Court File and Parties

Court File No.: FC-22-1888 Date: 2025-09-05 Ontario Superior Court of Justice

Between: Manija Yailaqi, Applicant And: Murtaza Yailaqi and Aryan Yassavoli-Sani, Respondents

Counsel:

• Brigitta Tseitlin, for the Applicant
• Murtaza Yailaqi, self-represented Respondent
• Kevin Mooibroek, for the Respondent Aryan Yassavoli-Sani

Heard: May 20, 21, 22, and 23, 2025

Reasons for Decision

Justice D.A. Jarvis

Background Facts and Evidence

1 This trial involves a family tragedy – a horrendous incident of family violence with life-altering consequences and the disintegration of the victim's ties with her extended family. Pursuant to the Trial Scheduling Order, the evidence was a hybrid of affidavit evidence and time-limited oral testimony.

2 The applicant ("Manija") and the respondent ("Murtaza") are siblings. The respondent Yassavoli-Sani is Manija's former lawyer.

[3] Manija emigrated to Canada from Afghanistan with her family in 1989. In December 2003 she married Mohammad Mahdi who had also been born in Afghanistan and who subsequently emigrated to the United Kingdom as a refugee before coming to Canada in 2000. They have three children, born in 2004, 2008 and 2010.

[4] On April 12, 2013, Manija was brutally beaten by her husband at a residence owned by Murtaza and in which she, her husband and their children were living along with other members of their extended family. She sustained serious brain injuries, multiple broken bones (skull and arms), deep lacerations to the entirety of her body, and was in a coma for two and a half weeks. When she regained consciousness, she was unable to walk, talk, move her arms and had lost her eyesight. Her husband was arrested, charged with, and convicted of, attempted murder. After serving about four years in prison, he was deported to the United Kingdom.

[5] Manija spent over three months in hospital and then another five months in rehabilitation. When she finished her rehabilitation, she had not regained her eyesight, she walked with extreme difficulty and suffered from physical and psychological trauma. According to her, she was able to regain most of her sight and mobility after about another year and a half, although her eyesight was permanently affected as was her ability to process information quickly.

[6] Into the breach stepped Manija's family, especially Murtaza. They cared for the children while their mother was hospitalized and undergoing rehabilitation. The local children's aid society ("the Society") had become involved after the assault but later closed its file. Murtaza assumed responsibility for his sister's financial affairs. She applied for, and he managed, a modestly successful application to the Criminal Injuries Compensation Board (CICB); he was instrumental in obtaining a severance payment from a well-known Canadian home and garden company for whom she had been working at the time she was assaulted; and he helped her set up a Registered Education Savings Plan ("RESP") account for the children funded by part of the CICB payment. Manija's income comprised social assistance, ODSP and child tax benefits. She was unable to work outside the home. But her injuries led to problems caring for the children and her home and led to conflicts with Murtaza and their mother.

9 Lady Gwillim Avenue, East Gwillimbury (the "Property")

[7] Manija agreed to purchase the property in late 2012 but did not occupy it until much later. While the evidence is not entirely clear (and not relevant to the outcome in this case), title to the property was taken in Murtaza's name at some point in 2013 after he sold the residence in which his sister had been attacked. He moved to the property with the children, the parties' mother, his maternal uncle and aunt. Manija joined them in 2014 after her rehabilitation.

[8] In Spring 2015, Manija and Murtaza asked their brother, Mujtaba, to undertake some renovations to the property. This involved finishing the basement, removing carpets on the main and second floors and installing a hardwood floor on the former. Mujtaba had no prior construction experience. Murtaza helped with some of the work. Manija and Murtaza paid for the materials. The work was not completed. Mujtaba was never compensated for his labour.

[9] Never fully developed in evidence but referenced in the pleadings and briefly mentioned in the parties' testimony are allegations of post-rehabilitation family conflict involving Manija, her mother, brother, other members of the family and investigations by the Society relating to concerns about Manija's ability to care for the children. The police became involved on several occasions. On several other occasions (about five), Manija took the children to a shelter. Her behaviour was erratic.

