Court of Appeal for Ontario

Date: 2017-12-20 Docket: C62150

Judges: Laskin, Miller and Paciocco JJ.A.

Parties

Between

Ebrahim Dashti Appellant

and

Yalda Moghimi Respondent

Counsel

Veena Pohani, for the appellant

Joel Etienne and Naila Waheed, for the respondent

Hearing

Heard and released orally: December 20, 2017

On appeal from judgment of Justice Backhouse of the Superior Court of Justice, dated April 19, 2016.

Reasons for Decision

[1] Over most of the course of their four year marriage the parties lived in a Toronto condominium. The respondent wife sought an equalization payment for her interest in this matrimonial home. The appellant husband took the position that the condominium was beneficially owned by his father under a declaration of trust, and that a $300,000 second mortgage the appellant gave to his parents was valid.

[2] In lengthy and thorough reasons the trial judge rejected the appellant's position. She found that both the declaration of trust and the second mortgage were shams. She also rejected an unequal division of property under s. 5(6) of the Family Law Act, and she awarded the respondent an equalization payment of $100,500.

[3] On appeal the appellant makes two submissions: first, the trial judge erred in failing to find that the declaration of trust and mortgage were valid; second, in the alternative, the trial judge should have awarded the respondent an unequal division amounting to $50,000. We decline to give effect to either submission.

[4] The appellant's submissions run up against the trial judge's credibility findings and her detailed reasons for finding that the two documents were shams, designed to defeat the respondent's interest in the matrimonial home.

[5] The trial judge assessed the credibility of each of the main participants. She found the respondent credible and the appellant, his father and the real estate agent not credible. We have no basis to interfere with the trial judge's credibility findings. In addition to her credibility findings, the trial judge gave detailed reasons why she found both the declaration of trust and the second mortgage to be sham documents. Again, we have no basis to interfere with her findings, which are entitled to deference in this court.

[6] Finally, the trial judge gave specific reasons for rejecting an unequal division of property under s. 5(6) of the Family Law Act. That finding, too, is entitled to appellate deference.

[7] Accordingly the appeal is dismissed with costs to the respondent in the amount of $15,000 all inclusive.

John Laskin J.A.

B.W. Miller J.A.

David M. Paciocco J.A.