Salehi v. Tawoosi, 2016 ONSC 540
CITATION: Salehi v. Tawoosi, 2016 ONSC 540 COURT FILE NO.: FS-13-387197 DATE: 20160122
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Faranak Salehi Applicant
– and –
Farzad Tawoosi Respondent
COUNSEL: Anthony Macri, for the Applicant Elena Mazinani, for the Respondent
HEARD: January 4 to 8 and 11 to 14, 2016
F.L. Myers J.
[1] The issues in this case require determinations concerning: access, travel with the child, spousal and child support, equalization of net family property, a request for a restraining order, disposition of the parties’ matrimonial home, and the enforceability of an Iranian marriage contract and an Iranian court judgment.
[2] The applicant wife is 42. The respondent husband is 57. They married on December 10, 2001 in Iran. Their son was born in 2005.
[3] The parties separated physically on June 5, 2013 after the applicant obtained an order of the court, without notice to the respondent, restraining him from being near her and their son. The applicant argued for much of the trial that the parties separated months earlier when the respondent moved to a separate bedroom in their matrimonial home. In closing argument however, the applicant conceded that nothing turns on this issue as nothing relevant was proven to have occurred in the period between the dates asserted by each side and no relief is sought by either side during the disputed period. I therefore find that the valuation date under s.4(1) of the Family Law Act, RSO 1990, c F.3, in this proceeding is June 5, 2013.
Credibility
[4] There were several times during the trial when the evidence of the parties was diametrically opposed. The determination of which evidence I can believe and rely upon is therefore an important issue.
The Applicant’s Credibility
[5] The applicant claimed that she cannot work as a result of a car accident in May, 2015. Yet in a text message dated May 29, 2015, the applicant told the respondent that she was working on a Saturday so she could not take their child that day. She claimed in the witness stand that she lied in her email so as to keep what she actually does private from the respondent. In addition to being a credibility issue, this also means that the reliability of the applicant’s contemporaneous documentation is suspect as well.
[6] I digress to discuss a sensitive issue that arose at the trial that also impacts my view of the applicant’s credibility.
[7] The respondent alleged that the parties’ Iranian marriage contract was invalid because the applicant was not a virgin when they were married. The applicant denied the allegation. The respondent’s evidence consisted solely of his bald allegation that she was not a virgin.
[8] Ms. Faezah Kashani Nejhad testified at the trial as an expert in Iranian law. She has been a lawyer in Iran for nearly 25 years. She is recognized by the Law Society of Upper Canada as a Foreign Legal Consultant. Both sides accepted the witness’s qualification as an expert in Iranian law. Both sides sought to prove points of Iranian law that supported their cases through Ms. Kashani. She gave her evidence in a factual, straightforward, and balanced manner. She was quick to point out where Iranian law was not clear and she did not overstate or argue points. I found her evidence to be reliable and credible.
[9] Ms. Kashani testified that a marriage is revocable in Iran if the husband discovers that his wife was not a virgin provided that he moves to invalidate the marriage right away. In that case, the expert said that the marriage contract might also be void but that is a matter that is subject to competing religious interpretations. Moreover, she said that a simple statement by the husband claiming that his wife was not a virgin is not evidence that would invalidate a marriage under the Iranian law. In fact, making the allegation without more proof than that could itself be a criminal offence in Iran.
[10] I ultimately ruled that the entire area was not one that could be pursued. Whether the respondent has a possible defence to the applicant’s Iranian lawsuit on the marriage contract is not relevant to the question of enforcement of the Iranian judgment in Canada. Subject to very narrow defences discussed below, our courts will enforce a foreign judgment as long as we recognize the jurisdiction of the foreign court over the subject matter of the judgment. Defences on the merits are for the foreign court and are not admissible here. Morguard Investments Ltd. v. De Savoye, [1990] 3 SCR 1077, 1990 CanLII 29 (SCC). Therefore, the sexual experience of the applicant at the time of her marriage could not have been relevant evidence on any issue that was validly before this court.
[11] But this does not end the story. When the applicant was asked whether she was a virgin when the parties were married, she started to cry. After the next break, counsel for the respondent advised the court that during the break the applicant had paraded by the respondent while on her telephone apparently telling someone that the respondent must be desperate because he sank to raising the virginity issue. Rather than admitting to violating the court’s order prohibiting her from communicating with third parties about her evidence during cross-examination, the applicant testified that in fact there was no one on the other end of the phone. Rather, she was deliberately engaged in a performance aimed at taunting the respondent and belittling his case. It is not clear to me that the applicant’s deliberate performance is any less inappropriate than breaching the non-communication order.
[12] The virginity issue was raised again in closing argument and I quickly squelched it. However on just hearing the issue raised, the applicant shed further tears in a display that was completely belied by her prior taunting of the respondent on the point.
[13] There was also a very important inconsistency in the applicant’s testimony. Commencing at para 59 below, I discuss the Isfahan office property. It was the applicant’s evidence at trial that she and her family paid 100% of the purchase price for the property. It was to be an office for the respondent although the applicant and her sister both testified that the respondent refused to pay anything toward the purchase. Title to the office is registered in the applicant’s name. There was also a mortgage taken against the office in the applicant’s name. In her affidavit sworn June 17, 2013 the applicant testified that the respondent paid one-half of the price after the initial deposit and the mortgage. This was obviously inconsistent with her trial evidence that the respondent refused to pay anything toward the purchase.
[14] When confronted with her prior affidavit at trial, the applicant first claimed that she could not understand the meaning of the affidavit. Then she said that it had not been translated to her. She then came up with an idea to say that what she meant in her affidavit was just that her family gave the respondent the cash for the purchase and he actually paid their cash to the vendor. This change in the applicant’s evidence made little sense. First, it showed that the applicant did indeed understand what she swore to previously as she had to come up with a way to explain how the respondent could have paid money toward the purchase price. But her new story, that they gave the respondent the money and he paid down payment, did not fit with her affidavit evidence that he paid only one-half of the down payment. Nor did it make sense for the applicant’s family to be putting up all the money to buy an office for the respondent. He refused to pay anything toward the purchase himself so they just gave him their money, all in cash, to close the deal.
[15] The coup de grace however occurred the next day when the applicant’s sister testified. Although subject to a witness exclusion order, the applicant’s sister testified that indeed she and her husband collected all of the cash for the purchase price from various relatives and just handed the cash to the respondent so he could close their purchase for their sister. Since this story first appeared in the applicant’s cross-examination testimony, it is obvious that the applicant spoke to her sister about her evidence in order to obtain corroboration.
[16] Finally, a telling moment occurred during the evidence of the respondent. At one point he became very emotional and broke down concerning his plight as a 57 year old man who has few assets and few prospects. While he was briefly choked up in the emotional pain of the moment, the applicant was smiling broadly at the counsel table. It was a callous display.
The Respondent’s Credibility
[17] There were several times in the respondent’s testimony where his evidence too strayed from being believable.
[18] The applicant’s counsel tried to establish that the respondent held himself out as entitled to use the title “Dr.” based on a Ph.D. degree that he says he obtained in India but which has not been recognized here. The respondent denied that a multipage business brochure for his immigration consulting business that referred to him as “Dr. Tawoosi” was his brochure. He said it must have just been a sample that a printer sent to him. How would the printer have known the content to put in the sample brochure if it had not been provided by the respondent? The wording in the brochure accurately described the respondent’s multiple post-graduate university degrees from India. Rather than admitting that he holds himself out with the title “Dr.” in his Farsi brochure, the respondent denied that the brochure was his brochure. The issue about his title, if true, was a small point. His disavowal of his brochure under oath, that I do not believe, is a bigger point that directly undermines his credibility.
[19] In addition, rather than admitting that he had misled the applicant about details of his prior marriage (a small point), the respondent persisted in denying that he was previously married at all. He claimed that his prior marriage was religious only and was not a valid civil marriage. However, that does not fit with the divorce that he obtained from the Ontario Court of Justice (General Division) in 1994. The divorce judgment recites the parties’ marriage as a fact and grants him a civil divorce. The respondent therefore told the court one thing in 1994 and a different thing in 2016.
