COURT FILE NO.: FC-12-859
DATE: 20121130
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: NAGIN RAZAVI, Applicant
AND
SAID HAMED GHIASIAN, Respondent
BEFORE: J. Mackinnon J
COUNSEL:
Tanya C. Davies, for the Applicant
Steven J. Greenberg, for the Respondent
HEARD: November 15, 2012
ENDORSEMENT
[ 1 ] This is a motion by the respondent seeking an order for payment into court of the net proceeds of sale of property he alleges to be a former matrimonial home, by the applicant and her mother (an added party to the action). The home was located at 545 Melrose Avenue, Toronto, registered to the names of the applicant (99 %) and her mother (1%). The date of purchase was April 28, 2010. The sale took place on March 26, 2012.
[ 2 ] The respondent states that he and the applicant lived in the Melrose property from their marriage in February 2011 until separation in November 2011. Although the applicant stated as part of the sale transaction that she was not a spouse, in fact she and the respondent were still married at the time. By the time the respondent learned of the sale and got to court the net proceeds of $297,445.95 had already been disbursed. An order was made requiring the applicant and her mother to provide an accounting for the funds. The motion was adjourned to provide them an opportunity to do so.
[ 3 ] Records have been produced to show that the sum of $297,445 was deposited into the applicant’s President Choice account. She then transferred $198,000 into her mother’s RBC account. It is acknowledged that the mother had paid $84,105 for the down payment on the purchase. It is acknowledged that the applicant paid out $68,810 towards renovation costs on the property. However she also received net proceeds from the sale of another property owned by the parties of $27,481. This property was sold in September 2011 prior to separation. The respondent submits that amount should be set off against the renovation costs incurred by the applicant. He asks that $172,286 should be paid into court until his claim has been determined.
[ 4 ] The applicant and her mother depose that 545 Melrose was not a matrimonial home at the date of separation and had only been occupied by the spouses for a very brief period. They depose that the mother advanced most of the money that went into 545 Melrose, and that between the two of them, they paid virtually all the costs. They deny that the respondent made much of a contribution whether by cash or labour. The applicant agrees that many renovations were paid for in cash but denies that the cash was the respondent’s. They have a produced a trust agreement entered into between them at the time of purchase which provides that the applicant held title in trust for her mother as sole beneficial owner. They say that all of the proceeds went to pay off expenses incurred to carry and renovate the property such that essentially there was no profit that the respondent could share in even if he were entitled to a share.
[ 5 ] The respondent’s claim is for a declaration of trust interest in the Melrose property “for contributions made” and an unequal division of net family property. This later claim is not supported by any pleading of material facts and is not addressed in his affidavits. In one affidavit he deposes that he contributed $20,000 of cash plus his labour over a period of one year to 545 Melrose. He also asserts that the applicant forged his signature on the cheque for $ 27,481 being the proceeds from the sale of a jointly held property and that he should be reimbursed his one half. In a subsequent affidavit he deposes that he contributed $45,800 in cash paid for renovations to the property. He provides signed and initialed receipts confirming that these amounts were paid, but of course, cannot establish whose cash it was with which he made the payments. The receipts are all dated in 2010 and 2011.
[ 6 ] The continuing record includes the respondent’s financial statement sworn in April 2012 and attached notices from CRA. He is currently in receipt of social assistance. His total income is shown to be:
• 2008 - $6401
• 2009 - $7399
• 2010 - $6146
• 2011 - $15000
[ 7 ] The respondent does not explain where or how he may have come up with $45,800 of cash in 2010 and 2011. His financial statement does not disclose any assets that would provide the explanation.
[ 8 ] The applicant has filed about two inches of disclosure in support of her explanation of the financing received from her mother and her repayment of it from the sale proceeds. It certainly goes quite a way to corroborating their submissions. Given the extent of cash payments made, the disclosure does not provide a full accounting. I also note that no explanation was given for the decision to take title as they did and to sign a trust agreement, rather than simply taking title in the mother’s name in the first place. Nor was the statement in the conveyance that she was not a spouse adequately explained. I inferred that her explanation may be that they were living elsewhere at the time of separation but this would not explain stating that she was not a spouse.
[ 9 ] Section 12 of the Family Law Act provides:
Orders for preservation
- In an application under section 7 or 10, if the court considers it necessary for the protection of the other spouse’s interests under this Part, the court may make an interim or final order,
(a) restraining the depletion of a spouse’s property; and
(b) for the possession, delivering up, safekeeping and preservation of the property. R.S.O. 1990, c. F.3, s. 12 .
[ 10 ] The applicant has already been ordered not to deplete her property. It is appropriate that this order continue pending final determination of the case. However, I do not have evidence of any property in her possession that could be ordered to be delivered up pursuant to subsection 12 (b). The FLA does not apply to the added party.
[ 11 ] I have also considered my jurisdiction under the Courts of Justice Act to grant an interlocutory mandatory injunction, which could extend to both the applicant and her mother. In my view the respondent has not met the requirements for an interlocutory injunction. He has not produced to the court the disclosure that he says he made to the applicant with respect to his own bank statements or credit card statements that might show where his alleged cash contributions came from. She said that she had not received this disclosure. The respondent has deposed two affidavits asserting significantly different amounts of cash contributions he claims to have made. His income tax information and financial statement do not reveal a source from which such payments may have come. For these reasons, I am not persuaded that he has made out a prima facie case in support of his claim for unjust enrichment vis a vis 545 Melrose. Further, it is apparent that if the applicant were ordered to pay money into court she would have to borrow it and would incur costs of borrowing. The respondent does not appear to have the ability to provide a meaningful undertaking to compensate her should his claim ultimately be unsuccessful. Nor has he tendered an undertaking.
[ 12 ] In a previous motion I held that the respondent had raised a triable issue that 545 Melrose may be a matrimonial home. That triable issue still exists but in and of itself does not meet the criteria for the type of order now sought by the respondent.
[ 13 ] For these reasons the motion is dismissed subject to continuing an order against the applicant under section 12(a) of the FLA .
Litigation Plan
[ 14 ] This case has already been in court on nine separate occasions. There appears to be an outstanding motion by the applicant to transfer the case to Toronto for the stated reason that both parties and their child now reside there. Unless there is a consent to transfer the case counsel are directed to file a litigation plan with me that will demonstrate the steps necessary to prepare the case for final determination, the timing thereof, including a date by which they will be ready to attend a settlement conference. This plan is to be in my hands by December 17, 2012.
Costs
[ 15 ] The applicant and added party have been successful on the motion and are entitled to costs. If counsel do not agree on the amount of costs I will determine that by written submissions according to a timetable they shall set, to be concluded not later than January 2, 2013.
J. Mackinnon J
Date: November 30, 2012
COURT FILE NO.: FC-12-859
DATE: 20121130
ONTARIO SUPERIOR COURT OF JUSTICE RE: NAGIN RAZAVI, Applicant AND SAID HAMED GHIASIAN, Respondent BEFORE: J. Mackinnon J COUNSEL: Tanya C. Davies, for the Applicant Steven J. Greenberg, for the Respondent ENDORSEMENT J. Mackinnon J
Released: November 30, 2012