Seyedeh Shabnam Banihashemi v. Kaveh Behshad and Mehrasa Tamaddonfar, 2021 ONSC 1145

COURT FILE NO.: FS-20-15542 DATE: 20210212

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Seyedeh Shabnam Banihashemi Applicant – and – Kaveh Behshad and Mehrasa Tamaddonfar Respondents

Counsel: Naser Abedi, for the Applicant Fareen L. Jamal, for the Respondent, Kaveh Behshad Lisa Kadoory, for the Respondent, Mehrasa Tamaddonfar

HEARD: December 1, 2020

REASONS FOR DECISION

NISHIKAWA J.

Overview and Factual Background

1The Applicant, Seyedeh Shabnam Banihashemi, and the Respondent, Kaveh Behshad, were married on July 25, 2008. They separated on June 8, 2019. They have one child, who is three and a half years old.

2The Respondent, Mehrasa Tamaddonfar, is Mr. Behshad’s mother. Ms. Tamaddonfar is the legal owner of a 50 percent interest in the matrimonial home located at 106 Pugsley Avenue, Richmond Hill, Ontario (the “Property”).

3The Applicant commenced this application in February 2020. In her Application, she named Ms. Tamaddonfar as a respondent. Ms. Banihashemi alleges that she beneficially owns 100 percent of the Property. She claims a resulting trust over Ms. Tamaddonfar’s legal interest in the Property. Alternatively, Ms. Banihashemi makes a claim for unjust enrichment.

4The Property was sold on April 30, 2020. The proceeds of the sale are being held in trust by the real estate lawyer.

5Ms. Tamaddonfar brings this motion for partial summary judgment seeking the release of 50 percent of the proceeds of the sale of the Property on the basis that Ms. Banihashemi’s claims of resulting trust or for unjust enrichment raise no genuine issue requiring a trial.

6Ms. Banihashemi opposes the motion. In her material and at the hearing, Ms. Banihashemi raised issues regarding a lack of disclosure by the Respondents; however, no adjournment of the motion was sought.

The Purchase of the Property

7In December 2015, Ms. Tamaddonfar obtained $75,000 from her home equity line of credit. Of this amount, she transferred $60,000 to Mr. Behshad because she was aware that he and Ms. Banihashemi were looking to buy a house. The remaining $15,000 was transferred to her own bank account.

8On February 2, 2016, Ms. Banihashemi and Mr. Behshad signed an agreement of purchase and sale for the Property and paid a down payment of $80,000.

9Ms. Tamaddonfar alleges that the $60,000 that she gave Mr. Behshad was used toward the down payment on the Property. Ms. Banihashemi disputes this. However, she admits that Ms. Tamaddonfar contributed $50,000 toward the purchase price of the Property. In her Application, she pleaded that: “$50,000 was borrowed from Mrs. Mehrasa Tamaddonfar… for the purchase of the Matrimonial Home.” Ms. Banihashemi also confirmed in her Financial Statement dated February 6, 2020 that there was an outstanding loan of $50,000 owing to Ms. Tamaddonfar.

10After they entered into the agreement of purchase and sale, Ms. Banihashemi and Mr. Behshad applied for a mortgage but were refused. In order to prevent them from losing their deposit on the Property, on February 22, 2016, Ms. Tamaddonfar applied for a mortgage with Ms. Banihashemi at a different financial institution. That mortgage application was approved. Ms. Tamaddonfar co-signed the mortgage, which was for $720,000. The monthly mortgage payments were approximately $3,485.37.

11The purchase of the Property was completed on February 29, 2016 for a total price of $800,000. From the outset, Ms. Banihashemi and Ms. Tamaddonfar were registered as joint owners of the Property.

12Ms. Tamaddonfar states that, in addition to the $60,000 she contributed to the down payment, at various times until the Property was sold, she advanced funds totalling approximately $58,000 to Mr. Behshad, which she understood as being paid toward the mortgage.

Issues

13The issues to be determined on this motion are as follows:

(a) Does the Applicant’s resulting trust claim raise a genuine issue requiring a trial?

(b) Does the Applicant’s unjust enrichment claim raise genuine issues requiring a trial?

