NEWMARKET COURT FILE NO.: FC-05-21908-0000 DATE: 20241206 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Yakta Sahebolamri, Applicant – and – Ahmed Sahebolamri, Respondent
Counsel: Michael J. Polisuk, Counsel for the Applicant Sheri Hirschberg, Counsel for the Respondent
HEARD: May 31, June 1, 2 and December 8, 2023, and February 21, 2024 with written closing submissions
Reasons for Decision
JARVIS, J.
[1] Drawing inspiration from two mid-nineteenth century cases which spanned a generation, Charles Dickens serialized Bleak House, a novel about the interminable, and fictional, case of Jaryndyce v. Jaryndyce. Although several decades less than that weary case, the matter before this court has dragged on for almost two decades. The parties’ four children, ranging from twelve to twenty-three years of age when their parents separated, are now financially independent adults with successful, two with professional, careers. Not surprisingly (perhaps) for protracted family law proceedings, the children are divided in their loyalties and estranged from at least one of their parents, who will be described as “the wife” and “the husband” for ease of reference even though they were divorced on June 30, 2018.
[2] The trial evidence consists of affidavits from the parties and their witnesses, supplemented by time-limited direct examination and cross-examination. In addition to the parties, the court heard from the wife’s brother (Hessam Korhani), one of the parties’ sons (Masoud Sahebolamri, with whom the husband has lived since the parties separated) and Fahad Rehman (a real estate broker who provided expert evidence on residential rental values).
The Issues/Parties’ Positions
[3] The issues to be determined involve:
(a) Equalization (which includes the contents of the matrimonial home). The wife claims that the husband owes her an equalization payment of $25,758 whereas the husband claims that he is owed an equalization payment of $400,000.
(b) Line of Credit/loan to wife’s mother. The husband claims that the wife owes him $165,000 which she withdrew from the parties’ joint line of credit to repay a debt owed to her mother. Three transactions were involved and happened between the parties’ disputed valuation dates.
(c) Post-valuation date adjustments #1. The wife claims that the husband owes her $253,561.80 in post-valuation date adjustments. The husband acknowledges $137,375.70 being owed.
(d) Post-valuation date adjustment #2 (Occupation rent). The husband claims that the wife owes him $200,000 for occupation rent for the period from 2015 to 2023.
[4] Pursuant to Minutes of Settlement dated May 5, 2023, the parties agreed to settle the wife’s child support claim for $75,000, comprising $45,000 for table child support and $30,000. for post-secondary expenses. This amount is to be paid from the husband’s share of the net proceeds of sale from the matrimonial home (see below).
[5] Although a Maher was identified as an issue for trial in the Trial Scheduling Order dated April 24, 202[3] (sic) the wife withdrew that claim in her third amendment to her application on April 23, 2023. No evidence was led at trial by either party involving the Maher.
[6] The parties agreed to abandon any claims involving spousal support.
[7] Ancillary to the trial issues (as it was not an issue identified for trial), the parties disputed the wife’s efforts to comply with Orders made for the sale of the matrimonial home. The property was finally sold in 2023 for about $148,000 less than a better offer- the husband claims that the wife should be held accountable for this loss. As of the date of this Decision, the sale transaction has not closed. This issue will be addressed when determining each party’s entitlement to post-separation adjustments.
Background
[8] The parties filed a Statement of Agreed Facts (“SAF”) that they signed on the morning that the trial started. Most of the agreed facts, those unchallenged by the parties and other procedural events relevant to the issues in this case are set out below or are elsewhere referenced (where appropriate) in this Decision:
(a) At the time of trial, the wife was 67 years old, and the husband was 80 years old.
(b) The parties were born and raised in Iran and married there on June 15, 1980. They immigrated to Canada in 1987 with the two eldest of their four children. The two younger children (Hamed and Maryam) were born in Canada. All the children are now adults and financially independent. Maryam graduated from university in May 2015.
(c) In 1998 the parties purchased their matrimonial home at 49 Boyle Drive, Richmond Hill, Ontario (“the matrimonial home” or “the Boyle Drive property”). Title was registered in their names as joint tenants.
(d) The parties disagree about their valuation date. The wife claims that the date was September 4, 2004, when the husband was charged with assaulting her mother (two counts of assault and one count involving threatening/bodily harm). This was the last time that the husband lived in the matrimonial home. The husband claims that the valuation date was May 1, 2004, when he told the wife that their marriage was over. Except for the issue involving the parties’ joint line of credit (see paras. 31 to 36 below) nothing turns on that dispute. For ease of reference the court will adopt September 4, 2004, as the valuation date. [1]
(e) After the husband was charged with assaulting the wife’s mother, his bail conditions prevented him from returning to the matrimonial home.
(f) The wife and three children (ages 23 to 11 years old) continued to live in the matrimonial home.
(g) The husband has not resided at the matrimonial home since September 4, 2004.
(h) When he was criminally charged, the husband was working for a company engaged in the manufacturing, import and export of Persian carpets. The company was owned by the wife’s family. [2] She was a passive shareholder.
(i) The husband was terminated from his employment after he was charged. He lost all medical coverage. The wife had the parties’ joint line of credit frozen.
(j) Despite the two youngest children’s ages (15 and 11 years old when the parties separated), the husband never paid child support.
(k) The husband’s trial on the criminal charges proceeded on November 9, 2005, in the Ontario Court of Justice. The wife’s mother and the wife’s brother (Hessam) testified for the Crown, at the conclusion of which the Crown invited the court to dismiss the charges. Shaw J. agreed that there was no reasonable prospect of conviction and dismissed the charges.
(l) On November 17, 2017, MacPherson J. ordered (among other terms of relief) that the matrimonial home be listed for sale within 90 days. [3] The wife opposed the sale. Costs were awarded to the husband in the amount of $9,000 to be paid from the wife’s share of the net proceeds of sale from the matrimonial home. The wife appealed the Order.
(m) The parties were divorced on June 30, 2018.
(n) On September 27, 2018, the Divisional Court dismissed the wife’s appeal from the November 2017 sale Order and reset the 90-day period for listing the property to run from October 1, 2018. [4] The husband was awarded all-inclusive costs of $5,000 for the appeal, also to be paid from the wife’s share of the net proceeds of sale.
(o) On October 16, 2019, MacPherson J. awarded the husband all-inclusive costs of $2,496.72 relating to two Chambers motions by the parties relating to the sale of the matrimonial home. MacPherson J. commented about the wife’s unreasonable litigation behaviour with respect to the sale process. Unlike his November 2017 Order and that of the Divisional Court in which the costs payable by the wife were directed to be paid from her share of the sale proceeds, MacPherson J. ordered that the wife pay the costs within fourteen days.
(p) On September 28, 2022, four years after the Divisional Court Order, Bruhn J. made a further Order that the parties sign a listing agreement, gave directions for a valuation of the property, retaining a realtor and incorporating the operative terms of the 2017 Order made by MacPherson J. which had structured the sale process. Bruhn J. further ordered that the costs payable by the wife pursuant to the November 2017 Order of MacPherson J. and the 2018 Divisional Court Order be paid from the wife’s share of the sale proceeds.
(q) On April 19, 2023, the matrimonial home was sold for $2,232,000 to Hamed Sahebolamri, a son of the parties who resided in the home. The completion date for the purchase was June 15, 2023.
(r) The sale transaction did not close as anticipated. The solicitor acting for Hamed discovered an undischarged mortgage registered on title. An Order was ultimately made in July 2024 striking the mortgage from title. [5] The transaction did not close afterwards. The court was informed that the parties were awaiting release of this Decision.
(s) The husband never contributed to the expenses for the matrimonial home after September 4, 2004. In addition to realty taxes and operating costs, there was a mortgage on the property. The amount owing on January 1, 2004, was $85,151.21 and $36,850.26 on December 31, 2004. The mortgage was fully paid by 2018.
