NEWMARKET COURT FILE NO.: CV-20-3195-00
DATE: 20221115
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Alireza Ghandchi
Applicant
– and –
Mohammad Kandi, in his capacity as Estate Trustee for the Estate of Faezeh Falsafi, Ahmad Falsafi, and Shafigheh Alahyari
Respondents
Rick Bickhram, for the Applicant
Robert Levesque, for the Respondents
Benjamin Arkin, for the Estate Trustee
HEARD: August 25, 2022
REASONS FOR DECISION ON APPLICATION FOR DIRECTIONS
Casullo J.
Overview
[1] This application has its origins in tragedy. On January 8, 2020, Faezeh Falsafi (“Faezeh”, or the “Deceased”), and the two children she shared with Alireza Ghandchi (“Alireza”, or the “Applicant”) were passengers on Ukraine International Flight 752 which was shot down by the Islamic Revolutionary Guard Corps. There were no survivors.
[2] Alireza seeks an order declaring that the divorce decree issued by the Republic of Iran on October 14, 2015 between himself and Faezeh is invalid, and he is still her spouse.
[3] The Respondents, Faezeh’s parents, submit that the divorce decree is valid.
Background
What the Parties Agree On
[4] Faezeh and Alireza were born in Iran. Both had undergraduate degrees in mechanical engineering, and met in 1995 while pursuing their master’s degrees at the Iran University of Science and Technology.
[5] The couple married in Tehran on April 25, 1998. Dorsa Ghandchi was born in 2003.
[6] Faezeh and Alireza built at least two businesses overseas, Novin Parsian Institute (“Novin”) and Tarh Andishavarn (“Tarh”) both of which provided education and training services to engineers.
[7] Faezeh and Alireza divorced on December 2, 2006.
[8] Faezeh and Alireza reconciled, and remarried on November 7, 2007. Daniel Ghandchi was born on April 13, 2011.
[9] In April 2014, the family received their permanent resident cards, and travelled to Canada in May 2014. In October 2014 they signed a one-year lease for a condominium in Toronto.
[10] Over the next few years they made a number of trips back and forth between Canada and Iran. These visits included extended stays in Tehran, where their families, business interests, and matrimonial home, remained.
[11] In August 2015, while the family was in Tehran, there was an altercation when Alireza went to Faezeh’s father’s home to look for documents he claims were hidden there. A fight ensued, which became physical, and furniture was destroyed (the “Incident”). As a result, Alireza was convicted of battery and ordered to pay a fine.
[12] Shortly after the Incident Faezeh and Alireza divorced again, on October 14, 2015.
[13] On August 30, 2018, Faezeh bought a home at 122 Silver Maple Drive in Richmond Hill, Ontario (“Silver Maple”). Before purchasing Silver Maple, Faezeh and the children were living at 301 Gells Road in Richmond Hill, Ontario.
[14] Faezeh obtained her realtor’s license, and worked at Homelife Bayview from 2016 to her death.
Where the Parties Diverge
Alireza’s Account
[15] In his first affidavit sworn October 14, 2020, Alireza said he and Faezeh divorced in 2015 for “financial and economic reasons when immigrating to Canada.”
[16] In his second affidavit sworn September 23, 2021, Alireza clarified that the cause of the divorce was the bankruptcy of the Samen Al-Hojaj Financial Institute (“Samen”) in September 2014. This bankruptcy caused problems for Novin, as its employees were paid from the company’s Samen account. The bankruptcy meant there was no money to pay the employees.
[17] Following its bankruptcy Samen introduced a solution to account holders, whereby it would pay a lump sum of money to each family with an account at Samen. As a married couple, this single lump sum amount would not sustain Novin as a business. If Faezeh and Alireza divorced, however, they could double their recovery, and Novin could pay its employees. Thus, the second divorce was purely a business decision to help keep Novin afloat, and the Incident had no bearing on his and Faezeh’s decision to divorce. As Alireza deposes in his September 23, 2022, affidavit:
[T]he Deceased and I declared ourselves divorced in order to receive a bigger payout from [the] Iranian financial institution.
