



COURT OF APPEAL FOR ONTARIO

CITATION: Heydari v. Ahmadi, 2018 ONCA 958

DATE: 20181128

DOCKET: M49721

Brown J.A. (Motion Judge)

BETWEEN

Yahya Heydari

Respondent (Moving Party)

and

Homa Ahmadi

Applicant (Responding Party)

Pathik Baxi and Ida Mirzadeh, for the moving party

Michael Stangarone and
    Stephen Kirby, for the responding party

Heard: November 22, 2018

REASONS FOR DECISION

OVERVIEW

[1]

In this family law litigation, the husband, Yahya Heydari, moves for:
    (i) an extension of time to file a notice of appeal from the final order of
    Justice Fletcher Dawson dated May 9, 2018 (the Final Order); (ii) a stay of
    the Final Order pending appeal; (iii) certain relief in regard to the matrimonial
    home in the event it is sold; and (iv) leave to file fresh evidence on the
    appeal.

[2]

The matrimonial home has now been sold. Pursuant to the order of Pardu
    J.A. made November 15, 2018, the net proceeds of the recent sale are being held
    in trust by the real estate solicitor acting on the sale pending disposition of
    this motion. As well, I informed Mr. Heydaris counsel that an application for
    fresh evidence must be brought before the panel hearing an appeal in accordance
    with s. 7.2.1 of this courts
Practice Direction Concerning Civil Appeals
.
    Accordingly, that leaves for determination the moving partys request for an
    extension of time to file a notice of appeal and a stay of the Final Order.

THE PROCEEDINGS BELOW

[3]

A history of this proceeding can be found in the lengthy reasons of
    Price J. dated April 26, 2018, reported at 2018 ONSC 2682.

[4]

Briefly, the parties were born in Iran. They were married in 2007 in
    Iran. At that time, Mr. Heydari lived in Calgary; Ms. Ahmadi lived in Iran. She
    immigrated to Canada in 2008.

[5]

Ms. Ahmadi assisted Mr. Heydari with his home renovation and re-sale
    business. Their only child tragically died less than a month after his birth in
    early 2013.

[6]

The parties separated in May 2016, whereupon Ms. Ahmadi commenced this
    application. She sought to set aside a marriage contract and obtain orders for
    spousal support and a net equalization payment.

[7]

As a result of Mr. Heydaris failure to comply with undertakings he gave
    on questioning and court orders directing that he provide answers to those
    undertakings, on April 26, 2018 Price J. struck out Mr. Heydaris pleadings
    (the Strike Pleadings Order). He ordered the matter to proceed to an
    uncontested trial the following month.

[8]

Mr. Heydari did not move to set aside the Strike Pleadings Order. Nor
    did he appeal it. Further, his Amended Notice of Motion and Draft Notice of Appeal
    do not indicate that he seeks an extension of time to appeal the Strike
    Pleadings Order.

[9]

Dawson J. heard the uncontested trial on May 9, 2018. His Final Order
    awarded Ms. Ahmadi: (i) lump sum spousal support in the amount of $248,734,
    payable upon the closing of the sale of the matrimonial home; (ii) an
    equalization payment of $26,887.64; (iii) costs of $35,000; and (iv) a
    restraining order against Mr. Heydari. As well, the Final Order directed the
    sale of the matrimonial home. Although title to the home was in the name of Mr.
    Heydari, the Final Order vested title in Ms. Ahmadis name to facilitate the
    sale and directed payment of the spousal support, equalization payment and
    costs out of the net sale proceeds.

[10]

As
    noted, the sale of the matrimonial home closed in mid-November and the real
    estate solicitor is holding the net sale proceeds in trust pending disposition
    of this motion.

[11]

On
    October 16, 2018, Mr. Heydari filed this motion to extend the time to file a
    notice of appeal from the Final Order and to stay that order.

[12]

If
    granted an extension of time, Mr. Heydari is prepared to deliver his notice of
    appeal within 10 days and perfect his appeal within 30 days.

