Court File and Parties
COURT FILE NO.: FS-14-00396507-0000 DATE: 20160419 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
YALDA MOGHIMI Applicant
- and - EBRAHIM DASHTI Respondent
COUNSEL: Joel Etienne for the Applicant Aryan Yassavoli-Sani for the Respondent
HEARD: April 4, 5, 6 & 7, 2016
BACKHOUSE J.
Reasons for judgment RELEASED APRIL 19, 2016
Reasons for Judgment
[1] The issue in this case is whether the condominium property at 3 Rean Drive, Unit 2307, Toronto, is beneficially owned by the respondent and therefore included in net family property or whether it is subject to a declaration of trust in favour of his father. If this property is included in net family property, another issues arises: Is a second mortgage of $300,000 to his parents registered against the property valid? The parties agree on the value of the property at the date of separation and that there is no other net family property.
[2] The parties both graduated as civil engineers in Iran where they grew up. They met in Iran in 2007 at the company, Renault Pars, where they were colleagues. They started dating in January, 2008. In June, 2008 the respondent immigrated to Canada. The parties carried on a long distance relationship until October, 2009 when the applicant broke up with the respondent because of what she considered his abusive behaviour. She refused to respond to his emails asking for forgiveness and promising to change. One of his friends contacted her to say that the respondent was in really bad shape over the break up and was coming to Iran to propose. The applicant testified that she told the friend that if the respondent was coming to Iran to see her, he should not come. The respondent’s sister (now deceased) also contacted the applicant to say that the respondent was going “crazy” over the break up.
[3] The respondent testified that he loved the applicant and was heartbroken over the break up to the extent that he dropped out of his program in Canada to obtain his professional engineer accreditation. In January, 2010, he came to Iran hoping to get back together with her. He contacted her and they met. By this time the applicant had applied to immigrate to Australia where she had family. They discussed their situation over 4 hours. The respondent asked the applicant to marry him. She testified that he promised that he would change, that he would return to Canada, begin a sponsorship application for her, buy a house for them and get a job. The applicant testified that she loved the respondent and wanted to believe him. She testified that she was reluctant to get married right away and suggested a 6 to 7 month engagement to see if the respondent followed through on his promises to change his abusive behaviour. The respondent wanted to get married right away. He said that it would slow down the sponsorship application if they waited to get married and that his return flight was already booked. After going together to see a counsellor and talking to friends, the applicant decided to go ahead with the respondent’s wish not to wait.
[4] The respondent could not remember all that had happened around the time of their getting married. The applicant testified that although she did not ask the respondent specifically about his finances which was not done in their culture, she knew that he had the financial means to come through on his promise to buy a house for them. He had talked to her of his Iranian investment properties from which he had rental income and she knew him to be well educated, to have a good job and a good lifestyle. On the strength of the respondent’s promises, the applicant agreed to give up her job, leave her family and join the respondent in Canada. The parties married on February 28, 2010, 3 or 4 days before the respondent returned to Canada.
[5] The applicant testified that the respondent came through on his promises to find a job, buy a home and sponsor her. She testified that he sent the applicant pictures of various condominium apartments he was looking at and they agreed that 3 Rean Drive, Unit 2307, Toronto which had 2 bedrooms and a den was the apartment they should purchase as their matrimonial home. The respondent acknowledged sending the applicant photos of 3 Rean Drive and the pictures of furniture he bought for the apartment. The respondent took title to the condominium apartment on June 25, 2010. The purchase price was $374,000. A first mortgage was registered to Canada Trust in the amount of $243,100 in which the respondent declared himself as not married. On the same day the respondent signed a trust declaration giving his father beneficial ownership. The trust declaration provides that the beneficiary shall be solely responsible for payment of all costs and expenses in connection with the property including all mortgage payments, common expense payments, property tax payments and repair and maintenance costs. Notwithstanding this, the respondent testified that he paid all of the expenses for the property. He testified that his father said he could stay in the property. He then amended his statement that he paid all of the expenses for the property to say that when he did not have a job, his father paid and when he got a job, he paid. There is no documentary evidence showing anyone other than the respondent paying the carrying costs of the property.
[6] The respondent acknowledged that he did not inform the bank that he was not the beneficial owner. The trust declaration was not registered on title and is not referenced in the lawyer’s reporting letter. There is no lawyer’s trust statement or cancelled cheques to show who paid the downpayment for the condominium.
