Kakhki v. Amin, 2021 ONSC 1897

Court File and Parties

Court File No.: FS-19-14635 Date: 20210315 Superior Court of Justice – Ontario

Re: Saeede Sadat Asadi Kakhki, Applicant And: Hamed Hassanzadeh Amin, Respondent

Before: C. Horkins J.

Counsel: Rono Baijnath, for the Applicant Joseph Osuji, for the Respondent

Heard at Toronto (by video conference): March 2, 2021

Reasons for Decision

Introduction

1The Applicant wife, Saeede Sadat Asadi Kakhki, brings a motion for an order severing the Divorce from the corollary relief, an order removing all bars to an Islamic religious divorce, an order that the Respondent sign all documents to obtain the Islamic Divorce (the “Divorce relief”) and an order that the Respondent provide $45,000 in security for costs.

2The parties were married in Iran in 2015. This was an arranged marriage. They separated on December 16, 2018. There are no children.

3In the Application, the Applicant seeks a divorce, equalization of property, exclusive possession of the matrimonial home, sale of the matrimonial home, division of matrimonial home contents, spousal support, an order that barriers be removed to obtain a religious divorce and payment of the Mehr contract.

4In his Answer, the Respondent husband, Hamed Hassanzadeh Amin, seeks exclusive possession of the condominium, a declaration that the condominium is not a matrimonial home, an annulment of the marriage, a declaration that the Applicant is not entitled to Mehr and a declaration that this court has no jurisdiction over the Mehr contract.

The Respondent’s Evidence

5In response to this motion, the husband filed one affidavit. This affidavit is problematic, as explained below.

6The body of the affidavit is four pages. The affidavit identifies and attaches four exhibits (a deed to the matrimonial home, the Applicant’s financial statement, a copy of a decision from an Iranian court dealing with the Mehr contract and an offer to settle from the Applicant).

7First, a without prejudice offer to settle should not be included in the record. It is not relevant and is disregarded for the purpose of this motion.

8Second, the Respondent improperly filed other documents with his affidavit. He filed an opinion from an appraiser on the value of the matrimonial home. While the appraisal is marked as Exhibit 5, the affidavit does not mention this document. The opinion is not properly before the court and is irrelevant to the motion. He also attached to his affidavit thirteen unidentified pages (after the signature page). These pages include information about the dispute and legal argument. They do not form part of the affidavit or the factum that the Respondent filed. The Court does not rely on these documents.

The Divorce Relief

9The Applicant wants to proceed and obtain a divorce order and a religious divorce. Without a divorce order, the Applicant says she cannot proceed to obtain an Islamic divorce and therefore remains under the control of the Respondent. While she seeks an order removing all bars to an Islamic divorce, no “bars” are identified in the affidavit except the Respondent’s refusal to cooperate in obtaining this religious divorce.

10The evidence on this motion is that an Islamic religious divorce can be completed in Canada through a religious representative and in the presence of two Muslim men above the age of 18 years. The Applicant states that in the large Iranian Toronto community, there are many individuals who can perform the Islamic divorce for about $400-$600.

11The Applicant says that the Respondent’s refusal to cooperate in obtaining the divorce relief is jeopardizing her freedom and safety. If she returns to Iran to visit her family, she remains the Respondent’s wife under Islamic law. As his wife, he can freeze her passport, restrict her ability to leave Iran and bring unjust charges against her.

12The Respondent’s refusal to cooperate is premised on his position that a divorce, if granted, will prejudice his annulment claim and what he describes as his “claim for severance and property division and equalization”. As a result, he states that no orders should be made that would allow the Applicant to obtain a divorce order or require him to cooperate in securing the religious divorce.

13I do not accept the Respondent’s position. Allowing the divorce relief will not prejudice the Respondent. This is because there is no basis in law to grant the Respondent an annulment. This is obvious from his Answer and affidavit.

