Court of Appeal for Ontario

Date: 2025-07-08
Docket: M56061 & M56089 (COA-24-CV-1148)
Judge: David M. Paciocco

Parties

Between:
Maher Safieh (Respondent/Appellant/Moving Party/Responding Party by way of cross-motion)
and
Fatin Hamza (Applicant/Respondent/Responding Party/Moving Party by way of cross-motion)

Counsel:

• Sajid Hossain, for the moving party (M56061)/responding party by way of cross-motion (M56089)
• Constance Nielsen, for the responding party (M56061)/moving party by way of cross-motion (M56089)

Heard: 2025-07-03

Endorsement

Background

The parties, who have three children together, have been engaged in family litigation. On October 7, 2024, the trial judge made a final order in favour of the respondent, Fatin Hamza, regarding decision-making responsibility, parenting time, and child support. The trial judge’s order granted her $99,432.23 in retroactive child support and section 7 payments under the Federal Child Support Guidelines, SOR/1997-175. The order required the appellant, Maher Safieh, to pay that amount by remitting $1,000 per month to Ms. Hamza commencing December 1, 2025, in addition to his other child support obligations. On January 13, 2025, the trial judge awarded Ms. Hamza costs for the litigation in the amount of $100,000. Mr. Safieh is appealing both orders.

On June 9, 2025, Mr. Safieh’s appeal was administratively dismissed for delay by the Registrar, pursuant to r. 61.13(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, after he missed an extended perfection deadline agreed to by the parties.

The Motions

Mr. Safieh now moves pursuant to r. 61.16(5) for an order setting aside the Registrar’s order and reinstating the appeal, and for an order pursuant to r. 3.02(1) for an extension of time to perfect his appeal (M56061). Ms. Hamza opposes the motion, and, in the alternative, brings a cross-motion for the imposition of conditions required to address the risk that Mr. Safieh will use the delay before the hearing of the appeal to dissipate assets needed to satisfy the orders under appeal (M56089). The motion and cross-motion before me should be granted if the justice of the case requires it. For the reasons that follow, I am granting both the motion and the cross-motion, on terms identified below.

Legal Principles

With respect to Mr. Safieh’s motion pursuant to r. 61.16(5) to set aside the order administratively dismissing his appeal, the merits of the appeal is one of the primary considerations: Sickinger v. Sickinger, 2017 ONCA 760, at para. 13. Consideration must also be given to: (1) the explanation for not perfecting the appeal within the stipulated timelines; (2) the length of and explanation for the delay; and (3) prejudice to the responding party: Hoffelner v. Whiteley, 2024 ONCA 753, at para. 10. The inquiry into the merits of the appeal cannot be exacting at this stage in the litigation given the incomplete record available and the consequence of denying the motion, which is the loss of the right to even argue the appeal. As Gillese J.A. stated in Jewish Foundation of Greater Toronto (Re), 2022 ONCA 581, at para. 28: “I need only determine whether the Appeal has so little merit that the court could reasonably deny the important right of an appeal”.

The considerations I have just described for setting aside an administrative dismissal are much the same considerations that apply to Mr. Safieh’s motion for an extension of time to perfect pursuant to r. 3.02(1), although the standard for setting aside an administrative dismissal is more demanding since such orders can be avoided by moving for extensions of time: Langer v. Yorktown Securities Inc. et al.; Sickinger, at para. 14; Guillaume v. Ontario (Animal Care Review Board), 2024 ONCA 851, at para. 11. In considering a motion for an extension of time, an appellate court will also ordinarily consider whether the appellant formed an intention to appeal within the appeal period and maintained an intention to pursue the appeal: Guillaume, at para. 10. When orders affect the interests of children, as they do here, an important if not overarching consideration is the effect of the orders on the best interests of the children: D.G. v. A.F., 2014 ONCA 436, at paras. 12, 33.

Application of Principles

I am persuaded that, subject to the imposition of conditions, which I address below, the justice of the case warrants granting the order Mr. Safieh seeks and that it is in the interests of the children to grant these orders.

In terms of the merits of the appeal, I recognize that the grounds of appeal Mr. Safieh raises will be difficult since they closely engage findings of fact made on issues relating to parenting rights and decision-making to which substantial deference is owed. At the same time, in addition to other grounds of appeal, Mr. Safieh will challenge the evidentiary foundation for centrally important family violence findings made by the trial judge. Mr. Safieh also alleges that the trial judge misapprehended the evidence relating to decision-making authority by failing to adequately consider the experience of the parties under a dispute resolution mechanism that had been in place. A panel on appeal could conclude that such a misapprehension materially influenced the outcome on decision-making responsibility. I am therefore persuaded that this appeal meets the low threshold of some merit.