ANALYSIS

[13]

The
    framework in which to assess Mr. Heydaris request for an extension of time to
    appeal is well known. Each case must be assessed on its own facts. A court
    ultimately must be guided by whether the justice of the case requires granting
    the extension. In reaching that decision, the court usually considers: (i)
    whether an appellant formed an intention to appeal within the relevant appeal
    period; (ii) the length of, and explanation for, the delay; (iii) prejudice to
    the respondent; and (iv) the merits of the appeal, specifically whether there
    is so little merit in the proposed appeal that the court could reasonably deny
    the important right of appeal:
Kefeli v. Centennial College of Applied Arts
    and Technology
(2002), 23 C.P.C. (5
th
) 35 (Ont. C.A.);
Issasi
    v. Rosenzweig
, 2011 ONCA 112, 277 O.A.C. 391; and
Duca Community
    Credit Union Limited v. Giovannoli
(2001), 142 O.A.C. 146 (C.A.).

Intention to appeal

[14]

Mr.
    Heydari was represented by several counsel prior to the Strike Pleadings Order.
    In his affidavit, he complains about poor or inadequate representation by most
    of them.

[15]

The
    Final Order was made on May 9, 2018. Mr. Heydari approached his current counsel
    on May 22, 2018 and retained him on June 6, 2018. A notice of change in
    representation was sent to opposing counsel that day.

[16]

Mr.
    Heydari deposes that it was not until opposing counsel sent his new counsel the
    Final Order on June 19 that he learned the result of the uncontested trial. Sometime
    in late June or early July he decided to appeal the Final Order, raised funds
    for counsel, and fully retained new counsel.

[17]

Although
    Mr. Heydari did not expressly advise opposing counsel or Ms. Ahmadi of his
    intention to appeal until mid-October when he filed this motion for an
    extension of time to file his notice of appeal, I am satisfied that service of the
    notice of change in representation signaled that he was contemplating an appeal
    of the Final Order as there was little other need for counsel to go on the
    record in this proceeding.

Explanation for the delay in
    bringing the motion to extend time

[18]

Notwithstanding
    his retainer of new counsel by June 6, 2018 and his knowledge of the Final
    Order no later than June 19, Mr. Heydari did not file his motion for an
    extension of time to appeal until October 16, 2018, some five months after the
    Final Order was made.

[19]

I
    find Mr. Heydaris explanation for the delay to be weak. He deposes that
    instead of moving for an extension of time to file an appeal, he focused his
    efforts on trying to amass the information required to answer the undertakings
    he had failed to fulfill prior to the Strike Pleadings Order. His affidavit
    discloses that he decided to pursue the following litigation strategy: put
    together belated answers to the undertakings; try to have that information
    admitted as fresh evidence on the appeal thereby indirectly setting aside the
    Strike Pleadings Order, which he has not appealed or moved to set aside; try to
    set aside the Final Order through an appeal and re-wind the litigation clock
    back to early 2018 by obtaining a new trial. As I read his affidavit, developing
    that strategy is how Mr. Heydari spent his time between June and October, 2018.

[20]

It
    is evident that Mr. Heydari did not spend the time readying his appeal for
    perfection. In response to my question during the motion hearing, his counsel
    advised that the appeal book and factum were not yet ready and Mr. Heydari
    requires a further 30 days to perfect his appeal.

[21]

Mr.
    Heydaris affidavit also discloses that he spent part of the summer trying to
    frustrate the operation of the Final Order, which had directed the sale of the
    matrimonial home and placed carriage of the sale solely in the hands of Ms.
    Ahmadi. To his affidavit Mr. Heydari attached an August 3, 2018 letter his
    accountant wrote to the Canada Revenue Agency Voluntary Disclosures Program. It
    is an extraordinary letter. In part, the letter contains information about Mr. Heydaris
    past income that raises very serious questions about the accuracy of the income
    he reported on his February 10, 2017 Form 13.1 Financial Statement. As well,
    his accountant drew the CRAs attention to the support dispute Mr. Heydari was
    having with Ms. Ahmadi, writing:

Due to legal impediments of my client, his ex-wife will sell
    his only material asset, [the matrimonial home], to satisfy spousal support
    payments. My client feels the support payments are warranted however dispute
    the actual amount of spousal payments, since up until recently, he was not
    aware he had unreported income from selling properties.



