Court File and Parties

COURT FILE NO.: FS-22-29138 DATE: 20241107

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Golnaz Amirmoezi Applicant – and – Saman Motieenia Respondent – and – Elaheh Amirmoezi Added Respondent

COUNSEL: Ken Snider, for the Applicant Self-Represented Eric D. Freedman, for the Added Respondent

HEARD: October 21, 22, 23, 2024

Reasons for Decision

M. Kraft, J.

Nature of the Trial

[1] This case involves multiple parties with complex financial and legal relationships, including a husband and wife, the wife’s mother, two separate third parties with ownership interests in properties, and issues of trust, property rights, and claims arising from the breakdown of a marriage. An overview of the key facts and issues are as follows:

The Marriage

a. Golnaz Amirmoezi ("Golnaz") and Saman Motieenia ("Saman") were married for 14 years and have two children.

b. Golnaz seeks both retroactive and prospective child support from Saman, requesting that the court impute an annual income of $100,000 to him.

c. The children reside with Golnaz in Toronto. Golnaz’s mother has been residing with Golnaz and children in Toronto and is in Canada on an extended travel visa. Golnaz’s mother resides in Iran.

d. There have been several orders made in this court, including requiring Saman to pay Golnaz child support and make financial disclosure. Saman is in breach of those orders.

e. On November 23, 2023, the parties signed Minutes of Settlement addressing their parenting issues. They agreed that Golnaz would have sole decision-making responsibility and that the children would primarily reside with her in Toronto. Saman was granted supervised parenting time on four occasions, followed by unsupervised visits. The only unresolved issue is Golnaz’s ability to travel with the children and the resumption of Saman’s parenting time upon his return to Canada.

f. After finalizing the parenting issues, Saman saw the children once, supervised by Golnaz’s sister, at the end of November 2023. Since then, Saman has been in Iran. He is currently banned from leaving Iran until he pays the Mahr to Golnaz. Saman claims he cannot afford to pay the Mahr, even in a reduced amount. He has not seen or spoken to the children in 12 months.

g. Golnaz has abandoned her spousal support and property claims against Saman.

The Investment – Carmichael Property:

a. In 2015, Golnaz’s mother, Elaheh Amirmoezi ("Elaheh") (the added respondent), who lives in Iran, and Saman decided to jointly invest in and renovate a residential property in Toronto. Elaheh provided funds for this project, and a property located at 110 Carmichael Avenue, Toronto ON M5M 2W9 (“Carmichael Property”) was purchased with her funds; [1]

b. Saman was given Power of Attorney over Elaheh’ Canadian bank account to manage the finances for the project.

c. The goal was to renovate the property and sell it, with Elaheh expecting to be repaid and to make a profit from the sale.

Additional Properties – the Castlefield Property and the Viewmount Property:

a. Before the renovation of the Carmichael Property was complete, Saman bought two other properties in Toronto in partnership with two separate third parties, namely,

i. On January 31, 2017, 53 Viewmount Avenue, North York ON M6B 1T2 (“Viewmount property”) was purchased; [2] and

ii. On November 6, 2017, 550 Castlefield Avenue, Toronto ON M5N 1L6 (“Castlefield Property) was purchased. [3]

b. Trust agreements were entered into between Saman and these third parties to establish his 50% beneficial interest in each property, despite the manner in which title was held.

c. Saman mortgaged all three properties. The Carmichael Property had four mortgages registered on title; the Castlefield Property had three mortgages registered on title as did the Viewmount Property.

d. Elaheh invested more funds into the renovation of the Carmichael Property since they began in 2016 and took about 3 years. Saman withdrew those funds from her Canadian bank account.

The Alleged Misuse of Funds:

e. Elaheh claims that between 2015 and 2022 Saman misused her funds to the extent of $830,700 which he took from her Canadian bank account and used them not only for the renovations of the Carmichael Property but also to acquire, maintain, and service mortgages for all three properties, including the Viewmount Property and the Castlefield Property.

f. The Carmichael Property was sold on June 21, 2018. Saman placed the net proceeds of sale in a bank account in Golnaz’s name of about $616,000. Elaheh was not repaid. Elaheh argues that Saman then used the net proceeds to sale toward servicing the mortgages on the Viewmount Property and/or to renovate and service the mortgages on the Carmichael Property or for other purposes unknown to Elaheh. Saman has not provided an accounting of his use of Elaheh’s funds despite being ordered to do so.

g. On December 11, 2018, an agreement was made between Elaheh and Saman that they had entered into a home construction business with Elaheh having invested $470,000 toward the Viewmount Property and the Castlefield Property and Saman having invested $210,000.

Sale of Property and Litigation:

h. On March 3, 2021, the Castlefield Property was sold, and the net proceeds were paid to the third party who owned the property.

i. The third party made a payment of $224,500 to Saman to give him part of the net proceeds but he did not pay Saman his full 50% share of the property, and, as a result, Saman has commenced civil litigation to recover his share. Despite having received these funds from the sale of the Castlefield Property, Saman did not repay Elaheh.

j. On June 11, 2021, to address Elaheh’s concerns about Saman’s litigation with the third party and the fact that she may not be repaid, Elaheh, Saman and Saman’s mother entered into a new Trust Agreement where Saman agreed to act as trustee for Elaheh’s $620,000 investment and his mother’s $210,000 investment.

Separation and Sale of the Viewmount Property:

k. Golnaz and Saman separated on January 30 2022, and one month later, on February 23, 2022, Saman sold the third property – the Viewmount Property, allegedly without notifying Elaheh.

l. Golnaz issued this Application, seeking relief against Saman because of the marriage breakdown, including child support, spousal support, sole decision-making responsibility for the parties’ two children, property division, and that the net proceeds of sale from the third property be held in trust. Golnaz named her mother as an added respondent to the Application because her mother’s claims impacted her claims.

m. Initially this court made an order that the net proceeds of the Viewmount Property be held in trust. The third party, who was on title for 50% of the Viewmount Property sought and received an order to be paid his 50% share of the net sale proceeds.

n. Saman’s 50% share of the net proceeds of sale from the Viewmount Property are being held in trust by the real estate lawyer, Philip Ulrich, in the sum of $178,374.56 (“Proceeds in Trust”). The Proceeds in Trust are the single pool of funds available to satisfy all claims.

Issues to be decided at Trial

[2] The issues to be decided at trial are:

(a) What amount of retroactive and prospective child support does Saman owe Golnaz? This includes determining whether income should be imputed to Saman at the proposed $100,000 per year or some other amount.

(b) Whether Saman owes Elaheh $830,700 on account of funds he withdrew from her TD Bank account using a Power of Attorney which he then used in his real estate development business involving the purchase and sale of three properties?

(c) If the answer to (b) is yes, should the Proceeds held in Trust by Philip Ulrich be paid to Elaheh as partial satisfaction of her claims against Saman, or to Golnaz as lump sum retroactive and ongoing child support?

(d) Should Elaheh be permitted to travel with the children outside of Canada without the need for Saman’s consent?

Brief Factual Background

[3] Saman and Golnaz were born in Iran.

[4] They met in London, U.K., in January 2002, where they were both taking an English course prior to attending the University of Westminster in London. Both parties studied business and accounting at University. Saman obtained a bachelor’s degree in business commercial finance and accounting. Golnaz obtained a degree in accounting.

[5] In 2002, Saman immigrated to Toronto with his family. He became a permanent resident of Canada on October 10, 2004.

[6] In 2006, Saman returned to London.

[7] The parties were married in Iran on August 5, 2008.

[8] They have two children of their marriage, M., a daughter, who is 9 years old, and L., a son, who is 4 years old.

[9] In 2011, Golnaz applied to become a Permanent Resident of the United Kingdom, but her application was rejected. The parties then decided to move to Canada.

[10] In 2012, Saman came to Canada. He then sponsored Golnaz and she came to Canada in June, 2014.

[11] During the marriage, Golnaz worked as a bookkeeper and then did not work outside of the home once M. was born. Golnaz testified that her only source of income is Ontario Works, which she began receiving in 2023.

[12] During the marriage, Saman worked as an accountant for MLA Power Corporation in Markham and in 2015, he started a Telecommunications company. Saman testified that the core of his business was wholesaling long distance calls and terminating the calls. In or around 2018, CRA audited Saman’s company, and thereafter, the company ceased operating because it owed CRA $9.5 million in HST. The outcome of the audit is unknown. Saman then decided to become involved in real estate development.

[13] The first time Elaheh came to Canada to visit was in 2016. She had inherited money and properties from her father and wanted to invest in real estate in Canada. Saman testified that he helped Elaheh open a bank account at TD Canada Trust and they decided they would purchase and renovate a house and sell it for a profit. Elaheh would provide the funds and Saman would manage the project.

[14] Elaheh submits that her funds totalling $830,700 were used by Saman to purchase and/or renovate three properties between 2015 and 2022, namely,

(a) 110 Carmichael Avenue, Toronto ON M5M 2W9 (“Carmichael Property”);

(b) 53 Viewmount Avenue, North York ON M6B 1T2 (“Viewmount Property”); and

(c) 550 Castlefield Avenue, Toronto ON M5N 1L6 (“Castlefield Property”).

[15] Elaheh argues that Saman has never paid her back for her investment, despite two agreements being signed that he do so. Further, she submits that Saman was enriched by her advancement of funds to him; she was correspondingly deprived; and there is no juristic reason for Saman to have been enriched at her detriment. The remedy she seeks is a monetary award of $830,700. Finally, Elaheh submits that Saman has never properly accounted for the monies he took from her, with and without her consent; all the evidence for such an accounting is in his possession or control; and his failure to do so should be sufficient for the court to draw an adverse inference against him. Elaheh has grounded her claims against Saman in claim in unjust enrichment and she seeks a monetary remedy.

[16] Golnaz describes Saman as having been physically, financially, and psychologically abusive toward her and the children during the marriage. She also describes Saman as having a history of drug use. This was denied by Saman.

[17] The parties separated on January 31, 2022, when Golnaz was charged criminally for assaulting Saman. Golnaz’s criminal charges were resolved prior to this trial.

