Court File and Parties
COURT FILE NO.: FS-22-00032848 DATE: 20230519 ONTARIO SUPERIOR COURT OF JUSTICE
RE: Farhad Vali-Farhad, Applicant -and- Orchideh Haeri, Respondent
BEFORE: FL Myers J
COUNSEL: Ash Mazinani, for the applicant Sheila C. MacKinnon, for the respondent
HEARD: May 18, 2023
Endorsement
The Motion and Outcome
1The respondent mother Ms. Haeri moves for temporary spousal and child support. The applicant father Mr. Vali-Farhad is not paying spousal support and only commenced paying child support recently. Ms. Haeri also seeks an order for further disclosure.
2In her argument in support of the motion, Ms. Haeri relies principally on Shirley’s Fallacy. Shirley’s Fallacy postulates that where an argument lacks intrinsic and extrinsic support, the adverbs “surely” or “clearly” may be employed at the beginning of a submission to suggest that the outcome is obvious when the opposite is true.
3There is no evidence at all before me as to the state of disclosure between the parties. The evidence relied upon by Ms. Haeri in support of her requests for spousal support does not provide a basis for interim spousal support. The evidence for child support yields less than the applicant already pays. Hence the Ms. Haeri’s principal submission that she is “clearly” entitled to support appears to be fallacious as it is bereft of evidentiary justification.
The Legal Test
4Both counsel accept that the decision of Harvison Young J (as she then was) in Politis v Politis, 2015 ONSC 5997, summarizes well the prevailing law:
1 On Applications for interim, the applicant’s needs and the Respondent’s ability to pay assume greater significance;
2 An interim Support order should be sufficient to allow the applicant to continue living at the same standard of living enjoyed prior to separation if the Payor’s ability to pay warrants it;
3 On interim Support Applications, the court does not embark on an in-depth analysis of the parties’ circumstances which is better left to trial. The court achieves rough justice at best;
4 The courts should not unduly emphasize any one of the statutory considerations above others;
5On interim Applications, the need to achieve economic self-sufficiency is often of less significance;
6Interim support should be ordered within the range suggested by the SSAGs unless exceptional circumstances indicate otherwise.
7Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out; and
8Where there is a need to resolve contested issues of fact, especially those connected to a threshold issue, such as entitlement, it becomes less advisable to order interim support.
5The goal here is to do a measure of affordable, efficient, rough justice to tide the parties through to the trial. I am not trying to determine what the likely outcome of a trial will be. That is for the trial judge on a full evidentiary record.
6Interim motions for support can be brought before disclosure is complete and before any questioning has been undertaken. The evidence is necessarily incomplete at this stage. A full evidentiary base does not yet exist. Moreover, requiring it would lead the parties into expensive interlocutory motion practice that could cause unnecessary expense and delay.
7If an interim award turns out to have been too high or too law, the difference can usually be made up at trial.
8But interim relief is not random. It has to be based on something. Otherwise the law would be arbitrary.
9Justice Harvison Young found that in order to be entitled to interim relief, a moving party should adduce evidence that amounts to a prima facie basis for support. Far from proving entitlement to support, at this early stage the moving party need show only that she has a good arguable or non-frivolous case. But, where the facts on which a party relies are contested, especially in relation to threshold issues, an order interim support is less advisable.
Ms. Haeri’s Evidence in Chief
10The parties married in 1993. They have two children aged 12 and 15 respectively. The parties both worked throughout their marriage except Ms. Haeri stayed home for a year after the birth of each of the children.
11Mr. Vali-Farhad always earned more than Ms. Haeri.
12Since November 1, 2020, the children have been with Mr. Vali-Farhad from Thursday after school until Sunday afternoon. Ms. Haeri has them for four days and nights of the week (57%) while Mr. Vali-Farhad has them for three (43%).
13Ms. Haeri testifies:
The Applicant has demonstrated serious anger issues mixed with depression and alcoholism for many years. The applicant regularly puts me down; he demonstrated severe jealousy and relentlessly accused me of suffering from a mental illness. I made several attempts to leave the marriage without success until we finally separated on October 31, 2020.
On January 3, 2016, when the applicant was in a drug and alcohol infused rage, I slapped him in the face. I was arrested for assault and this charge was withdrawn at the request of the Crown on March 4, 2016.
The children have been exposed to the domestic violence and coercive controlling tactics used by the Applicant against me.
14Ms. Haeri testifies that the parties separated from January, 2016 until October, 2017 after which she says Mr. Vali-Farhad “returned to reside in the matrimonial home with me and the children all together until our final separation on October 31, 2020.”
15Ms. Haeri gives evidence that Mr. Vali-Farhad has enjoyed the following incomes:
- 2019 $614,876
- 2020 $325,397
- 2021 $380,656
- 2022 $381,195
16She then testifies that “curiously”, Mr. Vali-Farhad chose to decrease his income by changing jobs in April, 2022. His new job pays $250,000 and he received a $20,000 signing bonus.
