Court File and Parties

COURT FILE NO.: FS-22-30082 DATE: 20230124 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Hossein Mehdian, Applicant AND: Katayoun Dadras, Reza Dadras and Nasrin Hakimi

BEFORE: L. Brownstone J.

COUNSEL: Ash Mazinani, for the Applicant Kenneth Cole and Erin Betts, for the Respondent Herschel Fogelman for the Respondents Reza Dadras and Nasrin Hakimi

HEARD: January 17, 2023

Endorsement

[1] The respondent wife brought this motion for interim spousal support and related relief concerning credit card, mortgage and health expenses. She seeks monthly spousal support in the amount of $21,377.00 retroactive to the date of separation.

[2] The parties met in Tehran in 1991 and married on April 4, 1993. They were married for over 28 years, until November 21, 2021, and have two children in their twenties, one of whom lives independently and one of whom lives with the wife.

[3] The husband is an orthopedic surgeon. The parties have different narratives about their roles in the marriage. According to the wife, the husband was the breadwinner during the marriage and she looked after the home and the couple’s children. She says she has never been in the paid workforce. The husband says the wife worked for her parents’ significant business interests, and was compensated by them in various ways, including by regular gifts and access to their bank accounts.

[4] The wife argues that this is a simple, straightforward case of the husband breadwinner owing the stay-at-home wife compensatory and needs-based spousal support. The husband argues that the evidence is insufficient for this motion to proceed, and that it should be adjourned pending disclosure and questioning. In the alternative, he argues that the wife is not entitled to support; that if she is entitled she should be imputed an income of the amount of money her parents have given or loaned to her post-separation; that in the further alternative she should be paid on a needs-based basis based on reasonable expenses.

[5] The respondents Reza Dadras and Nasrin Hakimi take no position on the motion.

[6] Interim support cases are difficult, given the imperfect state of the record before the Court. However, in my view the case need not be adjourned for this reason. Since separation, no spousal support has been paid, although the husband paid a number of expenses. A decision should be made on the facts before me now, without prejudice to either party’s right to return the matter after questioning and completion of disclosure.

[7] The issues the Court must decide are:

(1) Is the wife entitled to prospective support? (2) If so, in what quantum? (3) Should an order for retroactive support be made at this stage? (4) What, if any, orders should be made in respect of the car lease, visa card balances, maintenance of the wife on the husband’s health plan and line of credit *9785? (5) Who should pay for the mortgage and line of credit on the property at 1507-8 Hillcrest Avenue (“the Hillcrest Property”)?

Legislation and Guiding Principles Regarding Interim Support

[8] Section 15.2 of the Divorce Act provides the Court its authority to order spousal support, including on an interim basis (15.2(2)). In making such an order, the Court is to take into account the length of cohabitation, the functions each spouse performed during cohabitation and any agreement or arrangement relating to support (s. 15.2(4)). S. 15.2(6) sets out the objectives of spousal support orders.

[9] As noted by this Court in Driscoll v. Driscoll, 2009 ONSC 66373 at para 14:

[14] The recent case of Robles v. Kuhn, 2009 BCSC 1163, [2009] B.C.J. No. 1699, provides a helpful list of principles governing interim support motions:

1. On applications for interim support 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;
5. On interim applications the need to achieve economic self-sufficiency is often of less significance;
6. Interim support should be ordered within the range suggested by the Spousal Support Advisory Guidelines unless exceptional circumstances indicate otherwise;
7. Interim support should only be ordered where it can be said a prima facie case for entitlement has been made out;
8. Where there is a need to resolve contested issues of fact, especially those connected with a threshold issue, such as entitlement, it becomes less advisable to order interim support.

1) Is the wife entitled to prospective spousal support?

[10] The wife claims spousal support on both compensatory and non-compensatory bases. On an interim motion, the Court is not required to make a complete inquiry into all details to determine whether parties have been economically advantaged or disadvantaged by the marriage. This is for the trial judge. Interim support is to maintain the lifestyle as much as possible as long as there is a triable issue for economic disadvantage. Damaschin-Zamfirescu v. Damaschin-Zamfirescu, 2012 ONSC 6689 at para. 24.

[11] I find the wife has a prima facie entitlement to support. On the basis of the record to date, even if the wife was working for her parents during the marriage, it was not regular employment with regular remuneration. The husband’s funds appear to have been used to fund a significant portion of the family’s lifestyle. I therefore turn to a consideration of the parties’ means and needs.

a. What is the husband’s income (means)?

