2023 ONSC 3890, 2023 ONSC 3890

CITATION: Soleimani v. Karimi, 2023 ONSC 3890 DIVISIONAL COURT FILE NO.: 22-1292 (Oshawa) DATE: 20230629 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: AZADEH SOLEIMANI, Applicant / Respondent in Appeal AND: HAMIDREZA KARIMI AND PUYA KARIMI, Respondents / Appellant BEFORE: D.L. Corbett, Trimble and Schabas JJ. COUNSEL: Rick Bickhram, for the Appellant Puya Karimi Meysa Maleki, for the Respondent HEARD: at Oshawa by ZOOM, June 28, 2023 ENDORSEMENT D.L.

Corbett J. [1] The appellant appeals from the orders of Healey J. made January 7 and January 11, 2022, dismissing the appellant’s claim tothe proceeds of sale of the matrimonial home of his brother and sister-in-law and ordering ancillary terms. Justice Healey’s reasons arefound at 2022 ONSC 255. The background to this appeal is set out in a prior Divisional Court ruling (2023 ONSC 2109) and isincorporated into these reasons by reference. Jurisdiction and Standard of Review [2] As previously decided, jurisdiction over this appeal arises from s. 19(1)(a.1) of the Courts of Justice Act, RSO 1990, c.

C.43:2023 ONSC 2109, para. 39. [3] The “appellate standard” of review applies to this appeal: Canada (Minister of Citizenship and Immigration) v. Vavilov,2019 SCC 65. On questions of law, the standard of review is correctness. On questions of fact, the standard is “palpable and overridingerror”. On questions of mixed fact and law, the standard of review is palpable and overriding error except in respect to extricable legalquestions, to which the correctness standard applies: Housen v.

Nikolaisen, 2002 SCC 33 , [2002] 2 SCR 235, paras. 8 – 37. [4] The underlying proceeding is a family law matter between spouses: Ms Soleimani and the respondent Hamidreza Karimi(“Hamid”). Hamid’s pleadings were struck in December 2020 for failure to follow court orders. The matrimonial home was sold bycourt order, and the proceeds have been held in trust since the sale. The appellant, Puya Karimi, is Hamid’s brother, and he claims anequitable interest in the proceeds of sale, which amount to $888,070.90.

Decision Below [5] The motion judge accurately set out the position of the parties in paras. 11 and 12 of the Decision: legal title to the propertywas held jointly by the husband and wife. The appellant claims to have been the beneficial owner of the home by having paid $700,000towards the down payment and having paid the mortgage payments and other costs since acquisition. He says these arrangements arereflected in a Trust Declaration dated October 25, 2018, under which the home is said to be held in trust for the appellant’s sister, Leila(who lives in Australia).

The appellant says that Leila, in turn, orally agreed to hold her interest in the property in trust for the appellant. The respondent wife’s position is that the appellant’s allegations are fabrications created post-separation at the behest of Hamid. TheTrust Declaration was signed by her under duress and is unconscionable, the appellant never contributed funds toward the property, andHamid and his siblings are engaged in a “web of lies” to ruin her financially and deprive her of her share of the wealth accumulatedduring the marriage. [6] The motion judge characterized the motion as a motion for

summary judgment dismissing the appellant’s claims to theproceeds of sale of the property (Decision, para. 16). The motion judge noted that she was entitled to assess the case in this manner on amotion where the moving party requests final disposition of an issue (Decision, para. 18). In this context, the motion judge correctlyheld that the onus lay on the respondent wife to satisfy the court that there is no genuine issue requiring a trial (Decision, para. 16). Theappellant argued that the motion was not brought as a motion for

summary judgment and took us through the notice of motion and initialmotion materials in support of this argument. The motion judge dealt with this issue and noted that both sides had treated this as amotion for

summary judgment – as reflected in the factums and in correspondence between counsel. The nature of the motion wasimplicit in the relief claimed – payment out of proceeds to the respondent wife – and there was no surprise for the appellant. I see noprocedural unfairness in the way in which this issue was addressed below. [7] I note that the court below characterized the motion as a request for “partial

summary judgment”. As between the appellantand the respondent wife, the judgment below finally dismisses all of the claims of the appellant in respect to the proceeds of sale of thehouse. This is a “partial” judgment only because the appellant also claims an interest in other assets alleged to be matrimonial property –an issue the motion judge left for another day. I see no error in the motion judge’s conclusion that granting judgment respecting theproceeds of sale of the house would not give rise to any of the concerns that may militate against granting partial

summary judgment.

[ 8 ] The motion judge identified the allegation that the appellant advanced $700,000 as critical to the issue before her. On the record below, this identification was appropriate. Such an advance is an essential component of the appellant’s claim and is one which should be readily amenable to proof. The motion judge reviewed the evidence provided on this issue and concluded that it does not establish a triable issue that the $700,000 advance was made by the appellant to fund the down payment (Decision, paras. 30-34).

The motion judge made similar findings in respect to the appellant’s claim to have funded the carrying costs and expenses associated with the property (Decision, paras. 36-40).

These are factual findings, available on the record before the motion judge, and disclose no palpable and overriding error. [ 9 ] The motion judge then went on to assess the evidence in support of an oral trust agreement between Leila (the trust beneficiary under the written Declaration of Trust) and the appellant (Decision, paras. 41-45) and found that the appellant did not provide sufficient evidence to raise a triable issue of the alleged oral trust agreement.

The motion judge then went on to find that, in any event, the alleged oral trust agreement was inconsistent with ss. 9 and 10 of the Statute of Frauds , RSO 1990, c. S.19 (Decision, paras. 47-50). I see no reversible legal error in this conclusion. [ 10 ] Finally, the motion judge found that the Declaration of Trust, itself, was coerced from the respondent wife during a time of vulnerability following the breakdown of the marriage under violent circumstances and had the effect of placing out of reach a valuable asset acquired by the husband and wife during their marriage.

In the result, the Declaration of Trust is “an unconscionable agreement that must be overridden by this court.” [ 11 ] In sum, the motion judge found a pattern of oppressive conduct. She found that there is no triable issue that the appellant advanced funds used to acquire or fund the expenses of the matrimonial home. She found that these allegations are part of a pattern of abusive conduct by the husband and his family to try to deprive the respondent wife of support and her share of family assets.

All of this is placed in the larger context – the husband has relocated to British Columbia, started a new family, failed to pay court-ordered support, and claimed that all family assets belong to other members of his family and not to him. The husband’s family is engaged in the business of currency exchange on an international scale. They are mobile, their business involves transfer of funds in multiple currencies among jurisdictions, and the appellant and his family have been engaged in a concerted effort to thwart the claims of the respondent wife.

These findings are all solidly rooted in the record below. [ 12 ] In the overall context and history of this case, on the record below, we see no error in the motion judge’s resort to

summary judgment, and we agree with her that she was entitled to make the order she did. [ 13 ] The appeal is dismissed, with costs payable by the appellant to the respondent fixed in the agreed amount of $25,000, payable forthwith from the funds paid into court for security for costs. The motion judge’s order for distribution of funds to the respondent wife (and other relief) should be implemented without further delay. _____________________________________________ D.L. Corbett J. I agree: _______________________________ Trimble J. I agree: _______________________________ Schabas J. Released: June 29, 2023