Walker v. Farsijani, 2021 ONSC 5571

NEWMARKET COURT FILE NO.: CV-17-131332

DATE: 20210818

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Peter Walker

Plaintiff

– and –

Maryam Farsijani

Defendant

Alfred Schorr, for the Plaintiff

Matthew Giesinger, for the Defendant

HEARD: May 25, 26, 27, and June 18, 2021

REASONS FOR JUDGMENT

LEIBOVICH J.

1The plaintiff, Mr. Walker, had an intimate relationship with the defendant, Ms. Farisjani. The plaintiff was married at the time. The parties’ relationship lasted approximately five months. It ended when the defendant told the plaintiff that she was pregnant and demanded $1.2 million or she would cause trouble. During the course of their relationship, the plaintiff transferred approximately $96,000 to the defendant. He seeks to recover that amount, claiming it was a loan. Ms. Farisjani states that the money was a gift. The trial took place over three days via Zoom. The plaintiff and the defendant testified at the trial. Numerous text messages between the two were filed.

2There is no dispute among the parties that the onus is on the defendant to demonstrate, on a balance of probabilities, that the monies received were gifts. The plaintiff submits that she has not met her onus; the defendant submits that she has. Both parties have mined the text messages in support of their respective positions.

3The defendant’s position rests on her testimony and the text messages. For the reasons set out below, I cannot accept the defendant’s testimony as there are significant concerns with her veracity. I also find that the text messages are equivocal on the issue. The defendant has not met her onus. The plaintiff’s claim against the defendant is allowed in the amount of $96,000 pre-judgment and post judgement interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. 43.

Brief Factual Overview

4The plaintiff and the defendant became acquainted through the defendant’s Esquire Men’s Hairstyling shop. They met in 2012 and would see each other at the barber shop, two to three times a year, according to the plaintiff, and two to three times a month, according to the defendant. On October 25, 2016, the plaintiff gave the defendant his phone number. They started texting and then met at restaurants. The relationship progressed and became intimate and sexual in November or December 2016. The plaintiff was married.

5The plaintiff testified that after their first act of intimacy, the defendant incessantly asked him for money. The plaintiff testified that the defendant said she needed money because she was feeling pressured from her creditors, primarily her credit cards, and she was overextended. The defendant also needed money to fix up her house and for cosmetic surgery that had already been scheduled.

6The plaintiff gave her $5,000 on December 24, 2016 and $60,000 on December 31, 2016. The plaintiff testified that the defendant told him that she had spent the money and that she still needed money for the cosmetic surgery. On January 17, 2017, he gave her $16,000. The defendant then asked for more money to pay for her car repairs, drugs needed following her surgery, and other household repairs. On February 25, 2017, he gave her an additional $15,000. In total, he gave her $96,000. With respect to the nature of these payments, the plaintiff testified that:

I made it clear to the Defendant at all material times that each advance of monies were a loan and the Defendant promised to repay these loans when able to do so. During one of our conversations the Defendant advised that she owned a house in Aurora, a condominium in Arizona and that she was the owner of the barber shop.

7In cross-examination, the plaintiff agreed that:

1. There is no documentation attesting to the fact that the monies were loans;

2. There was no discussion of an interest rate; and

3. There was no discussion of a repayment plan.

8The plaintiff said that defendant never provided him with details about her financial troubles.

9The plaintiff testified that he has lent other people money without documentation. He also insisted that money that he gave to his son be documented by a loan agreement. The plaintiff could not explain why he did not have a loan agreement with the defendant. The plaintiff understood that the defendant was going to sell her house and, with the equity from the sale, she would repay him. He testified that he made no notations on the bank drafts or cheques that he gave the defendant that it was a loan. He was not concerned that his wife would see the bank drafts or cheques.

10The plaintiff testified that they went to McDonald’s together on February 27, 2017. She bluntly asked him for $1.2 million. He believed she was serious. He asked her if the relationship was over, but she wanted to keep it going and they saw each other twice more in March 2017. He testified that she was giving him mixed messages.

