Court File and Parties

COURT FILE NO.: FS-11-374206

DATE: 20120703

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AZITA HEKMATI AND: MATTHEW BENJAMIN OLIVER

BEFORE: PENNY J.

COUNSEL: Larry Silverberg for Azita Hekmati Howard Warren for Anita Hekmati Dani Frodis for Matthew Oliver

HEARD: May 24, 2012

ENDORSEMENT

[1] This is a motion for an order that Azita Hekmati and Anita Hekmati each he be paid, as co-owners of 185 Oliver Avenue in Toronto (the Property) one third of the net balance remaining after the closing of the sale of Property. The respondent seeks an order prohibiting any disposition of net proceeds from the sale of the Property.

[2] The applicant, Azita Hekmati and the respondent, Matthew Oliver, were married on June 11, 2000. They separated November 4, 2011.

[3] The parties lived together in the Property along with the co-owner Anita Hekmati. Anita and Azita Hekmat, who are sisters, hold the Property as tenants in common with Azita holding two thirds and Anita only one third.

[4] The parties signed a marriage contract six months before their marriage in which the respondent purported to give up all his claims to equalization. The effect of that contract is in issue in these proceedings.

[5] This application for divorce was issued on November 30, 2011. Prior to the respondent filing his answer and financial statement, in February 2012 he purported, through counsel, to settle all of his outstanding claims. The effect of that alleged settlement is also in issue in these proceedings.

[6] The Property was purchased by the Hekmati sisters in December 2001. In 2007, Anita Hekmati left the home due to conflicts with the respondent but says she continued to make some payments towards the carrying costs, albeit on a reduced basis.

[7] In reliance on the purported settlement in February, 2012, the matrimonial home was sold by the Hekmatis for $1,500,800.

[8] The respondent, as the spouse of Azita Hekmati, must join in the conveyance or consent to the transaction. He has refused to do so.

[9] Under s. 23(b) of the Family Law Act, the court may authorize the transaction or release the Property from the requirements of section 21. The Hekmatis ask me to do so and to order the release, to Anita Hekmati of her one third interest and, to Azita Hekmati of one half of her two thirds interest, while ordering the preservation of the respondent’s prima facie half interest (i.e., half of his spouse’s interest) in the matrimonial home.

[10] It is the respondent’s position that, in 2007 when Anita moved out of the Property, her interest was bought out and, in exchange for certain payments, Anita was to have transferred all of her right title and interest in the property to Azita. The documentary support for this assertion is extremely thin. The respondent nevertheless claims that he was “surprised to learn that not only had title to the matrimonial home not been transferred to Azita but that Azita had signed an agreement to sell the matrimonial home without consulting him.”

[11] The sale of the matrimonial home closed on April 30, 2012. The respondent seeks the assistance of the court to ensure that the proceeds of the sale are not put out of his reach. The respondent is concerned that if the proceeds of sale are not preserved, Azita and Anita will dispose of the proceeds and defeat his equalization claim. The evidence of Anita Hekmati is that she is a single mother and desperately requires her equity out of the Property.

[12] The respondent is seeking, in effect, a Mareva injunction – pre-judgment execution. The critical requirement of the Mareva injunction requires the applicant to persuade the court that there is a real risk that the defendant is removing or about to remove assets from the jurisdiction to avoid the possibility of a judgment, or is otherwise dissipating or disposing of assets in a manner clearly distinct from the usual course of business or living.

[13] In my view, the respondent has failed to satisfy the essential element of the test for a Mareva injunction. The respondent has not shown that there is any real risk that the applicant (or Anita) is removing or about remove assets from the jurisdiction or is otherwise dissipating or disposing of assets in a manner clearly distinct from the usual course of business or living. His concerns are largely speculative, in my view. His refusal to consent to the sale, I find in the circumstances, it is unreasonable.

[14] The applicant's proposal, that one half of her interest in the net proceeds of sale be held to the credit of this action as security for the respondent’s alleged interest in the matrimonial home, is adequate protection for the respondent given the circumstances and available evidence at this stage of the proceeding.

[15] Accordingly, the applicant’s motion is allowed and the respondent’s motion is dismissed. An order shall issue that:

(i) the agreement of purchase and sale dated February 8, 2012 between the parties and Li Jing and Luo Touhua is authorized pursuant to s. 23(b) of the Family Law Act and any consent of the respondent required to complete this transaction is dispensed with;

(ii) the applicant’s real estate lawyer, Mr. Stanley Rosenfarb, shall complete the sale and distribute from the proceeds of sale:

(a) his fees and disbursements;

(b) payment of necessary liens and encumbrances including payment to discharge the existing collateral mortgage securing the registered line of credit to TD Canada Trust;

(c) payment of the balance of any real estate commissions as per the agreement of purchase and sale;

(d) payment of any outstanding realty taxes and holdbacks, if required, related to the Property and which are required to be paid in full on closing of the conveyance;

(e) to Anita Hekmati, one third of the remaining balance of the funds;

(f) to the applicant, Azita Hekmati, one third of the remaining balance of the funds; and

(g) the final one third of the balance of the funds from the sale shall be held in an interest-bearing trust account to the credit of this proceeding until further order of this court.

[16] If the parties are unable to agree on costs, a written submission by anyone seeking costs, not to exceed two typed pages, supported by Bill of Costs and any other relevant material, shall be filed within 10 days of the release of these Reasons. Any party wishing to respond to a request for costs shall file a written submission, subject to the same page limit, within a further 10 days.

PENNY J.

Date: July 3, 2012