Faizian v. Ashouri, 2023 ONSC 6703

minicounsel

NEWMARKET COURT FILE NO.: FC-20-78-00 DATE: 20231129 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Marjan Faizian Applicant – AND – Mohammad Ashouri Respondent

Counsel: B. Siegel, Counsel for the Applicant P. Mahdi, Counsel for the Respondent

HEARD: November 21, 22, 23, and 24, 2023

a. Himel J.

I. OVERVIEW AND BACKGROUND FACTS

1The Applicant (“the wife”) and the Respondent (“the husband”) were married on August 22, 1997. They started their life together as students in Iran with nominal assets. As of the date of separation, November 1, 2018, they had built a successful life together, first in Iran and years later in Canada. The parties are both engineers.

2The facts as I find them are set out below and will provide context for the analysis. Further facts will be referred to in the analysis as required.

3At the time of the marriage the parties signed a Mahr. There is no dispute that the domestic contract is enforceable. As is the cultural norm the husband gave the wife the required Koran, a mirror, and silver candlesticks; these were on display at the wedding. The Mahr includes a term that, on demand, the husband will pay 356 Bahar Azadi gold coins (“356 gold coins”). The wife made the demand in her Application dated January 2020. Payment of the Mahr is the primary issue in this litigation.

4After immigrating to Canada, the parties purchased a matrimonial home situated at 45 Okanagan Drive, Richmond Hill (“Okanagan”).

5In 2017, the parties purchased a new matrimonial home, 9 Tollbar Court, Richmond Hill (“Tollbar”), and engaged in extensive cosmetic renovations. Following the separation five years ago the parties continued to reside in Tollbar until the husband moved out in August 2019.

6When the husband moved out of the matrimonial home, the parties’ son A.A. (the “child”), now age 18, immediately followed a two-week on and two-week off schedule with each parent. That schedule continues today and he is a York University student. The child is doing well, which is a credit to both parents.

7The husband initially rented accommodations as Okanagan was tenanted. The tenant caused significant damage to the property. Once the husband evicted the tenant in November 2019, the husband undertook significant renovations. He wanted a home for himself and the son that was of similar quality to the matrimonial home. He moved into that home in or about April 2020.

8Both parties wanted to remain in their respective homes but were unable to resolve this issue. Last week they negotiated a consent order that provides the possibility of a buy-out, failing which the properties will be sold.

9It was anticipated that this matter would proceed to trial in May 2023; however, it did not. The parties resolved many of the family law issues by way of consent orders dated November 21 and 22, 2023. There are no longer any disputes relating to parenting, spousal support, child support and Avesta Design Group Inc.

10Over the past five years this matter evolved into a high conflict dispute for various reasons. Sources of conflict include the wife’s decision to initiate steps to address the Mahr in Iran, and the husband’s lack of responsiveness and lack of documentation to support his financial claims.

11This trial was heard on November 21, 22, 23, and 24, 2023. The cost of this four-day trial is not proportionate to the value of the items in dispute.

12In any event, I must decide the following issues:

(a) Property issues: i. treatment and payment of the Mahr (in Canadian funds or 356 gold coins); ii. the husband’s alleged debts to two friends; and iii. the value of the wife’s car.

(b) Post-separation adjustments: i. carrying costs and the husband’s rent; ii. rent paid by the Okanagan tenant; iii. quantifying the wife’s contribution to the Okanagan renovation; and iv. the wife’s liability for 50% of Joanna Siedel’s fees.

13The parties jointly request a divorce, and it is granted. The husband offers to provide an Iranian divorce and the wife does not oppose it. I make that order as well.

14At the start of this hearing I advised the parties of my intention to deliver oral reasons following the trial’s conclusion. Counsel assisted me in achieving this goal by providing case law summaries on the second day. I appreciate their effort and diligence.

15These are the reasons for my decision.

II. CREDIBILITY AND RELIABILITY

16The assessment of witness credibility and reliability is not an exact science. There are many considerations relevant to the weighing and assessment of these matters. These include a consideration of the witness’s coherence and logic, corroborating testimony by other witnesses, and corroborating documentary evidence. Other considerations include a witness’s willingness or disinclination to make admissions and the extent to which they are clear or evasive. In addition, the witness’s relationship to one or both parties and whether the witness has a vested interest in the case are also relevant considerations. [2]

17I have concerns about each party’s credibility and reliability. Some of the evidence was in a he said/she said form with no corroborating evidence such as emails or lawyers’ letters. For example, the parties dispute whether they agreed to be solely liable for the carrying costs of their individual residences or whether they would continue to be jointly liable for both properties.

18Both parties are educated professionals. At times during the wife’s cross-examination, she was evasive and declined to make admissions. For example, the wife would not admit whether the unnamed contractors’ estimates on Okanagan were inclusive or exclusive of hst. She denied the husband’s loans for his failure to produce agreements, notwithstanding her admission that loans to friends are often made without written contracts.

19The husband was more responsive to the cross-examination questions. However, he failed to have back-up documentation to support many of his financial claims, notwithstanding that he had counsel throughout the proceedings, notwithstanding his obligations pursuant to the Family Law Rules (“FLR”) [3] and the Family Law Act (“FLA” [4]), and notwithstanding repeated requests by the wife for disclosure. Many of the wife’s requests for information and supporting documentation could have been fulfilled at the time they were requested.