Analysis

The Principles of Summary Judgment

14Pursuant to r. 16(1) of the Family Law Rules, O. Reg. 114/99, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. If there is no genuine issue requiring a trial of a claim or defence, “the court shall make a final order accordingly”: r. 16(6).

15Rule 16(4) requires that the party making the motion serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial. Rule 16(4.1) states that the party responding to the motion “may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.”

16The Supreme Court of Canada has held that “summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 5 [Hryniak]. An issue should be resolved on a motion for summary judgment if: (i) the motion affords a process that allows the judge to make the necessary findings of fact and (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial: Hryniak, at para. 49.

17On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before them, without using fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the following powers under rr. 20.04(2.1): (i) weighing the evidence; (ii) evaluating the credibility of a deponent; and (iii) drawing any reasonable inference from the evidence: Hryniak, at para. 66. See also: r. 16(6.1) of the Family Law Rules.

18The court is entitled to assume that the record on a summary judgment motion contains all the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (9 July 2015). It is a “well-established rule that both parties on a summary judgment motion have an obligation to put their best foot forward:” Mazza v. Ornge Corporate Services Inc., 2016 ONCA 753, at para. 9.

19In Chao v. Chao, 2017 ONCA 701, at paras. 24 and 28, van Rensburg J.A. held that the principles laid out in Hryniak apply to summary judgment motions under the Family Law Rules. Specifically, parties are required to put their “best foot forward” and the motion judge is entitled to assume that the evidence before them is the best evidence available.

20On a motion for summary judgment, the moving party bears the burden of demonstrating a prima facie case that there is no genuine issue requiring a trial. If the burden is met, the onus shifts to the responding party “to set out specific facts that there is a genuine issue that requires a trial.”: Turk v. Turk, 2015 ONSC 5845, at para. 47.

The Parties’ Positions

21Ms. Tamaddonfar’s position is that summary judgment dismissing the Application ought to be granted because, based on Ms. Banihashemi’s judicial admissions, there is no genuine issue requiring a trial regarding her trust or unjust enrichment claims.

22Ms. Banihashemi’s position is that the parties never intended that Ms. Tamaddonfar be a 50 percent owner of the matrimonial home and that as a result, her trust and unjust enrichment claims raise genuine issues requiring a trial.

Does the Applicant’s Resulting Trust Claim Raise a Genuine Issues Requiring a Trial?

Resulting Trust - Principles

23A resulting trust arises when title is held in one party’s name, but that party, because they are a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at para. 20.

24In order to establish a resulting trust over the Property, Ms. Banihashemi would have to demonstrate that Ms. Tamaddonfar is a fiduciary or that she gave no value for her 50 percent interest in the Property.

25Ms. Tamaddonfar argues that because Ms. Banihashemi has admitted that she loaned $50,000 to Ms. Banihashemi and Mr. Behshad for the purchase of the Property, she cannot make a claim for resulting trust.

What is the Effect of the Applicant’s Admissions?

26In Canada Permanent Mortgage Corporation v. the City of Toronto, [1951] O.R. 726 (C.A.), the Court of Appeal stated as follows:

Admissions made in pleadings or otherwise for the purpose of trial are judicial admissions. The vital feature of a judicial admission is universally conceded to be its conclusiveness upon the party making it, i.e. the prohibition of any further dispute of the effect by him and by any use of evidence to dispute or contradict it.

27Subrule 22(5) of the Family Law Rules stipulates that an admission that a fact is true or that a document is genuine may be withdrawn only with the other party’s consent or with the court’s permission.

28In Serra v. Serra, 2009 ONCA 105, 93 O.R. (3d) 161, at para. 106, the Court of Appeal quotes Sopinka, Lederman and Bryant, The Law of Evidence, 2nd ed. (Toronto: Butterworths, 1999) at p. 1051, as follows:

A formal admission in civil proceedings is a concession made by a party to the proceeding that a certain fact or issue is not in dispute. Formal admissions made for the purpose of dispensing with proof at trial are conclusive as to the matters admitted. As to these matters, other evidence is precluded as being irrelevant but, if such evidence is adduced, the court is bound to act on the admission even if the evidence contradicts it.

