



COURT OF APPEAL FOR ONTARIO

CITATION: Salehi v. Tawoosi, 2016 ONCA 986

DATE: 20161229

DOCKET: C61732

Gillese, MacFarland and Pepall JJ.A.

BETWEEN

Faranak Salehi

Applicant (Appellant)

and

Farzad Tawoosi

Respondent (Respondent)

Ryan M. Kniznik, for the appellant

Elena E. Mazinani, for the respondent

Heard: December 15, 2016

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated January 22, 2016, with reasons reported at
    2016 ONSC 540.

By the Court:

[1]

The parties in this family law appeal were married on December 10, 2001,
    in Iran.  They separated on June 5, 2013, and were divorced in 2015.  They have
    one child. On consent, the appellant mother has custody of the child.

[2]

Prior to the marriage, the families of the parties met in Iran and
    negotiated a marriage contract.  Under the terms of that contract, the
    respondent husbands family was to convey, among other things, 500 square
    metres of rural land in Iran (the Mobarakeh lands) to the appellant.

[3]

In this appeal, the appellant seeks to have this court redetermine matters
    that relate to equalization of the parties respective net family properties,
    under the
Family Law Act
, R.S.O. 1990, c. F.3 (the 
FLA
).  A
    key issue in the appeal is whether the trial judge erred in the value that he
    attributed to the appellants interest in the Mobarakeh lands.

[4]

Shortly before the oral hearing of this appeal on December 6, 2016, the
    appellant brought two motions.  In the first motion, the appellant asked the
    court to preclude the respondent from making responding submissions on appeal
    because of a failure to pay costs of $6,500, owing as a result of orders of
    this court made on November 15, and 16, 2016 (the Costs Orders).  In the
    second motion, the appellant asked that she be permitted to adduce fresh
    evidence on appeal which she says, among other things, shows that she does not
    own the Mobarakeh lands.

[5]

On December 9, 2016, in response, the respondent filed his own motion to
    adduce fresh evidence.  His motion materials call into question the reliability
    of the appellants fresh evidence relating to the Mobarakeh lands.

[6]

After hearing oral argument on the three motions, the court dismissed
    them all and indicated that reasons would follow.  Those reasons are set out
    now.  Thereafter, we will address the issues raised on the substantive appeal
    and explain why we order that it be dismissed.

THE PRELIMINARY MOTIONS

(1)

The Appellants Motion to Preclude Responding Submissions

[7]

The appellants request that this court preclude responding submissions
    is based on the respondent having purportedly breached the Costs Orders.  The
    Costs Orders were made in the following circumstances.

[8]

In October 2016, each party brought a motion in this appeal to this
    court.  Doherty J.A. heard the two motions on November 15, 2016.  He disposed
    of them in two endorsements, dated November 15 and 16, 2016, respectively.  In
    those endorsements, among other things, Doherty J.A. made the Costs Orders
    which required the respondent to pay costs totalling $6,500.

[9]

Doherty J.A. did not establish a deadline for payment of the Costs Orders. 
    Therefore, the respondent had 30 days within which to pay them.  That means
    that the deadlines for paying the Costs Orders were: (1) December 15, 2016, for
    the first costs order; and (2) December 16, 2016, for the second costs order.

[10]

Accordingly, when the appellant filed this motion on December 6, 2016, the
    deadline for payment of the Costs Orders had not been reached, the respondent
    was not in breach of those orders, and there was no basis for the motion to
    have been brought.

[11]

We would go further, however, and strongly suggest that even if there
    had been a breach of the Costs Orders, the motion ought not to have been brought. 
    We say this for three reasons.

[12]

First, we point to the timing of the motion.  Absent compelling evidence
    of wilful disregard of court orders, it is seldom helpful to bring such a motion
    shortly before the oral hearing of the appeal.  This type of motion deflects
    the parties attention from the real matters in issue on the appeal, tends to
    unduly inflame emotions at a time when they are typically already running high,
    and unnecessarily drives up the costs of the litigation.