[18] Alireza states that following their move to Canada, he and Faezeh decided he would travel back and forth to Iran to run the business and generate income. They maintained this balance until 2017, when Alireza decided to spend more time in Canada and pursue his engineering career.
[19] In addition to Silver Maple, he and Faezeh owned two other properties in Canada: 136 Sundew Drive in Barrie (purchased April 6, 2017), and a condominium at 9199 Yonge Street in Richmond Hill (purchased December 20, 2019).
[20] Alireza states that despite the Iranian divorce, he and Faezeh remained a happily married couple up to her death, and his permanent home was always with her and the children.
[21] Alireza has provided affidavits from three friends to validate that he and Faezeh were a couple. Zohreh Mahinfallah showed Faezeh and Alireza a number of properties when they first came to Canada in 2014 and were looking for somewhere to live. Zohreh thought Alireza and Faezeh were hardworking and supportive of one another, and were focussed on giving their children a good life.
[22] Mostafa Shojaiee met the couple in October 2016. He visited them on many occasions and what he saw was a couple with a strong bond.
[23] The third affiant, Ali Asghar Mohsenipour, met Alireza and Faezeh when they moved next door to him in the autumn of 2018, and became friends with them in 2019. Like the other two affiants, Mr. Mohsenipour felt the couple had a strong bond, and that they enjoyed spending time with their children. He said Alireza spent “a great deal of time away from Richmond Hill” for work, but he stayed with Faezeh and the children when he had the opportunity.
The Respondents’ Account
[24] This information is provided by way of the sworn affidavit of Ahmad Falsafi, Faezeh’s brother.
[25] The Respondents submit it was the Incident, and not Samen’s bankruptcy and subsequent offer to pay a lump sum to each account holder, that was the impetus behind the 2015 divorce.
[26] Faezeh had returned to Tehran on June 2, 2015, and was living at the matrimonial home for two months with the children, when Alireza kicked her and Dorsa out. Faezeh and Dorsa went to live with Faezeh’s parents.
[27] On August 8, 2015, while the parents were vising with Ahmad, Alireza forced his way into their home, broke furniture and removed documents. In the ensuing scuffle both Faezeh and Dorsa were hurt. Ahmad saw bruises on Faezeh’s neck and cuts on her forearm. These injuries were confirmed by the Tehran Forensic Medicine Department.
[28] Faezeh filed a complaint with the police. A certified translation, included in the Responding Motion Record, read in part:
I, Faezeh Falsafi, have lived with my husband, Alireza Ghandchi, for longer than fifteen years. We have two children of 4 and 13. Some days ago my husband kicked me out of home and I moved to my father’s home. I have not met my son of 4 for around one week. On 8 Aug 2015, at 7:30 a.m., he entered the home by force after breaking doorlocks. He slapped me, wrapped a towel around my head, pressed my neck, tied my hands with wire, and injured my hands. My daughter of 13 was also beaten and her mouth was tightly tied as she wanted to approach. He threatened us and broke furniture of the home of my retired father of 73.
[29] Faezeh and Alireza’s case was referred to the Social Work Affairs and Consultation Department. This agency’s role was to determine whether reconciliation is possible in situations of domestic disputes. Both Faezeh and Alireza stated that reconciliation was not possible.
[30] The Respondents retained an expert to provide evidence concerning the nature of divorces in Iran. Seyed Ali Moharjeri explained there are two types of divorce under Iranian law: divorce initiated by the husband, which is revocable at the husband’s will. The other, a “khul’a” divorce, is initiated by the wife, and prevents the husband from revoking the divorce. Both types can be opposed or on consent. The 2015 divorce was a ”khul’a” divorce, initiated by Faezeh and irrevocable by Alireza. Both Faezeh and Alireza consented to this form of divorce.
[31] A certified copy of the petition for the divorce, appended to Ahmad’s supplementary affidavit affirmed March 31, 2022, states Faezeh and Alireza were asking for a divorce because of a “disagreement”, and that there was no desire to continue their common married life.
