Fadaee Estate v. Soltani

2026 BCCA 135 Fadaee Estate v. Soltani COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Fadaee Estate v. Soltani, 2026 BCCA 135 Date: 20260306 Docket: CA50975 Between: Marzieh Fadaee, Personal Representative of the Estate of Payman Fadaee, Deceased, Sassan Tabatabaei Zavareh, Guardian ad litem of Hossein Fadaee and Robabeh Modabber Sobhandost Appellants (Respondents) And Zohreh Soltani Respondent (Claimant) Before: The Honourable Justice Edelmann (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated August 20, 2025 (Soltani v. Fadaee Estate, 2025 BCSC 1609, Vancouver Docket E190401). Oral Reasons for Judgment Counsel for the Appellant, Marzieh Fadaee, Personal Representative of the Estate of Payman Fadaee, Deceased: Counsel for the Appellants, Sassan Tabatabaei Zavareh, Guardian ad litem of Hossein Fadaee and Robabeh Modabber Sobhandost: G.K. Thomas R. Choudhry Counsel for the Respondent: R.G. Sherman Place and Date of Hearing: Vancouver, British Columbia March 2, 2026 Place and Date of Judgment: Vancouver, British Columbia March 6, 2026 Summary: This is an application for leave to appeal an order for costs made after trial. The judge awarded special costs against one of the appellants and costs of more than ordinary difficulty against the other appellants. Held: Leave to appeal denied. An order for costs is highly discretionary and would be subject to deferential review on appeal. The appellants in this case have not identified any issues with the judge's exercise of discretion that would justify an appeal of a costs order. [1] EDELMANN J.A.: This is an application for leave to appeal an order for costs made after trial. [2] Payman Fadaee ("Payman") and the respondent were married in an Islamic ceremony on August 16, 2016, at which time they entered a marriage agreement (the "Mahr"). The Islamic ceremony was followed by a civil marriage later that month. They separated in 2019, and the respondent filed a family claim soon after. Payman was named as a respondent along with his parents, Hossein Fadaee and Robabeh Sobhandost, with whom he shared joint title to two properties at the time of separation. Payman passed away in February 2020. His sister Marzieh advanced the claim on behalf of Payman's estate. [3] The main issues at trial were the enforceability of the Mahr and the beneficial ownership of various properties. Under the terms of the Mahr, the respondent sought 250 gold coins valued at around $200,000 and an equal share of property bought during the marriage. The respondent also sought spousal support and an interest in four real properties. [4] The trial judge found that, immediately prior to his death, Payman swore a false affidavit addressing financial issues and seeking to undermine the validity of the Mahr. The trial judge found Payman's swearing of the false affidavit to be explained by the close relationship he had with his parents and his siblings. On his deathbed, he tried to favour his family over the respondent. He also found that Payman had prepared a statement with false entries purporting to show monthly rent owed to his parents, in an attempt to favour them. [5] The parents were the beneficiaries of Payman's estate, and it would appear evident that their interests are aligned with those of the estate. Marzieh and her parents testified that Payman owed his parents a total of $594,662, including a loan of approximately $434,000 for the two-bedroom apartment purchased during the marriage, as well as $98,000 in unpaid rent and $62,000 in other personal debt. The trial judge gave detailed reasons for not finding Marzieh, or her parents, credible or reliable witnesses. I do not propose to review those in detail, but note that in 2010, Payman, Robabeh, and Hossein purported to have entered into an agreement about the ownership of one of the properties. The trial judge concluded that the agreement, made several months after Payman's first wife had commenced a family law action, was a sham designed to help defeat that spouse's claim to the property. [6] Following a 38-day trial, the trial judge found the Mahr to be enforceable. He ordered the transfer of $200,000 and half the value of the two-bedroom apartment to the respondent, along with $15,000 relating to a vehicle. [7] After three days of submissions on costs, the trial judge awarded special costs against the estate for any steps taken after the filing of the false affidavit. In the view of the trial judge, the trial would have been unnecessary but for the filing of the false affidavit. He found the waste of resources and court time reprehensible and worthy of rebuke. [8] With respect to the parents, he was not prepared to make an order for special costs against them. He did, however, find that costs of more than ordinary complexity were warranted in the circumstances. Legal Framework [9] Where the only matter on appeal is in respect of costs, the order is a limited appeal order under R.11(f) of the Court of Appeal Rules, B.C. Reg. 120/2022. As a result, leave of a justice to bring the appeal is required: Court of Appeal Act, S.B.C. 2021, c. 6, s. 