Court File and Parties

COURT FILE NO.: FS-20-16390 DATE: 20200525 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Hiba Yehia de Jauhari, Applicant AND: Fedi Jauhari Jauhari, Respondent

BEFORE: C. Horkins J.

COUNSEL: Fareen L. Jamal, for the Applicant Elizabeth Mourao, for the Respondent

HEARD at Toronto: May 22, 2020

REASONS FOR DECISION

Overview

[1] On April 22, 2020, I made an ex parte restraining order against the Respondent husband. The key parts of the order are set out below:

2. The Respondent, Fedi Jauhari Jauhari shall be restrained from transferring, assigning, pledging, disposing of, depleting, dissipating, or otherwise dealing with any assets under his control. The Respondent shall preserve such property until further Order of this Court. The sole exception to this order is payments necessary to preserve and maintain the home.

3. The Applicant shall immediately and no later than April 23, 2020 at 4 p.m., serve upon the Respondent, by email, the motion materials that she has sent to this Court for her Motion, the Endorsement and this Order.

4. The Applicant’s motion shall come back before this Court on May 15, 2020 at 10:15 am.

[2] The Applicant served the Respondent with the order and her motion material on April 23, 2020.

[3] The Applicant’s motion returned before the court on May 15, 2020 and again on May 22, 2020. These court attendances have been conducted by telephone conference calls due to the COVID pandemic.

[4] The Respondent has not filed any evidence despite having had an opportunity to do so. The Applicant has filed two lengthy affidavits.

Evidence on the Ex Parte Motion

[5] The Applicant’s first affidavit sets out the events that led to the issuance of the ex parte affidavit. Paras. 22-24 of this affidavit state:

22. In the days following our separation (and shortly before) he has engaged in the following conduct:

    a. The Respondent has already moved over $1M USD from our joint investment account in Lebanon to an account that I believe is in his individual name. The last statement I was Form 14A: Affidavit (General) (page 4) Court File Number dated April 21, 2020 able to access was as of January 2020. The Respondent was moving funds without my knowledge or consent and I believe he continues to do so post-separation. Attached and marked as Exhibit “G” is a copy of the bank statement which demonstrates the movement of funds.

    b. The Respondent also directed the bank officials to refuse anyone other than himself or an authorized designate from removing via cash withdrawal or electronic transfer from those accounts. Previously I had the ability to access the interest income from those accounts and transfer them to our accounts in Canada. I can no longer do this. Our eldest daughter is also currently in Lebanon and she was accessing the accounts for her support; she is also unable to obtain funds from the accounts as of April 8, 2020.

    c. On April 10, 2020 I overheard the Respondent on the telephone directing the bank manager at Byblos Bank in Lebanon to cease all access to our accounts and to transfer a further sum of money into his individual account in Lebanon. I was unable to hear the amount that he sought to transfer as the Respondent indicated that it was the amount he emailed to her along with the expected interest rate.

    d. The Respondent also threatened to have me kicked out of our home, which is rented, and for which rent has been paid in full until December 2020.

    e. The Respondent has received $40,000 from the government relief program (small business loan) for our restaurant. Given that the business account is registered to the Respondent’s name alone (he is the sole shareholder of the corporation that operates as the restaurant), I do not have access to these funds.

    f. On April 19, 2020 I noticed that the Respondent moved the funds from our joint chequing account into our joint savings account. All of our bill payments come out of the chequing account. I believe the Respondent moved the funds on purpose in order to default on the payments as everything we own with the exception of the business is registered under my name in Ontario.

23. On April 20, 2020 I went into the bank to ask them to stop any transfers made by the Respondent but I was told that since the account is in our joint names, they could not prevent the Respondent from removing funds from the account nor could they close it without permission from the both of us. So I simply transferred back into the chequing account sufficient funds for our bill payments. I am concerned that the next time that the Respondent transfers funds it won’t be into our savings account where I can retrieve the funds.

24. On April 21, 2020 I noticed that the $40,000 business loan appeared in our joint account. I immediately went to the bank and had the full sum of this money moved to an account which I opened in my individual name post-separation. I was afraid that the Respondent would transfer the funds out of our account and out of the country for his personal use. I transferred the funds out of the account in order to be able to preserve them and apply them to the business as needed. However, I am afraid that the Respondent will resort to violence once he discovers that the funds have been moved.

