COURT FILE NO.: FC-14-70

DATE: 20141231

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ahmad Reza Abdollahpour, Sima and Hamid Abdollahpour

Applicants

– and –

Shakiba Sadat Banifatemi

Respondent

Tanya C. Davies, for the Applicants

Kevin Kavanagh, for the Respondent

HEARD in Ottawa: October 8, 2014

REASONS FOR decision

R. smith J.

Overview

[1] Iranian culture and tradition requires that the groom’s family make a gift to the bride on the occasion of their wedding. In this case, a 50% interest in a house was transferred to the bride as such a gift. Unfortunately, after a year and a half of marriage the parties separated. The husband and his parents seek the return of the 50% interest in the house they transferred to the bride as well as the repayment of wedding expenses and a return of other wedding gifts.

[2] The Applicants submit that the transfer of the 50% interest in the property was subject to the following conditions:

(a) that the parties stay married and continue to reside in the property as a matrimonial home;

(b) that the gift was valid if the husband left the marriage or cheated on his wife; and

(c) if the wife left the marriage her father verbally promised the husband’s father that he would return her 50% interest in the property to them.

[3] The Applicants also allege that the Respondent wife did not intend to have a real marriage and acted fraudulently by tricking the husband’s parents into gifting her 50% interest in the property and having her husband sponsor her for permanent residency. They further allege that the wife exercised undue influence and duress on them to get them to sign the Deed of Gift document wherein they completely released any interest they had in the 50% interest transferred to the wife and confirmed that the transfer was a gift.

[4] The wife submits that she received an unconditional gift of a 50% interest in the property from her husband’s parents shortly before their wedding. Her husband’s parents received independent legal advice before transferring a 50% interest in the property and before signing an additional document titled “Deed of Gift” confirming that the transfer of half the property to her was a gift. Neither the transfer of land nor the Deed of Gift mentions any conditions on the gift to the bride.

[5] The wife has brought a motion for summary judgment seeking an order dismissing the Applicant’s claims for an order that:

(a) she transfer her 50% interest in the property back to his parents;

(b) she reimburse them for the cost of the wedding; and

(c) she return all of the wedding gifts she received.

Issues

[6] This motion for summary judgment raises the following issues:

(1) Are the expanded powers set out in Rule 20.04 (2.1) available on a summary judgment motion brought pursuant to Rule 16 of the Family Law Rules?

(2) Are any of the following genuine issues requiring a trial?

a. Was there a valid gift of a 50% interest in the property to the wife?

b. Was the gift subject to the conditions that it was only valid as long as the wife did not leave the marriage and resided in the property as a matrimonial home?

c. Was the gift subject to the condition that the wife’s father promised to return her 50% interest in the property to the husband’s parents if she left the marriage?

d. Did the wife marry the husband with the fraudulent intent of obtaining a gift of the 50% interest in the property?

e. Did the husband’s parents sign the Deed of Gift document under duress or as a result of undue influence exercised on them by the wife?

Background Facts

[7] Ahmad Reza Abdollahpour (“Ahmad”) married Shakiba Sadat Banifatemi (“Shakiba”) on March 25, 2012 in the City of Ottawa.

[8] As part of the Iranian culture and tradition, a gift or dowry is given to the wife by the groom or family of the groom. In this case, the parties negotiated the transfer of 50% interest in a house located at 4 Leona Avenue (“the property”) in the City of Ottawa, which was owned by Sima and Hamid Abdollahpour (“Sima and Hamid”). The 50% interest in the property transferred to Shakiba was worth in the approximate amount of $300,000.00.

[9] Shakiba’s brother, Seyed Banifatemi (“Shahab”), negotiated the terms of the gift to be given to his sister on her wedding to Ahmad.

[10] Shakiba’s parents live in Iran. She was attending Carleton University in Canada as a foreign student where she met Ahmad. Her brother, Shahab, was also a student at Carleton University as was her husband, Ahmad.

[11] Sima and Hamid live in Canada and owned three properties. Hamid owns a jewelry business and Sima is involved in real estate development.

[12] Sima and Hamid initially proposed that a 1/3 interest in the property be transferred to each of Ahmad and Shakiba and held in trust. A draft trust declaration and agreement was prepared by Ms. Aila Makooli, a lawyer from the City of Toronto, who represented Sima and Hamid with regards to the gift to be given to Shakiba.

[13] Shahab stated that he acted as the agent for his father in the negotiations with the groom’s family with respect to the wedding gift to be given to Shakiba. He conducted these negotiations with Sima. Shahab retained Mr. Kavanagh, as counsel to assist him in reviewing the various gift proposals and legal documents.