[32] The Iranian Court issued a Judgment granting the divorce on October 14, 2015. A certified copy of the Judgment was provided to the court, which reads in part:
Given the agreement between the parties for a divorce and given the fact that the reconciliation efforts of the court were of no success, the court made an order for referring the issue to the counselling unit. Despite their best efforts, the counselors were unable to bring about a conflict resolution, thereby submitting their opinion to the court in writing. Inasmuch as the couple themselves is insisting on divorce, the following is agreed upon:
1 – The wife has received her marriage portion in its entirety and she gifted the husband IRR 10,000 in return for a divorce, and the husband accepted the gift. 2 – The wife makes no claim for spousal support and alimony.
According, with due regards to the above, the court hereby issues the non-compatibility certificate in accordance with articles 24 and 26 of Family Protection Act, and articles 1144 and 1146 o the civil law. The parties can apply to an official Divorce Commissioner office for a divorce with this certificate. All official divorce commissioner offices are authorized to register and commission divorce as abovementioned. Also, official Divorce Commissioner Office is obliged to observe Article 31 of Family Protection Act 2012. This judgment has been issued in the presence of the parties and can be appealed within twenty days in Tehran courts of appeal.
This Judgment was declared to the parties, who stated that they have no objection and they waive the right to appeal. Whereas, the parties waived the right to appeal, this judgment is final.
[33] The divorce was formally registered on October 19, 2015.
[34] The divorce is still valid in Iran. Alireza has taken no steps to have it declared invalid there.
[35] Ahmad deposes that after the 2015 divorce, Faezeh and the children left Iran for Canada to build a new life.
[36] To counter the affidavits provided by friends of the Applicant which depict Faezeh and Alireza as a happily married couple, the Respondents provided four affidavits to support their position that Faezeh and Alireza were divorced and living very separate lives when Faezeh died.
[37] Ms. Forough Adim Naghouni rented a room from Faezeh at Gells Road for three months (June to August, 2017). Ms. Naghouni deposed that during this period, the only persons living at Gells Road were herself, Faezeh, and the two children. Ms. Naghouni did see Alireza on two occasions while she lived there, when he visited with the children but did not stay the night.
[38] Faezeh’s mother, Shafigheh Alahyari, attested to the period of time she and her husband, Faezeh’s father, visited Faezeh and the children from October 2017 to January 2018. According to Ms. Alahyari, Alireza was not living at Gells Road. When he was at the home, it was to pick up the children.
[39] Sarah Valliant was a friend of Faezeh’s who also lived on Silver Maple Road. Ms. Valliant’s evidence is that between August 2018 (when Faezeh bought Silver Maple) to Faezeh’s death, she was at Silver Maple socially at least 20 times. During this time, Ms. Valliant saw Alireza only once, when he dropped Daniel off after a visit.
[40] Ms. Forough Arjaveh also knew Faezeh, first as her realtor in 2016, then as a friend. Ms. Arjaveh only knew Faezeh as a single mother. At events hosted by Faezeh that Ms. Arjaveh attended, either at Gells Road or Silver Maple, there would be friends and family in attendance, but never Alireza.
[41] Ms. Arjaveh looked after the family cat while Faezeh and the children travelled to Iran. It was only after their deaths that Ms. Arjaveh finally met Alireza, when he helped her find a permanent home for the cat.
Additional Evidence
[42] On the Charge documents registering each of the three mortgaged properties on title, both Faezeh and Alireza indicated that they were “not a spouse.”
[43] Both Faezeh and Alireza filed their Canadian tax returns on the basis that they were “divorced.”
[44] Alireza did produce one document, Daniel’s Index Card from school, which listed Maple Ridge as his residence.
[45] The divorce petition in 2015 listed separate addresses for Faezeh and Alireza in Tehran.
[46] At the time of their divorce, Faezeh’s assets in Iran included the following:
• her partnership in Novin, which she co-owned with Alireza;
• a 50% interest in the matrimonial home, which she co-owned with Alireza;
• a 50% interest in three floors in a commercial building that housed Novin, which she co-owned with Alireza; and
• a 50% interest in a cottage property in Noshahr, which she co-owned with her mother.
[47] In 2016, Faezeh appointed her father as her power of attorney over her Iranian assets.