After the Ex Parte Order

[6] On April 29, 2020, the Applicant’s counsel received correspondence from Mr. Edgar Ramos advising that he had been retained by the Respondent and requested that the Applicant “vacate the motion”. On April 30, 2020, the Applicant’s counsel responded that she would not consent to vacating the motion and that the actions of the Respondent were done without the Applicant’s consent.

[7] Around May 6, 2020, the Applicant learned that the Respondent had left Canada and was in Lebanon. She also learned that he had used their AMEX business credit card to pay for his travelling expenses.

[8] On May 7, 2020, Mr. Edgar Ramos advised the Applicant’s counsel that he no longer represented the Respondent. Two days before the return of the motion on May 15, 2020, the Respondent retained his current counsel.

[9] On the return of the motion on May 15, 2020, the Respondent was present on the telephone conference call with his counsel. During this conference call motion, the Respondent advised everyone that he had commenced Divorce proceedings in Venezuela and Lebanon. The Applicant has not been served with these proceedings. During the conference call, the Respondent disputed the jurisdiction of this Court to hear the Applicant’s application.

[10] The Respondent’s counsel requested an adjournment of the Applicant’s motion. During the conference call, counsel made submissions on terms of the adjournment. It was agreed that Respondent’s counsel would seek instructions on the requested terms after the conference call hearing and advise the court if an agreement was reached. When this did not happen, I ordered that the motion continue on May 22, 2020 and that each party provide brief submissions of the terms of adjournment.

[11] Upon learning that the Respondent had commenced proceedings in Venezuela and Lebanon and that he disputed the jurisdiction of the Ontario Court, the Applicant served and filed a new notice of motion and affidavit seeking an order that this Court has the jurisdiction to decide the relief that the Applicant seeks in her Application, an order for disclosure from the Respondent, and an expansion of her restraining order as follows:

3. An Order that Ontario has jurisdiction to the issues arising from the parties’ separation including in relation to the children, property and support as well as any other corollary relief sought by either party in these proceedings.

4. In the alternative, an Order preserving Ontario’s jurisdiction to address property claims, spousal support claims, and corollary relief in this matter and that the Respondent, Fedi Jauhari Jauhari, be restrained from taking any further steps in relation to actions commenced in any foreign jurisdiction pending the return of the Motion.

5. An Order that the Respondent produce the following disclosure forthwith:

   a. Individual and/or business accounts in Canada;

   b. Individual accounts and joint accounts (held with third parties) with Byblos Bank in Lebanon and/or any other financial institution in Lebanon; and

   c. Individual accounts and joint accounts (held with third parties) in the United States which may be used for the transfer of funds from Venezuela.

   d. In the event the banks are unable to provide the statements by June 5, 2020, the Respondent will provide letters from the bank(s) in English with an explanation for why the statements have not been provided by June 5, 2020, and advising when they will Form 14B: Motion Form (page 2) Court File Number FS-20-16390 comply and when the statements will be provided.

   e. If the Respondent is unable to obtain bank statements for any joint accounts with the Applicant, the parties through counsel will jointly instruct the banks to provide the statements to both parties, and cooperate in signing any documents to effect this.

   f. A sworn Financial Statement with proof in the form of supporting documentation of all assets and liabilities held at the date of marriage, date of separation and today’s date.

   g. Disclosure regarding any divorce proceedings he has commenced in Venzuela, and/or Lebanon, or any other jurisdiction, including pleadings and/or communications with the relevant Court authority.

   h. A copy of the parties’ religious marriage contract.

Continuation of the Motion - May 22, 2020

[12] The day before the return on the motion, the Respondent filed submissions with a letter attached from “Wassim Maadad Attorney as Law”.

[13] As noted above, the Respondent has not filed any affidavits in response to the Applicant’s motions. His submissions cover an overview of the litigation, particulars of the marriage under “Druze” law, a marriage contract that the parties apparently signed in 1990 and the parties’ assets in Ontario, Venezuela and Lebanon. The submissions and attached letter seek to provide evidence that is not properly before the court.

[14] On May 22, 2020 the motion continued, and the parties and counsel were present. The Respondent’s counsel in Lebanon was also on the conference call with the Respondent and sought to voice his view that this Court does not have jurisdiction. During the conference call motion, it was revealed that the Respondent has not yet commenced his court proceeding in Lebanon because the courts are closed in the COVID pandemic. He intends to do so when the court opens.