[7] The applicant’s evidence is that she was not aware of the trust declaration until she commenced legal proceedings following separation. The respondent denied promising to buy a home for the parties. While he testified that the parties would have discussed plans to own a home as all couples do, he testified that he told the applicant that the apartment was his father’s.
[8] On August 19, 2010, the respondent registered a mortgage in favour of his parents in the amount of $300,000 against the property. He again declared himself as not married on the mortgage. He could not remember if he told the lawyer that he was married. The applicant testified that she knew that there would be a first mortgage but she knew nothing of any mortgage to the respondent’s parents until these proceedings were started. The respondent’s evidence was that he did not consider himself a spouse until his application to the Canadian government to sponsor his wife had been processed.
[9] The respondent testified that no payments had been made to his parents under the mortgage to date.
[10] The parties agree that the value of 3 Rean at the date of separation and currently is $420,000. The only evidence with respect to the balance of the 1st mortgage is in the respondent’s financial statement which states that it was $219,000 at the date of separation.
[11] The respondent obtained employment in Canada in January, 2011 as a lab technician earning $28,000 or $29,000/year.
[12] The applicant’s visa came through in January, 2012. On January 17, 2012, she came to Canada and moved into 3 Rean Drive, Unit 2307, Toronto, with the respondent as their matrimonial home. She took courses for new immigrants for 3 months and then started working as a volunteer. This helped her obtain a contract employment position in August, 2013, where she replaced someone on maternity leave. She is now employed at Apotex Inc., earning approximately $50,000/annum.
[13] The applicant testified that she brought $10,000 with her when she came to Canada and that her brother transferred $5000 to her which was part of her father’s wedding gift. She opened a bank account and deposited $1000. The rest she kept in cash. She spent the money on things for the home, restaurants, groceries and gas for the car. When her money ran out, the respondent replenished her with $7000. He never asked for the money back or told her that he had borrowed it from his father. She testified that they had a good lifestyle and he never complained of any financial stress or that he needed the applicant to contribute. The respondent agreed that they had a very good lifestyle in Canada. By the date of separation, she had $15,000 in her bank account which she had accumulated from her employment earnings.
[14] The respondent’s visa statements are in evidence from April 2012 until May 2014. In many months the monthly charges exceed $3000 or $4000.
[15] During the time the parties cohabited, the respondent underwent 3 back surgeries. He went on employment insurance and then long-term disability (ending January, 2015). The applicant cared for the respondent while he was recovering. In October 2012 until January, 2013, the respondent’s parents and sister came to visit. In April, 2014 the respondent had his third surgery. The respondent’s mother came back in December, 2013 and stayed with the parties to help look after the respondent following his surgery because by that time the applicant was working. In January, 2014, the parties talked about selling 3 Rean and another property the respondent had at Yonge and Steeles and buying a home. They attended open houses with the respondent’s mother.
[16] The applicant testified that the respondent became abusive again following his third surgery. The respondent testified that he might have said a lot of bad things. He was on ocycodone and does not remember exactly what he said to her. He testified that the applicant physically abused him on one occasion. He testified that after she became employed, hostilities between them intensified which he attributed to women thinking they have the right to do whatever they like after they live in Canada. The applicant left the matrimonial home and stayed at a friend’s home for a couple of days. She testified that she did not intend this to be a permanent separation. The respondent felt that the applicant abandoned him while he was on medication and had just had an operation. After 6 days of not hearing from the respondent, she emailed him suggesting that they should talk, now that they were both calm. He said he did not have time. One of his friends called the applicant and said the respondent had asked him to accompany her to remove her belongings from the apartment. She was also told that the locks had been changed. The parties did not resume cohabitation thereafter and agree that the date of separation was April 12, 2014.
[17] The respondent gave the following testimony. His salary in Iran was not significant enough to accumulate very much by way of savings. He had no property in his name in Iran. When he moved to Canada in 2008, he took minimal savings, insufficient to cover the courses recommended for new immigrants and the courses to obtain his professional engineer accreditation. He was unemployed so his father was paying for his living expenses.
[18] The respondent testified that after he arrived in Canada and prior to his marriage (between August 24, 2008 and October 27, 2009), his father transferred to the respondent’s bank account funds totalling $169,696. After the date of marriage, his father transferred further funds to the respondent’s bank account in the amount of $273,134. Documents were produced purporting to show transfer of monies from a foreign exchange office in Iran to Canada in these amounts. Although the documents state they were translated accurately it is apparent that the translated documents refer to “Ali Dashti” while the Iranian documents refer to Mr. Dashti. Some of the transfers refer to the purpose of the transfer as education expenses. Others refer to the purpose as living expenses. The father’s bank records were not produced. The respondent’s bank records were produced only from January, 2012.