It is not disputed that Mr. Safieh formed a timely intention to appeal. He has also offered an explanation as to why he did not perfect the appeal within the required time. Specifically, he initially attempted to proceed with the appeal without representation, but upon receiving the transcripts he ordered he realised that he required legal assistance to cope with the complexity of the appeal and the size of the record. I accept that the unexpected challenge in preparing the appeal himself, and the need for legal counsel to become familiar enough with the file to perfect the appeal, explain the delay. I recognize that Mr. Safieh has had counsel for some months and that there have been missteps, but the delay has not been overlong, approximately two months. The initial perfection deadline was April 12, 2025. On April 11, 2025, after Mr. Safieh decided to retain counsel, the parties agreed to a 20-day extension to May 3, 2025. Mr. Safieh’s counsel made efforts (albeit problematic ones, as I will explain below) to serve and file the requisite materials. After perfection remained delayed, Mr. Safieh requested a further 31-day extension but received no response. Instead, Ms. Hamza moved for the r. 61.13(3)(a) dismissal for delay, which the Registrar granted on June 9, 2025.

I cannot find, as Mr. Safieh submits, that there will be no risk of prejudice to Ms. Hamza or the children if the administrative dismissal is set aside and an extension of time is granted. But I am of the view that this risk of prejudice can be addressed adequately by imposing conditions. Subject to compliance with those conditions, Mr. Safieh has met his onus of establishing that it is in the interests of justice to set aside the administrative dismissal, to reinstate the appeal, and to grant the extension of time. In his filed materials he requested an extension to July 1, 2025 to perfect. This date has already passed. During oral submissions he disclosed that the transcripts he ordered are in fact incomplete, and that he will need additional time to secure complete transcripts and to perfect. I address the timeline below. Therefore Mr. Safieh’s motion is granted, on the terms below.

Cross-Motion and Conditions

With respect to Ms. Hamza’s cross-motion, I accept her submission that judges have discretion to impose terms when granting an extension of time. Rule 3.02(1) permits extensions to be granted “on such terms as are just”: Mauldin v. Cassels Brock & Blackwell LLP, 2011 ONCA 67, para. 41.

I find that Ms. Hamza has provided a foundation for concern that during the period of delay pending the appeal, Mr. Safieh may take steps to protect his assets from the orders under appeal. Ms. Hamza has presented evidence that during the first extension of time he was granted, he sold his home, which is his largest and most easily exigible asset. She also presented evidence that he may have misled his children by claiming to have purchased another home. During oral submissions Mr. Safieh’s lawyer confirmed, for the first time, that the house was in fact sold.

There are also serious transparency issues. To date Mr. Safieh has refused to provide Ms. Hamza with disclosure arising from the sale. He also refused to attend a scheduled examination where the state of his assets could have been explored, pending this motion. Moreover, there is information that his current wife and stepchild may have left the country. This adds to the concern that he may be disposing of his assets with the intention of leaving, as well.

I agree with Ms. Hamza that if this appeal is to be reinstated, and the time to file extended, conditions should be put in place to address those risks. I also agree that those conditions can be modeled on the conditions imposed in Mauldin, at para. 42, by requiring Mr. Safieh to post an irrevocable letter of credit with the court and provide the court with a written undertaking. I would also require him to make complete disclosure to Ms. Hamza relating to his assets on the terms described below.

Finally, I would note that Ms. Hamza has raised concerns about the adequacy of the appeal book and transcripts and their manner of service that need to be addressed.

Disposition and Terms

I therefore allow the motion and set aside the Registrar’s order dated June 9, 2025, reinstate the appeal, and grant an extension of time to perfect the appeal on the following terms:

1. Mr. Safieh must submit to this court an irrevocable letter of credit, made payable to the Accountant of the Superior Court of Justice, in the amount of $100,000 by July 18, 2025.
2. Mr. Safieh must, by July 18, 2025, provide this court with his written undertaking not to encumber or dispose of any assets that he may have pending the outcome of his appeal. The undertaking should be addressed to the Registrar of the Court of Appeal for Ontario.
3. Also by July 18, 2025, Mr. Safieh must provide Ms. Hamza with: (a) a copy of the Agreement of Purchase and Sale for the sale of his home known municipally as 237 Vivant Street, Newmarket, Ontario (“Home”); (b) a statement of adjustments from the real estate lawyer acting on the sale of the Home; (c) a tracing of where the funds are where they went from the sale of the Home; and (d) an updated Financial Statement (Form 13).
4. Mr. Safieh must rectify any deficiencies in the appeal documents that have been identified in Ms. Hamza’s motion materials without delay and make proper service within the applicable time limits on Ms. Hamza’s counsel of record, unless notified otherwise.
5. Mr. Safieh must serve and file by July 11, 2025 a certificate from a certified transcriptionist confirming that all required transcripts have been ordered.
6. The appeal is to be perfected by August 15, 2025.
7. If any of these terms are not complied with, the appeal is to be finally dismissed.

Costs

Costs are payable on this motion and cross-motion to Ms. Hamza in the amount of $10,008.16, inclusive of disbursements and applicable taxes.

“David M. Paciocco”