(t) From January 1, 2004, to September 24, 2018, a total of $124,391.59 in interest was paid on the parties’ joint line of credit. From September 25, 2018, to April 25, 2023, the wife indicates that $51,469.25 in interest was paid towards the line of credit. The husband contributed nothing.
(u) Following separation, the wife paid all mortgage payments; the husband paid none.
(v) The wife paid $37,656.40 for property insurance on the matrimonial home from September 4, 2004, to April 27, 2023 ($25,000 up to May 1, 2015, and $12,656.40 afterwards). The husband paid nothing towards the property insurance.
(w) From the date of separation to the date of trial, the sum of $157,107 was paid in property tax (including penalties & administrative fees) for the matrimonial home. The husband did not contribute to these expenses.
Credibility
[9] Each party challenged the credibility of the other party. Neither was wholly credible, but for mostly different reasons. For example, the wife submitted that the husband’s evidence about his net worth on the marriage date should not be accepted or believed because he was unable to independently support his testimony with documentary evidence. As for the husband, he alleged a scheme, or plan, by the wife and her family to do whatever it took to obtain sole ownership of the matrimonial home, which is what happened ultimately.
[10] As has been frequently observed, the assessment of witness credibility is an inexact science, impossible to articulate with precision. For example, a witness may be so interested in a case that they are incapable of making an admission, or facilitating the disclosure of information that they perceive as helpful to the other party and harmful to their case. Or a witness may impress the court with the logic, or common sense, of their narrative but be unreliable due to the absence of probative, independent information or their interest in the outcome of the case. These affect the weight to be given to that evidence. There is, quite simply, no one-size-fits-all template. Several of the many considerations relevant to the weighing and assessment of witness credibility and reliability, and relevant to his case, were comprehensively reviewed in Al-Sajee v. Tawfic, 2019 ONSC 3857 [6] by Chappel J. who aptly observed that,
… the judge is not re qui re d b y l a w to b eli ev e o r d i s b eli ev e a w itn e ss ' s t e stimo n y in its e nt i re t y . O n the c ont ra r y , t h e y m a y ac ce p t non e , p ar t or a ll of a w itn e ss ' s e vid e n c e , a nd m a y a lso a tt ac h di ffere nt we i g ht to di ff er e nt p ar ts of a w itn e s s ' s e vid e n c e. [7] [Citations omitted].
[11] In this case the wife is less credible than the husband. His evidence was slightly more credible but less reliable. These are some of the reasons:
(a) The wife’s family had been involved in the rug industry in Iran and Canada for over a century and was nationally and internationally respected. She was aware that the husband had claimed that the rugs in the matrimonial home were worth $200,000. Yet her awareness of this claim and having sole possession of the home for almost twenty years before the trial, the wife placed no value on the rugs and testified that she had “no idea” about their value. This was not credible. Admitting that the rugs had any value would be harmful to the wife’s financial interests.
(b) Pursuant to his release papers after he was charged, the husband was not allowed to be near where his mother-in-law was living. She owned a residence elsewhere than the matrimonial home. There was no restriction on the husband returning to the matrimonial home. When pressed by Ms. Hirschberg how it was that whenever the husband proposed to return to the matrimonial home, his mother-in-law happened to be living there, the wife avoided a direct answer to the question. She was evasive.
(c) The wife obtained an Order from Jenkins J. on July 13, 2005, whose terms restrained the husband from communicating with her and being within 100 metres of the matrimonial home. She had sworn an affidavit that she felt endangered by the husband but was unable to identify her signature. She admitted that she never told the Crown Attorney prosecuting the husband that she had ever felt endangered.
(d) Although not a formal trial issue, the evidence of the wife about an offer to purchase the home failing was evasive and, to put it bluntly, not credible. A deadline had been given to prospective purchasers to submit offers by a certain date and time. One of the qualifying offers had an acceptance deadline that expired at midnight that day (April 18, 2023). That offer was one of nine, but it was for the best price of $2,380,000. The wife was aware of the deadline but said that she either couldn’t open it, thought she had twenty-four hours to “consider” it, had gone to bed because she had taken sleeping medication and she wanted to see what the husband had signed. In my view, the wife allowed that deal to fall through because she didn’t want the home sold. This is consistent with all her efforts over a period of years beginning with the sale Order made by MacPherson J. on November 17, 2017, to prevent the sale and for which she was sanctioned in costs on three occasions. She said that she thought the offer was “fake” (of which there was no evidence). The next best offer was that from her son, Hamed, for a lower price of $2,232,000, a $148,000 difference. That offer was accepted on April 19, 2023. I conclude that she was aware that Hamed was making an offer and that is why she avoided dealing with the higher offer.
(e) As for the husband, his evidence about his assets was unreliable. He maintained that he had a significant net worth on the marriage date but provided nothing in the way of independent, corroborative evidence. And, despite almost twenty years since the parties separated, he proffered no evidence about his efforts to obtain this evidence.
(f) So too with the value of his realty in Iran. The husband told the court that he had given appraisals to his former lawyer, but no copies of those documents were tendered in evidence and the lawyer was never called to testify.
(g) In his trial affidavit, the husband denied owing anything to his mother-in-law when the parties separated but admitted in cross-examination to keeping a book that recorded, in his handwriting, the monies that had been advanced by her in the months before May 1, 2004, his choice of valuation date. This evidence was inconsistent.
(h) The father failed to call witnesses who could have supported his marriage date and debt claims. No reasons were given.
[12] In many respects, the parties (especially the wife) tailored their evidence to support their preferred narrative. In the husband’s case his credibility was adversely impacted by “omission”; that is, failing to tender evidence which could have supported his case. Accordingly, in assessing the components of each party’s family property, greater weight will be given to evidence of an independent character such as a document, linking documents to each party’s narrative and applying (with caution) common sense to fill in any evidentiary gaps.
Equalization
[13] Pursuant to s. 5(1) of the Family Law Act [8] (“the Act”) spousal parties must share the value of any difference in their net worth when their marriage breaks down, subject to certain deductions or exclusions. In this case, each party has claimed that the value of some of their property should be deducted or excluded from the calculation of their net family property.
[14] Sections 4(1) of the Act identifies what is, and what is not, included in the calculation:
4(1) “net family property” means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting,
(a) the spouse’s debts and other liabilities, and
(b) the value of property, other than a matrimonial home, that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.
Assets debts and other liabilities
[15] The wife’s trial financial statement and her net family property statement inconsistently recorded her net family property. It was $990,660 in her financial statement (sworn May 9, 2023) and $1,108,484 in her net family property statement (dated May 26, 2023). No effort was made at trial to reconcile the difference. The husband’s corresponding statements both recorded “Nil” as his net family property (each dated May 9, 2023). The wife claimed that the husband owed her (as already noted) an equalization payment of $25,758. The husband claimed that he was owed an equalization payment of $852,920.50 but submitted a proposed final Order seeking a $400,000 equalization payment, a difference that, as with the wife, was never reconciled whether during the trial or when the parties made their written submissions. They did not prepare and file a combined net family property statement despite being ordered to do so by the Trial Scheduling Order.
While the principal differences between the parties’ material related to the husband’s deduction claim and the wife’s exclusion claim, and there were many consistencies between the net family property statements, there remained several assets and values which the parties never acknowledged or ignored exploring in their evidence, cross-examinations and submissions. Consequently, I will determine the existence of selected assets, debts or other liabilities and their attributable value based on what little evidence was tendered and my view of the subject party’s credibility. Treatment of the deductions and exclusions will follow separately.
Land
[16] Title to the matrimonial home was held in the joint names of the parties. Each declared a different gross value for the property. The wife used a current value whereas the husband used a much lesser value, likely more reflective of the home’s value on the valuation date. In neither case were appraisals tendered as evidence. None was needed anyway as there is no impact on the ultimate determination of the equalization payment.
[17] The wife’s net family property statement included nothing for the husband’s Iranian properties or for their values which the husband declared that he owned on the valuation date. The wife chose not to cross-examine the husband on any of the properties or their values as of the valuation date. The court will accept the husband’s evidence.