[18] Other than a short period of time after the separation, the two children have resided in Golnaz’s primary care since the separation.

Relevant Litigation History

[19] On February 23, 2022, less than one month after the parties’ separated, Saman sold the Viewmount Property, which he owned with a third party named Morshedi, for $2,035,000. Upon learning of the sale of the Viewmount Property, Golnaz brought an urgent motion to register a Certificate of Pending Litigation (“CPL”) on title to the Viewmount Property.

[20] On April 11, 2022, Golnaz issued the within Application, seeking, among other things, a divorce, decision-making responsibility for the children, primary residence of the children, child support, spousal support, equalization of net family property; an order registering a CPL on title to the Viewmount Property; and an order that the net proceeds of sale from the Viewmount Property be held in trust pending further agreement of the parties or court order. At trial, Golnaz abandoned her claims for spousal support and property division.

[21] Golnaz named her mother, Elaheh, as a respondent in this family law proceeding because she believed her mother had a claim of approximately $670,000 for monies she advanced to Saman which would impact her equalization claim.

[22] On May 17, 2022, Golnaz brought a motion seeking that the net proceeds of sale from the Viewmount Property be held in trust, pending further order of the Court. Morshedi opposed Golnaz’s motion and sought the release of his 50% share of the net proceeds of sale. On May 19, 2022, Pinto, J. made an order registering a CPL on title to the Viewmount Property, and an order that the net proceeds of sale from the Viewmount Property be held in trust pending further court order.

[23] On July 18, 2022, the parties had a case conference before Nishikawa, J.. Saman had not yet served or filed an Answer despite having been served with Golnaz’s Application two months earlier, nor had he responded to Golnaz’s disclosure requests. Saman was granted a further 30 days to file his answer and provide the requested financial disclosure. Saman was granted parenting time by video-conference.

[24] On August 11, 2022, Morshedi, brought a motion to vary the Pinto, J. order dated May 17, 2022, to unfreeze a portion of the net sale proceeds of the Viewmount Property which he claimed belong to him. Sharma, J. made an order releasing the balance of 50% of the net proceeds of sale to Morshedi. Accordingly, Morshedi has no further claims to funds from the Viewmount Property.

[25] On July 25, 2023, the parties attended a case conference before Brownstone, J., at which time she made a consent order (“Brownstone Order”) as follows:

(a) Saman was to provide copies of his income tax returns for 2020, 2021 and 2022 by August 4, 2023 and Notices of Assessment upon receipt;

(b) By July 28, 2023, Saman was to provide authorizations to Golnaz for all financial institutions with which he or his businesses, directly or indirectly, solely or jointly, held accounts during the time period from 2017 forward, for all accounts of any kind in which he or his businesses held an interest;

(c) By August 18, 2023, Saman was to provide the remaining disclosure in response to Golnaz’s Requests for Information and her Endorsement of June 19, 2023; and

(d) Saman was to pay interim interim, without prejudice child support for the two children in the sum of $474 a month based on an imputed minimum wage income to him of $31,000 starting August 1, 2023.

[26] Saman did not comply with the Brownstone Order. He never paid child support to Golnaz. He testified that he did not so because his lawyer told him not to pay child support directly to Golnaz but to wait until the Brownstone Order was registered with the Family Responsibility Office. According to Golnaz and Elaheh, Saman never produced the financial disclosure he was ordered to produce. Saman testified that he provided authorizations to Golnaz so she could find out his financial information but there is nothing on the record corroborating this.

[27] On November 23, 2023, the parties signed Minutes of Settlement regarding their parenting issues providing Golnaz with sole decision-making responsibility for both children and primary residence of the children. Saman’s parenting time was to be supervised for four visits before he could have unsupervised time with the children. The terms of the parties’ consent were incorporated into an order of Nishikawa, J. on July 26, 2024, eight months after the Minutes were signed.

[28] It is agreed that Saman last saw the children at the end of November 2023, which visit was supervised by Golnaz’s sister. Saman then left for Iran. He did not tell Golnaz he was going to Iran. He testified that he went to visit his grandmother who was ill and expected that he would return to Canada in 2 weeks. However, Saman is banned from leaving Iran until he pays the Mahr to Golnaz. As a result, Saman has had no contact with the children in 11 months, either by telephone or video conference.

[29] On December 3, 2023, an order of the Family Court in Tehran was made. Golnaz registered her Mahr in Iran. Saman asked the Court in Iran to forgive or reduce the amount of the Mahr from 500 gold coins to a lower amount. [4] The court found that Saman did not prove his inability to make the Mahr payment and, as a result, the Court did not grant forgiveness or a reduction of the Mahr to the husband. Saman appealed this decision.

[30] During the trial, Saman testified that a subsequent order of the Family Court in Tehran was made which reduced the Mahr from 500 gold coins to 150 gold coins, which is the equivalent to $150,000 CAD. Saman claims he cannot pay the Mahr, even in this reduced amount. Until he does so, Saman is banned from being able to leave Iran.

[31] On November 24, 2024, the parties attended a Settlement Conference before Akazaki, J, at which he confirms that the parties had signed Minutes of Settlement regarding the parenting issues and were to submit a draft order incorporating the terms of same. Akazaki, J. granted leave to the parties to conduct questioning; Saman was to serve and file an Answer to Elaheh’s claims by January 31, 2024; Elaheh was to serve her response to Saman’s Request for Information (“RFI”) within 30 days; Saman was to serve his response to Elaheh’s RFI within 30 days; leave was granted to Elaheh to bring a motion for summary judgment against Saman; leave was granted to the parties to bring motions as a result of Saman having failed to produce financial disclosure; and a Trial Management Conference (“TMC”) was scheduled for April 12, 2024.

[32] On April 12, 2024, the parties attended a TMC before Vella, J. Her Endorsement confirms that Saman attended the TMC but had not filed a brief and he had failed to comply with Akazaki, J.’s order of November 24, 2023 to deliver an Answer to Elaheh’s claim by January 31, 2024. Vella, J. granted Saman leave to file his Answer to Elaheh’s claim within 10 days, failing which Elaheh was given leave to bring a 14B motion to note Saman in default with respect to her claims against him. Vella, J. also ordered Golnaz’s counsel to deliver a final RFI to Saman to include the outstanding items from prior RFI’s within 7 days; and Saman to deliver his complete response to the RFI within 30 days of being served with the final RFI.

[33] On September 3, 2024, the parties attended an Exit TMC before Hood, J.. Saman did not attend the exit TMC. Hood, J.’s Endorsement scheduled Golnaz’s motion to strike Saman’s Answer for his non-compliance with the RFI served as ordered by Vella, J., for October 1, 2024. Elaheh was to proceed with her 14B motion to strike Saman’s claims based on Vella, J.’s order and was granted leave to bring her motion to strike also returnable on October 1, 2024.

[34] On September 26, 2024, Horkins, J. heard Elaheh’s 14B motion to strike Saman’s claims because he did not file his Answer to her claims within 10 days of Vella, J.’s order, dated April 12, 2024. While noting that Saman did not attend the exit TMC before Hood, J. on September 3, 2024, and that he did not file his Answer to Elaheh’s claims, Horkins, J. gave him one last chance to file his Answer to Elaheh’s claims by no later than October 9, 2024, failing which the trial judge was to decide what restrictions would apply to Saman’s right to respond to Elaheh’s claims against him at trial.

[35] By the time of the trial, Saman had served his Answer to Elaheh’s claims but he had done so late, and he had not filed the Answer with the Court because of his inability to access Case Centre from Iran. It was confirmed that counsel for Elaheh had received Saman’s Answer to her claims.

Issue One: What amount of retroactive and ongoing child support should Saman pay Golnaz and should income be imputed to Saman in the annual sum of $100,000 as proposed by Golnaz, or in some other amount?

Golnaz’s Claim for Retroactive Child Support and Child Support Arrears

[36] Golnaz seeks child support from Saman from the date of separation onward, namely from February 1, 2022 onward.

[37] Saman has an obligation to pay child support for the two children pursuant to s.15.1 of the Divorce Act, R.S.C., 1985, c.3 (2nd Supp.). Any order for child support is to be made in accordance with the Child Support Guidelines, SOR/97-175 (“CSG”): s.15.1(3) of the Divorce Act.

[38] In D.B.S. v S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231 (“D.B.S.”) at para. 38, the Supreme Court of Canada identified the core historical principles governing child support as follows:

These core principles animate the support obligations that parents have toward their children. They include child support is the right of the child; the right to support survives the breakdown of a child’s parents’ marriage; child support should, as much as possible, provide children with the same standard of living they enjoyed when their parents were together; and finally, the specific amounts of child support owed will vary based upon the income of the payor parent.

[39] More recently, the Supreme Court of Canada reiterated in Colucci v Colucci, 2021 SCC 24, 458 D.L.R. (4th) 183, “the long-established principles that support is the right of the child and that parents have a financial obligation to their children arising at birth and continuing after separation”: at para. 36.

[40] Child support is determined in accordance with the CSG, which are legally binding.

[41] Retroactive child support is a claim for monies that should have been paid by Saman to Golnaz in support. Child Support arrears, on the other hand, is a calculation of unpaid child support that has accumulated under an existing support order of agreement.

[42] Golnaz did not differentiate between her claim for retroactive and child support arrears. Her position at trial was that Saman ought to pay child support for their two children from the date of separation onward based on a minimum wage income.

Retroactive Child Support

[43] There is no dispute that the parties separated on January 31, 2022.

[44] There is an obligation for parents to support their children from birth. This parental obligation, like the children’s concomitant right to support, exists independently of any statute or court order, D.B.S., at para. 54.

[45] Retroactive awards of child support are not exceptional. It cannot be exception that children are returned the support they were rightly due. D.B.S., at para. 97.

[46] D.B.S. set out the four factors the court is to consider in awarding retroactive child support where there is no order or agreement in place for child support. These four factors are meant to balance the child’s interests in a fair standard of support, the payor’s interest in flexibility, and the interest of the child and recipient in certainty and are as follows:

(a) Whether the recipient has an understandable reason for the delay in seeking relief in the courts;

(b) The payor’s conduct;

(c) The children’s circumstances;

(d) Whether a retroactive award would result in hardship.