[48] At the time of her death, all of Faezeh’s bank accounts were held in her name only, save and except for two accounts she held with her children.
[49] There is litigation in Tehran to determine how Faezeh’s estate is to be distributed – whether they are to pass solely to her parents, or whether Alireza is entitled to a share.
[50] Notably, in that litigation Alireza does not take the position that he and Faezeh remained married at the time of her death, nor that the divorce was invalid. Instead, he submits that Dorsa and Daniel inherited Faezeh’s assets upon her death, and that he is entitled to said assets on their death.
Issues
Is the 2015 divorce valid or invalid in Ontario?
If the 2015 divorce is valid, is Alireza a dependant of Faezeh, such that he is entitled to dependent support?
Law and Analysis
Issue One
[51] The Divorce Act, R.S.C., 1985, c. 3. (2nd Supp.) governs foreign divorces in the following prescribed manner:
Recognition of foreign divorce
22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.
Recognition of foreign divorce
(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.
Other recognition rules preserved
(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act
[52] Faezeh and Alireza were not habitually resident in Iran for the year immediately preceding the commencement of divorce proceedings, and the divorce was not granted on the basis of Faezeh’s domicile of the granting authority. Accordingly, the question of whether the divorce was valid falls to be determined under s. 22(3). Here, the common law creates a presumption that a foreign divorce is valid.
[53] Under subsection (3), the courts will recognize a foreign divorce in the following circumstances:
a) where the jurisdiction was assumed on the basis of the domicile of the spouses;
b) where the foreign divorce, though granted on a non-domiciliary jurisdictional basis, is recognized by the law of the domicile of the parties;
c) where the foreign jurisdictional rule corresponds to the Canadian jurisdictional rule in divorce proceedings;
d) where the circumstances of the foreign jurisdiction would have conferred jurisdiction on a Canadian court had they occurred in Canada;
e) where the petitioner or Respondent had a real and substantial connection with the foreign jurisdiction wherein the divorce was granted, or
f) where the foreign divorce is recognized in another foreign jurisdiction with which the petition or Respondent has a real and substantial connection.
Al Sabki v. Al Jajeh, 2019 ONSC 6394, 148 O.R. (3d) 741, at para. 14.
[54] In Beals v. Saldanha, 2003 SCC 72, [2003] 3 S.C.R. 416, at para. 32, the Supreme Court of Canada discussed the concept of a real and substantial connection to the granting jurisdiction:
The “real and substantial connection” test requires that a significant connection exist between the cause of action and the foreign court. Furthermore, a defendant can reasonably be brought within the embrace of a foreign jurisdiction’s law where he or she has participated in something of significance or was actively involved in that foreign jurisdiction. A fleeting or relatively unimportant connection will not be enough to give a foreign court jurisdiction. The connection to the foreign jurisdiction must be a substantial one.
[55] The primary thrust of this application is the “real and substantial connection” test. Alireza agrees it could be argued that both he and Faezeh had “a” connection to Iran, given that they actively ran their businesses there, and visited often to stay with family members.
[56] However, he asserts that these factors do not create a “substantial” connection. Many individuals have families who remain in the country in which they grew up. And many carry on businesses and maintain investments in foreign countries. Alireza finds support for his position in Al Sabki, where at para. 36 Justice Audet disagreed that “the fact that parties were born, raised and married in a country satisfies the ‘real and substantial connection’ test.” However, Alireza neglected to cite the balance of the sentence, which provides context to Justice Audet’s finding: “…when, as here, these parties have not resided in that country or had any active involvement therein for almost 20 years.” That is clearly not the case here.
[57] The real and substantial connection test requires that the party seeking to uphold the foreign divorce to have participated in something meaningful, or to have been actively involved in the granting jurisdiction.