[14] A number of emails were exchanged between Mr. Kavanagh, representing Shahab and Shakiba’s interests, and Ms. Makooli, representing the interests of Sima and Hamid. Shakiba’s lawyer insisted that the gift should be irrevocable. In her reply, on February 28, 2012, Ms. Makooli stated that there was no worry about meeting with Sima and also that she wanted her intentions in this matter to be clear to all parties.

[15] On February 28 at 3:55 p.m. a further email was sent by Mr. Kavanagh outlining his concerns if a trustee breached the terms of the trust agreement and refused to sign documents. If this occurred, he stated that either party could register a caution on title. In response, on February 28 at 4:27 p.m., Ms. Makooli stated: “I will seek my clients’ instructions. Ultimately, this is a wedding gift to both kids.” The gift is only being made because Ahmad is marrying Shakiba. I find that Ms. Makooli’s description of the essence of the transaction between the parties was accurately set out in her email.

[16] Finally on February 29, 2012, at 3:42 p.m., Ms. Makooli advised Shakiba’s counsel that Sima and Hamid were not agreeable to allowing any one party to register a caution as they felt one beneficiary should not have authority to make decisions for both and it needed to be collective.

[17] In his first email, on February 28, 2012 Mr. Kavanagh suggested that the parties sign a Deed of Gift confirming that the gift was irrevocable. Following the above exchange of emails. Sima counter-proposed that a Deed of Gift would be signed and the transfer would be limited to 1/3 to each of Shakiba and Ahmad. On March 1, 2012 Ms. Makooli, sent a revised trust agreement and draft Deed of Gift which stated that a 1/3 interest in the property was irrevocably gifted to each of Shakiba and Ahmad.

[18] Shakiba’s father rejected Sima’s proposal and insisted on the conveyance of 50% of the property to Shakiba and 50% to Ahmad, together with a signed Deed of Gift.

[19] Sima decided that they would not transfer a 50% interest to Ahmad possibly because they believed that owning a property in Ahmad’s name might affect his funding for OSAP loans to attend university. In any event, all parties agreed that a 50% interest would be transferred to Shakiba.

[20] On March 19, 2012 Shakiba met with Sima and Hamid at the law offices of Marc Nadon and signed the necessary documents to transfer a 50% interest in the property to her.

[21] The acknowledgment and direction signed at Mr. Nadon’s office stated as follows: “This transfer is a gift to Shakiba Sadat Banifatemi, daughter-in-law.” On March 23, 2012, Shahab and his father met with Sima and Hamid at Hamid’s jewelry store. When inquiries were made as to whether the transfer signed on March 19, 2012 had been registered, Shakiba’s father was advised that the transfer was not registered. Shakiba’s father advised that the wedding ceremony scheduled for March 25, 2012 would not go ahead unless the transfer was registered.

[22] Sima then instructed Mr. Nadon to register the transfer and it was registered at 12:21 p.m. on March 23 2012. The parties agreed that the Deed of Gift would be signed at the wedding ceremony on March 25, 2012 and that the signatures could be witnessed and certified by the same official who performed the marriage.

[23] The initial Deed of Gift document prepared by Ms. Makooli was amended by Mr. Kavanagh to state that a 50% interest in the property was gifted to Shakiba. The amended Deed of Gift document was emailed to Sima on March 12, 2012 containing the exact wording of the Deed of Gift that was signed on March 25, 2012 at their wedding ceremony.

[24] The only changes to the Deed of Gift document were that the gift to Ahmad was removed and the interest gifted to Shakiba was changed from a ⅓ interest in the property to a 50% interest in the property.

[25] The Applicants never mentioned that there was any mention of any conditions attaching to the gift to the 50% interest in the property either in the correspondence exchanged between the lawyers for the parties or in any of the documents prepared to complete the gift.

[26] Sima and Hamid paid for the cost of the wedding without ever stating that these costs would be repaid to them if the parties subsequently separated. The bride’s family had agreed to pay for the costs of a wedding reception in Iran, which never occurred.

[27] Sima and Hamid assumed sole responsibility for paying for the wedding in accordance with their culture and tradition, without any agreement with or representation from Shakiba or any other person that she would repay these costs if she separated. As a result, I find that there is no legal basis on which Sima and Hamid can claim that the Respondent is responsible to pay for the wedding costs, unless the wife entered the marriage fraudulently which will be addressed separately.

[28] In his affidavit Hamid (the husband’s father) stated that Shakiba’s father promised him that if Shakiba left the marriage or acted inappropriately towards Ahmad, that he would return her interest in the property to them. Shakiba’s father denies ever making any such promise to Hamid.

[29] On December 1, 2013, Shakiba advised Ahmad that she no longer loved him and wished to leave the marriage. Ahmad stated that Shakiba told him she felt bad about using him and his mother, which was denied by Shakiba.

