Court File and Parties

COURT FILE NO.: FS-23-38496-0000 DATE: 20240703 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Setareh Namdar Applicant – and – Amir Ali Maali Respondent

Counsel: Harold Niman and Meysa Maleki, for the Applicant Dani Frodis, for the Respondent

HEARD: July 2, 2024

Kraft, J.

Overview

[1] The applicant, Setareh Namdar (“Setareh”), brings a motion under Rule 25(19) of the Family Law Rules, O. Reg. 114/99 (“FLRs”) seeking to change or delete parts of an Order I made on March 25, 2024. Specifically, Setareh asks the Court to remove the last two sentences from paragraph 63 of my Endorsement, which are underlined and italicized below:

“The Ontario FLA applies with respect to Setareh’s claims for spousal support. Although I have found that this family had more than one ordinary residence, both in Iran and Ontario, the place where both spouses had their last common habitual residence was Iran. As such, the FLA will not apply to Setareh’s property division claims, or her equitable claims for unjust enrichment and joint family venture. Section 15 of the FLA is applicable such that the law of Iran will govern the property rights of both spouses.

[2] Setareh submits that the Court has jurisdiction to remove these sentences because they contain a mistake and/or the Order was made without notice to her. Setareh argued that in para. 63, I mistakenly conflated the term “property division” with “equitable claims.” During oral submissions it became clear that Setareh was not seeking necessarily to remove both sentences in para. 63 of my Endorsement, but, rather, the references or words that relate the FLA to her equitable claims. Specifically, the words “or her equitable claims for unjust enrichment and joint family venture.”

[3] The respondent, Amir Ali Maali (“Amir”), argues that this is not a proper motion to be brought under r. 25(19) because this rule cannot be used to empower the Court to revisit, reopen or reargue a case or allow the Court to hear an appeal of its own decision.

Issue to be determined:

[4] The only issue for me to determine is whether Setareh falls under one of the exceptions in Rule 25(19) of the FLRs, thereby giving me jurisdiction to change my Endorsement.

Rule 25(19) of the FLRs

[5] Rule 25(19) states that

The Court may, on motion, change an order that,

(a) Was obtained by fraud;

(b) Contains a mistake;

(c) Needs to be changed to deal with a mater that was before the court but that it did not decide;

(d) Was made without notice; or

(e) Was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[6] By way of brief background, in my Endorsement I dismissed Amir’s motion for an order and declaration that Ontario lacked jurisdiction over Setareh’s claims under the FLA. I found that Ontario had jurisdiction simplicter to deal with Setareh’s application and that Ontario was the more appropriate forum under the doctrine of forum non coveniens. In arriving at these decisions, I found that the parties’ last common habitual residence was Iran, a fact, Setareh’s counsel acknowledged. This finding was necessary to resolve the matters that were before me. I also found that Setareh’s divorce application was a nullity pursuant to the Divorce Act because she had not been in Ontario for one year prior to issuing her application.

[7] Having found that the parties’ last common habitual residence was Iran, I found that s.15 of the FLA applies, such that the law of Iran would govern the property rights of both spouses, as opposed to the internal property laws of Ontario.

[8] The issue is not whether s.15 of the FLA applies to this case. Having found that Iran is the parties’ last common habitual residence, it follows that s.15 applies and the laws of Iran govern the parties’ property rights. Section 15 of the FLA is prescriptive. Section 15 applies by its terms whether it was before me or not. That finding was neither a mistake nor was made without notice to her, such that I have jurisdiction to change my Order pursuant to r. 25(19) of the FLRs.

Change the Order because it was Made without Notice?

[9] Setareh argues that paragraph 63 of my Endorsement essentially prevents her from being able to bring her equitable claims before the Court because I made a determination that s.15 of the FLA applies to her equitable claims, even those which are not necessarily property claims. That issue, she submits was not raised or argued before me.

[10] She submits that she had no notice that the Court was going to be making any decision about her equitable claims for unjust enrichment and joint family venture.

[11] I agree with Amir that s. 15 of the FLA was before me. It was referenced during oral argument by counsel for both parties. It was referenced in paragraphs 20, 27, 30, 32, 33 of Amir’s Factum, dated March 8, 2024. Any suggestion that Setareh did not have notice of s.15 of the FLA being addressed in My Endorsement is not accurate, in my view.

[12] When Amir’s counsel was asked by the Court during this motion as to whether he agreed that the issue of whether the FLA applies to Setareh’s equitable claims was not before me, he was not able to state that it was. Counsel for Amir argued that whether the FLA applies to Setareh’s equitable claims is not something about which he is certain. However, that is not the question before me on this motion. The question is whether Setareh had notice that the Court would be making an order about whether the FLA applies to her equitable claims. If she did not have such notice, then the Court has the ability to change its order under r. 25(19).