29In her Application, Ms. Banihashemi makes the following statements:

• “$50,000 was borrowed from Ms. Tamaddonfar for the purchase of the Property; and
• Ms. Tamaddonfar lent the parties “$50,000 of the approximate $800,000 paid for the matrimonial home”

30In her financial statement dated February 6, 2020, Ms. Banihashemi states that the $50,000 from Ms. Tamaddonfar was a loan.

31In her Answer, Ms. Tamaddonfar pleaded that she loaned the parties $60,000 toward the purchase price of the Property and that, as a result, Ms. Banihashemi’s claims for resulting trust and unjust enrichment would fail. In her Reply, Ms. Banihashemi pleaded that Ms. Tamaddonfar’s contribution was a gift, but also states that she “always felt the money was a loan.”

32Even after being put on notice of Ms. Tamaddonfar’s position, Ms. Banihashemi did not amend her Application. In her updated financial statement, sworn on May 24, 2020, she continued to identify the $50,000 advanced by Ms. Tamaddonfar as a loan.

33To date, Ms. Banihashemi has not sought leave to withdraw her admissions, despite the motion having been conferenced before Shore J. and Ms. Tamaddonfar having been questioned for the summary judgment motion. As a result, it is unnecessary to consider whether the test for withdrawing an admission has been met.

Application to Facts

34In this case, because Ms. Banihashemi has admitted that Ms. Tamaddonfar paid $50,000 toward the purchase of the Property, she cannot demonstrate that Ms. Tamaddonfar gave no value for her 50 percent interest in the Property.

35Despite her admission, Ms. Banihashemi alleges that the $50,000 was a gift. She relies on her allegation that Ms. Tamaddonfar drew $120,000 from her home equity line of credit and also gave $60,000 to her daughter, Arian, as a gift. This allegation is inconsistent with Ms. Banihashemi’s admission that Ms. Tamaddonfar loaned the parties $50,000 toward the purchase of the Property.

36In any event, Ms. Tamaddonfar has demonstrated that she drew $75,000 from her line of credit, not $120,000. Other than Ms. Banihashemi’s bald allegation, there is no documentary evidence to support that Ms. Tamaddonfar withdrew $120,000 from her home equity line of credit or that she gave $60,000 to her daughter. Even if Ms. Tamaddonfar had given $60,000 to her daughter, this would not disprove that the money advanced to Mr. Behshad and Ms. Banihashemi was a loan, which Ms. Banihashemi has already admitted.

37Ms. Banihashemi further alleges that after the agreement of purchase and sale for the property was signed, her realtor suggested that Ms. Tamaddonfar become Ms. Banihashemi’s “trustee” to help obtain a mortgage. Ms. Tamaddonfar denies that she was ever asked to become a trustee, and states that she was asked to co-sign the mortgage. Ms. Banihashemi does not dispute that she and Mr. Behshad would not have qualified for financing to purchase the Property without Ms. Tamaddonfar co-signing the mortgage.

38Other than Ms. Banihashemi’s bald statement, there is no evidence to support that the realtor suggested that Ms. Tamaddonfar become a “trustee” or that the parties discussed Ms. Tamaddonfar acting as a trustee. Ms. Banihashemi could have but has not provided an affidavit from the realtor. Moreover, s. 9 of the Statute of Frauds, R.S.O. 1990, c. S.19, requires that trust of lands be evidenced in writing. This provision would not, however, preclude a finding of a resulting or constructive trust: Jansari v. Jansari, 2020 ONSC 2473, at para. 52.

39A similar issue arose in Jansari v. Jansari. In that case, legal title to a property was held by two brothers and their respective spouses. The couple who lived in the property (the applicants) brought an application for a declaration of a resulting trust over the other couple’s one-half legal interest. The applicants alleged that the respondents had not made a significant contribution to the property. Lemay J. dismissed the application and found that a resulting trust could not be imposed because the respondents had given value for their interest (at paras. 47-48).

40Similarly, in this case, Ms. Tamaddonfar contributed most of the down payment on the Property. Ms. Banihashemi cannot now argue that the funds contributed by Ms. Tamaddonfar were a gift when she previously admitted that Ms. Tamaddonfar loaned the money and has not sought to withdraw the admission.