[30] In his affidavit, Ahmad stated that Shakiba married him without any intention of having a real marriage and fraudulently tricked his parents into gifting the 50% interest in the property to her and sponsoring her for permanent residency. He also stated that Shakiba informed him that she had an abortion, and he alleges that she cheated on him with another man. These allegations are all denied by Shakiba in her affidavit. Shakiba states that it was unbearable for her to continue living with her mother-in-law, as her husband always supported his mother rather than his wife.

[31] The husband has obtained recent copies of Shakiba’s Facebook pages showing, pictures of her in the presence of a group of men and also several pictures of her and another young man. The pictures are not dated and her Facebook images were copied after their separation in December of 2013. I find that the undated Facebook pictures do not constitute evidence of any inappropriate behaviour by Shakiba while she was living with Ahmad.

Issue 1: Are the expanded powers set out in Rule 20.04 (2.1) available on a summary judgment motion brought pursuant to Rule 16 of the Family Law Rules?

[32] Rule 16(6) of the Family Law Rules O. Reg. 114/99, states as follows:

NO GENUINE ISSUE FOR TRIAL

If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

[33] Rule 20.04(2) of the Rules of Civil Procedure states that the Court shall grant summary judgment if there is no genuine issue requiring a trial to a claim or defence. This language is similar to that used in Rule 16(6) of the Family Law Rules. However, in 2010 the Rules of Civil Procedure were amended as set out in Rule 20.04(2.1) which expanded the powers of the Court on a motion for summary judgment. Under the amended Rule 20 the summary motion judge may weigh evidence, evaluate credibility and draw reasonable inferences from the evidence.

[34] Rule 20.04(2.1) reads as follows:

Powers

In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[35] Rule 16 of the Family Law Rules is in the process but has not yet been amended to grant the expanded powers to a judge hearing a summary motion. A number a Superior Court decisions have held that Rule 16 should be interpreted to include the expanded powers stipulated in Rule 20.04(2.1) including Steine v. Steine, 2010 ONSC 4289; 91 R.F.L. 693 (Ont. SCJ), Children’s Aid Society of Ottawa v. B.(C.) 2010 ONSC 6961; [2010] O.J. No. 5644, and Duncan v. Duncan 2012 ONSC 4331 (Ont. S.C.J.).

[36] In Kallaba v. Bylykbashi, 2006 3953 (ON CA), 2006 O.J. No. 545 (Ont. C.A.); 23 R.F.L. (6th) 235, the Court of Appeal held that family law motion judges could not weigh evidence and draw factual conclusions on motions for summary judgment.

[37] However, the Kallaba decision was rendered in 2006, four years before the amendments were made to Rule 20 to include Rule 20.04(2.1) and before the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, 2014 1 S.C.R. 87. At para. 5 of the Hryniak decision, Karakatsanis J. emphasized the importance of interpreting the amended summary judgment rule broadly. She emphasized the principles of proportionality and ensuring that access to justice was affordable, with a timely and just adjudication of claims. These principles inform the summary judgment procedures.

[38] This issue was recently considered by the Ontario Court of Appeal in the decision of Schwartz v. Schwartz 2012 ONCA 239; 290 O.A.C. 30 (Ont. C.A.). At para. 68 the Court stated as follows:

Nothing in these Reasons should be taken as determining whether this Court’s decision in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 (Ont. C.A.) applies to summary judgment motions under the Family Law Rules…

[39] In Gallacher v. Friesen 2014 ONCA 399; [2014] O.J. No. 2359 (C.A.), the Court of Appeal stated at para. 14, that the case law was divided on whether the expanded powers of Rule 20 also applied to Rule 16 of the Family Law Rules but declined to decide whether the motion judge had exceeded her jurisdiction under Rule 16 and stated as follows:

The appellant says that, unlike Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 16 of the Family Law Rules has not been amended to allow the motion judge to weigh evidence, evaluate credibility, or draw reasonable inferences. There is competing case law on whether the amendments to Rule 20 apply to Rule 16: see Steine v. Steine, 2010 ONSC 4289, holding that the amendments do apply; and McCash v. McCash, 2012 ONCJ 503, Bruxer v. Bruxer, 2013 ONSC 5656, and Starr v. Gordon, 2010 ONSC 4167, holding that the amendments do not apply.

[40] In Gallacher, the Court of Appeal held that it was not necessary to decide whether the expanded powers existed in that case.

[41] In Steine, Mulligan J. relied on to Rule 1 of the Family Law Rules which states as follows:

Matters not covered in rules.

If these rules do not cover a matter adequately, the court may give directions, and practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate by reference to the Rules of Civil Procedure.