[10] On December 19, 2017, Murtaza and his mother started an application in the Newmarket Family Court for custody of the children. Manija retained Mr. Yassavoli-Sani. Murtaza was completing his articles for admission as a lawyer to the Law Society of Ontario (he was called to the bar soon after the order).

[11] A case conference was held on February 22, 2018 (Douglas J.). Murtaza represented himself; the mother did not attend. Manija and Mr. Yassavoli-Sani appeared. In addition to issues relating to the children, Manija's pleadings included claims involving the property. An Order containing temporary and final terms was made on consent of the parties. The court's endorsement indicated that, as an investigation by the Office of the Children's Lawyer ("OCL") was underway, the parties would postpone discussion of the child-related issues until the investigation was concluded. The endorsement also recorded that the parties had reached a consent settlement of the property issue raised by Manija, the terms of which were incorporated into a final Order ("the Douglas Order" or "the order"):

1. The Applicant, Murteza (sic) Yailaqi holds a thirty percent (30%) share of ownership of the property, municipality (sic) known as 9 Lady Gwillim Avenue East Gwillimbury, ON L9N0B3.

2. The Respondent Manija Yailaqi owns a seventy percent (70%) share of ownership of the property held in trust by the Applicant for the benefit of the Respondent, municipality (sic) located at 9 Lady Gwillim Avenue East Gwillimbury, ON L9N0B3.

3. The Respondent shall be permitted 40 days to determine whether she intends to purchase the Applicant's share and interest in the property, failing which the property will be listed for sale.

4. The closing date of the property will be no earlier than June 30, 2018 unless on consent of both parties.

5. The parties will continue to make payments according to their respective shares of the property until the sale of the property at which point the proceeds of the sale shall be disbursed among parties according to their respective share of ownership.

6. After the 40 days grace period, if the Respondent decides to purchase the Applicant's share of the property, the Respondent will be responsible for all mortgage payments and expenses for the upkeep of the property until the Applicant's share of ownership of property is paid in full.

7. Should the Applicant require equity to be taken out of the mortgage property, the Applicant will be responsible for the difference between the mortgage payments subsequent to the refinance subject to any change in the Bank of Canada interest rate.

8. The Applicant will be holding the Respondent's share of the property in trust for her benefit since the purchase of the property.

9. The Respondent shall repay the 4 months missed mortgage payments between August and December of 2017 to the Applicant either before or after the sale of the property.

[12] There was no evidence about the disposition of the case involving OCL and the children, likely because Manija relocated to the U.K. with the children several months after the order was made. Murtaza testified that Manija and her husband reconciled; Manija was non-committal.

[13] The following then happened with respect to the property:

(a) In an April 5, 2018, email exchange between Mr. Yassavoli-Sani and Murtaza, the lawyer advised Murtaza that Manija wanted the property sold as soon as possible, which news Murtaza acknowledged but cautioned that extensive repairs and renovations were needed to make the property more marketable. He proposed that those costs be shared. Manija disagreed; she just wanted a sale.

(b) On April 9, 2018, the lawyer was served with a Notice of Change in Representation ("NOCR") from a new lawyer retained by Manija. There was no evidence that this new lawyer undertook any action for her. Murtaza says that he never received the NOCR and testified that Manija had told him that she was no longer represented by Mr. Yassavoli-Sani. Manija disputes this.

(c) On May 4, 2018, Murtaza secured a $150,000 line of credit from Home Trust Company which was secured by a second mortgage registered on title to the property. The parties dispute that Manija or any lawyer acting for her were told about this until well after the property sold and the Home Trust mortgage was paid from the sale proceeds.

(d) On May 18, 2018, Murtaza closed the purchase of a newly built residence for himself. He financed the purchase by a mortgage and paid another $149,929.28 to complete the transaction. This amount was more or less equal to the Home Trust line of credit which had been advanced to him two weeks earlier.

(e) In July 2018, Manija contacted Mr. Yassavoli-Sani and requested that he resume his representation of her. The property had not sold.

(f) On July 8, 2018, the property was listed for $868,000. It sold on October 25, 2018, for $815,000. The parties dispute the reasons why the property did not attract a higher price; that dispute is not relevant to the outcome in this case. Murtaza raised the issue that he had personally funded renovation costs for the property.

