respect to the income
    imputation, the trial judge did not base his conclusion simply on the figures
    in the expert reports but looked at all the evidence. He found that the
    appellant was deliberately underemployed, did not make full financial
    disclosure, and intentionally diverted business from VAMS Canada Inc. to VAKA
    Trading Inc., a company incorporated by his family roughly two weeks after his
    separation, the timing of which the trial judge found to be suspicious. These
    findings were open to the trial judge on the record and are not challenged on
    appeal.

[8]

Further, it was open to the
    trial judge to accept the opinion of the respondents expert that, based on several
    indicators, additional income should be imputed to the appellant. These
    indicators included census tract data, borrowing costs, and evidence of the appellants
    lifestyle and expenses, from which the trial judge, reasonably in our view,
    inferred that the appellant was receiving a higher income than he reported. It
    is difficult for the appellant to criticize the approach followed by the respondents
    expert and applied by the trial judge as improperly speculative given his
    failure to make the financial disclosure that would have provided more
    information for the assessment. There is nothing in the respondents experts
    evidence to suggest he exceeded the scope of his qualified expertise and no
    such objection was made at trial. We see no error that warrants appellate
    intervention.

[9]

Similarly, we see no basis
    to interfere with the trial judges determination of the value of the
    appellants interest in VAMS Canada Inc. The appellant argues that the trial
    judge erred by taking an inconsistent approach: he discounted to zero the
    shareholder loans allegedly owing to the appellant that the appellant had
    listed as part of his assets existing at the date of marriage but accepted the
    appellants experts opinion that the value of VAMS Canada Inc. was zero at the
    date of marriage because it was reduced by the shareholder loans indicated on
    the balance sheet. The appellant argues further that the trial judge adopted
    inconsistent methodologies for the valuation of VAMS Canada Inc., assigning a
    valuation of zero at the date of marriage based on the appellants experts net‑asset
    approach while assigning a higher valuation at the date of separation based on the
    respondents experts income approach.

[10]

We see no inconsistencies in
    the trial judges approach.

[11]

The first difficulty with
    the appellants argument is that it conflates the existence of shareholder
    loans on the companys balance sheet for the purpose of the appellants
    experts valuation with the question of whether any of those shareholder loans
    were truly owed to the appellant. It also fails to take into account the trial
    judges findings concerning the deficiencies in the evidence and the lack of
    credible financial disclosure and documentation.

[12]

There was no credible
    evidence that the appellant was owed anything or that the proffered financial
    documentation was correct. The appellant had failed to produce court-ordered
    evidence demonstrating the existence of the loans allegedly made by him. The
    trial judge was not prepared to accept the running ledgers of VAMS Canada Inc.,
    which the appellant had himself maintained, as sufficient evidence that the
    appellant had loaned any of his own funds to the company. The trial judge found
    that the evidence of the companys accountant was clear that Mr. Mahtani put
    none of his own money into the corporation, and he was the accountant at all
    material times for both VAMS Canada and Mr. Mahtani. Indeed, as the trial
    judge observed, the evidence was that many of the shareholder loans
    represented loans from relatives and third parties, not from the appellant.

[13]

The trial judge therefore concluded
    that the appellant had not proven that the shareholder loans were from him or
    owed to him, either at the date of marriage or at the date of separation. This
    conclusion was amply supported by the evidence that the trial judge was
    entitled to accept.

[14]

It is in the context of
    these findings that the trial judge accepted the opinion given by the
    appellants expert that the value of VAMS Canada Inc. and of the appellants
    interest in the company was zero at the date of the marriage. This was not
    inconsistent with his finding that the shareholder loans on the balance sheet were
    not owing to the appellant.

[15]

Moreover, the trial judges
    decision to adopt different methodologies for the valuation of VAMS Canada Inc.
    at the date of marriage and the date of separation does not give rise to an
    inconsistency necessitating appellate intervention, nor is the purported
    discrepancy inadequately explained, as the appellant suggests. There was expert
    evidence before the trial judge that changing circumstances could necessitate
    changing methods of valuation. The trial judge clearly explained why he
    preferred the respondents experts evidence regarding the value of VAMS Canada
    Inc. at the date of separation, including the credibility issues arising from
    the appellants failure to make the required financial disclosure both to the
    court and to his own expert.

[16]

We see no error that
    warrants appellate intervention.

[17]

Accordingly, the appeal is
    dismissed.

[18]

As agreed, the appellant
    shall pay the respondent costs of $15,000, all inclusive.

M.
    Tulloch J.A.

L.B. Roberts J.A.

J.A.
    Thorburn J.A.