[58] I can conceive of no better set of circumstances pointing to a “real and substantial connection” to the granting jurisdiction than here:
• Faezeh and Alireza were born in Iran
• Faezeh and Alireza were raised in Iran
• Faezeh and Alireza were educated in Iran
• Faezeh and Alireza were married twice in Iran
• Faezeh and Alireza were divorced twice in Iran
• Their families remained in Iran
• Faezeh and Alireza travelled between the two countries fluidly after immigrating to Canada
• Faezeh and Alireza operated not one, but two, successful businesses in Iran
• Faezeh and Alireza owned a matrimonial home in Iran
• Faezeh had ownership in a separate property in Iran
• Faezeh had bank accounts in Iran
• Faezeh had a power of attorney in Iran
[59] It may also be the case that Alireza has bank accounts in Iran. He may even own property there as well, beyond what is listed above. This evidence was not before me, for reasons set out more clearly below.
[60] I have no hesitation in finding that the parties had a real and substantial connection to Iran when the divorce was granted.
[61] I pause here to note Alireza’s submissions concerning alternate grounds upon which a Canadian court will decline to recognize a foreign divorce, in particular “where there is evidence of fraud going to the jurisdiction of the granting authority”: see Antonyuk v. Antonyuk, 2020 ONSC 644, at para. 59.
[62] In this line of argument, Alireza submits that his (and ostensibly Faezeh’s) conspiracy to defraud Samen to double their recovery on the payout was duplicitous, equates to fraud, and should prevent this court for recognizing the divorce.
[63] The irony here is palpable. Alireza is telling the court he is prepared to lie when the situation will benefit him.
[64] Based on the evidence before me, including but not limited to the Incident, the information contained in the Iranian Judgment, the separate home ownership in Canada, and their Canadian tax returns listing their status as “divorced,” I am satisfied the second divorce came to pass because Faezeh and Alireza’s relationship had run its course. Samen’s bankruptcy was simply a ruse to bolster Alireza’s position before this court.
[65] I make one further note in respect of the seven affidavits produced by friends of Faezeh and Alireza. Counsel for each side emphasized the fact that the opposing affiants had not been cross-examined. In turn, I cannot emphasize enough that the seven affidavits had zero effect on the outcome. How could they? Their information was diametrically opposed. Alireza’s friends painted a picture of a happy marriage. Faezeh’s friends painted a picture of a single mother. Without cross examinations to flesh out weaknesses and address credibility, the affidavits were of no value, and a waste of not only court time, but of their respective clients’ finances.
Issue Two
[66] In the event the divorce is valid, Alireza seeks alternative relief in the form of dependent relief. However, Alireza has provided no evidence in support of his claim, and no submissions were made during the hearing. Instead, in his factum Alireza advised the court, and the Respondents for the first time, that he seeks “further directions in respect of his dependant relief claim.” Given that there is no evidence in support of his dependent relief claim, the directions would address whether he be permitted to deliver further affidavit evidence.
[67] I believe the failure to provide evidence for this hearing was a conscious one. I surmise the evidence would have shown Faezeh and Alireza were not a happily married couple as Alireza submits, but instead a divorced couple working in concert to raise their two children, as the Respondents have argued.
[68] The Respondents submit that by seeking a second hearing for the dependent relief claim, Alireza is trying to split his case. Leave to deliver further evidence should be denied pursuant to r. 39.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, because cross-examinations have begun. Indeed, all but Alireza thought cross-examinations were complete.
[69] In Brock Home Improvement Products Inc. v. Corcoran (2002), 2002 CanLII 49425 (ON SC), 58 O.R. (3d) 722 (ON SC), Justice Stinson held, at para. 8:
Rule 39.02(1) and (2) are an important and integral part of the procedural code governing the conduct of motions and applications. These rules are designed to place finite limits on the evidentiary element of those proceedings, an element that is all-too frequently time-consuming, expensive and drawn-out. These rules oblige the parties to consider the issues and to put all relevant evidence forward before embarking upon cross-examination of the opposite party's witnesses. This is the approach mandated by the rules to achieve the "just, most expeditious and least expensive determination" of motions and applications. Consistent with that approach, it is only in exceptional cases that should resort should be had to rule 39.02(2).
[70] The parties appeared before the court on three separate occasions to seek directions and establish a timetable, the first time on January 20, 2021. Cross-examinations of Alireza and Ahmad took place on April 5, 2022, and April 13, 2022, respectively.