[20] The respondent produced pictures of the applicant’s car showing damage that she sustained in a car accident. Rather than admitting that he took pictures of the applicant’s car for fear of feeding her arguments for a restraining order (a small point) he came up with two worse ideas. First, he said that he happened upon his wife’s car at the auto repair lot that is near to places that he frequently attends. Having just happened upon his wife’s car and noticing that it had damage, he said he took a picture in order to help ensure that his wife did not get ripped off by the mechanic. Apart from the inherent improbability of just happening to bump into one’s spouse’s car at a car repair lot, he also testified that he uses the same repair shop. On what basis then would he fear that his trusted mechanic would rip off his wife?
[21] While twisting under cross-examination on these points, the respondent then tried to claim that he took the pictures because the car was his car. But he had transferred title to the car to his wife over a year previously. He then tried to make a convoluted argument that transferring title did not mean it was not his car. He apparently forgot that he had previously tried to justify his cancellation of his wife’s insurance on the car because it was no longer his.
[22] Finally, the respondent draws inferences that are highly subjective and idiosyncratic. For example, he refused to consent to his wife taking their child on a trip with a girlfriend and her son because he decided that they were intent upon attending a nudist beach with the children. He saw that his wife had sent email correspondence to a male friend and concluded that she was therefore having an illicit sexual relationship with him. He tried to advance a conspiracy theory about the applicant’s family being tied into government apparatus in Iran and thereby causing him legal problems in Iran in 2010 at least two years before they separated. Apart from being irrelevant and inadmissible collateral facts at best, they also demonstrated that the respondent could not be trusted as an objective observer and interpreter of facts. His evidence cannot be considered reliable as he cannot be counted upon to recite history or his observations with objectivity or accuracy.
Conclusions on Credibility and Reliability
[23] As is apparent from the foregoing recitals, neither of the parties was a credible witness. Moreover, their testimony is not generally reliable. I do not believe that I can safely accept the unsubstantiated testimony of either of them. I therefore look for third party confirmation and circumstantial guarantees of trustworthiness for all of their testimony where possible. In all, I will view the parties’ evidence through the lens of common sense and try to find corroboration where I can. In some cases, the burden of proof may have to come into play.
Events Leading to the Parties’ Marriage
[24] The parties met in November 2001 in Iran. In accordance with their customs and traditions, their families met and negotiated terms of a marriage contract. The applicant’s older sister was quite clear and express in her evidence that the families engaged in a commercial negotiation. She said that if the respondent did not like the price set for the applicant’s hand by her family, he was free to shop elsewhere.
[25] As a result of the negotiations, the respondent’s family agreed to convey to the applicant a 75% interest in the respondent’s mother’s home in Shiraz, 500 square metres of the respondent’s father’s rural land in Mobarekeh, and 500 gold coins.
[26] The Shiraz interest was provided to the applicant well before the wedding date by way of an irrevocable power of attorney that gave the applicant the unilateral right to register a deed in the local registry office to effect the formal transfer of title. The applicant did not have a deed registered until sometime after the marriage.
[27] The land in Mobarekeh was transferred to the applicant by way of an agreement that was signed in the presence of the wedding officiant on the day of the marriage. The applicant claims that the land has never been conveyed to her. If that is so, it is because she failed to register the necessary deed in the local registry office. Ms. Kashani, the expert witness in Iranian law, testified that the document signed at the wedding was a normal conveyancing document that created a binding agreement to convey the land. When the applicant was confronted during cross-examination with the suggestion that she had failed to transfer this land to herself as she could have done, her ultimate response was, “[s]o what?”
[28] Iranian civil law is based on a civil code. Unlike Canada, it was not a British colony. It has not adopted British common law traditions. Accordingly, it appears that formal title to the Shiraz and Mobarekeh lands may not have been owned by the applicant on the date of her marriage. I use the indefinite “may” as I am not purporting to determine issues of title to land in Iran. What I am considering is only the question of whether the parties’ interests were sufficient for the purposes of Ontario and Canadian law so that the values of various assets ought to be considered “property” in the equalization formula under s. 4(1) of the FLA.
[29] Ownership, for the purposes of s.4 of the FLA is not limited to paper title. Hamilton v Hamilton, 1996 CanLII 599 (ON CA) at p. 12. The FLA defines “property” very broadly in s.4(1) as follows:
“property” means any interest, present or future, vested or contingent, in real or personal property and includes,
(a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself,
(b) property disposed of by a spouse but over which the spouse has, alone or in conjunction with another person, a power to revoke the disposition or a power to consume or dispose of the property, and
(c) in the case of a spouse’s rights under a pension plan, the imputed value, for family law purposes, of the spouse’s interest in the plan, as determined in accordance with section 10.1, for the period beginning with the date of the marriage and ending on the valuation date;
[30] It is significant that in her affidavit of June 4, 2013 that the applicant delivered before issues were joined, the applicant swore, “…a precondition of transferring two Iranian properties into my name only was completed prior to the parties December 10, 2001 date of marriage.” [emphasis added] She now says that she only realized later that the transactions had not been completed formally.
[31] The applicant’s family drove a hard bargain. It appears that at the ceremony itself, before several hundred guests, they may have made their final demand for 500 pieces of gold in circumstances that the respondent says amounted to duress. The fact that the applicant married the respondent with “only” the power of attorney for the Shiraz land and the unofficial conveyance of the Mobarekeh land suggests to me that she and her family were satisfied that those documents conveyed the value that they demanded. The documents provided her with a sufficient interest so that the applicant could unilaterally complete the formal conveyances to herself at a time of her choosing. She went ahead with the marriage after obtaining these documents. In my view, they conveyed a sufficient interest to meet the broad definition of “any interest, present or future, vested or contingent” set out in s.4(1) of the FLA.[^1]
[32] The respondent claims that his parents gave the properties to the applicant to be held in trust by her for the two of them. This is inconsistent with the transaction documents. It is inconsistent with the traditional purpose of the transactions being gifts to the wife to provide for her future protection in the event of divorce or the husband’s death. Finally, the expert witness confirmed that Iran does not have our duality of title that developed anachronistically from the parallel strands of British common law courts and courts of equity. The separation of legal title from beneficial title so that a legal title owner may hold land to and to the use of the beneficial owner (i.e. in trust for a beneficiary) is a British construct. It follows that I do not accept the respondent’s evidence that his father conveyed the lands in trust for the parties for the purpose of the valuation exercise as there is no such title in Iran.
[33] I find that the applicant had sufficient interests in the Shiraz and Mobarekeh lands so that both were her property at the time of her marriage for the purposes of determining equalization under s.4(1) of the FLA.
The Gold
[34] As noted in para. 31 above, the applicant or her family demanded that the respondent agree to pledge to pay her a substantial value in gold coins under a formal Iranian marriage contract. The applicant made a claim for that value in her application for divorce. However, she subsequently commenced legal proceedings in Iran to enforce the marriage contract for the value of the gold coins and she has obtained a default judgment of an Iranian court of competent jurisdiction against the respondent dated March 11, 2014.
[35] The respondent says that he received no notice of the Iranian court proceeding. He says that he has several defences to the Applicant’s claims including duress. However, as mentioned in para. 10 above, it is not open to a party to resist enforcement of a foreign judgment here on the basis that he has or had a valid defence on the merits in the foreign proceeding. I cannot inquire into the validity of the respondent’s possible defences as that is a matter for the Iranian court. Rather, my task is limited to considering whether to recognize and enforce the foreign judgment here. To do that, I consider first whether the foreign court had jurisdiction that Canadian courts will recognize under our conflicts of laws principles (regardless of Iran’s internal law). This involves considering whether there was a real and substantial connection between the subject matter of the foreign proceeding and Iran or its courts. Beals v. Saldanha, [2003] 3 SCR 416, 2003 SCC 72.
[36] I have no hesitation finding that there was and is a real and substantial connection between the subject matter of the claim and the Iranian court’s jurisdiction. The claim involved a traditional Iranian marriage contract that was entered into in Iran as a part of a formal marriage process among Iranian citizens that took place in Iran. The entire process, including the marriage contract, was intended by the parties to be subject to Iranian law at the time. While the respondent was also Canadian at the time and the parties have less contact with Iran today, that does not overcome the clear connection and the obvious legitimacy of an Iranian court hearing a case concerning the Iranian marriage contract.
