CITATION: Manesh v. Pursina, 2009 ONCA 804
DATE: 20091113
DOCKETS: C49909 & C50685
COURT OF APPEAL FOR ONTARIO
Weiler, Sharpe and Rouleau JJ.A.
BETWEEN
C49909
Faramarz Manesh
Appellant (Respondent)
And
Shiva Pursina
Respondent (Applicant)
C50685
AND BETWEEN
Shiva Poursina
Respondent(Applicant)
and
Farzad Manesh
Appellant(Added Respondent)
Tom Wallis, for the appellant/respondent Faramarz Manesh
Doug Menzies, for the appellant/added respondent Farzad Manesh
Allan Hirsch, for the respondent/applicant Shiva Poursina
Heard: November 5, 2009
On appeals from the final orders of Justice M. Metivier of the Superior Court of Justice dated December 17, 2008 and Justice T. Ray of the Superior Court of Justice dated May 11, 2009 and June 12, 2009
ENDORSEMENT
[1] The appellants appeal two related orders refusing to set aside an order of McLean J. granting the respondent child support in accordance with the Guidelines and setting aside a transaction whereby the appellant Faramarz Manesh (“Faramarz”), the former spouse, purported to transfer his interest in a condominium to his brother, the appellant Farzad Manesh (“Farzad”).
[2] The appellants submit that both judges (Metivier J. on the motion of Faramarz and Ray J. on the motion of Farzad) erred by refusing to set aside McLean J.’s order on the ground that they had not been properly served and that McLean J.’s order was made ex parte.
[3] For the following reasons, we reject the appellant's submissions and dismiss both appeals.
[4] Faramarz knew that the respondent had commenced proceedings for child support. He was served with the respondent’s motion to vary the divorce decree and he attended a case conference at which a motion to determine the matter was ordered. After he was served and in the face of the respondent’s application, he transferred his condominium to Farzad in the impugned transaction.
[5] There was some question as to Faramarz’s whereabouts after the case conference. The respondent obtained an order for substituted service. Several attempts were made to effect service in accordance with the order. There was evidence that the both appellants were aware that legal documents had been mailed to the appropriate address and that other efforts had been made to serve them there. There were serious gaps in the evidence offered by the appellants at to their whereabouts at the relevant time. At no time did the appellants move to set aside the order for substituted service.
[6] Metivier J. noted that the motion to set aside the order was brought one year after it had been made following notices of appeal, several changes of lawyer and what she described as “a history of mis-statements by [Faramarz] designed to avoid his child support obligations”. These misstatements included evidence as to his whereabouts and employment status. Metivier J. rejected his evidence as “not credible and completely unreliable”.
[7] We agree with the respondent that it was open on this record for Metivier J. to conclude as she did that “there is strong evidence that the moving party in this motion and his brother deliberately evaded service even though it was attempted at the very address he had himself provided”.
[8] We also agree with the respondent that Metivier J. did not err by finding McLean J.’s order was made on notice despite the recital in that order stating that it was made ex parte. The record before McLean J. included the order for substituted service and the evidence of the efforts that had been made to serve the material for the motion. Moreover, the wording of McLean J.’s endorsement and the nature of the relief he granted is entirely inconsistent with the order having been made ex parte.
[9] Nor are we persuaded that we should interfere with Ray J.’s order dismissing Farzad’s subsequent motion to set aside McLean J.’s order brought on essentially the same ground as the previous motion before Metivier J. While the proceedings against Farzad were far from a model of procedural perfection, we are not convinced that Ray J.’s detailed and careful reasons reveal any reviewable error.
[10] Farzad had participated in a questionable transaction with his brother in the face of an application for child support. He clearly knew that child support proceedings were pending against his brother. It was certainly open to Ray J. to conclude on the evidence that it was almost certain that Farzad had been fully apprised of the relevant details, including application for child support and the motion before Metivier J. to set aside McLean J.’s order.
[11] Finally, as Ray J. noted, even if Farzad had not been not properly served, he knew of the order and he failed to explain why he had not moved more promptly to set it aside or why he had not joined the very similar application made by his brother before Metivier J., thereby affording himself the opportunity to attempt to re-litigate virtually the same issue that had been decided in that motion.
[12] For these reasons, the appeals are both dismissed. The appellant shall pay the respondent’s costs of this appeal which are set in the amount of $8,000, inclusive of disbursements and GST. The costs are related to obtaining child support and are to be enforced by the Director, Family Responsibility Office.
“K.M. Weiler J.A.”
“Robert J. Sharpe J.A.”
“Paul Rouleau J.A.”