



COURT OF APPEAL FOR ONTARIO

CITATION: Siddiqui v. Riahi, 2021 ONCA 63

DATE: 20210202

DOCKET: C67144

MacPherson, Trotter and Harvison
    Young JJ.A..

BETWEEN

Mohammad
    Niaz Siddiqui

Applicant (Respondent)

and

Fataneh Riahi aka Fataney Jalalie

Respondent (Appellant)

Gary S. Joseph and Stephen P. Kirby,
    for the appellant

Michael H. Tweyman, for the respondent

Heard: January 18, 2021 by video conference

On appeal from the order of Justice Karen D.M. Leef of the Superior
    Court of Justice, dated May 31, 2019.

REASONS FOR DECISION

Background

[1]

The appellant wife and the respondent husband
    separated after five years of marriage. They both had children from previous
    marriages, but the appellants son lived with them. The respondent had immigrated
    to Canada in 1978. He managed a pharmacy from 1998 until 2016 when his
    employment was terminated. The appellant immigrated to Canada in 2007. Her son
    was approximately 10 years old at the time. The parties met shortly after her
    arrival in Canada when the appellant rented a basement apartment from the
    respondent who lived on the main floor.

[2]

The ten-day trial covered both division of
    property as well as claims for spousal and child support and a restraining
    order. In the course of determining the net family property value to be divided
    between the parties, the trial judge was required to determine a wide range of
    issues including the ownership of three properties, debts which the appellant
    claimed she owed to her sisters, as well as the spousal and child support
    issues.

Issues

[3]

The appellant wife appeals on a number of
    grounds. First, she submits that the trial judge erred in her findings of
    ownership with respect to two of the properties, Centre Street and Royal Road.
    Royal Road was the matrimonial home.

[4]

Second, she argues that the trial judge erred in
    the application of resulting trust principles and in doing so, applied the
    principles in an uneven manner which favoured the respondent. She also erred,
    according to the appellant, in failing to find that the appellant was entitled
    to a deduction from her net family property as a result of loans which she
    alleged that her sisters had advanced to her in the course of the marriage.

[5]

Third, she also submits that the trial judge
    erred in failing to award spousal or child support to the appellant.

[6]

Finally, the appellant submits that the trial
    judge, in making her credibility findings, applied an unduly more rigorous
    approach to the appellants evidence than she did to the respondents.

[7]

The respondent husbands position is that the
    appellant has demonstrated no errors of law or principle or palpable and
    overriding errors that could justify the intervention of this court.

[8]

We find no merit in any of the grounds raised.
    The impugned findings all turn on the facts as found by the trial judge. The
    standard of review is one of correctness for questions of law and palpable and
    overriding error for questions of fact or mixed law and fact:
Bakhski v.
    Hosseinzadeh
, 2017 ONCA 838, at para. 24. The trial judge committed no
    reversible errors.  Our reasons follow.

The Centre Street Property

[9]

The respondent asserted that he was the
    beneficial owner of the Centre Street property at the date of marriage, despite
    the fact that the titled owner was the company owned by his employer at the
    time. As the beneficial owner at that time, he was entitled to deduct the
    marriage date value from his net family property.

[10]

The trial judge had ample grounds to find that the
    respondent was the beneficial owner. Both the respondent and his former
    employer had testified that they had become very good friends, that he had
    played a major role in the management of the pharmacy, and that she wanted to
    assist him because she decided to sell the pharmacy. The trial judge accepted the
    respondents evidence that title had been placed in his employers name because
    he could not obtain a mortgage in his own name. His employer at the time had
    also advanced money which he had repaid in full when the property was sold. His
    evidence on the issue was supported by his former employer. The trial judge
    determined that the definition of property in s. 4(1) of the
Family Law Act
,
    R.S.O. 1990, c. F.3, is sufficiently broad to cover situations where the spouse
    is the beneficial owner of a property, even though legal title is held by
    someone else. We see no error in the trial judges determination of this issue.

[11]

On appeal, the appellant wife argues that the
    trial judges finding that the respondent was the beneficial owner violated s.
    4 of the
Statute of Frauds
, R.S.O. 1990, c. S.19, which requires that
    an agreement for the sale of lands be in writing and signed by the party to be
    charged. This issue is raised for the first time before this court and for this
    reason this ground of appeal is dismissed.

Royal Road (the matrimonial home)

[12]

The trial judge did not err in finding that the
    matrimonial home, whose title was in the appellant wifes name, was jointly
    owned by the parties. She did so on the basis that the respondent husband had
    contributed money ($60,000) to the purchase of the home and had also paid for
    the renovations made subsequently. These findings were open to her on the
    evidence at trial.