[71] On April 22, 2022, a further timetable was put in place to allow Alireza to respond to affidavits from the Respondents (which were in response to issues raised on cross-examination that were not foreseen), and permit further cross-examinations, if required. A full day was set aside for the hearing of this application.
[72] At no time during any of these appearances did Alireza advise the court, or the Respondents, of his intention to split his application into two separate hearings. There has been no order permitting Alireza to split his case into two separate hearings.
[73] Alireza submits that the dependent relief claim is not a second installment of his case, but rather a different chapter. The claim for dependant relief is a completely different entity, plead in the alternative, and requires evidence that is distinct from that filed in respect of the divorce decree.
[74] In Skrobacky v. Frymer, 2011 ONSC 3295, at para. 12, the court set out the factors to consider when deciding whether to permit further evidence:
a. Is the evidence relevant?
b. Does the evidence respond to something raised on cross-examination?
c. Will granting leave result in non-compensable prejudice?
d. Is there a satisfactory explanation for not presenting the evidence at the outset?
Relevance of the Evidence
[75] I agree the evidence would be relevant.
Responsiveness of the Evidence
[76] The evidence is not in response to an issue raised on cross-examination, or to issues not reasonably contemplated or foreseen. The evidence is in support of the application as initially framed on November 6, 2020.
Prejudice
[77] In Skrobacky, the court held that permitting fresh evidence to be produced for the purpose of splitting one’s case creates prejudice that is non-compensable: see paras. 18-19.
[78] The prejudice to the Respondents if Alireza were permitted to deliver further evidence is evident. Mr. Levesque advises that Faezeh’s Canadian estate is modest, and limited to the equity in Silver Maple. Litigation costs thus far for both parties comes in at about $200,000. Permitting the litigation to continue will entail further affidavits, further responding material, further cross-examinations, and ultimately more time and cost to the parties.
Explanation
[79] Alireza has provided no satisfactory explanation for not including the evidence. As noted above, I find he made a strategic decision to exclude the evidence, as it would support the Respondents’ position.
[80] It was incumbent on Alireza to file all of the evidence he intended to rely upon for his application, for both the divorce’s validity, and his dependent relief claim, prior to the hearing of the application.
[81] In Catalyst Fund Partnership II v. IMAX Corp., 2008 CanLII 8778 (ON SC), Justice Pepall stated at para. 14: "Rule 39.02 is there for a reason. It imports principles of fairness and economy.”
[82] To allow Alireza to now make his alternate argument would not be fair. It would not secure the just, most expeditious and least expensive determination of the issues on the application. Nor would it be in the interests of justice, and it would be contrary to the principle that the courts should avoid an endless exchange of affidavits and cross-examinations. There must be closure to the evidence gathering process.
[83] I have the utmost compassion for Alireza and the unimaginable loss he sustained on January 8, 2020. While dismissing his dependent support claim may seem a harsh result, I find comfort in the fact that on the evidence that was before me, I saw nothing that would suggest Alireza was in any way dependent on Faezeh. They owned separate homes, held solely in their own names. They did not share joint bank accounts. There was no evidence of transfers of wealth from Faezeh to Alireza. Alireza has built a career as an engineer in Canada, and is gainfully employed. The couple’s two businesses in Iran may still be operable.
[84] Alireza’s request for leave to adduce further evidence, had it been sought, would be denied, and his claim for dependent relief is dismissed.
Conclusion
[85] The application is dismissed in its entirety.
Costs
[86] If counsel cannot agree on costs, I will receive written submissions on a 7-day turnaround, commencing with the Respondents, followed by responding submissions by the Applicant, then reply submissions from the Respondents, if any, commencing 14 days from the date of release of these reasons. Cost submissions shall be no more than 3 pages in length (14 pt. font size, regular 1 inch margins, 1.5 spacing), exclusive of any costs outline or offers to settle. All costs submissions shall be delivered via email through my assistant at BarrieJudSec@ontario.ca.
[87] If no submissions are received within 21 days from the above date, the issue of costs will be deemed to have been settled between the parties.
CASULLO J.
Released: November 15, 2022