Eskandari v. Rowshani-Zafaranloo

DATE: 20210813

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nazanin Eskandari, Applicant

and:

Shervin Rowshani-Zafaranloo, Respondent

BEFORE: M. Kraft, J.

COUNSEL: Elena E. Mazinani, for the Applicant

Herschel I. Fogelman, for the Respondent

HEARD: August 12, 2021.

Endorsement and reasons for order

Nature of the Motion

[1] The applicant, Nazanin Eskandari (“the wife”), brought a motion seeking leave to allow her to bring a motion prior to trial for an advance equalization payment of $100,000 or, alternatively, an order for interim costs of $100,000, pursuant to Rule 24(18) of the Family Law Rules (“FLRs”).

[2] The wife submits that she requires these funds to pay for: (a) Patricia Harris’ fees, the expert accountant the parties jointly retained, to finalize her valuation report of the respondent’s dental practices; (b) the cost to retain a neurologist and psychiatrist to provide expert medical reports regarding the wife’s inability to work, due to a diagnosis of Multiple Sclerosis (“MS”), depression and anxiety; and (c) her outstanding legal fees and ongoing legal fees to bring the case to trial.

[3] The only issue before the Court is whether leave should be granted to the wife to bring her motion for an advance of $100,000 or interim costs of $100,000.

[4] The respondent, Shervin Rowshani-Zafaranloo, (“the husband”) submits that the wife has failed to meet the threshold for leave and, accordingly, her motion should be dismissed.

Background Facts

[5] The parties began to cohabit in March 2013. They were married on March 23, 2015. They separated on March 1, 2018. There are no children of the marriage.

[6] The wife began this case on July 24, 2018. This case has a long, protracted history. To date, there have been over 23 case conferences and court appearances. There is a two-week trial scheduled to commence the week of February 22, 2022.

[7] The husband is a dentist and owned four dental practices on the date of separation. The wife has been diagnosed with Multiple Sclerosis and suffers from symptoms associated with this illness, as well as with depression and anxiety.

[8] The main issues in dispute are related to spousal support and property division, particularly, the valuation of the husband’s dental practices, and determination of his income.

[9] On June 29, 2021, the wife brought a motion seeking, among other things, that the husband make an advance equalization payment to the wife in the sum of $100,000 or that he pay her interim costs in the sum of $100,000 pursuant to Rule 24(18) of the Family Law Rules (“FLRs”).

[10] Faieta, J. heard the motion on June 29, 2021 and released Reasons for Decision on June 30, 2021 (“Faieta, J.’s Reasons”), in which he dismissed the wife’s motion for an advance equalization payment, because her evidentiary record was deficient. Specifically, Faieta, J. was not satisfied that the wife demonstrated need for the $100,000 advance equalization payment for the following reasons:

a) She failed to provide an estimated bill of costs outlining the amount of legal fees and disbursements for the anticipated remaining steps in this proceeding.[^1];

b) She failed to file an affidavit(s) outlining the amount she owes Ms. Harris, nor the estimated fees and disbursements.[^2]

c) She failed to file an affidavit(s) outlining the estimated fees and disbursements for an expert medical report and vocational assessment.[^3]

d) She failed to provide evidence of her current financial position. Instead of delivering a new financial statement, she filed an affidavit pursuant to Rule 13(12) to update her financial statement, sworn on June 17, 2020. Other than increased debt of $25,000 for legal fees, the wife deposed that there are no substantial changes to her financial statement. However, the wife failed to explain why her debt had not increased in accordance with her monthly expenses;[^4] and

e) She failed to provide evidence as to how she spent the monies advanced to her in the proceedings as at the date of her motion. The wife had received $96,583 from the proceeds of sale from the matrimonial home sale in August 2018, and a further $50,000 advance ($10,000 of which was paid to Fuller Landau on her behalf).[^5]

[11] Similarly, Faieta, J. dismissed the wife’s motion for interim costs in the sum of $100,000 for the following reasons:

a) She failed to provide sufficient evidence regarding the necessity and reasonableness of the fees and disbursements sought. Specifically, she failed to provide any evidence regarding the estimated fees and disbursements that can be anticipated to be incurred to trial.[^6]

b) She failed to provide evidence that her claims for an equalization payment and for spousal support will be meritorious.[^7]

c) She failed to obtain an expert’s report that addresses her claim that she is unable to work due to medical reasons, despite being ordered to do so one year ago.[^8]

[12] In addition to dismissing the wife’s motion for an advance equalization payment, Faieta, J. ordered the husband to comply with the terms of the parties’ jointly retained expert, Patricia Harris namely, to deliver appraisals of his dental practice within 30 days.

