Behnami v. Mirakhori, 2014 SKQB 390

• Judge: Tholl, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 26, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 390;(2014), 461 Sask.R. 289 (FD)

Behnami v. Mirakhori (2014), 461 Sask.R. 289 (FD)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.047

Mahyar Behnami (petitioner) v. Majid Mirakhori (respondent)

(2012 DIV No. 238; 2014 SKQB 390)

Indexed As: Behnami v. Mirakhori

Saskatchewan Court of Queen's Bench

Family Law Division

Judicial Centre of Saskatoon

Tholl, J.

November 26, 2014.

Summary:

A wife applied to sever the divorce judgment from the remaining claims.

The Saskatchewan Court of Queen's Bench, Family Law Division, in a decision reported at 420 Sask.R. 197, allowed the application and granted a divorce. The remaining issue was the division of property between the parties, specifically a building located in Saskatoon which was a combination residential and commercial building and a bank deposit in the amount of $75,000 currently held by ScotiaBank, which was subject to conditions.

The Saskatchewan Court of Queen's Bench, Family Law Division, determined the issues accordingly.

Family Law - Topic 865

Husband and wife - Marital property - Distribution orders - Matrimonial home - A couple divorced - They had immigrated to Canada in September 2010 - In order to immigrate, the wife had enrolled in an entrepreneur program called the Saskatchewan Immigrant Nominee Program - Two items of property remained in dispute: (1) a combination residential and commercial building held in the wife's name; and (2) a $75,000 bank deposit currently held by ScotiaBank, subject to conditions, also in the wife's name - The wife could not access the deposit unless she invested a further $25,000 into her business - The wife submitted that a number of circumstances combined to constitute an extraordinary circumstance warranting an unequal distribution of the assets - The Saskatchewan Court of Queen's Bench, Family Law Division, took into account the increased equity created in the building by the wife, the preservation of the asset by her post-petition payments, the increased level of debt she incurred, the payments by her for the parties' eldest son's education and the fact that the building would have to be sold and the ScotiaBank deposit forfeited if an equal division was ordered, and determined, under s. 21(2) of the Family Property Act, that it would be unfair and inequitable to order an equal distribution of the family property - Further, the totality of these circumstances constituted extraordinary circumstances under s. 22(1)(a) of the Act, making it unfair and inequitable to equally divide the family home portion of the building - Permitting the wife to retain sole title to the building without any distribution, and ordering a distribution of the contingent asset (the $75,000 deposit at ScotiaBank account), was a fair and equitable manner of dividing the family property and family home - See paragraphs 45 to 74.

Family Law - Topic 868

Husband and wife - Marital property - Distribution orders - Property subject to distribution - A couple divorced - Two items of property remained in dispute, including a $75,000 bank deposit currently held by ScotiaBank, subject to conditions, held in the wife's name - The deposit could not be accessed by the wife unless she invested a further $25,000 into her business under the terms of the Saskatchewan Immigrant Nominee Program - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that the $75,000 Scotia Bank deposit was subject to contingencies which might or might not come to pass - It might be worth $50,000 plus accrued interest if certain conditions were met - If the conditions were not met, it was worth zero - The court ordered that the husband was entitled to $25,000 from the ScotiaBank deposit if and when the funds were released to the wife, plus one-half of any amount that exceeded $75,000, in order to equally divide any interest earned - See paragraphs 27, 70 to 72 and 74.

Family Law - Topic 868.2

Husband and wife - Marital property - Distribution orders - Debts - [See Family Law - Topic 865 ].

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - A wife sought an unequal division of matrimonial property - When the parties married in Iran in 1988, they entered into a marriage deed which contained a "Mehr" or dowry - The husband was purported to be required to pay the wife $23,490 under the terms of the Mehr - The Saskatchewan Court of Queen's Bench, Family Law Division, had concerns about taking the existence of the Mehr into account as a fairness and equity consideration where: (1) there was a genuine issue whether this specific Mehr in this specific circumstance would be enforceable as a contract in Saskatchewan; and (2) the wife had taken at least preliminary steps to have the Mehr enforced in Iran - See paragraphs 50 to 57.

Family Law - Topic 875

Husband and wife - Marital property - Distribution orders - Statutes requiring equal division - Exceptions (incl. judicial reapportionment) - [See Family Law - Topic 865 and Family Law - Topic 880.3 ].

