COURT OF APPEAL FOR ONTARIO
Sossin, Monahan and Osborne JJ.A.
BETWEEN
Neda Ataei
Applicant (Appellant/ Respondent by way of cross-appeal)
and
Saeed Kalantari
Respondent (Respondent/ Appellant by way of cross-appeal)
Gary Joseph, for the appellant/respondent by way of cross-appeal
Harold Niman and Chloe Van Wirdum, for the respondent/appellant by way of cross-appeal
Heard: July 13, 2026
On appeal from the order of Justice Julia Shin Doi of the Superior Court of Justice, dated December 6, 2024, with reasons reported at 2024 ONSC 6863, and from the costs order dated January 16, 2025.
REASONS FOR DECISION
1The appellant appeals an order dismissing her application to set aside a separation agreement (the “Agreement”) on the basis that it was obtained by duress, pursuant to s. 56(4)(c) of the Family Law Act, R.S.O. 1990, c. F.3 (COA-25-CV-0121). The respondent brings a cross-appeal seeking leave to appeal the application judge’s costs order (COA-25-OM-0032).
Main Appeal on Merits
2The application judge accepted that there was evidence the appellant (i) felt she was being blackmailed by the respondent and his new romantic partner, (ii) felt pressure to sign the Agreement by the respondent, (iii) was vulnerable, and (iv) found the separation difficult.
3However, the application judge went on to find that the appellant’s vulnerabilities were compensated by the independent legal advice and professional assistance she received throughout the negotiation and execution process from her lawyer. Moreover, the blackmailing by the respondent’s new romantic partner, Dr. Safar Zadeh (who was the appellant’s former physician and disclosed private health information about the appellant to third parties) occurred after the Agreement was signed. Therefore, although the application judge was sympathetic to the appellant’s circumstances, she found that the appellant’s feelings of vulnerability and pressure did not rise to the level of duress, and therefore did not nullify her apparent consent at the time of contract formation. The application to set aside the Agreement was accordingly dismissed.
4After hearing submissions from the appellant, we indicated that it was unnecessary to hear from the respondent on the main appeal and dismissed that appeal with reasons to follow. These are our reasons.
5The application judge’s findings with respect to duress were findings of fact that were open to her on the record. A determination under s. 56(4) of the Family Law Act is discretionary and is entitled to deference: Davies v. Jane, 2025 ONCA 752, at para. 28. The application judge carefully considered the evidence before her, including about the efforts made by the lawyer to protect the appellant’s interests and the timing of Dr. Zadeh’s conduct. The appellant has failed to identify any palpable or overriding error in those findings and, in substance, asks this court to reweigh the evidence and come to a different determination. That is not our role and we see no basis for appellate intervention.
Cross-Appeal on Costs
6Turning to the cross-appeal, the respondent seeks leave to appeal the application judge’s costs award which fixed costs payable by the appellant to the respondent at $30,000. Leave to appeal costs will only be granted where there are “strong grounds upon which the appellate court could find that the judge erred in exercising [their] discretion”: Brad-Jay Investments Ltd. v. Szijjarto (2006), , 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92.
7While costs awards attract deference, appellate intervention is warranted where the first instance judge made an error in principle or if the award is “plainly wrong”: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
8The application judge acknowledged that the respondent was presumptively entitled to his costs in accordance with r. 24(3) of the Family Law Rules, O. Reg. 114/99.1 In determining the quantum of costs, she noted that the appellant incurred approximately $65,000 in legal fees while the respondent incurred approximately $133,000 in legal fees during the applicable time period (i.e., following a bifurcation order which narrowed the scope of the trial which is the subject of this appeal). She reasoned that a $30,000 costs award in favour of the respondent was appropriate since it would reduce the respondent’s net costs to approximately $103,000 and increase the appellant’s net costs to approximately $95,000. The application judge regarded this result to be fair and proportionate, since it “would put the parties in a comparable position in terms of costs”.
9This “cost equalization” methodology fails to give effect to the presumption in r. 24(3) of the Family Law Rules. It also ignores the purpose of a costs award, which is not to equalize the parties’ respective legal expenditures but to: (i) partially indemnify successful litigants; (ii) encourage settlement; (iii) discourage and sanction inappropriate behaviour by litigants; and (iv) ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10, leave to appeal refused, [2018] S.C.C.A. No. 392.
10Because the application judge’s comparative cost methodology failed to take into account the relevant legal principles, it constitutes an error in principle. This is therefore one of the rare cases where appellate intervention on costs is warranted and requires this court to determine afresh the appropriate costs award in respect of the proceeding below.
11As the successful party on the sole issue before the application judge, namely, whether the Agreement should be set aside because it was signed under duress, the respondent is presumptively entitled to his costs. We see no basis for an award of costs on an elevated basis, nor any reason to reduce the respondent’s costs below a partial indemnity scale. We therefore award the respondent costs in the amount of $80,000, which is approximately 60% of his actual costs incurred between November 6, 2023 and June 1, 2024.
Disposition
12The appellant’s main appeal is dismissed. The respondent’s motion for leave to appeal costs is granted, and the cross-appeal is allowed.
13The respondent is also entitled to costs of the appeal and cross-appeal. In accordance with the agreement of the parties, we fix those costs in the amount of $12,500 on an all-inclusive basis.
“L. Sossin J.A.”
“P.J. Monahan J.A.”
“Osborne J.A.”
Footnotes
- This rule was numbered r. 24(1) at the time of the application judge’s costs decision, which she correctly identified. The text of the rule has not materially changed following amendments to the Family Law Rules in 2025.