General household items and vehicles
[18] There are several items in dispute.
[19] The wife claimed that the furniture in the home was worth $5,000. Presumably that included the husband’s $3,000 estimate for the value of furniture, kitchenware, carvings and books which he recorded as being acquired before marriage. He also claimed that, in addition to the value of the items he brought to the marriage, the household contents (not including rugs) were worth $20,450. He testified that he had been unable to retrieve any of his belongings from the home, no furniture and no rugs, although there was no evidence that he ever made meaningful efforts in that regard.
[20] The wife claimed that the value of the rugs in the home was “Nil”. While she acknowledged that there were rugs in the home, she testified that she had no idea about their value. The husband alleged they were worth $200,000.
[21] The evidence is unchallenged that the wife retained the entirety of the contents of the matrimonial home. There was no independent evidence appraising the value of the household contents and the rugs nor any evidence about either party’s efforts to identify the value of either group.
[22] The husband’s unchallenged evidence is that there had been a fire at the matrimonial home on January 26, 2002, that caused smoke-related damage to the home and its’ contents, including damage to what the husband described were “many expensive Persian carpets”. An insurance payment was made to the parties for many of the rugs but not for the silk rugs and other rugs which were either hand-woven or which carpeted stairs in the home. There was no evidence about the purchase cost for any of these rugs. Any such records were left in the home. There was no evidence that the husband had made any effort to contact the insurance companies (there were two involved) after the parties separated. There were no appraisals. The husband produced a list of the damaged rugs/carpets. He also produced a letter from a rug dealership dated October 16, 2002 (Thorn Hill Rugs) that suggested that the fire damage had devalued the rugs about $40,000 from their original values and which proposed to replace and/or provide related remediation services for $36,000.
[23] Given the frailty of the evidence about the composition and associated value of the household contents, the best this court can do is average the values proposed by the parties (with the exception of the husband’s $3,000 estimate for chattels over twenty-four years old which he claimed were worth that amount on the date of marriage). Accordingly, there will be attributed to the wife a $25,450 value for household contents (i.e., $5,000 plus $20,450). As observed by Kiteley J. in Shaw v. Shaw [9] “the calculation of net family property is not an exact science.”
[24] Given the nature of the wife’s family business, which specializes in high quality rugs marketed nationally and internationally and her position as a director and shareholder, I cannot accept that the rugs in the home had no value as she claimed. She is not credible on that issue. She never addressed the husband’s allegations of value apart from a blanket denial. Despite the absence of a more robust effort by the husband to prove the value that he attributed to the rugs ($200,000), I am prepared to accept that, as a minimum, the home had, and the wife has retained, at least $36,000 in value for them, the cost of remediation.
[25] There will be added to the wife’s column under this category $61,450 representing the value of the contents of the matrimonial home ($25,450) and the value of the rugs ($36,000).
[26] The parties disputed whether the wife owned an automobile on the valuation date. No effort was made to verify whether the wife had use of an automobile, who owned it if she did and, if she was the owner, its value. The wife testified that the automobile was owned by her father but was not pressed on that issue by the husband. No automobile value will be attributed to the wife.
Determination of the parties’ deduction and exclusion claims
[27] The husband claims that he is entitled to deduct the net value of the $3,801,500 in property that he owned when the parties married.
[28] The wife claims that the value of her shares in the Korhani Group worth $843,776 should be excluded from her net family property calculation pursuant to s. 4(2) of the Act because she acquired them by gift from her late father before the valuation date. The subsections relevant to this case are the following:
Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.
Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.
Not relevant.
Not relevant.
Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.
Not relevant.
Not relevant.
[29] Section 4(3) of the Act provides that the evidentiary burden “of proving a deduction under the definition of “net family property” or an exclusion under subsection (2) is on the person claiming it.
[30] Each of the parties’ claims will be separately addressed.
Deductions
Line of credit/Debt owed to wife’s mother.
[31] The wife claims that when the parties separated, irrespective of their preferred valuation date, the parties owed her mother $165,000. This was paid on June 15, 2004, in three separate cheques drawn on the parties’ joint line of credit. In her trial financial statement, the wife identified a $100,000 line of credit debt owing on her valuation date. [10] In addition to the debt, the wife seeks a post-valuation date adjustment of $87,930.42 in her favour representing one-half of the interest paid on the line of credit after September 4, 2004.
[32] The husband denied that anything was owed to his mother-in-law and that the funds were withdrawn without notice to him. He claimed that access to the line of credit was frozen (on or about September 7, 2004) because of the wife’s contact with the bank; it would only allow deposits. He submitted that he should not be held responsible for either the debt owed on the valuation date or for the interest paid afterwards. In the financial statements (four) that he filed between October 14, 2005, and September 1, 2006, the husband recorded that he owed $700 on the line of credit on May 1, 2004, being his one-half share of $1,400. Each of these financial statements also recorded the same value despite their separate dates over an eleven-month period. The husband’s May 9, 2023, trial financial statement recorded his share of the debt at $726 on May 1, 2004, and $103,109 on the date that statement was sworn, implying that the outstanding amount owed was $206,218. The husband acknowledged that he never made any payments on the line of credit balance after September 4, 2004, and paid none of the interest charged on the outstanding balance either.
[33] The evidence, much of it from the husband’s trial testimony, supports the wife’s claims. This is the evidence:
(a) Starting in 2001, although likely before that date, the wife’s mother began lending the parties money to help them pay down their debt. The money would be advanced to the mother who left the application/disbursement of the funds to the husband.
(b) The husband kept a book in which he recorded the amounts lent.
(c) To acknowledge receipt of the money, the husband would write an undated cheque on the account for the amount loaned. Although the evidence is unclear, this cheque would be given to the wife or to her mother.
(d) The husband stated that he and his wife agreed to end their marriage on May 1, 2004, but they continued to reside with the children in the matrimonial home to make the transition for the children easier.
(e) While there is no Line of Credit statement for May 2004, the husband provided account statements for April 30, 2004, and June 30, 2004. The April statement shows $21,500 being applied on April 2, 2004, against an outstanding balance of $29,806.41. [11] The husband acknowledged recording in the book he kept two advances by the wife’s mother on April 2, 2004, one for $24,500 and the other for $3,000. Two cheques were written on the account, one for each advance, and their cheque numbers were also noted (No. 52 for the $24,500 advance and No. 53 for the $3,000 advance). A page from the book recorded that the parties owed a total amount of $138,000 to the wife’s mother as of October 24, 2023. A cheque (No. 51) was noted as having been drawn on the account. [12]
(f) The June 30, 2004, account statement records an opening credit balance of $3,288.62 and then on June 15, 2004, cheques 51 to 53 totalling $165,300 corresponding to the amounts advanced are shown as being drawn on the account bringing the outstanding debit balance (after other transactions not explored in the trial evidence) to $175,988.02. [13]
(g) The wife claimed that her mother had asked in mid-2004 for the return of the money owed to her and that on or about July 2, 2004, she paid her mother $165,300. The circumstances giving rise to the repayment request and the inconsistency between the account statements and the wife’s evidence about when and how her mother was repaid were never explored at trial.
(h) According to the wife’s evidence, the parties separated on September 4, 2004, after the husband was alleged to have assaulted her mother.
(i) The wife alleged that the husband had withdrawn about $35,000 before September 4, 2004, and that there was about $200,000 owing then on the account. The husband did not challenge this evidence.
[34] The documentary evidence comprising of records in the husband’s handwriting, the corresponding (and, in my view, corroborating) account statements and the overall consistency of the wife’s evidence with them all point to the parties owing $165,300 to the wife’s mother as of May 1, 2004, the husband’s choice of valuation date. The husband’s position that nothing was owed to his mother-in-law is inconsistent with the records he maintained and while there are some inconsistencies in the wife’s evidence (i.e., the date of repayment) they are insufficient to undermine her claim on a balance of probabilities.