[19] Further documents were produced purporting to show that between July 29, 2010 and January 2014, funds totalling $120,331 were transferred from Ali Dashti in Iran to his daughter’s Royal Bank of Canada account in Canada.
[20] Ali Dashti, gave the following testimony. He and his wife came to Canada in May, 2010 because Ali Dashti wanted to invest money in the Toronto real estate market due to run away inflation in Iran. With the help of the realtor, Peter Arian, they decided on 3 Rean, Unit 2307 as a condominium suitable for themselves. The property was registered in the respondent’s name because he was resident in Canada, he was able to get a mortgage and there were many taxes applicable to non-residents which would be avoided. The property was not a gift. On August 19, 2010, a second condominium apartment at 1 Rean was purchased which was registered in the name of Goli Dashti, the respondent’s (now deceased) sister. Goli was a Canadian citizen but was residing in Iran. There was no trust agreement with respect to this apartment. On the same day that 1 Rean was purchased, a $300,000 mortgage was registered against the subject property, 3 Rean and a $300,000 mortgage was registered against 1 Rean, both in favour of Ali Dashti and his wife.
[21] In 2011, two more investments were made in pre-construction condominium units in the respondent’s name with funds from Ali Dashti. Trust declarations were signed whereby the respondent agreed that he held these pre-construction units in trust for Goli. Ali Dashti testified that he reserved those 2 condominiums for his daughter. When Goli died tragically and further required deposits were not made because the funds in her bank account were frozen pending probate, the investments on the pre-construction units were lost. One Rean Drive (as well as the 2 pre-construction units) were described in Goli’s Will as her properties in Canada and were left by her to her parents.
[22] The respondent testified that his father loaned the money for him to buy 3 Rean and that he signed documents that his father asked him to sign based on legal advice. When asked about why, if his father was the real owner of 3 Rean, his father would take a mortgage on his own property, the respondent’s testimony was that there might be a bad person coming in the respondent’s life and that concerned his father.
[23] Ali Dashti is educated and financially sophisticated. He has the equivalent of a Masters degree in business administration and political science from France and went as far as his thesis for his doctorate before the Iranian revolution intervened. He was an Iranian diplomat for many years in Turkey and Paris. He inherited property from his father in southern Iran where the family is well known and he manages and develops property for his family in south Iran and Teheran.
[24] Ali Dashti is a resident of Iran. He testified that he and his wife intended to move to Canada but received legal advice that it would be better to wait until the regulations loosen up. He and his wife have never applied to immigrate to Canada. He and his wife had 2 children, the respondent and Goli, now deceased. He testified that he and his wife chose 3 Rean, Apartment 2307 as a home for themselves. He testified that his real estate salesman, Peter Arian, and his lawyer, Garry Shapiro, recommended purchasing 2 condominium apartments instead of one which they did and one was rented out. He testified that he sought Mr. Shapiro’s advice about how to protect his investment and Mr. Shapiro recommended the trust agreement and second mortgage. He testified that he paid Mr. Shapiro for preparing the second mortgage. No legal account or reporting letter was produced. A cheque dated August 19, 2010 was produced that was written on Ali Dashti’s Canada Trust bank account in the amount of $995. He wrote “legal work” on the “re” line on the cheque. He testified that he told the lawyer that the properties belonged to his wife and himself. He testified that it was none of the lawyer’s business whether the respondent was married or not. He also testified that he thought it was a reasonable explanation for the respondent representing his marital status as not married in the mortgages that the respondent had not yet completed the sponsorship of his wife.
[25] Ali Dashti testified that he transferred his monies to his son and daughter in Canada because at that time he did not have a bank account himself. He then acknowledged that he had in fact opened a bank account for himself in 2010. He was unable to explain why he did not transfer the monies from Iran into his own account. Ali Dashti testified that there were also transfers from the respondent’s account to Ali Dashti’s account. He testified that he was not aware of Canadian regulations, that he and his wife were elderly and that he relied upon the lawyer to advise him how he could be 100% sure that he would not have any problems with his investment properties then or in the future. He testified that as soon as 3 Rean was purchased, he moved there in order to avoid paying any further rent, that he and his wife had their belongings there and he told his son that he and his daughter-in-law could stay there as long as they wanted.
