ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-11-366796
DATE: 20141119

Fatemeh Etemad v. Mahmoud Hasanzadeh

Fatemeh Etemad - self-represented
Mahmoud Hasanzadeh - represented by Fareen Jamal

Trial heard October 14, 15, 16, 20, 21 and 22, 2014

Reasons for Judgment of Backhouse, J. released November 19, 2014

1The issues in this action are equalization and spousal support. The parties disagree on the date of separation, on the husband’s claim to exclude assets from his net family property and on the wife’s claim to deduct assets from her net family property.

2The parties were married on August 31, 1979 in Iran. The wife is 56 years old. The husband is 59 years old. There are two children from the marriage, namely, Vahid Hasanzadeh born July 6, 1982, now 32 years of age and Navid Hasanzadeh born September 15, 1987, now 27 years of age.

3The husband is a dentist and has his own dental practice at 6015 Yonge Street, Toronto. The wife is a full-time teacher with the Toronto District School Board.

4The parties are cousins. They were university students when they married. The wife became a fulltime teacher in Iran on December 22, 1980. The husband finished his education after the marriage and began his 2 year mandatory army service which required him to serve at the war zone every other 45 day period. He practised dentistry in Iran until the parties immigrated to Canada in 1998.

5When the parties first came to Canada, they rented an apartment at 1101 Steeles Avenue, Toronto. They purchased a condominium unit in the same building in 2003. Both parties needed to accredit their qualifications after moving to Canada. The husband requalified as a dentist in 1999. He opened his own dental practice on July 1, 2002. The wife started teaching at the Toronto Farsi School on weekends and Wednesday afternoons. She completed her 20 years of teaching to meet the requirements of the Iranian Ministry of Education for early retirement and began receiving her Iranian retirement pension on September 23, 2003. She started working part-time at the York Region District School Board in 2002 as a Supply “Special Needs Teaching Assistant” until June, 2004. She began attending Lakehead University in Thunder Bay, Ontario in September, 2004 for a one year teaching program. In October, 2005 she was admitted to the “daily occasional teacher list” at the Toronto District School Board. In September, 2006, she became a full time contract teacher.

Date of Separation

6The wife claims the parties separated on January 15, 2010 when the husband moved out of the matrimonial home. The husband claims that December, 2004 was the date of separation. Both parties filed income tax returns as “married” until 2009. In July, 2010, the husband filed his 2009 income tax return wherein he claimed he was “separated”. The wife’s 2009 income tax return claimed she was “married”. For 2010, both parties filed as “separated.” The husband’s explanation for why he continued to show himself as “married” after 2004 was that he did not “announce” the separation to his accountant. He testified that they tried to hide their differences from other people.

7In 2008 the parties refinanced the jointly owned matrimonial apartment and took out a joint line of credit. It was not until after the husband moved out of the matrimonial home that he instructed the bank that no further draws should be taken against the joint line of credit. They retained a joint safety deposit box until 2011. The parties gave a power of attorney to the other. The husband revoked his power of attorney in favour of the wife on February 14, 2010. The wife revoked her power of attorney in the husband’s favour on July 28, 2011. The husband retained the wife as a beneficiary on his $500,000 Canada Life Insurance policy until September 25, 2010. On July 25, 2006, the wife designated the husband as beneficiary under her dental and extended health benefits and $10,000 dependent life insurance coverage which remained in place until after the husband moved out in 2010. The parties had joint membership at Costco in 2009 and a joint credit card at Sears. The husband testified that the wife obtained these credit cards and he rarely, if ever, used them. The wife filed numerous pictures of the parties at family gatherings, at restaurants and on trips to Niagara Falls, New York and Los Angeles which she testified were for the period from 2005 to August 2009. The husband could not remember the dates of most of these occasions. Where the dates of trips were verified by credit card charges, the husband’s explanation was that these were trips for the sake of the children. The wife conceded on cross-examination that at some point the parties began to sleep in separate bedrooms. She could not remember when they last had sexual relations. The wife testified that there was dissension in the marriage and that they did not communicate regarding financial matters.

8The husband testified that the wife gave the husband a letter in the middle of 2004 stating that the marriage was over. The wife denied this. The letter was not in evidence. The husband testified that from 2004 the parties slept in separate bedrooms, no longer had sexual relations, began using different accountants to file their tax returns, closed their joint accounts and their active credit cards. He testified that from 2004 the parties no longer acted as a married couple but simply as parents to their children and friends and family no longer thought of the parties as a married couple. The wife testified that she had a simple income tax return and did not require the services of an accountant to file her income tax return.

9The husband’s friend, Hossein Mozaffari, gave the following testimony. During his visit from Iran in 2006, the wife advised him that the parties were separated and continued to stay in the matrimonial home together because of the children. He attended a concert with the parties on his 2006 visit but they sat on either side of him. On his October/November, 2009 visit, he was present in the parties’ home where they had an argument and they agreed that they could no longer live together and would get a divorce. The wife’s brother called him 4 or 5 years ago to see if he thought the marriage could be repaired. Because the parties always covered their differences when around others, their problems were not generally known.

