Case information

Courts — Jurisdiction — Functus officio doctrine — Judgment issues on consent — Party to settlement agreement admits to fraud in another proceeding — Judgment set aside for fraud — Whether functus officio doctrine operates differently where order to be set aside is issued on consent or issued after trial — Whether proper method for impeaching judgment for fraud is commencement of new action — Nature of test for determining whether fraud has been proven to level required to set aside judgment — Nature of test for determining whether person’s rights are impacted by request to set aside order and person is therefore entitled to notice of proceeding.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In the context of family law proceedings, a consent order was made by Skolrood J. It was founded on a settlement agreement between the respondents Mr. Taherkhani and Ms. Este. Some time after the consent order was granted, in a civil proceeding, Ms. Este said that, on the day Mr. Taherkhani filed the family law proceedings, she transferred $3.4 million from one of her bank accounts to an account she held with HSBC: 2017 BCSC 878. Shortly thereafter, she said that her mother, the applicant Ms. Esteghamat-Ardakani, was added as a joint holder of the account, and, later, Ms. Este was removed as a holder of the account, leaving it solely in Ms. Esteghamat-Ardakani’s name. In her financial disclosures in the family law action, Ms. Este did not declare the HSBC account. She also declared that three properties she owned in West Vancouver were held in trust for Ms. Esteghamat-Ardakani. Later, in a civil action between Ms. Este, her mother, her brother (Francis Este), and others, Ms. Este claimed that she had always been the only beneficial owner of the West Vancouver properties and the money in the HSBC bank account. She claimed that she had produced fake, back-dated trust declarations to hide the true ownership of the assets in the family law action. The civil action was dismissed by Funt J.: 2017 BCSC 878. In dismissing the action, Funt J. stated that Ms. Este had deceived Mr. Taherkhani, counsel, and the court, and had used the court and its processes to perpetrate a fraud to gain financial advantage in the divorce proceedings.

Pearlman J. granted the divorce requested by Mr. Taherkhani and Ms. Este. In addition, he rescinded the settlement agreement in the family law proceeding, and set aside paras. 1-3 of the consent order relating to the settlement agreement. He also ordered that the family law claim was to proceed as if no settlement had been reached and no court order for corollary relief had been made. Mr. Taherkhani was added as a respondent in the appeal of Funt J.’s order. When the appeal of Funt J.’s order was heard, Mr. Taherkhani and Ms. Este both supported the appeal, but it was dismissed: 2018 BCCA 290. An application to add Ms. Esteghamat-Ardakani and Mr. Este as respondents in the family law action and to amend the Notice of Family Claim was granted. An application to set aside portions of Pearlman J.’s order was dismissed, and an application to stay the family law action or to set aside the order adding the parties in the family law action were both dismissed, and Mr. Taherkhani’s action in fraud was stayed with leave to apply to have the stay lifted on certain conditions. The appeal of all of the above orders was dismissed.

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