CITATION: Zargar v. Zarrabian, 2018 ONSC 4016
DIVISIONAL COURT FILE NO.: DC-17-1030 DATE: 20180628
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. Horkins, Fitzpatrick, and King JJ.
BETWEEN:
Faryab Zargar Applicant/Appellant
– and –
Mahsa Zarrabian Defendant/Respondent
Brigitta Tseitlin, for the Applicant Ross MacDonald, for the Respondent
HEARD at Oshawa: June 28, 2018
King J (Orally)
INTRODUCTION
[1] Faryab Zargar (the appellant) has appealed paragraph 6 of the Order of Jarvis J. dated April 29, 2016. That provision requires him to pay his wife, Masha Zarrabian (the respondent) interim spousal support.
[2] Leave to appeal the order was granted pursuant to Rule 62.02 (4) of the Rules of Civil Procedure by Bennett J. on June 13, 2017.
BACKGROUND
[3] The appellant and respondent were married in 1998 and separated on May 25, 2015 when the appellant moved out of the matrimonial home.
[4] Two months later the appellant commenced proceedings pursuant to the Divorce Act R.S.C. 1985, C.3 seeking a divorce, access to the parties’ two children and equalization of net family property.
[5] By her answer and claim, the respondent sought, in part, custody of the children, child support, spousal support and equalization.
[6] Subsequently, the appellant brought a motion seeking an order that the matrimonial home be sold. The respondent did not bring a cross-motion seeking spousal support or any other remedy.
[7] The motion was heard by Jarvis J. on April 29, 2016. A review of the transcript of the proceedings reveals that the submissions of counsel for the parties related exclusively to the issue of the possible sale of the matrimonial home. There was brief reference made to the incomes of the respective parties, and the fact that the appellant has recently recommenced employment. There was also reference to the dispute between the parties regarding the respondent’s declared income. However, none of those representations were referenced in the context of the respondent seeking interim spousal support before the motion judge.
[8] In his reasons dated April 29, 2016 the motion judge concluded after a thorough 15 paragraph analysis that there were “compelling reasons for the sale of the matrimonial home.” He then states in paragraph 16 (5) of the decision:
Based on the husband’s declared income (at motion) of $80,000 and the wife’s income of $7,900 as disclosed in her most recent Financial Statement, the husband shall pay to the wife monthly table child support in the amount of $1,172 and to the wife mid-range spousal support in the amount of $732, both payments effective May 1, 2016. Such payments to be made on a without prejudice basis and for which credit shall be given to the husband for any payments made from and after May 1, 2016.
ISSUE
[9] Did the motion judge commit an error of law by making an award of interim spousal support on a motion only seeking the sale of the matrimonial home?
ANALYSIS
For the reasons that follow, the appeal is allowed.
Standard of Review
[10] The accepted approach to determine the standard of review of a judicial decision on a question of law is correctness: See Housen v. Nikolaisen [2002] SCC 33.
Statutory Considerations
Rule 14 (9) of the Family Law Rules provides as follows:
A motion whether made with or without notice,
(a) requires a notice of motion (Form 14) and an affidavit (Form 14A); and
(b) may be supported by additional evidence.
[11] In this instance there was no notice of motion seeking interim spousal support. The form 14C confirmation did not reference any intention to ask for interim spousal support. While the respondent’s affidavit discussed their incomes there was no mention of a claim for interim spousal support. Lastly neither party provided the motion judge with SSAG calculations.
[12] Furthermore, there was no analysis provided by the motion judge with respect to the following:
i) Why he was addressing the issue of interim spousal support.
ii) Under what statutory or common law authority he was addressing the issue of interim spousal support.
iii) The reasons for making such order.
[13] The appellant attended the hearing of the motion on April 27, 2016 intending to make submissions with respect to his motion for an order that the matrimonial home be sold. He succeeded in that regard. From the record it is clear that neither party attended the motion with the knowledge (or even a hint) that a possible additional outcome would be an order requiring the appellant to pay interim spousal support.
[14] The effect of the decision was to require the appellant to commence paying interim spousal support without notice to him that this was a possible outcome of the motion. For this reason, the appellant was deprived of the opportunity to file affidavit material opposing the payment of spousal support such as further evidence with respect to the income of the respondent, or to make submissions as to what quantum of interim spousal support was appropriate.