(g) From gross proceeds of sale of $775,513.92, a first mortgage in favour of the Bank of Nova Scotia was paid ($319,200.37), as was the Home Trust line of credit/mortgage ($148,498.58). The solicitor's account ($1,450.98) was paid and there was a refund of the realtor's commission ($859.62). No reporting letter or trust ledger was sent. No distribution of the balance of the proceeds of sale to the parties was made at that time.

(h) Before any distribution of the sale proceeds to him and his sister, Murtaza wanted to be reimbursed for the renovation and carrying cost expenses he had incurred for the property after the Douglas Order. He wanted the 30/70 allocation of the sale proceeds set out in the order varied to reimburse him for the expenses. He scheduled a motion in the outstanding legal proceedings involving his mother, him and Manija returnable on January 25, 2019 to set aside the order but that motion never proceeded because Mr. Yassavoli-Sani needed instructions from Manija (see (i) below) and he and Murtaza were negotiating (a case conference would have been required before any motion could be heard anyway). According to Mr. Yassavoli-Sani, whose evidence on this issue I accept, Murtaza never told him about the Home Trust mortgage (the lawyer was not acting for Manija when the mortgage was registered). Murtaza did indicate that he had incurred debt to help him finance the property's carrying costs though. In any event, nothing further was done about resurrecting the earlier proceedings.

(i) Mr. Yassavoli-Sani had difficulty contacting and getting instructions from Manija after the completion of the sale until on or about September 13, 2019. After he obtained those instructions, the issue between Manija and Murtaza was resolved on the basis that the proceeds would be disbursed in accordance with the order. I accept that the Home Trust line of credit/mortgage was not discussed.

(j) On September 20, 2019, the solicitor acting for the parties applied the 30/70 ownership ratio pursuant to paragraphs 1 and 2 of the order. Two cheques were written, one to Murtaza for $91,651.28 and the other to Manija for $202,013.89; $12,698.72 was left in trust.

(k) Mr. Yassavoli-Sani attended at the solicitor's office to pick up Manija's cheque on October 3, 2019. He deposited it to his trust account. He was provided with a copy of the solicitor's trust ledger. Upon reviewing it he learned that a Home Trust mortgage had been discharged from the gross sale proceeds. In other words, Manija should have received a total of $318,403.72, or $116,389.43 more than her cheque.

(l) Mr. Yassavoli-Sani reported his concerns about non-compliance with the order to Manija on or about October 7, 2019. He recommended that she consider legal action against her brother and he requested her instructions.

(m) Manija did not respond until mid-June 2020. She confirmed then that she was unaware of the Home Trust mortgage. The lawyer reconfirmed his earlier advice and recommendation to her but indicated that since there was LawPro exposure he was unable to act for her.

(n) Between late June 2020 until August 2021, Mr. Yassavoli-Sani continued his efforts to communicate with Manija and to obtain her instructions with respect to the release to her of the funds he still held in trust. Ultimately, they met in person and the funds were disbursed to Manija.

(o) Manija started this proceeding against her brother and Mr. Yassavoli-Sani for damages in October 2022. Murtaza sought indemnification from the lawyer. At the outset of trial, Manija and Murtaza agreed to the dismissal of their claims against Mr. Yassavoli-Sani. Murtaza agreed to pay the lawyer $3,500 in costs.

Adjustment Claims to Disbursement of Sale Proceeds/Murtaza Claims

[12] Paragraphs 5 and 9 of the Douglas Order provided, respectively, that the parties would contribute to the costs of the property according to their shares (para. 5) and that Manija would pay four months of missed mortgage payments between August to December 2017 (para. 9), although Murtaza claims (and Manija conceded) that there were five months of missed payments. Manija testified that she paid her share of the property's costs after the order until the sale was completed in late October; she acknowledged owing her brother the missed mortgage payments which she calculated were $7,745.78 (say $7,746) or $5,422.05 (say $5,422) representing her 70% share of the property.1 This reduces what she contends her brother owes her to $110,967.

