NEWMARKET

COURT FILE NO.: FC-14-45666-00

DATE: 20150826

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

Farhad Shahami
Applicant

– and –

Zahra Hashemi-Hefzabad
Respondent

Thora H. Espinet, Counsel for the Applicant

Hossein Niroomand, Counsel for the Respondent

HEARD: August 12, 2015

RULING ON MOTION

JARVIS J.

[1] This Ruling deals with a motion involving, in essence, temporary custody of a child and sale of a matrimonial home. The parties are former spouses, a Divorce Order having been made on May 11, 2015 after these proceedings were commenced, and pursuant to a Severance Order made January 28, 2015. For convenience sake the parties will be referred to as the husband and the wife.

[2] The husband has moved for an Order involving 14 different heads of relief, several of which are not proper temporary relief matters, and at least one beyond the court’s jurisdiction. Leave was granted to permit the wife to late file an extensive responding affidavit to which there was no reply by the husband, nor an adjournment request. As already noted though, the primary relief requested, and the argument before the court, involved child custody and access, and sale of the matrimonial home.

[3] This is a high conflict case.

Custody

[4] There is one child of the marriage, Melika, born September 20, 2005, almost 10 years old. Since the parties separated in December 2012 she has resided with her mother. By Order made at a Case Conference held by Rogers J. on September 12, 2014, the husband was granted Saturday access from 10:00 a.m. to 5:00 p.m. On January 28, 2015, McGee J. ordered the involvement of the Children’s Lawyer, which appointment was accepted. A Clinical Investigator was assigned to the case.

[5] Access by the husband has not been easy. His affidavit described a number of incidents in which access was denied, or where the wife interfered, including one disturbing incident when, while he was waiting to see his daughter, she telephoned him in tears, accusing him of not wanting her to “have fun.” The wife’s voice was heard in the background “coaching” the daughter. Not surprisingly, no access occurred. There was no denial of this allegation in the wife’s responding affidavit.

[6] The husband co-operated with the OCL investigator: the wife did not. Repeated efforts by the investigator to meet with the wife (and child) were rebuffed by the wife, even after the investigator had contacted her counsel for assistance on several occasions.

[7] The investigator’s report that was filed as an exhibit to the husband’s affidavit narrated the husband’s description about the child’s loving pre-separation relationship with him and how, since then, that has been harmed. The husband also described his wife’s history of unpredictable behaviour involving accusations of infidelity (in Melika’s presence), even attending at his place of business. On one occasion Melika was not brought to the designated exchange location until one and a half hours after the time required by Order, and after the husband had waited for a half an hour, then leaving: on another the wife appeared, without Melika, to tell the husband that he would not be seeing her.

[8] The wife’s participation in the investigation would have been helpful but, as the investigator reported in closing the OCL file, no recommendations were possible in the circumstances. The investigator suggested that if the wife were to commit to participate, then the OCL would be prepared to reconsider involvement.

[9] In her response to the husband’s evidence, the wife variously complains about her relationship with him, his family, his alleged lack of interest in Melika before the parties separated, and financial issues. She wishes the husband to have access with Melika. For example,

16. The Applicant father has had very little involvement with the child before the separation and has showed almost no interest in the child since the separation until the issuance of the application. I have never had an issue with the Applicant having access to Melika and believe it would be good for her. The problem I am having is with Melika and her insistence that she be with her father only…I wish for the Applicant to have access to Melika and have tried over and over again to accommodate same.

[10] Nowhere in her evidence does the wife answer the husband’s evidence dealing with the OCL, or the contents of the investigator’s report. When, during argument, the inconsistency of her evidence with what the investigator reported and the husband’s unchallenged evidence was pointed out, she indicated through counsel, and only then, that she would be prepared to co-operate with any future OCL investigation. That, in my view, is what must be done forthwith. The husband’s concern that the child’s relationship with him is being “poisoned” (his words) is not without merit. The wife’s evidence about her desire to foster and facilitate a meaningful relationship between Melika and her father is not credible.

[11] There is no outstanding order dealing with custody of the child, only access. While it is not appropriate, at this time, to make a temporary award of the child’s custody in the father’s favour, the mother should have no illusion that, depending on her future behaviour, such an award is a distinct possibility.

Sale of Matrimonial Home

[12] In paragraphs 6 and 7 of her Order made January 28, 2015 McGee J. adverted to possible difficulties associated with the sale of the matrimonial home (the wife is the respondent in these proceedings).

6. That the Respondent will facilitate the showing of the property for the purpose of the sale.

7. That the consent of the Respondent shall be dispensed with if the Respondent unreasonably withholds her consent to the listing and sale of the matrimonial home.

[13] The wife wishes to acquire from the husband his interest in the jointly-owned matrimonial home. In July 2015 she instructed her solicitor to make an offer to purchase the husband’s interest.

[14] Accompanying the husband’s affidavit were a number of exhibited photographs of the residence, mostly of the exterior, a few of the interior. Weeds (some several feet tall), untended lawn and garbage are evident outside. An agent who attended the property reported the house interior having an unpleasant smell inside, broken doors, dirty appliances and clothes strewn about the living and sleeping areas.

[15] The wife states that the property has been shown over 65 times but that there is only “one problem: Price”, that it is the husband who is the cause of no offer being presented because he has refused to lower the sale price. Again, and in light of her avowed wish to purchase the husband’s interest, the wife’s evidence is not credible. An overview of the parties’ evidence leaves a distinct impression that the reason why not a single offer to purchase has been made in what the evidence indicated was a very active seller’s market has had little to do with price.

