COURT OF APPEAL FOR ONTARIO

CITATION: Salehi v. Tawoosi, 2016 ONCA 986

DATE: 20161229

DOCKET: C61732

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Faranak Salehi

Applicant (Appellant)

and

Farzad Tawoosi

Respondent (Respondent)

Ryan M. Kniznik, for the appellant

Elena E. Mazinani, for the respondent

Heard: December 15, 2016

On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated January 22, 2016, with reasons reported at 2016 ONSC 540.

By the Court:

[1] The parties in this family law appeal were married on December 10, 2001, in Iran. They separated on June 5, 2013, and were divorced in 2015. They have one child. On consent, the appellant mother has custody of the child.

[2] Prior to the marriage, the families of the parties met in Iran and negotiated a marriage contract. Under the terms of that contract, the respondent husband’s family was to convey, among other things, 500 square metres of rural land in Iran (the “Mobarakeh lands”) to the appellant.

[3] In this appeal, the appellant seeks to have this court redetermine matters that relate to equalization of the parties’ respective net family properties, under the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). A key issue in the appeal is whether the trial judge erred in the value that he attributed to the appellant’s interest in the Mobarakeh lands.

[4] Shortly before the oral hearing of this appeal on December 6, 2016, the appellant brought two motions. In the first motion, the appellant asked the court to preclude the respondent from making responding submissions on appeal because of a failure to pay costs of $6,500, owing as a result of orders of this court made on November 15, and 16, 2016 (the “Costs Orders”). In the second motion, the appellant asked that she be permitted to adduce fresh evidence on appeal which she says, among other things, shows that she does not own the Mobarakeh lands.

[5] On December 9, 2016, in response, the respondent filed his own motion to adduce fresh evidence. His motion materials call into question the reliability of the appellant’s fresh evidence relating to the Mobarakeh lands.

[6] After hearing oral argument on the three motions, the court dismissed them all and indicated that reasons would follow. Those reasons are set out now. Thereafter, we will address the issues raised on the substantive appeal and explain why we order that it be dismissed.

THE PRELIMINARY MOTIONS

(1) The Appellant’s Motion to Preclude Responding Submissions

[7] The appellant’s request that this court preclude responding submissions is based on the respondent having purportedly breached the Costs Orders. The Costs Orders were made in the following circumstances.

[8] In October 2016, each party brought a motion in this appeal to this court. Doherty J.A. heard the two motions on November 15, 2016. He disposed of them in two endorsements, dated November 15 and 16, 2016, respectively. In those endorsements, among other things, Doherty J.A. made the Costs Orders which required the respondent to pay costs totalling $6,500.

[9] Doherty J.A. did not establish a deadline for payment of the Costs Orders. Therefore, the respondent had 30 days within which to pay them. That means that the deadlines for paying the Costs Orders were: (1) December 15, 2016, for the first costs order; and (2) December 16, 2016, for the second costs order.

[10] Accordingly, when the appellant filed this motion on December 6, 2016, the deadline for payment of the Costs Orders had not been reached, the respondent was not in breach of those orders, and there was no basis for the motion to have been brought.

[11] We would go further, however, and strongly suggest that even if there had been a breach of the Costs Orders, the motion ought not to have been brought. We say this for three reasons.

[12] First, we point to the timing of the motion. Absent compelling evidence of wilful disregard of court orders, it is seldom helpful to bring such a motion shortly before the oral hearing of the appeal. This type of motion deflects the parties’ attention from the real matters in issue on the appeal, tends to unduly inflame emotions at a time when they are typically already running high, and unnecessarily drives up the costs of the litigation.

[13] We appreciate that the motion in this case was brought to the panel hearing the appeal. Because that is not always the case, we wish to take this opportunity to make it clear that if a party brings such a motion to this court within three weeks of the hearing of the appeal, the judge hearing the motion in chambers must be told of the date on which the appeal is to be heard. Parties should expect that in such a situation, the motion may very well be adjourned to the panel hearing the appeal.

[14] Second, and in any event, the alleged misconduct in this case does not come close to the level that would justify precluding the hearing of responding submissions.