[13]

We appreciate that the motion in this case was brought to the panel
    hearing the appeal. Because that is not always the case, we wish to take this
    opportunity to make it clear that if a party brings such a motion to this court
    within three weeks of the hearing of the appeal, the judge hearing the motion
    in chambers must be told of the date on which the appeal is to be heard.  Parties
    should expect that in such a situation, the motion may very well be adjourned to
    the panel hearing the appeal.

[14]

Second, and in any event, the alleged misconduct in this case does not come
    close to the level that would justify precluding the hearing of responding
    submissions.

[15]

The appellant relies
on the
    dissenting judgment of Laskin J.A. in
Dickie v. Dickie
(2006), 78 O.R. (3d) 1 (C.A.), at para.
    87, affirmed by the Supreme Court of Canada: [2007] 1 S.C.R. 346, 2007 SCC 8,
    at para. 6.
Dickie
establishes that the court has a discretion to
    refuse to hear a litigant who has wilfully breached a court order, until the
    litigant has cured the breach.  Absent evidence of a wilful and ongoing disregard
    for the courts process, such a motion must fail.  In this case, there was no
    breach at the time the motion was brought.  Furthermore, even if there had
    been, it would not have been ongoing in any meaningful sense of the word, as
    it would have lasted for perhaps a day or two.

[16]

Murphy v. Murphy
, 2015 ONCA 69, 56 R.F.L. (7th) 257, which the
    appellant also seeks to rely on, does not assist the appellant.
Murphy
underscores
    the high hurdle the moving party must meet in order to succeed on such a motion. 
    In
Murphy
, on the day that the appeal was heard, the respondent was in
    breach of court orders that required him to: (a) pay costs; (b) disclose his
    income tax returns; and (c) pay outstanding child support.  This court found
    that 
to hear the respondent's
    submissions would be to reward his deliberate and wilful misconduct (at para.
    6).

[17]

That is not this case.  The
    misconduct in
Murphy
was wilful and ongoing.  As we have already noted, in this case, even if there
    had been non-compliance with the Costs Orders, it would have been a matter of
    days at most.  That cannot be seen to reach the level of a wilful and ongoing
    disregard for the courts process such that the court would refuse to hear his
    responding submissions on the appeal.

[18]

Third, there is the issue of
    proportionality.  This motion related to an alleged failure to pay the Costs
    Orders, which totalled $6,500.  Given the costs associated with the bringing of
    the motion and the overall sums involved on appeal, proportionality
    considerations suggest that the motion was not warranted.

[19]

Having said that, these
    reasons should not be taken as accepting of the non-payment of costs orders
    made close to the time an appeal is heard.  Costs orders are made by the court
    with the full expectation that they will be paid in a timely fashion.

[20]

Accordingly, this motion is
    dismissed with costs to the respondent.


(2)

The Parties Motions to Adduce Fresh Evidence

[21]

We begin this part of our reasons by underlining that they do not apply
    to fresh evidence motions brought in family law appeals in which there are
    issues involving children.  In order for the court to discharge its obligation
    to consider the best interests of the children, the rules governing the
    admission of fresh evidence in such appeals are relaxed.

[22]

It is with troubling regularity that parties to family law appeals
    dealing with equalization payments bring motions to adduce purportedly fresh
    evidence on appeal.  Such a practice is to be discouraged.

[23]

The
Courts of Justice Act
, R.S.O. 1990, c. C.43, provides that:

134. (4) Unless otherwise provided, a court to which an appeal
    is taken may,
in a proper case


(b) receive further evidence by affidavit, transcript of
    oral examination, oral examination before the court or in such other manner as
    the court directs

to enable the court to determine the appeal. [Emphasis added.]

