Nasrollahzadeh v. Akhtari, 2025 ONSC 3028

Court File No.: FC-22-458-00
Date: 2025-06-10 (Amended: 2025-07-02)
Ontario Superior Court of Justice
Between:
Shirin Nasrollahzadeh (Applicant)
– and –
Shahryar Akhtari (Respondent)

Appearances:

• S. Sarbazevatan, Counsel for the Applicant
• Shahryar Akhtari, Self-represented

Heard: May 21, 22, 23, 29 and 30, 2025

Amended Reasons for Decision
This is an amendment to the Reasons for Decision released on June 10, 2025. The amendment occurs at paragraph 138.

Justice: A. Himel

I. Overview

[1] The parties separated after an eighteen-year marriage, having struggled financially since immigrating from Iran to Canada in 2012. The parties’ valuation date assets were limited to equity in the matrimonial home ($490,000) and an Iranian property ($147,000). Both parties were (and are) in debt. Both parties continue to live beyond their means.

[2] The primary issue in this case relates to the Mehr, which required a payment by the Respondent (father) of 800 Brand 1 Bahar Azadi Gold Coins (the “Gold Coins”), on demand. At the time of the marriage the Gold Coins were valued at $82,000. By separation the value materially increased to $540,000. The Applicant (mother) takes the position that the father should walk away from the marriage with nothing, and that he owes a payment on account of the Mehr. The father’s position is that the Mehr was paid shortly after the marriage when an apartment in Iran (the “Iranian Property”) was purchased in both names. He claims a one-half interest in the family’s assets at separation.

[3] As part of the father’s property claims, he seeks a finding of resulting trust and/or unjust enrichment in respect of his 50% interest in the Iranian Property. That property was transferred by the mother’s father (“MGF”) in 2019. He also seeks a finding of resulting trust and/or unjust enrichment in respect of his 50% interest in the matrimonial home. That property was transferred from joint names to the mother’s name alone on February 28, 2020.

[4] Secondary issues include child support and the father’s claim for spousal support.

[5] The result of this trial is as follows. The matrimonial home will be sold, and the father will receive the sum of at least $140,000. The mother will retain the balance of the net proceeds of sale. She has already received (and dissipated) funds from the sale of the Iranian Property. The father’s claim for spousal support is dismissed.

[6] There shall be no retroactive child support or section 7 expenses. Commencing June 1, 2025, the mother shall pay $544 per month in set-off child support. The parties shall share the child’s after-tax cost of childcare / camp, one extracurricular activity per term, and medical / health expenses on a pro-rata basis (mother 70% and father 30%).

[7] The following are my reasons (the “Reasons”).

II. Important Facts and History

[8] The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required.

[9] On the date of marriage, May 18, 2003, the mother was twenty-three and the father was twenty-seven years of age.

[10] The mother moved into an apartment owned by father. However, at her request, the father later sold the residence and used the net proceeds to purchase a better apartment that was closer to the maternal family.

[11] The father states that he paid the Mehr by placing the Iranian Property in joint names. The mother did not contribute to the down payment or mortgage expenses. The expenses were very high as they obtained the mortgage from a private bank.

[12] The mother denies that the Mehr was paid. As the parties never executed nor registered any agreement to confirm that the Mehr was paid, there is no documentary evidence to support the father’s claim.

[13] The father was employed as a high-level notary public and earned a good income. The mother was educated as an architect yet earned a relatively low income. The father was primarily responsible for the mortgage and other living expenses.

[14] In 2012, the mother requested that the parties immigrate to Canada, and the father agreed. Initially they resided with the father’s sister. However, as there were challenges with this arrangement, they relocated to their own apartment. Both parties struggled with the transition.

[15] The mother secured stable employment as an architect. The father was unable to secure employment as a notary public. He initially worked in a factory and later developed skills in crown moulding installation and cabinetmaking.

[16] Prior to relocating to Canada, the parties gave MGF a Power of Attorney (“POA”) over property so that he could manage the Iranian Property (including collecting rent, selling the property as they may agree…). MGF transferred the rent (after payment of the mortgage) to a joint account that he held in Iran with the mother. She was then able to withdraw funds from the Bahmani Exchange in Ontario.