[15] The appellant relies on the dissenting judgment of Laskin J.A. in Dickie v. Dickie (2006), 2006 CanLII 576 (ON CA), 78 O.R. (3d) 1 (C.A.), at para. 87, affirmed by the Supreme Court of Canada: [2007] 1 S.C.R. 346, 2007 SCC 8, at para. 6. Dickie establishes that the court has a discretion to refuse to hear a litigant who has wilfully breached a court order, until the litigant has cured the breach. Absent evidence of a wilful and ongoing disregard for the court’s process, such a motion must fail. In this case, there was no breach at the time the motion was brought. Furthermore, even if there had been, it would not have been “ongoing” in any meaningful sense of the word, as it would have lasted for perhaps a day or two.

[16] Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257, which the appellant also seeks to rely on, does not assist the appellant. Murphy underscores the high hurdle the moving party must meet in order to succeed on such a motion. In Murphy, on the day that the appeal was heard, the respondent was in breach of court orders that required him to: (a) pay costs; (b) disclose his income tax returns; and (c) pay outstanding child support. This court found that “to hear the respondent's submissions would be to reward his deliberate and wilful misconduct” (at para. 6).

[17] That is not this case. The misconduct in Murphy was wilful and ongoing. As we have already noted, in this case, even if there had been non-compliance with the Costs Orders, it would have been a matter of days at most. That cannot be seen to reach the level of a “wilful and ongoing disregard” for the court’s process such that the court would refuse to hear his responding submissions on the appeal.

[18] Third, there is the issue of proportionality. This motion related to an alleged failure to pay the Costs Orders, which totalled $6,500. Given the costs associated with the bringing of the motion and the overall sums involved on appeal, proportionality considerations suggest that the motion was not warranted.

[19] Having said that, these reasons should not be taken as accepting of the non-payment of costs orders made close to the time an appeal is heard. Costs orders are made by the court with the full expectation that they will be paid in a timely fashion.

[20] Accordingly, this motion is dismissed with costs to the respondent.

(2) The Parties’ Motions to Adduce Fresh Evidence

[21] We begin this part of our reasons by underlining that they do not apply to fresh evidence motions brought in family law appeals in which there are issues involving children. In order for the court to discharge its obligation to consider the best interests of the children, the rules governing the admission of fresh evidence in such appeals are relaxed.

[22] It is with troubling regularity that parties to family law appeals dealing with equalization payments bring motions to adduce purportedly “fresh” evidence on appeal. Such a practice is to be discouraged.

[23] The Courts of Justice Act, R.S.O. 1990, c. C.43, provides that:

134. (4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case…

(b) receive further evidence by affidavit, transcript of oral examination, oral examination before the court or in such other manner as the court directs…

to enable the court to determine the appeal. [Emphasis added.]

[24] The case of Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, established the criteria that define “a proper case” for fresh evidence:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases. [Citation omitted; emphasis added.]

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[25] Therefore, “fresh” evidence will generally not be admitted in civil appeals if, by due diligence, it could have been adduced at trial.

[26] In the appellant’s fresh evidence motion, she seeks to adduce expert opinion evidence about the Mobarakeh lands from the same expert in Iranian law whom she called at trial. The fresh evidence is said to arise from documentation from Iran received after trial. The appellant does not argue that the documentation could not have been obtained, with due diligence, before trial. Yet, she submits that the documentation, as interpreted by her expert, would have affected the outcome below, and should thus be admitted on appeal.

[27] We do not accept this submission.

[28] In the context of a dispute about the quantum of an equalization payment, the due diligence requirement ought not to be relaxed. Contrary to the appellant’s contention, her position does not find support in R. v. Manasseri, 2016 ONCA 703. Manasseri is a criminal case. As the above-quoted provision from Palmer expressly states, the due diligence requirement is not applied as strictly in a criminal case.

[29] In essence, through the appellant’s fresh evidence motion, she asks this court, equipped with documentation that appears to have been obtainable before trial, to reweigh conflicting evidence that was before the trial judge. That runs contrary to the notion that fresh evidence should not be admitted on appeal if, among other things, by due diligence it could have been adduced at trial.

[30] As was the case in Mason v. Mason, 2016 ONCA 75, at para. 197, it would not be in the interests of justice to allow a party to adduce evidence – delivered on the eve of the oral hearing of the appeal – that could have been led at trial.

[31] Accordingly, the appellant’s fresh evidence motion is dismissed.

[32] The respondent’s fresh evidence motion was made to respond to the fresh evidence which the appellant sought to introduce. As the respondent readily conceded, if the court did not admit the appellant’s fresh evidence, there was no need to consider his fresh evidence motion.