14In his Answer, the Respondent pleads the following to support his annulment claim. He barely knew the Applicant when the marriage was arranged. He sponsored her to come to Canada after the wedding. After the wedding, the Applicant told him that she did not want to have children and that her primary goal in coming to Canada was to further her education and have a better life. When she arrived in Canada, the Applicant pursued her education and “mostly ignored” the Respondent. They rarely speak to each other. There is no great intimacy or physical contacts between the parties, and the Applicant has “ mostly refused any physical [or] intimacy initiated by the Respondent” (emphasis added).

15In the Respondent’s affidavit, he states that the court should annul the marriage because the Applicant was “ mostly or most of the time unable to consummate the marriage due to an incapacity or disability either physical or psychological.” He states that she has “severe anxiety about physical intimacy” (emphasis added).

16He pleads that the “issues of Non-consummation, fraud and the Religious aspect of the parties marriage” should be decided at trial on a complete record. He asks for a “declaration that the marriage was not consummated” and that “the parties’ marriage is not genuine and [was] entered primarily for Immigration purposes”. The allegation of fraud is not particularized in the Answer.

17A pleading that the other spouse used the marriage to enter Canada is not a basis for granting an annulment, even if it was entered into for the purpose of perpetrating a fraud on the immigration authorities: Iantsis (Papatheodorou) v. Papatheodorou, [1971] 1 O.R. 245 (C.A.); Leonotian v. Leonotian (1977), 4 R.F.L. (2d) 94 (C.A.) at para. 5.

18An annulment based on non-consummation requires specific evidence of permanent physical impotency, or psychological factors that effectively create a permanent psychological impotency: Rae v. Rae, [1944] O.R. 266 (C.A.).

19Neither the Answer nor the Respondent’s affidavit state that the marriage was not consummated, as demonstrated by the highlighted words above. Even if the pleading had alleged no consummation, the sworn testimony of the Respondent does not support this pleading. It proves that the marriage was consummated and at best shows that the Applicant refuses to engage in any physical intimacy “most of the time”. Non-consummation due to “mere refusal” or “willful refusal” to engage in sexual intercourse is not enough to support an annulment claim: Heil v. Heil, [1942] S.C.R. 160.

20The Respondent also argues that he will be prejudiced because a divorce will prevent him from pursuing his “claim for severance and property division and equalization”. This argument is flawed. He is not seeking severance of any claims or equalization of property. In his Answer, the Respondent seeks the following relief: an annulment of the marriage, exclusive possession of the matrimonial home (“the condominium”), a declaration that the condominium is not the matrimonial home and an order “removing spousal interests” in the condominium. He makes no other property claims. Even if he was seeking equalization of property, a divorce order is not a bar to the equalization claim. A party has two years from the date of divorce to claim equalization: Family Law Act, R.S.O. 1990, c. F.3, s. 7(3)(a) (“FLA”).

21If a divorce order is granted, the Applicant will no longer be able to seek exclusive possession of the condominium under s. 24(1)(b) of the FLA. The condominium is registered solely in the Respondent’s name. While married, both parties have an equal right of possession: FLA, s. 19(1). However, the right of the non-titled spouse terminates upon divorce: FLA, s. 19(2)(b); Miller v. Miller (1996), 132 D.L.R. (4th) 763 (Ont. C.A.).

22The Applicant has counsel and obviously appreciates the legal effect of a divorce on her exclusive possession claim. The divorce order would extinguish this claim leaving the Respondent in possession as sole owner on title. It is the Applicant and not the Respondent who will be unable to seek exclusive possession.

23In summary, the Divorce relief that the Applicant seeks will not prejudice the Respondent. The orders that the Applicant seeks are granted.

Security for Costs

24Rule 24(13) of the Family Law Rules, O. Reg. 114/99 sets out when a judge may order security as follows:

A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

1. A party habitually resides outside Ontario.
2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
5. A statute entitles the party to security for costs.

25If security for costs is allowed, the judge shall determine the amount of the security, its form and the method of giving it.

26Orders for security for costs are a blunt instrument. They are not intended to act as a roadblock to genuine claims: Gauthier v. Gauthier, 2019 ONCA 722 at para. 8; Izyuk v. Bilousov, 2015 ONSC 3684 at paras. 36-37.