Terms of the Adjournment

[15] The Applicant circulated a draft order with the same terms that she requested at the attendance on May 15, 2020.

[16] The parties have agreed to expand the terms of the restraining order, to release an equal sum of money to each party from their joint account, to provide disclosure of the proceedings in Venezuela and Lebanon, to follow a schedule for the exchange of motion material and that the ex parte motion will be heard on June 25, 2020.

[17] The Respondent objects to the remaining terms of the proposed order because he says that the terms would require him to attorn to the jurisdiction of the Ontario Court.

[18] The disputed terms fall into two groups: disclosure and an agreement to stay all foreign court proceedings, pending a decision on the return of the ex parte motion. I find that these are reasonable and necessary terms of the adjournment that the Respondent requests. My reasons follow.

[19] I will deal with the disclosure terms first. The Applicant requests the following:

By June 5, 2020, the Respondent shall provide proof of his compliance with the Order of the Honourable Madam Justice Horkins dated April 22, 2020 including providing bank statements for all accounts held as follows from January 1, 2018 to May 30, 2020:

a. Individual and/or business accounts in Canada;

b. Individual accounts and joint accounts (held with third parties) with Byblos Bank in Lebanon and/or any other financial institution in Lebanon; and

c. Individual accounts and joint accounts (held with third parties) in the United States which may be used for the transfer of funds from Venezuela.

In the event the banks are unable to provide the statements by June 5, 2020, the Respondent will provide letters from the bank(s) in English with an explanation for why the statements have not been provided by June 5, 2020, and advising when they will comply and when the statements will be provided.

If the Applicant is unable to obtain bank statements for any joint accounts with the Respondent, the parties through counsel will jointly instruct the banks to provide the statements to both parties and cooperate in signing any documents to effect this.

[20] The Respondent argues that the disclosure should only be required if the Ontario Court has jurisdiction. Since he disputes jurisdiction, he states that providing the disclosure would amount to attornment to the jurisdiction of the Ontario Court.

[21] Based on the claims advanced in the Application and the undisputed evidence reviewed below, this Court has jurisdiction under s. 3 of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) to hear this Application. To date, the Respondent has offered no evidence to prove otherwise. If the Respondent disputes this jurisdiction, it is his obligation to provide evidence to support his position when the motion returns on June 25. It is not the Applicant’s obligation to bring the jurisdiction issue to the Court by filing her own motion. Unless the Respondent succeeds in establishing that jurisdiction lies elsewhere, this Application is proceeding.

[22] The parties are Lebanese nationals. For the majority of their 30-year marriage, they lived in Venezuela. They have significant assets in Venezuela including land and four pharmacies, major investment accounts which generate significant interest income in Lebanon, with values in the millions of US dollars, as well as assets in Ontario including a restaurant called Me Va Me Kitchen in downtown Toronto.

[23] In early 2012, at the outset of the economic crisis in Venezuela, and after the Respondent had been threatened for the second time and their home ransacked by thieves, the parties decided to migrate to Canada for the safety and welfare of their children.

[24] The Applicant has resided in Ontario with the children since 2012. The Respondent moved to Ontario permanently (previously he would visit for months at a time) in November 2018.

[25] The Applicant is a permanent resident of Canada. She sponsored the younger two daughters and the Respondent under the family class and their application remains pending. The older two children have permanent resident status.

[26] The family has never lived together in Lebanon. The children have attended school in Ontario. In addition to their restaurant in Toronto, the parties have joint bank accounts and vehicles in Toronto and rental accommodation.

[27] Based on the Applicant’s evidence, I agree that her requested terms are reasonable and necessary. The disclosure terms relate to the Respondent’s compliance with the ex parte order. The Applicant does not have a bank card to access the joint accounts outside of Canada, she does not know where the Respondent moved the $1million to and has no ability to access accounts that he holds alone or with others.

[28] The terms are necessary to demonstrate compliance with the ex parte court order, which is a fundamental term of the adjournment. The Applicant is understandably concerned about the family assets. Since the Respondent was served, he has left Canada and filed no responding material despite having been served on April 23, 2020. The Applicant is concerned that the Respondent’s requests for adjournments are simply a strategic ploy on his part to secure more time to arrange his financial interests to the detriment of the Applicant.