[26] Peter Arian gave the following testimony. He has worked as a real estate salesman for 8 years and was the salesman on the 4 properties purchased in the name of the respondent and Goli Dashti. He considers that he has a close relationship with the Ashti family. The respondent described him as a very close friend. He testified that he did not meet with Ali Dashti or the lawyer to discuss his evidence and was not asked to produce his file but was able to remember what occurred in 2010. He met Ali Dashti in 2010 by coincidence. He was interested in purchasing a condominium property because he wanted to live in Canada. He considered Ali Dashti the main client from whom he took his instructions. He took Mr. and Mrs. Ali Dashti to see a number of properties. The respondent was present on occasion. Ali Dashti indicated he had about $600,000 to invest. Mr. Arian suggested that Ali Dashti consult a lawyer and find out the best way to approach becoming a permanent resident. He referred Ali Dashti to a number of lawyers and Ali Dashti chose Garry Shapiro. Mr. Arian attended the meeting with Mr. Shapiro who advised that it was better to buy in the name of the respondent because he was a resident and in the name of Goli because she was a Canadian citizen. Mr. Shapiro further advised that to be safe, a second mortgage should be registered against the properties. Mr. Arian did not know if the respondent was married or not at that time. He could not remember who paid the deposit or closing funds for the properties. Although he initially testified that he did not know the amount of the mortgage on 1 Rean and 3 Rean, he then contradicted this and testified that the mortgages were each for $300,000 so that the children could not sell the properties without Ali Dashti’s permission.
Analysis
The Applicant’s Credibility
[27] The applicant’s evidence was given in a straight-forward, consistent and unexaggerated way. Her evidence was not undermined on cross-examination and I found her to be a credible witness.
The Respondent’s Credibility
[28] It was clear from the respondent’s evidence that he harbours strong resentment at what he considered the applicant’s abandonment of him shortly after his third operation and at what he considers to be an outrageous financial claim against him after a short marriage. He seemed prepared to say anything that he thought would assist his position in the litigation, without regard for the truth. For example, he testified for the first time at the trial that the applicant physically assaulted him. This claim was not raised in his answer nor in any of the documents filed by him. His attempt to explain his misrepresentations in the 2 mortgages on 3 Rean that he was not married lacked credibility.
[29] There are numerous examples of inconsistencies between the evidence of the respondent and his father. The respondent never suggested that his father was living at 3 Rean in either his answer or in his oral evidence. His father’s evidence was the opposite. The father testified that he bought all the furnishings for 3 Rean which conflicted with the respondent’s Answer wherein the respondent stated that he paid for the house furnishings. The respondent alleged in his Answer that the applicant forced him to get married which was contradicted by his evidence at trial. His claim in his Answer that he changed the lock on 3 Rean because he became concerned about his safety is also unconvincing. The respondent was not a credible witness.
Credibility of Ali Dashti
[30] Ali Dashti’s evidence that 3 Rean was bought as a residence for himself and his wife for when they became permanent residents lacks any credibility, given that 6 years later they still have not applied to be permanent residents in Canada. His evidence that they received legal advice that they would be better off to wait for regulations to change before applying for permanent residence lacked the ring of truth. His attempt to portray himself as living at 3 Rean was inconsistent with the respondent’s evidence. My impression of Ali Dashti was that he was a shrewd and experienced business person who had owned property in Paris and elsewhere and was not the elderly person relying upon legal advice that he was seeking to portray. His evidence was not believable that the respondent’s marriage and the effect that would have on how the transaction should be structured was never discussed with the lawyer. The lawyer was not called as a witness. No notes were produced of what was discussed at the meeting or meetings and who was present. Neither Ali Dashti nor the respondent were able to articulate why, if Ali Dashti was the owner of 3 Ream, he would give a mortgage to himself. There was no explanation for why, if the respondent’s marriage was not a motivating factor for the way the purchase of 3 Ream was structured, there had not been a similar trust agreement for the unmarried daughter’s property at 1 Ream. Ali Dashti’s acceptance of the respondent’s rationalization for his misrepresentation of his marital status is telling. Ali Dasti’s evidence lacked any credibility.
Peter Arian’s Credibility
[31] Mr. Arian, as a very close family friend of the Dashtis, was doing his best to support the position of the respondent. His evidence that he had not discussed his evidence with Ali Dashti or his counsel and yet was able to remember without notes or files details of transactions and discussions with Garry Shapiro, the lawyer that handled the transaction 6 years earlier, was not believable. His evidence that he met Ali Dashti by coincidence and that he simply gave him 4 recommendations of lawyers rather than steering him to a particular lawyer was not believable. My impression was that Mr. Arian was more engaged in concocting the structure of the transaction than he admitted and that he was called as a witness to create evidence to fill in the gaps from not calling Mr. Shapiro as a witness. He was not a credible witness.