[42] Mulligan J. held that Rule 16(6) does not prohibit a trial judge from weighing evidence, evaluating credibility, or drawing reasonable inferences from the evidence, rather it is silent on whether a trial judge does or does not have this authority. Rule 1 states that the court should, if it considers it appropriate, refer to the Rules of Civil Procedure, which now includes the amended Rule 20 powers.

[43] On this summary judgment motion I must decide whether a gift was unconditional or was subject to conditions, largely based on written documents, However there are allegations fraud and undue influence which are denied by the Respondent. In Hryniak, The Supreme Court of Canada stated that a trial judge should only proceed with a motion for summary judgment where he/she may afford timely fair access, and may effect a just adjudication of the claims.

[44] I find that it is appropriate to refer to Rule 20.04(2.1) as amended in 2010 and as interpreted by the Supreme Court of Canada in the Hryniak decision, in order to ensure timely access, reduced costs to the parties to allow for timely adjudication on the merits, where a just adjudication may be made on the evidence before the court. I come to this conclusion because Rule 16(6) is silent on whether the expanded powers exist and Rule 1 allows the court to refer to the Rules of Civil Procedure if it considers it appropriate. I agree with Mulligan J. and Linhares de Sousa J. that, in this case, it is appropriate for me to apply the expanded powers to ensure timely access, reduce costs and that a just adjudication may be made on the merits in this case.

Issue 2: Are any of the following genuine issues requiring a trial?

a) Was there a valid gift of a 50% interest in the property to the wife?

[45] In McNamee v. McNamee, 2011 ONCA 533, 106 O.R. (3d) 38 (Ont. C.A.) at para. 24, the Court of Appeal set out the essential ingredients of a gift as follows:

The essential ingredients of a legal and valid gift are not in dispute. There must be:

1. An intention to make a gift on the part of the donor, without consideration or expectation of remuneration,

2. An acceptance of the gift by the donee,

3. A sufficient act of deliver or transfer of the property to complete the transaction.

[46] The Applicants received independent legal advice when negotiating the terms of the transfer of a 50% interest in the property to Shakiba and on the preparation of the Deed of Gift document.

[47] In her email, the lawyer representing, Sima and Hamid stated that the parties were intending to give a gift of an interest in the property to Shakiba, which was initially a 1/3 interest in the property.

[48] The parties saw an independent lawyer, Mr. Nadon, who transferred the 50% interest to Shakiba pursuant to a written direction and acknowledgement signed by the parties stating that the transfer was a gift.

[49] The terms of a Deed of Gift document were discussed between counsel and each party had independent legal advice. The initial Deed of Gift document was prepared by the lawyer acting for Hamid and Sima, initially for a 1/3 interest to Ahmad and Shakiba, without including any conditions. This document was amended to gift a 50% interest in the property to Shakiba.

[50] The amended Deed of Gift, indicating that a 50% interest was being gifted to Shakiba, was sent to Sima by email approximately 10 days before the wedding.

[51] I find that all three essential elements required to constitute a gift, were present. I find that the husband’s parents intended to make a gift based on the correspondence exchanged between counsel, the Deed of Gift document, the transfer and registration of the 50% interest in the property to Shakiba, and the statement from the lawyer representing Sima and Hamid that they intended to make a gift to Shakiba of an interest in the property. The gift was made without any expectation of remuneration but with the expectation that Shakiba would marry Ahmad, which occurred on March 25, 2012.

[52] Shakiba accepted the gift as she attended and signed the necessary documents before the lawyer who then transferred a 50% interest in the property to her name. The transfer of land was registered and on their wedding day a Deed of Gift document was signed by all the parties clarifying their intentions.

[53] The gift was delivered to Shakiba when the husband’s parents transferred the 50% interest in the property and registered the transfer by the independent lawyer, Mr. Nadon, along with the signing of the Deed of Gift.

[54] In Berdette v. Berdette, 1991 7061 (ON CA), 3 O.R. (3d) 513 (Ont. C.A.) at para. 17, the Court of Appeal stated that the failure of a donee to fulfill a donor’s expectation does not vitiate a valid gift. I find that this is what has occurred in this situation where Sima and Hamid’s expectations were that their son would continue to remain married with Shakiba. However, this has not occurred as a result of their separation.

[55] At para. 11, of Berdette, the Court of Appeal stated that it was not the task of the court to correct a possible mistake of judgment by the Applicants, but to ascertain their intention at the time of the transfer. It is not necessary for me to decide whether they made a mistake of judgment or not, but in any event, at the time of the transfer of the property, I am satisfied that they intended to make the gift and did make the gift of a 50% interest in the property to Shakiba and did so along with clear written documentation. The written documents do not mention any conditions and the “Deed of Gift” contains a full and final release clause.