[13] On July 7, 2021, the parties attended Trial Management Conference before Shore, J., for the sole purpose of completing the Trial Scheduling Endorsement Form. Although the parties were not ready for trial, Shore, J, scheduled a trial of the matter to avoid further delay and made the following order:

i) The parties are to attend a settlement conference on October 27, 2021 at 2:00 p.m.;

ii) A ten-day trial has been scheduled to commence February 22, 2021;

iii) The parties are to attend a Trial management Conference on February 9, 2022, at 2:00 p.m.; and

iv) Neither party is to bring further motions before the court without first obtaining leave.

[14] On July 26, 2021, Shore, J, ordered that the wife was permitted to bring a motion on either August 3, 2021 or August 10, 2021, seeking leave to bring a motion for an advance equalization as per her earlier order, dated July 7, 2021.

[15] Again, the parties have jointly retained Patricia Harris of Fuller Landau LLP to complete a valuation report of the husband’s dental practices; an income report of the husband’s income for support purposes; and to prepare a critique report of Christine Larkin’s valuation report of the husband’s dental practices, dated October 18, 2018 and Ms. Larkin’s income report, dated December 17, 2018.

[16] Ms. Harris requires a $40,000 retainer, with each party to pay one-half the cost of same. The husband paid his share of Ms. Harris’ retainer. The wife has not done so.

The Wife’s Position:

[17] According to the wife, she requires the advance of $100,000, or that the husband pay her interim costs and disbursements of $100,000, for three reasons:

a) To pay Ms. Harris’s retainer of $10,000 and ongoing fees;

b) To retain a neurologist and psychologist to prepare expert reports, to address her MS diagnosis which she received in 2005 and to opine on her depression and anxiety, both of which reports will address the wife’s inability to work. During the hearing of this motion, counsel for the wife made oral submissions that the cost of both expert reports will be about $30,000; and

c) She requires funds to pay her outstanding legal fees, as well as her ongoing fees until the trial of this matter is heard.

[18] The wife acknowledges that she brought this same motion before Faieta, J. on June 29^th^, 2021. She submits that if she does not receive an advance of her equalization payment in the sum of $100,000 or interim costs of $100,00, she will have no ability to advance her claims against the husband, or put her best foot forward at trial.

[19] In terms of what has changed between the date of the Faieta, J. motion and today, the wife submits that:

i) The parties now have a two-week trial scheduled for February 2022, not a one-week trial;

ii) Faieta, J. ordered Ms. Harris to complete the valuation report; and

iii) Costs of the trial can now be quantified.

Husband’s Position

[20] The husband’s position is that the wife has not met the test for leave to bring this family law motion and accordingly, her motion for leave ought to be dismissed.

[21] According to the husband, the wife has brought a motion for identical relief which was before the court on June 29, 2021 and dismissed. The fact that the trial of this matter has now been scheduled for 2 weeks is irrelevant.

[22] Justice Faieta dismissed the wife’s motion for a variety of reasons. It was open to the wife to have sought leave to appeal the decision of Faieta, J., dated June 30, 2021. She chose not to do so.

Analysis

[23] The test the wife must meet to persuade the court to exercise its discretion to grant her leave to bring a motion for an advance of $100,000 or interim costs of $100,000 is a two-fold test:

i) Does she have an arguable case on the merits – a prima facie case for the relief she intends to seek if leave is granted; and

ii) Can the court be assured, with or without terms, that allowing the wife to bring her motion for an advance/interim costs will not result in an abuse of process?[^9]

[24] In Ludmer v. Ludmer[^10], the court articulated that someone cannot have an arguable case on the merits, (the first part of the test for leave), where he/she is bringing a motion for relief which had earlier been denied by the court if:

iii) there has been no change in circumstance since the first motion;

iv) the moving party does not address why initial motion judge’s decision should not be given deference; and

v) the necessary factual foundation to support the proposed motion does not exist.

[25] I agree with Mesbur, J.’s reasoning in Ludmer v. Ludmer, that the party seeking leave to bring a motion where the relief has already been denied by the court, has a higher burden to demonstrate the factual foundation to support the relief sought on the motion. In para. 25 of Ludmer, Mesbur, J. stated:

“ the question is whether intervening events have changed the legal landscape to sufficiently support the wife’s motions. In the particular circumstances of his case, where similar motions have already been denied, it seems to me the wife has a higher burden to show the necessary factual foundation to support her motions. She is not precluded from bringing the motions; she must meet the higher burden I have articulated.

