NEWMARKET COURT FILE NO.: FC-18-57041-00
DATE: 20220127
SUPERIOR COURT OF JUSTICE – ONTARIO – FAMILY COURT
RE: Narges Norouzi, Applicant
AND:
Seyed Hossein Kaffash Bokharaei, Respondent
BEFORE: The Honourable Mr. Justice G.A. MacPherson
COUNSEL: E.E. Mazinani, Counsel for the Applicant
J.L. Feldman, Counsel for the Respondent
HEARD: January 26, 2022
ruling on motion
[1] The Applicant brings a motion requesting the following relief:
(a) sale of the matrimonial home known municipally as 135 Golf Club Court, Richmond Hill with the Applicant having control over the listing and sale process;
(b) an Order that 50% of the net sales proceeds from Golf Club Court be released to the Applicant with the remaining 50% of the sales proceeds placed in trust;
(c) an Order releasing 50% of the sales proceeds from the sale of 42 Charles Street East be released to the Applicant;
(d) an Order that 50% of the sales proceeds from the sale of 60 Firewood Drive be released to the Applicant;
(e) commencing February 1, 2022 and on the first day of each month thereafter, that the Respondent pay to the Applicant temporary spousal support in the amount of $3,412;
(f) an Order that the Respondent provide the disclosure contained in the Request for Information dated February 25, 2020;
(g) an Order that the outstanding disclosure from my Order dated August 31, 2020 be provided to the Applicant; and
(h) costs.
[2] The parties were married July 4, 2013.
[3] The date of separation is disputed.
[4] The Applicant states the date of separation is August 12, 2018 while the Respondent claims the true date of separation is October 26, 2017.
[5] The date of separation issue is scheduled to be heard during the May 2022 trial sittings for 1 day.
[6] The Applicant is 32 years old.
[7] The Respondent is 35 years old.
[8] Both parties now reside in California.
135 Gold Club Court
[9] The parties, prior to the commencement of the motion, indicated there was agreement on the sale of 135 Golf Club Court, Richmond Hill including the details of the sale. The consent is reflected in the Order section of this Ruling.
Release of Funds
[10] The parties, prior to the commencement of the motion, indicated there was agreement that each party receive $50,000 from the net proceeds of the sale of the Charles Street property and the Firwood property. The consent is reflected in the Order section of this Ruling.
Disclosure
[11] The Applicant seeks disclosure that she says has been outstanding for two years. The Respondent takes the position that it would be more cost effective to have the valuation date determined instead of providing disclosure for two possible valuation dates.
[12] Pursuant to the Endorsement of Justice Jarvis dated October 29, 2021, this matter was scheduled for a 1-day trial on the issue of the date of separation. The trial was to occur during the May 2022 trial sittings. In preparation for same, Justice Jarvis made Orders with filing deadlines for the trial.
[13] As discussed with counsel, earlier court dates have become available. Counsel agree that a trial in this matter on the issue of the date of separation shall occur, virtually, on March 31, 2022. Accordingly, new filing deadlines will be established and the matter shall proceed before me on February 24, 2022 at 11:30 to complete a Trial Scheduling Endorsement. These administrative dates including filing dates are reflected in the Order section of this Ruling.
[14] This case is not complicated. I offered to conduct a Settlement Conference before the trial date in March. The parties could benefit from a judicial opinion on the merits of the outstanding issues. Both parties agreed to attending a Settlement Conference. The date of the Settlement Conference is reflected in the Order section of this Ruling.
[15] The only matter proceeding today for argument is the Applicant’s request for a temporary spousal support Order.
Spousal Support
[16] The Applicant claims compensatory and non-compensatory spousal support entitlement.
[17] The Applicant states that she is entitled to compensatory spousal support. She states that as a result of the parties’ decision to move to California she finished her Ph.D. in 3 ½ years instead of 5 years. This, she states, forced her to accept a teaching track faculty position instead of a research track position or a job in the tech industry. The latter two, she states, would be more lucrative.
[18] The Respondent states that the Applicant obtained employment as a lecturer at the University of Santa Cruz in 2017, following her graduation. When she planned to move to California in September 2017, the Respondent did not have employment in California, however, he started looking for employment in California as well.