[56] At para. 18 of Berdette, the Court of Appeal stated that Ontario cases were consistent in holding that, in the absence of the retention of an express right of revocation, once a valid gift is made, it cannot be revoked or retracted. In this case, I find that a valid gift has been made and the Applicants have not presented any evidence that they retained any express right of revocation.

[57] If I apply the expanded powers of Rule 20.04(2.1) then I find that the only reasonable inference from all of the documentary evidence is that the groom’s parents intended to make a gift and in fact made a gift of a 50% interest in the property to Shakiba as there is an absence of any credible evidence to the contrary. As a result, I find that a valid gift was made to Shakiba and a trial is not required to make a just determination on the merits.

[58] If I applied the test under Rule 16(6) without exercising the amended powers, I also conclude that the Applicants have not provided any evidence of any material facts showing that there is a genuine issue for trial on the issue of whether they gifted a 50% interest in the property to Shakiba.

b) Was the gift subject to the conditions that it was only valid as long as the wife did not leave the marriage, and resided in the property as a matrimonial home?

[59] The Applicants allege that the gift was subject to the conditions that Shakiba would not leave the marriage and would continue to reside in the property as a matrimonial home.

[60] The Respondent denies that there is any evidence of these conditions being part of the gift. I agree with the Respondent’s position and find that no such conditions were attached to the gift for the following reasons:

(a) The intentions of the parties were clearly stated in the Deed of Gift which was prepared to clarify and remove any uncertainty about the gift in addition to registering the transfer of a 50% interest in the property to Shakiba;

(b) The parties reduced the terms of the gift to writing in the “Deed of Gift” document which did not mention any conditions;

(c) None of the written documents prepared by the lawyers acting for the parties to complete the gift mentioned that any such conditions applied to the gift; and

(d) The husband’s parents signed the documents confirming the gift with the benefit of independent legal advice.

[61] The Applicants’ suggestion that the gift to Shakiba was subject to these conditions is unsupported by any documentary evidence. Shakiba and her brother, who negotiated the terms of the gift, denied that the gift was ever subject to such conditions and that the Applicants never mentioned any such conditions either verbally or in any written document. The Applicants do not state that they ever mentioned any conditions to their lawyer, to Shakiba or to her brother at any time, either verbally or in writing.

[62] Applying Rule 16(6) without the expanded powers, I find that the Applicants have not presented evidence of any material facts which demonstrate that there is a genuine issue requiring a trial on this issue. The Applicants have not presented any evidence, oral or written, from any party that such conditions were ever part of the terms of the gift. The only evidence is from Hamid who stated that Shakiba’s father promised to return her 50% interest in the property if she left the marriage which I will deal with as a separate issue.

[63] I reach the same conclusion if the expanded powers were applied because I infer that if any conditions were attached they would have been included in the written documents signed by the parties’ prepared offer having obtained independent legal advice.

c) Was the gift subject to the condition that the wife’s father promised to return her 50% interest in the property to the husband’s parents if she left the marriage?

[64] Hamid’s affidavit states that during a telephone conversation with Shakiba’s father, he promised that he would return Shakiba’s 50% interest in the property if Shakiba left the marriage. Shakiba’s father has filed an affidavit denying that any such conversation ever took place and denying that he ever made such a promise. This evidence raises an issue of credibility.

[65] I find that it is unlikely that such a promise or representation was made because Hamid and Sima had had retained a lawyer in Canada to advise them on making the gift to Shakiba retained an independent lawyer, Mr. Nadon, to prepare and register a transfer of the 50% interest indicating that it was a gift to Shakiba, and they had negotiated the terms of the gift and signed the Deed of Gift document with the benefit of legal advice without mentioning such a promise. Hamid never mentioned this alleged promise during the negotiations between the parties and legal counsel, or when the above documents were prepared and signed by him. In addition, he never asked Shakiba or her father to sign anything to confirming such a promise and made no oral or written request in the presence of any other party to confirm such promise in writing (ie. No fax or e-mail was ever sent confirming such a promise or asking that it be reduced to writing).

[66] However, for purpose of my analysis I will assume that such a verbal representation or promise was made by Shakiba’s father to Hamid. The transfer of the property to Shakiba and the negotiation of the terms of the gift were done with the benefit of the legal advice by both parties and the terms of the gift were specifically reduced to writing. I find that the allegation that Shakiba’s father made such a promise, does not affect the transfer of the property as a gift to Shakiba. Shakiba’s father is not a party to these proceedings and is not the owner of any interest in the property.

[67] The Applicants’ position on this point is based on an assumption that Shakiba’s father has control over her decisions which is not supported by any evidence. A child, over the age of majority has the power to contract and make decisions on her own. Shakiba was not present during this alleged conversation. The Applicants have not provided any evidence that Shakiba agreed to or was aware of this alleged verbal representation by her father.