17Ms. Haeri’s income history is as follows:
- 2019 $145,018
- 2020 $143,418
- 2021 $120,104
- 2022 $114,043
18In her affidavit in support of this motion, Ms. Haeri says that she works as an independent contractor. She was unable to find work this year until March. She does not say what she makes this year. But she exhibited invoices and receipts averaging over $3,500 per week. That would yield something around $180,000 annually.
19In her financial statement dated May 5, 2023, sworn contemporaneously with her lead affidavit on this motion, Ms. Haeri swears that her total annual income is $164,814.12. At the motion hearing her counsel submitted that it is $123,000.
20Ms. Haeri testifies that she has not been able to contribute to her RRSP. She rents a two-bedroom apartment. Mr. Vali-Farhad shares a four-bedroom apartment with his new spouse.
21Ms. Haeri testifies that she has had to borrow from her friend Mr. Zhou a total of $117,000. When asked for documentary proof of the loan advance, she responded that the loan has been advanced in monthly amounts paid by her friend directly to Ms. Haeri’s landlord.
22Ms. Haeri says she recently repaid $30,000 of her loan to Mr. Zhou. She also took one of the children on a trip to the Philippines for $10,000 to attend the wedding of a former nanny.
Ms. Haeri’s Submissions
23Ms. Haeri does not seek compensatory support. She does not claim she made any financial sacrifice over the course of the parties’ relationship.
24Counsel submits says that with a 27-year marriage, a former spouse who earns more than her, and her current need to borrow, clearly, Ms. Haeri is entitled to support “to continue living at the same standard of living enjoyed prior to separation”.
25Before dealing with Mr. Vali-Farhad’s response, I simply note that there is not a hint of evidence that Ms. Haeri’s standard of living has changed. I am asked to infer this from the disparity in the parties’ incomes, the fact that she is in a two-bedroom place while he has four bedrooms, and her borrowing from Mr. Zhou. But without any indication of how she lived before separation and given her current sworn annual income of at least $164,000, I cannot infer that her standard of living has changed or dropped without some evidence to say so.
Mr. Vali-Farhad’s Evidence
26Mr. Vali-Farhad denies being violent and alleges that it was Ms. Haeri who has been abusive toward him.
27Mr. Vali-Farhad says the parties separated in 2016. Ms. Haeri has indicated no need for support for seven years.
28Mr. Vali-Farhad relies on an email from Ms. Haeri dated September 14, 2020 in which she summarized a meeting they had to agree on terms for separating their affairs. She recorded their agreement that:
Farhad prefers to set the separation date as Jan 4, 2016. Orchide has no objection.
29In paragraph 13 of her Answer, Ms. Haeri pleads:
From January, 2016 to October 2020 the children had parenting time with the Respondent on Monday, Wednesday and Friday and with the Applicant on Tuesday, Thursday and Saturday. On Sundays both the Applicant and Respondent co-parented the children together as a family…
30Mr. Vali-Farhad testifies that Ms. Haeri did not move back into the matrimonial home in 2017. Rather, she slept over three or four nights a week to facilitate her parenting time.
31As to his income, Mr. Vali-Farhad testifies that in his prior employment, his base salary was $200,000. His extra income came mostly from stock options. However, the company’s workforce is largely in Ukraine. In March, 2022, the invasion of Ukraine by Russia caused a major downturn including layoffs of executives. The company’s market value decreased from $50 billion to $13.4 billion. The stock price chart records a decline in the stock price from a high of over $700 per share in November, 2021 to just over $200 per share shortly after the war began.
32With his employer failing, Mr. Vali-Farhad quickly found a new position as vice president of consulting for CGI Information Management Consultation Inc. In his new position, he is entitled to a discretionary bonus. He does not know yet whether he will receive one or, if so, how much it will be.
33His counsel submits that Mr. Vali-Farhad’s affairs are transparent. There is nothing “curious” and no basis to say he is deliberately under-employed.
34Mr. Vali-Farhad testifies that Ms. Haeri and Mr. Zhou are in business together. He says that Ms. Haeri is not disclosing that the “loans” she claims are actually income from the business.
35Mr. Vali-Farhad testifies that he personally witnessed conversations between Ms. Haeri and Mr. Zhou at the matrimonial home. They discussed registering a new business under Ms. Zhou’s name. They needed to do that so Ms. Haeri could obtain contracts from her former employer RBC despite conflict-of-interest issues. Mr. Vali-Farhad says he witnessed Ms. Haeri taking part in the management and operation of the business.
36Mr. Vali-Farhad also questions Ms. Haeri’s math as her rent expenses, if paid by Mr. Zhou, do not add up to the $117,000 alleged loan.
Mr. Vali-Farhad’s Submissions
37Mr. Vali-Farhad submits that his income is $250,000 and Ms. Haeri’s income is at least $164,000. Counsel submits that Ms. Haeri’s income should be imputed closer to $180,000 based on her bank statements plus another $46,000 based on the excess of her alleged loans over her rent expense for the period.