11The defendant testified that the plaintiff commented about her physical appearance and told her that he would give her money to fix it. She testified that the monies given to her were gifts:

He told me they were gifts. He chose the amounts. I would never have accepted these amounts if they weren’t gifts. I could never repay them.

He never once told me he had to give me back the money. He never once said he wanted me to pay him back. He told me he was giving me the money.

12She testified that she asked for money to:

1. Fix herself for the plaintiff;

2. Buy clothes;

3. Buy a new mattress;

4. Buy new linens;

5. Have dental work; and

6. Undergo plastic surgery.

13She testified that the plaintiff offered to take her to Milan. He wanted her to take time off work and he offered to support her during this period. She also need money so that she could provide him with the best cognac, food, and oysters.

14The parties last saw each other on March 24, 2017. The plaintiff testified that the defendant told him that she was pregnant and wanted to come over to his house. She came over and she went into the kitchen and pretended that she was sick. The defendant said that she wanted a relationship. The plaintiff said no. She told him that if he did not give her $1.2 million for an abortion, there would be trouble. The plaintiff asked her if their relationship was a fraud from the beginning. She said yes.

15The defendant testified that she took a pregnancy test and it was positive. She told the plaintiff. He became loud and started yelling at her. He choked her, punched her in the teeth, and kicked her between the legs. The plaintiff asked her to have an abortion. She testified that she told him that she wanted $1.2 million for the abortion. She was not serious. She was trying to force him to live with her.

Law and Analysis

16Where one person transfers money to another in circumstances where the payor is not indebted to the payee or where no presumption of advancement arises, once the transfer is proved, the burden then falls on the recipient of the money to show that it was not repayable. Rothstein J. in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, at paras. 24 and 25 explained:

The presumption of resulting trust is a rebuttable presumption of law and general rule that applies to gratuitous transfers. When a transfer is challenged, the presumption allocates the legal burden of proof. Thus, where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended: see Waters' Law of Trusts, at p. 375, and E. E. Gillese and M. Milczynski, The Law of Trusts (2nd ed. 2005), at p. 110. This is so because equity presumes bargains, not gifts.

The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of a resulting trust.

Also see MacIntyre v. Winter, 2021 ONCA 516, 2021 ONCA 516, at para. 18.

17Thus, the onus is on the defendant to establish on a balance of probabilities that the money transferred to her is a gift. Common-law relationships or romantic friendships do not give rise to a presumption of gift: Zachariadis Estate v. Giannopoulos, 2019 ONSC 6505, 2019 ONSC 6505, at para. 68. The court must look at all the circumstances to see if the requirements of a gift have been met. Three requirements are necessary to establish a valid gift inter vivos: (i) an intention to donate; (ii) a sufficient act of delivery; and (iii) acceptance of the gift.

18As stated by the Court of Appeal in Chechui v. Nieman, 2017 ONCA 669, 136 O.R. (3d) 705, at paras. 59-60, the onus is on the recipient of the money to show that the transferor intended at the time of the transfer that the monies be a gift:

The Supreme Court emphasized in Kerr, at paras. 18 and 19, citing its earlier decision in Pecore v. Pecore, [2007] 1 S.C.R. 795, [2007] S.C.J. No. 17, 2007 SCC 17, at paras. 43-44 and 24, that in situations involving gratuitous transfers, as in this case, the governing consideration is the transferor's actual intention. The intention of the transferor alone counts, as “[t]he point of the resulting trust is that the claimant is asking for his or her own property back”: Kerr, at para. 25. As Rothstein J. explained in Pecore, at para. 44, in such cases,

The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor's actual intention. [Emphasis added in Chechui v. Neiman.]

19More recently in MacIntyre v. Winter, the Court of Appeal again asserted that the onus is on the recipient, in this case the defendant, to establish on a balance of probabilities that the transferor intended for the monies to be a gift. After quoting from the Supreme Court of Canada in Kerr v. Baranow, 2011 SCC 10, [2011] S.C.R. 269, Nordehimer J.A. stated:

On this point, the nature of the onus or burden that rests on Ron, in terms of rebutting the presumption, is the civil standard of a balance of probabilities. In other words, Ron must establish, on a balance of probabilities, that it was Alex's intention to gift these monies: Pecore, at para. 43. The standard of proof on a balance of probabilities requires "clear, convincing and cogent" evidence: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 46.

