Mehran Taherkhani and Rosa Donna Este were married in July 2004. Shortly before their marriage they entered into a handwritten agreement that provided that all property owned by each of them would remain the separate property of the owner, and that any increases in value would also be excluded from division between them.
In April 2006 they formalized their earlier agreement with the execution of a marriage agreement. The parties separated in March 2013. A Notice of Family Claim was filed by Taherkhani in May 2013 wherein he sought to set aside the marriage agreement and obtain orders dividing the family property, which he said included three properties in West Vancouver and a $3-million bank account, all owned by his wife. Este answered her husband’s claim with the assertion that the West Vancouver properties were beneficially owned by her mother, Mina Esteghamat-Ardakani.
In support of her claim Este produced three Declarations of Trust, which confirmed her assertions about ownership. In discovery she testified that the bank account belonged to her mother.
In May 2014 the parties settled the action and consented to terms which included Este paying $70,000 to her husband in full and final settlement of all his claims.What came next turned this action from a sprint into a marathon, and launched the parties into complex litigation.
Nine months after the consent order, Este brought a lawsuit against her mother and her mother’s partner, Craig Blackburn, wherein she took the position that she was in fact the beneficial owner of the three West Vancouver properties and $3.4 million in a bank account and sought their return. She alleged that her mother counselled and encouraged her to hide the true ownership to deprive her ex-husband of his claims.
Esteghamat-Ardakani and Blackburn denied the claims and brought an application asking the court to dismiss Este’s action as an abuse of process. The court granted the application and found that Este had perpetrated a fraud against her husband and the court. The abuse of process arguments had their foundation in Este’s evidence against her mother and Blackburn, namely, that the trust declarations were forgeries that were back-dated; that she gave false evidence in her discovery; and that her sworn Property and Financial Statement (Form 8) was fraudulent. In Taherkhani v. Este 2021 BCSC 1339, the court summarized Este’s actions:
“In sum, in the divorce proceedings, the plaintiff chose to take steps to defeat her thenhusband’s legal rights by representing falsely, including in Court documents and under oath,the properties and funds she now claims she rightfully owns. She now wishes to perfect herfraud in the divorce proceedings — a fraud designed to cheat financially her then husbandengaging the past unwitting help of officers and a judge of the Court.” (Emphasis added.)
The court found that Este now disavowed her past false evidence because it no longer served her purposes, and held that the law does not allow a party to pursue inconsistent rights.
What followed was a series of appeals and applications. Este appealed the order dismissing her action. Taherkhani applied to be added as a party to the appeal, which was granted. He then brought an application in the lower court for an order that the family law consent order be quashed due to fraud. He also applied to have fresh evidence admitted in the Court of Appeal in the form of the lower court order rescinding the fraudulent consent order.
Este’s appeal was dismissed in July 2018. The Appeal Court also addressed and contemplated that the family action would recommence with Esteghamat-Ardakani and Blackburn added as parties. To that end, the Appeal Court requested that Esteghamat-Ardakani and Blackburn provide undertakings that they would not take the position that Taherkhani was in any way estopped by the appeal order from pursuing whatever rights he may have in the trial court, an undertaking they accepted
.Este’s application for leave to appeal to the Supreme Court of Canada was also dismissed. Taherkhani then brought an application in the trial court to add Esteghamat-Ardakani and Blackburn as parties, and an order that he be permitted to amend his pleadings, applications that were mightily resisted by them. Taherkhani also filed a new action alleging a conspiracy involving Este and Esteghamat-Ardakani and Blackburn.
Esteghamat-Ardakani and Blackburn offered the following arguments in their effort to defend the applications:
That they were not necessary and property parties to the family law action;
That the pleadings should be struck as there is no action for constructive fraudulentmisrepresentation;
That civil conspiracy claims cannot be made in the context of a family law matter;
That the order rescinding the family consent order was improperly obtained;
That the British Columbia Supreme Court lacked jurisdiction;
That the procedural orders sought by Taherkhani were an abuse of process; and
That Taherkhani’s claims were statute-barred.
The court reviewed each in turn and provided a comprehensive analysis of each issue, ultimately granting Taherkhani’s applications.
However, Esteghamat-Ardakani and Blackburn appealed the procedural orders and Taherkhani brought an application in the Appeal Court for a determination that Esteghamat-Ardakani and Blackburn were in contempt of court for breaching the undertakings they gave in the earlier appeal hearing, and he sought special costs.
Taherkhani argued that Esteghamat-Ardakani and Blackburn’s submissions in the trial court undermined their undertakings to the Appeal Court. His application required counsel for Esteghamat-Ardakani and Blackburn to be added as respondents and to retain counsel for themselves.The Appeal Court disagreed, saying the undertaking was simply a representation to the court that they would not try to use the earlier appeal order to argue that Taherkhani was precluded from making a direct claim against them. The single-judge court also considered whether the breach of an undertaking by a litigant could attract a finding of contempt and found that it could, but stated that Taherkhani ought to have raised the breach argument in the lower court.
Taherkhani’s application was dismissed and the court awarded special costs to Esteghamat-Ardakani and Blackburn and their counsel. Taherkhani appealed the order to a full panel of the Appeal Court and his appeal was also dismissed.
With their multiple skirmishes in the appeal and trial courts, and the COVID shutdowns, it is doubtful that the merits of Taherkhani’s claims have yet been heard, and if this litigation history is any indication of how hard-fought a trial will be, there is much more to come.
Sir Walter Scott, poet, captured the essence of deceit in his poem, Marmion, published in 1808, with the well-known phrase: “Oh, what a tangled web we weave, When first we practise to deceive!” Meaning when one is dishonest the resulting complications are likely to spin out of control — an apt description of this litigation.
**This article was originally published by The Lawyer’s Daily ( thelawyersdaily.ca ) a division of Lexis Nexis Canada.