[13] Murtaza claims that his sister owes him her undiscounted share of the mortgage payments totalling $7,745.78, $23,433.19 for her share of the property's mortgage, carrying costs and related expenses incurred after the order, $57,555 for her share of construction and renovation costs incurred after the order and $5,769.84 for carrying costs he incurred after Manija refused to accept an $830,000 purchase offer in late summer 2018. The total is $94,504.2

Credibility

[14] Each party challenged the other's credibility and the reliability of their evidence, pointing to inconsistencies between their testimony and the documentary record. As observed by McGee J. in M.K.-C. v. C.C., the terms are not synonymous:

[55] Credibility and reliability are related but distinct concepts. Reliability speaks to the accuracy of the witness' ability to accurately observe, recall and recount the events in issue. Credibility centres on a witness's genuine efforts to tell the truth in a wholesome manner, not leaving out details that could mislead the listener. An honest witness endeavors to tell the truth as they experienced it, acknowledging that some of their perceptions may have been flawed.

[56] One of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness' oral testimony, but also from things said differently at different times, or from omitting certain events at one time while referring to them on other occasion. [Citation omitted]

[57] A dishonest witness is not a reliable witness absent corroboration, but it does not automatically follow that a credible witness gives reliable evidence. To provide honest and reliable evidence, a witness must be truthful and alive to their limitations. They must be open to the possibility of alternative perceptions. A credible witness without such insight may inadvertently give unreliable evidence because they are rash, overconfident, or reckless in their pursuit of an outcome.

[58] Ultimately, a court must consider all the relevant factors that go to the believability of the evidence in the factual context of the case.

[15] Witness demeanour (however articulate or unsophisticated) is a factor that may be considered in assessing credibility and reliability but cannot be the exclusive determinant.2

[16] Manija was an unreliable witness who tried to testify truthfully as best she could but whose recollection about important interactions with her brother, and events in general between the Douglas Order and the sale of the property, were invariably vague and her narrative was unsupported by documentary evidence that could have boosted her credibility. This, in part, is understandable due to the consequential nature of the serious injuries she had suffered but, in my view, she relied overmuch on the transactions surrounding the registering of the Home Trust mortgage and the later deposit made by Murtaza on his property purchase two weeks later at the expense of affirmatively leading evidence that addressed his claims about her lack of contribution to the carrying costs of the property after the order was made and her general recollection of events. As callous as this may sound, there is some truth to Murtaza's submission that his sister used her disability to claim ignorance and, in my view, her disabilities impacted the reliability of her evidence and, in some instances, her credibility. There are several examples:

(a) Manija denied that she and her brother ever operated a joint account and disclaimed her signature on bank account forms that were used to empower her brother as her attorney in early 2014 after she returned to the property. She testified that her signature often changed. Her evidence was unconvincing. She needed third-party assistance.

(b) Manija accused her brother of "using" her, "hurting" her, but while those accusations could be explained by reference to her claim involving the Home Trust mortgage, they ring false as more general descriptors of his behaviour when taking into account his unchallenged efforts to support her after the attack, his advocacy for her with respect to her successful CICB application, the setting up of an RESP account for the children and the admirable severance settlement he obtained from her former employer (for whom she had only worked for about three months) all done without expectation of compensation.

(c) The involvement of the Society and the police with the family relating to the children's care are consistent, in my view, with the difficulties which Manija was experiencing post-assault and which ultimately led to the 2017 family law proceedings between her, her brother and mother.

(d) Although she was aware that Murtaza was alleging a contributory claim for carrying costs for the property after the order, and that he had been complaining that she was not contributing, Manija's only evidence was that she did contribute, but she tendered no documentary proof or any other evidence of her contributions other than bank statements reflecting mortgage-related payments to her brother in irregular amounts from January 2018 to September 2018. She was not credible about other carrying cost payments or work done to the property. Left unanswered by her was how, or by whom, the unfinished work by Mujtaba was completed. Someone did the work, and someone paid for it. It wasn't her. I accept the evidence of Mujtaba and Murtaza in preference to the evidence of Manija that the renovation work by Mujtaba was left unfinished in 2015.

(e) Even after the property was sold on October 25, 2018, Mr. Yassavoli-Sani's unchallenged evidence is that between January and December 2019 he had difficulty obtaining instructions from Manija and that she "largely did not respond to my communications and request for instructions."[3] This difficulty continued into 2021 until the lawyer finally met with her in August 2021. Manija had been aware of the alleged shortfall in the distribution of the property's sale proceeds shortly after October 7, 2019, almost two years earlier.

