“At the outset of trial, Vahid amended his pleading to seek a declaration that two documents he signed acknowledging that Halime is entitled to ownership of the Ellis Property were domestic contracts that must be set aside pursuant to ss. 56(4)(a) and 56(4)(b) of the Family Law Act, R.S.O. 1990, c. F.3, and/or by reason of undue influence, duress, and unconscionability. Vahid’s counsel argued that if these agreements are set aside, then there would have to be a reference on the issue of equalization with respect to the Ellis Property with financial statements, etc. Halime consented to this amendment, preserving her right to argue that this claim was statute barred.
As well, in closing submissions, Vahid raised for the first time that the parties were engaged in a joint family enterprise whereby they agreed to share the Ellis Property (while still contesting any entitlement by Halime to the Deerfield Property). When I pressed his counsel about the illogic of this singular claim over the Ellis Property by way of joint family enterprise, his alternative argument was that the joint family enterprise could also include the Deerfield Property. When I pressed him still based upon the case law and the evidence before me that there were multiple properties held solely by Vahid not shared with Halime, as a third alternative argument, Vahid’s counsel argued that all properties that each party accumulated over the course of the relationship could be taken into account as part of a joint family enterprise. This would ultimately necessitate further productions, the exchange of financial statements, discovery and then a further proceeding to address the issue of the distribution of such assets.
None of this was ever pleaded despite the amendments at the outset of trial. This was never mentioned in the Trial Management Report nor at the case management conference I held the Friday before the trial commenced.
As I will explain, the late notice of this claim is unfair. Had this been pleaded from the outset, this action could have been pursued by Halime differently. She could have requested and been entitled to disclosure of documentation regarding all of the properties that each of the parties accumulated during their relationship and then ended up with at the end of the relationship. There could have been discovery on this issue to address whether Halime or Vahid unfairly ended up with a disproportionate share of any accumulated assets, a factor that is central in the case law concerning joint family enterprise relied upon by Vahid.
There are many criticisms one could make about Vahid’s approach, including that it constitutes trial by ambush. After seven years of litigation and a trial, the idea that Vahid should get another kick at the can and another hearing to address a late-breaking joint family enterprise theory is also an abuse of process. The courts do not have the time nor the resources to provide these two parties with another hearing because Vahid has now finally recognized, as will be seen, that both his claim and defence herein are highly problematic and that he needs a new theory. And he sought to do this, again, without having provided any information about his own financial circumstances and the various properties that he held outright during the relationship that Halime has never shared in nor made any claims to.”