20Some of the husband’s documentary evidence, such as emails confirming various loans, were created for this litigation. Even more concerning is that some emails contradict the husband’s own position and/or that of his witnesses.

21Moreover, in his affidavit dated May 3, 2023, the husband swore that he was actively taking steps in Iran to deal with the Mahr, which would be finalized shortly. At that time he believed that this matter would proceed to trial imminently. The husband now admits that he took no such steps in May, or thereafter.

22In addition to the parties’ evidence, the wife called her father, Mr. Faizian, to provide testimony about the Mahr. He was forthright and had a clear recollection of the relevant events. However, some of his evidence was that which can only be relied upon when given by an expert.

23The husband called three witnesses. Mr. Sadagholvad allegedly made a loan to the husband in the total amount of $40,000. I have concerns about his credibility due to the lack of any corroborating documentary evidence and his close relationship with the husband.

24Mr. Alvi allegedly loaned the sum of $15,000 to the husband. While his recollection of the dates of the loan and repayment were incorrect there is documentary evidence to support his oral testimony.

25Mr. Agajani testified about his role as a home contractor on Okanagan and Tollbar. The witness was credible and reliable in his testimony, including his explanations about the invoices, payments, outstanding amounts owed, and his requirement that the total amount be paid.

26On an aside, while it was contemplated that either party may retain an expert to provide evidence with respect to the Mahr, neither opted to do so. Expert evidence is no longer needed to assist the court in making findings with respect to the appropriate treatment of Mahr. There is ample caselaw in Ontario, as well as the Supreme Court of Canada [5]. However, expert evidence can be helpful when parties raise novel issues or new arguments.

III. THE PROPERTY ISSUES

27Sections 4(1), 4(2)6, and 5(1) of the FLA define the equalization of net family property as follows:

4(1) In this Part, …

“net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,

(a) the spouse’s debts and other liabilities, and

(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

4(2) The value of the following property that a spouse owns on the valuation date does not form part of the spouse’s net family property:

Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

5 (1) When a divorce is granted or a marriage is declared a nullity, or when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. R.S.O. 1990, c. F.3, s. 5 (1).

A. THE MAHR

Background About the Steps Taken by the Parties in Iran and Ontario

28Approximately six months after commencing this Application, the wife directed Mr. Faizian, who holds a power of attorney for her property in Iran, to take a step towards the enforcement of the Mahr in Iran.

29The wife wanted to protect her interests. When she learned that a real estate agent had reached out to Mr. Faizian to discuss the sale of the parties’ jointly owned apartment, she grew more concerned.

30Mr. Faizian filed a formal document with the Iranian government that he produced at the trial. The document refers to the issuance of a writ of enforcement on July 14, 2020. He filed a subsequent document that confiscated the husband’s 50% interest in the parties’ jointly owned apartment on December 15, 2020. Mr. Faizian explained that confiscation merely puts a third party on notice that a property cannot be sold.

31Mr. Faizian also testified that he never took the required third step to obtain an order to enforce the seizure of the husband’s property and the Mahr. It is this step that can lead to dire consequences for a husband who has failed to pay the Mahr.

32Mr. Faizian produced a document dated April 9, 2023, that is described as an “Application for Discharge of Attachment of Property”. To the best of his knowledge the confiscation has been removed.

33The husband testified that it is the first step that is the enforcement of the Mahr. He declined to return to Iran after receiving the initial notice in August 2020, for fear of being thrown in jail, being unable to leave Iran, or having his car taken away.

34Neither party nor Mr. Faizian are experts, and I make no findings in respect of the above statements. Either party could have retained an expert to address the enforcement steps in Iran, but they opted not to do so.

35In any event, nothing in this litigation turns on the enforcement steps that are available in Iran. However, since this was a significant area of dispute between the parties, I note the following:

(a) Aside from the documents described above, neither party produced any documents to confirm that steps were taken by the Iranian government to seize the apartment or the jointly owned land, such as a court order. (b) The initial formal document was sent to the husband’s parents’ home in July 2020. There is no evidence that the Iranian government took any steps to seize the husband’s interests in two jointly owned properties in the past 3.5 years. (c) Both parties agree that if the Mahr was being actively enforced, the Iranian government would seize and then liquidate the husband’s assets and make a monetary payment to the wife. No such payment was ever made. (d) The parties agree that the Iranian government is not currently actively enforcing the Mahr.

Should the Mahr be Enforced in Ontario?

36At the start of the trial the husband challenged the enforcement of the Mahr because the contract contains certain terms that may be offensive to Canadians or offends public policy.

37Ontario courts have clearly articulated that the Mahr is enforceable so long as it is in writing and signed by the parties and witnesses as per section 55(1) of the FLA. [6] All of these criteria are met.

38The husband subsequently testified that he acknowledges that the Mahr is an enforceable domestic contract in accordance with section 55(1) of the FLA.

39At the start of the trial the husband took the position that the wife was “forum shopping” and should not be permitted to enforce the Mahr in Canada. The wife had taken steps to deal with the Mahr in Iran after commencing this proceeding in Ontario.

40By the closing arguments he had abandoned this position. The husband’s draft order requests an order he pay the sum of $163,212.54, which is the agreed-upon separation date value in Canadian dollars of the 356 Bahar Azadi gold coins. He also seeks an order that concurrent with receiving the Mahr, the wife execute an “Interest Section of the Islamic Republic of Iran.” The husband’s draft order states that this is the only ‘authority’ that can formalize and approve any “legal agreement that will be accepted and recognized in Iran after achieving any form of agreement outside of Iran.”

