Maftoun v. Banitaba (2014 ONCA 35)

At trial, the appellant claimed her religious Iranian Divorce Certificate and divorce register prepared by Banibata were altered fraudulently to include a waiver of the Marriage Gift provided for in her marriage contract. The trial judge rejected the appellant’s claim on the merits.

The trial judge based his decision on several facts including the following:

1. During the course of the religious divorce proceedings, two original booklets containing the Divorce Certificate were prepared. The Divorce Certificate contained the waiver of the Marriage Gift. One booklet was given to each of the parties at the conclusion of the religious divorce. The fraud would have required the alteration of both booklets;
2. The Divorce Register also contained the waiver. It was signed by both parties, and there was no apparent insertion on the page containing the waiver;
3. If the respondent sought to benefit from defrauding the appellant, he would have sought to immediately register the divorce certificate with the Iranian Embassy for it to become effective. He did not do so; and
4. The appellant’s actions subsequent to her purported discovery of the alleged alteration were more consistent with her knowledge of the waiver at the time of the religious divorce.
5. Even if the trial judge had not rejected the appellant’s claim on the merits, he would have dismissed it on the basis that it was initiated beyond the applicable limitation period.

On appeal, the appellant argued the trial judge erred in the treatment of the her oral testimony, erred in deciding the matter based on the appellant’s waiver of the marriage gift, erred in his factual findings, erred in concluding that the limitation period barred her claim, and erred in his award of costs. The appellant also tendered fresh evidence on the day of the hearing. For the reasons below, the appeal judge dismissed the appeal.

1. Did the trial judge err in his treatment of the appellant’s oral testimony: No. The trial judge made well-reasoned credibility findings of all parties, weighed all the evidence and explained how he came to his decision.
2. Was the trial judge biased: There was nothing in the record to sustain that the trial judge was biased.
3. Did the trial judge err in deciding the case on the basis of waiver: No. The appellant misunderstood the effect of the respondent’s reliance on an additional defence. While the respondent amended his defence to add the plea that he paid the Marriage Gift, he did not withdraw the defence of waiver.
4. Did the trial judge err in his factual findings: The appellant argues the trial judge erred in concluding she was a religious person, erroneously found she was the one who contacted Banitaba to effect the religious divorce, the religious divorce was of value to her and that this explained why she waived her right to the marriage gift. The appeal judge found that trial judge did not err in his assessment of the facts or in his consideration of the appellant’s motives for waiving the Marriage Gift. The absence of a clear motive was a factor that favoured the appellant’s argument that she never waived her marriage gift. The trial judge listed various possibilities but was unable to make a clear determination in this regard. The trial judge did not find that the appellant was a religious person, nor did he find that the appellant is the one who first contacted Banitaba. The trial judge simply noted that the appellant had “prior dealings with Banitaba and arranged for the religious divorce.”
5. The limitation period: The appeal judge upheld the trial judge’s decision on the merits of the claim and therefore did not address the limitations issues raised by the appellant.
6. Did the trial judge err in his award of costs: The appeal judge found no basis to interfere with the trial judge’s decision on costs, which was entitled to deference in the appeal court. The trial judge’s reasons demonstrate he considered all of the factors that the appellant raised on appeal.
7. The fresh evidence: The appeal judge rejected the motion to file fresh evidence. The fresh evidence did not relate to the Divorce Certificates or Divorce Register’s authenticity and could have been obtained before trial. It would not have impacted the result.