[17] In 2015, the mother requested that the parties relocate back to Iran, and the father agreed. The tenants vacated the Iranian Property, and the parties resided there. The father and a partner rented two storefronts and purchased toys, with the intention of owning toy stores. After several months, the mother requested that the parties move back to Canada where their prospects were better. She returned to her prior employment position. The father relocated several weeks later after closing the business (at a financial loss).

[18] The parties did not share bank accounts and were not fully aware of the other’s debts or funds held in bank / investment accounts.

[19] The transitions between Canada and Iran and the toy store investment caused the father to incur debt with the Royal Bank of Canada (“RBC”).

[20] In 2016, at the father’s initiative, the parties purchased a jointly held property situated at 42 Holsworthy Cres., Markham, Ontario (the “matrimonial home”). While the mother objected to that purchase, she has benefited from it. It is the parties’ remaining asset of value.

[21] The parties purchased the home by obtaining a private mortgage at a high rate of interest. The monthly payments were $4,800 per month. The father’s income was below the annual mortgage payments.

[22] The child, A.A., was born in 2017.

[23] From the time of the matrimonial home’s purchase, and notwithstanding the father’s low income, he undertook sole responsibility for the mortgage, utilities, other expenses, and car insurance. The mother contributed to the household expenses, including groceries and the child’s expenses.

[24] The mother blamed the father for his inability to meet the family’s expenses and for the increased debts. She alleged that he had gambling issues and borrowed money from her family and friends under false pretenses. However, the mother produced no witnesses or documentary evidence to corroborate these claims. I find, instead, that the parties continued to live beyond their means, and that they both incurred debts.

[25] On April 16, 2019, the father entered into a Consumer Proposal, but defaulted within a few months.

[26] Also in April 2019, RBC commenced a claim (“First RBC Action”) against the father for debts arising from a Visa credit card, an outstanding line of credit and bank account overdraft. RBC served that claim by personal service on the mother on April 19, 2019.

[27] In fall 2019, the father requested that the matrimonial home be sold so that the debts could be repaid. The mother responded that she intended to separate if the home was sold.

[28] As the father did not want the marriage to end, he suggested re-financing the matrimonial home mortgage to reduce the monthly payments. As set out in greater detail below, the parties worked together to obtain a mortgage with the Bank of Montreal (“BMO”) in early 2020. This involved transferring the matrimonial home to the mother’s name alone due to the father’s poor credit and making misrepresentations to BMO about the mother’s RBC line of credit.

[29] Also in September 2019, MGF transferred the father’s 50% interest in the Iranian Property to himself. As set out in detail below, the parties dispute whether this was done on consent (following the father’s request for the property to be sold), and whether the father was paid for his interest. The father states that he learned about the transfer when the mother served her first sworn financial statement dated March 10, 2022.

[30] MGF transferred his interest in the Iranian Property to the mother on September 8, 2020. He passed away in 2021.

[31] On March 5, 2021, the bank obtained an undefended judgment against the father in respect of the First RBC Action.

[32] On October 1, 2021, the bank started another claim (the “Second RBC Action”), against both parties. The bank sought to enforce the judgement. By then, the matrimonial home was held in the mother’s name alone.

[33] Conflict between the parties continued.

[34] On January 26, 2022, the police attended at the parties’ home but left without laying charges. The parties separated on that date, and the father left the home.

[35] When the father returned to the home in February 2022, the mother contacted the police. The father was charged with three counts of uttering threats and a no contact order was made. Approximately one year later, with the assistance of criminal counsel, the charges were withdrawn.

[36] The mother commenced this Application on March 10, 2022, and the father filed an Answer dated May 9, 2022.

[37] Following separation, the mother and child remained in the matrimonial home. She was solely responsible for the mortgage, taxes, insurance, and related expenses. The father initially stayed with his sister, and later rented a basement apartment. He used his available funds to purchase furniture and other items as the mother declined to share the household goods.

[38] The father’s parenting time was initially limited. However, by January 2023, the father had care of the child 5/14 overnights. As per the final order of Macpherson J. dated April 12, 2023, made on consent, the child transitioned to a 6/14 overnight schedule in June 2023, and a 7/14 overnight schedule in June 2024. The child continues to follow a 2/2/3/3 schedule.