41Interestingly, while the husband was critical of the wife for taking steps in Iran, his affidavit dated May 3, 2023, states that he was actively pursuing the Mahr action in Iran. The husband anticipated reaching a resolution soon and agreed to comply with the Iranian Judgment. He preferred to address the Mahr in Iran. There is no evidence before this court that the husband took any steps to resolve the Mahr in Iran, and he admitted as such.

42Even if the husband had not abandoned his position, I would decline to find that the wife engaged in “forum shopping” or that she is prevented from dealing with the Mahr. The recent decision of Hamadanizadeh v. Haydarian, 2023 ONSC 4970 [7] confirms that steps can be taken in Iran and a party can still move to enforce the Mahr in Ontario.

43Either party could have enforced the Mahr in Iran. Neither did so.

44This matter is governed by the FLR and FLA. It has been five years since the parties’ separation and almost four years since the litigation began. To deal with this case justly, I must deal with all the family law issues in dispute including the Mahr.

45Ultimately, that is what both parties have requested me to do.

46The husband will satisfy the Mahr in Ontario. The wife is required to execute the form provided by the husband once the Mahr has been satisfied. The English translation of the form is attached as Schedule “A” to these reasons.

Is the Mahr Properly Included in the Calculation of the Parties’ Net Family Property?

47The wife states that the Mahr should be treated outside of the equalization of net family property (“NFP”). She requests that the husband pay 356 gold coins separate from any equalization payment. In other words, the wife requests specific performance of the domestic contract.

48When the wife signed the Mahr, it was her objective intention that the husband would pay the 356 gold coins.

49The wife argues that it is unfair to value the gold coins at the date of separation as she made the demand in January 2020. She has been waiting for years and the value of gold coins has increased throughout this time. The husband could have purchased and provided the 356 gold coins at any time, but he chose not to do so.

50The husband states that the Mahr should be included in the parties’ NFP calculation, as the facts and the wording in the Mahr are the same as in the Bakhshi v. Hosseinzadeh [8] decision and other more recent cases.

51Bakhshi is the leading case in this area. The wife requests that I overrule the Ontario Court of Appeal, ignore subsequent cases issued by Ontario Superior Court judges, and follow a line of cases from British Columbia.

52I am not prepared to do so. That is not my role as a Superior Court judge in Ontario. The relevant Ontario case law [9] assists me in correctly determining this matter. I need not rely on cases decided in British Columbia or elsewhere.

53I have reviewed various Ontario Court decisions that were provided by the parties, as well as the following articles:

(a) “How to Navigate Mahr Cases post-Bakhshi” by Meysa Maleki, which is not dated; (b) This Week in Family Law (“TWIFL”) by Aaron Franks and Michael Zalev, dated November 20, 2023; and (c) “Enforcing the Mahr in Canadian Courts”, by Fareen Jamal, 32 CFLQ 97 (and referred to in the above TWIFL).

54The starting point is Bakhshi, where the Court stated:

These cases treat Mahers like any other contract that may impose a variety of different legal obligations. The outcome of each case depends, just as in any other case of contractual interpretation, on the objective intentions of the parties as ascertained through the particular wording of the Maher when read as a whole and considered in light of its factual matrix….

Absent any evidence of an objective intention at the time of contract to treat the Maher differently, the Maher payment must be treated under the FLA like any other payment obligation between the spouses. [10]

55 Bakhshi provides the following guidance to litigants and judges:

(a) The Mahr payment must be included in the NFP, although it may be excluded property pursuant to section 4(2)6 of the FLA. (b) Unless it is excluded property, the Mahr has the effect of reducing the husband’s net assets and increasing the wife’s net assets. (c) The Mahr payment is a “demand obligation with a paper value.” I interpret this to mean that it is a monetary payment. This makes logical sense as that is how all property is dealt with in the equalization exercise. (d) The Mahr is like a “third party’s promissory note” that must be paid by the debtor to the creditor.

56I find that the Mahr shall be included in the parties’ NFP for the following reasons.

57As per the Settlement Conference endorsement of Daurio J. dated January 16, 2023, which is a court order, both parties agreed that the Mahr is an enforceable contract that does not contain any language that would exclude it from the NFP calculations. No steps were taken by either party to appeal this consent order, to set it aside or to correct it. The wife’s new position, that the Mahr should be paid outside of the NFP regime as per her affidavit sworn April 27, 2023, does not change the enforceable nature of that court order.

58Aside from the parties’ agreement, the FLA supports the inclusion of the Mahr. The equalization regime provides for an equitable sharing of the family’s increase or decrease of family wealth during the course of a marriage, subject to certain gifts, inheritances or domestic contract. It is intended to address all forms of property, debts and monies owing to each of them including interspousal loans and gifts, unless there is a valid domestic contract that contracts out of this regime.

59While the wife has attempted to distinguish the facts of this case from Bakhshi, I do not agree. The Ontario Court of Appeal was clear – the opting out language must be included in the Mahr or section 4(2)6 of the FLA does not apply. There is no opting out of equalization in the Mahr in this case. The language in this Mahr is the same as the language in the Mahr in Bakhshi.

60The wife also agues that her testimony, being that she had an objective intention to be paid the entirety of the Mahr on demand, conforms to the Ontario Court of Appeal’s requirement that I consider the objective contractual intentions of the parties at the time the contract is made. However, there is no evidence that the wife’s objective intention considered the impact of the Mahr as per Ontario law. It is well established that property claims in Ontario are resolved by way of the law in the parties’ last common habitual residence which, in this case, is Ontario, not Iran.