[12] This is the one issue on which the parties do not significantly disagree. The husband has produced an expert report that provides income figures for him for 2019, 2020 and 2021. The wife’s counsel notes from his financial statements that his income appears to have increased in 2022. However, for the purposes of this motion, the wife is content to rely on the expert income figures provided. While the husband’s income fluctuated during these years, the variation was not high. His average annual income for these three years is $586,333.00.

b. What is the wife’s income (means)?

[13] The applicant husband’s position is that the wife worked for the parents throughout the marriage as well as after the separation, and that she received financial support as compensation for the service she provided in managing their extensive property and business holdings. He asks that income be imputed to her. He points to a number of factors in support of his position:

a) The wife initially denied having any involvement whatsoever in the parents’ businesses, but recently acknowledged some involvement; b) She is or was a shareholder in one or more of the businesses; c) She is or was on the Board of Directors of one of the businesses; d) She has powers of attorney and signing authority on three of the parents’ bank accounts; e) She holds herself out to others, including on LinkedIn and other social media, as CEO of one of the parents’ businesses (a business she says dissolved in 2015); f) Joint bank accounts of the parties show regular funds being transferred to them in early years (up to 2008); g) Emails between the wife and various third parties show that she was actively involved in managing the parents’ properties.

[14] The husband acknowledges that on the basis of the evidence to date, he cannot quantify the amount of remuneration he says the wife received. The wife concedes that the parents helped the parties until 2008 when the husband qualified as an orthopedic surgeon but says there has been no help since then, other than allowing them to live rent-free in luxury properties, which will be discussed below. The husband claims that after 2008 the wife had free access to her parents’ bank accounts. The wife strenuously denies this. She says she has a power of attorney on her parents’ accounts in order to help her elderly parents, including when they travel, and that any help she gives them is given freely as their daughter, without compensation. It does appear from the wife’s affidavit that expenses for the Hillcrest Property have been paid over time through one of the parent’s bank accounts over which she has power of attorney.

[15] The husband asks that the $255,421.26 received by the wife from the parents since separation be imputed to her as income. The affidavit evidence is that $79,976.13 of this was for personal expenses, since the husband was not paying support and drastically reduced the credit limit on their joint credit card which she had been using for expenses, and $175,445.13 for post-separation legal costs. The wife says the funds were advanced as a loan that she was driven to obtaining from the parents since the husband cut off all supply of funds to her. I do not believe these funds should be imputed as income to the wife. Nor do I believe the Court can impute an income to the wife at this stage based on activities she may have undertaken for her parents. While there is some evidence of assistance she provided to her parents and involvement in some capacity in some of their businesses, there is no evidence of remuneration that would allow the Court to conclude that income was earned, much less determine an amount of income. This may change, of course, after further disclosure and questioning or at trial.

[16] With respect to the housing benefit, however, I reach a different conclusion.

[17] The parties agree that throughout their marriage they lived free of rent in luxury properties owned by the parents. The husband argues that the regular payment by the parents of the mortgages or purchase prices of the homes in which the parties lived was a regular gift on which they reasonably depended, while the wife argues that it would be unseemly for the husband to attribute a benefit to the wife for something he equally benefitted from. The wife also argues that these amounts are so minimal that they do not warrant consideration.

[18] I find that the payment of the housing expense was regular, lasted throughout the lengthy marriage, entrenched a lifestyle, provided a certain standard of living and is likely to continue, given the wife continues to reside in a property owned by the parents. (Bak v. Dobell, 2007 ONCA 304 para. 75). It is true that the husband benefitted from these gifts during marriage, but he no longer does. Given the factors above, I conclude that the accommodation value should be imputed to the wife as income. I disagree with the wife’s submission that those expenses were so minimal that they may be ignored. Based on her financial statement, I have imputed income of $3,000.00 per month to the wife in this regard. (Malkov v. Stovichek-Malkov, 2017 ONSC 6822 paras. 69-72).

c. What are the wife’s needs?

[19] The wife describes a lavish lifestyle having been maintained during the marriage. She indicates that her current monthly expenses are $18,883.13 and that she has had to borrow hundreds of thousands of dollars from her parents, which she is expected to repay, in order to meet her expenses post-separation. She deposes that her monthly budget is reduced from her pre-marriage expenses; in particular, she has foregone health treatments she received during the marriage.

2) What is the appropriate quantum of support?

[20] The husband’s income is above the $350,000.00 figure at which the Spousal Support Advisory Guidelines (“SSAG”) provide presumptive amounts. That figure, however, is not a cap. This is an interim case, where the status quo will be retained if possible. I have had regard to the SSAG amounts, the gifts by way of accommodation that the wife has received consistently from her parents, and the wife’s budget.