20Further, it is the transferor’s actual intention at the time of transfer that is the critical consideration: Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 2, 30, and 41.

21In Barber v. Magee, 2015 ONSC 8054, 2015 ONSC 8054, aff'd 2017 ONCA 558, [2017] O.J. No. 3409 (C.A), Fitzpatrick J. set out a list of the factors to assess in determining whether the advancement of a sum of money is a gift or a loan. He stated at para. 42:

The courts in British Columbia have been helpful in suggesting factors to look to when determining a resulting trust claim. The British Columbia Supreme Court recently reviewed the caselaw in Byrne v. Byrne, 2015 BCSC 318, 57 R.F.L. (ih) 215. The Court in Byrne referenced the factors adopted by their Court of Appeal that ought to be reviewed when determining whether a gift or loan was intended: see Kuo v. Chu, 2009 BCCA 405, 180 A.C.W.S (2d) 903, citing Locke v. Locke, 2000 BCSC 1300, [2000] B.C.J. No. 1850. Those factors are as follows:

a. Whether there were any contemporaneous documents evidencing a loan;

b. Whether the manner for repayment is specified;

c. Whether there is security held for the loan;

d. Whether there are advances to one child and not others or advances on equal amounts to various children;

e. Where there has been any demand for payment before the separation of the parties;

f. Whether there has been any partial repayment; and,

g. Whether there was an expectation or likelihood of repayment.

Has the defendant shown that the monies she received were gifts?

22The critical issue is whether the plaintiff intended, at the time he gave the monies, for them to be gifts. I agree with defendant counsel’s submissions that the “key time frame for establishing donative intent is at the time of the transfers, not subsequent to the end of the relationship.” Counsel for the defendant submits that the defendant has met her onus. He states:

The Plaintiff relied heavily on the text messages in this case. Yet, at over 450 pages there is not a single description of the transfer of $96,000.00 from the Plaintiff to the Defendant as a loan. There is no discussion of repayment terms. There is no mention of interest. There is no mention of a demand for repayment. There is no reference to a document providing evidence of a loan. The Plaintiff submits that the Defendant has not discharged its onus to establish a gift. However, if the Defendant has not discharged its onus in this case, I submit that no Defendant could ever discharge its onus.

23The plaintiff submits that the defendant has failed to meet her onus. She is not credible, and the text messages are equivocal.

24The onus is critical in this case. If the onus was on the plaintiff, I would have found that he had not shown that these transfers are loans. But the onus is on the defendant to show that these transfers were gifts. The defendant’s position rests on her testimony and the text messages. For reasons set out below, I cannot accept the defendant’s testimony as there are significant concerns with her veracity. I also find that the text messages are equivocal on the issue. The defendant has not met her onus.

The defendant’s testimony

25The defendant was a difficult witness. She had trouble answering questions directly, especially when she was concerned that she was being tricked by opposing counsel or that the answer might hurt her case. She would repeat and ramble. She interrupted the proceeding frequently, despite being advised not to and despite being reminded that she was represented by counsel whose role is to speak on her behalf. At times, she would mock opposing counsel. However, the greatest difficulty was not how she testified but what she said. She clearly lied about important matters and I cannot rely on her evidence.

The fake pregnancy, false allegations of abuse, and extortion attempt

26The defendant admits that she asked the plaintiff for $1.2 million in order to have an abortion. She testified that she was not being serious. The following text she sent shows the opposite:

Anyways when is comes to that point I don’t care anymore. Either you going to figure it out how you going to pay.. before one month. I fuck everything. That’s the last word I have nothing to say anymore.

27The defendant testified that when she told the plaintiff that she was pregnant, he violently assaulted her. She testified that she told the police about the assault when they questioned her about her extortion attempt. She said that the police told her that she should have complained the day it happened and that there was nothing they could do. There is no reference in the police report to the defendant’s assault allegation. There is also no reference in the texts to this alleged assault. I do not believe the defendant. In my view she made up this serious allegation in an attempt to curry sympathy.