13(2)(a). The factors to be considered in an application for leave to appeal a costs order are: (1) whether the proposed appeal raises questions of principle that extend beyond the parameters of the particular case; (2) whether the questions of principle are of significance to the practice; and (3) whether the proposed grounds for appeal are arguable. Gichuru v. Pallai, 2019 BCCA 282 at para. 10; Canfield v. Continental Appraisals Ltd., 2023 BCCA 61. [10] The test for an application for leave to appeal a costs order is more onerous than other applications for leave, due to the highly discretionary nature of such an order: Yung v. Jade Flower Investments Ltd., 2012 BCCA 168 at para. 19 (Chambers). This reflects the deferential standard of review on appeal where, provided the judge considers the factors that are relevant to the question of costs, the judge's conclusion is entitled to deference: Tisalona v. Easton, 2017 BCCA 272 at para. 99. Leave to appeal a costs order will generally not be granted unless a question of principle is involved: Neufeld v. Foster, 2000 BCCA 485 at para. 14 (Chambers). Grounds of Appeal [11] The appellants set out several grounds of appeal, suggesting that they raise questions of principle going beyond the interests of the parties. In my view, some of the issues raised by the applicants are attempts to have this Court reconsider the factual context assessed by the trial judge. An attempt to frame a question of fact as one of principle does not render it so, nor does it render it of significance to the practice. For example, the appellants frame one of the issues in the following terms: In what circumstances can a dying declaration affidavit represent a dying man's evidence and a review of the triable issues to be litigated and in what circumstances can such a dying man affidavit be treated as reprehensible justifying special costs. [12] In this case, the trial judge found that Payman knowingly swore a false affidavit, which was then relied upon by his estate in protracted, unnecessary litigation. This was a finding of fact about the particular circumstances of the case. The appellants are challenging the impact or importance of the affidavit, not the underlying principles. The assessment of the role of the affidavit in the litigation was well within the discretion of the trial judge. [13] Secondly, the appellant alleges procedural unfairness grounded in judicial bias, because the respondent was not initially seeking the scope of special costs that were ultimately awarded. Following a discussion with the trial judge, the respondent did seek special costs for the period after the affidavit. One of the factors that led the judge to award special costs in this case was the unnecessary waste of court time that was occasioned by Payman's conduct. A trial judge's willingness to discuss with counsel openly about relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias: Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47. There is no suggestion that the appellant estate was not put on notice of the scope of the special costs award the trial judge was considering in the circumstances. I am not persuaded that the appellant estate has raised a question of principle with respect to the dialogue between the court and counsel in this case. Substantial Success [14] The parent appellants argue that the trial judge erred in assessing substantial success as it relates to their involvement in the litigation, submitting that there was "no order" made against them. I disagree. The appellants' position at trial was that the claimant should get nothing. They alleged a $434,000 loan, along with other monies owing by Payman, that would otherwise have been family assets and subject to distribution under the terms of the Mahr. The parents' position was essentially that the estate had no assets subject to distribution to the respondent. They were unsuccessful on those claims. Given the enforceability of the Mahr, the beneficial ownership of some of the properties turned out not to be relevant at trial. However, it was well within the discretion of the trial judge to assess the importance of the various issues and to weigh substantial success. I am not persuaded that he erred in principle, much less in a manner that would be of significance beyond this case. [15] I am also not persuaded that the judge erred in principle in awarding costs on the scale of more than ordinary complexity, given his clear findings about the nature of the conduct that rendered the case more complex. In particular, he found that Robabeh contributed to making the case one of more than ordinary difficulty in various ways, including swearing an affidavit without knowing its contents, feigning ignorance, lacking financial integrity, engaging in deception, and being a party to the sham 2010 agreement. The assessment of the difficulty of the litigation was well within the discretion of the trial judge. [16] I am not persuaded that the appellants have raised any issues on appeal warranting leave to appeal a costs order. The application is dismissed. "The Honourable Justice Edelmann"