Court File and Parties

COURT OF APPEAL FOR ONTARIO

CITATION: Nashid v. Michael, 2013 ONCA 638

DATE: 20131022

DOCKET: C57046

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Nabila Nashid

Appellant (Applicant)

and

Waheed Michael

Respondent

Granville N. Cadogan, for the appellant

Avra Rosen, for the respondent

Heard: October 15, 2013

On appeal from the order of Justice K.V.W. Whitaker of the Superior Court of Justice, dated April 5, 2013.

ENDORSEMENT

[1] The appellant appeals from the order of Whitaker J. of the Superior Court of Justice (the “Motion Judge”), dated April 5, 2013, dismissing her motion to set aside the judgment of Kruzick J. of the Superior Court of Justice (the “Trial Judge”), dated May 18, 2012, in an undefended matrimonial trial (the “Matrimonial Trial”).

[2] The appellant raises four grounds of appeal. She argues that: (1) after she was found in contempt of various court orders by order of Herman J. of the Superior Court of Justice, dated April 5, 2011, (the “Contempt Order”), she was denied procedural fairness because the Matrimonial Trial proceeded without notice to her and in her absence; (2) she has, in fact, purged her contempt; (3) the Matrimonial Trial proceeded without disclosure to the Trial Judge of what the appellant describes as her then “pending” motion to set aside the order of Herman J., dated February 3, 2012, striking the appellant’s pleadings in the matrimonial litigation (the “Strike Order”) due to the appellant’s continuing contempt of various court disclosure orders; and (4) the respondent failed to make full and frank disclosure of his financial affairs and of the appellant’s allegedly pending motion to the Trial Judge.

[3] We conclude that these grounds of appeal must be rejected and the appeal dismissed.

[4] The litigation between the parties has been acrimonious and protracted. It has resulted in numerous court motions and multiple court orders against the appellant, the full details of which need not be set out in these reasons. The following aspects of the litigation history are particularly pertinent:

1. by three separate court orders dated April 7, 2011, May 26, 2011 and June 28, 2011 (two of which were on consent), Herman J. directed the appellant to make various types of financial disclosure and effect various property transfers (the “Disclosure Orders”);

2. by the time of the hearing of the contempt motion on July 28, 2011, the appellant had failed to fully comply with the Disclosure Orders. She had also failed to pay several outstanding costs orders against her, then totalling $6,500;

3. the appellant’s continuing non-compliance with her court-ordered obligations led to the Contempt Order. In her reasons for the Contempt Order, Herman J. concluded that the appellant’s acts of non-compliance were deliberate and wilful, not trivial and involved significant matters in the litigation;

4. nonetheless, Herman J. provided the appellant with one final opportunity to comply with the Disclosure Orders and purge her contempt, by August 31, 2011. The appellant failed to do so without adequate excuse and also failed to attend multiple court hearings related to the matter. The Strike Order followed on February 3, 2012;

5. under the Strike Order: (1) the respondent was granted leave to proceed with an undefended trial after March 31, 2012; and (2) the appellant was granted leave, on terms, to apply to the court, prior to March 31, 2012, to set aside the Strike Order;

6. the appellant appealed the Contempt Order to this court. Her appeal was adjourned, at her own request. This court ordered that after March 31, 2012 (the outside date by which the appellant was to purge her contempt and move to set aside the Strike Order), the appellant could bring her appeal back on by May 31, 2012. Costs were awarded in favour of the respondent;

7. the appellant attempted to schedule a motion to set aside the Strike Order before March 31, 2012. However, she was unable to set the motion down because the court file had gone missing;

8. counsel for the respondent did not hold the appellant to the March 31st date. She agreed to two subsequent dates for the motion and later indicated her availability on a third date – May 17, 2012 – to argue the motion;

9. no scheduled motion proceeded on any of these dates. The appellant failed to file a factum for the motion or to serve and file a return of motion in accordance with the Family Law Rules;

10. nor did the appellant otherwise purge her contempt by fully complying with the Disclosure Orders. She also did not pay the outstanding costs orders; and

11. in the meantime, the Family Court offices scheduled a commencement date – May 14, 2012 – for the undefended Matrimonial Trial. The appellant’s pleadings not having been reinstated and her contempt continuing, the undefended Matrimonial Trial proceeded on May 14 and 15, 2012 in accordance with the Strike Order.

[5] Against this backdrop, the appellant argues that she was denied procedural fairness because the Matrimonial Trial proceeded without notice to her and in her absence. She also asserts that the respondent failed to inform the Trial Judge of her “pending” motion to set aside the Strike Order and purge her contempt. Further, she alleges that the respondent failed to make proper financial disclosure at the Matrimonial Trial.

[6] On this record, these claims are unsustainable.

[7] The respondent was entitled under the terms of the Strike Order and Rule 10(5) of the Family Law Rules to proceed with the Matrimonial Trial after March 31, 2012 if the appellant failed to purge her contempt and obtain an order reinstating her pleadings by that date. Neither event occurred, notwithstanding the appellant’s numerous opportunities to meet the terms of the Strike Order.

[8] Indeed, on May 11, 2012 (the Friday before the commencement of the Matrimonial Trial), the appellant remained in contempt, had not fully satisfied the Disclosure Orders, had not paid all the outstanding costs orders against her, and had not obtained a court-ordered reinstatement of her pleadings.

[9] Moreover, contrary to the appellant’s submission, by the time the Matrimonial Trial commenced on May 14, 2012, there was no “pending” motion to set aside the Strike Order. The appellant conceded before this court, through counsel, that no properly served and filed return of her intended March 2012 motion to set aside the Strike Order had been scheduled.

[10] We note that almost one year later, these acts of non-compliance continued. In his reasons dated April 2, 2013, the Motion Judge held:

(1) the appellant had not “provided the court ordered disclosures”;

(2) costs orders remained unpaid;

(3) the appellant’s obligations remained outstanding; and

(4) the appellant “failed to move with dispatch within the time frame set out by Justice Herman in the [Strike Order]”.

[11] These factual findings were open to the Motion Judge on the record. On the record now before this court, there is no basis to conclude that any of these findings are tainted by reversible error.

[12] The appellant’s complaint of the respondent’s alleged inadequate or incomplete disclosure of his financial affairs before the Trial Judge must also be rejected. The appellant has not provided a transcript of the Matrimonial Trial; nor, as we have said, was she in attendance at that trial, during which the oral evidence of the respondent was heard over two days.

[13] In these circumstances, this court is unable to give effect to this claim. The Trial Judge, having considered the evidence at the Matrimonial Trial, was satisfied with and accepted the respondent’s evidence, indicating that he was “not only fair but at times fair to his detriment” in his testimony at trial.

[14] The appeal is dismissed. The respondent is entitled to his costs of the appeal, fixed in the total amount of $8,500.00, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”

“M. Tulloch J.A.”