Findings of Fact and Law
[32] I am satisfied that the respondent promised the applicant to buy a home for the parties and that at no time did he ever suggest to her that the condominium was owned by his father or was encumbered by a $300,000 mortgage to his parents. His failure to disclose in the various transactions that he was married because the application for sponsorship had not been processed and the applicant was not his wife until that had occurred is a fanciful lie to which I give no weight. What seems perfectly plain to me is that his was a relationship which was troubled from its outset. Once the respondent had married the applicant, he, probably with advice from his father, decided to organize his affairs in Ontario to avoid the effects of the Family Law Act, in particular, to insulate the condominium from any claim that it was a matrimonial home and to the equity therein to which she was entitled.
[33] The applicant’s arguments for setting aside the declaration of trust and second mortgage are essentially a claim that they are a sham. The definition of “sham” according to the online Merriam-Webster Dictionary is "something that is not what it appears to be and that is meant to trick or deceive people who look at it."
[34] One of the most commonly cited definitions of "sham" is found in Snook v. London & West Riding Investments Ltd., [1967] 2 Q.B. 786. In that case, Lord Diplock stated as follows:
….I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the "sham" which are intended by them to give to third parties or to the court the appearance of creating between the parties the legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. One thing, I think, however, is clear in legal principle, morality and the authorities...that for acts or documents to be a "sham", with whatever legal consequences follow from this, all parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.
[35] The Federal Court of Appeal in Antle v. Canada, 2010 FCA 280, endorsed the following explanation of a "sham," as set out in Waters' Law of Trusts in Canada, 3rd ed. (Toronto: Thomson Carswell, 2005) at 145:
The term "sham" in English and offshore parlance, adopted in Canada, is not a precise term. It is more a turn of speech; its meaning has been given as "something that is not what it seems; a counterfeit" (Black's Law Dictionary, 7th ed. (St-Paul. Minn.: West Group 2000)). It originated in England with regard to transactions, to which of course there are always at least two parties, and it means the parties' true intent is that others shall be misled by the terms appearing in the transactional instrument. The real terms are something other, and the instrument is therefore declared void.
[36] In Antle, the Court held that the transaction in question constituted a sham because the parties intended to give "a false impression of the rights and obligations created between them," and presented the transaction in question as "being different from what they [knew] it to be" (at paras. 20-21).
[37] While Antle concerned a sham trust, the case of Bank of Nova Scotia v. Simonot (1992), 105 Sask.R. 154 (C.A.) considered a mortgage alleged to be a sham. In that case, the Court of Appeal held the proper approach to determining whether the mortgagee was entitled to the benefits of the mortgage was to consider, first, if the advances had actually been made; and second, even if not all the monies had been advanced, whether the intention of the parties was nevertheless to benefit the mortgagee for the amount of the mortgage. If so, effect should be given to that intention.
[38] I find the trust agreement to be a sham designed to thwart the applicant’s entitlement. In reaching this conclusion, in addition to my credibility finings, I note the following factors:
(a) The trust agreement was not registered on title nor was the bank which granted the first mortgage advised of the trust agreement. (b) No reporting letter from the lawyer was adduced into evidence nor was evidence called from the lawyer who acted on the trust agreement. No explanation was proffered for the failure to call the lawyer. In these circumstances I infer that the lawyer’s evidence would not have supported the respondent’ position. (c) By the terms of the trust agreement, Ali Dashti was to pay the carrying costs of the property which were in fact paid by the respondent. (d) Ali Dashti’s evidence that he purchased 3 Rean as a residence for himself and his wife for when they became permanent residents is unbelievable, given that no application to be permanent residents in Canada was ever made. (e) I find that the respondent represented 3 Rean to the applicant as his property. If the trust agreement was bona fide, one would expect it to have been disclosed to the applicant which I find it was not. (f) Ali Dashti’s evidence that 3 Rean was used by him as his residence in Canada was inconsistent with the evidence of both the respondent and the applicant. (g) The documents produced as evidence of foreign currency transfers between father and son state that the purpose was for education expenses and living costs. There was no accounting tracing the funds into the subject property. There are no documents to show who paid for the downpayment on 3 Rean or from where the funds came. (h) If Ali Dashti was not intending to benefit his son, there was no apparent purpose for transferring funds into the respondent’s bank account rather than into Ali Dashti’s own account. (i) A similar condominium unit was purchased around the same time for the daughter without a trust agreement Other than the respondent’s marriage, there was no apparent reason to treat them differently. No explanation was proffered as to why Ali Dashti would treat his children differently.
