Zadeh v. Esmailii, 2010 ONSC 6655

CITATION: Zadeh v. Esmailii, 2010 ONSC 6655 COURT FILE NO.: 375/10 DATE: 2010/12/02 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Keikavoss Hossien Zadeh aka Keikavoss Hosseinzadah aka Keykavoss Hosseinzadeh, Applicant/Appellant AND: Fatemeh Esmailii aka Fatemeh Esmaeli, Respondent/Respondent in Appeal BEFORE: Herman J. COUNSEL: Evelyn Rayson, for the Applicant/Appellant Paul Pellman, for the Respondent/Respondent in Appeal HEARD AT TORONTO: November 24, 2010 ENDORSEMENT [ 1 ] The appellant seeks leave to appeal from the decision of Perkins J., dated July 15, 2010. [ 2 ] In that decision, the motion judge dismissed the applicant’s motion for

summary judgment or trial of an issue; granted the respondent’s motion for disclosure; ordered the appellant to advance $12,500 to the respondent to assist in funding the expert review of the appellant’s financial situation; and ordered costs to the respondent of $14,000. [ 3 ] The applicant submits that the motion judge erred as follows: he dismissed the motion for

summary judgment in the absence of any evidence from the respondent to support her case; and he ordered the appellant to contribute to the cost of the respondent’s expert without adequate consideration of their respective financial circumstances. The applicant also challenges that portion of the motion judge’s costs order that relates to the motion for

summary judgment (as distinct from the motion for disclosure). Background [ 4 ] The parties were married in 1982 or 1983. They initially separated in 1990, reconciled in March 1992 and permanently separated in December 1993. They have two children. [ 5 ] The divorce order was made in 1994 and an order for child support was made in 1995. [ 6 ] On December 2, 1997 a consent order was made, varying the previous support order.

The judge ordered child support payments by the applicant of $200 per month for each child and spousal support to the respondent of a lump sum payment in an amount which was the greater of $3,500 or the amount in a specified bank account. [ 7 ] The respondent claims that the applicant misrepresented his financial situation when she gave her consent in December 1997. She now seeks to vary the support order. [ 8 ] The applicant claims that he provided full disclosure. [ 9 ] The applicant brought a motion for

summary judgment to dismiss the respondent’s claim or, in the alternative, to order the trial of an issue of whether the spousal release that the respondent gave is valid and subsisting. [ 10 ] The respondent brought a motion seeking disclosure and an order that the applicant pay the costs for her to retain an expert to evaluate his financial documents. [ 11 ] The judge heard both motions and issued his decision on July 15, 2010. He dismissed the applicant’s motion for

summary judgment or trial of an issue; he granted the respondent’s motion for disclosure; he ordered the applicant to advance $12,500 on account of costs for the respondent to retain an expert; and he ordered costs of both motions in the amount of $14,000, payable to the respondent. General Principles – Leave to Appeal [ 12 ] The applicant did not argue that there were any conflicting decisions. Rather, he submits that there is reason to doubt the correctness of the motion judge’s decision. As such, he has to satisfy the two criteria for obtaining leave to appeal set out in Rule 62.02 (4):

(

i) there is good reason to doubt the correctness of the decision; and (ii) the proposed appeal involves matters of such importance that, in the opinion of the judge, leave to appeal should be granted.

Summary Judgment [ 13 ] Rule 16(6) provides that, on a motion for

summary judgment, the court shall make a final order “if there is no genuine issue requiring a trial”. [ 14 ] The respondent asserts that whether the applicant misrepresented his financial situation when she provided her consent to the order in 1997 is a genuine issue for trial. [ 15 ] The applicant submits that there is no evidence to support this assertion and that there is, therefore, no genuine issue for trial.

The parties were each represented by counsel at the time of entering into the consent and received independent legal advice. [ 16 ] In the opinion of the motion judge, there was enough evidence to raise a triable case of blameworthy conduct on the part of the applicant leading to the December 1997 order being and remaining too low. Also in his opinion, there was not enough of a distinction between the evidence for that issue and the evidence on the merits of support to justify splitting the case into two. [ 17 ] The respondent provided two affidavits to the court, dated February 20, 2010 and May 10, 2010.