[19] The Applicant states that she is entitled to non-compensatory spousal support. The Applicant argues that her standard of living deteriorated since separation and she has additional debt. The Respondent, by contrast, she argues, maintains a similar or better standard of living. His investments have increased and his debts reduced since the parties separated.
[20] The Applicant currently earns an annual income of approximately $157,00 Canadian dollars.
[21] The Respondent earns an annual income of approximately $523,200 Canadian dollars. There may be other benefits to his employment including stock options.
[22] The Respondent argues that the Applicant is not entitled to spousal support. The Respondent argues that rather than being disadvantaged, the Applicant benefitted during the marriage as she obtained her Ph.D. at the University of Toronto during the marriage.
Analysis
[23] Section 15.2 of the Divorce Act states:
Spousal support order
15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.
Interim order
(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).
Terms and conditions
(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.
Factors
(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
Spousal misconduct
(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
Objectives of spousal support order
(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. 1997, c. 1, s. 2.
[24] The general principles guiding the exercise of the court's discretion when dealing with support pending trial were summarized by Penny J. in Knowles v. Lindstrom,[^1]
It is well-established that interim support motions are not intended to involve a detailed examination of the merits of the case. Nor is the court required to determine the extent to which either party suffered economic advantage or disadvantage as a result of the relationship or its breakdown. These tasks are for the trial judge. Orders for interim support are based on a triable or prima facie case. An order for interim support is in the nature of a “holding order” for the purpose of maintaining the accustomed lifestyle pending trial, Jarzebinski v. Jarzebinski, 2004 CarswellOnt 4600 (ONSC) at para. 36; Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689, 2012 CarswellOnt 14841 (ONSC) at para. 24.
[25] During submissions, the meaning of prima facie was discussed. Counsel for the Applicant argues that it is a lessor standard than balance of probabilities. Counsel for the Respondent argues that it is higher.
[26] Prima facie is defined in the Blacks Law Dictionary as: “At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary.” Accordingly, prima facie is a standard higher than balance of probabilities.
Compensatory Spousal Support
[27] The Applicant claims compensatory spousal support entitlement.
[28] Compensatory support arises from career dislocation; an economic disadvantage as a result of the roles adopted in the marriage; or when a spouse conferred a substantial career enhancement opportunity on the other spouse.
[29] The parties were married for 4 or 5 years (depending on the date of separation). This is a marriage of short duration. There were no children of the marriage.
[30] Both parties were students when they met. The Respondent obtained a Masters in Computer Science in 2012. The Applicant completed her studies during the marriage. Both parties were employed on the date of separation (regardless of whose date of separation prevails).
[31] In terms of the Applicant, she entered the marriage as a Masters’ student. The Applicant exited the marriage with a Ph.D. in computer engineering and, at the time of separation, was gainfully employed earning the equivalent of $157,000 Canadian dollars as a lecturer at Santa Cruz University.
[32] In terms of the move to the United States, the Applicant did not experience career dislocation. Following completion of her Ph.D., she commenced work in the United States.
[33] The Applicant argues that she had to complete her Ph.D. program early in order to move. She argues that her career prospects would have been better if she had taken 5 years to complete her Ph.D. It is pure speculation to assume that she would have better opportunities two years hence. I suppose she could argue that she would have made more money in an alternate field but it is not what she chose to do. The Applicant suffered no economic disadvantage as a result of the roles adopted during the marriage.
[34] The Applicant conferred no substantial career enhancement opportunities to the Respondent. After he completed his studies, the Respondent started working for Google in Toronto and he now works for Google in California. Indeed, in terms of career enhancements, the Applicant walked away from this relatively short marriage with a Ph.D., a full time position as a lecturer earning $157,000 per annum, and a significant equalization payment that has partially been provided to her.
[35] Accordingly, and for all of these reasons, the Applicant has not persuaded me that there is a prima facie case for compensatory spousal support.
Non-Compensatory Spousal Support
[36] Non-compensatory support arises whenever a lower income spouse experiences a significant drop in standard of living after the marriage breakdown.
