COURT OF APPEAL FOR ONTARIO

CITATION: Abu-Saud v. Abu-Saud, 2020 ONCA 824

DATE: 20201217

DOCKET: M51992 (C67699)

Strathy C.J.O., Huscroft and Roberts JJ.A.

BETWEEN

Amneh Tawfic Abu-Saud

Applicant

(Respondent/Moving Party)

and

Azam Asaad Abu-Saud

Respondent

(Appellant/Responding Party)

Sharon E. Hassan, for the moving party

William R. Clayton, for the responding party

Heard: December 11, 2020 by videoconference

On a motion to quash the appeal from the order of Justice Thomas J. Carey of the Superior Court of Justice, dated October 30, 2019, with reasons reported at 2019 ONSC 6303.

REASONS FOR DECISION

Overview

[1] The moving party, Amneh Tawfic Abu-Saud, moves to quash the appeal of her former spouse, the responding party, Azam Asaad Abu-Saud, based on his ongoing and wilful breach of court orders that he pay spousal support and arrears to Ms. Abu-Saud.

[2] We agree that the responding party’s breach of not only the trial judge’s order but this court’s order dated May 22, 2020, with reasons reported at 2020 ONCA 314, per Benotto J.A., is, as aptly characterized by Ms. Abu-Saud’s counsel, deliberate, relentless, and indefensible.

[3] We therefore advised the parties at the conclusion of submissions on the motion that the appeal was quashed with costs to the moving party, with reasons to follow. These are our reasons.

[4] It is common ground that the court has jurisdiction to quash or dismiss an appeal in the face of non-compliance with a support order: see Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(3); Dickie v. Dickie, 2007 SCC 8, [2007] 1 S.C.R. 346, at para. 6; Brophy v. Brophy (2004), 2004 CanLII 25419 (ON CA), 180 O.A.C. 389 (C.A.), at para. 11; Siddiqui v. Anwar, 2018 ONCA 965, 22 R.F.L. (8th) 92, at para. 19. Moreover, this court has consistently refused to hear from the defaulting appellant or entertain the appeal where the record shows continuing disobedience with court orders: Cosentino v. Cosentino, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8.

[5] Quashing or dismissing an appeal for non-compliance is not automatic. Factors to be considered by the court in determining whether to exercise its discretion to quash an appeal include: the wilfulness of the breach; the amount of arrears; the excuse for the breach; and the efforts to correct the breach: Brophy, at paras. 9-15.

[6] All these considerations unequivocally favour Ms. Abu-Saud and her motion to quash the appeal. A review of the relevant factual and procedural chronology of these proceedings, as set out by the trial judge and our colleague in their respective reasons, and as briefly supplemented here, clearly demonstrates that Mr. Abu-Saud has deliberately undertaken, without lawful justification, whatever step he can to avoid his support obligations to Ms. Abu-Saud.

Facts and Procedural History

[7] Ms. Abu-Saud left the matrimonial home in 2015 after 27 years of marriage with no income or financial support. She was dependent on assistance from family, social assistance, and Canada Pension Plan Disability Benefits. Except when ordered to do so, Mr. Abu-Saud has never willingly or voluntarily paid any support to his former spouse. Rather, he ignored the trial judge’s order of $2,653 monthly spousal support, plus retroactive support, continued to pay only $1,500 per month pursuant to an interim order, and then in January 2020, unilaterally reduced the monthly spousal support payment to $1,100.

[8] Mr. Abu-Saud’s continuous and deliberate disobedience of the trial judgment led to the first compliance motion before Benotto J.A. At para. 19 of her reasons, she characterized Mr. Abu-Saud’s breach as “flagrant” and clearly directed him to comply with the trial judgment, noting his acknowledgement that he had the funds to pay. We endorse and repeat her direction at para. 17 of her reasons, which is apposite here:

Compliance with an order for support is not optional. Support payments are not stayed pending appeal. If the appellant seeks relief from this requirement, the procedure is to bring a motion to stay the support. The procedure is not to decide for yourself how much to pay. This court has repeatedly admonished payors who do not pay the support pending appeal. In Murphy v. Murphy, 2015 ONCA 69, 56 R.F.L. (7th) 257, the court refused to entertain submissions from a party who had not paid support pending appeal. To do otherwise “would be to reward his deliberate and willful misconduct”: at para. 6. [Emphasis added.]

[9] Benotto J.A. granted Ms. Abu-Saud’s request for payment of a portion of the equalization payment and stayed the appeal, with costs of $3,500, until Mr. Abu-Saud complied with the trial judgment. He did so in short order. By a further order dated June 12, 2020, Benotto J.A. then disposed of the remaining issue, ordering that Mr. Abu-Saud post security for Ms. Abu-Saud’s appeal costs in the amount of $20,000 by July 15, 2020, with costs of $1,500, and that if he failed to comply, Ms. Abu-Saud could move to dismiss the appeal. He complied by June 30, 2020. However, in June 2020 and from August to November 2020, in breach of the trial judgment and the May 22, 2020 order of this court, he again reduced his monthly support payments to $1,100, less than half the court-ordered monthly support of $2,653. As a result of this continued non-compliance, Ms. Abu‑Saud was obliged to bring this motion to quash the appeal.