[17] Murtaza was more credible than his sister about renovations to the property before the Douglas Order. Notwithstanding vigorous cross-examination, his narrative of events after his sister returned home following her recovery and the renovations started but not completed in 2015 were corroborated by his brother (whose evidence was not seriously challenged) and, with respect to renovations after the order, to a lesser extent by Wilson Ng, the agent who acted on the sale. Manija challenged Mr. Ng's undocumented recollection of the general nature of the work undertaken after a seven-year hiatus but irrespective of the way his affidavit was drafted (he said that he and Murtaza had discussed it), Manija tendered no evidence that the uncompleted work by Mujtaba had, in fact, been completed before the order was made.

[18] As for the Home Trust mortgage, I find that Murtaza never told Manija about the mortgage. She vacillated on whether to purchase or sell the property. They disagreed whether to sell the property "as is", which is what Manija wanted, or whether to finish the work left incomplete by Mujtaba in order to make the property more saleable, which is what Murtaza wanted (and Manija inconsistently opposed). According to Murtaza, the work was intended to finish a basement apartment that Manija could rent for additional income if she chose to purchase her brother's interest in the property. Murtaza never disclosed the existence of the Home Trust mortgage to Mr. Yassavoli-Sani on or about September 19/20, 2019 when they negotiated the disbursement of the net sale proceeds to his sister and him. He assumed that the lawyer was aware of the mortgage because he (Murtaza) had often mentioned personal lines of credit.[4] On this issue, Murtaza was not credible. His evidence was inconsistent.[5]

Discussion

[19] The principal dispute between the parties involves the treatment of the Home Trust mortgage/line of credit. Before addressing that issue, the parties' disputes involving the amount that Manija owes for missed mortgage payments, whether Murtaza is entitled to reimbursement for carrying costs for the property he incurred on behalf of his sister and the work done on the property before its sale and, if there is entitlement, the amount, need to be considered.

Mortgage Payments

[20] Paragraph 9 of the Douglas Order is somewhat problematic. While it refers to four months of missed mortgage payments, the parties accepted that five months are involved. Manija conceded that she owed her brother five months payments totalling $7,745.78 but submits that the proportionate 30%/70% provisions of paragraphs 1 and 2 of the order reduces her obligation. Murtaza claims the full amount is owed. The difference between the parties is $2,323.73, say $2,324.

[21] In my view, Manija owes Murtaza $5,422 for the missed mortgage payments. This represents her proportionate share of the property's ownership. Read as a whole, the order distinguishes (for example, in paragraph 6) full responsibility for mortgage payments should Manija decide to purchase her brother's interest in the property. Ownership is the variable. Paragraphs 1, 2 and 5 provide for shared payment responsibilities based on ownership shares. Had the parties wanted to provide that Manija was responsible for the entirety of the missed payments without reference to paragraphs 1 and 2 of the order they could have made that clear. They did not.

Post-Douglas Order Property Expenses

[22] On April 5, 2018, Murtaza confirmed Mr. Yassavoli-Sani's instructions from Manija that she wanted the property sold as soon as possible and pointed out that if his sister wanted to obtain the best sale price, extensive repairs and renovations were needed, also completing the work left unfinished by Mujtaba. He inquired whether Manija was prepared to share these costs. She was not but after she discharged Mr. Yassavoli-Sani she did not oppose her brother finishing the work left undone by Mujtaba. In addition, according to Murtaza, his sister was not paying her share of the property's carrying costs nor was she remitting to him on time or always in the correct amount what she owed with respect to the mortgage. This added to financial pressures facing Murtaza because he had already agreed to purchase a new residence then under construction that had a May 18, 2018 closing date.