[35] There is no account statement in evidence about the balance owed as of September 4, 2004. What is known, and what this court accepts, is that from and after that date only interest on the outstanding balance owed was paid by the wife. The first statement after September 4, 2004, that the wife was able to obtain from the bank was dated February 1, 2011, and showed a balance of $206,202.19 and, with minor exceptions, the balance never varied afterward.
[36] The court will accept that the balance owing on the line of credit as of September 4, 2004, was $206,202.
Husband’s deduction claims for property owned on date of marriage
[37] The husband claimed that the net value of his property (no debts or other liabilities) on the date of marriage was $3,801,500. Several distinct kinds of property were, and remain, involved. The husband claimed that he owned realty in Iran comprising six properties worth $3,255,000 (one having twelve parcels), general household items and vehicles ($35,000, estimated, including a 50% interest in assorted rugs for which no value was attributed [14]), bank accounts and other savings ($7,500- estimated) and money owed to him ($504,000 by members of the wife’s family and by his two brothers). In his trial financial statement sworn on May 9, 2023, the husband retained ownership of four of the lands owned on the marriage date and a smaller portion of the much larger group of the twelve parcels owned on the marriage date. He estimated the aggregate value of his realty on the valuation date was $193,663.
[38] In his trial affidavit, the husband stated (at para. 43) that he had not been able to retrieve any of his documents or written correspondence with a deceased brother after he was charged and unable to return to the matrimonial home in September 2004. He also stated (at para. 88) that:
“I had significant and substantial funds when I moved to Canada, and this will need to be considered when our net family property is equalized.”
[39] The wife’s evidence was that she was unaware about what, if any, property was owned by the husband on the marriage date.
[40] In cross-examination, the husband testified to the following:
(a) In Schedule A to his Amended Further Amended Answer, the husband pleaded that his family in Iran was wealthy and that after his father died in 1975, he inherited “various parcels of land and other items worth about $3,000,000”. In his trial financial statement, the husband claimed that the twelve parcels of land had been gifted to him before the parties’ marriage.
(b) Four of the lands (not the parcels in (a) above) comprised vineyards which the husband said he had purchased before the marriage and in which he held interests ranging from 50% to 100%.
(c) The husband claimed that he inherited a one-quarter interest worth $200,000 in a home in Iran (Ghasr Dasht, Shiraz) in which the parties lived before coming to Canada. His sister also owned one-quarter of the home, as did each of his two brothers. The husband purchased the share of his sister. She and one of his brothers were alive at the time of trial. The husband claimed that he transferred the proceeds of sale from his share of the property to Canada when he sold his interest in it and used the proceeds for family expenses.
(d) There was no evidence identifying any of the documents left at the matrimonial home which the husband needed to prove his deduction nor any evidence of his efforts to obtain them between September 2004 and the start of trial almost two decades later.
(e) No document supporting the husband’s evidence about his inheritance or gift, his purchase of any of the Iranian properties, the sale of his interest in the home there and the subsequent transfer of proceeds to Canada was tendered in evidence.
(f) Neither of the husband’s surviving siblings (a sister and a brother) was called to testify. No request was made to have them testify by Zoom.
(g) No independent third-party evidence about the value of the husband’s interests in any of the properties on the marriage or valuation dates was tendered, although the husband testified that he had provided expert reports twenty years ago to his former lawyer. The lawyer (not his trial counsel but another lawyer who often appears before this court) was not called to testify. There was no evidence about who may have prepared such reports, their dates, by whom they had been submitted or to whom, nor what steps (if any) had been taken during the intervening almost two decades to either locate land registry information (from Iran) or to have other trial-admissible evidence obtained.
[41] The foregoing observations apply equally to the husband’s claims relating to general household items and vehicles, and his bank accounts and savings. As for the $504,000 claimed for money owed, $430,000 USD represented a “bad debt” (in parentheses) [15] owed by the wife’s family, $44,000 from a brother (Hassan) and $30,000 from a deceased brother (Hussein).
[42] With respect to the $430,000 USD owed, the husband testified that he used his own savings and had borrowed “here and there” from friends and family to loan to the wife’s family before the parties married. No supporting, documentary evidence was tendered confirming the dates or amounts of the borrowed funds or their receipt and, despite two of the lenders (his brother and a friend) being alive at the time of trial, neither was called to testify nor was any explanation given for their unavailability. In none of the husband’s four financial statements sworn between October 14, 2005, to September 1, 2006, did the husband make any reference to money owed to him by either the wife’s family or the Korhani Group. Moreover, he testified that there was an ongoing lawsuit in Iran between him and the Korhani Group for $830,000 USD owed to him of which the $430,000 USD was included. The husband’s evidence was that he was in possession of a $830,000 USD cheque purportedly from the Korhani Group dated February 15, 1985, drawn on a bank in Iran which he had been unable to negotiate due to insufficient funds. The husband had been convicted of fraud relating to that cheque but was later acquitted by a Provincial Court of Appeals in Iran in July 2013. Counsel never addressed how that case impacted this case (except for credibility purposes).
[43] In his trial financial statement, the husband claimed that he had no business interests on the marriage date. In his trial Net Family Property Statement of the same date the husband declared that he had business interests totalling $830,000 on the marriage date, roughly corresponding to the wife’s shares in the Korhani Group. Hassan Korhani testified that the husband had never provided any money to, or had invested in, the Korhani Group.
[44] No documentary evidence was tendered with respect to either of the loans alleged to have been made to the husband by his brothers. The debt owed by Hassan was repaid before the valuation date but there was no evidence when that was paid or where the funds were deposited. As for Hussein’s debt, it was never repaid.
[45] Despite the absence of documentary evidence probative of his net worth on the marriage date, the husband’s evidence was that, following the wife and children, he landed in Canada in 1987 having qualified as a businessman under the Canada immigrant entrepreneur program. In his application for a permanent residence permit dated August 4, 1986, the husband declared that he had $500,000 cash and $200,000 in real estate which he said at trial had been invested in the Korhani Group. There was no evidence how or where these funds were held, the date or dates when any of them was invested or any acknowledgement of their investment. There was no evidence about what comprised the real estate investment. There was no evidence, for example, of efforts to explore (or obtain disclosure of) any of the Korhani Group corporate records.
[46] Based on the husband’s evidence and the inconsistencies in his affidavit/financial statements and testimony, there is considerable doubt about the identity and value of his assets on the marriage date. There are no valuations. There is no evidence of associated debts or other liabilities, contingent or otherwise. There is no reasonable explanation why evidence of potentially corroborative witnesses (like the husband’s surviving siblings or his friend) was not tendered. The husband submitted that the court should accept his personal view of his assets at the marriage date and the amount of his investment in Canada as constituting “the plausible range such a valuation may take”.
[47] I am unable to accept this approach. In many cases, proving a deduction is not an issue. But in cases where there is an absence of documentary or other credible evidence due to the passage of time (like this case), the destruction or suppression of evidence (suggested in this case) or inaccessibility to third-party information (such as banking records over seven years old, obvious in this case too), a party must adopt an approach not dissimilar to tracing an exclusion, the difference being that tracing is a prospective rather than retrospective method (or tool). See Najm v. Najm, 2024 ONSC 2053 [16] at para. 19. Proving a deduction requires a retrospective “but for” approach that looks for evidence or circumstances probative of assets and their net value proximate to the marriage date. A common sense and reasonable view must be taken of the evidence; a sufficient link must be found. In this case, the husband’s evidence about the identity and value of his deductions and his efforts to verify and value them fall far short of discharging his statutory burden of proving them on a balance of probabilities.
[48] No deduction shall be allowed for the value of the husband’s assets alleged to have been owned on the marriage date.
Exclusion (wife’s shares in the Korhani Group)
[49] The wife claimed that she owned various series of shares in three companies of the Korhani Group collectively worth $843,776 on the valuation date. Her evidence was that these had been gifted to her in 1995 by her father and so their value should be excluded from her net family property. He died on February 29, 2016. No expert evidence was tendered with respect to the value of any of the companies, the value of the wife’s shares or any contingent tax liabilities. The wife obtained the values from her brother (Hessam). He was the owner of two of the three companies comprising the Korhani Group in which the wife held shares and he was the owner of another Korhani company that employed the husband on the valuation date. His evidence was that his father had gifted the shares to the wife.