38Mr. Vali-Farhad submits that with these incomes, Divorcemate calculations under the CSG and the SSAG yield net child support payable to Ms. Haeri of between $273 and $1,022 per month and no spousal support at the mid-range.
Ms. Haeri’s Reply Evidence
39Ms. Haeri swears that Mr. Vali-Farhad’s evidence is “rife with revisionist history, innuendo, and false allegations”.
40Ms. Haeri denies ever earning more than $150,000. She says she just provided advice to Mr. Zhou about his business. She says she has never been part of it.
41Ms. Haeri says that Mr. Vali-Farhad’s evidence that she only spent a few nights per week at the matrimonial home from 2017 to 2020 is “completely untrue”. She says she resided there continuously and “attended at our home daily to spend time with the children”.
Analysis
42The parties’ evidence about the date of separation is hotly contested. It is relevant to me that in saying that she stayed at the house continuously though, Ms. Haeri does not say there was a reconciliation after 2016. Rather, she attended to spend time with the children. When coupled with the plea in her Answer that the parties were operating under a parenting schedule on alternating days of the week from 2016 to 2020, I have a difficult time seeing much defence to a 2016 separation date.
43The relevancy of the separation date is that, if the parties separated in 2016, then Ms. Haeri has been able to support herself for seven years.
44Where a party fails to apply for support in a timely fashion, a rebuttable presumption arises that she can take care of herself i.e. there is no need for non-compensatory support. Peca v. MacKay, 2011 ONSC 5631 at para. 25 quoting Robson v. Robson, 2006 ABQB 34 at paras 19 and 20.
45The disparity in the parties’ incomes is not currently a dominant factor. Mr. Vali-Farhad has been at his new job for just over a year. He has yet to receive any bonus. If there is a material change, it will be disclosed and can then be assessed.
46There is a factual dispute over some of Ms. Haeri’s income. There is a direct conflict in the evidence of what Mr. Vali-Farhad says he heard with Mr. Zhou and Ms. Haeri’s denial.
47The loan agreement between Mr. Zhou and Ms. Haeri provides for repayment in full by this coming October. Ms. Haeri does not explain how she was able to agree to that. Moreover, the loan purports to include a pledge of security. But none is defined or described. Nothing in the loan agreement mentions monthly advances to a landlord.
48A friendly loan of $117,000 with no security to someone who allegedly is in financial extremis, being advanced in tranches to a third party with no paper trail, is unusual at minimum. It suggests to me that there is more at play than meets the eye.
49Ms. Haeri says she recently repaid $30,000 to Mr. Zhou and she took a child to the Philippines for $10,000 last month.
50I cannot infer that Ms. Haeri’s standard of living has fallen on this evidence. Her own pleading seems to point to the parties being separate and apart for seven years before this application was made. The evidence comparing the number of bedrooms in the parties’ respective residences tells me little. With rent of over $3,000 per month for her two-bedroom unit, I cannot just assume that Ms. Haeri has suffered a drop in her standard of living. This is especially the case since I have no evidence at all of the pre-separation standard of living enjoyed by Ms. Haeri.
51The evidence that Ms. Haeri has borrowed raises more questions than it answers. The facts about whether she is in a business with Mr. Zhou are contested. Mr. Vali-Farhad accuses Ms. Haeri of giving false evidence. She accuses him of revisionist history and also giving false evidence.
52The etiology and meaning of the unusual loan terms and unproven advances is completely unknown. With the hotly contested evidence of the parties, this is a prime example of a threshold issue that should caution hesitation at this stage.
53For the purpose of this motion, I cannot use an income for Ms. Haeri that is less than what she swore it was on the day she delivered her motion material. I find her current annual income for interim support purposes is $164,000.
54I have no basis to impute more income to Mr. Vali-Farhad than he makes. Accordingly, I find his current income for 2023 for interim support purposes is $250,000.
55On these numbers, net child support is payable by Mr. Vali-Farhad of $1,022 per month. He shall pay this amount on the first day of each month. SDO to issue. No spousal support is payable under the SSAG at mid-level. I am not offered any basis to consider a high-level classification.
56I am not finding that Ms. Haeri has not suffered a decrease in standard of living. But there is no evidence before me on which I can make find this to be the case. There is nothing at all to rebut a presumption that she has had the wherewithal to support herself for the last six or seven years. Her one-year unusual loan is not prima facie proof of need or entitlement to non-compensatory support.
57Moreover, given Mr. Vali-Farhad’s income, Ms. Haeri does not qualify for spousal support in any event.
58The motion is therefore dismissed.
Costs
59Mr. Mazinani sought $6,000 in costs. Ms. MacKinnon sought $10,000. In light of Mr. Vali-Farhad’s success on the motion, it is fair and reasonable for him to be entitled to partial indemnity for his costs. Therefore costs in the amount of $6,000 all-inclusive are payable within 90 days by Ms. Haeri to Ms. Vali-Farhad.
FL Myers J
Date: May 19, 2023