[37] The Applicant commenced employment in the United States before the parties’ separated. She continues to work at that job. It pays well such that she is financially independent. The parties were able to accumulate equity in three properties during their marriage. That is a testament to their industriousness. The properties that the parties accumulated will be sold and an equalization payment made. The Applicant has not established, to my satisfaction, a prima facie case for non-compensatory support.
[38] The ultimate purpose of spousal support is to relieve any economic hardship that results from the marriage or its breakdown. In terms of needs and means, the Applicant earns $157,000 per annum and had, at the date of this motion, $160,000 in her bank accounts with another $50,000 on the way pursuant to this Order. She is 31 years old and is transitioning nicely from being a student. The evidence does not support the argument that she is in need of spousal support on a temporary basis. To the contrary, it took her 4 years post separation to advance this motion. A trial date on the date of separation will be heard March 31, 2022 with a trial on the remaining issues targeting the May 2022 trial sittings. This is not the time, based on the facts before me, to establish a temporary Order particularly when the issue of spousal support entitlement is a live issue which will, presumably, be determined 4 months hence.
Order
On Consent,
The parties shall forthwith jointly list and sell the property located at 135 Golf Club Court, Richmond Hill Ontario L4C 5E1 (hereinafter “Golf Club”).
The parties shall jointly retain the listing agent for the sale of Golf Club, namely, Daniel Dalaki, who shall consult with the parties to determine the listing price based on market evaluation for the area.
The parties’ real estate lawyer, namely, Zahra Ziaie, shall forthwith release to each of the Applicant and the Respondent, the sum of $50,000 held by her in trust to the credit of this matter.
The real estate lawyer, namely, Zahra Ziaie, shall direct and pay out the balance of funds remaining in trust, approximately $54,000, together with any accrued interest thereon, to the parties’ joint BMO account. These funds are to be applied solely against the shortfall each month prior to the sale and closing of the property municipally known as 135 gold Club Court, Richmond Hill, Ontario L4C 5E1.
The parties shall jointly retain Babak Vakili as their real estate lawyer for the closing of the sale of the Golf Club property.
On closing, the parties agree to direct their real estate lawyer to apply the gross proceeds of sale from Gold Club first to discharge all encumbrances, realty taxes, liabilities and mortgages registered against the property and more specifically the mortgage held by CIBC in the approximate amount of $1,100,000, in addition to any withholding taxes due and payable for property sold by non-residents of Canada.
Following payment of the accounts set out above, any net proceeds of sale from Golf Club shall be held in trust pending agreement or further court Order.
This matter shall return to a Settlement Conference before me on February 15, 2022 at 9:30. The parties shall respect and follow the page limits set out in the Notice to the Profession. The parties are not restricted in their number of exhibits.
This matter, if not resolved at the Settlement Conference, shall proceed to a 1-day trial on the sole issue of the date of separation. The trial shall commence March 31, 2022 at 9:30 a.m.
In preparation for the trial, the parties shall appear before me on February 24, 2022 at 11:30 a.m. to finalize a Trial Scheduling Endorsement Form (TSEF).
On or before February 16, 2022, the Applicant shall forward to the Respondent her proposed TSEF, in WORD format.
The Respondent shall complete those parts of the TSEF that pertain to his case and remit the TSEF to the Applicant’s lawyer by February 22, 2022.
On or before February 23, 2022, the parties shall provide to my judicial assistant (Nurit.Suzana@ontario.ca) the proposed TSEF.
All parts of the TSEF must be completed. Those about which there is a dispute between the parties can be left blank for discussion with, and completion by, the Court on February 24, 2022.
The Applicant shall forward to the judicial assistant on or before February 23, 2022 a draft proposed Joint Document Book Index and a draft Index for her Document Book containing those documents not referenced in the Joint Document Book Index, all of which shall have been provided to the Respondent by February 22, 2022.
The Respondent shall forward to the judicial assistant his proposed Document Book Index, if different from that of the Applicant, by February 23, 2022.
Not On Consent,
The Applicant’s motion for an Order of temporary spousal support is dismissed.
If the parties are unable to agree on the issue of costs of this motion, the issue will be addressed on February 24, 2022.
Justice G.A. MacPherson
Date: January 27, 2022
[^1]: Knowles v. Lindstrom, 2015 ONSC 1408