[24]

The case of
Palmer v. The Queen
, [1980] 1 S.C.R. 759, at p.
    775, established the criteria that define a proper case for fresh evidence:

(1) The evidence should generally not be admitted if, by due
    diligence, it could have been adduced at trial provided that this general
    principle
will not be applied as strictly in a criminal
    case
as in civil cases. [Citation omitted; emphasis added.]

(2) The evidence must be relevant in the sense that it bears
    upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is
    reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when
    taken with the other evidence adduced at trial, be expected to have affected
    the result.

[25]

Therefore, fresh evidence will generally not be admitted in civil
    appeals if, by due diligence, it could have been adduced at trial.

[26]

In the appellants fresh evidence motion, she seeks to adduce expert
    opinion evidence about the Mobarakeh lands from the same expert in Iranian law
    whom she called at trial.  The fresh evidence is said to arise from documentation
    from Iran received after trial.  The appellant does not argue that the
    documentation could not have been obtained, with due diligence, before trial. 
    Yet, she submits that the documentation, as interpreted by her expert, would
    have affected the outcome below, and should thus be admitted on appeal.

[27]

We do not accept this submission.

[28]

In the context of a dispute about the quantum of an equalization
    payment, the due diligence requirement ought not to be relaxed.  Contrary to
    the appellants contention, her position does not find support in
R. v.
    Manasseri
, 2016 ONCA 703.
Manasseri
is a criminal case.  As the
    above-quoted provision from
Palmer
expressly states, the due diligence
    requirement is not applied as strictly in a criminal case.

[29]

In essence, through the appellants fresh evidence motion, she asks this
    court, equipped with documentation that appears to have been obtainable before
    trial, to reweigh conflicting evidence that was before the trial judge.  That
    runs contrary to the notion that fresh evidence should
not

be
    admitted on appeal if, among other things, by due diligence it could have been
    adduced at trial.

[30]

As was the case in
Mason v. Mason
, 2016 ONCA 75, at para. 197, it
    would not be in the interests of justice to allow a party to adduce evidence  delivered
    on the eve of the oral hearing of the appeal  that could have been led at
    trial.

[31]

Accordingly, the appellants fresh evidence motion is dismissed.

[32]

The respondents fresh evidence motion was made to respond to the fresh
    evidence which the appellant sought to introduce.  As the respondent readily
    conceded, if the court did not admit the appellants fresh evidence, there was
    no need to consider his fresh evidence motion.

[33]

For these reasons, both motions to adduce fresh evidence are dismissed. 
    In the circumstances, the respondent is entitled to costs of both motions.

THE ISSUES ON APPEAL

[34]

The appellant asks this court to find that the trial judge erred in:

1.
    determining the respondents net family property because the trial judge used
    an incorrect valuation date value for the mortgage attributed to 4501-25
    Telegraph Mews and an incorrect value for the respondents bank account on
    valuation date;

2. determining
    the appellants net family property, particularly the value attributed to the
    Mobarakeh lands;

3.  failing
    to order or analyze an unequal division of net family property in favour of the
    appellant in accordance with s. 5(6) of the
FLA
.

ANALYSIS

[35]

Before turning to a consideration of these issues, two points should be
    made.

[36]

First, the court found it necessary to call on the respondent only in
    respect of the value attributed to the Mobarakeh lands (not ownership of those
    lands) and the trial judges treatment of s. 5(6) of the
FLA
.

[37]

Second, this courts consideration of the issues is informed by the
    trial judges findings on the credibility of the parties.  At paras. 5-22 of
    the reasons, the trial judge gave thorough, careful reasons for finding that neither
    party was credible or reliable.  He concluded by saying this, at para. 23 of his
    reasons:

As is apparent from the foregoing recitals, neither of the
    parties was a credible witness. Moreover, their testimony is not generally
    reliable.  I do not believe that I can safely accept the unsubstantiated
    testimony of either of them.  I therefore look for third party confirmation and
    circumstantial guarantees of trustworthiness for all of their testimony where
    possible. In all, I will view the parties evidence through the lens of common
    sense and try to find corroboration where I can.  In some cases, the burden of
    proof may have to come into play.