[39] On or about November 14, 2024, the mother consented to a resolution of the Second RBC Claim. She agreed to pay the sum of $45,000 from the sale of the matrimonial home.

[40] The mother, who is the higher income earner, continues to be solely responsible for the child’s expenses, except for the child’s day to day expenses when he resides with the father. No child support or set-off child support has been paid. No spousal support has been paid.

III. Preliminary Considerations

The Father is a Self-Represented Litigant

[41] As stated by the Ontario Court of Appeal in the recent decision, Grand River Conservation Authority v. Vidhya Ramdas, 2021 ONCA 815, 160 O.R. (3d) 348 at paras. 18-21:

(a) Self-represented litigants are expected to familiarize themselves with the relevant practices and procedures pertaining to their case and respect the court process;

(b) The Court has the duty to ensure that self-represented litigants receive a fair hearing;

(c) The Court must permit the represented party and the self-represented party to explain how they understand where things stand in the litigation;

(d) The Court may swear the party in before he/she makes submissions so that all admissible evidence can be relied upon; and,

(e) It is open to a judge to engage in active adjudication in order to obtain relevant evidence. However, a judge must not cross the line between assisting self-represented litigants in the presentation of their evidence and becoming their advocate.

[42] While the father had legal representation through mid-2023, and some legal assistance until at least December 3, 2023, he was self-represented during the period leading up to and including the trial.

[43] Recognizing the importance of providing appropriate assistance in cases where a party is self-represented, I took the following steps, including:

(a) Advising the father of the issues that the Court must decide;

(b) Explaining direct and cross-examination processes (with examples);

(c) Explaining how a party prepares a draft order and statement of law;

(d) Reviewing how to prepare an oral closing submission;

(e) Providing draft Net Family Property (alternately “NFP”) statements, after identifying significant problems with both parties’ NFP statements;

(f) Identifying two legal issues that arose during the trial, being:

(i) A potential claim by the father for a resulting trust interest in respect of the mother’s 50% interest in the Iranian Property; and

(ii) A potential claim from an unequal division of net family property based on unconscionability.

(g) Providing the father (and mother) with a case summary setting out the legal test for unconscionability, the name of a website that could be used for any further research, and a case referred to in the mother’s case book that summarizes the current state of the law on the treatment of the Mehr.

(h) Employing active adjudication and asking questions where there were gaps. I did so to ensure that I had the available evidence.

IV. Credibility and Reliability

[44] Jarvis J. summarizes the relevant considerations when assessing credibility and reliability as follows:

[28] As has been frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may impress the court with the coherence and logic, or common sense, of their narrative but be unreliable due to their interest in the outcome of the case or the lack of probative information. Or a witness may be so interested in a case that they are incapable of making an admission or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee by Chappel J. who aptly observed that,

…the judge is not required by law to believe or disbelieve a witness’s testimony in its entirety. On the contrary, they may accept none, part or all of a witness’s evidence, and may also attach different weight to different parts of a witness’s evidence (see R. v. D.R., para 93; R. v. J.H., paras. 51-56; McIntyre v. Veinot, 2016 NSSC 8, para 22). [14]

[45] Each party portrayed that he/she was a credible witness, and that the other party was not credible, reliable, or trustworthy. However, that is not correct. There were serious issues with each party’s credibility and reliability. Neither party was a trustworthy witness. Some examples are below.

[46] To obtain a mortgage on the matrimonial home with BMO in 2019, the mother swore a false affidavit. She stated that a RBC line of credit was paid in full and would be closed. That information was untrue, and the debt remains outstanding today.

[47] The mother provided false information to the Business Development Corporation (“BDC”), and obtained a loan in the amount of $100,000 on March 22, 2022. The mother paid the sum of $14,000 to a person who assisted her to apply for the BDC loan. The financing request states that her 2018 business is a commercial enterprise designed to generate revenue. She states that the loan will be used exclusively by the business, which has annual revenues of $291,788. The mother admitted that the above information was not true. She testified that she needed funds to support her lifestyle. This admission contradicts her affidavit which states that she obtained the loan in the hope of moving into business on her own. The mother’s trial position is that she has always been a full-time T4 employee who has not worked outside of her paid employment.

[48] The father’s evidence was equally problematic. He was evasive under cross-examination, often providing contradictory evidence on important points (such as whether he was expecting funds from the mother).