[50] The wife tendered in evidence three Declarations each dated December 10, 2015, which she said had been signed by her father. The Declarations were identically worded and stated that he (i.e., her father) had gifted the shares to her. Each document had a different witness. The wife testified that she had been present when each Declaration was signed; two had been signed at her father’s home and the third at the office of her trial counsel.
[51] The husband agreed with the value attributed to the wife’s shares but submitted that it was his “belief” that the shares were given to her as repayment for the funds that he had advanced to his brothers-in-law and, consequently, they were “provided to the parties jointly or as part of a joint family undertaking”. The wife was not entitled to her exclusion. I am unable to accept this submission and am satisfied that the wife has led sufficient evidence to prove that the shares from her father were a gift for these reasons:
(a) On this issue the wife was a more credible witness. I accept her evidence about her father gifting her shares and the evidence of the 2015 Declaration which, apart from simply challenging the authenticity of the document, the husband explored no further. He could point to no evidence other than his “belief” that the wife was not gifted her shares and that his and their remuneration comprised repayment of his pre-1995 liquid assets. His evidence was unreliable, inconsistent, and unsupported by any document or witness. The fact is that the wife had no shares in any Korhani company on the marriage date, she owned shares on the valuation date, and there was no evidence that she purchased them or that the husband advanced her money to acquire shares between the marriage and valuation dates.
(b) Importantly, there is no documentary evidence of any kind supporting any investment made by the husband in the Korhani Group or advanced to the brothers-in-law before or after the parties immigrated that impugned the wife’s evidence about how she had acquired her shares.
(c) The husband’s evidence was that he had an unwritten agreement (with whom never made clear) that he was to be paid $5,000 monthly for his investment. An August 7, 1990, letter from his employer (Korhani Import-Export Inc.) addressed “To whom it may concern” stated that the husband was employed as a Senior Administration Manager and earned over $85,000 a year. This letter was dated after the parties had moved from Montreal to Toronto in 1989. In 1999 and again in 2023 the external auditor and financial consultant to the Korhani Group reported (again addressed “To whom it may concern”) that the husband and wife drew wages, dividends and a director’s loan refund totalling $130,000 (1999) and $124,717 (2002). The husband pointed to these as disproving the wife’s claim of gift and corroborating his joint family venture claim. But nowhere in any of these documents is there any reference to the husband having an ownership interest in the Korhani Group or that any part of the renumeration reflected a repayment to him for his interest in the group. If such evidence existed that would undermine the wife’s claim. No corporate records were tendered to support the husband’s allegations, and no explanation was provided why, if this was his position, he had done nothing to obtain supportive evidence.
(d) There was no evidence that the husband was ever a shareholder or director of any company comprising the Korhani Group and no reference to any such position in any document tendered at trial.
(e) There was no evidence at trial identifying what efforts, if any, the husband had undertaken to effectively (or at all) challenge the wife’s claim or to obtain disclosure from the wife by Requests for Information, motions or disclosure orders and her responses to any such efforts. Bald allegations are not evidence.
[52] The wife is entitled to exclude $843,776 from the calculation of her net family property.
Net family property/Equalization Payment
[53] A Net Family Property statement accompanies and forms part of this Decision. The husband owes the wife an equalization payment of $19,028.
Post-valuation date adjustments to equalization payment #1
[54] The wife has claimed for $253,561.80 in post-separation adjustments from the husband representing his one-share of the following expenses (the amount claimed is in brackets): CIBC line of credit ($87,930.42); mortgage expenses ($36,425); property taxes ($78,553.50); home insurance ($18,828.20); and repairs to the matrimonial home ($31,824.68). [17] In his closing submissions and the draft final Order that he proposed, the husband acknowledged owing $5,000 on the line of credit, $35,000 for the discharge of the mortgage (but nothing for the principal and interest payments made after September 1, 2004), he agreed about his share of the property taxes and the home insurance but disputed whether he should be held responsible for any repairs to the matrimonial home. The aggregate difference is $151,180. [18]
CIBC line of credit payments
[55] The wife claimed, and the husband admitted, that he paid nothing on the line of credit after September 4, 2004. As of April 25, 2023, the wife calculated that she had paid $175,860.84 in interest. In support of her claim the wife tendered a letter dated September 24, 2018, from the CIBC addressed to the husband that advised that the interest paid on the line of credit from January 1, 2004, to September 24, 2018, was $124,391.59. The husband did not challenge this figure. Accompanying the wife’s affidavit (Exhibit B) were a series of interest only payments from January 31, 2018, to April 25, 2023. Those from and after September 2018 total $41,991.55. [19] The total interest paid from January 1, 2004, to April 25, 2023, is $166,383, rounded. The only evidence about interest payments on the line of credit before September 4, 2004, are the April and June 2004 account statements which averaged about $300 a month. Accepting that amount for the first eight months of 2004 would reduce the interest paid after September 4, 2004, to $163,393 (i.e., $166,383 less [8 x $300]).
[56] For the twelve months ending in April 2023, the average monthly interest payment was $950, rounded.
Mortgage
[57] The wife’s evidence is that she paid $72,850 in principal and interest on the matrimonial home mortgage between December 31, 2004 (when its principal was $36,850.26) and its discharge in 2018. A 2004 Annual Mortgage Statement disclosed that a total of $2,135.87 in interest was paid in 2004. The mortgage was a five-year closed mortgage with a December 31, 2004, interest rate of 4%.
[58] The husband did not dispute the principal shown as owing on the December 31, 2004, mortgage statement. He is responsible for one-half of that amount (i.e., $18,425.13) which the court will increase to $18,643, say $18,640 rounded, representing an estimate as to the principal paid on the mortgage by the wife from September 4, 2004, to December 31, 2004. [20] This figure will be included in calculating the net family property calculation.
[59] As for the interest paid on the mortgage principal, the wife’s evidence was that she was unable to obtain mortgage statements for each year after 2004 until 2017, when the total interest paid in that year was $262.22. The 2017 mortgage statement indicated a five-year open mortgage with a variable rate of interest ranging from 3% (January 1, 2017) to 4.2% (December 31, 2017). The wife calculated that she had paid “about $3,000 in interest annually from 2005 to 2017, or about $36,000.” [21] I am unable to accept this evidence; the math makes no sense. The monthly mortgage cost would have comprised principal and interest with the allocation between those two amounts varying monthly as each payment was made. The monthly principal repaid would increase, and the interest component would form a smaller part of each payment.
[60] The wife provided no evidence about renewals of the mortgage, whether the renewals had variable or fixed interest rates or even the relevant rates although these details could have been obtained from tendering copies of the mortgage instruments from the property abstract. Absent any better evidence, the court will average the annual interest, taking the December 31, 2004, amount paid ($2,135.87) and the December 31, 2017, amount paid ($262.22) totalling $2,389, divided in half ($1,199) and multiplied by the thirteen years captured by the two statements, thereby resulting in total interest paid of $15,587.
[61] There was no evidence when the mortgage was discharged in 2018, nor the interest paid in 2018 to that date. Assuming that the mortgage was discharged in mid-June 2018, then about another $115 interest would have been paid. Adding that to $15,587 would result in a total interest paid figure of $15,602, or $15,600 rounded. The husband is liable for one-half of that amount or $7,800. The wife is entitled to an adjustment in this amount from the husband’s share of the sale proceeds.
Repairs
[62] The wife submitted maintenance and repair bills for the matrimonial home for two periods, one from September 4, 2004, to 2017 ($35,353) and the other for the period from 2018 to 2023 ($16,876.90) and claimed that the husband should be ordered to contribute to one-half of their total cost. The husband acknowledged that he owed something to the wife for household expenses but declined to identify for the court what those comprised or their amount, submitting baldly that he should only be obliged to reimburse the wife for those expenses which she could prove were paid by her. He pointed out that many of the bills did not indicate the address of the matrimonial home or were not addressed to the wife.