[37] But that does not end the matter. There are a few, narrow defences to the enforcement of a foreign judgment even when we recognize that the foreign court had jurisdiction from a conflicts of laws perspective. One recognized defence to the enforcement of a foreign judgment arises when the respondent in the foreign proceeding did not have notice of the proceeding.
[38] At para. 235 of the majority decision of Major J. in Beals, the Supreme Court of Canada held:
- A foreign judgment will not be enforced in Canada if the foreign proceedings were contrary to natural justice. The defence concerns the procedure by which the foreign court reached its decision. The clearest examples of a deprivation of natural justice occur when the defendant lacks notice of the foreign proceedings or an opportunity to present his case to the court.
[39] This is again a question of applying our standards of notice, fairness, and order to the question of whether we will recognize the form of notice provided as being sufficient for enforcement purposes. Compliance or lack of compliance with the foreign country’s procedural rules for service of process may be of little consequence. In this case, it appears that the applicant’s family brought the proceeding for her. They told the Iranian court that the respondent’s address was unknown. They proceeded with substituted service under local rules by advertising three times in an Iranian newspaper. They also gave the Iranian court the address of the respondent’s deceased father that had been the address used by the respondent when he visited Iran for the marriage in 2001.
[40] The applicant’s sister testified that a letter was sent to the late father’s address to provide notice of the proceeding to the respondent. She did not produce a copy or any formal proof of service. She did not say who sent the letter or what it included. The Iranian law expert advised that under Iranian civil procedure, service on an adult relative at the respondent’s place of residence is valid service. But, she stressed that the residence must be the respondent’s residence. That is the same as Rule 6(3)(d) of the Family Law Rules.
[41] The applicant has the respondent’s actual address here. She had it in 2014 when she or her representatives told the Iranian court that his address was not known. They could have readily served him in person, by mail, or otherwise. The passive and hearsay evidence that a letter “was sent” to the respondent’s deceased father’s address in Iran does not contradict the respondent’s evidence that he did not receive any notice of the Iranian proceeding. Moreover, once he was provided with an English translation of the foreign judgment the respondent was still unable to locate the original in the Iranian Court. The applicant only provided a copy of the original judgment in Farsi upon the court ordering her to do so during the trial.
[42] In addition to the respondent testifying that he received no notice, the applicant failed to produce any proof of service of the foreign application on him. The applicant had the ability to contradict the respondent’s evidence by producing evidence to establish that she did provide notice of the proceeding to the respondent. I draw an adverse inference from her failure to do so. That is, I infer from her silence that the applicant does not have evidence to prove that she provided notice of the Iranian proceeding to the respondent.
[43] This is not a difficult case involving nuances of notice like Beals. I find that the respondent had no notice of the foreign proceeding and therefore the foreign judgment is not enforceable in Ontario.
[44] It will remain open to the parties to proceed in Iran. The respondent apparently has the right to appeal the verdict once he obtains notice of it. I remain cognizant however that whatever the outcome of the financial issues in this case, the applicant currently has a judgment worth a few hundred thousand dollars that appears to be enforceable in Iran against whatever property or inheritance the respondent may have there.
The Religious Divorce
[45] The parties obtained their divorce from this court a few months ago. The applicant asks the court to order the respondent to obtain a religious divorce. The expert witness testified that it is generally very difficult for a woman to obtain a religious divorce in Iran without the man’s consent. She also testified that one purpose of the pledge of gold or other value to the wife in the traditional Iranian marriage contract is to give the wife a bargaining chip to help her buy her husband’s consent to a divorce.
[46] Subsection 21.1 of the Divorce Act, R.S.C. 1985, c.3 (2nd Supp.) provides a process whereby a spouse can file an affidavit with prescribed contents concerning religious barriers to divorce. On the filing of such an affidavit, subsection 21.1(3) empowers the court to provide specific relief as follows:
[3] Where a spouse who has been served with an affidavit under subsection (2) does not
(a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serve on the deponent and file with the court an affidavit indicating that all of the barriers referred to in paragraph (2)(e) have been removed, and
(b) satisfy the court, in any additional manner that the court may require, that all of the barriers referred to in paragraph (2)(e) have been removed,
the court may, subject to any terms that the court considers appropriate,
(c) dismiss any application filed by that spouse under this Act, and
(d) strike out any other pleadings and affidavits filed by that spouse under this Act.
[47] Rather than invoking s.21.1 of the Divorce Act and asking the court to strike the respondent’s pleadings, the applicant went to Iran and sued. In her affidavit sworn August 31, 2015, the applicant testified, “I have commenced a proceeding in Iran to get my divorce and to attempt to enforce my Iranian marriage contact.” [Emphasis added.] As I noted above in paras. 32 and 45, the marriage contract is integrally related to the parties’ rights and obligations on divorce. The expert witness advised that while Iranians can obtain an Iranian divorce over-the-counter in North America if they cooperate, when they have disputes, they have to go to court in Iran to get their divorce. As the applicant has chosen to seek her Iranian divorce in Iran already and she has not moved under s.21.1, I agree with the respondent that the issue of a religious divorce should be left to the Iranian proceedings. As the parties dispute their rights and entitlements, they would have to go to court in Iran in any event according to Ms. Kashani’s testimony.
[48] Were that not the case, I would still have serious reservations as to whether the court is properly able to force the respondent to grant a religious divorce as requested. Section 21.1 threatens to deny a respondent standing in court if he fails to grant a religious divorce. That is, if he does not exercise his religious divorce process, we will not allow him to participate in the civil divorce process. But going further - to order a person to do a religious act - implicates issues of freedom of religion under the Canadian Charter of Rights and Freedoms. I note that s.21.1(4) contains a defence to an application under s.(3) where the respondent proves that he has a genuine religious issue. In Bakhshi v. Hosseinzadeh, 2015 ONSC 7407 the court did order a husband to provide a religious divorce. In that case, the court relied on a decision that struck pleadings under the provincial equivalent of s.21.1 of the Divorce Act. The court in that case did not advert to the distinction between striking pleadings to try to encourage or coerce a religious divorce and the making of a mandatory injunction whereby a government official positively compels the respondent to perform a religious act. In my view, that distinction may well make a difference. This issue was not argued before me from first principles. Had I not declined to entertain the issue of the Iranian divorce for the grounds set out in the preceding paragraph, I would have declined to make the order sought at least without the benefit of further argument on the fundamental issues.
[49] I considered whether to find a mid-point such as conditioning any relief that the respondent may obtain with a requirement that he provide a religious divorce first. I am cognizant of the important point of public policy in Canada whereby our society does not view the unilateral power of men in other cultures to grant or to withhold divorces as a fair or reasonable practice. It offends our notions of equality under the law. However, I cannot hear the applicant making such a claim. Rather than invoking s.21.1, she was the one who decided to go to Iran to seek her Iranian divorce. She has obtained a partial judgment there that our law will not recognize. In my view it would be unfair to allow the applicant to choose a foreign process but then complain about the unfairness of the process from which she has benefited in a way that we say is itself unfair. Such obvious cherry-picking would be more unfair than subjecting the applicant to the process that she chose to commence.
The Value of the Shiraz and Mobarekeh Properties
[50] The respondent put forward Mr. Seyed Nasseroddin Nekouei as an expert witness in property valuation in Iran. Mr. Nekouei is a member of the Association of Official Experts of the Justice Department of Iran. He testified by Skype from Iran. The valuation of properties has been among Mr. Nekouei’s duties as an Official Expert for the past decade. He was hired several times by the respondent in the course of the respondent’s business as an immigration consultant. The respondent hired Mr. Nekouei to provide valuations for the respondent’s clients who wanted to emigrate from Iran and needed to prove that they owned valuable properties to the immigration officials in the countries to which they wished to move including Canada. Mr. Nekouei said that 10% to 15% of his work involves valuing properties. He does one to five appraisals per year.
[51] Mr. Nekouei gave evidence of his opinion of the value of the Iranian properties in issue as at 2001 and as at the valuation date in 2013. None of his opinion letters complied with Rule 20.1(10) of the Family Law Rules. The letters simply asserted Mr. Nekouei’s opinion as to the value of each property at the chosen date. The witness’s qualifications were not disclosed. There was no description of the inputs used to arrive at the expert’s opinions of value. There was no description of his research. There was no list of documents relied upon by him in formulating his opinions. There was no Acknowledgement of the Expert’s Duty filed.
