Court of Appeal for Ontario

Date: 2018-12-11

Docket: C63096 and C64255

Judges: Juriansz, Brown and Roberts JJ.A.

Between

Aysar Monthar Sharif Al-Fadhly Applicant (Respondent)

and

Zuhair Ahmed SaJeh Al-Pachachi Respondent (Appellant)

Counsel

Tiffani Frederick, for the appellant

Peter M. Callahan, for the respondent

Heard: December 3, 2018

On appeal from: the order of Justice David Price of the Superior Court of Justice, dated November 28, 2016, and the order of Justice Gisele M. Miller of the Superior Court of Justice, dated August 8, 2017.

Reasons for Decision

[1] File C63096 is an appeal of the order of Price J., dated November 28, 2016, striking the appellant's pleadings. The appeal is moot. That order was stayed by the order of Pepall J.A. dated April 12, 2017, the trial took place while the order was stayed and the appellant participated in the trial on the basis of his pleadings.

[2] The motion judge found the appellant had failed to obey an order of the court. As a result, he was entitled by Family Law Rule 1(8)(e) to dismiss the appellant's counter-motion to strike the respondent's pleading for non-compliance with an earlier disclosure order dated July 26, 2016. In any event, the affidavit evidence before the motion judge established that the respondent had complied with the earlier order.

[3] The appeal is dismissed.

[4] In appeal C64255, the appellant appeals from the final order of Miller J. dated August 8, 2017 after a trial heard April 19-28, 2017.

[5] The trial judge did not err by declining to adjourn the trial until the appellant's appeal of the November 28, 2016 order striking his pleadings was determined. The order striking his pleadings had been stayed by Pepall J.A., who refused to adjourn the trial, emphasized that the appellant was still required to comply with the production orders made against him, and noted that in the absence of full disclosure by the applicant, it would be open to the trial judge to draw an adverse inference against him.

[6] We do not accept the appellant's submissions that issue estoppel prevented the trial judge from finding that the appellant had failed to make proper disclosure, as Price J. had already made that finding earlier on Nov. 28, 2016. The question before Price J., whether the appellant had made proper disclosure by November 28, 2016, is different. The question before the trial judge was whether the appellant had made proper disclosure by the time of trial. The trial judge did review the appellant's history of noncompliance with the earlier production orders before addressing his failure to make disclosure before trial. The trial judge also referred to his attempts to tender "new" documents into evidence.

[7] Even if issue estoppel applied, the result would not have changed for the appellant because the trial judge would have been bound to proceed on the basis of Price J.'s earlier finding the appellant had failed to make disclosure.

[8] The appellant applied to admit fresh evidence. Tab J of the material tendered is not fresh evidence, but a portion of transcript that is properly part of the appeal record. The appellant could have obtained the remaining material before trial by exercising due diligence and its admission is refused.

[9] The appellant submitted that he was prejudiced by the admission into evidence of an email dated November 17, 2014, in which the trial judge found he indicated his intention to drain his accounts of any liquid cash in anticipation of the divorce process. Though the email was introduced during the re-examination of the respondent, the trial judge allowed the appellant's trial counsel to conduct a supplemental cross-examination of her regarding the email. No objection was made to the email's admission into evidence. When the appellant testified, his counsel put the email to him and asked questions about it. We are not persuaded that any unfairness was occasioned by the admission of the email.

[10] The appellant takes issue with the trial judge's award of an unequal division of family property, 75% in favour of the respondent. He submits the trial judge had an inadequate basis to find unconscionability. We do not agree. To meet the high standard of unconscionability contemplated in Ward v. Ward, 2012 ONCA 462, the trial judge relied on the combination of the appellant's failure to make proper disclosure before trial, the evidence of his stated intent to divert assets prior to separation, and his actions in actually diverting assets after separation, including a concocted loan scheme with his brother. We see no error.

[11] The appellant submitted that in effecting the unequal division of family property, the trial judge exceeded his jurisdiction by re-establishing a higher net family property for the appellant. She provided the court with an illustrative net property statement showing that the appellant's net family property of $613,042.97, increasing, after the unequal provision, to $776,553.52. This submission is based on counsel's misapprehension of para. 47 of the trial judge's reasons. The figure of $776,553.52 in paragraph 47 of the trial judge's reasons refers to 75% of the total family property, not the respondent's net family property.

[12] On cross-appeal, the respondent submits the trial judge erred by declining to make a lump sum payment of spousal support, after finding that she was entitled to compensatory support. The trial judge gave cogent reasons for finding no spousal support payable to the respondent from the date of separation.

[13] The appeal and cross-appeal are dismissed. Given the divided success we fix costs of the appeals, and all motions, in favour of the respondent in the amount of $12,500 inclusive of applicable taxes and disbursements.

"R.G. Juriansz J.A."

"David Brown J.A."

"L.B. Roberts J.A."