41While Ms. Banihashemi has devoted significant energy to arguing that the funds contributed by Ms. Tamaddonfar were a loan, as opposed to an investment, nothing turns on this distinction. The only relevant matter is that Ms. Tamaddonfar’s contribution was not a gift. See: S.L.L. v. M.C.W., 2018 BCSC 1863.

42Ms. Banihashemi submits that it was never contemplated that Ms. Tamaddonfar would be entitled to a 50 percent interest in the Property and raises the following facts to support her position:

• Ms. Tamaddonfar advanced the funds to Mr. Behshad before the Agreement was signed;
• There is no “notation” requiring that the funds advanced by Ms. Tamaddonfar be put toward the purchase of the Property;
• Ms. Tamaddonfar did not sign the Agreement of Purchase and Sale;
• Ms. Tamaddonfar was not on the initial mortgage application;
• The fact that Ms. Tamaddonfar and Ms. Banihashemi are joint tenants as opposed to tenants in common;
• The absence of any agreement or communication between Ms. Tamaddonfar and Ms. Banihashemi regarding ownership of the Property;
• Ms. Tamaddonfar did not advance funds toward the mortgage between 2016 and 2019; and
• All funds advanced by Ms. Tamaddonfar were paid to Mr. Behshad, as opposed to Ms. Banihashemi or to their joint account.

43In my view, the above facts are either irrelevant or of no assistance to Ms. Banihashemi. Irrespective of what the parties may have initially contemplated, Ms. Banihashemi and Mr. Behshad were unable to complete the purchase of the Property without Ms. Tamaddonfar’s contribution. Although Mr. Behshad and Ms. Banihashemi signed the agreement of purchase and sale and mortgage application, those documents were superseded by subsequent events. In the end, the money advanced by Ms. Tamaddonfar was put toward the down payment and Ms. Tamaddonfar co-signed the mortgage. Legal title to the Property was registered in both of their names.

44Not only did Ms. Tamaddonfar contribute significantly toward the down payment on the Property, she co-signed the mortgage and, consequently, became liable to pay the balance. The case law makes clear that a pledging of credit constitutes consideration such that a presumption of resulting trust will not arise: Holtby v. Draper, 2017 ONCA 932, 138 O.R. (3d) 481, at para. 66; Steele v. Doucet, 2020 ONSC 3386, at paras. 89 and 98; Bajwa v. Pannu, 2007 BCCA 260, 66 B.C.L.R. (4th) 192, at paras. 16-18. In co-signing the mortgage, Ms. Tamaddonfar pledged her credit and incurred a potentially significant liability. She is a retired nurse who relies on a pension for income. While Ms. Banihashemi’s position appears to place no value on the fact that Ms. Tamaddonfar co-signed the mortgage, it is undisputed that without her as a co-mortgagor, the couple would not have qualified for financing to enable her to purchase the Property.

45Ms. Banihashemi also disputes that Ms. Tamaddonfar paid further amounts toward the mortgage. Ms. Tamaddonfar states that she paid a total of $58,000 to Mr. Behshad, who handled the parties’ financial affairs, on the understanding that the funds were being used to pay the mortgage. Because of Ms. Banihashemi’s admission and because Ms. Tamaddonfar co-signed the mortgage, Ms. Tamaddonfar has established that she gave value for her interest in the Property. Therefore, it is not necessary for me to determine whether the further amounts advanced by Ms. Tamaddonfar were in fact used to pay the mortgage.

46Moreover, Ms. Tamaddonfar has produced documents showing multiple bank transfers of thousands of dollars to Mr. Behshad, both before and after the parties’ separation. While Ms. Banihashemi alleges that those funds were used by Mr. Behshad to pay his personal expenses, Ms. Banihashemi has admitted that she and Mr. Behshad did not earn sufficient income to support their lifestyle. If the funds provided by Ms. Tamaddonfar were not paid directly to the mortgage, they nonetheless permitted the couple to allocate their funds to meet their expenses, including the mortgage.