To complicate his unreported income with the CRA, the Superior
    Court of Justice in Ontario has a court order in favour of his former wife,
    [Ms. Ahmadi], to sell his
only
quantifiable material
    asset, which is the [matrimonial home].

This property is currently put up for sale by his ex-wife, and
    is currently on the market since mid-end of July 2018. Without such proceeds
    from the sale of said property, my client does not have any other material
    assets or enough potential income in future years to pay for such tax
    liabilities.

Mr. Heydari is in the process of filing a court motion to halt the
    sale of [the matrimonial home] and to prevent his ex-wife to use the sell
    proceeds. Mr. Heydari has advised me through his discussion with his lawyer
    that such motion might take 6-8 weeks and by that time, his ex-wife would have emigrant
    out of Canada with the proceeds. Mr. Heydari believes his ex-wife is a flight
    risk, given after the sale of [the matrimonial home], she would have no primary
    residential ties with Canada as her immediate family are in Iran.

To further prevent the erosion of proceeds leaving Canada and
    leaving Mr. Heydari with a significant unpayable tax liability,
Mr. Heydari has voluntary given consent to the CRA to
    put a lien of $1,017,126 (see Tax liabilities section for the calculation) as
    a form of security on his only material asset, [the matrimonial home]. This lein
    should be put in place immediately. Please be advised that Mr. Heydari is the
    sole and 100% owner of this property as proven in family court and through real
    estate title search.



Furthermore, the sale of [the
    matrimonial home] will create additional business income, and given the flight
    risk of Mr. Heydaris ex-wife, it would be in the best interest for the CRA to
    put a lien on this property.
[Emphasis in the original.]

[22]

From
    this letter I conclude that instead of using the time following the Final Order
    to prepare an appeal, Mr. Heydari spent his time trying to frustrate the
    provisions of the Final Order directing the sale of the matrimonial home. Accordingly,
    Mr. Heydaris explanation for his delay in bringing this motion to extend is
    quite weak, and I conclude that he has not pursued the preparation of his
    appeal with the requisite diligence.

Merits of the appeal

[23]

Mr.
    Heydaris draft notice of appeal offers little in the way of specifics about
    the errors he will submit taint the Final Order. The draft notice of appeal
    merely contains bald assertions that the trial judge misapprehended the
    evidence and made findings of fact unsupported by the evidence, without
    offering any specifics.

[24]

Mr.
    Heydaris counsel submits that while his client does not take issue with the
    quantum of the ordered spousal support, the trial judge erred in failing to
    explain why he ordered support payable in a lump-sum. As well, Mr. Heydari
    submits that the trial judges endorsement does not clearly explain how he
    reached certain conclusions.

[25]

I
    would note that the trial judges reasons do provide insight into how he
    reached his conclusion to make a lump-sum spousal support award. The trial
    judge wrote:

In terms of spousal support, I note the significant admissions
    that flow from the respondents failure to respond to a comprehensive Request
    to Admit. Entitlement to spousal support is established on more than one basis.
    As to quantum, I accept the evidence which supports the imputation of income
    that in turn supports the quantum of the spousal support sought. I accept that
    in the circumstances as described in the 23C affidavit, a lump sum is warranted
    in the amount proposed. This amount corresponds with a reasonable period of
    support based on the length of the marriage.