[52] The Supreme Court of Canada has determined that the acknowledgement of the expert’s independent duty to the court is a threshold issue that must be provided for an expert witness to be qualified. In this case, Mr. Macri invited the witness to confirm orally that he understood that his principal duty was to the court and he did so. The witness thereby met the low independence threshold. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 at paras. 47 to 49. Issues of the witness’s independence therefore only go to the weight to be afforded to his testimony if he passes the other qualification thresholds.
[53] However, I cannot find that the witness otherwise met the threshold to be qualified as an expert witness for the purpose of providing opinion evidence. Expert witnesses provide ready-made inferences of fact for the court where special skill or training is required to draw those inferences. The expertise may come from education, skill, experience, or any mix of those. As he explained his duties, he does not actually appraise properties himself. Rather, his experience as an Official Expert involves speaking to real estate brokers and others to obtain their opinions of value. He then averages the opinions he receives. Mr. Nekouei’s experience is as a mediator and a person who facilitates people with problems to resolve their issues. He has some training in dispute resolution but none in real estate valuation.
[54] While experts may testify to hearsay evidence where their professional work allows them to take such information into account in the formulation of their opinions, here the undisclosed hearsay is the actual opinion. Mr. Nekouei performed no learned analysis or expert role to formulate his opinions. His opinions were based on oral opinions told to him by real estate agents and others. While he was able to name a few of the people to whom he spoke, there was no disclosure of their actual opinions or the reasons for them. Mr. Nekouei asked some named and some unnamed individuals, who may have been truly skilled or not, to provide opinions of values of land 14 year ago and two years ago respectively. I am unable to find that Mr. Nekouei possesses or exercised a special training, skill, or experience that equipped him to provide the court with an opinion of value concerning the lands in issue that is any more or less valid than the views of the parties as lay people with legal or practical interests in the land.
[55] The plaintiff’s evidence was that she understood the Shiraz property to be worth about $15,000 in December, 2001. This was the value that she swore to in her January 3, 2014 Financial Statement before she decided to deny owning the property. Her sister, who was engaged in the negotiations of the value of the pre-wedding transfers with the respondent’s family in 2001, agreed. A 75% interest was therefore worth $11,250. The expert witness in Iranian law testified that parties with partial interests in Iranian property can go to court to compel a sale of the entire property. She did not accept Mr. Macri’s suggestion that such an interest has no value.
[56] At or near the valuation date of June 5, 2013, the applicant suggested to the respondent that they should be asking 1.2 billion Iranian Rials for the property based on her inquiries and understanding. As this number was intended to be used to maximize both parties’ value in a true sale to a third party, this evidence has some circumstantial trustworthiness. Using the XE.com foreign exchange tables that the parties have agreed to be authoritative, the exchange rate on June 5, 2013 was 11,874 Rials for one Canadian dollar. The value of the Shiraz property on the valuation date therefore was $101,061. The applicant’s 75% share of the property was therefore valued at $75,796 on the valuation date.
[57] The Mobarekeh land is rural, undeveloped land. The parties agree that it had little value in 2001. The applicant’s sister confirmed that its value was far less than $15,000 at the time of the negotiations before the marriage. I accept the value for the 500 sq.m. piece of land was $7,500 on December 10, 2001.
[58] It appears that this piece of land has appreciated. In her Affidavit sworn June 17, 2013, responding to an affidavit that was not submitted at the trial, the applicant testified:
Since it is only a piece of land in a small village I am sure it is not worth $250,000.00 by which it would have to be properly evaluated if it is deemed to not be an excluded property that I owned prior to the marriage.
The respondent has provided a value of $216,000 for this property. But that comes from Mr. Nekouei whose evidence I have rejected. Accordingly, the only evidence that I have is the applicant’s evidence rejecting a value of $250,000. She must have had some knowledge of the land’s value to swear to that. She recognized that a valuation was required and yet she did not provide one. Her new-found position that the property is not hers cannot survive the evidence of the expert in Iranian law that the December 10, 2001 deed is a valid conveyance nor the prior affidavit of the applicant herself in which she swore that the land was indeed given to her before marriage. The applicant has left me with little basis to determine a value of her land. In the circumstances, it seems to me that her response to the $250,000 figure was not random and that I can infer from her failure to value the land that presenting a valuation would not have been favourable to her position. In my view therefore it is fair and just to assess the value attributable to her interest in the Mobarekeh land at 80% of the $250,000 amount or $200,000 as at the valuation date. Livent Inc. v. Deloitte & Touche, 2016 ONCA 11, at paras. 386 to 388.
The Isfahan Office
[59] Each of the parties claims that he or she paid 100% of the purchase price for this property. Title is in the applicant’s name. The applicant has a small mortgage outstanding of less than $4,000. I find the outstanding amount of the mortgage to be $3,500 on the valuation date in accordance with the applicant’s most recent sworn financial statement. The respondent accepts this amount.
[60] The applicant says that when the parties were in Iran for lengthy periods from 2001 to 2008 they stayed with parents. So she wanted to buy a residence for herself and the respondent. The applicant’s father had passed away and there was some inheritance that was then being used to support her mother. However, the applicant and her siblings apparently agreed to loan her the money to buy a residence knowing that if the applicant could not pay them back, they would eventually be able to access her share of the inheritance. The inheritance was not yet in the children’s hands so it was not used to buy the office.
[61] The applicant said that in 2005 she deposited 6 million Iranian Toman to a special bank account in Iran. A Toman is equivalent to 10 Rials. The bank was offering a promotion so that if the money was deposited for a period of time, the depositor would become entitled to receive a mortgage from the bank. The applicant testified that by mid-2007, she could obtain a mortgage of 18 million Toman from the bank. She wanted to use the money to buy a residence. However, the respondent was renting an office in Isfahan and he apparently convinced the applicant to use the money to buy him an office instead. He could then pay the mortgage instead of paying rent.
[62] According to the applicant, she took the 18 million Toman mortgage and her family gave her another 44 million Toman to make up the 62 million Toman purchase price of the office. It was this 44 million Toman that was supposedly given by the family to the respondent in cash so he could close the deal.
[63] The applicant’s sister recited a similar story but her math was different. She said that she and her husband put up the 6 million Toman for the 2005 deposit. That entitled the applicant to an additional 18 million Toman mortgage in 2007. She said that they used the 6 million Toman in the bank and the 18 million Toman mortgage so that the family provided only a further 38 million Toman in cash to make up the 62 million Toman purchase price. So, while the applicant included the initial 6 million Toman deposit in the bank’s 18 million Toman advance, her sister said they were separate. The applicant produced no paper to prove any of her assertions. No bank statements. No statements from notaries involved at the time. No letters. No emails. No loan agreements.
[64] The respondent tells a completely different story. He says that all of the money that went into the purchase came from him including the initial 6 million Toman that he had the applicant deposit at the bank. The respondent says that he could not qualify for the special bank promotion because he had no credit history in Iran. The respondent carried on business as an immigration consultant in Iran. But he did so in the name of his uncle’s business because he was a non-resident and could not lawfully conduct business there in his own name. So he was under the radar and had no banking history in Iran. The applicant had been a school teacher before she left Iran for Canada in 2003 and she had a credit history. She did not have a problem banking above board.
[65] The respondent says that he received a gift of $85,000 from his father and used that money to buy the office for himself. He produced a bill of sale from the vendor to his uncle and a cheque from his uncle to the vendor. The applicant and the respondent both agreed that until the parties separated, the respondent paid the mortgage in lieu of rent.
[66] In 2014, the applicant’s family went to court in Iran and had the respondent evicted from the office because he had stopped paying the mortgage. I accept the respondent’s evidence that his immigration consulting business was crushed in 2010 when the laws changed here for foreign immigration consultants. By 2014 he had little business left. This is consistent with changes in the law of which the court may take judicial notice.
[67] The respondent then tried to become a licensed paralegal in Ontario and produced documents showing that he did not pass the licensing exams. He says that after evicting him from his Iranian office, the applicant’s family has refused to return his files to him. He says that he cannot even try to reconstruct some element of his business because he does not have contact information for his foreign contacts and other things that he needs from his office to make a go of it.