Family Law - Topic 880.3

Husband and wife - Marital property - Distribution orders - Exempt acquisitions - Gift, trust, bequest or award - A couple divorced - Two items of property remained in dispute, including a $75,000 bank deposit currently held by ScotiaBank, subject to conditions, held in the wife's name - The wife sought an unequal distribution of the property on the basis, inter alia, that she had received an inheritance which made up the bulk of the $75,000 deposit to the ScotiaBank - The Saskatchewan Court of Queen's Bench, Family Law Division, stated that "There are no factors in this matter that would persuade the court to deviate from the general rule that inheritances are shareable as family property. There is no evidence of the testator intending to benefit only [the wife] to the exclusion of [the husband]. While the inheritance came shortly before the money was deposited with ScotiaBank, the inheritance occurred after the parties had been married in excess of 20 years. Each party received an inheritance during the marriage with the funds being co-mingled with other family funds. [The wife] has not satisfied the onus upon her to demonstrate that a sharing of the inheritance would be unfair or inequitable. The court will not take the inheritance into account as a factor that has any effect on fairness or equity justifying a deviation from an equal division." - See paragraphs 35 to 38.

Family Law - Topic 888

Husband and wife - Marital property - Considerations in making distribution orders - Valuation (incl. time for) - [See Family Law - Topic 868 ].

Family Law - Topic 4006

Divorce - Corollary relief - Maintenance awards - Effect of agreements - [See first Family Law - Topic 875 ].

Cases Noticed:

Phillips v. Phillips (2010), 362 Sask.R. 124; 500 W.A.C. 124; 2010 SKCA 117, refd to. [para. 31].

Williams v. Williams (2011), 375 Sask.R. 145; 525 W.A.C. 145; 2011 SKCA 84, folld. [para. 32].

Olson v. Olson (1988), 67 Sask.R. 257 (C.A.), refd to. [para. 36].

Rouatt v. Rouatt (2009), 333 Sask.R. 145; 2009 SKQB 161 (Fam. Div.), refd to. [para. 37].

Gifford v. Gifford, [2009] Sask.R. Uned. 71; 68 R.F.L.(6th) 208; 2009 SKQB 177 (Fam. Div.), refd to. [para. 37].

Hamblin v. Masniuk, [2013] Sask.R. Uned. 15; 2013 SKQB 66 (Fam. Div.), refd to. [para. 42].

Akerman v. Akerman, [2006] Sask.R. Uned. 173; 2006 SKQB 111 (Fam. Div.), refd to. [para. 43].

Goodwin v. Goodwin (2005), 272 Sask.R. 1; 2005 SKQB 438 (Fam. Div.), refd to. [para. 43].

Mahajan v. Mahajan (2008), 312 Sask.R. 66; 2008 SKQB 66 (Fam. Div.), refd to. [para. 43].

Bellamy v. Hill (2005), 271 Sask.R. 216; 2005 SKQB 333 (Fam. Div.), refd to. [para. 48].

James v. Belosowsky (2012), 403 Sask.R. 12; 2012 SKQB 316 (Fam. Div.), refd to. [para. 48].

Beaulac v. Beaulac (2005), 256 Sask.R. 243; 2005 SKQB 20 (Fam. Div.), refd to. [para. 48].

Delvarani v. Delvarani et al., [2012] B.C.T.C. Uned. 162; 2012 BCSC 162, refd to. [para. 55].

Aziz v. Al-Masri, [2011] B.C.T.C. Uned. 985; 2011 BCSC 985, refd to. [para. 55].

M.A.K. v. E.I.B. (2008), 353 N.B.R.(2d) 80; 910 A.P.R. 80; 2008 NBQB 249 (Fam. Div.), refd to. [para. 55].

Nasin v. Nasin (2008), 443 A.R. 298; 53 R.F.L.(6th) 446; 2008 ABQB 219, refd to. [para. 55].

Amlani v. Hirani, [2000] B.C.T.C. 1023; 194 D.L.R.(4th) 543; 2000 BCSC 1653, refd to. [para. 55].

N.M.M. v. N.S.M., [2004] B.C.T.C. 346; 26 B.C.L.R.(4th) 80; 2004 BCSC 346, refd to. [para. 55].

Ghaznavi v. Kashif-Ul-Haque, [2011] O.T.C. Uned. 4062; 2011 ONSC 4062, refd to, [para. 55].

Khamis v. Noormohamed, [2011] O.A.C. Uned. 95; 91 R.F.L.(6th) 1; 2011 ONCA 127, refd to. [para. 55].

Counsel:

Sheri L. Woods, for the petitioner;

Majid Mirakhori, respondent, self-represented.

This case was heard by Tholl, J., of the Saskatchewan Court of Queen's Bench, Family Law Division, Judicial Centre of Saskatoon, who delivered the following decision on November 26, 2014.