61This issue was dealt with by Kraft J. in two recent decisions where the Mahr was also payable on demand and executed in a foreign jurisdiction. In Ramezani v. Najafi, 2021 ONSC 7638 [11], the parties contemplated immigrating to Canada at the time that the Mahr was executed, but there was no evidence of their objective intention to opt out of the equalization regime. In El Khatib v. Nous, 2023 ONSC 1667 [12], with identical facts to this case, the parties did not intend to immigrate to Canada at the time that the Mahr was signed. Justice Kraft found that there was no evidence of the parties’ objective intent to opt out of a foreign property regime, particularly in a jurisdiction they did not contemplate moving to at that time.

62The relevant factual matrix at the time the Mahr was signed was that the parties intended to continue to reside in Iran. The Mahr was signed within the context of Iranian law. The extensive expert evidence provided in Ramezani explains that a Mahr provides a wife with some financial security at separation, as there is no shared property or equalization regime in Iran.

63If the wife had an objective intention about the Mahr (and I am not persuaded that her belief about the full payment was an objective intention), these intentions should be viewed within the religious, cultural and (I would add) legal context respecting the wife’s rights on separation. The parties’ Mahr provides that so long as the husband initiates a divorce (except in certain circumstances), the court may order up to 50% of the husband’s assets be paid to the wife (unless she has breached certain conditions).

64In other words, there is no guarantee of any sharing of the husband’s property. As described in Ramezani, it is only the Mahr that ensures that the wife is not financially vulnerable. That is different from Ontario where parties have the right to apply for financial security by making equalization and spousal support claims on a no-fault basis.

Is the Mahr Included as Both a Marriage Date and Valuation Date Asset and Debt?

65The husband argues that the Mahr should only be included as a valuation date asset for the following reasons. As set out below, I disagree.

66The husband argues that the Ontario Court of Appeal did not include the Mahr as a marriage date asset or debt in the NFP calculation. I have reviewed Bakhshi and see no evidence that the court failed to include the Mahr at both dates. What is clear is that the appellate court removed the Mahr from the wife’s excluded property on valuation date, and varied the trial judge’s order having found that he double counted the value of the Mahr.

67Second, the husband relies on Akkawi v. Habli, 2017 ONSC 6124 [13], a decision that was released shortly after Bakhshi. Shelston J. determined that it was only upon separation and demand that the wife’s entitlement to the payment was crystalized. However, this Mahr is a debt payable on demand. The wife argues that she could have demanded payment at any time during the marriage. I agree. A plain reading of the Mahr confirms the same, as does the expert evidence provided recently in Hamadanizadeh. As an aside, if the Mahr was paid during the marriage any value at separation would be equalized.

68The husband argues that he could not afford to pay the Mahr when it was signed. At that time he was writing his Masters dissertation while working as a junior architect. Affordability concerns do not determine whether something is a date of marriage asset. Collectability goes to the continent nature of the asset and to the appropriate discount, if any. In the absence of expert evidence on this issue, I am not prepared to ignore or discount the marriage date value of the Mahr.

69I prefer to include the Mahr as a marriage date and valuation date asset and debt. That is the approach taken by Justice Kraft in the two decisions referred to earlier. She determined that once the Mahr is signed, the debt is payable immediately upon the parties’ marriage. I recognize that payment of the Mahr is contingent upon the wife making a demand. However, once demanded, the Mahr must be paid. Therefore, I am not prepared to provide any discount for the contingent nature of the Mahr.

70I also reject the husband’s argument that the wording in Article 1082 of the Civil Code of Iran makes it clear that the Mahr is not a date of marriage asset. That wording, which was cited as part of the expert testimony in Hamadanizadeh, states that “immediately after the performance of the marriage ceremony the wife becomes the owner of the marriage portion and can dispose of it in any manner she may like.” [14] I find that the Mahr is the wife’s asset and the husband’s liability on the date of marriage.

71The husband also argues that the Mahr should be treated like third party wedding gifts which are not date of marriage assets. I do not find this comparison or the caselaw about wedding gifts to be persuasive.

72Finally, the husband argues that if the outstanding Mahr payment is a date of marriage asset, then so too are the silver candlesticks that the wife failed to include in the NFP. I agree. However, since I have no evidence as to the value of the candlesticks on the date of marriage or at separation, I am not including this item in the parties’ NFP calculation. Given that this omission was an error in both parties’ NFP statements, the wife’s failure to list this item does not detract from her ability to claim the balance of the Mahr as a marriage date asset.

Is the Mahr Properly Payable in 356 Gold Coins or in Canadian Dollars?

73The wife argues that the Husband should purchase 356 gold coins to fulfill his obligations under the Mahr. I disagree.

74The Bakhshi decision clearly states that the payment is in paper, which I interpret as Canadian currency.

75Moreover, the NFP regime provides that one party makes a monetary payment to the other, rather than the transfer of assets between them.

76This matter is distinguishable on its facts from the recent decision of Moghimi v. Moodi, 2023 ONSC 2568 [15]. In that case, the husband was required to transfer his 50% interest in the home to satisfy the Mahr. However, the transfer was in full satisfaction of the property claims. The domestic contract provided that there would be no equalization of NFP. This case is different.