Statute of Frauds

[68] Section 1(1) of the Statute of Frauds, R.S.O. 1990 C519 requires written documentation to grant an interest in land. As a result even if a verbal promise was found to have been made by Shakiba’s father to Hamid to transfer her interest in the property back to him, it would not be of any force and effect. Such a verbal promise to transfer an interest in the land would have the force of an estate at will only and could be terminated in his discretion.

[69] Section 1(1) of the Statute of Frauds reads as follows:

A (1) Every estate or interest of freehold and every uncertain interest of, in, to or out of any messages, lands, tenements or hereditaments shall be made or created by a writing signed by the parties making or creating the same, or their agents thereunto lawfully authorized in writing, and, if not so made or created, has the force and effect of an estate at will only, and shall not be deemed or taken to have any other or greater force or effect. [Emphasis added]

[70] Section 4 of the Statute of Frauds requires some memorandum or note thereof in writing and states as follows:

No action shall be brought to charge any executor or administrator upon any special promise to answer damages out of the executor’s or administrator’s own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of any other person, or to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof is in writing and signed by the party to be charged therewith or some person thereunto lawfully authorized by the party. R.S.O. 1990, c. S.19, s. 4; 1994, c. 27, s. 55. [Emphasis added]

[71] In Kavanagh v. Lajoie 2014 ONCA 187, Lajoie alleged that an interest in a house had been gifted to him without a written agreement. The Court of Appeal did not agree and stated that his agreement could not succeed as it would be contrary to the Statute of Frauds. The case before me is similar as there is no written memorandum of the alleged promise to return the gift of a 50% interest in the property to the Applicants and as a result the alleged verbal promise to convey Shakiba’s interest to the Applicants is unenforceable.

Doctrine of Part Performance

[72] At para. 10 of Hill v. Nova Scotia (Attorney General), [1971] 1 S.C.R. 69 (S.C.C.), Cory J. quoted from Steadman v. Steadman (1974), A.C. 536 (U.K. H.L.) at p. 558 on the doctrine of part performance:

…Where, therefore, a party to a contract unenforceable under the Statute of Frauds stood by while the other party acted to his detriment in performance of his own contractual obligations, the first party would be precluded by the Court of Chancery from claiming exoneration, on the ground that the contract was unenforceable, from performance of his reciprocal obligations and the court would, if required, decree specific performance of the contract. Equity would not, as it was put, allow the Statute of Fraud “to be used as an engine of fraud”. This became known as the doctrine of part performance – the “part” performance being that of the party who had, to the knowledge of the other party, acted to his detriment in carrying out irremediably his own obligations (or some significant part of them) under the otherwise unenforceable contract.”

[73] I find that the doctrine of part performance would not apply because there was no contract between Shakiba’s father and Hamid that was partly performed by Hamid. The alleged promise was made and is separate from the transaction namely that the property gifted to Shakiba on the condition that she married Ahmad. This transaction was completed as the property was gifted and the marriage took place. Each party, namely Shakiba and the groom’s parents, fully completed their part of the agreement and, as such, there was no part performance.

[74] The parole evidence rule would also be applicable because the allegation of a promise to return the interest in the property contradicts the written Deed of Gift document and as such would not be admissible as evidence.

[75] If I apply the expanded powers in Rule 20.04(2.1) then I would infer from the evidence that Shakiba’s father never made such a promise because if there was any such condition or promise it would have been referred to in the written documents prepared by the lawyers representing Hamid and Sima. The terms of the transfer and gift were negotiated and reduced to writing by lawyers representing the parties, without any mention of such a condition or promise. For the above reasons, I find that the gift of the 50% interest in the property was not subject to a condition that Shakiba’s father promised to return her interest to Hamid and Sima if Shakiba left the marriage.

[76] If I apply the test under Rule 16(6) without using the expanded powers, I also find that the Applicants have not raised a genuine issue requiring a trial on this issue for the reasons given above based on the lack of any written memorandum or note of such an alleged promise, and the fact that Shakiba’s father is not a party to these proceedings.

d) Did the wife marry the husband with the fraudulent intent of obtaining a gift of the 50% interest in the property?

[77] In his responding affidavit, Ahmad states that Shakiba entered into the marriage with a fraudulent intent to obtain a 50% interest in the property, however, he does not provide any evidence to support this allegation.