[47] In applying the D.B.S. factors to the facts of this case, I find as follows:

(a) Golnaz did not delay in seeking child support from Saman. The parties separated on January 31, 2022. She issued the within Application on April 11, 2022, just over 2 months later. Saman knew therefore by April 11, 2022, at the latest, that Golnaz was seeking child support from him for their two children.

(b) I find that Saman then engaged in blameworthy conduct. Blameworthy conduct is anything that privileges the payor parent’s own interests over his children’s right to an appropriate amount of support. “Courts should not hesitate to take into account a payor parent’s blameworthy conduct in considering the propriety of a retroactive award;” D.B.S., at para. 106.

(c) Saman delayed in delivering a responding pleading and in providing financial disclosure to Golnaz. He did not agree to pay any child support to Golnaz until July 23, 2023, which was 16 months after the parties’ had separated. Even after he consented to the child support terms in the Brownstone Order, his evidence is that he did not pay the child support to Golnaz because his lawyer told him not to. By all accounts, Saman has been aware of his obligation to pay child support for his two children, chose not to do so, chose not to provide Golnaz with financial disclosure when that information was in his sole control, agreed to pay child support pursuant to an order 16 months after the date of separation, and then chose to ignore that court order. Further, Saman never produced the financial disclosure ordered in this matter, nor did he answer the RFI sent by Golnaz even by the exit TMC on September 3, 2024. Finally, Saman failed to appear at the TMC. Although the court declined to strike his pleadings, it is clear from the Endorsement of Horkins, J. on September 26, 2024, that Saman was in breach of prior court orders.

(d) The children are currently 9 and 4 years of age. They had to move after the separation from their matrimonial home into a different residence with Golnaz. Golnaz has been in receipt of Ontario Works since 2023. She is not working and has not worked outside of the home since the first child was born. There is no doubt that the two children needed child support from Saman since the date of separation and did not receive it; and

(e) Saman did not put forward any evidence that there would be any hardship to him if he were ordered to pay retroactive child support.

[48] For all the above reasons, I order Saman to pay retroactive child support for the parties’ two children, based on an imputed minimum wage income, which at the time of separation was $31,200 a year. Pursuant to the CSG, table child support for two children is $477 a month on a minimum wage income of $31,200 a year. For the 17 months from February 1, 2022 to and including July 31, 2023, Saman owes Golnaz retroactive child support of $8,109.

Child Support Arrears Calculation

[49] Pursuant to the Brownstone Order, starting August 1, 2021, Saman was obliged to pay Golnaz interim interim, without prejudice child support for the two children on an income of $31,000 a year which corresponds to table child support under the CSG of $474 a month.

[50] Golnaz’s evidence is that Saman breached this order and did not make any child support payments to her. Saman’s evidence at trial is that he made one payment of child support to Golnaz after the Brownstone Order and then stopped because his lawyer told him not to pay Golnaz directly but wait until the order was enforced by the Family Responsibility Office. Saman did not put any evidence before the court to evidence that he made a child support payment to Golnaz. As between the evidence of Saman and Golnaz, I prefer Golnaz’s evidence and I do not accept that Saman paid Golnaz any child support after the Brownstone Order was made.

[51] The Brownstone Order is based on Saman earning a minimum wage income of $31,000 a year. However, the minimum wage in Ontario in June 2023, at the time the Brownstone Order was made, was $15.50 an hour. It then increased to $16.55 an hour on October 1, 2023, which translates to $34,424 a year.

[52] I find that Saman owes child support arrears to Golnaz from the effective date of the Brownstone order, namely, from August 1, 2023 to and including October 31, 2024, in the sum of $523 a month x 14 months, totalling $7,322, which is the table amount of child support under the CSG for two children based on a minimum wage income of $34,424 a year.

[53] Saman shall pay Golnaz retroactive and child support arrears totalling $15,431 within 45 days.

Prospective Child Support

[54] On a prospective basis, Golnaz asks the court to impute an annual income to Saman in the sum of $100,000 a year. Saman argues that no income ought to be imputed to him until he returns to Canada and once he returns, his income should either be minimum wage income or whatever he is able to earn. There was no date provided as to Saman’s expected date of return.

[55] Section 19(1) of the CSG allows a judge to impute income in various circumstances. One circumstance is where a judge finds that a spouse is intentionally under-employed or unemployed unless the unemployment is required because of the needs of another child under the age of majority: s. 19(1)(a) of the CSG.

[56] The decision to impute income is a discretionary one, and the only limitation to that discretion is that there must be some evidentiary basis for the amount of income imputed: Monahan-Joudrey v Joudrey, 2012 ONSC 5984, at para. 21; see also Homsi v Zaya, 2009 ONCA 322, 65 R.F.L. (6th) 17, at paras. 27-28; Duffy v Duffy, 2009 NLCA 48, 289 Nfld. & P.E.I.R. 132, at paras. 35-36.

[57] In Drygala v Pauli (2002), 61 O.R. (3d) 711 (C.A.) at para 23, the Court of Appeal for Ontario set out a three-part test for imputing income because of intentional unemployment or under-employment as follows:

(a) Is the spouse intentionally under-employed or unemployed?

(b) If so, is this required by virtue of his or her reasonable educational needs, or the needs of the child of the marriage, or arising from reasonable medical needs?

(c) If the answer to #2 is “no”, then the court must decide whether to exercise its discretion to impute income and, if so, in what amount.

[58] The courts have recognized that intentional unemployment is particularly complex. The court need not be satisfied that a payor spouse has acted in bad faith before it imposes a support order based on imputed income: Drygala, at paras. 29-30, and 36. Rather, the court must look to see if the parent’s decisions around work choices are reasonable: Drygala, at paras. 38-40; see also Duffy, at para. 25; Tillmans v Tillmanns, 2014 ONSC 6773, at paras. 59-60.

[59] In Drygala, the judge was determining whether the payor’s choice to reduce child support to meet his own educational needs was reasonable, and explained the following at para. 38:

There is a duty to seek employment in a case where a parent is healthy. As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income. Thus, once it has been established that a spouse is intentionally unemployed or under-employed, the burden shifts to that spouse to establish what is required by virtue of his or her reasonable educational needs.

[60] When imputing income based on intentional under- employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered have been stated in a number of cases as age, education, experience, skills and health of the parent. Cholodniuk v. Sears (2001), 2001 SKQB 97, 14 R.F.L. (5th) 9, 204 Sask. R. 268 (Q.B.). I accept those factors as appropriate and relevant considerations and would add such matters as the availability of job opportunities, the number of hours that could be worked in light of the parent's overall obligations including educational demands and the hourly rate that the parent could reasonably be expected to obtain.

[61] As a general rule, a parent cannot avoid child support obligations by a self-induced reduction of income: Cholodniuk, at para. [10 (6)].

[62] When imputing income, the court must consider the amount that can be earned if a person is working to capacity while pursuing a reasonable educational objective. How is a court to decide that when, typically, there is little information provided on what the parent could earn by way of part-time or summer employment? If the parent does not provide the court with adequate information on the types of jobs available, the hourly rates for such jobs and the number of hours that could be worked, the court can consider the parent's previous earning history and impute an appropriate percentage thereof. [page 722]

[63] Golnaz acknowledges that the sum of $100,000 in income is a “guess” but argues that it is based on what the parties’ expenses were during the marriage. However, there is no evidence on record demonstrating that Saman ever earned $100,000 in annual income.

[64] On Saman’s Form 35.1 affidavit, sworn on October 3, 2022, he deposed as follows:

“After equalization, I intend to register for OREA Realtor programme to obtain real estate licence. With respect to my experience and communication skills, I believe it is the right path. I am also approaching friends and co-workers to find a position as a residential construction site manager or constructions supervisor. I will continue as You Frist Enterprises CEO (Telecommunications Company Registered from 2015 Owned 100% by Saman Motieenia). The company has been under an audit investigation and it’s activities has been on hold by CRA and still undergoing.”

[65] It is clear from this statement that eight months after the separation, Saman had high expectations of his ability to find employment and earn income. He swore that he believes his experience and skills will enable him to find work and he clearly believed he would be able, in some capacity, to continue in some capacity to work for his Telecommunications Company. This statement in his Form 35.1 Affidavit was in direct contravention to Saman’s sworn financial statement, sworn the day prior, on October 2, 2022, in which he stated his income for the previous year (2021) was $25,000 and that he has been unemployed since October 21, 2021.

[66] The further evidence on record regarding Saman, his educational background, employment experiences is as follows:

(a) Saman is 41 years of age.

(b) He has a BA in Business Commercial Accounting and Finance. He worked as an accountant for a company in Toronto for about 2 years.

(c) Thereafter, he was self-employed, was the CEO and ran a successful Telecommunications Business, called Your First Enterprises.

(d) He testified that his Telecommunications business had revenue of over $72 million over the 3 years it operated.

(e) In August 2018, Canada Revenue Agency began an audit of his Telecommunications business and he was told he had to stop this business.

(f) He then began working in the business of real estate development.

(g) He is in good health. On cross-examination he admitted there is no medical reason he cannot be working.

(h) He listed his 2020 income at $25,000, on his only sworn financial statement in this proceeding.

(i) In 2019, Saman’s Notice of Assessment shows his income was $33,974;

(j) In 2018, Saman’s Notice of Assessment shows income of -$(2,315);

(k) In 2017, his Line 150 income was $25,097.

(l) He testified that he worked as a part time Uber driver in 2023 using his friend’s car. He has not filed an income tax return for 2023.

(m) He has been in Iran for the past 11 months, since November 2023. He has not worked since he has been there. His grandmother is paying his expenses. He is staying at his Grandmother’s apartment and living with her. He does not pay rent to her. He testified that he has not looked for work since he has been in Iran.

(n) He testified that when he returns to Canada he will investigate working as a construction consultant and as a bookkeeper.

[67] There is virtually no information on the record as to what amount of income Saman could earn based on his various skill-set. The evidence demonstrates that his prior work experience is in Telecommunications, running a business, corporate finance, and accounting, and managing real estate development projects. Based on this varied experience, Saman should be employable.

