Pirayesh-Akbari v. Abaspoor, 2025 ONSC 2971

Court File No.: FS-23-36100
Date: May 20, 2025
Superior Court of Justice – Ontario
Re: Abbas Pirayesh-Akbari, Applicant
And: Elham Abaspoor, Respondent
Before: Deborah A. Kraft
Counsel: Hossein Mirooman, for the Applicant
Respondent: Self-represented
Heard: In writing

Reasons for Decision

Introduction

[1] This is an uncontested trial where the applicant husband seeks an order to cancel a Designation of Matrimonial Home placed by the respondent wife on a property, title to which is solely in the name of the husband. The property is municipally known as 85 Queens Wharf Road, Unit 3002, Toronto, Ontario (“Queens Wharf property”) and includes a parking spot.

[2] The Queens Wharf property and parking spot were purchased by the husband in 2013, prior to the parties’ marriage, as a pre-construction property and at all times during the marriage and after the separation has been owned by him as an investment property.

[3] The parties did not use the Queens Wharf property during the marriage. It was not ordinarily occupied by either the husband or wife as their family residence at the date of separation. As such, neither the Queens Wharf property nor parking spot were a “matrimonial home” as defined by s.18(1) of the Family Law Act, RSO 1990, c F.3 (“FLA”). Rather, the parties permanently resided in Iran and when they came to Canada to visit, they stayed in rental units or Airbnb’s.

Issue to be Determined

[4] The only issue for me to decide on this uncontested trial is whether the Designation of Matrimonial Home registered on title to the Queens Wharf property by the wife should be cancelled.

Background

[5] The parties were married on May 25, 2017 in Tehran, Iran. At the time of the marriage, the husband was 60 years old and the wife was 40 years old.

[6] The parties separated on September 15, 2021. There are no children of the marriage.

[7] This was a second marriage for both parties. The wife has two children from a previous marriage, ages 17 and 14. The husband has three children from a previous marriage, ages 32, 29 and 27. Neither party acted in a parental role toward the other’s children.

[8] The husband immigrated to Canada in 2009 and resided in Ontario. He sponsored the wife to immigrate to Canada in 2017. The wife, however, preferred to live in Iran. As a result, the husband returned to Iran to live with her.

[9] During the marriage, the wife was employed full time as a dentist in Esfahan, Iran. The husband worked in construction in Iran. While they resided in Iran, the wife only resided a few days a week with the husband and spent the remaining days of the week in Esfahan, Iran, where her dental practice was located.

[10] The parties last visited Canada together as a couple in 2021. During this visit, the husband discovered messages on the wife’s phone to a man in Iran and believes the wife was having an extra-marital affair with this individual. The husband confronted the wife about the affair and when they returned to Iran, she told the husband that she wanted to separate.

[11] After the separation in 2021, the wife filed in the Iranian court for her Islamic Mehr pursuant to the parties’ marriage contract. The evidence on record shows that the husband paid the full amount of the Mehr.

[12] The husband is 65 years of age. He is retired but continues to work in construction in Iran and earns a minimal income. The wife continues to work full time as a dentist.

[13] Two months after the separation, on November 3, 2021, the wife caused a Designation of Matrimonial Home to be registered on title to the Queens Wharf Road property and the parking spot.

[14] The husband deposes that the Queens Wharf property was never used as a matrimonial home by the parties. He deposes that the property has always been tenanted both before and during the marriage. Attached as an exhibit to his Form 23C, Affidavit in support of an Uncontested Trial, is a copy of the current tenancy agreement.

[15] The husband tried to enter into negotiations with the wife to have the Designation of Matrimonial Home cancelled from title to the Queens Wharf property but the wife refused to engage with him. As a result, the husband had no choice but to commence this Application.

[16] The husband caused the wife to be served with the Application by a process server in Iran. The wife did not file an Answer in accordance with the timelines prescribed in the Family Law Rules, O. Reg. 114/99.

[17] On January 22, 2024, Maxwell, J. noted the wife in default and granted me permission to proceed with an uncontested trial.

The Law

[18] Section 20(1) of the FLA provides that one or both spouses may designate property owned by or both of them as a matrimonial home by the regulations.

[19] On November 3, 2021, the wife registered a Declaration of Matrimonial Home on title to the Queens Wharf property and the related parking spot owned by the husband pursuant to ss.20(2) and 20(3) of the FLA.

[20] Pursuant to s.20(6) of the FLA, a Designation of a Matrimonial Home can be cancelled and the property then ceases to be a matrimonial home on the registration of:

a. A cancellation, executed by the person who made the original designation in the form prescribed by the regulations;
b. A decree absolute of divorce or judgment of nullity;
c. An order under s.23(e) cancelling the designation; or
d. Proof of death of one of the spouses.

[21] A Designation of a Matrimonial Home as defined under the FLA does not create an interest in the land for a non-titled spouse: Manufacturers Life Insurance Co. v. Riviera Farm Holdings Ltd..

[22] The husband tried to engage the wife in a negotiation to see if she would consent to cancel the Designation of Matrimonial Home, but she refused to discuss it with the husband.

[23] Pursuant to s.23(a) of the FLA, the court has jurisdiction to make an order to determine whether or not the property is a matrimonial home and, pursuant to s.23(e), the court can cancel a designation made under s.20 if the property is determined not to be a matrimonial home.

[24] Section 23(e) of the FLA is clear. I can only cancel a designation of the Queens Wharf property if I find that it is not a matrimonial home.

[25] Rule 1(2) of the Family Law Rules, O. Reg. 439/07 provides that these rules apply to all family law cases in the Superior Court of Justice under the FLA, except Part V.

Analysis

[26] Based on the evidence before me, I find that the Queens Wharf property, and the related parking spot, was not a matrimonial home for the following reasons:

a. The Queens Wharf property was never occupied by the parties during their marriage as their ordinary residence;
b. When the parties visited Canada they did not stay in the Queens Wharf property but, rather, rented an Airbnb; and
c. The Queens Wharf property was rented out to tenants during the parties’ marriage.

[27] Pursuant to ss. 20(6)(c) and 23(a) and s.23(e) of the FLA, given that I have found that the Queens Wharf property was not a matrimonial home, I make the order to cancel the Matrimonial Home Designation registered on title by the wife pursuant to s.20(1) of the FLA.

[28] The husband also seeks a divorce and costs. A court in Ontario does not have jurisdiction to hear and determine a divorce proceeding unless one of the two spouses has been habitually resident in Ontario for at least one year immediately preceding the commencement of the proceeding.

[29] There is no evidence on record before me that either party has been resident in Ontario for at least one year immediately before the husband issued this Application.

[30] The husband is entitled to costs presumptively as he has been successful on this uncontested trial, pursuant to Rule 24(3) of the Family Law Rules. The court is unable to set the amount of costs as the husband did not file a bill of costs setting out the time spent by him or any legal fees, as required by rule 24(14) and (15).

Disposition

[31] This court makes the following order:

a. Pursuant to s.23(a) of the Family Law Act, a declaration that the property municipally known as 3002-85 Queens Wharf Road, Toronto ON M5V 0J9 is not a matrimonial home as defined by s.18(1) of the Family Law Act;
b. Pursuant to s.23(e) of the Family Law Act, cancelling the Designation of Matrimonial Home registered by the respondent on November 2, 2021 against the property municipally known as 3002-85 Queens Wharf Road, Toronto ON M5V 0J9.
c. The husband’s claim for costs of this uncontested trial is dismissed without prejudice to his right to serve and file a Bill of Costs setting out the fees and expenses he has incurred.

Deborah A. Kraft
Date: May 20, 2025