[26]

As
    well, para. 19 of Ms. Ahmadis 23C affidavit, referred to by the trial judge, summarizes
    the basis upon which she submitted that Mr. Heydari should pay her lump-sum
    spousal support in the amount of $253,201. From the award actually made, it is
    apparent the trial judge gave significant weight to that evidence. Further, as
    Ms. Ahmadis counsel argues, Mr. Heydaris disclosure of his accountants
    letter to CRA raises serious questions about whether he grossly understated his
    income on his Form 13.1 Financial Statement.

[27]

However,
    I am not satisfied that the grounds of appeal advanced by Mr. Heydari fail to
    meet the very low threshold of having so little merit as to deny the important
    right of appeal.

Prejudice to Ms. Ahmadi

[28]

One
    factor a court must take into account on a motion for an extension of time to
    file a notice of appeal is the prejudice to a respondent in granting an extension
    request.

[29]

The
    prejudice deposed to by Ms. Ahmadi is financial in nature. She states that she
    is in desperate need of funds. She spent her married life assisting her husband
    with his business. Ms. Ahmadi had been a teacher in Iran but is not qualified
    to teach in Ontario. Following the parties separation, Ms. Ahmadi completed coursework
    at the OREA Real Estate College. However, she has yet to earn any income
    through real estate. She deposes: (i) that the only income she received in 2017
    was $1,000 in spousal support; and (ii) she continued to receive $1,000/month
    in spousal support through April, 2018.

[30]

If
    Mr. Heydari is granted an extension of time to appeal, enforcement of some parts
    of the Final Order would be stayed automatically. The Final Order requires Mr. Heydari
    to pay Ms. Ahmadi $310,926.38 from the net sale proceeds of the matrimonial
    home, made up of the following amounts:

(i)

$248,734 in lump sum spousal support;

(ii)

$26,887.64 as an equalization payment;

(iii)

$304.74 in prejudgment interest;

(iv)

$35,000 in costs.

[31]

In
    the event an extension of time is granted to Mr. Heydari to file a notice of
    appeal, the automatic stay of a provision of an order for the payment of money
    under r. 63.01(1) would apply only to the amount of $62,192.38, comprised of
    items (ii), (iii) and (iv). Since r. 63.01(1) stipulates that the automatic
    stay does not apply to a provision that awards support or enforces a support
    order, granting Mr. Heydari an extension of time to appeal would not stay automatically
    the provision of the Final Order requiring payment of the lump sum support of
    $248,734.

[32]

Nor
    would it stay automatically the related provision in the Final Order directing
    payment of that amount from the net sale proceeds upon the closing of the sale
    of the [matrimonial home]. That provision falls within the language of r.
    63.01(1) of a provision that  enforces a support order.

[33]

As
    a result, in the absence of an order staying the spousal support provisions of
    the Final Order, granting Mr. Heydari an extension of time to file a notice of
    appeal would not prevent Ms. Ahmadi from obtaining immediately almost 80% of
    the money awarded to her out the net sale proceeds now held in trust.
    Accordingly, the financial prejudice to Ms. Ahmadi of granting Mr. Heydari an
    extension would be modest in proportion to the overall amount awarded by the
    Final Order.

Mr. Heydaris request for a stay

[34]

However,
    Mr. Heydari seeks to stay the payment of the $248,734 spousal support award
    from the net sale proceeds pending his appeal.

[35]

Whether
    one approaches Mr. Heydaris request through the lens of the standard test for
    a stay (
RJR-MacDonald Inc. v. Canada (Attorney General)
), [1994] 1
    S.C.R. 311) or by reversing the perspective applied on a request to lift an
    automatic stay (
SFC Litigation Trust v. Chan
, 2018 ONCA 710), in my
    view the result is the same  he is not entitled to a stay of the spousal
    support provisions of the Final Order because:

(i)

His grounds of appeal are weak;

(ii)

The only harm he might suffer if a stay is not granted is monetary. Even
    then, his disclosure to the CRA of substantial unreported income  which was
    not disclosed to the court prior to trial  suggests that the amount of the
    Final Order was lower than it might otherwise have been had Mr. Heydari
    disclosed his actual income; and

(iii)

The balance of convenience overwhelming favours not interfering with the
    no automatic stay policy regarding support orders as expressed in r.
    63.01(1). Mr. Heydari: (i) ignored court orders that he fulfill his
    undertakings; (ii) only paid spousal support when ordered to do so; (iii)
    delayed significantly in seeking an extension of time to appeal; and (iv)
    instead used that time to try to thwart the court-ordered sale of the
    matrimonial home and develop a litigation strategy to undermine, indirectly,
    the Strike Pleadings Order. I see no equity on Mr. Heydaris side of the
    ledger.