[29] During the teleconference on May 15, 2020, the Respondent said that he had moved funds two years prior. For this reason, the Applicant states that disclosure from January 1, 2018 to date is appropriate and necessary. The Respondent has several bank accounts that he owns solely or with other third-party family members such as his brother. As outlined in exhibits to the Applicant’s affidavit, bank representatives in Lebanon are available to assist, despite the COVID-19 pandemic.

[30] I turn to the second contested term; that neither party commence any further divorce proceedings in any other jurisdiction and that the Respondent not take any further steps in the proceedings he has commenced, until return of this motion. The Applicant requests this term, given what will be a 2-month delay in the hearing of her motion. She is again concerned about the Respondent’s actions and whether he is using the delay to secure an advantage against her in a foreign jurisdiction. Given that the Court has no evidence from the Respondent, the Applicant’s concern is understandable and justified.

[31] In summary, the terms of the adjournment that the Applicant requests are allowed. The orders (including those on consent) are as follows:

1. On a without prejudice basis, the Order of the Honourable Madam Justice Horkins dated April 22, 2020, shall be extended with the following orders.

2. The Respondent, Fedi Jauhari Jauhari, shall continue to be restrained from transferring, assigning, pledging, disposing of, depleting, dissipating, encumbering and/or pledging the credit of the Applicant, Hiba Yehia de Jauhari, or otherwise dealing with any assets under his control. The Respondent shall preserve such property until further Order of this Court. This includes, but is not limited to, any account that is sole and/or joint with third parties. The sole exception to this term is with regard to any payments necessary to preserve and maintain the home and the parties’ children.

3. The Applicant, Hiba Yehia de Jauhari, shall be restrained from transferring, assigning, pledging, disposing of, depleting, dissipating, encumbering and/or pledging the credit of the Respondent, Fedi Jauhari Jauhari, or otherwise dealing with any assets under her control.

4. This order is without prejudice to the Respondent’s position on jurisdiction and his intention to raise the issue of jurisdiction on the return of the motion.

5. The amount of $10,000 shall be released to the Applicant, and the amount of $10,000 shall be released to the Respondent, from the parties’ joint accounts, in a manner to be determined by counsel, pending return of the motion. This is on a temporary, without prejudice basis, pending further Court order.

6. The motion which was originally scheduled for May 15, 2020, shall be adjourned to June 25, before Madam Justice Horkins. The Respondent shall serve and file his materials by June 16, 2020 at 4:00 p.m. Any reply materials will be served and filed by June 22, 2020 at 10:00 a.m. All materials will be filed by email pursuant to the Practice Directions/Notices to the Profession and filed with the Court by both pdf and Word document. Factums shall be hyperlinked.

7. By June 5, 2020, the Respondent shall provide proof of his compliance with the Orders of the Honourable Madam Justice Horkins dated April 22, 2020 and May 25, 2020, including providing bank statements for all accounts held as follows from January 1, 2018 to May 30, 2020:

   a. Individual and/or business accounts in Canada;

   b. Individual accounts and joint accounts (held with third parties) with Byblos Bank in Lebanon and/or any other financial institution in Lebanon; and

   c. Individual accounts and joint accounts (held with third parties) in the United States which may be used for the transfer of funds from Venezuela.

8. In the event the banks are unable to provide the statements by June 5, 2020, the Respondent will request and provide letters from the bank(s) in English with an explanation for why the statements have not been provided by June 5, 2020 and advising when they will comply and when the statements will be provided.

9. If the Applicant is unable to obtain bank statements for any joint accounts with the Respondent, the parties through counsel will jointly instruct the banks to provide the statements to both parties and cooperate in signing any documents to effect this.

10. The Respondent shall produce disclosure to the Applicant about any divorce proceedings he has commenced in Venezuela, and/or Lebanon, as soon as Respondent’s counsel receives it.

11. Neither party shall commence divorce proceedings in any other jurisdiction until the return of this motion. The Respondent shall not take any further steps in any foreign courts until the return of the motion. Any actions in foreign courts shall be held in abeyance and stayed until the return of the Applicant’s motion.

12. Costs of the April 22, May 15 and May 22, 2020 attendances are reserved to the return of the motion.

C. Horkins Date: May 25, 2020