Court Information

Court of Appeal for Ontario

Date: 2018-11-28

Docket: M49810 (C65715)

Motion Judge: Brown J.A.

Parties

Between

Javed Siddiqui Applicant (Appellant)

and

Tabassum Anwar Respondent (Respondent)

Counsel

Nadine Barmania, for the appellant

Daniel W. Simard, for the respondent

Heard: November 23, 2018

Reasons for Decision

Overview

[1] In this matrimonial litigation, the respondent wife, Tabassum Anwar, moves for an order staying the appeal of the appellant husband, Javed Siddiqui, until he pays her the sum of $334,076.84, plus interest, as required by the July 30, 2018 order of Nordheimer J.A., together with an order granting her leave to move before a panel to quash the appeal in the event such payment is not made within 30 days.

History of the Litigation

[2] Following a five-day trial, by reasons released January 9, 2018 (2018 ONSC 219), LeMay J. ordered Mr. Siddiqui to pay Ms. Anwar: monthly child support of $1,028; an equalization payment of $411,970.57; certain rent; monthly spousal support of $445; and, arrears of spousal support of $12,336. Ms. Anwar was ordered to pay Mr. Siddiqui retroactive child support of $57,876 (the "Final Order").

[3] By reasons released May 24, 2018, LeMay J. adjusted certain amounts in the Final Order, so that: (i) Mr. Siddiqui owed Ms. Anwar an equalization payment of $432,348.23, spousal support arrears of $10,099.01, together with net retroactive rents on a property of $80,518.04; and (ii) Ms. Anwar owed Mr. Siddiqui retroactive support of $47,876.

[4] Mr. Siddiqui served a June 12, 2018 notice of appeal seeking to reduce his obligations under the Final Order and increase those of Ms. Anwar. This court refused to accept the notice of appeal on the basis that it was not filed within the time prescribed by the Rules of Civil Procedure.

The Order of Nordheimer J.A.

[5] Mr. Siddiqui thereupon brought a motion for an extension of time to file his notice of appeal. Ms. Anwar opposed the motion and, in turn, moved for an order lifting the automatic stay of certain provisions in the Final Order.

[6] In one of the affidavits in support of his motion, Mr. Siddiqui acknowledged that at trial he had submitted that he owed Ms. Anwar an equalization payment of $334,076. He also conceded that if he succeeded with all his arguments on appeal, he still would owe Ms. Anwar $218,200. He offered to transfer his interest in two properties jointly owned with Ms. Anwar in Qatar and India in partial satisfaction of his obligations under the Final Order. He valued those interests at $390,500. (On this motion, Ms. Anwar disputes that valuation, putting the value of his interest closer to $247,000.)

[7] In that motion affidavit, Mr. Siddiqui also acknowledged that he had active businesses in Canada and was in the process of acquiring his fifth daycare operation. However, he described his Canadian businesses as "heavily leveraged". His "bottom line" was set out in paras. 46-48 of his July 23, 2018 affidavit:

I am not able to make the payment proposed by [Ms. Anwar] from funds in Canada. I am fully invested in my businesses, which I hope will stabilize and grow over the next few years. The stable businesses will provide economic security for my children. An order for immediate payment of $334,000 would be punitive and would likely result in the sale of my businesses.

I am able to make the payment by way of property transfers as proposed.

In the alternative, I propose a partial payment of the equalization in the amount of $100,000.00 payable 60 days from the order. I need about 60 days to arrange financing.

[8] The motions came on before Nordheimer J.A. who, by order dated July 30, 2018 (the "Order"), extended the time to file the notice of appeal, ordered the continued payment of child and spousal support, and ordered Mr. Siddiqui to pay Ms. Anwar "the equalization amount as agreed to in the amount of $334,076.84 within 60 days of this order" – i.e. by September 30, 2018.

[9] In his endorsement, Nordheimer J.A. explained the basis for ordering Mr. Siddiqui to pay the equalization payment of $334,076.84:

In terms of the cross-motion, the appellant [Mr. Siddiqui] accepts that even if he is successful on the appeal, he will owe the respondent [Ms. Anwar] $218,200 as an equalization payment. However, he also earlier offered to transfer properties to the respondent in which he valued his interest at $390,500 suggesting that he views his real liability to the respondent as much higher.

The respondent's cross-motion sought to lift the stay to the extent of requiring the appellant to pay $334,076.84. In the circumstances I do not see any reason not to do so. There is no prejudice to the appellant from granting that order. Even if his appeal is entirely successful [and] the equalization payment is reduced below the $334,000 amount, that can be recovered by the appellant.

The parties have also agreed that the $334,076.84 amount will be paid by the appellant within 60 days.