[49] The father stated that the mother signed an agreement (in the presence of a person he referred to as Mr. Terani). The father testified that the mother acknowledged receipt of the Mehr in this person’s presence. The father did not call Mr. Terani as a witness. He failed to provide a copy of the agreement (which he states was lost), or any evidence about Mr. Terani. The father admitted that he never registered payment of the Mehr with the registry office, as one is required to do in Iran. The father’s evidence respecting an agreement allegedly executed by the mother is not credible.

[50] The challenges relating to the evidence are made worse by the parties’ decision not to call any witnesses to corroborate their evidence. The parties’ financial statements are not reliable. They include considerable expenses that are well beyond their disclosed incomes, without a reasonable basis to conclude that they earn materially more than their current stated incomes. The bank account statements include many deposits and withdrawals each month without a sufficient basis to understand why the accounts were used in that way, and how the funds were spent. Both parties allege unexplained use of cash. Neither has submitted the reliable disclosure that one would expect at a trial.

[51] As stated recently by the Ontario Court of Appeal in Qu v. Zhang, 2025 ONCA 391, para 27, “the evidence of parties to a legal dispute is always self-serving to an extent; the question is whether it is genuine, capable of being believed.” I have identified which party I believe and the basis for the belief throughout these Reasons.

V. Property Issues

The Law

[52] The Preamble of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”) describes the legislative purpose as follows:

Whereas it is desirable to encourage and strengthen the role of the family; and whereas for that purpose it is necessary to recognize the equal position of spouses as individuals within marriage and to recognize marriage as a form of partnership; and whereas in support of such recognition it is necessary to provide in law for the orderly and equitable settlement of the affairs of the spouses upon the breakdown of the partnership, and to provide for other mutual obligations in family relationships, including the equitable sharing by parents of responsibility for their children.

[53] Sections 4(1) and 5(1) of the FLA define and address the equalization of net family property as follows:

4(1) “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage;

5(1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family property is entitled to one-half the difference between them.

[54] Section 5(6) of the FLA addresses the potential for an unequal division of net family property, including the catch-all category described in subsection (h):

5(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net properties would be unconscionable, having regard to,

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.

[55] Where parties are married, beneficial ownership and trust claims must be resolved prior to equalization. Sections 10(1) and 14 of the FLA apply to such a consideration. In Korman v. Korman, 2015 ONCA 578, the Ontario Court of Appeal held as follows:

[25] For married spouses, the Act provides a comprehensive scheme for resolving financial issues following marriage breakdown. Section 10(1) of the Act authorizes a court to determine questions of title between spouses. This includes considering whether legal title actually reflects beneficial ownership. As indicated by this court in Martin v. Sansome, 2014 ONCA 14, para 47, citing Rawluk v. Rawluk"[b]efore property can be equalized under the [Act], a court must first determine the 'net family property' of each spouse. This exercise requires first that all questions of title be settled." In other words, property entitlements must be determined before they can be equalized.

[26] Section 14 of the Act affirms the presumption of a resulting trust in determining questions of ownership between spouses in the context of gratuitous property transfers. Where the presumption is invoked, the party resisting the imposition of a resulting trust is required to disprove the presumption that his or her spouse is the beneficial owner of an interest in the disputed property.

[27] In Kerr v. Baranow, 2011 SCC 10, paras. 16-19, the Supreme Court confirmed that a traditional resulting trust may arise in the domestic context where, as here, there has been financial contribution to the initial acquisition of a property and a subsequent gratuitous transfer of title to the property. In these circumstances, the actual intention of the transferor is the governing consideration. See, also, Pecore v. Pecore, 2007 SCC 17, paras. 43-44; Schwartz v. Schwartz, 2012 ONCA 239, paras. 41-42. Further, the intention of the transferor to make a voluntary and gratuitous transfer is an essential ingredient of a legally valid gift: see McNamee v. McNamee, 2011 ONCA 533, para 24.

The remainder of the decision continues with detailed findings of fact, legal analysis, and application of the law to the parties' circumstances, including the treatment of the Mehr, trust claims, child and spousal support, and costs. For the full text, see the official decision.

End of excerpt. For all footnotes, references, and the full decision, please consult the official source.

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