CITATION: Hafez v. Ghafeer, 2009 ONCA 747
DATE: 20091028
DOCKET: C50142
COURT OF APPEAL FOR ONTARIO
Doherty, Goudge and LaForme JJ.A.
BETWEEN
Sherine Mahmoud Ahmed Hafez
Applicant (Respondent)
and
Mohamed Khalid Haridy Ghafeer
Respondent (Appellant)
Frances M. Wood, for the appellant
Judith Holzman, for the respondent
Heard and orally released: October 15, 2009
On appeal from the order of Justice L-L. Snowie of the Superior Court of Justice dated February 3, 2009.
ENDORSEMENT
The Fresh Evidence Motion
[1] The proposed fresh evidence concerns the translation of a document that was before the motion judge. That document was clearly important to one facet of the motion. We now have competing interpretations of that document placed before us on appeal. In our view, this is a matter that could have and should have been addressed by the appellant on the motion if he wished to challenge the version of the document put forward by the respondent on the motion. The evidence will not be admitted on appeal.
The Appeal Itself
[2] We required submissions from the respondent only in respect of certain specific terms of the motion judge’s orders. The motion judge made two orders. We will refer to one as the contempt order and the other as the order on the second motion.
The Contempt Order
(a) Re the finding in para. 2 of that order
[3] The motion judge found that the appellant was in breach of paras. 6, 8, 10, 14 and 15 of the order of Clark J. The respondent had not sought a finding that the appellant was in breach of paras. 14 and 15. We see no evidence in the motion record to support a finding of any breach of those terms. We cannot agree with the submission by counsel for the respondent that the failure to provide the Talaq as required by para. 8 of Justice Clark’s order constituted a breach of paras. 16 and 17. Those two paragraphs are not connected by their language to the granting of the Talaq. We note that Justice Clark’s order was on consent and presumably the language of his order is the language used by the party in framing the consent order. Paragraph 2 should be varied to exclude reference to paras. 14 and 15 of Clark J.’s order.
The Order on the Second Motion
(b) Re paras. 16 and 17 of the order made on the second motion
[4] Paragraph 16 is a restraining order and para. 17 is a child transfer order. Both are punitive insofar as they impact the appellant. Neither order was requested. There was no evidence before the motion judge to support either order. In particular, there was no evidence that the appellant posed a threat to anyone’s safety. Indeed, we were told in the course of oral argument that the parties have reached an agreement with respect to visitation and that the agreement is functioning. Paragraphs 16 and 17 should be struck from the order.
(c) Re para. 13
[5] Under the terms of para. 13, a real estate lawyer is holding some $104,000, the appellant’s share of the proceeds of the sale of the matrimonial home. The $104,000 is the net amount after certain deductions set out in para. 13, including $30,000 payable for child support under the order of Clark J. The $104,000 is being held pursuant to para. 13 as security for any child support order that may be made against the appellant in the future. Under the terms of the consent order of Clark J., no child support order can be made before December 2011. The consent order does not indicate that any child support order will necessarily ever be made against the appellant.
[6] The respondent did not seek an order restricting the appellant’s access to those funds except as part of her contempt motion. That motion targeted the appellant’s failure to provide the Talaq as required. The Talaq has now been provided. We do not think that the appellant had any notice that his share of the proceeds of the sale of the house could be tied up indefinitely on the basis that he could not be relied on to make child support payments if any support order were to be made against him after December 2011.
[7] There is no evidence to support the inference that if a child support order was made against the appellant, he would not comply. In fact, there is no basis on this record to determine whether any child support order will ever be made against the appellant. We are satisfied that the part of para. 13 of the order of the motion judge requiring that the appellant’s share of the proceeds of the sale of the house be held by the real estate lawyer as security for further child support payments must be struck. Those proceeds should be paid to the appellant subject to the deductions set out below in para. 9 of this endorsement.
Costs
[8] The appellant has had some, but limited success. In the circumstances, there should be no order as to costs on the appeal and the costs on the motion should be left as ordered by the motion judge.
[9] Counsel made further submissions after we had delivered our endorsement. We were advised that the costs order made by Justice Snowie on the motion below had not been paid and we were further advised that the differential referred to in para. 13 of her order had not been paid. Counsel for the respondent advises that the differential is $5,000. The costs order made by Snowie J. is in the amount of $5,339.51. We are satisfied that both of those amounts can be paid out of the amount being held in trust by the real estate lawyer, that is the $104,000.
“Doherty J.A.”
“S.T. Goudge J.A.”
“H.S LaForme J.A.”