[68] Saman’s only financial statement filed in this proceeding on the record is dated October 2, 2022. In that financial statement, Saman claimed he had been unemployed since October 21, 2021.

[69] The Brownstone Order required Saman to provide his income tax returns for 2020, 2021 and 2022. Golnaz’s evidence is that she never received this disclosure. During cross-examination, in answer to a question as to whether he complied with this aspect of the Brownstone Order, Saman answered that he did file his income taxes for two years at once and provided it to his lawyer and he believes his lawyer should have uploaded it onto Caselines. There were no income tax returns on the record. As a result, the last document that verifies Saman’s income is his 2019 Notice of Assessment. The court virtually has no information about income earned by Saman over the last four years.

[70] I am not prepared to impute Saman with an income of $100,000 a year. However, I am persuaded that Saman can earn more than minimum wage when he returns to Canada. His failure to produce current income information in these proceedings could have been avoided if he had complied with court orders and the Family Law Rules. I accordingly draw an adverse inference against him and order Saman to pay child support based on an imputed income of $70,000 a year for the two children starting November 1, 2024 in the sum of $1,067 a month.

Issue Two: Whether Saman owes Elaheh $830,700 on account of funds he withdrew from her TD Bank account using a Power of Attorney which he then used in his real estate development business involving the purchase and sale of three properties?

[71] A portion of Elaheh’s action was framed as both an unjust enrichment claim and a resulting trust claim. Specifically, Elaheh claims that:

(a) Saman was unjustly enriched by having used $620,000 of her monies,

(i) being the $470,000 she deposited in her TD bank account which she agreed to invest in the purchase and renovation of the Carmichael Property as reflected in an agreement reached between her and Saman in 2018, and

(ii) a further $150,000 she deposited in her TD bank account which Saman used toward the renovation of the Carmichael Property and/or purchase and service of the Viewmount Property and associated mortgages registered on title to it, reflected in a Trust agreement reached by her and Saman in 2021 and/or the purchase and renovation of the Castlefield Property.

[72] Elaheh then framed the balance of her claim as one of resulting trust with respect to a further $210,700 she deposited into her TD bank account after the sale of the Carmichael Property which she did not consent to Saman withdrawing, and which he then used toward servicing the mortgages on the Viewmount Property and completing the renovations on the Castlefield Property.

[73] Title to the Carmichael Property was taken in Golnaz’s name. When it was sold, net proceeds of sale of about $616,000 were deposited into Golnaz’s bank account and then used by Saman. Elaheh was not repaid.

[74] Title to the Castlefield Property was taken in the name of a third party, Mr. Siavash. A trust agreement was entered into between Saman and Sivash that Siavash was holding 50% of the Castlefield Property in trust for Saman. When this property was sold, Siavash retained most of the proceeds and only partially paid Saman $220,000. Saman used those proceeds and did not repay Elaheh. Saman is now suing Siavash for the remainder of his share of the Castlefield Property.

[75] Title to the Viewmount Property was initially taken in Saman’s name alone, and later placed in the joint names of Saman and another third party, Morshedi. When the Viewmount Property was sold, Morshedi received his share of the net proceeds by order of this court. The balance of the net proceeds are those being held in trust by Philip Ulrich.

[76] To succeed with her claim for unjust enrichment, Elaheh must show an enrichment or benefit to Saman, a corresponding deprivation to herself, and the absence of a juristic reason for the enrichment: Kerr v. Baranow, 2011 SCC 10 at para. 32 (“Kerr”).

[77] Where unjust enrichment is established, the first remedy to consider is always a monetary award: Kerr v. Baranow, at para. 100.

[78] The analysis of Elaheh’s unjust enrichment claim became complicated because counsel seemed unclear about whether the claims before the court were founded in unjust enrichment or resulting trust. Further counsel for Elaheh intermingled arguments about Saman acting in the capacity of fiduciary to Elaheh by virtue of having a Power of Attorney over her TD bank account, and by virtue of the Trust Agreement entered into between them in 2021. Whatever framework used by Elaheh to argue her claims against Saman, she is seeking the return of monies he withdrew from her TD bank account, some of which was taken with consent and some without consent.

[79] Counsel for Elaheh framed the issue for me to determine as whether Saman was unjustly enriched by Elaheh having given him $620,000 and she was deprived when he placed the Carmichael Property in Golnaz’s name, and he then held a 50% interest in both the Viewmount Property and the Castlefield Property, which he otherwise could not have acquired without her funds, for no juristic reason.

[80] However, Elaheh agreed that Saman could use $470,000 of her funds which she deposited into her TD bank account to invest in the purchase and renovation of the Carmichael Property. It is agreed that the monies were always intended to be repaid to her when the Carmichael Property sold. When a further $150,000 was advanced by Elaheh to Saman, it was co-mingled by Saman with other funds he had obtained because of mortgaging the Viewmount Property and the Castlefield Property. As a result, the parties signed an agreement in 2018 and 2020 to set out the extent of Elaheh’s investment so she would be repaid. The agreement signed in 2020 was a Trust Agreement, where Saman was the Trustee and Elaheh was a beneficiary. Saman now takes the position that Elaheh’s funds were not used toward the purchase of the Viewmount Property and/or the purchase and renovation of the Castlefield Property. This position is inconsistent with the terms of the 2018 Agreement and the 2020 Trust Agreement.

[81] As a result, the correct framing of Elaheh’s claims against Saman are as follows:

(a) Whether Saman owes Elaheh $620,000 arising from the express trust that existed between them with respect to the Carmichael Property and the Viewmount Property; and

(b) Whether Saman rebutted the presumption of resulting trust for Elaheh having gratuitously transferring $210,700 after the Carmichael Property was sold?

(c) Alternatively, did Saman breach his fiduciary obligations to Elaheh when he withdrew $830,700 from her TD bank account pursuant to a Power of Attorney and having not paid her back.

Does Saman owe Elaheh $620,000 arising from the express trust that existed between them with respect to the Carmichael Property and the Viewmount Property

[82] For a trust to come into existence, it must have three certainties: certainty of intention, certainty of subject matter and certainty of objects. If any one or more these are lacking, the trust fails to come into existence or is void (see Walters’ Law of Trusts in Canada, 4th ed, 5.1) and Lad v. Marcos, 2020 ONSC 6215, at para. 43.

[83] As set out in Lad v. Marcos at para. 44,

“With respect to certainty of intention, the court must be satisfied that the settlor, by conduct, word, or a trust agreement, intended to create a trust by intending that the trustee be required to hold the trust property for the benefit of the beneficiary. A trust will only exist where the trustee is obliged to deal with the property on the beneficiary’s behalf. If the purported trustee is permitted, but not required, to deal with the property for the benefit of the beneficiary, then a trust relationship does not exist. (see: Rubner v. Bistricer, 2019 ONCA 733 at para 52).”

[84] With respect to certainty of intention, the court must be satisfied that the settlor, by conduct, word, or a trust agreement, intended to create a trust by intending that the trustee be required to hold the trust property for the benefit of the beneficiary. A trust will only exist where the trustee is obliged to deal with the property on the beneficiary’s behalf. If the purported trustee is permitted, but not required, to deal with the property for the benefit of the beneficiary, then a trust relationship does not exist. (see: Rubner v. Bistricer, 2019 ONCA 733 at para 52).

[85] With respect to certainty of subject matter, there must be certainty as to the trust property and the shares in which beneficiaries are each to take. The trust property must either be clearly described in the trust instrument or must be clearly calculatable or identifiable by objective standards (see: Waters’ Law of Trusts in Canada, 4th ed., 5.III) and Lad v. Marcos, at para. 46.

[86] With respect to certainty of objects the court must be satisfied that there is sufficient description of the purpose of the trust that it can be executed (see: Waters’ Law of Trusts in Canada, 4th ed., 5.I) and Lad v. Marcos, at para. 48.

[87] Based on two agreements that were signed by Elaheh and Saman in 2018 and its replacement Trust Agreement in 2021, I find that it is clear that the intention was that Golnaz would be holding her interest in the Carmichael Property in trust for Elaheh to the extent of her original investment of $470,000 and her proportional interest in the property when it was sold to the extent of 69%; and that Saman would be holding his 50% beneficial interest in the Viewmount Property to the extent of an additional $150,000 in trust for Elaheh. The subject matter of the trust was clear and I am satisfied that the purpose of the trust was clearly to ensure that Elaheh’s initial investment, at the least, would be repaid to her out of the Carmichael Property and the Viewmount Property, when each was sold. I make this finding for the following reasons:

(a) The parties agree that Elaheh wanted to invest her monies in real estate in Canada and that Elaheh agreed to invest her monies into a real estate construction project Saman was going to complete in connection with the Carmichael Property.

(b) Saman testified that in 2015 he and Elaheh met twice with Hamid Reza Safipoor, an experienced construction contractor he knew, and decided to buy the Carmichael Property, renovate it, and sell it. Specifically, Saman testified that he and Elaheh signed a contract with Mr. Safipoor; Mr. Safipoor was to complete the construction; Saman was to manage the funds coming in from construction lenders and Elaheh was to provide the capital. Saman never disclosed a copy of the contract he claims was signed with Mr. Safipoor. There is nothing on the record to verify this agreement between Saman, Elaheh and Mr. Safipoor. However, Elaheh agreed there was a meeting with Mr. Safipoor.

Purchase of the Carmichael Property – November 4, 2015

(c) It is agreed that,

(i) In 2015, Elaheh agreed to invest monies to fund Saman’s real estate development projects.

(ii) On June 23, 2015, Elaheh signed a TD Canada Trust Power of Attorney giving Saman or Golnaz authority of her account at TD account # ended in *1263 (“TD Bank Account”).

(iii) Elaheh transferred approximately $470,000 into her TD Bank Account.

(iv) Saman withdrew at least $470,000 from Elaheh’s TD Bank Account to fund the Carmichael Property purchase and construction, as he saw fit, using the Power of Attorney.