[39] In conclusion, I am satisfied that the sole purpose of the trust declaration was to ensure that the applicant’s claim to an interest in the matrimonial home would be defeated. The trust was a sham.
[40] I find the second mortgage to be a sham for the following reasons:
(a) Second mortgages each in the amount of $300,000 were registered against both 3 Rean in the name of the respondent and 1 Rean in the name of the respondent’s sister, Goli, yet the amounts said to have been advanced to each of them were dissimilar. (b) There was no evidence that at the time the funds were advanced to the respondent, ostensibly for student loans and living costs, they were ever intended to be repaid. (c) There is no evidence that the principal amount was advanced to the respondent at the time the second mortgage was entered into. (d) There was no loan agreement or promissory note with respect to the $300,000. (e) If the second mortgage was bona fide, one would expect it to have been disclosed to the applicant which I find it was not. (f) If Ali Dashti was already the beneficial owner of 3 Rean, why take a mortgage from yourself? (g) No payments were ever made on the second mortgage and no demand was ever made. (h) The respondent misrepresented his marital status in the mortgage. I infer that his marriage was the reason for the mortgage and it was designed not to secure money owed but to deprive the applicant of her interest in the matrimonial home. (i) I find that there was no intention between the respondent and Ali Dashti to pay Ali Dashti the amount of the mortgage or to create any debt between them. (j) No reporting letter on the second mortgage was produced.
[41] In conclusion, I find that Ali Dashti gifted funds to the respondent to purchase 3 Rean for his own use and that of his new wife when she arrived. I am satisfied that the second mortgage is not bona fide. It is a sham and part of the scheme to deprive the applicant of her claim. Neither the trust agreement nor the second mortgage with respect to 3 Rean are valid. I find that the respondent is the beneficial owner of 3 Rean.
[42] On the second day of trial, after hearing argument from counsel, I advised the parties that, without prejudice to their positions on appeal, I would allow the respondent to adduce any evidence he wished to adduce during the trial and to make submissions on closing as to whether the court should award less than half the difference between the parties’ net family properties pursuant to s. 5(6) of the Family Law Act. The respondent’s motion on the eve of trial to amend his pleading to make this claim was dismissed. Notwithstanding this, I felt that it was preferable to address this as part of the trial in the interests of a full record in case this matter goes to appeal. The applicant did not pursue an award for more than half the difference between the parties’ net family properties under s. 5(6).
[43] Subject to s. 5(6), the applicant is entitled to an equalization payment of $100,500. I have considered the fact that the parties cohabited for only 27 months and that the funds for the downpayment on the home were a gift from the respondent’s father. I have also considered that one of the promises the respondent made to the applicant when he was trying to reconcile with her was that if she would marry him and immigrate to Canada, he would buy a home for them. I find that the respondent induced her to marry him with this promise. In reliance on that promise, the applicant waited 2 years for the sponsorship application to go through, left her job and family and then moved to a country where she had no family and where her qualifications as an engineer were not recognized. Given the sacrifices that she was making in coming to Canada, her desire for some security is quite understandable. It would have been easier for her to immigrate to Australia where she had family. I have concluded in all the circumstances that it would not be unconscionable to award the applicant an equal division.
[44] After the trial was completed, I received a letter from the applicant’s counsel asking that if the court applied section 5(6)(e) in favour of the respondent, that the case of Mokhorya v. Mokhoria, 2010 ONSC 893 be taken into consideration. Counsel for the respondent responded that applicant’s counsel should not be permitted to make further submissions. Given my conclusion with respect to section 5(6)(e), it is not necessary that I consider either counsel’s submissions further.
Conclusion
[45] In the result, the applicant is entitled to an equalization payment in the amount of $100,500. Given the trust agreement and second mortgage which I have found not to be valid, I find that the applicant shall be entitled to a charge as security on 3 Rean in the amount of $100,500 plus any costs awarded which will rank ahead of the $300,000 mortgage on title. Upon payment of the equalization payment and costs, the charge shall be discharged. If the equalization payment and costs remain unpaid for more than 30 days, I may be spoken to with respect to terms of sale.
[46] The applicant shall deliver brief written submissions on costs within 14 days of the release of these reasons. The respondent shall have 14 days thereafter to respond.
BACKHOUSE J.