[63] So, without either party’s assistance, the court took a deeper dive into the evidence.
[64] Exhibit J to the wife’s affidavit comprised receipts and the invoices for the repairs that the wife said she paid for the matrimonial home for the period ending in 2017 ($35,353). There are many problems with the wife’s evidence. For example, a May 20, 2010, receipt for $6,530 (although the amount is almost unintelligible) identified the client as Korhani of Canada Inc. Another, for plumbing (2012), had no customer identified or service address. So too the invoices dated for 2014 and 2015 from Rubik Construction totalling $16,608.67 were all addressed to the Korhani Group business offices and gave no indication where or for whom, other than at the Korhani Group address, the invoiced work was performed. Several invoices which did identify the wife as the customer and the matrimonial home address (such as Arya Design Inc. in 2011 and 2013) described wear and tear maintenance work (i.e., supplying and installing a kitchen light, painting a dining table and two other small tables, etc.). A 2017 invoice was for the installation and supply of a new air conditioner. If the Korhani Group paid for these expenses, or if the wife paid for them, there is no record of their payment being recorded in any shareholder account ledger for the wife or proof (such as a bank account statement) that the wife paid the bill. She was able, for example, to provide monthly statements for the joint credit line extending as far back as 2011.
[65] Given this court’s concerns about the wife’s credibility, the fact that she had exclusive possession of the matrimonial home for almost twenty years, the invoices in many instances recording maintenance work (or what may be described as “wear and tear” work) and the absence of any evidence that the husband was ever consulted about any of the expenses before they were incurred (even if he could afford them, which this court doubts) I am not inclined to award her anything on account of her larger claim for the period prior to 2018.
[66] The evidence with respect to the household expenses after 2017 (i.e., $16,876.90) as set out in Exhibit F is marginally more persuasive. This includes removal of a damaged tree (2018), washroom repairs and exterior lighting replacement and garage painting (2021), heating and cooling maintenance (2021), and a fence repair (2022). Of these, I will only accept the tree removal ($2,100 cash) invoice, repairs to four washrooms in August 2021 ($3,955) and fence repair in 2022 ($475), [22] the latter two times when the home had been ordered to be sold. The other bills (to replace a kitchen faucet and what appear to be air conditioning service calls-the descriptions for the work performed and the repair codes are unintelligible) will not be considered as they represent ordinary expenses that an occupant would reasonably be expected to incur for their sole benefit.
[67] Accordingly, the wife will be allowed the sum of $3,265 for this category (i.e., $6,530/2).
Post-valuation date adjustment #2 (Occupation rent)
[68] The husband submits that the wife owes him an equalization payment ranging between $304,000 (if calculated from September 2010) to $165,000 (if calculated from November 2017) although his proposed final Order seeks $200,000. The wife disagrees and submits that no occupation rent should be ordered.
[69] Occupation rent is a discretionary remedy that can be used to ensure financial fairness between spouses. Saroli v. Saroli, 2021 ONSC 4450 [23], at para. 311. It is a tool for balancing competing equities. Jasiobedzki v. Jasiobedzki, 2023 ONCA 482 [24], at para. 15. The Order must be reasonable; it need not be exceptional. Non Chhom v. Green, 2023 ONCA 692 [25], at para. 8. In Griffiths v. Zambosco [26], 54 O.R. (3d) 397 (Ont. C.A.), at para. 49, the Court of Appeal identified a number of relevant factors which the Court in Chhom acknowledged as consistently taken into account when making this determination, those being: the timing of the claim for occupation rent; the duration of the occupancy; the inability of the non-resident spouse to realize their equity in the property; any reasonable credits to be set off against occupation rent; and any other competing claims in the litigation. [27]
[70] In Saroli, Petersen J. added other factors:
(a) The circumstances under which the non-resident spouse left the home.
(b) Whether the non-resident spouse moved for the sale of the home.
(c) Any financial hardship experienced by the non-resident spouse as a result of being deprived of their equity in the property.
(d) The conduct of both spouses, including the failure to pay support.
(e) Whether children resided with the occupying spouse and, if so, whether the non-resident spouse paid child support.
(f) Whether the occupying spouse has increased or decreased the selling value of the property. [28]
[71] The list of relevant factors is not restricted. No factor predominates. The circumstances to be considered will vary from case to case.
[72] Fahad Rehman is a real estate agent and broker. He was retained by the husband to provide an opinion about the range of rental values for the matrimonial home from September 2014 to April 2023. Mr. Rahman is not a Certified Residential Appraiser (“CRA”) nor does he have an accredited appraiser designation sanctioned by the Accredited Appraisal Canadian Institute (“AACI”). He was not asked by the husband to provide an opinion about the market value of the property, only what the historical data reported were rental values for comparable properties. Forty-four properties over a nine-year time span were reviewed.
[73] The threshold requirements for expert evidence admissibility are set out in R. v. Mohan, [1994] 2 S.C.R. 9 [29] (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). The wife challenged Mr. Rahman’s expert qualifications, specifically the absence of CRA and AACI designations. He testified that he used a Sales Comparison Approach for those properties where lease information was provided, and he adjusted the presumptive rental rate for the property according to data point differences between the subject property and leased properties. He spoke clearly and was candid about the limitations of his retainer, his training and qualifications. He was an active realtor. In my view, his evidence was relevant, necessary, there was no applicable exclusionary rule, and the absence of the CRA and AACI designations did not, in my view, disqualify him from providing the court with an opinion about rental rates. Accordingly, he was qualified to give expert opinion evidence about the rental value of the matrimonial home for the years reviewed based on published data.
[74] Mr. Rahman testified that he had not physically inspected the interior of the property or any other structures on the property but had had the benefit of its’ description and photographs from the property’s MLS listing. The publicly available market data and other information available to realtors framed his analysis, which was restricted to the area in which the matrimonial home was situated. Two filters were used. One filter (“the broader filter”) involved all properties in the South Richvale area (where the home was located); the other filter (“the weighted filter” [30]), one to which Mr. Rahman said he gave added weight, involved homes in the 3500 to 5000 square foot (“sf”) range. The matrimonial home was in the 4000sf range.
[75] All the properties reviewed were compared on metrics such as size (where disclosed), finishes, lot size, unique qualities, room sizes, status/finish level of basement and location. In many cases, the data reviewed did not have the 3500 to 5000sf filter so Mr. Rahman used the broader filter. This meant that for some years (2015, 2017 and 2019) there were no rentals in the weighted filter range corresponding to the matrimonial home but there were rentals using the broader filter. In 2023, nine properties reported rental rates but only two disclosed their sf and each of those had sf less than the matrimonial home. There was no sf given for the other seven properties listed.
[76] In Mr. Rahman’s opinion the data indicated that the matrimonial home would have achieved the following monthly rental rates for the following years:
2015- $3,400 2016- $3,500 2017- $3,500 2018- $3,800 2019- $4,000 2020- $4,200 2021- $4,600 2022- $5,200 2023- $5,200
[77] Mr. Rahman was a credible witness. He stayed “in his lane” with respect to what the data disclosed and drew upon his realtor experience. I accept his opinions about the rental values for the matrimonial home for the years reviewed.
[78] The wife called no expert evidence.
[79] In my view, the husband is entitled to an award of occupation rent from and after April 1. 2016, to the last day of the month in which the transfer of his interest in the matrimonial home to the wife was completed, for these reasons:
(a) The wife has had exclusive occupancy of the matrimonial home since September 4, 2004.
(b) When the husband was terminated from his Korhani Group employment in September 2004, he was 61 years old and virtually destitute. He had about $13,000 in savings and, excluding his land in Iran, was about $53,500 in debt. [31] His only family support was from his son, Masoud. At the time of trial, he was 80 years old and living in Montreal with Masoud.