[26] In dismissing the wife’s motion for an advance of $100,000 and interim costs of $100,000, Faieta, J. found that the wife’s case was not meritorious. The wife did not appeal.

[27] I give Faieta, J.’s reasons significant deference and I am asked now to consider whether there have been sufficient changes since June 21, 2021, to militate in favour of a different result now.

[28] To address this issue, it is necessary to review the wife’s evidentiary burdens.

Has the wife now demonstrated that her claim is meritorious?

[29] Has anything changed since Faieta, J. dismissed the wife’s claims for an advance equalization and for interim costs? In other words, has the wife now established the necessary evidentiary framework to show, on the balance of probabilities, that her claim is meritorious? The husband suggests that the answer is no. I agree.

[30] In his Reasons, Faieta, J. set out that the test for an advance equalization payment, has been identified as the Zagdanski factors, arising from the decision of Zagdanski v. Zagdanksi, (2001), 2001 27981 (ON SC), 55 O.R. (3d) 6 (Ont. S.C.J.) where a partial equalization payment was advanced. The Zagdanski factors are:

a) There is little or no realistic chance that the amount of the contemplated advance will exceed the ultimate equalization amount;

b) There will, therefore, be some considerable degree of certainty about the right to, and likely minimum amount of an equalization payment;

c) There will be need, not necessarily in the sense of poverty, but a reasonable requirement for funds in advance of the final resolution of the equalization issue, including funds to enable the continued prosecution or defence of the action;

d) There may be other circumstances such that fairness requires some relief for the applicant: frequently, but not necessarily, there will have been den in the action, deliberate or otherwise, prejudicing the applicant by, for example, running of the cost.

[31] According to the wife, based on the business valuation reports prepared by the husband’s experts, his net family property statement shows that the wife is owed an equalization payment of $489,339.39. There is no dispute that the wife has already received advances that total about $150,000. The husband has advanced claims under s.5(6)(e) and (h) of the Family Law Act, given the short duration of the parties’ cohabitation. Paragraph 31 of the wife’s affidavit, sworn on August 4, 2021, is a replica of paragraph 12 of the wife’s responding affidavit, sworn on June 24, 2021, which was before Faieta, J. The wife did not attempt to put forward any new evidence to demonstrate how the husband’s s.5(6) claims have no merit. The same lack of information before Faieta, J. in this regard, exists on the record before me. In light of the lack of evidence on the record before me, I cannot find that there is no realistic chance that the amount of the advance of $100,00 will exceed the ultimate equalization payment owing by the husband to the wife.

[32] Again, Faieta, J. was not satisfied that the wife demonstrated need for $100,000 for a variety of reasons. Regrettably, these same reasons exist today, namely, that:

a) The wife has not provided a detailed estimate, or a bill of costs, outlining what her counsel anticipates her legal fees and disbursements will be to take this matter to trial. The wife’s affidavit, sworn on August 4, 2021, sets out that her counsel has advised her that the legal fees for the trial and the necessary attendances prior to the trial will cost at least $50,000. The case law is clear that in ordering an advance or interim costs, the court requires evidence with a degree of particularity, such as an affidavit from her counsel to tell the court how much the firm expects to spend in trial preparation, who will do the work, and at what hourly rate: Ludmer, at para. [61]. This evidence is clearly relevant and Faieta, J.’s reasons were clear that this information was lacking in the motion before him. It remains lacking in the record before me and it was clearly open to the wife to provide the court with this information. She did not do so;

b) While the wife did deliver a new financial statement, sworn on August 5, 2021, the information continued in this financial statement weakens her case for an advance of $100,000. The debt section of her financial statement evidence that the wife’s debts have decreased to $107,143, from $152,496.28 in her last financial statement, sworn on June 2, 2020 and the affidavit updating this financial statement. The wife provided no evidence as to how her debts have decreased by $45,000. Furthermore, it appears from the husband’s affidavit, sworn on August 6, 2021, the wife spent over $25,000 in discretionary expenses in the past year and over $3,500 since May 2021 on clothing, jewellery, and spa services, on her credit card. In addition, the jurat on the wife’s financial statement indicates that she swore her financial statement remotely from Dubai. She has provided no evidence to explain why she claims to require the sum of $100,000 as an advance or as interim costs to fund her litigation, while at the same she has been able to reduce her debts by close to $45,000, spend money on discretionary items and she has been able to afford to travel to Dubai. Accordingly, just as Faieta, J. stated in para. [28] of his Reasons that the wife’s financial position was unclear, her financial position remains unclear today. Her financial statement appears to say she owes an estimate of $30,000 to her lawyer, but it does not follow that, at the same time, she has reduced her debts by $45,000; and