77While the wife complains about receiving funds rather than gold coins, she admits the following. If she had obtained an order enforcing the Mahr, the Iranian government would have seized the husband’s property and made the required payment in currency. She would not receive 356 gold coins.

What is the Proper Date to Value the 356 Gold Coins?

78The wife argues that the value attributable to the 356 gold coins should be as of today or the date of her Application (January 2020). The wife argues that she will be prejudiced if the value is determined as of the date of separation as the coins are far more valuable today.

79The husband requests that the date of separation value be used. I agree.

80Various Ontario cases, including Bakhshi, make reference to the demand for payment of the Mahr being made after separation. The cases do not identify the exact date that the demand was made or the value on that date. Instead, the separation date value is used in the calculation.

81As stated previously, the parties’ property claims are governed by the equalization of NFP. This regime crystalizes an asset’s value on the date of separation, and in Canadian dollars.

82If the wife preferred to obtain an order based on the value of the gold coins after the date of separation, she could have pursued her claim in Iran. She opted not to do so.

83The proper way to address the wife’s concern about the delay is in the form of an order for pre-judgment interest. However, pre-judgment interest would also be payable on the equalization payment owing to the husband, which is close to the amount payable to her for the Mahr.

84I make no order for pre-judgment interest as neither party requested pre-judgment interest in their draft orders.

B. THE HUSBAND’S DEBTS

85The husband claims that he owed loans to two individuals on the date of separation. The parties were engaged in a renovation that cost approximately $163,000 at the time. The husband wanted to pay down debt.

86The wife states that she had no knowledge of the alleged loans and states that the husband’s evidence does not support a finding that any amounts were owing to him. She does not believe that the parties needed funds for the renovation as their family income was over $260,000.

87Both parties, Mr. Sadegholvad, and Mr. Alvi testified that, for cultural reasons, one is expected to loan a friend money if they request assistance. One is expected to do so without any formal loan documentation.

88The parties acknowledged that they lent the sum of $20,000 to a friend, Soodabeh, just after the parties’ separation in November 2018.

89The husband continues to pay interest on this loan as the loan has never been repaid. Neither party has taken legal steps to have the loan repaid.

90The husband testified that the loans he obtained from Mr. Sadegholvad and Mr. Alvi are the same type of loan that the parties made to Soodabeh. However, that is not entirely true. The loan to Soodabeh was paid by way of a bank draft; the alleged loan from Mr. Alvi was paid by cheque and the alleged loan from Mr. Sadegholvad was made in cash.

91The alleged loan from Mr. Sadegholvad of $40,000 was purportedly paid in large cash installments. Mr. Sadegholvad testified that he paid the sum of $25,000 cash in three installments between December 2017 and February 2018 and the sum of $15,000 in May 2018.

92Mr. Sadegholvad is not aware if the wife knew about the loans. While the loans have been outstanding since 2018, and no payments have been made, he expects that the husband will repay him in full.

93The wife requested evidence to support the loans, yet the only evidence provided were two somewhat contradictory emails (from Mr. Sadegholvad to the husband) confirming various payments. Both emails were written after the parties’ separation, months after the alleged payments.

94There are various problems with the evidence of the alleged loans, including contradictory evidence as to whether the loans had a total value of $35,000 or $40,000.

95The timing of payments on the line of credit do not match up with the timing of the alleged loans. For example, the first set of loans in the amount of $25,000 were paid between December 2017 and February 2018, yet the deposit on the line of credit was dated January 3, 2018.

96While the payments were allegedly made in cash, they came through a currency exchange in Iran and one in Canada. If payments were made, evidence could have been collected from the currency exchanges or from Mr. Sadegholvad, who testified that he previously had a receipt but no longer does.

97There is no evidence of tracing from Mr. Sadegholvad’s account and no evidence from the currency exchange in Iran or in Ontario.

98It is the husband’s obligation to provide evidence of the loans as per the FLR and his statutory duty to prove his debts. The parties separated in November 2018, within months of when the alleged loans were made. Once the husband retained family law counsel he knew or ought to have known of his obligation to provide back-up documentation. However, he only provided contradictory emails and line of credit deposits that do not match the dates of some loans.

99Even if funds were forwarded by Mr. Sadegholvad, it is unclear if the amounts paid were loans, gifts or funds for business dealings. After he left Canada in 2018, Mr. Sadegholvad asked the husband to take on some responsibilities for closing down his business, Queen and Esther. He needed a Canadian resident to be involved.

100Since June 2021, the husband’s bank account balance has been between $25,000 and $52,000. There are several significant deposits of over $20,000, $30,000 and $50,000. If there is a debt to Mr. Sadegholvad, a reasonable course of action would be for the husband to have repaid some or all the loans.

101The husband has not proven, on the balance of probabilities, that he received loans from Mr. Sadegholvad in the sum of $40,000. Therefore, the alleged loans will not be included in the husband’s NFP.

102Mr. Alvi is the second person who allegedly made a loan to the husband. They have been friends for at least 10 years. Mr. Alvi denies the wife’s allegation that he is in business with the husband and there is no evidence to support that claim.

103Mr. Alvi testified that the husband requested a short-term loan as he was renovating the house and needed funds. On July 26, 2017, Mr. Alvi issued a cheque for $15,000 from his company and into the husband’s name. The funds were repaid.

104The wife testified that she is not satisfied as there is no loan agreement. In addition, the husband’s confirming email states that the loan was made in December not July.