She says that she was not aware of the applicant’s financial status until 2007, when the applicant sought to discontinue his child support payments. She now believes that the applicant either misrepresented his income in 1994, when the divorce order was made, or failed to advise her of a significant change in his financial status prior to the 1997 order. [ 18 ] The respondent claims that the applicant used his financial resources and threats to coerce her to agree to an unconscionable agreement in 1997.

In particular, she says that he told her that he would refuse to pay child support in excess of $200 monthly for each child and he would not pay any spousal support for her beyond a token lump sum. She understood that if she forced the issue, the applicant would leave the country and she would not receive any assistance. [ 19 ] I agree with the applicant that there is no evidence that threats were, in fact made, other than the respondent’s word for it.

The respondent has, however, presented evidence that she believes supports her claim that she was not provided with full disclosure. [ 20 ] The respondent refers to the following in her affidavits: - prior to the 1997 order, the applicant filed two financial statements, in January and March 1994, in which he showed a monthly income of $1,600 and $800, respectively, and claimed ownership of two hotdog cart plates. No subsequent financial statements were filed prior to the 1997 order. - in 1994, the applicant operated two hotdog vending stands at Yonge and Bloor in Toronto.

The respondent believes that the applicant earned substantially more revenue from those stands than he disclosed.

Her children advised her that when they worked at the stands in 1998, the average daily revenue for one shift was about $1,200. - in 1999, the applicant, who had previously represented a monthly income of $800 purchased a home for $560,000 with a mortgage of $420,000. - the applicant is a director, officer or shareholder of six companies, incorporated between 1999 and 2005. - the financial statements of the applicant’s companies indicate monies due to a shareholder and management fees or management salaries paid. - the applicant purchased a home in 2007 for $1,600,000. [ 21 ] While this is not conclusive evidence that the applicant misrepresented his financial situation in 1997, it was not an error on the part of the motion judge to conclude that there was sufficient evidence to raise a genuine issue for trial.

There is, therefore, no reason to doubt the correctness of his decision to refuse to grant

summary judgment. [ 22 ] Even if there were reason to doubt the correctness of the decision, the proposed appeal does not, in my opinion, involve matters of such importance that leave to appeal should be granted. While I appreciate that this is a matter of importance to the parties, the issue is whether the matters relate to matters of public, rather than private, importance or matters that are relevant to the development of the law and the administration of justice ( Mega International Commercial Bank (Canada) v. 1471556 Ontario Ltd. (c.o.b. Asian Farm , [2008] O.J. No. 2303 9Div.

Ct.)). [ 23 ] The applicant submits that this is a matter of public importance because it is important that the courts respect agreements entered into between parties. However, any decision in this case would be entirely fact-specific. It would not, in my opinion, call into question a larger policy or legal issue. Contribution to costs of expert [ 24 ] The motion judge was of the opinion that the respondent needed the applicant’s assistance to fund the expert review of his financial material “in order to level the playing field between these parties of such different means”. He ordered that the applicant

advance $12,500 for this purpose. [ 25 ] The applicant submits that in ordering that he fund the costs of the expert, the judge was finding blame. I do not agree. [ 26 ] The judge made this order because of the significant disparity between the incomes of the two parties. There was ample evidence of this disparity. [ 27 ] I conclude that there is no basis to doubt the correctness of the motion judge’s decision in this regard. Costs [ 28 ] The applicant submits that if he is successful in this motion, the costs order made by the motion judge should be reduced.

Since the applicant has not been successful, there is no need to consider a reduction of the costs order. Conclusion [ 29 ] For the reasons set out above, I conclude that there is no reason to doubt the correctness of the motion judge’s decision. Furthermore, the proposed appeal does not involve matters of such importance that an appeal should be granted. [ 30 ] Leave to appeal is therefore denied. [ 31 ] I would encourage the parties to come to an agreement with respect to costs. If they are unable to agree, the respondent may provide written submissions within 14 days of the release of this decision.

The applicant has a further 14 days within which to providing responding submissions. The submissions are to be brief: no more than 3 pages in length plus a bill of costs. Herman J. Date: December 2, 2010