47After the separation, Mr. Behshad continued to reside in the matrimonial home. Mr. Behshad and Ms. Banihashemi agreed that she would pay $1,500 toward the monthly mortgage and he would pay the balance. In December 2019, Ms. Banihashemi ceased paying toward the mortgage because Mr. Behshad and Ms. Tamaddonfar did not agree to a sale. Rather than allow the mortgage to go into default, Ms. Tamaddonfar advanced further funds to Mr. Behshad to be paid toward the mortgage.

48Many of Ms. Banihashemi’s arguments appear to be based on a misconception that Ms. Tamaddonfar must demonstrate that she is entitled to a 50 percent interest. For example, Ms. Banihashemi submits that there is a genuine issue requiring a trial as to whether there was a meeting of the minds that Ms. Banihashemi and Ms. Tamaddonfar were joint owners of the Property. She submits that the funds advanced by Ms. Tamaddonfar should have gone from her account to the joint account from which the mortgage and carrying costs for the Property were paid.

49It is important to note that because Ms. Tamaddonfar is a registered owner of the Property, who advanced funds toward its purchase, it is not up to her to prove that she is entitled to a 50 percent interest in the Property. Rather, it is up to Ms. Banihashemi to demonstrate that legal title does not reflect the actual state of affairs.

50For the purposes of this motion, Ms. Tamaddonfar need only demonstrate that Ms. Banihashemi’s resulting trust claim raises no genuine issue requiring a trial. Once she has met her burden, Ms. Banihashemi must set out specific facts demonstrating a genuine issue requiring a trial.

51The funds advanced by Ms. Tamaddonfar and her co-signing of the mortgage constitute consideration for her one-half interest in the Property. Because Ms. Tamaddonfar gave value for her interest in the Property, which Ms. Banihashemi has admitted, the Applicant’s resulting trust claim raises no genuine issue requiring a trial.

Unjust Enrichment

52For similar reasons, Ms. Banihashemi’s claim for unjust enrichment raises no genuine issue requiring a trial.

53To establish a claim for unjust enrichment, the party making the claim must demonstrate: (i) a benefit or enrichment to one party; (ii) a corresponding deprivation to the other party; and (iii) the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10, [2011] 1 SCR 269, at para. 32.

54In this case, Ms. Tamaddonfar gave value for her one-half interest in the Property. She was not enriched at Ms. Banihashemi’s expense. There is no deprivation on Ms. Banihashemi’s part. She was able to purchase a Property that she would not otherwise have been able to acquire. Ms. Banihashemi was living in and had the use of the Property for three years. Ms. Tamaddonfar never lived at the Property.

55In Jansari v. Jansari, LeMay J. found that even if the couple who lived at the house had contributed more to its carrying costs, they could not make a claim for unjust enrichment because they had the benefit of living there.

56In addition, even if the first two elements of the test could be met, Ms. Banihashemi would not be able to demonstrate the absence of a juristic reason for the enrichment. Ms. Tamaddonfar is entitled to a one-half interest in the Property because she holds legal title to one-half of the Property, because she paid a significant amount toward the down payment, because she became liable on the mortgage, and because she paid toward the mortgage.

57Ms. Banihashemi has provided no evidence to support her position that Ms. Tamaddonfar was disproportionately enriched in relation to her contributions. While she states that she and Mr. Behshad paid for renovations on the Property, they were living there and presumably made the improvements for their benefit. As such, I need not engage in an evaluation of their respective contributions to the Property or to its increase in value.

58There is no genuine issue requiring a trial regarding Ms. Banihashemi’s claim for unjust enrichment. Ms. Tamaddonfar was not conferred a benefit for which Ms. Banihashemi suffered a corresponding deprivation. Moreover, Ms. Banihashemi cannot demonstrate that there was no juristic reason for the enrichment. Ms. Tamaddonfar has a 50 percent interest in the Property because she contributed a substantial portion of the down payment and became liable for the mortgage.

59Because Ms. Tamaddonfar’s motion is for partial summary judgment and will not finally resolve all of the issues in this proceeding, it is necessary to consider whether this is a case in which partial summary judgment ought not to be granted.

60The Court of Appeal has cautioned that because of the risk of duplicative proceedings or inconsistent findings, motions for summary judgment remain a rare procedure. Motions for partial summary judgment should be reserved for “issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.”: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34.