[13] I find that whether the FLA applies to Setareh’s equitable claims was not an issue before me on the long motion. My reference to s.15 of the FLA in the Endorsement emanated from my finding that Iran was the parties’ last common habitual residence and the fact that s.15 is prescriptive over the parties’ property rights, whether referred to or not. I have determined that the language in paragraph 63 of my Endorsement is ambiguous and requires clarification because as in its current form it conveys a broader meaning than was intended.

[14] I agree with Setareh that whether the FLA applies to her equitable claims for unjust enrichment and joint family venture was not before me and therefore, the language in paragraph 63 of my Endorsement must be clarified to show that I intended to refer to “property rights” not specific equitable claims that may or may not result in a proprietary interest for Setareh. On this basis, I find that I can and should correct my Endorsement under r. 25(19)(d) and clarify what was before me. I also find that clarification is needed because of an ambiguity in my Endorsement given paragraph 15 in which I state that

“[15] For Setareh’s claims for equitable proprietary or monetary remedies, there are no statutory provisions governing jurisdiction or entitlement for that matter.”

[15] Paragraph 15 of my Endorsement is inconsistent with paragraph 63 when I later state that the FLA will not apply to Setareh’s equitable claims for unjust enrichment and joint family venture, suggesting that these equitable claims are governed by the FLA. Equitable claims are rooted in the common law.

[16] In terms of Setareh’s equitable claims for unjust enrichment and joint family ventures, it is trite remedies for unjust enrichment are restitutionary in nature; that is, the object of the remedy is to require the defendant to repay or reverse the unjustified enrichment. A successful claim for unjust enrichment may attract either a “personal restitutionary award” or a “restitutionary proprietary award”. In other words, the plaintiff may be entitled to a monetary or a proprietary remedy (Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, at p. 669, per La Forest J.).

[17] There are only two choices of remedies for an unjust enrichment: a monetary award, assessed on a fee-for-services basis; or a proprietary one (generally taking the form of a remedial constructive trust), where the claimant can show that the benefit conferred contributed to the acquisition, preservation, maintenance, or improvement of specific property. Kerr v. Baranow, 2011 SCC 10, paragraph 57.

[18] The Court has recognized that, in some cases, when a monetary award is inappropriate or insufficient, a proprietary remedy may be required.

[19] In such cases, the basis of the unjust enrichment is the retention of an inappropriately disproportionate amount of wealth by one party when the parties have been engaged in a joint family venture and there is a clear link between the claimant’s contributions to the joint venture and the accumulation of wealth: Kerr, paragraph 81.

[20] In paragraph 100 of Kerr, the SCC concluded as follows:

a. The monetary remedy for unjust enrichment is not restricted to an award based on a fee-for-services approach.

b. Where the unjust enrichment is most realistically characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, and a monetary award is appropriate, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contributions.

c. To be entitled to a monetary remedy of this nature, the claimant must show both (a) that there was, in fact, a joint family venture, and (b) that there is a link between his or her contributions to it and the accumulation of assets and/or wealth.

d. Whether there was a joint family venture is a question of fact and may be assessed by having regard to all of the relevant circumstances, including factors relating to (a) mutual effort, (b) economic integration, (c) actual intent and (d) priority of the family.

[21] To the extent that Setareh has advanced claims for unjust enrichment and/or a joint family venture, the FLA does not apply, the common law does. Paragraph 63 of my Endorsement, dated March 25, 2024, shall be corrected so the references to Setareh’s equitable claims for unjust enrichment and joint family venture are not referenced in relation to the FLA.

[22] I do not make a finding that Iranian law applies to Setareh’s equitable and joint family venture claims for non-property relief. My Endorsement referenced s.15 of the FLA in relation to the law of Iran dealing with the parties’ property claims. Whether Iranian law applies to equitable claims, more generally, will be for a later decision.

ORDER

[23] This Court makes the following order:

a. Paragraph 63 of my Endorsement, dated March 25, 2024, shall be deleted and replaced with the following paragraph:

63. The Ontario FLA applies with respect to Setareh’s claims for spousal support. Although I have found that this family had more than one ordinary residence, both in Iran and Ontario, the place where both spouses had their last common habitual residence was Iran. As such, the FLA will not apply to Setareh’s property division claims or the proprietary elements of her equitable claims for unjust enrichment because s.15 of the FLA is clear that the law of Iran will govern the property rights of both spouses.

b. Paragraphs 61 and 62 of my Endorsement, dated March 25, 2024 remain in full force and effect.

c. Paragraph 64 of my Endorsement dated March 25, 2024 shall be deleted and replaced with the following paragraph.

64. The parties are encouraged to settle costs. If they are unable to, Setareh shall submit costs submissions of no more than 3 pages, not including a Bill of Costs or offers to settle within 15 days from the release of this Endorsement. Amir shall file responding costs submissions of no more than 3 pages, not including a Bill of Costs or offers to settle within 7 days of being served with Setareh’s costs submissions. Reply costs submissions, if any, shall be served and filed of no more than 1 page within 5 days of being served with Amir’s responding costs submissions.

Released: July 3 2024

Justice Kraft