(v) On November 4, 2015, monies from Elaheh’s TD Bank Account were withdrawn by Saman to purchase the Carmichael Property, title to which was registered in Golnaz’s sole name.

(vi) The purchase price of the Carmichael Property was $1,025,000.

(d) According to Elaheh, it was Saman’s advice to her that the Carmichael Property be registered in Golnaz’s name because Elaheh was residing in Iran at the time and Saman told her it could be difficult to obtain a mortgage for construction purposes if the property were in Elaheh’s name. This was not disputed by Saman. Neither Golnaz, Elaheh nor Saman testified that Golnaz was to be the beneficial owner of the Carmichael Property.

(e) From June 23, 2015 to December 21, 2016, Elaheh’s TD Bank Account statements, show deposits by her totalling $488,439.29 after she granted the Power of Attorney to Saman and/or Golnaz and withdrawals by Saman, his mother, and Golnaz of $472,847.98, particularized in the charts below. It is noteworthy that Saman had a bank account in joint names with his mother, into which he often deposited monies from Elaheh’s TD Bank Account:

Date Deposit/Withdrawal Description June 23, 2015 $9,000.00 Deposit July 27, 2015 $99,056.35 Wire July 29, 2015 $58,339.23 Wire August 24, 2015 ($50,007.50) Bank draft to Harvey Kalles Real Estate Limited in the sum of $50,000 withdrawn August 25, 2015 $50,000.00 Deposit Sept. 8, 2015 ($55,007.50) Bank draft to Sutton Group Admiral Realty withdrawn Sept. 10, 2015 ($6,038.00) Bank draft to Hamid Reza Safipoor withdrawn - POA Sept.11, 2015 ($5,000.00) Transfer from Elaheh and withdrawal of cash by Saman Sept. 17, 2015 ($30,007.50) Bank draft to Golnaz October 28, 2015 ($50,000.00) Transfer from Elaheh October 29, 2015 ($105,850.00) Transfer from Elaheh October 29, 2015 $98,769.05 Wire October 30, 2015 $49,327.25 Wire November 28, 2015 ($2,000.00) Bank draft to Jerry Balitsky, in trust November 28, 2015 ($7,000.00) Transfer from Elaheh to Saman December 29, 2015 ($10,000.00) Transfer from Elaheh to Saman December 29, 2015 ($9,000.00) Transfer from Elaheh to Saman February 10, 2016 ($6,500.00) Receipt from Elaheh to Afsha (Saman’s mother) February 24, 2016 ($4,500.00) Receipt from Elaheh to Golnaz February 24, 2016 ($3,500.00) Receipt from Elaheh to Afsha March 31, 2016 ($4,500.00) Receipt from Elaheh to Golnaz June 17, 2016 $17,659.50 Wire June 22, 2016 $16,161.50 Wire June 29, 2016 ($25,000.00) Receipt from Elaheh to Afsha July 12, 2016 $32,656.60 Wire July 20, 2016 $33,408.60 Wire July 27, 2016 $33,674.50 Wire July 27, 2016 $23,043.31 Wire August 17, 2016 ($32,000.00) Receipt from Elaheh to Afsha September 15, 2016 ($12,000.00) Receipt from Elaheh to Afsha October 26, 2016 ($18,000.00) Receipt from Elaheh to Afsha October 31, 2016 ($15,000.00) Receipt from Elaheh to Afsha November 17, 2016 ($7,000.00) Receipt from Elaheh to Afsha December 16, 2016 ($4,000.00) Receipt from Elaheh to Afsha December 21, 2016 ($10,937.48) Transfer from Elaheh to Afsha Total deposits/wire $488,439.29 Total Withdrawals ($472,847.98)

[88] I find that in addition to the $470,000, Saman withdrew a further $150,000 of additional funds Elaheh then deposited into her TD account because he told her that more funds were needed to finish the renovations on the Carmichael Property. However, Saman used Elaheh’s funds to purchase and service mortgages on the Viewmount Property and the Castlefield Property, and subsequently mortgaged these two properties to complete the renovations on the Carmichael Property. I make this finding on the following basis:

Purchase of the Viewmount Property – January 31, 2017

(a) While the Carmichael Property was under construction, on January 31, 2017, Saman purchased the Viewmount Property for $1,350,000 with a third party Morshedi, title to which was initially placed solely in Saman’s name. On that same date, Saman and Morshedi entered into a Trust Agreement, providing that Saman held 50% of title to the property in trust for Morshedi. Morshedi and Saman each put money toward the down payment and closing costs of the purchase of the Viewmount Property. It is not clear from the record, whether Saman used Elaheh’s funds to purchase the Viewmount Property or whether he used a construction loan from the Carmichael Property to do so. Saman did not provide disclosure about this nor did he provide an accounting, despite being asked and ordered to do so. He is the only individual who would have records to account for this. Two years later, on March 11, 2019, Morshedi’ s name was added on title.

(b) According to Elaheh, Saman used funds from her TD account with the Power of Attorney to purchase the Viewmount Property. Saman testified that in December 2016, he, and his mother, Mansoureh Afsharnejad (“Mansoureh”), decided to sell the townhouse, in which he and Golnaz were residing, which had been purchased by his mother, at 48 Beaumount Place, Thornhill. Saman argues that he used those proceeds to purchase the Viewmount Property. However, Saman did not produce any evidence regarding the sale of 48 Beaumount Place or a tracing of the net proceeds of sale from the Beaumount Place property into the purchase of the Viewmount Property.

(c) Elaheh’s TD Bank Account statements, over which Saman had a Power of Attorney show that from January 13, 2017 to September 20, 2018, she made deposits totalling $276,726:

Date Deposit Description Back up Documentation Jan. 13, 2017 $15,000 Transfer Bank receipt from Elaheh to Afsha June 13, 2017 $15,000 Transfer Bank receipt from Elaheh to Afsha July 4, 2017 $10,000 Transfer Bank receipt from Elaheh to Afsha and an immediate withdrawal to cash by Afsha of $5,000 Bank statements July 12, 2017 $19,279,70 Wire Bank statement August 1, 2017 $5,000 Transfer Bank receipt from Elaheh to Golnaz March 5, 2018 $13,617.50 Wire Bank statement March 16, 2018 $15,000 Transfer Bank receipt from Elaheh to Afsha April 30, 2018 $7,504.20 Transfer Bank receipt from Elaheh to Afhsa and bank statement May 10, 2018 $5,999 Transfer Bank receipt from Elaheh to Afsha May 22, 2018 $19,962.50 Transfer Bank statement May 31, 2018 $4,500 Transfer Bank receipt from Elaheh to Afsha May 31, 2018 $4,500 Transfer Bank receipt from Elaheh to Golnaz June 18, 2018 $5,000 Transfer Bank receipt from Elaheh to Afsha July 13, 2018 $26,000 Transfer August 20, 2018 $11,363.10 Wire September 17, 2018 $9,000 Deposit September 20, 2018 $9,000 Deposit Total deposits $276,726

(d) The construction of the Carmichael Property began in April 2016 and took about three years to complete. Saman submits that in the middle of construction, Mr. Safipoor told him they needed more money to finish the construction, which is why he applied for a third mortgage on the Carmichael Property. Saman testified that he explained to Elaheh he was concerned that the construction lenders would stop advancing funds to them, they consulted and agreed that Saman would ask Morshedi to take a second mortgage on the Viewmount Property and use those funds to finish the Carmichael Property renovation project so Elaheh did not lose her money. Again, there is no evidence on the record about this agreement.

(e) Elaheh testified that Saman told her that there was a shortage of funds to complete the Carmichael Property renovations and, as a result, she transferred $100,000 when she was in Iran to her TD bank account. It is clear from Elaheh’s TD bank statements that between June 29, 2016 and November 29, 2016, Elaheh transferred about $102,000 into her TD Bank account. This is not disputed by Saman.

(f) Saman took out a private second mortgage of $220,000 on the Viewmount Property on June 1, 2017. Saman testified that right after he got the funds from the second mortgage registered on title to the Viewmount Property, he used them to pay the contractors at the Carmichael Property to finish the construction. There was no accounting completed by Saman to shed light on what Elaheh’s funds were used for as compared with the funds from the second mortgage from the Viewmount Property.

(g) In Saman’s Answer to Elaheh’s claims against him, Saman states that he and Elaheh agreed that Elaheh would pay him $65,000 as a management fee to manage the construction of the Carmichael Property. However, in cross-examination, he admitted that the management fee of $65,000 was not agreed to but he thought it was an appropriate payment to him for his services. Elaheh knew nothing about a management fee being paid to Saman.

Purchase of the Castlefield Property November 6, 2017

(h) On November 6, 2017, Saman purchased the Castlefield Property with his friend, Siavash Sardashti (“Siavash”). Siavash and Saman entered into a Trust Agreement, dated November 6, 2017, providing that Siavash held 50% of the title to the Castlefield Property in trust for Saman. The real estate lawyer’s Trust Ledger shows that on closing, the vendor gave back a First Mortgage in the sum of $1,087,742.50 and Saman and Siavash each paid $205,118.99 toward the closing costs. There is no evidence on record as to the source of the funds Saman used to make the down payment on the Castlefield Property.

(i) Saman and Siavash also took out two construction mortgages, a second mortgage in the sum of $675,000 and a third mortgage in the sum of $300,000 against title to the Castlefield Property. The construction mortgages were registered as second and third mortgage on title to the Castlefield Property. Saman provided no accounting of what was done with the funds from the mortgages.

(j) Again, Elaheh argues that Saman used funds from her TD Bank Account to either fund the purchase of the Castlefield Property or to service the mortgages on the Castlefield Property. Elaheh had deposited $276,726 into her TD Bank Account in 2017 and 2018. Saman testified that he borrowed money from Mr. Hadjipoor for the down payment on Castlefield and he owed him about $198,000, with interest. Saman admitted on cross-examination that he paid Mr. Hadjipoor with funds from Elaheh’s TD Bank Account. In this manner, therefore, Elaheh’s funds were used to either purchase or renovate the Castlefield Property.