27As stated in Izyuk v. Bilousov at para. 40, the court must apply the following analysis:

a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds. b. If the onus is met, the court has discretion to grant or refuse an order for security. c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v. Clark, 2014 ONCA 175 d. The order must be "just" and be based on one or more of the factors listed in subrule 24(13). Hodgins v. Buddhu, 2013 ONCJ 190.

28The Applicant relies on rr. 24 (13)(2) and (4). The Respondent has not paid the costs order of Akbarali J. noted below, and he has engaged in conduct that is unreasonable and a waste of time.

29The Applicant states that the Respondent has taken positions and refused to cooperate in moving this Application forward. His approach has been a waste of time, is an abuse of the court’s process and will force an unnecessary trial.

30The Applicant relies on the Respondent’s refusal to agree on a date for this motion. This forced the Applicant to bring a 14B motion to obtain a motion date. The 14B motion was decided by Akbarali J. at the settlement conference on December 14, 2020. Justice Akbarali ordered the Respondent to pay $2000 in costs because of his unreasonable conduct in not responding to the Applicant’s request. The Respondent’s conduct necessitated the 14B motion which Akbarali J. found was a “waste of the parties’ and court’s resources.” As well, the Respondent failed to file his settlement conference brief on time. Justice Akbarali said that this “diminished the utility of the settlement conference.” As a result of this conduct, the Respondent was ordered to pay $2000 in costs.

31The Applicant also argues that the Respondent’s refusal to sever the divorce or cooperate in obtaining an Islamic religious divorce is founded on the annulment claim that will not succeed. She says that this refusal is unreasonable. As well, she says that the Respondent’s financial disclosure is incomplete, and this prevents the Applicant from accurately assessing equalization.

32The Applicant estimates that a trial will cost her about $45,000. A breakdown of this cost estimate is not provided. The Applicant states that she is owed a minimum equalization payment of $121,341.

33In summary, I agree that the Respondent’s conduct has been unreasonable and a waste of time. The annulment cause of action is devoid of all merit and a waste of time.

34Rule 24(13)(4) also requires the party seeking security to show that the other party does not have enough assets in Ontario to pay costs. There is not enough evidence on this motion to conclude that the Respondent will be unable to pay costs.

35The Applicant filed a Comparison of Net Family Property Statements. According to this comparison, the Respondent will owe her an equalization payment of $121,341. It is agreed that he owns the condominium. They disagree on the value ($450,000 or $350,000) and whether there is a mortgage.

36Before a court in Iran, the Respondent recently claimed that he was impecunious and unable to pay the amount he owes to the Applicant under the Mehr contract. The Court in Iran accepted the Respondent’s claim and reduced the amount owed under the contract. It is unclear on the record if the value of the Toronto condominium was before the Iranian court.

37In summary, the Applicant has not provided enough evidence to show that the Respondent will be unable to pay costs. I decline to make the security order under r. 24(13)(4).

38Turning to r. 24(13)(2), the Respondent has not paid the $2000 costs order and so this rule is triggered. Even so, the court has the discretion to refuse a motion for security for costs and in this case I decline to order security. A party has the right to seek leave to appeal a costs order. The decision to seek leave is ill founded on the record before this court. However, it will be up to the Divisional Court to decide if leave should be granted. If leave is not granted, the Respondent will be required to pay the cost order immediately.

Conclusion

39The next step in this application is a trial scheduling conference on March 29, 2021 at 10 am. Justice Akbarali ordered them to file trial scheduling endorsement forms and exchange comprehensive offers to settle. A date for trial will be set at this conference if the case is not settled.

40I make the following orders:

1. The Applicant’s claim for a divorce is severed from the corollary relief.
2. The Respondent shall fully cooperate with the Applicant to obtain an Islamic religious divorce.
3. The motion for security for costs is dismissed.
4. If the parties cannot resolve the costs of the Applicant’s motion, they shall exchange brief written costs submissions and file them with the court by March 23, 2021. Submissions are filed at JSO portal https://www.ontario.ca/page/file-family-court-documents-online and through the Family Intake Office email at Toronto.SCJ.FAMILYINTAKE@ontario.ca

C. Horkins J.