28I do not believe that the defendant ever thought she was pregnant. She testified that she did not see a doctor, but rather took a home pregnancy test that showed she was pregnant. However, she sent a text to the plaintiff stating:

I’m driving back from doctor. Everything is beautiful. She make a file for me. The next visit in 3 weeks. she did lots of test

29She admitted at trial that she never went to the doctor and that the texts about her visit to the doctor were a lie.

30It was suggested to the defendant that she never believed she was pregnant. She responded that she took the home pregnancy test in front of the plaintiff and that is why he exploded and assaulted her. There is no mention of this in her affidavit. In addition, this version of events is completely inconsistent with the text exchange. She informed the plaintiff that she was pregnant via text. She sent a text with a picture of a positive result from a home pregnancy kit to the plaintiff when she announced to him that she was pregnant. There would have been no reason for her to do so had she actually performed the test in front of the plaintiff.

31The defendant testified that she hoped with the pregnancy that the plaintiff would come live with her. In my view, she made up the pregnancy in the hopes of getting the plaintiff to live with her. When that didn’t work, she attempted to extort money from him. Now, in response to the plaintiff’s lawsuit, she has made up an allegation that he abused her.

The cosmetic surgery and dental surgery

32The defendant testified that she needed money for cosmetic surgery and for dental surgery. She said that it was the plaintiff who told her to have the cosmetic surgery because the skin on her stomach was hanging and it was the plaintiff who told her to fix her teeth because her mouth smelled. She was quite clear in her evidence that it was the plaintiff who suggested the plastic surgery and it was the plaintiff who wanted her to have the dental work. The texts filed at the hearing show the opposite. With respect to the dental surgery:

F: Plus I have a pain on my tooth I’m going show you today

After new year I’m going to make appointment with my doctor

W: you mean dentist?

F: Yes

W: Good to get it looked after

33Furthermore, it was the defendant, not the plaintiff, who commented that her teeth smelled:

Anyways. I have a two back teeth which is really smell not really good. Until I get them right is going to takes time so we have to wait to kiss.

34With respect to the plastic surgery, the text shows that the plaintiff was not pushing the defendant to have surgery:

W: I can’t bet because you are beautiful and I am not. It surprises me that u think you need an operation, to me you are perfect the way you are.

35But critically, the documents filed at the trial show that the defendant paid a deposit for the surgery on October 7, 2016 before she even started texting with the plaintiff and before the start of their intimate relationship. The defendant had the surgery because she wanted to have it. It had nothing to do with the plaintiff.

The first request for $1.2 million

36The plaintiff testified that in February 2017, the defendant asked him for $1.2 million. She testified that she never made the request. Yet the following texts from the plaintiff references the request:

March 5, 2017

W: There is lots of love between us but in the end its only money your problem that decides everything.

If I wasn’t married I would marry you sell Finch to pay your debts and all would be good. But I am marries so its impossible.

I thought we had a chance until your ultimatum of 1.2 million. I’m just not that rich……

March 12, 2017

F: I told you my problem in the first place

W: Not 1.2. million. That was a big shock you dropped on me our last day at McDonalds. I thought we had a chance until then.

37There is no response by the defendant in the texts denying her request for $1.2 million. I do not accept the defendant’s evidence that she did not see the texts.

38If the defendant had never made such a request, one would have expected her to ask the plaintiff what he was talking about when he mentioned it.

Money for jewelry

39In her affidavit, the defendant testified about her various financial needs. She testified that she asked the plaintiff for money to:

1. Fix herself for the plaintiff;

2. Buy clothes;

3. Buy a new mattress;

4. Buy new linens;

5. Have dental work; and

6. Undergo plastic surgery

40She made no mention in her affidavit that she needed the money for jewelry. It was admitted at trial that the defendant spent $20,000 on jewelry, a Rolex, and a ring. She explained that the plaintiff was like a husband and that it is customary upon marriage that the husband give the bride jewelry. The defendant gave detailed evidence in re-examination about her culture and how gold is a symbol of marriage. There is some support in the texts that the plaintiff, even though he was already married, felt like a husband to the defendant. One would expect that there would be some reference in the texts to the jewelry that the defendant bought in celebration of their relationship but there is none. I have no doubt that the defendant did not tell the plaintiff that she was using the money to buy jewelry.