Summary

[36]

For
    those reasons, Mr. Heydari has not made out a case for a stay of the spousal
    support provisions in the Final Order. In that circumstance, after considering
    the justice of the case as a whole, I am satisfied that the prejudice Ms.
    Ahmadi may suffer from granting Mr. Heydari an extension of time to appeal is
    proportionately modest given her immediate entitlement to $248,734 of the net
    sales proceeds to satisfy the Final Orders award of spousal support. Although
    Mr. Heydaris grounds of appeal are weak, as is his explanation for his delay
    in seeking an extension of time, I am reluctant to deprive a litigant of his
    statutory right of appeal where the delay to appeal is five months.

[37]

Finally,
    in her factum Ms. Ahmadi submits that until Mr. Heydari obtains an order
    setting aside the Strike Pleadings Order, r. 1(8.4) of the
Family Law Rules
does not entitle him to participate in these proceedings in any way. I do not
    accept this submission as the
Family Law Rules
do not apply to an
    appeal in the Court of Appeal: r. 1(2).

DISPOSITION

[38]

Accordingly,
    I grant Mr. Heydari an extension of time to file a notice of appeal on the
    following terms:

(i)

He deliver his notice of appeal no later than 3 p.m. on Monday, December
    3, 2018; and

(ii)

He perfect his appeal no later than Thursday, December 20, 2018. Mr. Heydari
    did not include a draft certificate of evidence in his motion record, so I
    cannot determine whether he intends to rely on any transcripts. If he does, I
    suspect that not much transcription will be involved since the Final Order was
    made after an uncontested trial that proceeded largely on deemed admissions and
    affidavit evidence. In any event, if fixing this deadline for perfection
    necessitates paying for expedited transcripts, Mr. Heydari will have to bear
    that cost.

[39]

I
    dismiss Mr. Heydaris request for a stay of the Final Order. Further to para. 2
    of the order of Pardu J.A. made November 15, 2018, I direct that the real
    estate solicitor holding in trust the net proceeds from the sale of the
    matrimonial home release to Ms. Ahmadi, or her counsel at her direction, the
    sum of $248,734 in satisfaction of paras. 5 and 10(2)(a) of the Final Order.

[40]

Mr.
    Heydari does not seek costs in the event he succeeds on the motion. Ms. Ahmadi
    seeks substantial indemnity costs in the amount of $8,400 payable forthwith out
    of the net sale proceeds. Mr. Heydari submits that in the event Ms. Ahmadi
    succeeds on the motion, she should receive $2,000 in costs.

[41]

Although
    I have granted Mr. Heydari part of the relief he requested on the motion, I
    regard his litigation conduct with respect to this appeal as employing delay
    and attrition tactics too often seen in matrimonial litigation. His request for
    a stay of the spousal support provisions of the Final Order signals that he
    seeks to grind down Ms. Ahmadi, who lacks financial resources. When assessed
    against the backdrop of Mr. Heydaris attempts to thwart the sale of the
    matrimonial home, I regard his request for a stay of the payment of spousal
    support as a form of litigation misconduct. Such misconduct is to be
    discouraged, especially in matrimonial litigation.

[42]

Consequently,
    I award Ms. Ahmadi elevated, substantial indemnity costs of $8,400, as
    supported by her bill of costs. That amount is payable immediately out of the
    net sale proceeds of the matrimonial home held in trust.

David Brown J.A.


