Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210202 DOCKET: C67144

MacPherson, Trotter and Harvison Young JJ.A.

BETWEEN

Mohammad Niaz Siddiqui Applicant (Respondent)

and

Fataneh Riahi aka Fataney Jalalie Respondent (Appellant)

Counsel: Gary S. Joseph and Stephen P. Kirby, for the appellant Michael H. Tweyman, for the respondent

Heard: January 18, 2021 by video conference

On appeal from the order of Justice Karen D.M. Leef of the Superior Court of Justice, dated May 31, 2019.

Reasons for Decision

Background

[1] The appellant wife and the respondent husband separated after five years of marriage. They both had children from previous marriages, but the appellant’s son lived with them. The respondent had immigrated to Canada in 1978. He managed a pharmacy from 1998 until 2016 when his employment was terminated. The appellant immigrated to Canada in 2007. Her son was approximately 10 years old at the time. The parties met shortly after her arrival in Canada when the appellant rented a basement apartment from the respondent who lived on the main floor.

[2] The ten-day trial covered both division of property as well as claims for spousal and child support and a restraining order. In the course of determining the net family property value to be divided between the parties, the trial judge was required to determine a wide range of issues including the ownership of three properties, debts which the appellant claimed she owed to her sisters, as well as the spousal and child support issues.

Issues

[3] The appellant wife appeals on a number of grounds. First, she submits that the trial judge erred in her findings of ownership with respect to two of the properties, Centre Street and Royal Road. Royal Road was the matrimonial home.

[4] Second, she argues that the trial judge erred in the application of resulting trust principles and in doing so, applied the principles in an uneven manner which favoured the respondent. She also erred, according to the appellant, in failing to find that the appellant was entitled to a deduction from her net family property as a result of loans which she alleged that her sisters had advanced to her in the course of the marriage.

[5] Third, she also submits that the trial judge erred in failing to award spousal or child support to the appellant.

[6] Finally, the appellant submits that the trial judge, in making her credibility findings, applied an unduly more rigorous approach to the appellant’s evidence than she did to the respondent’s.

[7] The respondent husband’s position is that the appellant has demonstrated no errors of law or principle or palpable and overriding errors that could justify the intervention of this court.

[8] We find no merit in any of the grounds raised. The impugned findings all turn on the facts as found by the trial judge. The standard of review is one of correctness for questions of law and palpable and overriding error for questions of fact or mixed law and fact: Bakhski v. Hosseinzadeh, 2017 ONCA 838, at para. 24. The trial judge committed no reversible errors. Our reasons follow.

The Centre Street Property

[9] The respondent asserted that he was the beneficial owner of the Centre Street property at the date of marriage, despite the fact that the titled owner was the company owned by his employer at the time. As the beneficial owner at that time, he was entitled to deduct the marriage date value from his net family property.

[10] The trial judge had ample grounds to find that the respondent was the beneficial owner. Both the respondent and his former employer had testified that they had become very good friends, that he had played a major role in the management of the pharmacy, and that she wanted to assist him because she decided to sell the pharmacy. The trial judge accepted the respondent’s evidence that title had been placed in his employer’s name because he could not obtain a mortgage in his own name. His employer at the time had also advanced money which he had repaid in full when the property was sold. His evidence on the issue was supported by his former employer. The trial judge determined that the definition of property in s. 4(1) of the Family Law Act, R.S.O. 1990, c. F.3, is sufficiently broad to cover situations where the spouse is the beneficial owner of a property, even though legal title is held by someone else. We see no error in the trial judge’s determination of this issue.

[11] On appeal, the appellant wife argues that the trial judge’s finding that the respondent was the beneficial owner violated s. 4 of the Statute of Frauds, R.S.O. 1990, c. S.19, which requires that an agreement for the sale of lands be in writing and signed by the party to be charged. This issue is raised for the first time before this court and for this reason this ground of appeal is dismissed.

Royal Road (the matrimonial home)

[12] The trial judge did not err in finding that the matrimonial home, whose title was in the appellant wife’s name, was jointly owned by the parties. She did so on the basis that the respondent husband had contributed money ($60,000) to the purchase of the home and had also paid for the renovations made subsequently. These findings were open to her on the evidence at trial.