41I agree with counsel for the defendant that it does not matter if she used the money for a different purpose so long as the money, when transferred, was in fact a gift. However, it is also obvious that, at the same time that she was asking the plaintiff to help her with her pressing debt, she was buying extremely expensive jewelry. She was clearly lying to the plaintiff and her capacity and willingness to deceive must be considered in assessing her credibility.

Other points

42As stated, there were a number of difficulties with the defendant’s testimony. I will not detail all the additional problems. A couple of examples will suffice. She testified that she visited the plaintiff at his house four times. She was cross-examined on the fact that she said during her discovery that it was two times. I do not find the difference significant. However, when asked to explain the discrepancy she blamed it on opposing counsel and her first counsel, Mr. Baker, who were “driving her crazy” at the discovery. At another point in her evidence, the defendant would not agree that she suggested the amount of $5,000 to be given by the plaintiff. However, the following text clearly showed that she did:

F: All my credit cars are calling me at list I have to give them each 3000 $4000 for beginning I have to start to do my toot as soon as possible. I am empty

Oh

Oh

Make it five

Please please please

Love u

The text messages

43The defendant points to the text messages and states that they support the defendant’s position that the transfers were gifts. The relevant text messages are set out below.

44On December 22, 2016, the parties had the following text exchange:

W: Okay, I found one cheque here…I can write in your name but amount has too be small. …Bigger amount a question for next week when I’m in Toronto some. What do you want to do:

F: How much you can do it for me for now..20000….

W: …No much smaller for cheque in your name

F: what do you mean

W: I thought this like Christmas present money. Financial stuff pretty much closed until Tuesday anyways. Is there something in particular that is so urgent. More like 2-3k to not stick out in bank account.

F: All my credit cars are calling me at list I have to give them each 3000 $4000 for beginning I have to start to do my toot as soon as possible. I am empty

Oh

Oh

Make it five

Please please please

Love u

W: Ok

45On December 29, 2016, the plaintiff texted the defendant:

Bank says I cant get money until Saturday. So I have to stay in town until Sat.Morning….

46On December 31, 2016, he texted her:

I have your money

47On January 1, 2017, they had the following discussion about money:

W: ..I love you for who you are, that is all. I feel you think love is how much money I can give you. That makes me very sad.

F: What are you talking about? Why you bring money subject in between our conversation…..You think it’s easy for me to ask for money

He just ruined my night…..

You never know. One day I’m going to make it up to you/

Thank you honey

And remember that I don’t love you because you’re helping me.

11 years ago when l feel Iike you.

l have everything my dad was a life

My son was OK

I didn't even need money. everything was fine and my feeling was every year get stronger for you

Just don’t insult me please

It’s not easy for me either

Trust me If I want rich man and single no question no doubt I can get them tomorrow….

48On January 16, 2017, the plaintiff texted the defendant:

I have arranged so I can give you 16k for surgery. That makes 81 k in total. It is a lot of money. Live for a long time on that. That is all I can do now.

49On February 4, 2017, shortly after having spent $20,000 on jewelry, the defendant asked him for more money for her car:

F: He going to bring my car back he said it’s come to 4350 That in one or two months I have to give him

I don’t even have energy to continue asking

Where are you

Why you not responding

W: I’m at home

F: Hello

W: Hello. I’m surprised your car needed so much work at 70 Km. Maybe sometime you can say what it was all for. I will pay for you when I’m in Toronto again.

F: Yes. Because I don’t have penny left after this surgery I put 1500 from overdraft they charge me for all medication that they give me in the clinic and …..

50On February 13, 2017, they discussed paying debts:

F: You going to be a nice husband and helping to pay all my debt. Slowly and we are going to be together forever. Because I have so much debt my family wants…..everything is not money…..

W: I want to be with you for the rest of my life….I will help you more with money slowly.