[68] The applicant says that the respondent could have gotten his files back in the hours before the government official actually conducted the eviction. But the applicant was here and says that since 2010 he has had immigration problems of his own in Iran so that he was not free to rush back there. Under cross-examination, the applicant said that her brother did not return files to the respondent because the respondent has never asked for them. I find that the issue of the respondent’s request for his files has been a significant issue raised by the respondent throughout these proceedings. Moreover, there is no reason for the applicant or her family to have kept or destroyed the respondent’s files except to hurt the respondent and impair his ability to earn income. That this might hurt his ability to provide for their child did not seem to be a concern to the applicant or her family.
[69] In all, it does not make sense to me that the applicant’s family wanted to loan her money to buy a residence for herself but then agreed to give the money to the respondent to buy him an office while he was unwilling to contribute at all to the purchase. Of greater significance however, is that the applicant had absolutely no answer to the deal documents produced by the respondent.
[70] I find that the cash portion of the purchase price of the Isfahan office property was acquired by the respondent as a gift from his father. This is consistent with his bank statements and his belief at the time. The rest of the property was acquired by a commercial mortgage. Therefore, the full value of the property must be included in the owner’s property and the value of the gift portion might then be excluded as a gift under s.4(2)1 of the FLA.
[71] The respondent has claimed a resulting trust or a constructive trust remedy in respect of this property. I do not have jurisdiction to declare title to Iranian land. But a trust remedy could apply to bind the conscience of a party personally (an in personam remedy). This is different than the respondent’s evidence that his parents made their initial transfers to the applicant in 2001 on express trust. (They could not have done that in Iran and based on the documents and circumstances, they did not do so.) For this transaction, s.14 of the FLA provides that a presumption of resulting trust applies to transfers between spouses. Moreover, a claim for unjust enrichment could also lie to provide a remedy of constructive trust in favour of the respondent. However, in my view neither claim fits. The respondent gave evidence that he could not obtain a mortgage in Iran. The respondent agreed that the applicant would buy the land to take advantage of her ability to do get a mortgage. That was his choice. He could not obtain a mortgage because he had structured his business affairs in an way that prevented him from banking openly in Iran. It was the applicant’s intention to give his spouse the land so she could obtain a benefit that he could not obtain otherwise. In my view, equity would be aiding and abetting a fraud if the respondent were able to claim beneficial title in these circumstances. Similarly, the reasoning for putting title in the applicant’s name provides the juridical reason that prevents a constructive trust from being imposed. Instead, the respondent asks that the court to require the applicant to pay him for the land from her half of their matrimonial home. Counsel provided me with no case law or statutory reference to establish the court’s entitlement to grant relief against the matrimonial home in lieu of a trust over foreign property.
[72] I do not see how I can find the respondent to be the owner of the Isfahan office property for the purpose of s.4(1) of the FLA. He has no registered title to the land or trust claim against the applicant.
[73] It follows that for the purpose of s.4(1) of the FLA, the applicant should be recognized as the owner of the Isfahan office property and be subject to its $3,500 mortgage. Title is in her name both to the land and the mortgage. She controlled and controls the office. In her January 2, 2014 financial statement, the applicant swore that the value of the Isfahan office property at the valuation date was $88,400. However, that was based on exchange rates at that day that were approximately double the exchange rate quoted by the parties’ agreed upon FX resource as at the valuation date. $88,400 dollars as at January 2, 2014 was equivalent to 2,061,135,284 Rials. This is equivalent to approximately $174,000 at the valuation date.
[74] The respondent’s father gifted much of the value relied upon by the respondent to afford the purchase. But the transfer of funds to the applicant by which she purchased the land was from the respondent. There was no claim by the applicant that she received a gift from the respondent’s father. There is no exclusion available to the applicant under s.4(2) of the FLA for transfers as between spouses. Neither party raised a question of unconscionability under s.5(6)(c) of the FLA.
[75] The respondent claims that the fair market value of rent for the office is about $1,000 per month. The applicant’s sister says that the office has been rented out at closer to $300 per month. The applicant claims that she does not receive any of the income from the rent. Her sister says that they have to pay arrears on the mortgage and that this may take years before the applicant sees any rental income. This cannot be correct as the acknowledged outstanding balance of the mortgage is only $3,500.
Other Property Issues
[76] The parties provided a helpful Form 13C Comparison of Net Family Property Statements. I have allowed all amounts where both sides agreed. Certain other findings are required dealing with matters on their Comparison Form although little evidence was provided at trial on a number of them. I accept the matrimonial home value at $600,000 being the more conservative of the two values provided. The respondent’s evidence of the value of the Telegram Mews condominium of $300,000 subject to the outstanding mortgage of $217,000 was not contested. I accept the more conservative value of the Persian carpets being $2,500 for the applicant and $1,000 for the respondent. I accept that the PC and laptops valued at $2,000 were purchased by and owned by the respondent. The parties agree that on the valuation date the respondent owned both cars with an aggregate value of $20,000. I exclude any value for gold coins as there was no evidence of any coins being owned at the valuation date. Whether the respondent owes the value of gold coins to the applicant is the subject of the Iranian court proceeding. I exclude the personal loans from family and friends claimed by both parties as none was outstanding on the valuation date (even if I accepted them as loans). The TD Investment of $5,064 was not proven and is deleted. No bank accounts were proven at trial except the $190 HSBC savings account that is included on consent. Similarly, both parties agree that the respondent had $30,000 in Iran at the valuation date that were funds borrowed from his uncle. The $5,000 loan by the applicant to the respondent was unproven and is deleted. The respondent’s debt to Meza Nazer is discussed in para 85 below and is accepted at $75,000. The loan to 1492775 was unproven and is deleted. The respondent proved that he owed $45,000 in fees to clients. The respondent proved that his father gifted $40,000 to him on the purchase Telegram Mews. It is properly an exclusion under s.4(2)1 of the FLA.
Conclusions on Equalization of Net Family Property
[77] The following then is the calculation of the parties’ net family property and the equalization payment due:
Table 1: Value Of Assets Owned on Valuation Date
PART 4(a): LAND
| Nature & Type of Ownership (State percentage interest) | Address of Property | APPLICANT | RESPONDENT |
|---|---|---|---|
| Matrimonial Home (Para. 76) | 53 Pinto Drive, Toronto (50% joint interest) | $300,000 | $300,000 |
| Iran Property (Para. 73) | Isfahan Office | $174,000 | |
| Iran Property (Para. 56) | Shiraz Property (75% Interest) | $75,796 | |
| Iran Property (Para. 58) | Mobarekeh Property | $200,000 | |
| Condominium (Para.76) | Telegram Mews | $300,000 | |
| A. Totals: Value of Land | $749,796 | $600,000 |
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES
| Item | Description | APPLICANT | RESPONDENT |
|---|---|---|---|
| Household goods (Para. 76) | 2 Persian Carpets | $2,500 | $1,000 |
| Cars (Agreed upon) | 2 Used BMW | $20,000 | |
| Electronics (Para. 76) | Computers | $2,000 | |
| B. Totals: Value of General Household Items and Vehicles | $2,500.00 | $23,000 |
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS
| Category (Savings, Checking, GIC, RRSP, Pensions, etc.) | Institution | Account Number | APPLICANT | RESPONDENT |
|---|---|---|---|---|
| Bank Account (Agreed upon) | TD Canada Trust | 6****7 | $8,441 | |
| Savings (Agreed upon) | HSBC | 14****-210 | $190 | |
| C. Totals: Value of Accounts And Savings | $8,441 | $190 |
PART 4(g): OTHER PROPERTY
| Category | Details | APPLICANT | RESPONDENT |
|---|---|---|---|
| Money in Iran borrowed from uncle (Agreed upon) | $30,000 | ||
| G. Totals: Value Of Other Property | $0.00 | $30,000 |
| TOTAL VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) | APPLICANT | RESPONDENT |
|---|---|---|
| (Add: TOTALS A + B + C + G) | $760,737 | $653,190 |
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES
| Category | Details | APPLICANT | RESPONDENT |
|---|---|---|---|
| Matrimonial Home (Agreed upon) | Mortgage (50% Interest) | $184,000 | $184,000 |
| Condominium (Para. 76) | Telegram Mews | $217,000 | |
| Student Loan (Agreed upon) | OSAP | $8,847 | |
| Iran Property (Paras. 59 and 72) | Isfahan Office Mortgage | $3,500 | |
| Business Debt (Paras. 76 and 85) | Contingent liability to Reza Nazer | $75,000 | |
| Business Debt (Para. 76) | Due to former clients | $45,000 | |
| Credit Card (Agreed upon) | Gold Elite Visa | $1609 | |
| Totals: Debts And Other Liabilities, (TOTAL 2) | $196,347 | $522,609 |
Table 3: Net value on date of marriage of property (other than a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE
| Category and Details | APPLICANT | RESPONDENT |
|---|---|---|
| Land: Shiraz Property (Para. 55) | $11,250 | |
| Land: Mobarekeh Property (Para. 57) | $7,500 | |
| 3 TOTAL OF PROPERTY ITEMS | $18,750 | $Nil |
| NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (TOTAL 3) | $18,750 | $Nil |
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF "FAMILY LAW ACT"
| Item | APPLICANT | RESPONDENT |
|---|---|---|
| Gift or inheritance from this party: Telegram Mews (Para. 76) | $40,000 | |
| TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4) | $Nil | $40,000 |
CALCULATION OF NET FAMILY PROPERTY AND EQUALIZATION PAYMENT
| APPLICANT | RESPONDENT | |
|---|---|---|
| TOTAL 2: Debts and Other Liabilities (item 23) | $196,347 | $522,609 |
| TOTAL 3: Value of Property Owned on the Date of Marriage (item 24) | $18,750 | $0 |
| TOTAL 4: Value of Excluded Property (item 26) | $0 | $40,000 |
| TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4) | $215,097 | $562,609 |
| TOTAL 1: Value of Property Owned on Valuation Date (item 22) | $760,737 | $653,190 |
| TOTAL 5: (from above) | $215,097 | $562,609 |
| TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5) | $545,640 | $90,581 |
| EQUALIZATION PAYMENT | Applicant Pays Respondent | Respondent Pays Applicant |
| $227,530 | $Nil |
[78] Therefore the applicant shall pay the respondent $227,530 as her equalization of net family property. I decline to make any further adjustment for the Isfahan office property.
