The husband was a Canadian citizen and resident. In 2009 he met a woman in Iran while visiting family there, and they got married in that country a few months later. The husband then returned to Canada and sponsored the wife to join him.
As part of that sponsorship process, the husband agreed to support the wife for at least three years from the date that she officially became a permanent resident. As is customary for Canadian sponsors, he gave Citizenship and Immigration Canada an undertaking to provide the wife with food, clothing, shelter, and other personal and medical needs, and also promised that neither the sponsored wife nor her family will need to apply for social assistance. He committed to this undertaking irrespective of any changes in his life.
The wife joined the husband in Canada in late 2009. She had studied English, but had not become entirely proficient. Despite being trained as an optometrist in Iran, she had not qualified to work as one in Canada and never obtained a job in her field. She also did not have her own bank account here.
The husband and wife separated in 2011, and the wife applied for interim spousal support pending trial.
In response to that spousal support application, the husband claimed that he was a self-employed Pilot Examiner earning approximately $26,000 per year. However, there was evidence in the form of a letter to Citizenship and Immigration Canada from an employer called Lakeview Millworks – a company apparently owned by the husband’s brother – attesting to the fact that the husband had been employed there at a job earning $58,500 per year.
However the husband was the sole title-holder on a home that was listed for sale at a price of $949,000. He also was the registered owner of five vehicles (though he claimed to use only three of those personally). It was also clear that the husband came from a wealthy family; his parents resided in Canada for only about half the year, and travelled back and forth to Iran two or three times annually. There was clear evidence that they frequently slipped him some money when needed.
In summary about his banking practices, the court said:
In this case, where the Husband had a “primary chequing account” at the Bank of Montreal in his name alone, funded from deposits from other Bank of Montreal accounts in his name or from others, where he has deposed that he received his father’s assistance “as needed,” that his father “typically” pays the monthly mortgage payments on the matrimonial home and where it appears that the Husband also pays his credit card balances using funds from this account, where he qualified for a $600,000 mortgage, where he showed yearly expenses of $110,994.60 and claimed income of $29,418.96 per year in his financial statement of March 14, 2012, his asserted income level is in doubt.
In this case, there are copies of uncashed cheques in addition to the income he is claiming and a representation to the Government of Canada of earnings of $58,500.
I do not accept that the Husband’s means are as limited as he alleges.
In my view, there is ample evidence that spousal support should be calculated on an income of far more than $26,000 or $45,000 per year. It is clear from the Husband’s own affidavits that he “typically” received and expected to receive funds “as needed” to support his lifestyle from his family, a lifestyle and a source of means that he shared with his Wife during the marriage.
The court accordingly imputed an annual income of $200,000 to the husband. At that income level, the Spousal Support Advisory Guidelines would have dictated monthly spousal support in the range of $700 to $933. However, this amount was insufficient in the circumstances; the court was required to consider the means of both parties.
In that regard, the court pointed out that by sponsoring the wife and bringing her to Canada as a permanent resident, the husband had promised to help her become a Canadian citizen, and had provided an undertaking to provide for her until December of 2012. However – aside from a one-time payment of $5,000 which was prompted by a court order – the husband had not provided her with any funds for the past six months. The Guideline amount had to be increased to provide the wife with a reasonable standard of living, having regard to the parties’ respective means and to the standards they reasonably expected to enjoy together at the time she relocated to Canada, and that she had actually enjoyed during the time they lived together.
Taking into account all the circumstances, the court therefore ordered the husband to pay interim spousal support in a gross monthly amount that would leave the wife with $3,250 net.
Kkabbazy v. Esfahani (2012), 2012 ONSC 4591 http://canlii.ca/t/fsrdq