[10] Rather than making any attempts at compliance, in response to Ms. Abu‑Saud’s motion to quash his appeal, at the eleventh hour, Mr. Abu-Saud attempted to bring before this court a cross-motion to stay the trial judge’s order. We did not permit him to do so, although we allowed him to file the supporting affidavit materials in response to this motion to quash.

Analysis

[11] Mr. Abu-Saud has admittedly, unabashedly, and, in our view, unjustifiably, breached the trial judge’s and this court’s orders. He has always been represented by counsel. He has never expressed confusion about what the court orders mean or what is required of him. Other than very recently when faced with the present motion to quash his appeal, he has never attempted to stay the trial judgment. He has breached court orders with the certain knowledge that Ms. Abu‑Saud is disabled, unable to work, and in dire financial straits that are exacerbated by these proceedings and his failure to comply with court orders. According to Ms. Abu‑Saud, as of December 1, 2020, the spousal support and retroactive spousal support arrears totalled $23,901. This is an enormous sum for Ms. Abu‑Saud. We draw the inescapable conclusion that Mr. Abu-Saud just chooses not to pay the amount of court-ordered spousal support to Ms. Abu-Saud because he simply does not want to do so.

[12] Mr. Abu-Saud’s continued refrain of impecuniosity, rejected by the trial judge, Benotto J.A., and repeated again here, rings hollow. It stands sharply contradicted by the trial judge’s findings about his imputed income, as well as the financial documentation produced in these proceedings, his admissions concerning his assets, and his substantial withdrawal of his assets to further his lifestyle with his new spouse, which serves to dilute Ms. Abu-Saud’s security for his payment of support in further breach of the trial judgment. We also note that instead of satisfying his court-ordered obligations to his former spouse, he appears to be engaged in income-splitting with his new spouse by initially paying her $500 per week and then $480 bi-weekly for ostensibly providing undocumented and unsubstantiated services to his business. He also revealed that he has instigated a motion to vary the court-ordered support, alleging a material change in his means and circumstances, which is returnable before the Superior Court of Justice in February 2021.

[13] Mr. Abu-Saud is inexcusably in breach of court orders that he pay spousal support to his former wife. He has doggedly and undeniably chosen to thumb his nose at court orders. We condemn his behaviour in the strongest terms.

Disposition

[14] The appeal is therefore quashed.

[15] This is one of those very clear and exceptional cases where Ms. Abu‑Saud is entitled to her full indemnity costs of her motion to quash and the appeal. Simply put, but for Mr. Abu-Saud’s contumelious refusal to comply with his court-ordered obligations, she would not have been put to this tremendous expense.

[16] Mr. Abu-Saud is required to pay to Ms. Abu-Saud on or before December 23, 2020 the amount of $38,419.90, representing $7,852.94 for the motion to quash and $30,566.96 for the appeal, inclusive of all disbursements and applicable taxes. These costs are amply justified in the circumstances of this case.

[17] Ms. Abu-Saud is entitled to the costs paid into court under the June 12, 2020 order of Benotto J.A. in payment of her costs incurred on her motion to quash and in response to the appeal. We order that those funds be paid out to her forthwith on request.

[18] As the costs paid into court will be insufficient to satisfy our cost order, we also order that, as the costs here were incurred in relation to Ms. Abu-Saud’s claims for spousal support, Mr. Abu-Saud’s obligation to pay our cost order shall be binding and constitute a first charge on the estate of Mr. Abu-Saud and shall be enforceable as a support order under the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31. Our cost order shall also be secured against any of Mr. Abu-Saud’s assets.

[19] As noted above, this court has discretion to refuse to entertain a further proceeding in the face of a record showing continuing disobedience with court orders. We have determined that is the case here. Mr. Abu-Saud is therefore precluded from bringing any further proceeding before this court until he has complied with the trial judge’s order and the orders of this court, including the cost orders, and the ongoing support obligations.

[20] We end with this. While Mr. Abu-Saud’s newly launched motion to vary the trial judge’s order was not before us for determination, it was referenced as yet another example of Mr. Abu-Saud’s persistent attempts to avoid his court-ordered obligations. Rule 1(8)(e) of the Family Law Rules, O. Reg. 114/99, explicitly empowers the court to order that a party who has not complied with prior orders is not entitled to any further order from the court unless the court orders otherwise. In our view, any attempt by Mr. Abu-Saud to vary support or take any other step in the Superior Court of Justice proceedings while he remains in substantial non-compliance with the trial judge’s order and the orders of this court would appropriately attract such an order, in keeping with the primary objective of the Family Law Rules, as stated under r. 2(2), to “deal with cases justly”, including saving expense and time, as stated under r. 2(3)(b).

[21] To summarize:

1. The appeal is quashed;

2. Mr. Abu-Saud must comply with all support obligations listed in the trial judgment and the reasons of Benotto J.A.;

3. The money paid into court for security of costs, $20,000, will be paid out to Ms. Abu-Saud forthwith on request;

4. The remaining $18,419.90 is to be paid by Mr. Abu-Saud to Ms. Abu-Saud forthwith, and no later than December 23, 2020.

“G.R. Strathy C.J.O.”

“Grant Huscroft J.A.”

“L.B. Roberts J.A.”