Lessons from Modabber v. Kermanshahan

  • February 15, 2024
  • Justyna Waxman, Torkin Manes LLP

Lawyers should appreciate that it takes years to earn a solid reputation but mere moments to destroy it.”

This was the strongly worded caution that Kaufman J. delivered to counsel appearing before him on a recent 14B motion in Modabber v. Kermanshahani  involving what turned out to be a dispute over an inconsequential sum being released from the proceeds of sale of a matrimonial home.

In the case in question, the parties had reached an agreement that each would receive a sum of $75,000 from the proceeds. They also agreed that the husband would reimburse the wife 50% of the costs of renovations up to $7,500 plus 5% interest on the amount to be reimbursed. The parties’ agreement was, as these interim resolutions often are, without prejudice to either party’s position regarding the ultimate division of proceeds.

The deal fell apart when the husband, after requesting proof of the source of funds used to pay for the renovations in question, suspected that the expended funds came from a joint bank account to which he no longer had access. Nevertheless, the husband offered to release $7,050 to the wife from his $75,000 of proceeds, an amount $450 shy of the agreed-upon $7,500 ‘cap’.

In response to the husband’s offer, the wife served the husband with a 14B motion, in which she sought an order enforcing the parties’ agreement together with costs.

The wife went on to serve the husband with a 14B motion, in which she sought an order enforcing the parties’ agreement together with costs. When asked to withdraw her 14B motion and consent to the release of funds pursuant to the parties’ agreement, she refused, demanding that she was entitled to costs of her 14B motion. Two days later, the wife demanded reimbursement from the husband for the renovation costs in the amount of  $9,332.39, a request that inexplicably deviated from the parties’ agreement on a $7,500 cap.

By the time the matter reached Kaufman J., what remained at issue before the court was a dispute over a meager $450 in reimbursement, all the while ample funds remained in trust following the disbursement of the agreed-upon $75,000, and the parties had another pending court appearance in a few weeks where this issue could have been addressed.

To say that Kaufman J. had lost his patience with the parties and their counsel would be an understatement. His Honour went on to say:

I am tempted to release this decision to Legal Research for the amusement of lawyers throughout Canada. I would do so but there is nothing funny about this case. However, perhaps there is an educational component for younger counsel. Perhaps for counsel not so young, as well.

I am strongly recommending that the lawyers involved in this case send their respective clients a copy of Rule 2 of the Family Law Rules. Focus should be on the part that states that the Court, counsels and the litigants are essentially partners in the duty to promote the primary objectives of the Rules.

In fact, when the parties appear in Court on February 14, 2024, I am ordering counsels to assure the presiding Judge that they have shared this Ruling with their clients.

This case should serve as an important reminder to family lawyers: When in the throes of litigation (and all the stresses that come with it), it is all too easy to get caught up in technical arguments when advocating for a client’s position, and lose sight of the bigger picture in the process.

There are two key takeaways all family lawyers should consider from this case:

  1. Check in with your family law colleagues before making a difficult judgment call. If you don’t have the added advantage of working with a terrific team of family lawyers (as I do), reach out to lawyers in your network. Take advantage of their wisdom and expertise. No matter how senior you might be, it is never a bad idea to have a ‘second set of eyes’ on something you have drafted, or to talk through a fact scenario.
  2. Screen clients rigorously at the initial consultation stage and proactively manage their expectations about process and possible outcomes throughout the engagement. If a client is asking you to take an unreasonable position, whether at the outset of the engagement or at any step during the process, consider whether or not this is a client you want to continue representing.

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