[10] Mr. Siddiqui did not seek to review the Order. Nor did he pay the amount ordered by Nordheimer J.A by September 30, 2018. To date, he has not made any payment against that Order. Mr. Siddiqui is in clear breach of the Order.

[11] Mr. Siddiqui perfected his appeal on November 5, 2018. A hearing date for the appeal has not yet been assigned or sought.

Analysis

[12] In the evidence he filed on this motion, Mr. Siddiqui did not explain why he failed to make a partial payment against the amount ordered. Specifically, he did not explain why he was not able to arrange financing for at least a $100,000 payment, as he had represented he could do in his affidavit before Nordheimer J.A.

[13] On this motion, Mr. Siddiqui submits that he should be afforded time to sell the joint assets in Qatar and India. To that end, while he consents to the stay of his appeal sought by Ms. Anwar, he does not consent to her request for leave to move to quash or dismiss the appeal if he does not satisfy the Order within 30 days. Mr. Siddiqui would consent to such relief if he was given a further 90 days to satisfy the Order.

[14] Mr. Siddiqui has not filed any type of financial statement to enable me to assess the true state of his finances. He simply repeats – in some detail – the position he advanced before Nordheimer J.A.: he prefers to look to the eventual proceeds from the sale of the joint Qatar and Indian assets to satisfy his admitted indebtedness to Ms. Anwar; and that would leave him free to develop his Canadian assets as he sees fit, without interference from the admitted obligations arising from the Final Order. As he deposed on this motion: "I do not believe that it is beneficial in the long term to sell my business to pay Ms. Anwar." In other words, Mr. Siddiqui quite candidly states he prefers the interests of his Canadian businesses over his obligations to Ms. Anwar fixed by the Order of this court.

[15] The absence of any financial information from Mr. Siddiqui about his net worth and the net value of his Canadian business assets is telling. They exist, but he will not disclose what they are worth. I therefore place no stock in his submission that he should be given a further 90 days to satisfy the Order. Also, I have no doubt that if the Qatar and Indian properties are not sold within 90 days, Mr. Siddiqui simply will ask for a further extension of time. As a result, I can only conclude that Mr. Siddiqui has quite deliberately and wilfully decided to ignore the Order. If that results in a stay of his appeal, he is not concerned. That will enable him to delay even further meeting his obligations under the Order, which I conclude is his paramount concern. In the meantime, he continues with a motion to change custody and access proceedings in the Superior Court of Justice.

[16] In those circumstances, I conclude it is fair and just to stay Mr. Siddiqui's appeal. The time for Ms. Anwar to respond to the perfected appeal is suspended as of the date of these reasons.

[17] Based on the evidence before me, I see no reason why Ms. Anwar needs to wait 30 days before being able to move to quash or dismiss the appeal by reason of Mr. Siddiqui's breach of the Order. I am satisfied, based on Mr. Siddiqui's own evidence, that he will not pay any part of the Order within the next 30 days. I find it significant that whereas before Nordheimer J.A he deposed that he could seek financing to pay part of the Order, Mr. Siddiqui made no such offer in his present materials.

[18] His position is that unless and until the joint foreign assets are sold he will not pay. The evidence offers no probability that those assets will be sold within 30 or 90 days. Based on the affidavit Mr. Siddiqui filed at the motion hearing, no binding agreement of purchase and sale exists for either property. At most, there is some form of email offer for the Indian asset that contemplates "an agreement to sell will be signed around 15th Dec'2018".

[19] Consequently, I grant Ms. Anwar leave to move forthwith, if she so chooses, to quash or dismiss the appeal for non-compliance with the Order: Dickie v. Dickie 2007 SCC 8, [2007] 1 S.C.R. 346; Cosentino v. Cosentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at paras. 8 and 11. It will be up to the panel hearing the motion to determine whether, in the circumstances then existing, Mr. Siddiqui's appeal should be quashed or dismissed.

Disposition

[20] For the reasons set out above, I stay Mr. Siddiqui's appeal No. C65715 as of the date of these reasons. I grant Ms. Anwar leave, if required, to move before a panel to quash or dismiss the appeal.

[21] Ms. Anwar seeks costs of $7,500 of this motion. Mr. Siddiqui submits there should be no costs.

[22] I conclude Ms. Anwar is entitled to costs. However, she failed to file a bill of costs. As a result, I cannot assess the reasonableness of her submitted figure of $7,500. The motion materials for this motion were modest. Accordingly, I award Ms. Anwar fair and reasonable partial indemnity costs fixed in the amount of $5,000, payable forthwith by Mr. Siddiqui.

"David Brown J.A."