[16] At the conclusion of argument, the court invited the parties to co-operate in relisting their residence for sale as the then current listing was expiring. That was done. The issue now for the court is how best to optimize the value and sale potential of the property.

[17] In paragraph 8 of her Order made January 28, 2015, McGee J. directed that the wife be responsible for all of the utility expenses of the matrimonial home, and one-half of the monthly mortgage in the amount of $1,581 (i.e. the wife’s share). The wife did not pay anything on account of the mortgage. She explained that the husband’s lawyer advised that the husband would pay her share of the mortgage instead of the monthly support of $1,091 ordered by McGee J. Shortly before the husband’s motion was heard, he remitted to the FRO payment of any outstanding child support arrears.

[18] Regardless where the truth lies, the fact of the matter is that neither party fully complied with the Order made by McGee J. dealing with the matrimonial home mortgage and child support, and I am not prepared to vary any of that Order’s terms in those regards. Any breach of the financial obligations ordered by McGee J. can be addressed as adjustments to any equalization payment due to either party once that amount has been determined after trial, or earlier on motion should there be a compelling reason either to sanction non-compliance with, or varying, that Order.

[19] In the interim, the matrimonial home must be readied for sale. While the husband has proposed that he be granted temporary exclusive possession for that purpose, I am not prepared to grant that relief at this time. But equally the wife’s actions in frustrating Orders of this court are unacceptable. Clear and unambiguous directions are required.

Additional Matters

[20] Both parties are of Iranian decent. Melika was born in Canada. Each parent has family in Iran and has made allegations involving, in the husband’s case, that the wife may abduct the child to Iran or Iraq if further access against her wishes is compelled and, in the wife’s case, that the husband has been covertly transferring money to Iran to members of his family. There is insufficient evidence to draw any conclusion about the truth of these allegations but, to the extent that Melika’s well-being is implicitly affected, her Passport and whatever other travel documentation either party has in their possession must be forthwith deposited with the court.

[21] The husband has also served a Request for Information (“RFI”) on the wife dated June 16, 2015 to which there has been no reply. The RFI exhibited in the husband’s affidavit is neither dated nor signed but its facsimile transmission to the offices of the wife’s counsel on that date is evidenced. There is nothing exceptional about any of the requests made, and they should be answered.

Disposition

[22] The following Orders shall issue:

(1) The OCL shall be appointed. Separately I have signed the prescribed form of Order and commented in paragraph 7 how important is the OCL’s re-involvement in this matter. A copy of the Order separately accompanies this Ruling.

(2) Paragraphs 5, 6 and 7 of the Order of Rogers J. dated September 12, 2014 dealing with the child’s access, e-mail communication between the parties and the location for access exchange shall remain in full force and effect for the time being;

(3) Neither party is to digitally or electronically record the other or the child at the access exchange, or during those occasions when the child is in telephone or other internet contact with the other parent;

(4) The parent in possession of the child’s Passport shall forthwith deposit it and any other travel documentation for her with the court. Neither party shall apply for travel authorization from any third party without the knowledge, and prior written consent, of the other party and, failing that, approval of the court;

(5) The realtor shall identify what is required to “stage” the matrimonial home for sale, and provide that to both parties in writing to solicit their agreement. In the absence of their agreement within a period of 48 hours, the husband is authorized to undertake such remedial work as may be advised or recommended without the wife’s consent;

(6) The husband is authorized to incur no more than $10,000 to undertake the “staging” work as required by (5) above, at his initial expense, that amount to be reimbursed to the husband when the sale of the matrimonial home is completed, and before any distribution of net proceeds of sale to either party;

(7) The wife’s consent to the sale of the matrimonial home is hereby dispensed with. The husband is authorized to sign all such documents as may be required to effect a timely sale of the residence, provided that the completion date for any sale shall not be less than 60 days from the date of the accepted offer to purchase. The net proceeds of sale after taking into account any registered encumbrances, realtor’s commissions and solicitor’s fees and disbursements relating to the sale, and after remittance to the husband of the documented expenses he has incurred with respect to staging of the residence for sale (as per (6) above), shall be held in trust by the solicitor acting on the sale transaction unless otherwise agreed by the parties, or further order of the court;

(8) The balance of the relief set out in the husband’s Notice of Motion dated July 30, 2015, is dismissed but without prejudice to the husband to renew his request for those matters not already addressed by this Ruling.

[23] As Quinn J. stated in Gordon v. Starr,[^1] a court order is not a suggestion. There are consequences to non-compliance. Any further issues arising with respect to the sale of the matrimonial home can be addressed by means of a Form 14B motion on notice to the other party, to my attention.

[24] One last comment.

[25] Whatever “staging” or other work that is contemplated by this Order is not intended to displace the wife and child or to interfere with their enjoyment of the matrimonial home. The husband should be mindful that any such effort undertaken to ensure the sale value of the property must be reasonable and with this direction in mind.

[26] Either party may make written submissions about costs within 15 days of the date of release of this Ruling, limited to three pages (double-spaced) of written submissions, together with Offers to Settle (if exchanged), Bill of Costs and any relevant Authorities.

Justice D.A. Jarvis

Released: August 26, 2015

[^1]: Gordon v. Starr, 137 A.C.W.S. 988 (Ont. S.C.).