Child Support
[79] The respondent reports line 150 income of $9,693 for 2012; nil for 2013; and $1,897 for 2014. On July 10, 2013, the applicant consented to an order that he pay child support of $325 per month based on imputed income of $37,500. He has fallen into arrears of $2,600 since May, 2015. He has serious problems with the F.R.O. and he asks the court to reduce his arrears and adjust for his actual reported incomes for prior periods.
[80] I have no doubt that the respondent’s ability to practice as an immigration consultant here was negatively affected by the regulation of that profession in 2010. However, the respondent has made no real disclosure of the finances of his professional practice. He produced no financial statements. He admits to running his income through his uncle’s business in Iran so as to avoid detection of his business activity there. Although he seems to have no current income here to speak of, the respondent receives funds from the very same uncle to pay his expenses. He calls those advances “loans.” He also refinanced his condominium in 2013 and continues to pay his mortgage despite his professed lack of income. He has been prevented from selling his condominium by an order obtained in this proceeding. But he never came back to the court to show with fair disclosure that he needed to change that order due to his financial circumstances.
[81] The respondent says that he needs to go back to school to hope to qualify as an immigration consultant but that at age 57 he has no real plans to do that. So he has no plan at all as to how he intends to earn income going forward. I do not know what he earns in Iran and whether his alleged immigration problems there are real or are readily soluble.
[82] The respondent testified that his uncle gives him money because his uncle views him like his own son. The respondent lived with the uncle when his own father was absent at times when the respondent was a child. The respondent testified that his uncle will not ask for the money back but that the respondent feels obliged as an adult to re-pay his uncle. An advance with no agreement requiring repayment is not a loan for the purposes of the FLA or debtor creditor law generally for that matter. In Reynolds v. Reynolds, 1995 CanLII 8963 (ON CA), at para. 8, the Court of Appeal wrote:
Without an agreement there can be no debt. It would be a dangerous precedent to permit moral family obligations to creep into equalization calculations, no matter how deserving the recipient may be.
[83] The respondent’s uncle, who also did business with the respondent in Iran, provides the respondent with money to meet the respondent’s expenses and the respondent expects this to continue. In my view this is income that should be recognized as being available to meet the respondent’s child support obligations. Korman v. Korman, 2015 ONCA 578, at paras. 62 to 67.
[84] The respondent says that he cannot work because he has a bad back that needs surgery. There was no medical evidence to support a claim of permanent disability. The respondent’s complete lack of plans to meet his expenses was not credible and suggests that he must have undisclosed sources of revenue. The respondent is able to obtain funds from his uncle to meet his expenses of $40,000 to $50,000 per year. Mr. Macri fairly invited the court to recognize this as imputed income of $40,000 under s.19 of the Federal Child Support Guidelines in light of the respondent’s underemployment here and his nondisclosure of his actual business finances.
[85] The applicant also seeks to impute a further $25,000 in income to the respondent arising from older amounts that he received for his immigration consulting business. According to the witness Reza Nazer, he and the respondent worked together on four immigration matters in 2010. Their deal was that Mr. Nazer was entitled to split equally the $50,000 commission that the respondent obtained for the government of Quebec for each case. Mr. Nazer is entitled to receive his share of commission when each of the immigrants arrives in Canada. One arrived last year and one is due to arrive shortly. So Mr. Nazer is currently owed $25,000 by the respondent and he will soon be owed another $25,000. But this timing deals only with when the respondent is required to pay Mr. Nazer. The respondent’s response was that he received all of the money from the Government of Quebec long ago and he has spent it on expenses. He acknowledges his current debt to Mr. Nazer and that he has more to come (two more plus the one outstanding for a total of $75,000 that I recognized in the equalization calculation above). The applicant has not proved that the respondent will receive any further income in relation to these matters.
[86] On an imputed income for 2015 of $40,000, the respondent shall pay child support to the applicant of $360 per month in relation to the child Arshan Tawoosi born November 29, 2005 commencing February 1, 2016. The respondent will provide his Notice of Assessment to the applicant by June 30 of each year and recalculate child support by agreement or by order forthwith thereafter.
[87] The applicant does not seek retroactive changes to support. She just seeks arrears outstanding under the existing interim support order. The respondent asks me to retroactively reduce his support based on his line 150 incomes each year. I decline to alter the pre-trial child support. At an imputed income of $37,500, the respondent paid less than he would have had to pay if the applicant had asked for retroactive support. The respondent will now be free to sell his condominium and he will shortly have access to his equity in the matrimonial home. He should not have a problem with just $2,600 in arrears.
Matrimonial Home.
[88] Apart from claiming the respondent’s share of the equity in the matrimonial home as security for an equalization payment, the applicant made no claim to prevent the sale of the home. As it turns out that the applicant owes the respondent an equalization payment, there is no basis to refrain from selling the home to allow the parties to access their equity. If the parties cannot agree to a sale mechanism within ten (10) days, they shall proceed as follows:
a. The parties will agree upon a real estate broker to list the home for them within ten (10) days from the commencement of this process. If they cannot agree, the respondent is to bring a Rule 14B motion before me in which both sides will submit two names of qualified realtors and the court will chose;
b. The parties will list the house for sale at a price set by the listing broker if they cannot agree otherwise;
c. The parties will accept and sign the first offer received by the listing broker that she or he recommends that they accept.
d. Unless the parties agree otherwise, the listing shall not commence before May 1, 2016 and closing of any sale shall not occur before July 1, 2016.
e. The proceeds shall be held by listing broker and shall be applied first to commissions, legal fees, and other proper costs of sales. The remaining amount shall be notionally split 50/50. The respondent’s share will be used to pay any remaining arrears of child support then sought by the F.R.O. The applicant’s share will pay her equalization payment. Any amounts remaining in each party’s notional account, shall then be used to pay costs of this proceeding as may be ordered later. Any amounts then remaining in each party`s notional account shall then be released to the respective parties.
Spousal Support
[89] The applicant seeks spousal support. Her line 150 income for 2012 was $9,700; for 2013 was $11,018; and for 2014 was $13,121. However she too was completely deficient in her disclosure.