[38]

On the record, the trial judges credibility and reliability findings
    are well-founded.

Issue #1  The Respondents Net Family Property


[39]

The trial judge carefully and thoroughly reviewed the parties financial
    records and evidence.  The challenges in performing that task were compounded
    by his credibility and reliability determinations, as described above.

[40]

We dismiss this ground of appeal for the following reasons.

a.

The bank
    account

[41]

The appellant advised the court that she was not pressing the matter of
    the value of the bank account.  However, she did not abandon it.  In the
    circumstances, this matter can be dealt with summarily.

[42]

At para. 76 of his reasons, the trial judge found that [n]o bank
    accounts were proven at trial except the $190 HSBC saving account that is
    included on consent.  This court has not been pointed to a palpable and
    overriding error in this finding of fact.  Accordingly, there is no basis on
    which to interfere with his finding on the respondents bank account on the valuation
    date.

b.

The
    value of the mortgage

[43]

At para. 76 of his reasons, the trial judge wrote:

The respondents evidence of the value of the Telegram Mews
    condominium of $300,000 subject to the outstanding mortgage of $217,000 was not
    contested.

[44]

Both parties confirmed the accuracy of this statement by the trial judge. 
    As the appellant did not contest the value of the mortgage at trial, we see no
    basis for interfering with the trial judges use of those figures for the
    purposes of calculating the respondents net family property.

Issue #2  The Appellants
    Net Family Property

[45]

The appellant says that the trial judge erred in attributing a value of
    $200,000 to the Mobarakeh lands.  She says that the dollar figure is
    speculative and cannot stand for that reason.  She further says that the trial
    judge erred when he said, at para. 58 of his reasons, that the only evidence
    he had was the appellants evidence in which she rejected the suggestion that
    the lands were worth $250,000.  She says that this is a palpable and overriding
    error because she had testified at trial that in her opinion the lands were
    worth approximately $33,600.  Therefore, she says, there was evidence before
    the trial judge apart from her rejection of the suggestion that the lands were
    worth $250,000.

[46]

We do not agree.

[47]

At para. 58 of the reasons, the trial judge explained that:

a.

the Mobarakeh lands
    had appreciated since the time of marriage, when the appellant acquired her
    interest in them;

b.

in an affidavit
    filed earlier in the proceedings, the appellant rejected the respondents
    contention that the lands were worth $250,000;

c.

he did not
    accept the evidence of the respondents expert who had valued the lands at $216,000;

d.

the appellant must
    have recognized that a valuation was required for the lands, yet she did not
    provide one; and

e.

there was little
    basis on which to determine the value of the lands.

[48]

The trial judge concluded para. 58 with the following:

In the circumstances, it seems to me that [the appellants]
    response to the $250,000 figure was not random and that I can infer from her
    failure to value the land that presenting a valuation would not have been
    favourable to her position.  In my view therefore it is fair and just to assess
    the value attributable to her interest in the Mobarakeh land at 80% of the
    $250,000 amount or $200,000 as at the valuation date.
Livent Inc. (Receiver
    of) v. Deloitte & Touche
, 2016 ONCA 11 (CanLII), at paras. 386-88.

[49]

Read in the context of the reasons as a whole, we do not accept that the
    trial judge erred when he stated that the only evidence was the appellants
    rejection of the suggested figure of $250,000.  As set out above, the trial
    judge made it clear that he could not safely accept the unsubstantiated
    testimony of either party.  Thus, when he made the impugned statement, we
    understand it to be in the context of him having rejected the appellants
    figure of $33,600, because it was unsubstantiated and had no circumstantial
    guarantees of trustworthiness.