[13] At trial, the appellant argued that the husband had loaned her the $60,000 but that she had paid it back. The trial judge rejected the appellant’s evidence that she had repaid the money and gave cogent reasons for doing so that demonstrate that she carefully considered the evidence before her on the subject. Nor did she err with respect to the application of the principles of resulting trust and her conclusion that the appellant wife had not rebutted the presumption of a resulting trust. It is clear from the trial judge’s discussion of Kerr v. Baranow, 2011 SCC 10, [2011] 1 S.C.R. 269, and Korman v. Korman, 2015 ONCA 578, 126 O.R. (3d) 561, that she was well aware of the applicable principles and from her findings of fact that she applied those to the law before her.

[14] We also reject the appellant’s submission that the trial judge erred in failing to find a resulting trust in favour of the appellant’s sisters who, the appellant argues, advanced significant funds to her in the course of the marriage. Such debts incurred to the sisters during the marriage would have entitled the appellant to a deduction from her net family property. The trial judge found that although the sisters had advanced significant sums to the appellant before the marriage, she had “serious doubts” that they had advanced any monies during the marriage. In any event, she also found that that there was no evidence to support the argument that such monies were loans.

[15] The context of this alleged ‘unevenness’ on the trial judge’s part in the application of the presumption of resulting trust is important. Family law judges are justifiably wary of claims, made after separation, that monies advanced to family members during the marriage are debts rather than gratuitous amounts. This is because acceding to such claims too readily would risk undermining the central purpose of the family property regime which is to equally divide the value of the property acquired by the marital partnership. Here, the evidence proffered by the appellant did not, in the trial judge’s view, support the submission that the monies were advanced during the marriage or that there was any expectation of repayment. The trial judge found that it was “clear from the evidence that they would never sue the respondent or take any action to collect upon the money”. She was not satisfied that there were any loans during the marriage by the sisters and her findings were well grounded in the record before her and fully explained in her reasons.

Spousal and Child Support Claims

[16] We find no errors with respect to the trial judge’s dismissal of the appellant’s claims for spousal and child support.

[17] In dismissing the claim for spousal support, the trial judge first found that the evidence at trial did not support a claim for compensatory support. She reached that conclusion on the basis that the appellant had not provided any documentary support for her income during the marriage. Nor did the appellant adduce any evidence that she had suffered negative economic consequences as a result of the roles assumed during the marriage. The trial judge did note that the appellant had testified (in relation to the matrimonial home) that she had earned a good income as a hair stylist and did not need or want the respondent to assist her with support.

[18] With respect to the claim for non-compensatory support, the trial judge found that both parties’ financial situations “took a turn for the worse” post-separation. The respondent husband lived in his car at one point while the appellant was required to live in a shelter. She found, however, that the appellant wife had made “little, if any” effort to provide for her own support since separation, and that the respondent, who was working as a gas station attendant, was barely able to provide for his own support and had no ability to pay spousal support. We see no basis for the intervention of this court with respect to the trial judge’s dismissal of the appellant’s claim for spousal support.

[19] With respect to child support, the trial judge found that no support was payable because the child was over 18 and not enrolled in full-time education and that in any event she was not satisfied that the respondent stood in loco parentis during the marriage. Each reason precluded the award of child support in this case. There is no merit to this ground of appeal.

The Credibility Findings

[20] By way of an “overarching” submission, the appellant submits that the trial judge approached the appellant’s evidence differently than the respondent’s, to the appellant’s detriment.

[21] We disagree. The trial judge began with the observation that both parties had played fast and loose with the truth on some occasions in the past as evidenced by, for example, the respondent’s use of a false employment letter to qualify for a mortgage and the appellant’s filing of income tax returns claiming no income, despite her testimony that she earned significant cash income through her salon. However, the trial judge also stated that she found that the respondent’s evidence at trial was more credible than the appellant’s. She gave careful reasons for her findings on each issue which were open to her on the evidence before the court.

[22] The evidence in this case was voluminous and covered a wide range of issues. The trial judge’s reasons are extensive and provide clear reasons for her credibility findings throughout, all of which were well-grounded in the record before her.

Conclusion and Disposition

[23] In sum, the trial judge made clear findings of fact that were well grounded in the record before her and applied the correct legal principles to these facts as she found them. Moreover, she clearly explained her reasons for her conclusions throughout.

[24] The appeal is therefore dismissed. The appellant shall pay costs of this appeal in the amount of $8,475 to the respondent inclusive of disbursements and HST. The funds held in trust shall be released to the respondent forthwith.

"J.C. MacPherson J.A."

"Gary Trotter J.A."

"A. Harvison Young J.A."