[90] Subsections 15.2(4) to (6) of the Divorce Act provide as follows:
[4] In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
[5] In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
[6] An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
[91] The parties cohabited for approximately 12 years. During that time, the applicant obtained Canadian immigration status, obtained English education, obtained high school equivalency, and obtained a real estate salesperson’s license. Apart from child care responsibilities for which she receives child support, I see no real economic disadvantages to the applicant from the marriage or its breakdown. She obtained properties in Iran and enhanced opportunities and income here. As far as hardship goes, the applicant has lived in the matrimonial home since separation. Justice Herman ordered the respondent to pay one-half of the costs of the house. The respondent claims she is owed approximately $29,000 since the date of separation. However she did not put into evidence any invoices or proof of payment of the claimed expenses. Neither did she disclose or put into evidence any receipts for rent that she received. She did not disclose with any clarity the timing or amounts she received for rent. I have only unsupported allegations of costs incurred in the applicant`s affidavit and very fluid oral evidence about rent.
[92] The burden is on the applicant to prove her entitlement to spousal support. She was out of the workforce for much of the marriage. Although the applicant claimed that the respondent hindered her employment efforts, in fact, he supported her financially while she obtained ESL courses, a high school equivalency diploma and her TOEFL exam through a private school, an esthetician certificate, entry into nursing school, and a real estate salesperson’s license. I note that she kept and spent the OSAP loan that she obtained for nursing school and is repaying it at $100 a month despite dropping her courses very early on.
[93] Although she says that she cannot work due to her car accident, she has continued to work nonetheless. She claimed she did not work from the date of the accident in May, 2015 until her SAB insurer cut her off in December, 2015. I noted in para. 5 above that she wrote an email to the respondent acknowledging that she was already working at the end of May, 2015. Even if that was a lie, she admits going back to work in December, 2015 and expects to make $600 for that month for part time beautician work. She has also resumed nursing school although she says she is without OSAP at present as she made her application too late.
[94] The respondent claims that the applicant earns dividends from a share in her sister’s school in Iran. No basis for this allegation was proven. It was denied by the applicant and her sister. The respondent is correct however that the applicant has failed to disclose rent on the Isfahan office property. While the respondent does not believe the sister’s evidence that they rent it out for $300 per month, he was not able to prove that a different amount was actually being received from the tenant. I have no evidence about the monthly costs of maintenance or mortgage on that office despite the fact that the respondent would have known both from his years of making those payments before he stopped and was evicted. Neither of these allegations therefore provides evidence to support an imputation of more revenue to the applicant.
[95] The respondent seeks imputed rent from the applicant for the matrimonial home since separation. But his counsel declined to explain a basis upon which the respondent might be entitled to make such a claim on the pleadings, or as a matter of law on the facts as proven. It seems to me that it is fair to hold the applicant to the costs that she paid on the undisclosed rent that she received. I do not read the order of Herman J. as having intended to give the applicant a profit opportunity at the respondent’s expense by requiring him to pay costs without accounting for rental revenues received.
[96] Even with the borrowings to which the applicant admits in her sworn financial statements, her disclosure of revenue is far short of disclosing the revenue needed to meet her acknowledged annual expenditures.
[97] As was the case with the respondent, I do not view loans from the applicant’s family that have no repayment terms as true loans. The applicant conceded that her mother does not expect repayment. Her sister was quite magnanimous in offering that the applicant will pay her back when she can. But that does not detract from the fact that the applicant has sources of revenue upon which she can draw to meet her expenses.
[98] Finally, I note that when the applicant briefly worked as a real estate agent, she funneled her commission through another agent for no apparent reason apart from opacity. Her line 150 income for each of 2013 and 2014 is well below her admitted beautician income of $400 per month on average, real estate commission in 2013 only, and rent received. I also expect that funds from each source exceeded the amounts she disclosed as she deals freely in cash. In her December 3, 2015 sworn financial statement, the applicant admits to annual expenditures of approximately $51,000. Her declared income plus admitted loans (were I to have accepted them as loans) over the past 2 years still leaves her at least $25,000 short of paying her expenses. She obviously is getting money from somewhere and is not disclosing it.
[99] In light of the applicant’s failure to fairly disclose her finances and her ability to meet her expenses, I impute income to the applicant of $50,000 equivalent to her expenses paid. With her income exceeding that of the respondent, her use of the house, and receipt of child support, I find that she has not proven that she is entitled to spousal support. The applicant’s means exceed those of the respondent. Both rely on family support for revenue. But the applicant has all of the properties and, right now at least, is the beneficiary of a significant judgment in Iran.
[100] Moreover the applicant’s financial disclosure was so deficient that I cannot find that she has proven a basis to set the amount or duration of any support to which she otherwise might have been entitled.
[101] The respondent also mildly claimed spousal support. Apart from the fact that the applicant’s imputed income is slightly higher than his, he fits none of the statutory objectives of spousal support in my view.
Travel and Passport
[102] The respondent fears that the applicant will take their son home to Iran which is not a Hague Convention signatory. He says that he cannot go back due to his immigration problems from 2010. The applicant says that the respondent`s fear makes little sense because a father can take custody of children from the mother in Iran. The expert witness in Iranian law testified that Iran is likely to recognize a custody order made by this court. However she agreed that the courts might require a mother to keep the child within the country in any event.
[103] I cannot determine what will become of the respondent’s alleged immigration problems or how a custody and access order will play out in the specific circumstances of this case. It seems to me therefore to be in the best interests of the child that I protect his right to a meaningful relationship with both parents by prohibiting the parties from taking him to Iran without the consent of both parents or a further order of the court. I make this order.
[104] The respondent does not want his son to leave Canada at all. Therefore he says that his son does not need a passport. The main reason that he does not want his son leaving Canada is that he fears that the applicant will illegally take the child to Iran. But if the applicant is going to kidnap her son, in breach of the order that he not be taken to Iran, then an order preventing him from being taken out of Canada will not help.
[105] The respondent’s other reason for wanting his son to be kept in Canada is that he fears that the applicant will take the boy to a nudist beach or other inapt locales. Yet the respondent accepts that the applicant is a fit mother and consents to the mother having custody of their child. Neither custody nor access is otherwise in issue in this proceeding.
[106] In all, I agree that it is in the best interest of Arshan for the applicant to have custody of him and that the applicant may travel with the child as she sees fit provided that she is prohibited from taking him to Iran as noted above. Moreover, prior to taking Arshan out of the country, the applicant shall provide at least 30 days’ notice to the respondent. Notice will include a detailed itinerary including particulars of all transportation and lodging. Within two months of returning from traveling, the applicant is required to make up all lost access time for the respondent caused by Arshan being away. A detailed proposal of additional access to make up for lost time will be included with the notice to be sent by the applicant to the respondent in advance.
[107] The applicant may obtain a passport and other government documents for Arshan without the respondent’s consent or signature.
Restraining Order
[108] The applicant applied without notice and obtained a restraining order on June 5, 2013 to keep the respondent from returning home or from being anywhere near her or his son. This was some six months after their marital disharmony led the parties to move to separate bedrooms under the same roof. The applicant waited until the respondent was out of the country to run to court without notice. Certainly nothing I heard in the trial provided an objective basis for a restraining order to be granted now and I am very dubious that it would have then had the respondent been able to respond and cross-examine the applicant prior to the hearing.
[109] Restraining orders granted without notice put a respondent under enormous bargaining pressure. The respondent was suddenly put out of his home and enjoined from seeing his son. He had to hire a lawyer who was immediately under the gun of an existing order. The respondent cannot be faulted for agreeing to terms of an order two weeks later that extended the restraining order as the price of obtaining the applicant’s consent for him to exercise interim access. But that order gave the applicant a weapon to threaten to call the police whenever the applicant attended to pick up or drop off their child.
[110] In my view, the court should be very circumspect in granting orders without notice absent very compelling and credible evidence of true urgency. While the requirement of a later hearing on notice is helpful, the bargaining chip handed to an applicant for that hearing is very unfair if it is not truly urgent and necessary to protect the applicant or a child pending that hearing. Ex parte restraining orders should expire at the next hearing. In that way, the burden will properly remain on the applicant to establish her or his entitlement afresh on contested evidence rather than requiring the respondent to bear the burden of overcoming a subsisting order obtained without notice. If a case appears truly urgent, can a telephone call not be made to the respondent to have him or her come to court within a couple of hours or perhaps the next day? In some cases even that much notice may be unacceptably dangerous. But I am very dubious that this is so in more than a small minority of the cases in which restraining orders are sought without notice as a tactic.