(k) Saman’s Answer states that he was “counting on the sale of 110 Carmichael Ave. to use [his] money [he] mortgaged on 53 Viewmount for this transaction and keep paying for the interest payments from the date 110 Carmichael Ave. is closed.” In other words, Saman was using money from the Viewmount Property mortgages to fund the shortfall on the Carmichael Property and/or to renovate Castlefield, so it could be sold and the monies could be repaid to the initial investors, being himself and Elaheh.

Sale of the Carmichael Property June 21, 2018

(l) When the Carmichael Property renovations were completed, it was sold on June 21, 2018 for $2,948,000. The Trust Ledger proves that after the 4 mortgages registered on title were discharged, the net proceeds of $616,765.24 less a holdback of $11,000 for taxes, namely a total of $605,765.24 were deposited into Golnaz’s TD account.

(m) In his Answer to Elaheh’s claims, Saman stated from the Carmichael Property net proceeds of sale, he used $220,000 to discharge the principal amount of the 2nd mortgage on the Viewmount Property, including an interest payment of $28,600, plus $5,000 of legal fees. Saman’s position in his Answer and at trial was that Elaheh’s funds were never used to purchase the Viewmount Property.

(n) Saman testified that from the approximate sum of $606,000 deposited into Golnaz’s TD account from the sale of the Carmichael Property, he should have discharged the 2nd mortgage on Viewmount Property of $260,000, plus interest but instead he used the funds to renovate the Castlefield Property. In cross-examination, Saman admitted that the money to purchase the Castlefield Property came from the $606,000 in Golnaz’s account, which was Elaheh’s money, but not all of it came from there. Further, Saman confirmed that the monies taken from Elaheh’s TD Bank Account were intermingled with mortgage funds because the second mortgage taken out against the Viewmount Property went into Elaheh’s TD Bank Account funds.

(o) Saman testified that he and Morshedi decided to keep the Viewmount Property and rent it out for a couple of years to allow the property to increase in value before they decided to renovate it. Saman testified that he wanted to buy Morshedi out of the Viewmount Property, he met with his mother and Elaheh many times, and that both mothers agreed to purchase Mr. Morshedi’s 50% share of the Viewmount Property. Saman swore that he and the parties’ two mothers agreed they would start the construction without having a third party as a partner. In accordance with this agreement, Saman testified that his mother sold an apartment she had in Tehran and advanced him $100,000 which Saman paid to Morshedi for a portion of his 50% share of the Viewmount Property. Saman provided no evidence of his mother having advanced him $100,000. Further, there was no evidence on record about the agreement Saman claims was reached about buying Morshedi out.

(p) There are, however, two agreements the parties entered into which clearly confirm that Elaheh never intended to gift these monies to Saman; that there was an express agreement that she would be repaid; that her monies were used to acquire the Viewmount Property and the Castlefield Property and she, therefore, had a beneficial interest in both properties which were being held in trust for her.

2018 Agreement between Saman and Elaheh

(q) On December 11, 2018, Saman and Elaheh entered into the first written agreement (“2018 Agreement”) which stated as follows:

(i) Elaheh and Saman entered into a business partnership in construction in Canada, in the field of constructions, with Elaheh having shares worth $470,000 and Saman having shares worth $210,000;

(ii) The two properties in which monies were invested were the Viewmount Property, which is in Saman’s sole name and the Castlefield Property, which is in Siavash’s name;

(iii) Elaheh’s ownership in the partnership is 69% and Saman’s ownership is 31%;

(iv) Saman had a partnership in Morshedi’s house to the extent of $25,000 and $30,000, in trust with a lawyer;

(v) Elaheh’s contribution of $470,000 and Saman’s contribution of $210,000 is in addition to Saman’s partnership with Siavash.

(r) The 2018 Agreement was in writing, witnessed and signed by both Elaheh and Saman.

Sale of the Castlefield Property March 3, 2021

(s) On March 3, 2021, Saman and Siavash sold the Castlefield Property for $3,300,000. The net proceeds of sale were $1,006,362.47. Siavash received all of the net proceeds of sale. Siavash paid Saman $224,500. Saman never received the balance of his 50% interest in the net proceeds of the Castlefield Property.

(t) On March 9, 2021, Siavash provided Saman with a cheque in the sum of $256,270 as a partial payment of what was owing to him. The cheque bounced due to insufficient funds. Siavash then told Saman there is no more money from the project. As a result, Saman issued a Statement of Claim, naming Siavash and his parents as Defendants.

(u) Despite having received $224,500 from Siavash from the sale of the Castlefield Property, Saman never paid any monies to Elaheh. Saman does not dispute this.

(v) Elaheh testified that she became concerned when she learned about Saman’s litigation with Siavash about whether Saman would repay her investment of 69% of Castlefield and Viewmount. It is not disputed that a new agreement between Elaheh and Saman was reached to allay Elaheh’s concerns. Elaheh argues that Saman insisted that the agreement be made between Saman, Elaheh and his mother to protect himself from creditors. Saman submits he did this because his mother had given him money.

(w) It was agreed that the state of the relationship between Elaheh and Saman was strained at that point in time. It is agreed that Saman felt he had to enter into a new agreement with Elaheh to allay her concerns. These factors further evidence that Elaheh never intended to gratuitously transfer funds to Saman.

(x) Further, there was a clear pattern of conduct on Elaheh’s part that she wanted an agreement in writing to be certain that she would be repaid.

Trust Agreement June 11, 2021 between Saman, Elaheh and Saman’s mother:

(y) On June 11, 2021, Elaheh and Saman’s mother, Mansoureh Afsharnejad signed a Trust Agreement (“2021 Trust Agreement”), which confirmed the following:

(i) Saman is the registered owner of a 50% interest in the Viewmount Property;

(ii) The funds to acquire and maintain the Viewmount Property have come from Saman’s mother, Mansoureh and Elaheh;

(iii) Mansoureh and Elaheh are the beneficial owners of the 50% interest Saman has in the Viewmount property, their being in proportion to the money invested by each;

(iv) As at the date of the agreement, Elaheh had invested $620,000;

(v) As at the date of the agreement, Mansoureh had invested $210,000;

(vi) Saman would hold his 50% interest in the Viewmount Property as Trustee for Mansoureh and Elaheh, the Beneficiaries;

(vii) Saman would not sell, mortgage or otherwise deal with either Elaheh’s or Mansoureh’s, the beneficiaries’ share in the Viewmount Property without first obtaining instructions from the beneficiaries;

(viii) Saman, as Trustee, would convey the Beneficiaries’ share of the Viewmont Property to them upon their request or to any other party directed by the Beneficiaries;

(ix) Saman, as Trustee, would account to the Beneficiaries of all income received or profit earned from the Beneficiaries’ share of the Viewmont Property

(x) Elaheh and Mansoureh would pay the mortgage and household expenses in connection with the Viewmount Property.

(xi) Upon the sale of the Viewmount Property, the net proceeds of sale would be divided in accordance with the same proportion as each Elaheh and Mansoureh has invested in the property, such that Elaheh would be entitled to receive 74.7% of the net proceeds of sale and Mansoureh would be entitled to receive 25.3% of the net proceeds of sale, from Saman’s 50% share.

(z) Saman submits that Elaheh breached the 2021 Trust Agreement because she did not pay the mortgage or household expenses of the Viewmount Property. Elaheh submits that Saman breached the 2021 Trust Agreement because he listed the Viewmount Property for sale without first obtaining her instructions and he failed to account for all income received or profit earned from her share of the property.

(aa) Whether or not the 2021 Trust Agreement was breached, the 2021 Trust Agreement serves as evidence that although title to the Viewmount Property was not in Elaheh’s name, Saman was clearly a Trustee and held Elaheh’s 74.7% beneficial interest in it in trust for her, through his 50% share in the property.

[89] It is not disputed that Elaheh invested at least $620,000 into the Carmichael Property and/or the Viewmount Property as set out in the 2021 Trust Agreement. Elaheh claims her funds were also used either toward the purchase of the Castlefield Property or the renovations to that property as reflected in the 2018 Agreement. The 2018 Agreement is clear that Elaheh was to be repaid for her contribution of $620,000 into the Viewmount Property and the Castlefield Property.

[90] Therefore, I find that a trust existed where Saman, as the trustee, was obliged to deal with the Viewmount Property on Elaheh’s behalf, as a beneficiary. The 2021 Trust Agreement was clear and certain on an objective standard that the property was the Viewmount Property and that Elaheh’s share was 74% of Saman’s 50% interest in the property. Further, I am satisfied that there was a sufficient description of the purpose of the trust, namely that Saman was to deal with the Viewmount Property on behalf of Elaheh and his mother, as beneficiaries.

[91] Further, there is no doubt that a Power of Attorney creates a fiduciary relationship between Saman and Elaheh. Saman acted under the Power of Attorney he had for Elaheh’s TD Bank Account at all material times when he withdrew funds and used them to purchase and renovate the Carmichael Property, and when he used her funds to either purchase the Viewmount Property and/or service the mortgages on title to is and when he used her funds to either purchase the Castlefield Property and/or renovate it and/or service the mortgages registered on title to it. In his capacity as Elaheh’s Power of Attorney he had an obligation to trace the use of her funds from the TD Bank Account and account for the use of her funds. He failed to do so at the time he withdrew the funds. He also failed to do so even after Elaheh was named an added third party to this Application. Further, he failed to comply with various court orders made in this Application to produce the necessary financial disclosure and bank account documentation to enable the court to understand how Saman used Elaheh’s funds.

[92] Based on all the above, the extent of Elaheh’s investment or share in the three properties, at the very least was $620,000, assuming there was no increase in the fair market value of the three properties. Accordingly, Saman shall repay the $620,000 owing to Elaheh on the basis of the express 2021 Trust Agreement and on the basis that he had a fiduciary obligation in relation to Elaheh and must return the funds he withdrew from her TD Bank Account using the Power of Attorney.

Whether Saman rebutted the presumption of resulting trust for Elaheh having gratuitously transferring $210,700 after the Carmichael Property was sold?