[78] In Torfehnejad v. Salimi 2006 38882 (ON SC), [2006] 32 R.F.L. (6th) 115 (Ont.Sup.Ct), Greer J. found that the marriage should be annulled on the basis that Salimi had married Torfehnejad for the sole purpose of allowing her to enter and remain in Canada. The decision was upheld by the Court of Appeal. The important factors supporting the annulment were as follows: i) Salami had refused to consummate the marriage; ii) during the lengthy period following the ceremony in Iran and the marriage, Torfehnejad had initiated 90% of the contact between the parties and Salimi made little effort to reciprocate; and iii) and when Salimi arrived at the airport in Toronto, she made no attempt to contact Torfehnejad but instead went straight to her cousin’s home and did not contact Torfehnejab until 20 days after her arrival in Toronto, at which time she raised the issue of divorce.

[79] The facts in the case before me are very different as the parties entered into a valid marriage, which was consummated, and they lived together as man and wife for approximately one year and a half before they separated. The Applicants have not referred to any actions or statements made by Shakiba to anyone, indicating that she had anything other than an honest intent to marry Ahmad and she did marry him.

[80] Also the Applicants did not present any evidence that Shakiba married the Applicant in order to be sponsored as a permanent resident to Canada. Ahmad did sponsor her application for permanent residency in Canada, but her brother, also resides in Canada and could also have acted as her sponsor for permanent residency. She did not need to marry Ahmad to be sponsored for Canadian residency.

[81] In the Iranian culture it is customary for the groom’s family to make a gift to the bride on their wedding. All of the evidence presented is consistent with this tradition having been followed by the parties.

[82] Applying Rule 16(6) of the Family Law Rules without the expanded powers I find that the Applicants have not raised a genuine issue requiring a trial because the Applicants have not presented any evidence that Shakiba had a fraudulent intent when she entered the marriage with Ahmad. The responding party to a motion for summary judgment must to put their best foot forward and they cannot rely merely on denials and allegations without evidence in support.

[83] If I apply the expanded powers and engage in a minimal amount of weighing and draw reasonable inferences from the evidence, then I find that the evidence is overwhelming that Shakiba did not enter the marriage with a fraudulent intent and, to the contrary, I find that she entered into the marriage with a genuine intention of getting married, based on the uncontested evidence that she completed the marriage ceremony; she consummated the marriage and lived as Ahmad’s wife for one and a half years.

e) Did the husband’s parents sign the Deed of Gift document under duress or as a result of undue influence exercised on them by the wife?

[84] Sima and Hamid state that they signed the Deed of Gift document under duress and undue influence because they allege that Hamid had no knowledge of what he was signing. This allegation is not supported by any credible evidence. The amended Deed of Gift document was sent to Sima by e-mail approximately two weeks before the wedding took place and Hamid and Sima’s lawyer had drafted the first Deed of Gift document on their instructions. The allegation that the Applicants were unaware of what they signed is not believable or corroborated by any evidence.

[85] I find that there is no genuine issue of material fact requiring a trial on this issue for the following reasons:

a) The lawyer retained by Shakiba’s brother initially suggested that a Deed of Gift document be prepared to clarify that the Applicants’ intended to make an irrevocable gift to Shakiba. This suggestion was agreed to by Sima and Hamid and their legal counsel.

b) The original Deed of Gift was prepared by the lawyer advising Sima and Hamid in this matter and she acted on their instructions;

c) The terms of the Deed of Gift were negotiated and initially stated that a 1/3 interest in the properly was to be gifted to Shakiba and held in trust. This was ultimately changed to a 50% interest in the property being gifted outright to Shakiba;

d) The Deed of Gift document has a clear heading in large bold print indicating that it is a Deed of Gift.

[86] Both Hamid and Sima are sophisticated successful business people. Sima is a real estate developer and Hamid operates a jewelry business in Ottawa. The Applicants did not present any evidence that they were unable to understand the English language. The Deed of Gift states that the conveyance of the gift was irrevocable and the grantors released all of their claims upon the lands to the extent of Shakiba’s 50% interest. The document is not lengthy and is clearly written and was originally prepared by Hamid and Sima’s lawyer.

[87] The amended copy of the Deed of Gift was sent to Sima on March 15, 2012 approximately 10 days before the marriage ceremony when the Deed of Gift was signed by all of the parties. Sima has not stated in her affidavit that she did not read or understand the term of the amended Deed of Gift document. The suggestion by her counsel that she may not have opened her email and may not have been aware of the amended terms is pure speculation and is not supported by any evidence.

[88] In her email dated February 28, 2012, to the lawyer acting for Shakiba, the lawyer representing Sima and Hamid stated that the parties intended the transfer of an interest in the property to be a wedding gift to Shakiba.

[89] In R.A. v. Jewish and Children’s Aid Society of the County of Simcoe v. O.P. 2012 ONSC 2349, McDermid J. provided a summary of the case law and principles from the jurisprudence with respect to the responding party’s onus on a summary motion. At para. 38 he stated:

The onus of a responding party has been set out in many different ways. Cases have stated that the party replying to a summary judgment motion must “provide a complete evidentiary record in response to this motion for judgment and to put her “best foot forward” in the material.