[33] For these reasons, both motions to adduce fresh evidence are dismissed. In the circumstances, the respondent is entitled to costs of both motions.

THE ISSUES ON APPEAL

[34] The appellant asks this court to find that the trial judge erred in:

1. determining the respondent’s net family property because the trial judge used an incorrect valuation date value for the mortgage attributed to 4501-25 Telegraph Mews and an incorrect value for the respondent’s bank account on valuation date;

2. determining the appellant’s net family property, particularly the value attributed to the Mobarakeh lands;

3. failing to order or analyze an unequal division of net family property in favour of the appellant in accordance with s. 5(6) of the FLA.

ANALYSIS

[35] Before turning to a consideration of these issues, two points should be made.

[36] First, the court found it necessary to call on the respondent only in respect of the value attributed to the Mobarakeh lands (not ownership of those lands) and the trial judge’s treatment of s. 5(6) of the FLA.

[37] Second, this court’s consideration of the issues is informed by the trial judge’s findings on the credibility of the parties. At paras. 5-22 of the reasons, the trial judge gave thorough, careful reasons for finding that neither party was credible or reliable. He concluded by saying this, at para. 23 of his reasons:

As is apparent from the foregoing recitals, neither of the parties was a credible witness. Moreover, their testimony is not generally reliable. I do not believe that I can safely accept the unsubstantiated testimony of either of them. I therefore look for third party confirmation and circumstantial guarantees of trustworthiness for all of their testimony where possible. In all, I will view the parties’ evidence through the lens of common sense and try to find corroboration where I can. In some cases, the burden of proof may have to come into play.

[38] On the record, the trial judge’s credibility and reliability findings are well-founded.

Issue #1 – The Respondent’s Net Family Property

[39] The trial judge carefully and thoroughly reviewed the parties’ financial records and evidence. The challenges in performing that task were compounded by his credibility and reliability determinations, as described above.

[40] We dismiss this ground of appeal for the following reasons.

a. The bank account

[41] The appellant advised the court that she was not pressing the matter of the value of the bank account. However, she did not abandon it. In the circumstances, this matter can be dealt with summarily.

[42] At para. 76 of his reasons, the trial judge found that “[n]o bank accounts were proven at trial except the $190 HSBC saving account that is included on consent.” This court has not been pointed to a palpable and overriding error in this finding of fact. Accordingly, there is no basis on which to interfere with his finding on the respondent’s bank account on the valuation date.

b. The value of the mortgage

[43] At para. 76 of his reasons, the trial judge wrote:

The respondent’s evidence of the value of the Telegram Mews condominium of $300,000 subject to the outstanding mortgage of $217,000 was not contested.

[44] Both parties confirmed the accuracy of this statement by the trial judge. As the appellant did not contest the value of the mortgage at trial, we see no basis for interfering with the trial judge’s use of those figures for the purposes of calculating the respondent’s net family property.

Issue #2 – The Appellant’s Net Family Property

[45] The appellant says that the trial judge erred in attributing a value of $200,000 to the Mobarakeh lands. She says that the dollar figure is speculative and cannot stand for that reason. She further says that the trial judge erred when he said, at para. 58 of his reasons, that the “only evidence” he had was the appellant’s evidence in which she rejected the suggestion that the lands were worth $250,000. She says that this is a palpable and overriding error because she had testified at trial that in her opinion the lands were worth approximately $33,600. Therefore, she says, there was evidence before the trial judge apart from her rejection of the suggestion that the lands were worth $250,000.

[46] We do not agree.

[47] At para. 58 of the reasons, the trial judge explained that:

a. the Mobarakeh lands had appreciated since the time of marriage, when the appellant acquired her interest in them;

b. in an affidavit filed earlier in the proceedings, the appellant rejected the respondent’s contention that the lands were worth $250,000;

c. he did not accept the evidence of the respondent’s expert who had valued the lands at $216,000;

d. the appellant must have recognized that a valuation was required for the lands, yet she did not provide one; and

e. there was little basis on which to determine the value of the lands.

[48] The trial judge concluded para. 58 with the following:

In the circumstances, it seems to me that [the appellant’s] response to the $250,000 figure was not random and that I can infer from her failure to value the land that presenting a valuation would not have been favourable to her position. In my view therefore it is fair and just to assess the value attributable to her interest in the Mobarakeh land at 80% of the $250,000 amount or $200,000 as at the valuation date. Livent Inc. (Receiver of) v. Deloitte & Touche, 2016 ONCA 11, at paras. 386-88.

