Court File and Parties

Newmarket Court File No.: FC-23-224-00 Date: 2024-01-09

Superior Court of Justice – Ontario – Family Court

Re: Minoo Modabber, Applicant And: Javad Kermanshahani, Respondent

Before: The Honourable Mr. Justice R. Kaufman

Counsel: E. Mazinani/A. Mazinani, Counsel for the Applicant S. Conlin, Counsel for the Respondent

Heard: In Chambers

Ruling on Motion

[1] The Applicant and the Respondent have each filed a 14B Motion requesting the release of funds from the net proceeds of sale of their matrimonial home and other relief regarding reimbursement of the costs of certain renovations that apparently enhanced the sale of the home.

[2] The mere fact that either or both parties felt it necessary to litigate a relatively minor dispute suggests that the matter is not procedural, uncomplicated or unopposed and not the subject matter of a 14B Motion.

[3] The parties agree that each will receive the sum of $75,000 from the net proceeds.

[4] Their apparent agreement was that the Respondent would reimburse the Applicant 50 % of the costs of renovations up to $7,500 plus 5% interest on the amount to be reimbursed.

[5] On June 5, 2023, Ms. Conlin proposed that each party would receive the sum of $75,000 from the sale proceeds. The Respondent also agreed to reimburse the Applicant for his 1/2 share of the cost of improvements, limited to $7,500 plus 5% annual interest. This proposal was without prejudice to either party’s position regarding the division of the house proceeds.

[6] On June 9, 2023, Mr. Mazinani corresponded to the Respondent’s counsel setting out that his client be reimbursed by the Respondent one-half of the cost of improvements, limited to $7,500, plus 5% annual interest, after the sale of the property, from his share of the net proceeds of the sale of the property.

[7] That seems like a deal was made.

[8] On November 27, 2023, Ms. Delmar, acting as one of the counsels for the Respondent, requested backup (documentary proof) for the source of the cash (i.e.- withdrawal from the bank account). It appears that the Respondent was concerned that the expended funds to pay for the renovations emanated from a joint business account for which he no longer had access. This seems like a reasonable request but where was this request part of the agreement? If relevant, the “deal” was without prejudice to each party’s position regarding the distribution of the sale proceeds. This issue could have been argued at a later date. The litigation had not resolved. The Respondent could have served a Request for Information regarding the source of the funds utilized for payment of the renovations.

[9] On December 7, 2023, Ms. Mazinani corresponded requesting reimbursement of $9,332.39, representing 50% of the alleged actual expenses incurred for renovations to the home. Where was it agreed that 50% of the actual amount allegedly expended would be refunded? What happened to the cap of $7,500 agreed upon by the parties, as evidenced above? The Court expects that counsel from the same firm would not have disparate views of what amount was owing to the Applicant.

[10] It is noted that on November 30, 2023, at 9:28 a.m., the Respondent offered to release $7,050 to the Applicant representing the portions of the expenses that were backed up with evidence and proof of payment. In other words, there was a $450 difference of opinion, ample funds remained in trust following the disbursement of the agreed-upon $75,000 and the parties have a pending court appearance on February 14, 2024.

[11] In response, at 4:08 p.m. on the very same day, the Applicant’s counsel served the 14B in which costs are being sought together with an Order enforcing the agreement.

[12] On December 5, 2023, the Applicant’s counsel rejected the Respondent’s proposal to release the funds, as had been agreed upon, and withdraw her 14B Motion because of her client’s entitlement for the costs of the 14B motion.

Analysis

[13] I am tempted to release this decision to Legal Research for the amusement of lawyers throughout Canada. I would do so but there is nothing funny about this case. However, perhaps there is an educational component for younger counsel. Perhaps for counsel not so young, as well.

[14] I am strongly recommending that the lawyers involved in this case send their respective clients a copy of Rule 2 of the Family Law Rules. Focus should be on the part that states that the Court, counsels and the litigants are essentially partners in the duty to promote the primary objectives of the Rules.

[15] In fact, when the parties appear in Court on February 14, 2024, I am ordering counsels to assure the presiding Judge that they have shared this Ruling with their clients.

[16] Lawyers should appreciate that it takes years to earn a solid reputation but mere moments to destroy it. That also refers to the reputation amongst the local Bar as well as the Bench.

[17] I want the lawyers to carefully review Rule 24 (4) of the Rules. Assuming that someone feels that success has been achieved, it is outweighed by the unreasonableness of the party’s behaviour.

[18] There will be an Order that each party receives the sum of $75,000 from the sale proceeds. There will be an Order that the Applicant will receive a further $7,500 as reimbursement, as agreed upon, for 50% of her disbursement for the renovations.

[19] There will be no Order for costs.

[20] If the parties cannot agree on the wording of an Order, if required by the real estate lawyer before the funds are disbursed, they can both draft Orders and present them to the presiding Justice on February 14.

The Honourable Justice R. Kaufman Date: January 9, 2024