[90] In Roger’s Cable TV Limited v. 373041 Ontario Limited (1994), 1994 7367 (ON SC), 22 O.R. (3d) 25 (C.A.) at p. 28 the Court of Appeal cited Children’s Aid Society of Toronto v. L (E.L.), 2000 11422 (ON CJ), 1999, 134 A.C.W.S. (3d) 263 (Ont. S.C.J.) at para. 27, the Court stated that the Respondent party cannot “rely upon self-serving affidavits that merely assert defences without providing details or supporting evidence.”

[91] In Children’s Aid Society of the County of Simcoe v. S.T.I., 2009 57458 (ON SCDC), [2009] O. J. No. 4402 (SCJ) at para. 12, the Court stated that the responding party must “provide evidence of specific facts showing that there is a genuine issue for trial.” In Children’s Aid Society of the Niagara Region v. S.C., 2008 52309 (ON SC), [2008] O.J. No. 3969 SCJ, the Court stated that the facts relied on must be material, and blanket denials of the facts will not do (see also Catholic Children’s Aid Society of Hamilton v. A.(M.), supra, at para. 36).

[92] In Berdette v. Berdette, supra at para. 22, the Court of Appeal stated that in order for pressure to amount to duress, it must be a coercion of the will or must place the party to whom the pressure is directed in such a position that he or she has no realistic alternative but to submit to it. In this case there is no evidence of any undue pressure or a coercion of the will of the Applicants. Sima and Hamid retained lawyers to transfer the gift and signed a Deed of Gift indicating that the gift was irrevocable and indicating that they released any claims whatsoever on the said lands to the extent of a 50% interest to Shakiba and understood what they were doing by signing these documents.

[93] The Applicants have merely asserted potential defences by alleging a fraudulent intent to marry and by alleging that they signed the Deed of Gift under duress or with undue influence, however they have not provided any details or supporting evidence of any material facts indicating that there is a genuine issue for trial on these issues.

[94] As a result, applying the Rule 16(6) test without the expanded power, I find that the Applicants have not raised a genuine issue of material fact requiring a trial as the Applicants have made allegations of duress and undue influence which are unsupported by any evidence.

[95] If I applied the expanded power and engaged in a minimal weighing of evidence and drawing reasonable inferences from the evidence, I find that the evidence is overwhelming that Sima and Hamid were aware that they were making a gift of a 50% interest in the property to their daughter-in-law, Shakiba, on her wedding to their son, and that they did so without any undue influence and without any duress on the part of Shakiba her brother or father.

Claim for the Cost of the Wedding and Return of Wedding Gifts

[96] I have previously found that there is no evidence requiring a trial of an issue that Shakiba married Ahmad with a fraudulent intent to obtain a 50% interest in the property. The parties were married, consummated their marriage and lived together as man and wife for a year and a half. I make the same finding with regards to their claims for payment of the costs of the wedding and for a return of the wedding gifts given to Shakiba.

[97] The three requirements for a gift to be validly completed have occurred with regards to the wedding gifts and for the payment of the costs of the wedding. Sima and Hamid intended to make a gift without consideration or expectation of remuneration when they paid for the wedding and gave wedding gifts to the Respondent. Secondly, the fact that the groom’s parents paid for the wedding was accepted by both the bride and groom by completing the wedding. Thirdly, the delivery was completed by the payment for the wedding costs when Shakiba and Ahmad were married. As a result, I find that the gift of paying for the costs of the wedding was delivered to the intended parties, namely the bride and groom.

[98] Any wedding gifts that were made to both Ahmad and Shakiba remain to be divided in the matrimonial proceeding, however, any wedding gifts hat were made directly to either the husband or to the wife individually may be retained by them free of any claim from the other.

Disposition

[99] For the above reasons, the Respondent’s motion for summary judgment is granted a) dismissing the Applicants’ claim for an order that the Respondent transfer her 50% interest in the property to Sima and Hamid Abdollahpour; b) dismissing the Applicants’ claim for an order that the Respondent reimburse the Applicants for the cost of the wedding; and c) dismissing the Applicants’ claim for an order that the Respondent return all the wedding gifts she requested to the Applicants’ family.

The Hon. Mr. Justice Robert J. Smith

Released: December 31, 2014

COURT FILE NO.: FC-14-70

DATE: 20141231

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Ahmad Reza Abdollahpour, Sima and Hamid Abdollahpour

Applicants

– and –

Shakiba Sadat Banifatemi

Respondent

REASONS FOR Decision

R. Smith J.

Released: December 31, 2014