[93] Elaheh claims that she did not agree to Saman continuing to withdraw funds from her TD Bank Account using the PoA after the Carmichael Property sold. Notwithstanding this, Elaheh argues that Saman did withdraw a further $210,700 from her TD Bank Account after June 21, 2018, and therefore there is a presumption of a resulting trust for these monies. Elaheh argues that Saman has not rebutted the presumption of a resulting trust and therefore, he must return the funds to her.

The Law on Resulting Trust

[94] I adopt the principles of the presumption of a resulting trust as aptly summarized by Pazaratz, J. in Jackson v. Mayerle, 2016 ONSC 1556, at para. 569:

(a) The presumption of resulting trust of the general rule for gratuitous transfers: Wright v. Holmstrom 2015 ONSC 1906.

(b) The leading resulting trust cases are Pecore v. Pecore 2007 SCC 17 (in the non-family case context) and Kerr v. Baranow 2011 SCC 10 (in the family context).

(c) A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner. Pecore (supra).

(d) The mere placing of property in another person’s name without consideration creates a presumption of a resulting trust. Lazier v Mackey 2012 CarswellOnt8151 (SCJ).

(e) Resulting trusts generally arise where property is purchased by one person (the beneficial owner) and placed in the name of another (the legal owner) without consideration passing between the two of them. The law considers the legal owner as holding the property in trust for the beneficial owner who paid for it.

(f) Equity presumes that the transferor intended the recipient to hold title on a resulting trust (in trust for the transferor) rather than presuming that the transferor intended to make a gift to the title holder. Pecore (supra). Galla v. Galla, 2015 ONSC 37.

(g) Equity presumes bargains, not gifts. Pecore (supra).

(h) The presumption of a resulting trust is based on presumptions about the intention of the transferor.

(i) But the presumption of resulting trust is rebuttable by the transferee (the legal title holder) if it can be shown that the transferor intended to make a gift. The actual intention of the transferor is the governing consideration. It is the intention of the transferor alone that counts. Pecore (supra); Schwartz v. Schwartz, 2012 ONCA 239 (Ont. C.A.).

(j) Where a transfer is challenged, the presumption allocates the legal burden of proof. Where a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended.

(k) In Kerr the Supreme Court confirmed that a traditional resulting trust may arise in the domestic context where there has been a financial contribution to the initial acquisition of a property and a subsequent gratuitous transfer of title to the property.

(l) The intention of the transferor to make a voluntary and gratuitous transfer is an essential ingredient of a legally valid gift. McNamee v. McNamee, 2011 ONCA 553.

[95] The term “resulting trust” does not indicate a reason for the creation of the trust (unlike “constructive” trusts). The term “resulting” indicates the way in which the trust operates. An interest subject to a resulting trust “results” or goes back, to where it came from. As stated in Kerr:

[I]t is widely accepted that the underlying notion of the resulting trust is that it is imposed “to return property to the person who gave it and is entitled to it beneficially, from someone else who title to ii. Thus, the beneficial interest “results” (jumps back) to the true owner :: Kerr, at para. 16.

[96] To determine if the transferor intended to make a gift, the court will determine the transferor’s actual intent by considering several factors including:

(a) Any documents;

(b) The quantum of the transfer and its timing;

(c) The statements and conduct of the transferor referable to the transfer;

(d) The state of the relationship between the transferor and the transferee

(e) Any pattern of conduct on the part of the transferor relevant to the issue;

(f) The exclusion of any obvious recipient from the transfer

(g) Whether the transfer was improvident; and any other circumstance relevant to the transferor’s actual intention.

See Lazier v. Mackay, 2012 ONSC 3812 at para. 64 summarizing the factors from the Ontario Court of Appeal’s decision in Pecore v. Pecore.

[97] I find that Saman did not successfully rebut the presumption of resulting trust for the $210,700 he withdrew from Elaheh’s TD Bank Account after the Carmichael Property was sold on June 21, 2018.

[98] Elaheh argues that between January 10, 2019 and February 17, 2021, Saman withdrew a total of $210,700 from her TD bank account as follows:

Date Withdrawal Amount Documentary Proof from Elaheh’s TD bank statement Jan. 10, 2019 $4,500 Transfer Jan. 16, 2019 $2,000 Cash withdrawal Jan. 16, 2019 $1,000 Transfer August 8, 2019 $20,000 Transfer August 30, 2019 $22,000 Transfer Feb. 6, 2020 $500 Cash withdrawal March 23, 2020 $40,000 Transfer to Afsha May 28, 2020 $20,000 Transfer May 28, 2020 $800.00 Cash withdrawal July 15, 2020 $1,000 Cash withdrawal July 24, 2020 $50,000 Transfer October 3, 2020 $13,000 Transfer to Afsha October 5, 2020 $17,000 Transfer to Afsha February 9, 2021 $18,000 Transfer to Afsha February 17, 2021 $900.00 Total Withdrawals $210,700

[99] Elaheh’s evidence was specific and credible. Essentially, her evidence is

(a) From the outset, she and Saman knew that she would fund the purchase and some of the renovations to the Carmichael Property.

(b) She and Saman agreed that Saman would run the project of the Carmichael Property and access her funds by using a Power of Attorney she gave him over her TD Bank Account.

(c) She was living in Iran and depositing funds into the TD Bank Account.

(d) When Saman needed more funding for the Carmichael Property renovations, Elaheh deposited more funds into her TD Bank Account.

(e) She would get paid back when the Carmichael Property sold, either dollar for dollar was she put into the project or her percentage of the profit.

(f) By the time the 2018 Agreement was signed, she understood she would receive $620,000 or 69% of the fair market value of the Carmichael Property and/or from the Viewmount Property.

(g) She understood that Saman bought the Viewmount Property with a third party. When Saman needed more money to finish the Carmichael Property renovations, he decided to mortgage the Viewmount Property and use those funds toward the Carmichael Property.

(h) When the Carmichael Property was sold, she understood the net proceeds of sale, of about $616,000, which were deposited into Golnaz’s bank account belonged to her.

[100] I do not accept Saman’s position that Elaheh’s money was not used to purchase or maintain the mortgages on title to the Viewmount Property and/or the Castlefield property. Further, I find there are serious issues with Saman’s credibility and the reliability of his evidence. There were no documents put forward by Saman to verify his version of events which the court finds troubling. I make these findings for the following reasons:

(a) He did not produce a single document proving that Elaheh agreed to advance him funds from her TD Bank Account without being repaid.

(b) Given the amount of money involved, the numbers of transactions and people involved, including contractors, trades, lawyers, one would have have expected Saman could produce documents to prove his claim that Elaheh’s funds were not used for the Viewmount Property or the Castlefield Property. However, he did not provide a single invoice.

(c) At no point did Saman create a spreadsheet attempting to explain what happened with all the monies he took from Elaheh. This is despite the fact that he has an educational and career background in accounting and running a business.

(d) He stopped participating in this lawsuit. He did not show up to the last two case conferences. He did not seek an adjournment. He did not ask for accommodation to file documents differently from Iran. He demonstrated that he did not respect this court process and wilfully disobeyed court orders on multiple occasions.

(e) He breached court orders to produce an affidavit of documents and/or provide an accounting and tracing of Elaheh’s funds.

(f) He testified about things without giving any evidence, such as that Elaheh agreed verbally to participate in further renovation projects after the Carmichael Property was sold.

(g) At all times since 2015, he testified that he had unfettered access to Elaheh’s TD Bank account through the Power of Attorney.

(h) Elaheh was in Iran where there were restrictions on the internet. She did not regularly check her TD bank account and could not freely do so when she was in Iran.

(i) Elaheh trusted that Saman would use her funds as an investment as he agreed to do. This is evidenced by the fact that she gave Saman a Power of Attorney to use over her Td Bank Account.

(j) All the third parties involved in the purchase and renovation of the three properties were people Saman knew, including the real estate lawyer, Philip Ulrich, the construction consultant, and the third parties with whom Saman purchased the Viewmount Property and Castlefield Property.

(k) All of the actions taken in connection with the three properties were under Saman’s control, other than the funding.

(l) He became her Trustee when the 2021 agreement was signed.

(m) His evidence about what he used the Viewmount Property mortgage proceeds for was absent.

(n) His evidence about what he used the Castlefield Property mortgage proceeds for was absent.

(o) He admitted that the $616,000 of net proceeds of sale from the Carmichael Property belonged to Elaheh, and stated that she could have taken those funds out of Golnaz’s account but chose not to. His statement that Elaheh “chose not to” withdraw the monies that he admits belonged to her is not credible, nor does it align with the 2018 Agreement and the 2021 Trust Agreement.

(p) He admitted he used some but, not all, of the $616,000 of net proceeds from the Carmichael Property to purchase the Castlefield Property.

(q) He admitted he entered into the 2021 Trust Agreement with Elaheh and his mother to secure the funds Elaheh had invested of $620,000, because she was worried that her money would not be repaid to her by Saman.

(r) He was not able to prove that he did not withdraw the additional $210,700 from Elaheh’s TD Bank Account, which was withdrawn after the Carmichael Property was sold.

(s) He was not able to prove that he had Elaheh’s consent to continue to withdraw monies from her TD Bank Account using the Power of Attorney after the Carmichael Property was sold.

(t) He admitted that tensions in the matrimonial home were high when Elaheh was visiting him and Golnaz in 2021, after he had to start a lawsuit against Siavash when the Castlefield Property sale closed, which aligns with Elaheh’s testimony that she was very concerned that Saman would not return her invested funds to her.

(u) He was the only party who had the disclosure and could provide the accounting of the source of funds used to purchase all three properties and account for what Elaheh’s funds were used for, as well as the various mortgages taken out on the three properties and he chose not to do so.

(v) He testified that when he took out a second mortgage against the Viewmount Property to finish the construction on the Carmichael Property, Elaheh knew about it. Yet, he was not able to produce any documents verifying that Elaheh understood this.

(w) He was not able to prove that he did not use the net proceeds of sale from the Carmichael Property to complete the renovations on the Castlefield property as Elaheh claims.

(x) He did provide Elaheh, Golnaz or the Court with a particularized accounting of the source of funds he used to purchase the Viewmount or the Castlefield Properties or the source of funds he used to complete the renovations on the Castlefield Property.

