Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210708 DOCKET: C69391

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Maria Zia Applicant (Respondent)

and

Zafar Ahmad Respondent (Appellant)

Counsel: Gary S. Joseph, for the appellant Michael H. Tweyman, for the respondent

Heard: In writing

On appeal from the order of Justice Cheryl Lafrenière of the Superior Court of Justice, dated October 22, 2020.

Reasons for Decision

[1] The appellant, Zafar Ahmad, appeals from the dismissal of his motion under r. 25(19) of the Family Law Rules, O. Reg. 114/99, to set aside a default order granted on January 17, 2020. The default order directed, among other things, that Mr. Ahmad pay spousal support to the respondent, Maria Zia, that he designate Ms. Zia as a beneficiary on his life insurance for as long as he was obligated to pay spousal support, and that he make an equalization payment to her.

[2] The parties were married in 2009 and separated in 2015. In 2016, they participated in an arbitration conducted through their Ahmadiyya Muslim community; an award was made on August 13, 2016 (the “Award”). The Award stated that it was addressing four issues: divorce and habitation rights, dower money, possession of certain household items, and possession of certain jewellery. None of the issues decided were described as equalization of net family property or as support. A space on the Award form entitled “spousal support” was crossed off with the notation “N/A”. An issue concerning the matrimonial home was not decided; the Award instead advised the parties to “consult court because of legal implications of subject matter”.

[3] Ms. Zia commenced her court application for support and an equalization payment on March 6, 2018. She served the application on Mr. Ahmad in April 2018, and then served an amended version of it on him in June 2018. Mr. Ahmad did not respond to either service. He was noted in default in February 2019. He took no steps up to and including the making of the default order.

[4] Mr. Ahmad does not challenge the test that the motion judge applied, under which the following factors are considered:

a) whether the moving party moved promptly, after learning of the order, to have it set aside;

b) whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules;

c) whether the moving party has established an arguable case on the merits;

d) whether the moving party is acting in good faith and with “clean hands";

e) the prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and,

f) whether, in the final analysis, the interests of justice favour setting aside the judgment.

[5] Mr. Ahmad submits that the motion judge erred by failing to appreciate that the default order was made without jurisdiction because the parties had previously submitted their dispute to an arbitration, or in failing to appreciate that the Award gave rise to a res judicata defence to Ms. Zia’s claims.

[6] We do not accept these arguments.

[7] The default order was not made without jurisdiction simply because the parties had participated in an arbitration. Mr. Ahmad does not point to any evidence that the parties had agreed that they would submit, to arbitration, claims for support, insurance to secure spousal support, or equalization. Nor does he identify any evidence that the parties made that agreement after their dispute arose or that the arbitration about such matters was to be conducted exclusively under Ontario law or the law of another province of Canada – preconditions to any such agreement being valid or any such arbitration having legal effect: Family Law Act, R.S.O. 1990, c. F.3, ss. 59.2(1)(b) and 59.4. In any event, an arbitration agreement does not preclude the court from exercising jurisdiction if a motion to stay the court proceeding has not been brought and granted: Arbitration Act, 1991, S.O. 1991, c. 17, s. 7. Here, there was no motion for a stay.

[8] The argument that the Award bars Ms. Zia’s claims based on the doctrine of res judicata is also without substance. For that doctrine to apply, the issues that were, or could have been, dealt with in the arbitration would have to be the same as those that were the subject of the court proceeding: Rathwell v. Hershey Canada Inc. (2001), 152 O.A.C. 1 (CA), at para. 5, leave to appeal refused, 164 O.A.C. 279 (note) (SCC). The Award does not deal with equalization, support, or insurance to secure support; nor, for the reasons above, is there any evidence that it could, with legal effect, have dealt with those issues.

[9] Mr. Ahmad also submits that the motion judge failed to take into account that he was self-represented or consider his evidence about his ability to make support payments or the net family property calculations. He argues that the motion judge should not have decided the matter without viva voce evidence, and that her reasons are inadequate.

[10] We reject these submissions. The motion judge was clearly aware of the fact that Mr. Ahmad was self-represented. She considered his submissions and the evidence he put forward. Her findings of fact arising from her assessment of that evidence are entitled to deference, as is her exercise of discretion as to whether to set aside the default order.

[11] The motion judge concluded that although Mr. Ahmad had acted promptly once he became aware of the default order, this was the only factor of the test that he satisfied. She found that he failed to provide an adequate explanation for his failure to respond to the application for more than 18 months after he was served, did not establish an arguable case on the merits, provided no financial disclosure, and lacked clean hands. She was not required to conduct a viva voce hearing. Her reasons are not inadequate; they permit meaningful appellate review.

[12] The appeal is dismissed. If the parties are unable to agree on costs, they may make submissions in writing, not exceeding 2 pages each, within 10 days of the release of these reasons.

“David Brown J.A.”

“L.B. Roberts J.A.”

“B. Zarnett J.A.”