c) The wife failed to account for how she spent the $96,583 she received from the matrimonial home proceeds, along with the $40,000 advance she received directly in her evidence before Faieta, J. In the wife’s responding affidavit, sworn on August 9, 2021, she deposes that “almost all of these funds went to payment of my legal fees in this litigation”. I would have thought that given Faieta, J.’s Reasons in which he clearly states the wife’s evidence before him was deficient in this regard, that the wife would have provided more detail to substantiate this claim, such as providing invoices received by her counsel, proof of payment and the source of funds she used to pay her legal fees to verify this point.

[33] In all of the circumstances, I do not find that the wife has established her need for the advance requested of $100,000. If anything, her debt has decreased.

[34] Based on the prior endorsements filed by both Faieta, J. and Goodman, J. in these proceedings, it is clear that there has been significant delay in this action, as a result of the positions take by the husband in his refusal to deliver the appraisals requested by Ms. Harris. Now that the trial of this matter has been schedule and Faieta, J. ordered the husband to produce the appraisals of his dental practice to Ms. Harris, there should be no further delay.

[35] In terms of the wife’s claim for interim costs of $100,000, pursuant to Rule 24(18) of the FLRs, the wife must demonstrate as follows:

a) That the disbursements are necessary and reasonable given the needs of the case and the funds available;

b) That he or she is incapable of funding the requested amounts; and

c) The claim or claims being advanced in the case must be meritorious as far as can be determined on the balance of probabilities at the time of the request for disbursements.

[36] I have already addressed the claims brought by the wife above. As Faieta, J. set out in his Reasons at paras. [34] – [35], the wife failed to provide sufficient evidence regarding the necessity and reasonableness of the fees and disbursements. There was no evidence put forward by the wife regarding the estimated fees and disbursements that can be anticipated to be incurred at trial,

[37] This remains the case on the record before me. The wife could have sworn an affidavit setting out the details and particulars as to what her counsel estimates her future legal costs will be with specificity as to house, lawyer’s rates, expected disbursements, research costs, etc. to take the matter to trial. She did not do so. The wife could have provided a Bill of Costs, as Faieta, J. pointed out in his Reasons, setting out what she owed her counsel. She did not do so. There is no evidence before the court as how much time her counsel expects to spend in trial preparation, who will do the work and at what hourly rates. This evidence ought to have been submitted by affidavit in the name of the wife, or another member of the wife’s law firm.

[38] Further, the wife ought to have produced some evidence from both the neurologist and psychiatrist/psychologist she deposes that she intends to retain to provide the court with an estimate as what each doctor estimates his/her costs would be to complete the medical reports the wife requires. In paragraph 28 of the wife’s affidavit, sworn on August 9, 2021, she deposes that she contacted two doctors to retain as experts, namely, a neurologist, Dr. David Gladstone and a psychiatrist, Dr. Esmail Arfai. She goes on to states that “she believes that the cost of the reports and the cost for these doctors to testify at trial will be approximately $30,000”. However, there is no foundation provided for this estimate. If the wife had been advised by either doctor as his/her hourly rate or expectation of the time he/she would need to spend on this engagement, the wife would have identified this in her affidavit. Instead, knowing that this critical information was missing from her evidence when this motion was before Faieta, J., the wife failed to rectify this in her evidence before me. The wife was ordered to obtain these medical expert reports over a year ago. She has had ample opportunity to consult with medical experts and find out what an estimate cost of a report should be. The wife’s position that she cannot provide the court with evidence as to the cost because she has not yet retained such experts is disingenuous. As is often the case, experts are asked to estimate the cost to prepare a trial ready report and routinely provide such estimates. This would have been far more helpful for the court, as opposed to the wife’s counsel’s statement in her oral submissions that she anticipates the cost will be about $30,000, on no evidentiary foundation.

[39] The jurisprudence is clear that the kind of evidence a court requires on a claim for interim costs is an outline as to how much time each expert expects his/her engaged will require; what such a report would require that time, etc. The wife bears the onus of showing what is necessary to proceed to trial, what it will likely cost, and why. She failed to do this before Faieta, J. She has failed to do this before me as well.

