Husband Required to Show “Scrupulous Care” for Wife’s Interests
In the recent decision in Tadayon v Mohtashami, 2015 ONCA 777, the Ontario Court of Appeal considered whether a husband’s non-disclosure of significant income and the manner in which the parties dealt with their real estate was unconscionable in law.
Ali Mohtashami and Leila Tadayon were married in 1984, separated in 1999 and were divorced in 2004. The couple had three children, aged 11, 9 and 6 at the time of separation. According to the terms of their separation agreement, Mr. Mohtashami would pay Ms. Tadayon $2000.00 per month in combined spousal and child support. In addition, the parties agreed to purchase a home after separation in the wife’s name alone.
In 2005, the parties entered into an Amending Agreement, which, among other things, adjusted the husband’s income to $80,000 per year and changed the split of the home ownership to 50-50 for each party.
Several years later, Ms. Tadayon found out that Mr. Mohtashami’s income was not $80,000 as he had reported in 2005, but actually $344,000. The majority of the income had not been reported to the Canada Revenue Agency.
Ms. Tadayon applied to the court to have the Amending Agreement set aside as unconscionable and to have her declared as the sole owner of the home. She argued that she would never have signed the 2005 Amending Agreement had she known of her ex-husband’s true income.
Mr. Mohtashami appealed to the Court of Appeal.
The Court of Appeal agreed with the lower court decision, finding that the Amending Agreement should be set aside and that the husband, Mr. Mohtashami had a duty to act with “scrupulous care” for Ms. Tadayon’s welfare and interests in the circumstances. The Court of Appeal set aside the Amending Agreement and declared Ms. Tadayon the sole owner of the property.
If you have questions about divorce or separation, please contact Jason P. Howie, online or at 519.973.1500.
To read the full decision, click here.