105I am satisfied that a loan was made by Mr. Alvi, given the cheque that was produced and evidence of repayment by way of the husband’s bank draft.

106The loan reduced the parties’ debts during the marriage, by reducing the amounts owed on the joint line of credit on the date of separation. Both parties benefited from this loan.

107I accept that the loan was the husband’s sole liability on the date of separation. While the loan was repaid from the parties’ joint line of credit in 2019, I find that the $15,000 payment came from the husband’s share of the line of credit rather than joint funds.

108After separation, the husband removed $15,000 and the wife removed $10,000 from the joint line of credit. Rather than using his funds to pay personal expenses, the husband re-paid Mr. Alvi. It is unclear how the wife spent her funds, but that is irrelevant. The husband recently agreed that he will pay the wife the sum of $2,500. This will equalize the funds removed and used by each party at his/her own discretion.

109In summary, the husband repaid the loan after separation from his funds rather than joint funds. Therefore, it is appropriate for the husband to include the sum of $15,000 as a separation date debt in his name.

C. THE WIFE’S JEEP

110The wife testified that she has always relied on the Canadian Red Book for the value of the Jeep. That amount is $32,167. The wife provided the Canadian Red Book value to the husband’s prior counsel on February 25, 2020.

111The husband relies on hearsay evidence from employees of the dealership where the car was purchased who reportedly set the car’s value at $41,846. I attribute no weight to this evidence.

112If the husband disagreed with the wife’s figure it was his obligation to provide alternate admissible evidence to the contrary.

113The best available evidence is the Canadian Red Book value. While it is hearsay evidence, the Red Book (or other similar car valuation tools) are often accepted at trial. Therefore, I am attributing a value of $32,167 to the wife’s Jeep.

D. CONTENTS OF THE MATRIMONIAL HOME

114The husband states that the contents issue is not resolved. The wife disagrees as the husband had unfettered access to the matrimonial home for two days when he vacated the home in 2019.

115The wife states that the husband removed two rooms of furniture, various papers and documents, and the family photo albums and ultrasound pictures.

116I note that it has been four years since the husband vacated the home.

117Any further contents requested by the husband should have been dealt with long ago.

118However, as the wife consents to an order respecting contents, and so long as the husband complies with my order respecting the ultrasound pictures, he can make a further claim for contents. The husband may attend at the home (with the wife present) and remove a reasonable number of items (which are not excluded property) that were jointly owned by the parties during the marriage.

119The wife requests that the husband provide her with copies of the ultrasound pictures that were taken when she was pregnant with the child. The husband is ordered to provide 50% of the original ultrasound pictures and copies of the other half of the pictures within 14 days of this order. If the husband fails to do so, he may not claim any household contents.

IV. POST SEPARATION ADJUSTMENTS

A. CARRYING COSTS AND THE HUSBAND’S RENT

120To the parties’ credit, they consented to orders that equalize their liability for the carrying costs on Tollbar and Okanagan. This includes equal responsibility for the mortgages, interest on the joint lines of credit, property insurance and property taxes. They also agreed to equalize the car insurance payments.

121The parties accounted for which payments were made by whom and have determined what amount needs to be paid by each of them to share these expenses.

122This was a reasonable resolution to the post-separation date carrying cost issue, as there were two jointly owned properties, with two mortgages/lines of credit, and two cars.

123Moreover, the parties have similar incomes and have shared the financial expenses attributable to the child.

124The parties effectively reorganized their finances to create a shared financial liability for their significant expenses from the date of separation onwards.

125The only major area of disagreement is the husband’s rent from September 2019 to May 2020.

126The husband states that the rent should be shared as it was an added expense above his 50% liability for the carrying and insurance costs listed above. The parties disagree as to why the husband moved out of the home in September 2019. The husband testified that the wife required him to move under the threat of calling the police. The wife denies this claim and states that the husband chose to leave.

127I make no finding on this issue. However, I agree with the husband that after continuing to cohabit in the matrimonial home for 10 months post-separation, it was best for the child for him to find a new residence. Continued cohabitation can be stressful for parties and children.

128It was entirely reasonable that the husband rented a home for $2,700 per month. He resided there for approximately nine months. The rent was less than the carrying costs on either of the party’s two homes.

129The wife testified that the husband could have lived in Okanagan, which is where the husband wanted to live.

130However, in November 2019, Okanagan was in a disastrous state. The wife chose not to attend at that jointly owned property to observe the condition, and she chose not to be involved in the required steps to evict the tenant or to renovate the home. However, the husband provided her with pictures of Okanagan. They clearly indicate that the home was not livable when the tenant finally moved out. The renovation to improve the home’s condition took approximately six months.

131The parties could have consented to an order making each of them solely liable for the carrying costs and insurance on their respective homes and cars. In that scenario, the wife would be liable for higher costs given that the prior mortgage on Tollbar was variable, whereas Okanagan was fixed, and interest rates have increased dramatically. Even now, with the rates fixed on both properties, her mortgage payments are materially higher than the husband. Since Tollbar is a more valuable and larger home, the other carrying costs are likely higher as well. However, as stated above, the parties now agree to jointly share these expenses. This is a benefit to the wife.

132I determine that the husband’s rent during this period of time should be treated as a joint liability between the parties, given the shared approach to the payment of expenses.

133The husband refers to his request as one of occupation rent. I would not describe it that way. It is a request for the wife to contribute 50% of the rental fees that he incurred as part of the overall sharing of the living expenses.

