SUPERIOR COURT OF JUSTICE – ONTARIO
DATE: 20120127
DOCKET: FS-08-344363
RE: Amir Ali Baradaran Aghaei, Applicant
AND:
Zore Ghods, Respondent
BEFORE: Czutrin J.
COUNSEL:
Stephen J. Codas , for the Applicant
Harold Niman , for the Respondent
HEARD: January 17, 2012
ENDORSEMENT
[ 1 ] The Respondent, Zore Ghods, seeks to strike the Applicant’s application (pleading) for his breach of my November 7, 2011 order requiring him to pay, commencing November 1, 2011, the sum of $15,000 each month (undifferentiated) and costs fixed at $7,500, or alternatively give him five days to remedy his breach. This order was made as a term of an adjournment of the trial scheduled in November, at the request of the Applicant.
[ 2 ] The Applicant does not deny his breach. Although he concedes “that his financial circumstances are hard to understand”; because, as he suggests, “the money that his father has advanced for his expenses over the years” he is unable to satisfy my order except by partially collapsing an R.R.S.P. and allowing it to be satisfied by payment from funds held by his counsel.
[ 3 ] This motion to strike was first returnable on January 10, 2012 and adjourned by Mesbur J., on consent, to me on January 17, 2012.
[ 4 ] The motion, brought to strike and for further relief, was commenced December 21, 2011 and supported by affidavit of the Respondent, Zore Ghods, December 21, 2011.
[ 5 ] The Applicant’s father, Mr. Saeid Aghaei, provided an affidavit dated December 16, 2011 to support the applicant’s position that he is no longer prepared to assist his son. Mr. Saeid Aghaei has separate case seeking judgment against Ms. Ghods and the Applicant concerning a mortgage executed in his favour by them. In it he states that the Applicant will no longer be receiving funds from him or 808277 Ontario Limited (a company that his three children are all shareholders of), but he “oversees for the benefit of my three children”.
[ 6 ] He advises that the “advances received by the Applicant from 808277 exceed what I believe his value such that Amir is no longer receiving funds from 808277”.
[ 7 ] He correctly states that he has “no legal obligation to provide financial support for Amir or to Zore.”
[ 8 ] I denied Mr. Saeid Aghaei’s motion for summary judgment on the mortgage action by my endorsement released September 13, 2011. I also ordered him to pay costs of that motion. The Applicant did not defend the mortgage action, but Ms. Ghods did.
[ 9 ] It is clear that Mr. Saeid Aghaei was not happy with my ruling and he said: “In early November, Amir approached me and asked if I would agree to provide him with $2,500 per month to pay Zore until the trial. At the time I was willing to do that to help Amir. I am no longer willing to pay any monies to Zore.”
[ 10 ] The major reason for the trial adjournment request related to the valuation of 808227 Ontario Limited Mr. Saeid Aghaei agreed to fund and facilitates the valuation of 808277 Ontario Limited and trace source of funds. It was anticipated that the report would be completed by January 31, 2012. Much of the funds advanced on the mortgage, the subject matter of the mortgage action, appear to have come from 808227 Ontario Limited’s bank account. Mr. Saeid Aghaei signed cheques on this account.
[ 11 ] Prior to the motion, counsel for the parties exchanged correspondence in which the Applicant’s counsel offered to satisfy my order by taking funds from the trust funds held by his counsel from the net proceeds of sale of the former matrimonial home. Each counsel holds funds in trust from the net proceeds. These funds are in addition to the disputed mortgage funds of $800,000 received by the Applicant’s father in exchange for a Letter of Credit. The mortgage action is consolidated with the family issues between the parties.
[ 12 ] The Respondent refused the Applicant’s offer to have my order satisfied by payment from the funds held, as I have considered that request when I granted the Applicant’s trial adjournment request with terms that included the payments not being satisfied by the Applicant.
[ 13 ] The Respondent refused to have my orders satisfied by payment from the funds held, because she submitted I had considered that request when I granted the Applicant’s trial adjournment request.
[ 14 ] The Respondent’s counsel submits that the Applicant is attempting to re-visit my order and is making a mockery of the process.
[ 15 ] My order of November 7, 2011 was undifferentiated to specifically address the possibility that, at trial, the result might be that Ms. Ghods will owe Mr. Amir Aghaei money and that the mortgage action will result in judgment in favour of Mr. Saeid Aghaei. The funds held by the two law firms stand as security for that possible outcome. In addition, Mr. Saeid Aghaei’s mortgage claim, some costs is also appears protected.
[ 16 ] The current material filed continues to fail to address credibility issues or give me any comfort as to outcomes.
[ 17 ] I am in no better position today than I was on November 7, 2011 to speculate as to outcomes and, in fact, it would be inappropriate to do so.
[ 18 ] The trial was adjourned to allow the Respondent and Mr. Saeid Aghaei to address issues relating to 808277.
[ 19 ] I am asked to reconsider my ruling in defence of the motion to strike. I am asked to allow the Applicant to satisfy payments by having it partially paid out of the funds held by his counsel.
[ 20 ] The request is extraordinary unless it falls into a motion to set aside my order pursuant to the Rules which it was not.
[ 21 ] The Applicant’s material lacks evidence that might satisfy me that the basis for making the order about his “seemingly easy access to funds” was not well founded.
[ 22 ] The Applicant sets out in his affidavit of January 6, 2012, in reply to the Respondent’s motion to strike his application, that he is prepared to use his RRSP in partial satisfaction of my order, he is free to do so but that will fall short of satisfying my order, but will satisfy costs and a small amount towards the balance. He also offers to have the balance paid out of funds held by his lawyer, a consideration I rejected on November 7, 2011.
[ 23 ] He states as well the following:
My business Decorawall Construction has been going further into debt and he and his partner have not been able to draw any salary since February 2011.