[13]

At trial, the appellant argued that the husband
    had loaned her the $60,000 but that she had paid it back. The trial judge
    rejected the appellants evidence that she had repaid the money and gave cogent
    reasons for doing so that demonstrate that she carefully considered the
    evidence before her on the subject. Nor did she err with respect to the
    application of the principles of resulting trust and her conclusion that the appellant
    wife had not rebutted the presumption of a resulting trust. It is clear from the
    trial judges  discussion of
Kerr v. Baranow
, 2011 SCC 10, [2011] 1
    S.C.R. 269,

and
Korman v. Korman
, 2015 ONCA 578, 126 O.R.
    (3d) 561, that she was well aware of the applicable principles and from her
    findings of fact that she applied those to the law before her.

[14]

We also reject the appellants submission that
    the trial judge erred in failing to find a resulting trust in favour of the appellants
    sisters who, the appellant argues, advanced significant funds to her in the
    course of the marriage. Such debts incurred to the sisters during the marriage
    would have entitled the appellant to a deduction from her net family property. The
    trial judge found that although the sisters had advanced significant sums to
    the appellant before the marriage, she had serious doubts that they had
    advanced any monies during the marriage.  In any event, she also found that
    that there was no evidence to support the argument that such monies were loans.

[15]

The context of this alleged unevenness on the
    trial judges part in the application of the presumption of resulting trust is
    important. Family law judges are justifiably wary of claims, made after
    separation, that monies advanced to family members during the marriage are
    debts rather than gratuitous amounts. This is because acceding to such claims
    too readily would risk undermining the central purpose of the family property
    regime which is to equally divide the value of the property acquired by the
    marital partnership. Here, the evidence proffered by the appellant did not, in
    the trial judges view, support the submission that the monies were advanced
    during the marriage or that there was any expectation of repayment. The trial
    judge found that it was clear from the evidence that they would never sue the
    respondent or take any action to collect upon the money.  She was not satisfied
    that there were any loans during the marriage by the sisters and her findings
    were well grounded in the record before her and fully explained in her reasons.

Spousal and Child Support Claims

[16]

We find no errors with respect to the trial
    judges dismissal of the appellants claims for spousal and child support.

[17]

In dismissing the claim for spousal support, the
    trial judge first found that the evidence at trial did not support a claim for
    compensatory support. She reached that conclusion on the basis that the
    appellant had not provided any documentary support for her income during the
    marriage. Nor did the appellant adduce any evidence that she had suffered
    negative economic consequences as a result of the roles assumed during the
    marriage. The trial judge did note that the appellant had testified (in
    relation to the matrimonial home) that she had earned a good income as a hair
    stylist and did not need or want the respondent to assist her with support.

[18]

With respect to the claim for non-compensatory
    support, the trial judge found that both parties financial situations took a
    turn for the worse post-separation. The respondent husband lived in his car at
    one point while the appellant was required to live in a shelter. She found,
    however, that the appellant wife had made little, if any effort to provide
    for her own support since separation, and that the respondent, who was working
    as a gas station attendant,  was barely able to provide for his own support and
    had no ability to pay spousal support.  We see no basis for the intervention of
    this court with respect to the trial judges dismissal of the appellants claim
    for spousal support.

[19]

With respect to child support, the trial judge
    found that no support was payable because the child was over 18 and not enrolled
    in full-time education and that in any event she was not satisfied that the respondent
    stood
in loco parentis
during the marriage. Each reason precluded the
    award of child support in this case. There is no merit to this ground of
    appeal.

The Credibility Findings

[20]

By way of an overarching submission, the
    appellant submits that the trial judge approached the appellants evidence
    differently than the respondents, to the appellants detriment.

[21]

We disagree. The trial judge began with the
    observation  that both parties had played fast and loose with the truth on some
    occasions in the past as evidenced by, for example, the respondents use of a false
    employment letter to qualify for a mortgage and the appellants filing of
    income tax returns claiming no income, despite her testimony that she earned
    significant cash income through her salon. However, the trial judge also stated
    that she found that the respondents evidence at trial was more credible than
    the appellants. She gave careful reasons for her findings on each issue which
    were open to her on the evidence before the court.

[22]

The evidence in this case was voluminous and
    covered a wide range of issues. The trial judges reasons are extensive and
    provide clear reasons for her credibility findings throughout, all of which were
    well-grounded in the record before her.

Conclusion and Disposition

[23]

In sum, the trial judge made clear findings of
    fact that were well grounded in the record before her and applied the correct
    legal principles to these facts as she found them. Moreover, she clearly
    explained her reasons for her conclusions throughout.

[24]

The appeal is therefore dismissed. The appellant
    shall pay costs of this appeal in the amount of $8,475 to the respondent
    inclusive of disbursements and HST. The funds held in trust shall be released
    to the respondent forthwith.

J.C.
    MacPherson J.A.

Gary
    Trotter J.A.

A.
    Harvison Young J.A.