134The request is reasonable, and it is fair. The wife shall pay the husband $12,150 to equalize this expense.

B. THE OKANAGAN RENOVATION EXPENSES

135The husband seeks an order that the wife contribute 50% of the actual expenses incurred to renovate Okanagan. He admits that only $74,500 has been paid to date. The sum of $52,500 from the parties’ line of credit was paid to the contractor and the husband purchased approximately $22,000 in materials or services.

136The husband testified that he obtained three renovation quotes and that Mr. Agajani’s quote was the least expensive. He sent all three quotes to the wife after they had discussions about the renovations. The wife never responded to the email that he sent with the quotes. As Mr. Agajani was the contractor who renovated Tollbar, the husband felt confident about retaining him.

137The wife denies any involvement in any discussion about the renovation, or any knowledge about the contractor. She testified that her only information about the husband’s plan came from an email “FYI” with renovation quotes from an old plan to renovate Okanagan. She does not know if she previously met the contractor. The wife consented to the husband’s withdrawal of $52,500 from joint funds as she trusted him at the time. She now states that the renovation expenses were excessive and too expensive.

138I disagree with the wife’s evidence in this area and find that she is not credible. The wife is a structural engineer who had access to the quotes and the pictures. She had knowledge about the Tollbar renovation that was completed in 2017. The wife’s complaints are not founded.

139As I have already explained, the wife chose not to attend at Okanagan, chose not to be involved in the renovation or to voice any concerns. Yet the wife did not consider Okanagan to be the husband’s home.

140In any event, the wife acknowledges that she must make a further contribution towards the renovation expenses. The issue is whether she contributes her 50% share as if the total cost was $120,000, which she believes is reasonable, or $155,900, which the husband states is the total cost inclusive of hst.

141The wife shall be liable for 50% of the total renovation costs on Okanagan for the following reasons.

142The wife’s quote of $120,000, ostensibly provided by third-party contractors who never attended at the home or met with the husband or his contractor, is not reliable. It is unclear as to what information was provided to the unnamed persons or how they arrived at the quote. Moreover, while the wife was evasive on this point, she seems to have acknowledged that the $120,000 quote may not have included hst. Contractors incur hst when they purchase services and goods from third parties, and they must bill clients hst. There is no evidence that the unnamed contractors would be prepared to do this large project on a cash basis, or otherwise without charging hst. Once the tax is added to the wife’s quote, the amount payable would be $135,600.

143The parties’ quotes inclusive of hst are less than $20,000 apart. I prefer the quote by Mr. Agajani, who assessed the work that needed to be done and undertook the renovation.

144The renovation costs of Tollbar were at least $15,000 more than Okanagan, even though the improvements were cosmetic and completed more quickly than this project.

145The husband did not act unreasonably in seeking renovations that would provide him and the child with a home of similar quality to the wife.

146The sale price or buy-out price for Okanagan will be higher because of the renovations, which benefits the wife.

147I accept Mr. Agajani’s evidence that he is not prepared to accept less than the total amount outstanding, which is approximately $88,000. M. Agajani has been waiting since 2018, as the husband repeatedly advised him that this matter would be completed shortly. I also accept his evidence that the husband and Avesta Group Inc. are one and the same. It is not significant that both names were on the invoices.

148Mr. Agajani’s retainer and receipts clearly state that hst is included in the amounts owing. I accept the husband’s evidence that his actual payments do not follow the amounts listed in the accounts, as the contractor agreed to receive lump sum payments during the process with the balance paid after the fact. The total outstanding amount includes the required hst payments. Mr. Agajani is an established contractor who could not run his business without charging hst.

149There is no evidence that the approximately $163,000 paid to Mr. Agajani to renovate Tollbar was paid in cash or otherwise without hst.

150There is no dispute that the husband made payments to the contractor of $52,500 and $22,000 in other costs.

151Finally, the husband offered that the balance owing to Mr. Agajani could be paid directly from the net proceeds of sale/transfer of the parties’ homes. This should reassure the wife that Mr. Agajani is being paid in full. I agree.

152The amount owed by the wife on account of Okanagan shall be $51,720. The husband owes the balance. These amounts shall be paid directly to Mr. Agajani from the net proceeds of sale/transfer.

C. THE TENANT’S RENTAL PAYMENTS

153Okanagan is a jointly owned property. The tenant paid $12,000 in rent after the date of separation and the husband retained the entirety of this amount.

154In the same way that the wife recognizes her liability for 50% of the legal costs incurred to evict the tenant and 50% of the renovation costs, she has a right to 50% of the rent received by the husband.

155The wife is entitled to 50% of the rent that the husband collected from the tenant, which is $12,000. Therefore, the husband shall pay the wife the sum of $6,000.

D. MS. SIEDEL’S FEES

156The husband sought an order that the wife pay 50% of the fees that he paid to Ms. Seidel in his opening statement and affidavit. He paid the sum of $1,875.

157The husband’s draft order does not include this request. In any event, I would not grant this relief as the husband failed to produce a retainer agreement that compelled the wife to contribute to Ms. Seidel’s fees.

158The wife is prepared to share the fees if the husband contributes to the appraisal expenses that she incurred. This potential agreement can be addressed outside of the proceeding if either party wishes to pursue the sharing of these expenses.

V. COSTS

159Family law litigants are encouraged to settle their disputes without resort to the courts and to seek reasonable compromise whenever possible.