(c) The parties’ third child (Hamed) who was 15 years old when his parents separated, attended the University of Ottawa for four years after high school and graduated in finance then returned to live with his mother. He was employed full-time by a major financial institution at the time of trial.
(d) The parties’ youngest child (Maryam) completed her post-secondary education in May 2015 (she was 22 years old). She then resided in Africa for about eight months, then returned to live with her mother and found employment, although she didn’t work for about two years (the time periods were never made clear). At the time of trial, she was employed.
(e) The wife acknowledged that neither Hamed nor Maryam ever paid rent or paid for any other house expenses, even when they were employed.
(f) The wife amended her Application on March 8, 2016, withdrawing her claim that the matrimonial home be sold. The husband amended his Answer on March 24, 2016, seeking (among other claims) occupation rent. This was the first reference in the pleadings to an occupation rent claim.
(g) The husband moved for sale of the matrimonial home in late 2017. The wife opposed the sale and then appealed the Order for sale made on November 17, 2017, by MacPherson J. The appeal was dismissed by the Divisional Court on September 27, 2018. Costs were awarded to the husband.
(h) The court had to deal, yet again, with the sale in 2019. MacPherson J. awarded motion costs to the husband criticizing the wife for her “unreasonable litigation position.”
(i) Further sale directions had to be made by Bruhn J. on September 28, 2022.
(j) The wife has been partially successful in her post-separation claims relating to contributions to the home expenses by the husband.
[80] While the husband could have taken meaningful steps before he amended his pleadings to seek the sale of the matrimonial home, there was insufficient evidence that he did.
[81] Complicating the determination of the amount of the occupation rent is the fact that the anticipated closing of the sale of the home and its purchase by Hamed did not happen on June 15, 2023, and has still not closed as of the date of this Decision. During this time the wife has remained in sole occupation of the property but had to (likely) pay for interest on the joint line of credit and the property’s realty taxes and home insurance. In my view, the wife should pay occupation rent from and after April 1, 2016, to December 31, 2024 (using Mr. Rahman’s 2023 occupation rent value for 2023). The total occupation rent amounts to $456,400. The wife shall be entitled to a credit of one-half of all line of credit payments, realty tax and home insurance expenses paid by her from and after May 1, 2023 to December 31, 2024.
Aborted sale/Presumptive loss of $148,000
[82] The parties had engaged two realtors to represent their interests in the sale of the matrimonial home. They agreed that offers were to be submitted to them by 6:30 pm on April 18, 2023. Nine offers were made. At 6:43 pm the qualifying offers were emailed to the parties and their lawyers. Seven were in one format (pdf) and two were in different formats (zip and rar). The highest and best offer (“Zeng”) was for $2,380,000, without conditions, having a July 14, 2023, completion date. It was irrevocable until 11:59 pm that night after which it expired. One of the other offers was from Hamed Sahebolamri, one of the parties’ sons who lived with his mother in the home; he offered $2,232,000.
[83] The husband accepted the Zeng offer shortly after 10:30 pm. The wife did not accept the offer. Her evidence was that she couldn’t open the Zeng offer as it wasn’t in pdf format and that she thought that she had twenty-four hours to consider all the offers because she had been told this by her realtor. She didn’t contact her realtor for help in opening the two non-pdf offers. When pressed in cross-examination, the wife said that “perhaps” she did not open the email at that time, “…perhaps I was not feeling well...” It was also late. Her agent had sent her an email later in the evening confirming that her husband had signed the Zeng offer but by then she had gone to bed because she had health issues and had taken sleeping medication.
[84] It is difficult to accept the wife’s evidence how the prospective Zeng deal fell through, particularly given her repeated efforts to oppose or delay the sale. It is not an unreasonable inference that she knew that Hamed was making or had made a qualifying offer (after all he lived with her) and that she knew what price he was proposing. The real estate agent was not called as a witness, nor were Hamed or Maryam who the wife said helped her open the non-pdf offer. There was no evidence that, in fact, the Zeng offer was one of the two non-pdf offers.
[85] Hamed’s offer was accepted. It proposed a June 15, 2023, completion date but the transaction did not close (and still has not closed as of the date of the release of these Reasons for Decision) because the solicitor acting for the parties discovered an undischarged mortgage on title. That issue was not remedied until July 2024.
[86] The Trial Scheduling Order is dated less than a week after the aborted Zeng/successful Hamid Sahebolamri purchase. The Order did not address equalization as a trial issue for the wife, but it had always been a trial issue and was raised as a trial issue by the husband. As for the husband, he did not raise the recently aborted Zeng sale and presumptive $148,000 loss as a trial issue in the Order, but it was clearly an issue that each party addressed in their opening trial statements, which formed part of their respective trial affidavits (including exhibits) and about which each testified without objection by the other party.
[87] Given what was discovered about the cloud on title and the time that passed before it was removed, I cannot conclude that the Zeng deal would have resulted in a completed transaction and that it was more probable than not it would have closed. In these circumstances, I cannot conclude that the wife should be held responsible for the presumptive loss of $148,000.
Impact of support arrears and post-valuation date adjustments on the equalization payment
[88] The equalization payment owed is $19,028 payable by the husband.
[89] Excepting occupation rent, the husband owes the wife for post-valuation date adjustments the sum of $283,783 (rounded) comprising the following:
(a) $75,000 child support and post-secondary expenses.
(b) $81,696 (being one-half of the $163,393 line of credit, interest only portion-principal included in calculation of equalization payment). [32]
(c) $18,644 (being the husband’s share of mortgage principal owing on the valuation date ultimately paid by the wife).
(d) $7,800- Mortgage (husband’s share of the mortgage interest paid by the wife).
(e) $78,553.50- Property taxes.
(f) $18,824.20- Property insurance.
(g) $3,265-Repairs.
[90] The total owed then by the husband to the wife is $302,281.
[91] The total occupation rent from and after April 1, 2016, to December 31, 2024, totals $456,400 of which the wife shall be charged with one-half of that amount or $228,200. In addition, the husband is entitled to a credit for the unpaid cost awards made by MacPherson J. in 2017 ($9,000), the Divisional Court in 2018 ($5,000) and, if unpaid, the 2019 order for $2,496.72 made by MacPherson J. These total $16,496.72.
[92] The set-off is $57,584.28, say $57,584 (i.e., $302,281 less $228,200 less $16,496,72). The husband owes this amount to the wife plus one-half of all line of credit payments, realty taxes and home insurance paid by her from and after May 1, 2023, to December 31, 2024. If the parties cannot agree on the amount of these further adjustments, they can arrange a conference with me through the judicial assistant for directions.
Disposition
[93] The following is ordered:
(a) The husband shall pay to the wife an equalization payment of $19,028.
(b) The husband shall pay to the wife post-valuation date adjustments of $283,783 plus one-half of all line of credit payment, realty taxes and home insurance paid by the wife from and after May 1, 2023, to December 31, 2024.
(c) The wife shall pay to the husband occupation rent from April 1, 2016, to December 31, 2024, in the amount of $228,200.
(d) There shall be credited to the husband the sum of $16,496.72 for unpaid costs (this amount to be adjusted if any of the costs awards have been paid).
(e) No pre-judgment interest shall be awarded to either party.
[94] The amounts ordered to be paid shall be reflected in, and adjusted when calculating, each party’s respective share of the net proceeds of sale of the Boyle Drive property.
[95] If Hamed’s purchase of the property does not close on or before December 31, 2024, the property shall be sold under supervision of the court. Too much time has passed and too little done to bring the issues in these proceedings to a conclusion.
Costs
[96] The court encourages the parties to settle costs by December 31, 2024, failing which the following is ordered:
(a) The wife shall deliver her submissions by January 15, 2025.
(b) The husband shall deliver his submissions by January 29, 2025.
(c) Reply (if any) from the wife by February 5, 2025.
(d) Submissions shall be single page, double-spaced and, in the case of (a) and (b) above, limited to four pages; reply is limited to two pages.