[40] The case law also demonstrates that motions for interim costs have been denied where this kind of particularity, such as a summary of the steps likely to be taken by counsel; a bill of costs and estimates of time for the steps needed to be taken before trial, was not provided. [^11].

[41] I agree with the husband that the facts in Ludmer are similar to this case. As articulated in the husband’s factum, in Ludmer, the wife’s revived motion for interim costs to fund her expert reports and legal fees was dismissed because a) The wife failed to meet the evidentiary burden in proving that her broader claims had more merit than when she argued the original motion; b) The wife’s “better evidence” did not even meet the basic evidentiary threshold; c) She had failed to provide sufficient information or explanation from her expert as to his proposed fees; d) She had failed to produce an affidavit from her counsel concerning when outstanding fees were incurred and for what services, nor how much the firm expects to spend in trial preparation including who will do what work, and at what hourly rates; and e) The wife had yet to commission any expert reports as of the date of the motion, despite being ordered to do so 6 months prior.[^12]

[42] In the case at bar, I find that there have been no intervening events between June 29, 2021, when this motion was before Faieta, J. and today when this motion was before me, that have changed the legal landscape sufficiently to support the wife’s motion.

[43] The wife submits that the change between the Faieta motion and the motion before me is the fact that a two-week trial has now been scheduled allowing the costs of the trial to be quantified. This is not, in my view, a change that changed the legal landscape sufficiently to support the wife’s motion, especially, since the wife did not take the necessary steps to outline how the costs of the trial have been quantified with any specificity or particularity.

[44] As stated by Mesbur, J. in Ludmer, the wife has a higher burden to show the necessary factual foundation to support her motions, given that her same motion was denied in July. She has not done so.

[45] I therefore conclude that the wife has not shown that she has an arguable case for bringing the proposed motion for an advance of $100,000 or interim costs of $100,00. The new evidence put forward in her affidavits, sworn on August 4^th^, 2021 and August 9^th^, 2021, respectively, along with her updated financial statement, sworn on August 5, 2021, do not show that she had a prima face case to obtain an order for interim costs or an advance.

Would the wife’s motion be an abuse of process?

[46] In Canceicao v. Abraham, supra, the case of Currie v. The Halton Police Service Board, 2003 7315, is referred to, which adopted the definition of abuse of process as follows:

“the doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute”.

[47] Canceicao v. Abraham also refers to Canam Enterprises Inc. v. Coles (2000) 8514, which was later approved by the Supreme Curt of Canada at 2002 SCC 63, in which Goudge, J.A. wrote, “one circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined”.

[48] On the basis of the evidence before me, I find that it would be an abuse of process for the wife’s motion for an advance/interim costs to be brought.

[49] However, if circumstances change and the wife can meet the evidentiary burden to seek interim costs before the trial of this matter, I do not believe that that would necessarily amount to an abuse of process.

Disposition

[50] For all of the above reasons, the wife’s motion for leave to bring a motion before trial for an advance of $100,000 or for interim costs of $100,000, is dismissed.

[51] The husband may make written submissions as to costs, of no mor than 3 pages, exclusive of Bill of Costs and Offers to Settle.

[52] The wife is not precluded from bringing a further motion for interim costs if she can do so on better and proper material with greater detail, supported by evidence and if she can demonstrate that she is incapable of funding these expenses herself.

M. Kraft, J.

Date Released: August 13, 2021

[^1]: Para. 27 of Faieta, J.’s Reasons. [^2]: Ibid. [^3]: Ibid. [^4]: Ibid, at para. 28. [^5]: Ibid, at para. 29. [^6]: Ibid, at para. 34. [^7]: Ibid, at para. 35. [^8]: Ibid. [^9]: Conceicao v. Abraham 2021 ONSC 2330 at para 5; Rubato. v. Sandoval, 2018 ONCJ 85, at para. [42]. [^10]: Ludmer v. Ludmer 2012 ONSC 4478 at paras 25 and 3 (“Ludmer”). [^11]: Pakka v. Nygard, 2002 CarswellOnt 3403 (S.C.J.); Root v. Root, 2008 CarswellOnt 3995 (S.C.J.); Gold v. Gold, [2009] O.J. No. 4000 (S.C.J.) [^12]: Ludmer v. Ludmer, 2012 ONSC 4478 at paras 50, 58, 60, 61 and 62.