[23] Despite knowing that Manija was initially not prepared to participate in funding any more work to the property or, at least uncertain whether she had agreed to the work (which Murtaza was careless in not in some way independently confirming she was unopposed to, given her limitations), Murtaza proceeded to obtain approval for a line of credit to consolidate some of his personal debts, repay him for property expenses to which Manija had not contributed and provide funds for work on the property. On May 4, 2018, Murtaza was advanced a net amount of $123,460.29 on a $150,000 line of credit that was then registered on title. The difference involved payment of some of Murtaza's credit cards, broker fees, repayment of some of his funds that he had set aside to help pay for his new property and a modest line of credit. When Manija went to the UK in June 2018 to reconcile with her husband, Murtaza arranged for contractors to undertake renovations and repairs to the property, all of which were completed by July 2, 2018, before Manija's return.

[24] Murtaza acknowledged in cross-examination that Manija paid a total of $15,965.08 for the mortgage between June 2018 and October 2018 when the property sold. He claimed that she owed him $37,321.70 for the property's mortgage, carrying costs and related expenses (excluding costs associated with work on the property). Less the $15,965.08 that Manija paid, I accept that Murtaza incurred these expenses, which totalled $21,356.62. Based on the order, Murtaza's share should have been $11,196.51 and Manija's share $26,126.19. She presumptively owes $10,160.11 to Murtaza.

[25] Excepting the renovation and repair work done on the property, I accept Murtaza's evidence about what he paid. He was unshaken in cross-examination that the property continued to have costs such as insurance, utilities and realty taxes, the details of which he explained and which he said he paid. While Manija claimed that she also contributed to the property's carrying costs, the only evidence she produced were her bank account statements. These reflected Manija's ODSP income (averaging about $1,700 a month) from which she remitted mortgage payments to her brother (averaging about $1,550 a month) and little income otherwise. While no reporting letter containing a Statement of Adjustments from the real estate solicitor was produced, a trust ledger statement did not disclose any adjustments.[6]

[26] Murtaza also claimed that he incurred $82,221.78 for improvements, repair and renovation costs, of which $59,236.60 represented contractor costs and the balance for various expenses he paid from his bank account, cash and Visa. Many of the bank account and Visa expenses about which he was questioned pre-dated the order. He was vigorously challenged in cross-examination that he had failed to produce bank statements to corroborate his evidence and that he was attempting to pass off as costs for the property expenses he had incurred for the residence he purchased in May 2018 (it was a new-build home). He denied that any of the labour costs related to his new residence. I accept his evidence about the labour costs but not the entirety of the balance of expenses some of which he paid in cash, none of which he cleared in advance with Manija and which could have been correlated to his undisclosed bank statements. I will allow him $10,000 for the materials and related non-labour costs. Based on the parties' respective ownership shares, Murtaza is presumptively entitled to $51,465.41 from Manija.

[27] Manija disclaimed any responsibility for any of her brother's claimed expenses, but there is no question that work had to be done to complete what Mujtaba had left unfinished. His evidence was that he framed the basement to the property leaving undone installing a kitchen, a bathroom, stairs, painting and trims and electrical work and, leading to the second floor, stairs and the second-floor hardwood flooring matching the first floor. This work had been completed by the time that the property was sold.

[28] When added to the mortgage payments owed to Murtaza by the order (as above) and the post-order property expenses paid by the parties, Murtaza is presumptively owed $67,047.52 (i.e., $5,422 plus $10,160.11 plus $51,465.41).

The Home Trust Mortgage

[29] The theory of Manija's case is that her brother took financial advantage of her when he used the May 4, 2018 line of credit advance to close the purchase of his new home two weeks later. But despite the proximity of the May transactions and their roughly equivalent value, the reality is more nuanced. The conflicted relationship between Manija and Murtaza that led to the earlier family court proceedings was strained, if not broken, after the order was made. In my view, Murtaza resented the outcome of those proceedings and frequently complained to Mr. Yassavoli-Sani that his sister was not remitting to him what was needed to pay the mortgage on the property, either on time or in the correct amounts. The property was not in a condition to attract a viable offer (I accept Murtaza's evidence in this regard), certainly nowhere near the $900,000 that Manija wanted; the uncompleted work needed to be finished. He also had an interest in the sale attracting as high a price as possible. While Murtaza knew in early April 2018 that his sister wanted the property sold "as is", his evidence (which I also accept) is that she agreed, after Mr. Yassavoli-Sani was discharged, that the work be completed although she may not have been aware of all that needed to be done or the estimated cost. I also accept that while she was in no position to fund those costs (hence her unwillingness to contribute) she benefitted from the work done. She was acting inconsistently; given her limitations, Murtaza should have tried to confirm in writing or some other independent means that work could proceed.

