CITATION: Siahbazi v. Rastegar, 2012 ONSC 2384
DIVISIONAL COURT FILE NO.: 11-DV-1741
DATE: 2012/04/19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Whitten, Corbett JJ
BETWEEN:
Mojgan Siahbazi Applicant (Respondent on Appeal)
– and –
Majid Faal Rastegar Respondent (Appellant on Appeal)
John E. Summers, for the Applicant (Respondent on Appeal)
François K. Kabemba, for the Respondent (Appellant on Appeal)
HEARD: April 18, 2012
REASONS FOR DECISION
by the court
[1] Mr. Rastegar appeals three provisions in the final order of McMunagle J. dated May 31, 2011:
(i) paragraph 1, requiring him to pay retroactive child support of $33,016.50;
(ii) paragraph 3, requiring him to pay $14,808 in retroactive spousal support for 2009 and 2010; and
(iii) paragraph 4, requiring him to pay ongoing spousal support of $510 per month commencing January 1, 2011.
[2] Although the total of the payments would exceed $50,000 if twelve months of periodic payment is added to the two sums in paragraphs 1 and 3 of the order, this Court does have jurisdiction under subsections 19(1)(a) and 19(1.2) of the Courts of Justice Act. When lump sum payments are less than $50,000 and the periodic payments for twelve months are also less than $50,000, the Divisional Court has jurisdiction even if the total of all those payments exceeds $50,000. See Sepe v. Monteleone (2006) 2006 1173 (ON CA), 78 O.R. (3rd) 676 (C.A.) and Samadzadeh v. Bahadori 2009 ONCA 10 (Ont. C.A.) at paragraphs 3 and 4.
[3] The order of May 31, 2011 was made at a settlement conference, at which Mr. Rastegar was self-represented.
[4] The order purports to be on consent. It was not.
[5] Towards the end of the conference, the conference judge asked Mr. Rastegar: “You will agree to sign the order, is that correct sir?” The judge was referring to a draft order which had been prepared by the wife’s counsel over the lunch hour. Mr. Rastegar answered the judge’s question “Yes Your Honour, but there are a couple of them that I was just hearing that we didn’t discuss at all”. Mr. Rastegar did not actually sign anything.
[6] Even if this equivocal exchange could be construed as consent to the terms being appealed, it was not an informed consent and it was not freely given. The conference judge misinformed Mr. Rastegar regarding his legal obligations and effectively bullied him into acquiescence.
[7] Furthermore, it is readily apparent from reading the transcript of the settlement conference that Mr. Rastegar was denied procedural fairness. Quite apart from the numerous legal errors on the part of the conference judge, the proceeding constituted a breach of natural justice by any measure.
[8] While recognizing that a settlement conference is a more relaxed and informal process than some other steps in a proceeding, the conference judge in this case crossed the boundary of appropriate judicial comment. He made references to his own personal circumstances and experience in order to take inappropriate “judicial notice” of facts, including the cultural background of Mr. Rastegar. At one point, when Mr. Rastegar politely suggested that the conference judge was “kind of not impartial about whatever happened back in Iran”, the judge interrupted him mid-sentence to say “I have some knowledge of Sharia law and we all know how badly women are treated under Sharia law”. He went on to say “We don’t have people being stoned to death in this country because they happen to look at a man or they’re not wearing a veil or whatever”. Before the purported consent by Mr. Rastegar the conference judge also said to him “You don’t get to call the shots anymore. All you get to do, sir, is write a cheque, straight up. I know that’s not how they work in different countries, and particularly I have some knowledge of Iran.”
[9] The conference judge constantly interrupted Mr. Rastegar and cut him off mid-sentence. Mr. Rastegar was belittled and criticized without a fair opportunity to express himself. The judge effectively prevented him from having any meaningful participation in the process.
[10] The wife’s settlement conference brief had asked that a temporary order be made at the settlement conference in relation to child support. It did not ask for a final order, nor did it ask for any order in relation to spousal support. The conference judge seemed determined from the outset to finally resolve the issues. This is a laudable objective, but the conference judge used his mantle of authority to unfairly impose his will on the husband to accomplish that end. Furthermore, the husband’s claim for equalization of net family property has not been resolved to this day, nor did the conference judge attempt to resolve it, when seeking to achieve a global and comprehensive settlement to end the litigation.
[11] At the beginning of the conference, without having heard any evidence whatsoever, or even any submission on the subject, the conference judge informed Mr. Rastegar that his marriage contract (signed in Iran when the parties were domiciled there) was “not worth the paper it’s written on” … “is not a legally binding contract” and “I’m telling you right now I’m not putting any weight on it”.
[12] The conference judge summarily pronounced his opinions and conclusions on other issues without any supporting evidence.
[13] The conference judge effectively imposed a retroactive child support obligation without any apparent consideration of the criteria mandated by the controlling jurisprudence from the Supreme Court of Canada in D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231. He expressly considered it a question of simple math and left no doubt there was nothing Mr. Rastegar could say that would change what the judge regarded Mr. Rastegar’s retroactive child support obligation to be.
[14] On the issue of spousal support, the conference judge asked Mr. Rastegar if he was paying spousal support. The appellant replied “I don’t think I have to pay anything”. Without allowing the appellant to explain his position, and without any further inquiry into facts that would be pertinent to the wife’s entitlement to spousal support under the Divorce Act, the conference judge interjected “You do sir. You do”. This conclusion was based upon nothing more than a discrepancy in the incomes of the parties and DIVORCEmate calculations prepared by counsel for the wife. The conference judge misinformed Mr. Rastegar about his obligation to pay spousal support by treating the DIVORCEmate calculation as the only relevant factor and telling Mr. Rastegar “By law you must pay $510 [per month]. I don’t have a choice, that’s what the law says based on your income. That’s the law.” When Mr. Rastegar asked the judge how long he would have to pay spousal support (after a marriage of less than seven years) the judge told him “until there’s no difference between what you make and what she makes”.
[15] In this case the conference judge was only at liberty to make final orders on consent. There is no doubt from reading the transcript that the consent or acquiescence of Mr. Rastegar was conscripted by misinformation and coercive pressure from the presiding judicial officer. The lack of true consent in this case vitiates the terms of the order in relation to retroactive payments and ongoing spousal support.
[16] In these circumstances, paragraphs 1, 3 and 4 of the order cannot stand. They are set aside without prejudice to the wife’s claims on those issues. To be clear, we are expressing no opinion on the merits of those claims.
[17] The respondent is to pay costs of the appeal fixed at $3,000 all inclusive, but payable only on the final disposition of all the issues.
Aston J.
Whitten J.
Corbett J.
Released: April 19, 2012
CITATION: Siahbazi v. Rastegar, 2012 ONSC 2384
DIVISIONAL COURT FILE NO.: 11-DV-1741
DATE: 2012/04/19
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Whitten, Corbett JJ
BETWEEN:
Mojgan Siahbazi Applicant (Respondent on Appeal)
– and –
Majid Faal Rastegar Respondent (Appellant on Appeal)
REASONS FOR DECISION
By the Court
Released: April 19, 2012