[49] Read in the context of the reasons as a whole, we do not accept that the trial judge erred when he stated that the “only” evidence was the appellant’s rejection of the suggested figure of $250,000. As set out above, the trial judge made it clear that he could not safely accept the unsubstantiated testimony of either party. Thus, when he made the impugned statement, we understand it to be in the context of him having rejected the appellant’s figure of $33,600, because it was unsubstantiated and had no circumstantial guarantees of trustworthiness.

[50] This view finds support when the trial judge’s valuation of the Shiraz property is considered. At para. 56 of the reasons, the trial judge recited that at or near the valuation date, “based on her inquiries and understanding”, the appellant had suggested to the respondent that the Shiraz property should have a certain value. The trial judge said that this evidence “had some circumstantial trustworthiness” because it “was intended to be used to maximize both parties’ value in a true sale to a third party”. He therefore used the figure suggested by the appellant as the value for the Shiraz property.

[51] As can be seen, the trial judge followed the approach that he had indicated that he would use when considering the parties’ testimony. Because the parties lacked both credibility and reliability, the trial judge looked for third-party confirmation. Where there was none, he searched for “circumstantial guarantees of trustworthiness for all of their testimony”. In the absence of either third-party confirmation or circumstantial guarantees of trustworthiness, the trial judge viewed the parties’ evidence through the “lens of common sense”.

[52] In the case of the Mobarakeh lands, there was nothing to corroborate the appellant’s suggested figure of $33,600 and, unlike the Shiraz property, there was no circumstantial guarantee of trustworthiness for that figure. Thus it was that, after rejecting the value placed on the Mobarakeh lands by the respondent’s expert, the trial judge found that the “only” evidence he had in respect of the value of the lands was the appellant’s evidence in which she rejected a value of $250,000.

[53] We also reject the appellant’s contention that the trial judge was speculating when he attributed a value of $200,000 to the appellant’s interest in the Mobarakeh lands as at the valuation date. The trial judge was entitled to draw the inference that he did for the reasons that he gave. The appellant knew that a valuation of the lands was needed for trial and did not provide one. Her response to the $250,000 figure proposed by the respondent “was not random”. It was open to the trial judge to draw the inference that he did. Knowing that the respondent viewed the Mobarakeh lands as having a value of $250,000, the appellant failed to provide the court with a valuation of the lands because such a valuation would not have been favourable to her position.

[54] The trial judge used the evidence that he had, limited as it was. He did the best that he could on that evidence. There is no basis on which to interfere with his determination of the value to be attributed to the Mobarakeh lands.

[55] This ground of appeal is dismissed.

Issue #3 – Unequal Division of Net Family Property

[56] The appellant submits that the trial judge erred in failing to address the issue of unconscionability under s. 5(6) of the FLA. She says that she raised the matter in her pleadings and, therefore, it is open to this court to address it. Her arguments on this matter are heavily dependent on the fresh evidence which she sought to adduce and which we have refused to admit.

[57] The respondent says that neither party raised this issue before the trial judge. He contends that it would be unfair to permit the appellant to raise the issue now because he did not have a fair chance at trial to test the evidence on which it rests or to lead his own evidence on the issue. He submits that the appellant should not benefit from having failed to raise and pursue the matter at trial.

[58] We accept the respondent’s submission.

[59] At para. 74 of the reasons, the trial judge expressly states that neither party had raised a question of unconscionability under s. 5(6). While the appellant’s pleading does make mention of s. 5(6), the appellant did not identify it as an issue for resolution at trial. Neither party addressed the matter in their handling of the evidence at trial nor did they make submissions on it to the trial judge.

[60] The appellant is effectively raising this issue for the first time on appeal. The record is not adequate for the court to fairly hear and decide it. Had the appellant wished to pursue the matter, she should have done so at trial.

[61] This ground of appeal is dismissed.

DISPOSITION

[62] For these reasons, all three motions and the appeal are dismissed, with costs to the respondent fixed at $9,500, all inclusive.

Released: December 29, 2016 (“E.E.G.”)

“E.E. Gillese J.A.”

“J. MacFarland J.A.”

“S.E. Pepall J.A.”