51On February 18, 2017, the plaintiff suggested that the defendant make a list of all her debts. She responded:

…..If I’m not worth it for you, to solve my problem? So I am not worth it..! maybe I’m worth it to someone else that they want to spend everything on me….

52The defendant texted that if she wanted, she could get a young and rich man. Mr. Walker agreed. She then texted:

Then don’t press the point if I am poor and I need your help don’t talk stupid to me. …

53She then texted,

you love me you care about me you have to take care about my problems.”

54The following exchange took place on February 25, 2017:

F: Do you have the money for me $15000

I have people to pay off

W: Yes

F: Thx. When you going to be there….

55On February 28, 2017, they texted:

F: Yeah my financial is important so much bad things going on. Anyways if your financial its not important to you that’s wonderful because you can help me freely…!See your financial is important to you too..!!!wow

W: Yes it is and its even more for you

F: what do you mean exactly?

W: I was trying to agree with financial important to both of us

56On March 15, 2017, they texted about the defendant’s financial situation:

F: Hopefully when you come here you going to give me some money as you promised

Don’t worry one day I’m going to have and then I’m going to help you with anything.

W: And I hope you going to be telling me more about your situation so I see better what is required.

57The plaintiff agrees that there is no documentation of the loan and he never discussed any repayment terms with the defendant. It is his position that the defendant was to repay him from the sale of her house. I agree with the defendant that there is no mention in any of the texts that the monies were loans. However, it is evident from the texts set out above that the texts do not represent all of the discussions that the parties had with respect to the transfer of monies from the plaintiff to the defendant. There were clearly other discussions on the phone or in person.

58The one consistent theme emanating from the texts is that the plaintiff was transferring the money to help the defendant with her debt. However, the real issue is whether these were gifts to help the defendant or loans to help the defendant. The defendant points to two texts in particular from the plaintiff supporting her claim that they were gifts:

W: I thought this like Christmas present money.

W: I have arranged so I can give you 16k for surgery. That makes 81 k in total. It is a lot of money. Live for a long time on that. That is all I can do now.

59The plaintiff explained the first text. He said that he thought that she needed money to buy Christmas presents. I agree that the text is capable of that interpretation. The plaintiff had no explanation for the second text. I agree that on its own this text makes the first $81,000 seems more like a gift. However, counsel for the plaintiff has properly pointed out that the defendant texted the plaintiff: “Don’t worry one day I’m going to have and then I’m going to help you with anything.” This supports the plaintiff’s position that when the defendant sold her house and had money, she would pay back the plaintiff.

60Counsel for the defendant has submitted that:

The Plaintiff seeks to characterize himself as an unsuspecting unsophisticated victim of a fraudulent relationship. This is not consistent with the fact that he is an educated businessman with substantial experience in giving loans and reviewing loan agreements. It also does not reflect the fact that these parties were in an intimate relationship for over six months which both parties believed would lead to a relationship of some permanence.

61I agree that, in general, the plaintiff was a sophisticated businessman. I also do not accept the plaintiff’s testimony that he was effectively tricked and lured into the relationship. However, whether the monies were loan or gifts they were not transferred to the defendant in the course of a regular business relationship. The parties had a brief but intense sexual relationship. Shortly after their first sexual encounter, the plaintiff transferred $5,000 to the defendant, and within two months, a total of $96,000. He testified that he was infatuated with the defendant. The texts support that assessment. It is equally as probable that he foolishly loaned her this money without terms and without security as it is that he foolishly gave her this money. I agree with counsel for the plaintiff that, overall, the texts are equivocal.

62Again, the onus is important. The defendant has not met her onus in establishing that the monies were gifts and that the plaintiff intended them to be gifts.

Conclusion

63The plaintiff’s claim against the defendant is allowed in the amount of $96,000 pre-judgment and post judgement interest in accordance with the Courts of Justice Act, R.S.O. 1990, C. 43. The plaintiff has two weeks from the release of this decision to provide me with his submissions with respect to costs and his bill of costs. The submissions shall be no longer than three pages. The defendant shall have two weeks to respond. Again, submissions shall not be longer than three pages.