(e) Counsel are to advise the judicial assistant when they have filed their submissions and uploaded them to Case Center.
(f) Offers to Settle, Bills of Costs and any authorities upon which a party may wish to rely shall be filed by the deadlines above but not form part of the Continuing Record.
The Honourable Justice D.A. Jarvis Date: December 6, 2024 Superior Court of Justice, Family Court 21908/05 (Name of Court) at 50 Eagle St. West, Newmarket ON L3Y 6B1 Form 13B: Net Family Property Statement (Court office address)
Applicant(s) Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Yakta Sahebolamri 49 Boyle Drive Richmond Hill, Ontario L4C 6C8
Michael J. Polisuk 9555 Yonge Street Suite 401 Richmond Hill, Ontario L4C 9M5 Tel: 905 508-8203 Fax: 905 7377691
Respondent(s) Full legal name & address for service — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Lawyer’s name & address — street & number, municipality, postal code, telephone & fax numbers and e‑mail address (if any). Ahmad Sahebolamri 4602 Rue De Verdun Verdun, Quebec H4G 1M5
Sheri Hirschberg 9631 Yonge Street Suite 203 Richmond Hill, Ontario L4C 0M5 Tel: 905 883-9770 Fax: 905 88309778
Our names are (full legal name) Yakta Sahebolamri and Ahmad Sahebolamri
The valuation date for the following material is (date) September 4, 2004
The date of marriage is (date) June 15, 1980
Table 1: Value Of Assets Owned on Valuation Date (List in the order of the categories in the financial statement)
PART 4(a): LAND Nature & Type of Ownership (State percentage interest) Address of Property APPLICANT RESPONDENT
Matrimonial Home - 50% interest 49 Boyle Drive, Richmond Hill, ON $600,000.00 $600,000.00
1 parcel of land – 327 m 2 Hafiziehm Shiraz, Iran $115, 663.00
Vineyard - 66% interest at DOM and 100% interest today Javadiyeh Shiraz, Iran $20,000.00
Vineyard - 100% interest Javadiyeh Shiraz, Iran $20,000.00
Vineyard - 50% interest Javadiyeh Shiraz, Iran $17,000.00
Vineyard - 50% interest Javadiyeh Shiraz, Iran $21,000.00
- Totals: Value of Land $600,000.00 $678,000.00
PART 4(b): GENERAL HOUSEHOLD ITEMS AND VEHICLES Item Description APPLICANT RESPONDENT
Household goods & furniture Furniture (as per Reasons for Decision) $25,450.00
Assorted rugs (as per Reasons for Decision) $36,000.00
Vehicles Jeep Grand Cherokee $60,000.00
Jewellery Assorted jewellery $1,000.00
- Totals: Value of General Household Items and Vehicles $62,450.00 $60,000.00
PART 4(c): BANK ACCOUNTS AND SAVINGS, SECURITIES AND PENSIONS Category (Savings, Checking, GIC, RRSP, Pensions, etc.) Institution Account Number APPLICANT RESPONDENT
Chequing account (joint) CIBC – The husband alleged that the parties owned this account and that it had a $2,300 balance on May 4, 2004, but led no evidence about it) 72-88530 Nil Nil
Cash $2,484.00
US Chequing account CIBC – The husband alleged that the wife withdrew all the funds from this account after May 1, 2024 (balance alleged to be $23,400 USD) but led no evidence and made no post-adjustment claim. Nil Nil
RESP Approx. $30K at the DOS – money was used to pay for children’s education. N/A N/A`
- Totals: Value of Accounts And Savings $2,484.00 $0.00
PART 4(d): LIFE AND DISABILITY INSURANCE Company, Type & Policy No. Owner Beneficiary Face Amount ($) APPLICANT RESPONDENT
- Totals: Cash Surrender Value Of Insurance Policies $0.00 $0.00
PART 4(e): BUSINESS INTERESTS Name of Firm or Company Interests APPLICANT RESPONDENT
Shares in Korhani Group Common shares $191,788.00
Class B shares $227,500.00
Class A shares $100,519.00
Common shares $84,846.00
Preferred shares $260,000.00
- Totals: Value Of Business Interests $864,653.00 $0.00
PART 4(f): MONEY OWED TO YOU Details APPLICANT RESPONDENT
Mahr (claim withdrawn by wife at start of trial) Claim withdrawn
- Totals: Money Owed To You $0.00 $0.00
PART 4(g): OTHER PROPERTY Category Details APPLICANT RESPONDENT
Totals: Value Of Other Property $0.00 $0.00
VALUE OF PROPERTY OWNED ON THE VALUATION DATE, (TOTAL 1) (Add: items [15] to [21]) $1,529,587.00 $738,000.00
Table 2: Value Of Debts and Liabilities on Valuation Date
PART 5: DEBTS AND OTHER LIABILITIES Category Details APPLICANT RESPONDENT
Matrimonial Home Mortgage - 50% interest CIBC (calculated as being $37,287 on September 1, 2004, as per Reasons for Decision) $18,644.00 $18,644.00
Line of credit (secured by Matrimonial Home) CIBC – As per Reasons for Decision $103,101.00 $103,101.00
Car loan (acknowledged by applicant) Jeep Grand Cherokee $35,000.00
Mahr Although identified as a trial issue ($115,663), the wife withdrew her claim at the start of trial. The husband did not address this in his evidence. Nil
Credit card The husband provided no evidence about this debt, only saying that he paid it post-separation. Nil
Credit card The husband provided no evidence about this debt, only saying that he paid it post-separation. Nil
Shareholder loan As reflected in the wife’s financial statement $20,877.00 N/A
- Totals: Debts And Other Liabilities, (TOTAL 2) $142,622.00 $156,745.00
Table 3: Net value on date of marriage of property (other than a matrimonial home) after deducting debts or other liabilities on date of marriage (other than those relating directly to the purchase or significant improvement of a matrimonial home)
PART 6: PROPERTY, DEBTS AND OTHER LIABILITIES ON DATE OF MARRIAGE Category and Details APPLICANT RESPONDENT
Land (exclude matrimonial home owned on the date of marriage, unless sold before date of separation). General household items and vehicles Bank accounts and savings Life and disability insurance Business interests Money owed to you Other property
3(a) TOTAL OF PROPERTY ITEMS $0.00 $0.00
Debts and other liabilities (Specify)
3(b) TOTAL OF DEBTS ITEMS $0.00 $0.00
- NET VALUE OF PROPERTY OWNED ON DATE OF MARRIAGE, (NET TOTAL 3) $0.00 $0.00
Table 4: PART 7: VALUE OF PROPERTY EXCLUDED UNDER SUBS. 4(2) OF “FAMILY LAW ACT” Item APPLICANT RESPONDENT
Gift or inheritance from third person Income from property expressly excluded by donor/testator Damages and settlements for personal injuries, etc. Life insurance proceeds Traced property Excluded property by spousal agreement
Other Excluded Property (shares in Khorani Group net of shareholder loan) $843,766.00 N/A
- TOTALS: VALUE OF EXCLUDED PROPERTY, (TOTAL 4) $843,766.00 $0.00
TOTAL 2: Debts and Other Liabilities (item 23) $142,622.00 $156,745.00
TOTAL 3: Value of Property Owned on the Date of Marriage (item 24) $0.00 $0.00
TOTAL 4: Value of Excluded Property (item 26) $843,766.00 $0.00
TOTAL 5: (TOTAL 2 + TOTAL 3 + TOTAL 4) $986,388.00 $156,745.00
APPLICANT RESPONDENT
TOTAL 1: Value of Property Owned on Valuation Date (item 22) $1,529,587.00 $738,000.00
TOTAL 5: (from above) $986,388.00 $156,745.00
TOTAL 6: NET FAMILY PROPERTY (Subtract: TOTAL 1 minus TOTAL 5) $543,199.00 $581,255.00
EQUALIZATION PAYMENTS Applicant Pays Respondent Respondent Pays Applicant $0.00 $19,028.00
December 6, 2024 Signature Date of signature