(y) His position at trial regarding the Castlefield Property that Elaheh should have to wait until the outcome of the civil case between Saman and Siavash before she finds out if any of her funds can be returned to her is non sensical. Elaheh is not a party to the lawsuit between Saman and Siavash. Elaheh was not a party to the Trust Agreement between Saman and Siavash with respect to the Castlefield Property. Elaheh’s claims are against Saman. If Saman used monies from her TD Bank Account and intermingled her funds with mortgage funds from either the Viewmount Property and/or the Castlefield Property, then he has the onus to provide an accounting and verify what Elaheh’s funds were used for. He failed to do so.

(z) The only evidence suggesting that Elaheh’s funds were not diverted to either the Castlefield Property and/or the Viewmount Property comes from Saman, in the form of a general self-serving denial. This limited evidence is insufficient. Saman was in a position of having a Power of Attorney over Elaheh’s TD Bank account and has not been held to properly account for the disposition of the funds from her account.

[101] Based on all the above, I find that Saman did not meet his onus in rebutting the presumption that Elaheh always understood, as did he, that her monies advanced through her TD bank account were to be repaid upon the sale of the three properties. The 2018 Agreement and the 2021 Trust Agreement Saman brokered between Elaheh and his mother are further evidence that he was keenly aware that Elaheh’s funds were used and applied toward these properties and that she needed to be reimbursed.

[102] Given Saman’s repeated failure to give an accounting as to Elaheh’s funds, Elaheh asks the court to draw an adverse inference and find that Saman used the funds in her TD bank account toward these three properties or for his personal use.

[103] It is a basic tenet of evidence law that a party in sole possession of relevant evidence that chooses not to produce that evidence should be subject to an adverse inference that the evidence is not favourable to that party. Sigma v. Aimia, 2018 ONSC 3637, at para. 21.

[104] Since Saman did not account for his use of Elaheh’s monies, and he did not account for having co-mingled the various mortgages registered on title to both the Viewmount and Castlefield Properties, or fulfil his financial disclosure obligations to account for the funds he withdrew from Elaheh’s TD Bank Account using his Power of Attorney, I draw an adverse interest and find that Elaheh’s funds were used toward the acquisition, maintenance and renovations of all three properties.

[105] If Saman could prove that Elaheh’s funds were not used by him toward the Viewmount Property and or the Castlefield Property, it stands to reason that he would have provided financial disclosure to show this without hesitation. As found in Giavan v. Nagy, 2021 ONSC 5009, at para. 32, I find it suspicious that Saman failed to comply with the court orders made in this Application to account for Elaheh’s funds, which is concerning.

[106] Saman’s failure to account makes it impossible to know with any degree of certainty how he used Elaheh’s funds.

[107] An accounting of Elaheh’s funds is entirely absent from the evidence tendered by Saman at trial. Elaheh requested an accounting of the funds from her TD bank account and there were several requests for this disclosed since this application began, all of which remain unanswered by the time this trial began.

[108] The actual accounting of Elaheh’s bank account funds lies within the exclusive knowledge of Saman. Given his failure to account, Saman cannot credibly rely on Elaheh’s inability to conclusively prove that her funds were used for which specific purposes.

[109] Accordingly, I find that it is appropriate to draw an adverse inference and conclude that Saman used Elaheh’s funds from her TD Bank Account for acquiring, maintaining and preserving all three properties.

[110] I find that Saman did not rebut the presumption of the resulting trust in connection with the $210,700 withdrawn from Elaheh’s TD bank account after the Carmichael Property closed.

[111] Furthermore, Siavash was fully reimbursed and made whole in connection with his investment in the Castlefield Property to the exclusion of Elaheh. Similarly, Morshedi was made whole and reimbursed in connection with his investment in the Viewmount Property. Saman was reimbursed and made whole in connection with what he claims his investment was, as funded by his mother, in connection with the Carmichael Property. The only person who was not reimbursed or made whole was Elaheh.

[112] Saman shall repay the sum of $210,700 to Elaheh on the basis of a resulting trust.

Issue Three: Should Golnaz be permitted to travel with the children outside of Canada without the need for Saman’s consent? How should Saman’s parenting time resume, given that he has not seen or spoken with the children in 11 months?

[113] Golnaz seeks to travel with the parties’ two children without the need to first obtain Saman’s consent. It is agreed that she has sole decision-making responsibility for the parties’ two children.

[114] Section 16.1(4) of the Divorce Act permits the court to provide for any matter that the court considers appropriate, in this case, that would be travel. Further, the court may make an order imposing any terms, conditions, and restrictions that it considers appropriate: s.16.1(6) of the Divorce Act.

[115] Given that Golnaz has sole decision-making responsibility for the children, it follows that she can decide whether to travel with the children and where she intends to travel with them. Given that Elaheh, Golnaz’s mother lives in Iran and that Saman has been in Iran for the past 11 months, with no known date when he will return to Canada, I find that it is in the children’s best interests that they be permitted to travel with their mother without the need for Saman to consent first. Golnaz shall be required to provide notice to Saman about any planned travel, including providing the dates of proposed travel, the place where the children will be staying and an emergency telephone number where the children can be reached in case of an emergency.

[116] Given that the children have not had parenting time with Saman, virtually or in person since the end of November 2023, it is in the children’s best interests for virtual parenting time to begin with him as soon as possible. Golnaz has proposed that Saman have virtual parenting time bi-weekly for one hour by zoom to be arranged on a weekend day. I do not agree that this is sufficient time. The virtual parenting time shall take place twice a week for a half hour each time on either Monday, Tuesday or Wednesday from 5:00 to 5:30 p.m. eastern standard time and Saturdays for a half-hour, the time to be proposed by Golnaz.

[117] It is in the children’s best interests for the parents to begin to communicate in a productive manner. In accordance with s.16.1(4) (c) of the Divorce Act, the parents shall use a co-parenting application for the purposes of communicating about the children, parenting time and exchange of information concerning the children.

ORDER

[118] This court makes the following order:

Parenting

(a) Pursuant to s.16.1 of the Divorce Act, the respondent, Saman Moiteenia, shall have virtual parenting time with the two children on Sundays and Wednesdays for at least 30 minutes on each day. The applicant, Golnaz Amirmoezi, shall advise the respondent within five days of the release of this Judgment as to the timing of the virtual parenting (eastern standard time) and she shall facilitate the virtual parenting time on zoom.

(b) Pursuant to s.16.1(4) of the Divorce Act, the applicant, Golnaz Amirmoezi, shall be permitted to travel with the children in and outside of Canada without the need for the respondent’s consent. The applicant shall provide the details of any proposed trip she plans with the children to the respondent at least 12 days in advance of any such trips, including information about the dates of intended travel, the airline information, the location of where the children will be travelling and a telephone number where the children can be reached in case of an emergency.

(c) Pursuant to s.16.1(4) of the Divorce Act, the respondent, Saman Moiteenia, and the applicant, Golnaz Amirmoezi, shall only communicate about the children and share information about the children on a co-parenting application, namely, either 2houses or AppClose. There shall be no direct texting between the parties except in the case of an emergency.

(d) The Order of Nishikawa, J., dated July 26, 2024, remains in full force and effect, subject to a review of the parenting time for the respondent with the children once he provides the applicant with notice as to when he will be returning to Canada.

(e) The respondent, Saman Moiteenia, shall advise the applicant when he will be returning to Canada and he shall provide the details of such return.

Child Support

(f) Pursuant to s.15.1 of the Divorce Act, the respondent, Saman Moiteenia, shall pay the applicant, Golnaz Amirmoezi, retroactive child support in the sum of $8,109 within 30 days;

(g) Pursuant to s.15.1 of the Divorce Act, the respondent, Saman Moiteenia, shall pay the applicant, Golnaz Amirmoezi, child support arrears of $15,431 within 30 days.

(h) Pursuant to s.15.1 of the Divorce Act, commencing November 1, 2024 and on the first day of each following month, the respondent, Saman Moiteenia, shall pay the applicant, Golnaz Amirmoezi, child support for the two children of the marriage in the sum of $1,067 a month, based on an imputed income of $70,000 a year.

(i) For as long as child support is to be paid, the applicant and respondent shall provide updated income disclosure to the other each year within 30 days of the anniversary of this order in accordance with s.24.1 of the Child Support Guidelines.

(j) Unless the support order is withdrawn from 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. A support deduction order will be issued.

(k) The respondent shall provide to the applicant and the Director of the Family Responsibility Office notification of any change in address or employment including full particulars about the change, within ten days of the change taking place.

Repayment of Investment

(l) The respondent, Saman Moiteenia, shall pay the added respondent, Elaheh Amirmoezi, the sum of $830,700 on account of funds she invested with him in real estate projects within 30 days, less the funds that shall be released from the trust account of Philip Ulrich in accordance with (m.) below.

(m) As partial payment of the funds owing to the added respondent, Elaheh Amirmoezi, referred to in (l). above, Philip Ulrich shall be directed to release the monies currently being held in the trust to Elaheh Amirmoezi immediately.

(n) This order bears interest at the post-judgment rate set out in the Courts of Justice Act of ___ % per year effective from the date of this order. A payment in default bears interest only from the ate of default.

Costs

(o) The parties should try and reach an agreement on the costs of this trial. If they are unable to do so, Elaheh and Golnaz shall each serve and file written costs submissions of no more than 3 pages in writing, not including a Bill of Costs and offers to settle. Within 7 days of receiving the costs submissions of Elaheh and Golnaz, Saman shall serve and file written responding costs submissions of no more than 3 pages, not including a Bill of Costs and offers to settle. Within 5 days of receiving Saman’s responding costs submissions, Elaheh and Golnaz shall each file reply costs submissions, if necessary, of no more than 1 page.

M. Kraft, J.

Released: November 7, 2024

[1] Title to the Carmichael Property was taken in Golnaz’s sole name.

[2] Title to the Viewmount Property was taken in the joint names of Saman and a third party, Mohsen Morshedi.

[3] Title to the Castlefield Property was taken in the name of a third party, Siavash Sardashti.

[4] Saman testified that the Mahr of 500 gold coins was equivalent to $500,000 CAD.