[30] Murtaza was under financial stress in May 2018. He was funding the carrying costs to the property to which Manija was not fully contributing and dealing with the costs associated with closing the purchase of his new home. I accept that he told Mr. Yassavoli-Sani before and after the May transactions that he had had to incur debt on lines of credit, but he never told the lawyer or his sister that he had arranged to have that line of credit secured against title to the property (how he was able to have the mortgage registered without it being signed by Manija was never explored in evidence, although he still had her Power of Attorney). It was not until after Murtaza and the lawyer agreed to the 30/70 distribution of the balance of the property's sale proceeds in mid-September 2019 that the May 2018 transactions were disclosed when the solicitor's ledger statement was produced. In my view, Murtaza took a calculated risk in May 2018 in circumstances that he knew could reflect poorly on him and where he knew too that there would be a dispute about his being reimbursed for the expenses which he had incurred on the property. Even so, he is entitled to be reimbursed for Manija's unpaid share of the expenses notwithstanding that it is impossible to know how much the work done added to the sale value of the property.

Disposition

[31] After adjusting for what Manija owes him (i.e., $67,047.52), Murtaza owes his sister $49,341.91 (i.e., $116,389.43 less $67,047.52). There is $12,698.72 in trust in respect to which $3,809.66 represents Murtaza's pro-rated ownership share of the property. That will be credited to what is owed to Manija, reducing the amount she is owed to $45,532.25, say $45,532.

[32] Accordingly, the following is ordered:

(a) There shall be paid to Manija the remaining net proceeds from the sale of the property.

(b) Murtaza shall pay to Manija $45,532.

(c) The parties' claims against Mr. Yassavoli-Sani are dismissed with costs payable to him by Murtaza in the all-inclusive amount of $3,500.

(d) All other claims by the parties are dismissed.

Costs

[33] Although siblings are involved, it is questionable why this case was brought in the family court and not in the Small Claims Court. The issues involving enforcement of terms and claims arising from the order have nothing to do with parenting or support. Whether Murtaza would have been successful in setting aside (or even varying) the final order terms (to which he consented) involving improvements to the property is, in my view, doubtful.

[34] The court encourages the parties to settle costs between themselves by September 19, 2025, failing which the following is ordered:

(a) Manija shall deliver her submissions by September 19, 2025.

(b) Murtaza shall deliver his submissions by September 26, 2025.

(c) Reply (if any) from Manija shall be delivered by October 1, 2025.

(d) Submissions shall be single page, double-spaced and, in the case of (a) and (b) above, limited to five pages; reply is limited to two pages.

(e) Offers to Settle, Bills of Costs and any authorities upon which a party may wishes to rely shall be filed by the deadlines above.

(f) Counsel shall advise the Judicial Assistant when they have filed their materials and uploaded them to Case Center.

Justice D.A. Jarvis

Released: September 5, 2025

Footnotes

1 Trial affidavit of Manija Yailaqi dated May 2, 2025, at paras. 32 and 33.

2 Trial affidavit of Murtaza Yailaqi dated May 19, 2025, at paras. 41, 48, 51(a) to (d).

[3] Affidavit of Aryan Yassavoli-Sani sworn May 16, 2025, Exhibit 25, paragraphs 32 and 38 to 40.

[4] In paragraph 57 of his trial affidavit dated May 19, 2025, Murtaza affirmed that "It was always my understanding that Mr. Yassavoli was aware of the Home Trust LOC. I had no reason to believe that he was not aware…"

[5] In paragraph 47 of his trial affidavit Murtaza affirmed that "In an email dated September 26, 2018, I informed Mr. Yassavoli that I had secured a second line of credit against the Property, to make the mortgage payments, repairs and other home expenses…" Mr. Yassavoli denied being told that the line of credit was registered against the property. I believe him.

[6] It is possible that were there any arrears for taxes or other adjustments – those could have been included in the Statement of Adjustments, but this was never produced or referenced in either party's evidence.