Matrimonial Home

10The parties are the joint owners of 1511-1011 Steeles Avenue West, Toronto. They agree on the current appraised value of $360,000. There is a Royal Bank mortgage and a line of credit with a current balance owing of $131,464. Since the husband moved out in January, 2010, the wife has resided in the matrimonial home with the parties’ son, Vahid. The husband is agreeable to the apartment either being listed for sale or to the wife buying out his interest. He seeks to be reimbursed $65,861,79 calculated as follows: one-half of the household expenses from January, 2005 in the amount of $66,416 plus one-half of the monthly expenses from February 2010 to July 2011 plus one-half of the occupation rent from January 31, 2010 of $47,875 based on monthly rent of $1750/month x 57 months divided by 2 less $46,230.01 being one-half of the monthly expenses paid by the wife since August 2011 to October, 2014 less one-half of the $30,000 he withdrew from the joint line of credit after moving out of the home.

Household Contents

11The husband took several Persian carpets and other household contents when he moved out of the matrimonial apartment. He claims an additional carpet of his choice on the basis that the carpets retained by the wife have more value than the ones he took. He also claims the return of a silver cake service, a silverset and a bracelet and necklace made out of gold coins and chains which he testified were gifts to him from his mother at the date of the marriage for the children. The wife testified that these were gifts to her from the husband’s mother at the time of the marriage. None of the household contents or carpets were appraised.

Wife’s Jewellery

12The wife’s jewellery was appraised at $16,523. She claims that jewellery was gifted to her by her family during the marriage. No additional evidence was proffered by her in support of this beyond her testimony which was disputed by the husband.

$34,000 Advance to Vahid for Car

13The parties advanced their son, Vahid, $34,000 from the joint line of credit in 2009 so he could purchase a car. The wife testified that the parties gave this money to Vahid as a gift. The husband testified that this was a joint decision but was a loan, that Vahid repaid $1000 and then was told by the wife not to repay anything further. The husband proposes that he be credited for one-half of the balance owing and that Vahid repay the balance owing to the wife.

Mahr

14The wife through a power of attorney brought an action in Iran to recover the marriage gift (“mahr”) under the parties’ marriage contract. The husband was ordered to pay the wife the equivalent of $42,000 in April, 2011, approximately $1152 of which was legal costs. The court document lists the husband’s address as unknown. The wife testified that she was in Canada and was not aware of the details. The husband testified that he had no notice but paid the amount found to be owing. The husband testified that his understanding of the mahr was that this represented spousal support. As the mahr was a debt owed by the husband to the wife at both the date of the marriage and the date of separation, it does not affect the net family property calculation.

Islamic Divorce

15The parties were divorced by Order of Justice Paisley dated December 2, 2013. The wife has requested that the husband cooperate in obtaining an Islamic divorce because if a religious divorce is not granted, she is still considered married to the husband in Iran. The wife took steps to arrange for the Islamic divorce in Toronto, made an appointment for the husband to attend to obtain the divorce and paid the required fee. He did not attend. He takes the position that there is no such thing as an Islamic divorce and either party may obtain a divorce in Iran.

16Ms. Faezeh Kushani Nejad was called as an expert witness on behalf of the husband. Ms. Kushani Nejad has practised law in Iran for 25 years and has lived in Canada for almost 18 years. Since the Law Society of Upper Canada recognized the category 3 years ago, she has qualified as a foreign legal consultant. She testified that hundreds of persons are qualified in Ontario to perform Islamic religious divorces without which parties with a Canadian civil divorce are still considered married in Iran. The effect of this is that if a woman married in Iran and civilly divorced in Canada went to Iran to obtain a religious divorce or for any other reason, her husband could attend at the passport office to have the wife’s passport revoked. If she was to commence a sexual relationship with someone else, she would be subject to 100 lashes and even execution. Without a religious divorce in Canada for which she requires her husband’s consent, it would be very difficult for a woman to obtain a religious divorce in Iran. Ms. Kushani Nejad testified that normally all that was required for a valid religious divorce to be granted is that the husband sign his consent. She agreed with the letter of Nima Khosravi dated February 24, 2014 obtained by the wife.

... (continues verbatim in the same structure until the final footnotes) ...

Backhouse J.

Footnotes

1. 1Appraised value of $360,000 less RB mortgage and line of credit of $131,464 divided by 2 less $15,000 for $30,000 husband withdrew from joint line of credit post separation = $99,268.
2. 21,150,000,000 rials using the exchange rate at the 2010 date of separation of $1 Canadian = 9,633 rials =$119,381.
3. 320,0000 sq.metres were appraised at 1,300,000,000 rials or 65,000 rials/sq.m. Using the exchange rate in 2010 of $1 Canadian = 9,633 rials, $6.74 x 1810 sq.m =$12,213.23.