61In this case, a risk of duplicative proceedings or inconsistent findings does not arise. Ms. Tamaddonfar’s claim is distinct from the property issues between the parties to the family law proceedings. Once it has been determined that Ms. Banihashemi’s claims for resulting trust and unjust enrichment raise no genuine issue requiring a trial, it is clear that Ms. Tamaddonfar’s entitlement to a 50 percent interest in the matrimonial home, based on her legal title, will not change. While Ms. Tamaddonfar continues to maintain a claim over and above her 50 percent interest, the adjudication of that interest will not be affected by the evidence adduced at trial.

Conclusion

62Accordingly, Ms. Tamaddonfar’s motion for partial summary judgment is granted. Fifty percent of the proceeds of the sale of 106 Pugsley Avenue, Richmond Hill, Ontario, shall be released to the Respondent, Mehrasa Tamaddonfar.

Costs

63At the conclusion of the hearing, I directed counsel to file their bills of costs and any relevant offers to settle with the court, which I would not access until reaching a decision on the motion. After reaching my decision, I reviewed the bills of costs and offers to settle.

64Ms. Tamaddonfar’s costs of the motion on a full indemnity basis were $15,767.03. Her costs on a substantial indemnity basis were $11,825.27. Both amounts include $306.93 in disbursements and HST. The Applicant’s full indemnity costs of the motion were $8,373. Neither party provided their costs on a partial indemnity basis.

65The Respondent also provided a bill of costs for the proceeding. The Respondent remains a party to this proceeding and it would be premature at this stage to order costs other than for the summary judgment motion.

66The overall objective in determining costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances of the case: Boucher v. Public Accountants Council of Ontario, [2004] O.J. No. 2634 (C.A.), at para. 24. There is a presumption that the successful party will be entitled to costs: r. 24(1), Family Law Rules, O. Reg. 114/99.

67The Court of Appeal has identified the four fundamental purposes that modern cost rules are designed to foster: (i) to partially indemnify successful litigants; (ii) to encourage settlement; (iii) to discourage and sanction inappropriate behaviour by litigants; and (iv) to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867, at para. 10.

68In assessing the success of a party, the court looks to the positions taken by the parties at trial, Berta v. Berta, 2015 ONCA 918, at para. 102, as well as to the offers to settle exchanged by the parties as compared with the terms of the final order: Lawson v. Lawson, [2008] O.J. No. 1978 (Sup. Ct.).

69Rule 24(8) of the Family Law Rules provides that the court “shall decide costs on a full recovery basis” if a party has acted in bad faith. Rule 24(8) requires a fairly high threshold of egregious behaviour, and as such a finding of bad faith is rarely made: Chomos v. Hamilton, at para. 43. Other than as provided in rr. 24(8) or 18(14), there is no provision in the Family Law Rules that provides for a general approach of “close to full recovery” costs: Beaver v. Hill, 2018 ONCA 840, at para 11.

70Ms. Tamaddonfar made an offer to settle before filing an Answer in this proceeding, on March 10, 2020. In the offer, she proposed to restrict her claim in the Property to her 50 percent interest. If the Applicant did not accept the offer, Ms. Tamaddonfar would pursue her claim for more than her 50 percent legal interest. The offer was open until March 12, 2020.

71The offer was an attempt to avoid litigation between the Applicant and Ms. Tamaddonfar and regarding Ms. Tamaddonfar’s legal interest. However, the offer was not open for acceptance until the hearing of the motion and thus does not meet the requirements of r. 18(14).

72The Applicant’s position on the motion was not reasonable, given her admission that Ms. Tamaddonfar contributed to the purchase of the Property. Moreover, in opposing the motion, the Applicant raised many irrelevant factual matters. This is not, however, a case in which a party’s conduct is reprehensible or worthy of the court’s reproach, such that an order for full or substantial indemnity costs is warranted.

73In the circumstances, the Respondent is entitled to costs on a partial indemnity basis, which I fix at $9,500.

74This endorsement is effective as an order of the court without further need to enter or issue an order. Counsel may also forward an approved draft order for my signature.

Nishikawa J.