DATE: 20050524

DOCKET: C42853

COURT OF APPEAL FOR ONTARIO

RE:

MYDIYEH JAHANGIRI-MAVANEH (Appellant/ Applicant) -and- SEID-KEMAL TAHERI-ZENGEKANI (Respondent/Respondent)

BEFORE:

CATZMAN, LABROSSE and MOLDAVER JJ.A.

COUNSEL:

Harmoody Hassan

for the appellant

Alfred A. Mamo

for the respondent

HEARD AND RELEASED ORALLY:

May 19, 2005

On appeal from the final orders of Justice Grant A. Campbell of the Superior Court of Justice dated July 24, 2003 and September 2, 2003.

E N D O R S E M E N T

[1] The appellant brought an application for spousal support. Her application was met by a motion, made by the respondent under Rule 16 of the Family Law Rules, to dismiss her application on the basis that the court did not have jurisdiction to make the orders sought. In response to that motion, the appellant filed an affidavit setting out in some detail the circumstances of the parties’ marriage and their Iranian divorce. The only response to the appellant’s affidavit was an affidavit by a law clerk in the offices of counsel for the respondent, who identified copies of various documents and deposed, on information and belief from the respondent, that he vehemently denied the allegations and statements made in the appellant’s affidavit.

[2] G.A. Campbell J. gave helpful reasons dealing with the facts of the case, the position of the parties, and the jurisdiction of the court under the Divorce Act and the Family Law Act. He dismissed the appellant’s application in its entirety. He found that there was no triable issue and no basis in law by which the court could grant any of the relief the appellant sought. In reaching that conclusion, he made a number of findings, including a finding that the appellant was ordinarily resident in Iran for over three years preceding the Iranian divorce and that, because the appellant had a real and substantial connection with Iran at the time of the divorce, it should be recognized as being valid under the Divorce Act.

[3] In our view, these were issues that should not have been determined on a motion under the summary judgment rule of the Family Law Rules. The evidence of the appellant, as deposed in her uncontradicted affidavit, raised genuine issues that required a trial of her support application. It was not open to the motion judge to make these findings on the record as it stood before him, particularly in the absence of any evidence from anyone on the respondent’s side who had personal knowledge of the facts in dispute.

[4] Accordingly, the appeal is allowed, the order of the motion judge is set aside, and in its place there will issue an order dismissing the respondent’s motion. The appellant is entitled to her costs of the motion, fixed in the amount of $3,500 plus G.S.T., and of the appeal, fixed in the amount of $5,000 plus G.S.T.

Signed: “M.A. Catzman J.A.”

“J.-M. Labrosse J.A.”

“M.J. Moldaver J.A.”