[15] I find that by deciding to order interim spousal support without any notice that the issue was going to be adjudicated, the motion judge committed an error of law. In 2038724 Ontario Ltd. v. Quizno’s Canada Restaurant Corp, [2008] O.J. No. 610 at paragraph 10 Perell J found as follows:
Due process underlies rule 37.06 of the Rules of Civil Procedure, which directs that a notice of motion shall contain the precise relief sought and the grounds to be argued, and due process requires that a party be given fair notice of the case he or she must meet and a fair opportunity to answer that case.
[16] The respondent submits that by advising the court that he had recently obtained employment, it would have been obvious to the appellant that the issues of child and spousal support would be decided on his motion for an immediate sale of the matrimonial home.
[17] While the appellant would know, given his income, that child and spousal support would likely be the subject of a motion, if not agreed, he had no reason to expect that spousal support would be ordered that day, in the absence of a notice of motion.
[18] I note that while counsel for the respondent submits that spousal support was obviously going to be an outcome of the motion, he did not attempt to address that issue on the hearing of the motion. Neither party addressed the issue because neither party was seeking to have that issue decided on this particular motion.
[19] Both parties rely on the decision in Traikos v Leyzac [2016] O.J. No. 346 (ON Div. Ct.) In particular the respondent relies on the decision to argue that the relevant test is not whether there was a formal cross-motion, but whether the party had “sufficient notice.” This case is distinguishable with respect to that point. At para 4 of the decision, Swinton J states:
With respect to the fairness issues, the respondent had notice that interim disbursements would be an issue to be raised at the hearing. The applicant’s revised motion confirmation form dated November 24, 2015 indicated that interim disbursements would be an issue, along with interim spousal support and exclusive possession of the matrimonial home.
[20] As well in Traikos, the party claiming procedural unfairness was given an opportunity on the motion to make submissions on the issue (para 6.) The party seeking leave had prior awareness of the issue being live and was given an opportunity to address same. None of that prior knowledge or submissions on the issue, occurred in this case.
[21] Whether it was obvious that an order for interim spousal support would have been made pursuant to a properly filed motion is not relevant. Parties should not have to guess, speculate or intuitively understand what the issues to be decided are on a motion. In an adversarial litigation system, it is imperative that the litigants are made clearly aware of the case they have to meet. In these circumstances, that did not occur. Notwithstanding the inherent power vested in a Superior Court Justice, due process does not extend to the Court making an order for spousal support on its’ own initiative on the facts of this case.
[22] For these reasons I conclude that the motions Judge made an error in law by ordering interim spousal support.
[23] This dispute has been going on for several years and the parties have not yet attended a settlement conference. Every effort should be made to conclude this dispute as soon as possible.
DECISION
[24] For these reasons, Paragraph 6 of the Order of Jarvis J. dated April 29, 2016 is struck.
HORKINS J:
[1] I have endorsed the Appeal Book and Compendium as follows: “On consent, this appeal is allowed for oral reasons delivered today. The parties cannot agree on costs of the underlying leave motion and this appeal. The appellant seeks full indemnity costs of $10,543.24 all inclusive. He served an Offer to Settle in June, 2017 agreeing to set aside para. 6 of the Jarvis Order without costs. The offer was not accepted. This dispute is about $732.00 per month spousal support order. The costs requested are out of proportion given the size of the dispute. While the respondent wife should have agreed to set aside para. 6 of the Order and then proceed with the motion for support, this did not happen. Further, the applicant husband has not been paying spousal support as ordered and is in arrears with FRO. Counsel confirmed this in court. Given the circumstances of this case, we fix the appellant’s costs at $2000.00 all inclusive payable no later than December 31, 2018. If the respondent brings a motion for spousal support before this deadline, the costs order is without prejudice to her right to ask the court to set off the $2000.00 against any spousal support that is ordered (or agreed to) against the appellant husband.
___________________________ King J.
I agree
Horkins J.
I agree
Fitzpatrick J.
Date of Reasons for Judgment: June 28, 2018
Date of Release: June 28, 2018
CITATION: Zargar v. Zarrabian, 2018 ONSC 4016
DIVISIONAL COURT FILE NO.: DC-17-1030 DATE: 20180628
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HORKINS, FITZPATRICK, AND KING JJ.
BETWEEN:
Faryab Zargar
Applicant
-and-
Mahsa Zarrabian
Respondent
REASONS FOR JUDGMENT
King J
Date of Reasons for Judgment: June 28, 2018
Date of Release: June 28, 2018