[111] The applicant claimed a restraining order because the respondent had, she said, threatened to take her son away and had threatened to burn down the matrimonial home when she would not help him refinance on terms that he wanted. She claimed that the respondent tried to control her; read her emails, denied her career and educational aspirations, and might have been stalking her (as evidenced by his taking pictures of her car damage).
[112] Many of these points developed over time. However, they allegedly converged to the point of urgency only after the respondent had gone to Dubai with little notice to her. The applicant found the last minute notice of his trip startling as well. At trial, there was no real exploration of the circumstances of the alleged threats. There is no doubt that the parties did not get along. They argued at times in front of others as I heard from third party witnesses. I do not find it startling that a spouse in court proceedings would take a picture of damage to the other’s car. At least it is not a sign of any real danger. Nor is last minute travel. Nor are one-off, bald, oral hyperbolic threats made in the heat of an argument. These were surely signs of the ongoing and cumulative breakdown of the parties’ relationship and the desirability that one or the other move out of the matrimonial home. But that ought to have been negotiated. Running to court with a spouse in Dubai claiming urgency and danger was not appropriate. Similarly, while I have no doubt that the respondent is angry as a result of his inability to control his family as he thinks appropriate for a husband and father, that frustration alone is not a reasonable basis for the applicant to fear that she or her son are in danger either physically or emotionally. Her belittlement and taunting of the respondent during the trial belies the truth of any real fear that she might profess.
[113] The applicant has no reasonable grounds to fear for her safety or for the safety of the child. The parties do not need a restraining order to decrease their distress. They need a resolution so that they can get on with their respective lives. That is something that only they can provide to each other.
Costs
[114] In my view, the respondent appears to have succeeded on the bulk of the significant issues. Therefore the respondent may deliver submissions on costs of no more than five pages in length by January 29, 2016. The submissions shall be accompanied by a Costs Outline and copies of any offers to settle relied upon. The applicant may then provide submissions of no more than five pages in length by February 12, 2016. Regardless of the position adopted, the applicant’s submissions shall also be accompanied by her Costs Outline. The applicant too may deliver copies of any offers to settle upon which she relies. All submissions shall be delivered in searchable PDF format as attachments to emails to my assistant. Copies of case law shall not be delivered to me. References to case law, if any, shall be included as hyperlinks in the submissions.
Order
[115] The Court therefore orders:
a. On consent, Faranak Salehi shall have custody of the child Arshan Tawoosi born November 29, 2005;
b. Faranak Salehi may apply for Arshan Tawoosi’s government documents, including passport and Ontario Health Insurance Plan card, without the consent of the child’s father, Farzad Tawoosi;
c. Faranak Salehi, shall be allowed to travel internationally with the child Arshan Tawoosi without the consent of the child’s father, Farzad Tawoosi except that she is prohibited from taking him to Iran without the written consent of Farzad Tawoosi or further order of this court;
d. Farzad Tawoosi shall not be allowed to travel internationally with the child Arshan Tawoosi, born November 29, 2005, without the Applicant’s written consent or order of the court;
e. prior to taking Arshan out of the country, the travelling parent shall provide at least 30 days’ written notice to the other. The form of notice must include a detailed itinerary including particulars of all transportation and lodging.
f. if the applicant takes Arshan out of the country, then within two months of returning from traveling, the applicant is required to make up all lost access time for the respondent caused by Arshan being away. A detailed proposal of additional access to make up for lost time shall be included with the notice to be sent by the applicant to the respondent under the immediately preceding paragraph;
g. under the Divorce Act, Farzad Tawoosi shall have access to the child, Arshan Tawoosi, born November 29, 2005, on the following schedule and terms:
i. each Wednesday evening from after school until Thursday morning at 8:30 a.m.;
ii. on alternate weekends from Friday after school until Monday morning at 8:30 a.m.;
iii. pick-up and drop off of the child shall be at the child’s school;
iv. if the Monday is a holiday, the access shall be extended to the following Tuesday, and if the Friday is a holiday, access shall be extended to the prior Thursday;
v. the parents shall share the Christmas holiday with Arshan being with his mother during the first week in even numbered years and with his father in odd numbered years;
vi. Arshan shall spend March Break with his mother in even numbered years and with his father in odd numbered years;
vii. such other access as the parties may agree to with such agreement to be in writing;
h. on an imputed income for 2015 of $40,000, Farzad Tawoosi shall pay child support to the Faranak Salehi of $360 per month in relation to the child Arshan Tawoosi born November 29, 2005 commencing February 1, 2016;
i. section 7 expenses for the child shall be split equally provided that both spouses consent to the expense before it is incurred or if it is incurred pursuant to an order of the court;
j. the parties will provide each other with their respective Notices of Assessment by June 30 of each year and recalculate child support by agreement or by order forthwith thereafter.
k. arrears of child support are fixed at $2,600. Enforcement of the arrears is stayed until they are to be repaid from the proceeds of sale of the matrimonial home as set out below;
l. unless the support order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed. A support deduction order will be issued.
m. Farzad Tawoosi shall provide to Faranak Salehi and the Director of the Family Responsibility Office notification of any change in address or employment, including full particulars about the change, within ten (10) days of the change taking place.
n. the applicant’s claims for spousal support and a restraining order are dismissed;
o. the restraining orders dated June 5, 2013 and the order dated September 17, 2013 prohibiting the respondent from selling the condominium on Telegram Mews are dissolved;
p. The matrimonial home shall be sold in a manner to be quickly agreed by the parties. If the parties cannot agree to a sale mechanism within ten (10) days of this order being made, they shall proceed as follows:
i. The parties will agree upon a real estate broker to list the home for them within ten (10) days from the commencement of this process. If they cannot agree, the respondent is to bring a Rule 14B motion before me in which both sides will submit two names of qualified realtors and the court will chose;
ii. The parties will list the house for sale at a price set by the listing broker if they cannot agree otherwise;
iii. The parties will accept and sign the first offer received by the listing broker that she or he recommends that they accept.
iv. Unless the parties agree otherwise, the listing shall not commence before May 1, 2016 and closing of any sale shall not occur before July 1, 2016.
v. The proceeds shall be held by listing broker and shall be applied first to commissions, legal fees, and other proper costs of sales. The remaining amount shall be notionally split 50/50. The respondent’s share will be used to pay any remaining arrears of child support then sought by the F.R.O. The applicant’s share will pay her equalization payment. Any amounts remaining in each party’s notional account, shall then be used to pay costs of this proceeding as may be ordered later. Any amounts then remaining in each party`s notional account shall then be released to the respective parties.
q. the applicant`s claim to enforce the judgment of the Iranian court date March 11, 2014 is dismissed;
r. the applicant shall pay to the respondent the sum of $227,530 for equalization of net family property. The payment shall be stayed until the earlier of the closing of sale of the matrimonial home or November 30, 2016; and
s. the costs of this application are reserved to the court. The respondent may deliver submissions on costs of no more than five pages in length by January 29, 2016. The submissions shall be accompanied by a Costs Outline and copies of any offers to settle relied upon. The applicant may then provide submissions of no more than five pages in length by February 12, 2016. Regardless of the position adopted, the applicant’s submissions shall also be accompanied by her Costs Outline. The applicant too may deliver copies of any offers to settle upon which she relies. All submissions shall be delivered in searchable PDF format as attachments to emails to the assistant for Mr. Justice Myers. Copies of case law shall not be delivered to the court. References to case law, if any, shall be included as hyperlinks in the submissions.
t. this order bears interest at the post-judgment interest rate set pursuant to the Courts of Justice Act RSO 1985, c.C.43, of [to be inserted by the registrar] % per year effective from the date of this order. A payment in default bears interest only from the date of default.
u. This order is effective immediately.
F.L. Myers J.
Released: January 22, 2016
[^1]: Moreover, the applicant’s unilateral right to complete the conveyances is analogous to the unilateral powers of appointment and revocation referred to in subsections (a) and (b) of the definition of property in the statute.