160Rules 24(1), (5), and (12)(a) and (b) and Rule 18 of the FLR frame the exercise of the court’s discretion when awarding costs. Assessing costs requires consideration of various factors including each party’s relative success, reasonable/unreasonable behaviour and positions taken, the time spent by counsel and their legal fees, other expenses, and other relevant matters.

161The principles guiding the court’s exercise of its discretion pursuant to the FLR are well-established. The primary objective, of course, is to enable the court to deal with cases in a fair and timely manner. Four fundamental purposes are served: (1) to partially indemnify successful litigants for the cost of litigation; (2) to encourage settlement; (3) to discourage and sanction inappropriate behaviour by litigants; [16] and (4) to ensure that cases are dealt with justly. [17]

162Family law litigants must act in a reasonable and cost-effective way; they should, and will, be held accountable for the positions they take in their litigation. [18] As observed by the Court of Appeal in Beaver v. Hill, 2018 ONCA 840 [19], reasonableness and proportionality frame the exercise of the court’s discretion. The amount to be awarded is what the “court views as a fair and reasonable amount that should be paid by the unsuccessful [party]”: Boucher v. Public Accountants Council for the Province of Ontario [20].

163The wife seeks an order for no costs, stating that there was divided success and neither party beat their offers. The wife argues that she was more successful on more of the items in dispute. She also submits that the consent orders executed last week mimic the orders that she sought at trial. During this litigation, the wife incurred legal fees and related costs of approximately $103,000, including approximately $35,000 for the trial.

164The husband seeks an order for costs in the amount of $100,000, stating that he was the successful party on the most significant issue, which is the Mahr. The amount sought falls between the partial indemnity and substantial indemnity scale. During this litigation, the husband incurred costs of approximately $146,0000, including approximately $70,000 for the trial.

165As plainly stated by Pazaratz J. in Scipione v. Del Sordo, 2015 Carswell ONT 5982 [21], “Who got what they asked for?”

166The husband was more successful on the most significant issue in this case, the Mahr. Therefore, while the wife may have been more successful on a larger number of items, she was unsuccessful on the issue that drove the parties to incur the costs of this trial.

167It was the wife’s unreasonable position in respect of the Mahr that necessitated this trial. The law in Ontario on the inclusion of the Mahr in the calculation of NFP is well-settled, yet she refused to accept same.

168While I rejected the husband’s position that the Mahr is not a marriage date asset or debt, his approach to dealing with the Mahr is a better one than that taken by the wife.

169From the overall monetary perspective, the husband is again more successful than the wife. The final resolution of this matter requires the wife to pay the husband the sum of $3,800, after accounting for the equalization payment, the debts, post-separation adjustments, the renovation expenses, rent and the Mahr.

170A review of the wife’s four offers to settle confirms that she sought a net amount far more than the sum of $3,800. The wife was unwilling to accept that the Mahr payment would be anything less than 300 gold coins, or approximately $140,000 (based upon the separation date agreed-upon value for 356 gold coins in the amount of $163,000).

171The wife’s concession in some offers that the Mahr be addressed in Iran was no concession. The Mahr is valuable in Iran.

172The trial would have been shorter if the husband had accepted some of the severable terms of the wife’s offers. Also, the husband wasted court time on public policy issues, enforcement in Ontario, and forum shopping. He later abandoned his position on each of these issues.

173However, the husband made one counter-offer and three offers to settle. It is difficult for me to quantify the value of the offers, although the counter-offer and the two final offers provide a better result to the wife than the requirement that she pay the sum of $3,800. The husband’s counter-offer dated April 27, 2023, has no payment between the parties in Ontario, and the Mahr is addressed in Iran. The offer dated October 2023 offer, was likely even better (depending on the current value of the equity in the homes). The husband was prepared to forgo a reimbursement of post-separation expenses, the Mahr would be dealt with in Iran, and the wife could choose between the sale and transfers of the parties’ homes. Moreover, certain terms were severable. The offer made on the eve of trial was the most favourable even though the Mahr was valued differently than my decision.

174In summary, while there has been a measure of divided success, the husband was more successful than the wife.

175For these reasons, the husband is entitled to some amount of costs. However, the husband’s costs are excessive as compared to those claimed by the wife, and I must consider the factors listed above.

176The husband’s costs inappropriately include attendances at certain court events, and costs incurred to address the public policy, enforcement, and forum shopping issues. The requested costs also include time spent on issues that resolved on November 23 and 24, 2023, and in accordance with the wife’s requested terms.

177In consideration of all the above factors, I find that the husband is entitled to costs in the amount of $45,000, inclusive. The costs shall be paid from the wife’s share of the net proceeds of the sale/transfer of the properties.

VI. FINAL THOUGHTS

178It is unfortunate that the parties failed to follow through with an agreement they reached through mediation with a member of their community in January 2022. The parties disagree as to which party walked away from the deal. They do agree that the terms were never incorporated into a formal offer to settle, or any minutes of settlement. Ultimately, both parties resiled from the agreement.

179Collectively, the parties incurred legal fees and costs of approximately $246,000. That is a significant portion of this family’s wealth. At the end of the day the parties continue to jointly own four properties in Ontario and in Iran [22] and the wife pays the husband the sum of $3,800.

180Rather than settle this matter at any time over the past five years, the parties opted to take this case to trial.

181The natural consequence of a trial is considerable emotional and financial costs to both parties.

182Family law trials are a lot like gambling, in one way or another most people lose. And, like gambling, you play you pay.