He attended an HSBC branch familiar with his family to attempt to secure a loan but was informed he did not qualify.
He and his partner (at Decorawall) had to borrow money personally to pay our employees and other expenses.
When he went to Dubai in November 2011 he did so in an effort to see Decorawall’s equipment.
He has had to close the business (Decorawall he and his partner) as “we cannot pay rent, payroll and other expenses”.
Decorawall’s lease expired November 30, 2011 but it could not renew its lease and laid off employees, equipment has been sold for about $16,000, equipment is in storage, HSBC bank account for Decorawall for September 2011 had $116,736.27 deposits and $108,468 withdrawals. For October 2011, deposits of $61,167.30 and withdrawals $75,644.71. For November deposits of $99,385.86 and $77,750.68 withdrawals. This was Canadian currency. In an account was some account number but described as CAD. Decorawall CDN T/A Potlite transactions were shown for December and January 2012.
U.S. account for September deposits were $69,070.56 and withdrawals $69,070.56, for October deposits $21,958 and withdrawals $21,896. For November deposits $15,698 and withdrawals $21,267.
He acknowledges that without knowing the actual value of 808277 “it is not possible to determine whether I will owe Zore (the Respondent) an equalization payment.” He however believes that [he] will owe less than the net proceeds of sale of the matrimonial home held in trust by my lawyer.
He denies the extent of his travel in 2011 as alleged by the Respondent.
The Applicant raises questions about the Respondent’s disclosure and her credibility and her allegations against his father. He alleges breaches by the Respondent of my preservation order of April 7, 2009. He alleges that the Respondent has, like him, intermingled funds with family.
[ 24 ] According to the Applicant’s financial statement dated January 6, 2012 his net family property statement is $928,760.98. This includes a debt of $479,090.31 relating to the mortgage action between the Respondent, his father and the Applicant. It includes a value of Respondent’s 24% interest in 808277 Ontario Limited now being valued. This also includes loans by Applicant to 808277 Ontario Limited of approximately $109,000 and a further debt Applicant claims he owes his father of $68,086.02 secured against Applicant’s interest in 808277 Ontario Limited.
[ 25 ] The Respondent filed a reply affidavit to Applicant’s January 6, 2012 affidavit and Mr. Saeid Aghaie’s December 16, 2011 affidavit.
[ 26 ] She stated, correctly, that the source of the Applicant’s assertion such as being denied a loan is not documented by independent documentation from HSBC. Additionally, no documentation is provided to verify Applicant and his business partner’s borrowing money to cover expenses.
[ 27 ] She challenges that Decorawall is closed, but may have changed addresses.
[ 28 ] She rejects his assertions about his income or Decorawall’s situation. He has provided no documentation covering Decorawall.
[ 29 ] I also received further exchange of documentations and affidavits from the parties on the day of the motion.
[ 30 ] The Applicant, in responding to the Respondent, alleges that his partner, Vincent Cheung, opened his own moulding business using the name Decorawall (Decorawall Inc.) and uses his own equipment.
[ 31 ] He produces an invoice to evidence the sale of Decorawall’s foam cutter on December 1, 2011.
[ 32 ] I have decided to adjourn the motion to strike until after January 30, 2012 to a date before me, when I am sitting on motions, to have the parties provide me:
A copy of the report concerning 808277, and if not available, a letter from the expert as to the status of the report or anticipated completion date.
Documentation from Amir Aghaei to confirm and document his assertions concerning Decorawall’s status. (Any agreements between him and Mr. Cheung, new leases, new business corporations and registrations, termination of leases,) subject to Mr. Cheung’s willingness to cooperate, but the Applicant should make the inquiry and he was a signature to any leases, change of business or has custody or control or ability to produce same, he shall do so.
Copy of his passport so that will allow the court to consider the competing versions of travel.
Copy of any bank loan statements and proof of his loan status with HSBC and proof of his efforts to borrow money or use a credit facility since the date of my November 7, 2011 order.
A Draft Net Family Property Statement of each party and their current position and up to date Financial Statements.
Personal and corporate and business bank statements current and since my November 7, 2011 order.
[ 33 ] When I adjourned the trial to allow more work to be done relating to 808277, I was not prepared to set a new trial date until I was satisfied that the expert report would be completed and then next steps would be taken.
[ 34 ] I remain unable to decide credibility or hazard a reasonable estimate of the possible range of outcomes concerning equalization.
[ 35 ] My expectation was that the trial would be heard no later than June 2012 and that the Applicant’s position would be adequately protected, and if by paying $15,000 per month undifferentiated the $900,000 being held by the Respondent’s counsel, Mr. Niman, would secure any possible overpayment and possible costs.
[ 36 ] While I am confident that the Applicant’s counsel and Mr. Saeid Aghaei’s counsel would have explained that to them, I wish to repeat and clarify that. On the other hand, I was not certain whether the $580,000 approximately held by Ms. Ghods’ counsel would satisfy her claims.
[ 37 ] Pending further order and return the Applicant shall pay to the Respondent, Ms. Ghods’ counsel, the funds realized from the R.R.S.P. deregistration.
[ 38 ] The payment of the balance of the funds and consequences for non-payment will be addressed on return.
[ 39 ] In the meantime, I leave it for counsel to agree, or to have Applicant reconsider his position if he now has a better understanding of the intent of the $15,000 payment. It is open to Ms. Ghods, pending further order, to accept payment from the funds held by either counsel’s office.
[ 40 ] Both funds held now are intended to be security as is the Letter of Credit, pending the outcome at trial.
[ 41 ] If parties cannot agree on a return date, I may be spoken to.
[ 42 ] Costs reserved to return.
Czutrin J.
Released: January 27, 2012