[50]

This view finds support when the trial judges valuation of the Shiraz
    property is considered.  At para. 56 of the reasons, the trial judge recited
    that at or near the valuation date, based on her inquiries and understanding,
    the appellant had suggested to the respondent that the Shiraz property should
    have a certain value.  The trial judge said that this evidence had some
    circumstantial trustworthiness because it was intended to be used to maximize
    both parties value in a true sale to a third party.  He therefore used the
    figure suggested by the appellant as the value for the Shiraz property.

[51]

As can be seen, the trial judge followed the approach that he had
    indicated that he would use when considering the parties testimony.  Because
    the parties lacked both credibility and reliability, the trial judge looked for
    third-party confirmation.  Where there was none, he searched for
    circumstantial guarantees of trustworthiness for all of their testimony.  In
    the absence of either third-party confirmation or circumstantial guarantees of
    trustworthiness, the trial judge viewed the parties evidence through the lens
    of common sense.

[52]

In the case of the Mobarakeh lands, there was nothing to corroborate the
    appellants suggested figure of $33,600 and, unlike the Shiraz property, there
    was no circumstantial guarantee of trustworthiness for that figure.  Thus it
    was that, after rejecting the value placed on the Mobarakeh lands by the
    respondents expert, the trial judge found that the only evidence he had in
    respect of the value of the lands was the appellants evidence in which she
    rejected a value of $250,000.

[53]

We also reject the appellants contention that the trial judge was
    speculating when he attributed a value of $200,000 to the appellants interest
    in the Mobarakeh lands as at the valuation date.  The trial judge was entitled
    to draw the inference that he did for the reasons that he gave.  The appellant
    knew that a valuation of the lands was needed for trial and did not provide one. 
    Her response to the $250,000 figure proposed by the respondent was not random. 
    It was open to the trial judge to draw the inference that he did.  Knowing that
    the respondent viewed the Mobarakeh lands as having a value of $250,000, the
    appellant failed to provide the court with a valuation of the lands because
    such a valuation would not have been favourable to her position.

[54]

The trial judge used the evidence that he had, limited as it was.  He
    did the best that he could on that evidence.  There is no basis on which to
    interfere with his determination of the value to be attributed to the Mobarakeh
    lands.

[55]

This ground of appeal is dismissed.

Issue #3  Unequal Division
    of Net Family Property

[56]

The appellant submits that the trial judge erred in failing to address
    the issue of unconscionability under s. 5(6) of the
FLA
.  She says that she
    raised the matter in her pleadings and, therefore, it is open to this court to
    address it.  Her   arguments on this matter are heavily dependent on the fresh
    evidence which she sought to adduce and which we have refused to admit.

[57]

The respondent says that neither party raised this issue before the
    trial judge. He contends that it would be unfair to permit the appellant to raise
    the issue now because he did not have a fair chance at trial to test the evidence
    on which it rests or to lead his own evidence on the issue.  He submits that
    the appellant should not benefit from having failed to raise and pursue the
    matter at trial.

[58]

We accept the respondents submission.

[59]

At para. 74 of the reasons, the trial judge expressly states that
    neither party had raised a question of unconscionability under s. 5(6).  While
    the appellants pleading does make mention of s. 5(6), the appellant did not
    identify it as an issue for resolution at trial.  Neither party addressed the
    matter in their handling of the evidence at trial nor did they make submissions
    on it to the trial judge.

[60]

The appellant is effectively raising this issue for the first time on
    appeal.  The record is not adequate for the court to fairly hear and decide it. 
    Had the appellant wished to pursue the matter, she should have done so at
    trial.

[61]

This ground of appeal is dismissed.

DISPOSITION

[62]

For these reasons, all three motions and the appeal are dismissed, with costs
    to the respondent fixed at $9,500, all inclusive.

Released: December 29, 2016 (E.E.G.)

E.E. Gillese J.A.

J. MacFarland
    J.A.

S.E. Pepall
    J.A.