[21] If the wife is imputed income of $3,000.00 per month by virtue of the housing benefit she receives (which leads to a grossed-up annual income of $42,184.00), and the husband’s average annual imputed income of $586,333.00 is used, the SSAG amounts range from $17,005.00 at the low end, to $19,839.00 at the mid-range and $20,925 at the high end. The mid-range of support, which is what the wife sought on this motion (without income being attributed to her), brings the parties very close to equal net disposable income (51.6 per cent for the husband and 48.4 per cent for the wife). I find $19,839.00 to be a reasonable figure for interim support on the facts of this case.

3) Should a retroactive order for support be made?

[22] The wife argues that the husband’s conduct in unilaterally taking money from their joint account, unilaterally reducing the credit card limit to a fraction of its former limit, and briefly cutting her off his health insurance plan supports her claim for retroactive support. The husband argues this issue should be left to trial. It is clear the husband had made some expense payments on behalf of the parties; the wife acknowledges that it is difficult to say which of the parties’ benefitted from them. For these reasons the issue of retroactive spousal support is left to trial.

4) What, if any, orders should be made in respect of the car lease, visa card balances, maintenance of the wife on the husband’s health plan and line of credit *9785?

a. Car lease

[23] The wife’s car lease has been paid by the husband through his corporation. It is included in her monthly budget. Now that she is receiving support, she shall make the payments on the car lease.

b. Visa Card Balances

[24] The parties’ arrangement was for the husband to pay their joint visa card balances. He shall pay the remaining balances, after which the cards shall be cancelled.

c. The Husband’s health care plan

[25] The wife currently has entitlements under the husband’s health care plan. The husband agrees that these entitlements shall remain pending trial.

d. Line of credit *9785

[26] The husband has been paying for this line of credit and shall continue to do so.

5) Who should pay for the mortgage and line of credit on the property at 1507-8 Hillcrest Avenue (“the Hillcrest Property”)?

[27] The evidence regarding payment for the Hillcrest Property is unclear. The wife’s evidence is that the Hillcrest Property in which she lives was gifted to her by her parents in 2002 (during the marriage) and remains in her sole name. In 2010 the Hillcrest Property was refinanced and the mortgage and letter of credit secured on the property is in the parties’ joint names. She claims that the husband received the funds and she does not know what he did with them. The husband has produced an email from 2010 whereby the wife’s father asks for the funds to be transferred to him. The wife’s father swears he did not receive the funds and that the husband used them for his personal benefit. It is impossible to determine this issue on the contested written record before me. I am mindful that I have attributed income to the wife on the basis that her parents have always provided her with accommodation without cost, and on the basis of the evidence before me there is a strong inference that they are likely to continue to do so. The parents owned, and the wife now owns and lives in, the Hillcrest property. She shall assume responsibility for the interim payment of the mortgage and loan associated with it.

Disposition

[28] Therefore, Order to go as follows:

1. Commencing January 1, 2023 and on the 1st day of each following month the Applicant, Hossein Mehdian ("Applicant"), shall pay to the Respondent, Katayoun Dadras (the "Respondent") temporary spousal support in the amount of $19,839.00 per month. These payments shall be without prejudice to either party's position with respect to any and all matters relating to the issue of support, and without prejudice to either party’s right to return the matter after questioning and completion of disclosure.
2. Effective with the commencement of monthly spousal support payments, the Respondent shall be responsible for the payment of her car lease and other personal expenses;
3. The Applicant shall pay the balance owing on the joint RBC Visa cards ending in *4514 and *4195 in full and the joint Visa cards shall be cancelled immediately thereafter;
4. The Applicant shall continue to maintain the Respondent on his extended health plan through Manulife and promptly remit to her all reimbursements of expenses incurred by her that are covered and reimbursed by his plan;
5. The Respondent shall assume responsibility for and pay the interest and any other repayment requirements of the joint mortgage with RBC #6428-001 and joint line of credit RBC *519-001 registered on title to the property located at 1507-8 Hillcrest Avenue in North York, M2N 6Y6;
6. The Applicant shall assume responsibility for and pay the interest and any other repayment requirements of the joint line of credit with RBC *9785 on an interim basis;
7. A Support Deduction Order shall issue.
8. Unless the Order is withdrawn from the Director's Office, at the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the Order shall be paid to the Director, who shall pay them to the person to whom they are owed.

[29] The parties are encouraged to agree upon costs. If they are unable to reach agreement, they may make brief written submissions to me (maximum three pages double-spaced, plus any offers to settle) by email to my judicial assistant at Linda.Bunoza@ontario.ca. The Respondent may have 7 days from the release of this decision to provide her submissions, with a copy to the Applicant; the Applicant a further 7 days to respond. There shall be no reply submissions. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

Brownstone J. Date: January 24, 2023