Court File and Parties

Ontario Court of Justice

Date: February 8, 2017

Court File No.: Toronto F0-14-11367-00 A3

Between:

Nada Nouman Applicant

— And —

Mohamed Ahmed Respondent

Before: Justice Sheilagh O'Connell

Heard on: January 24, 2017

Reasons for Decision released on: February 8, 2017

Counsel:

• Jeffrey L. Hartman — counsel for the applicant
• Hamoody Hassan — counsel for the respondent
• Shane Foulds — counsel for the Director of the Family Responsibility Office

O'CONNELL J.:

Introduction

[1] The Respondent father ("Mr. Ahmed") has brought a motion to change the Final Order of Justice Heather Katarynych dated May 14, 2014. On January 24, 2017, I heard three interlocutory motions within this motion to change proceeding:

1. The Applicant mother's (Ms Nouman's) motion for an order finding Mr. Ahmed in contempt and seeking a remedy of incarceration;

2. Mr. Ahmed's motion to stay the enforcement of the child support provisions of the final order by the Family Responsibility Office ("FRO");

3. Mr. Ahmed's motion to strike the Affidavit of Jasmine Gerwein sworn December 21, 2016 and request that this matter be set for an expedited trial.

[2] Mr. Ahmed's motion for an order to temporarily stay the enforcement of child support by the Family Responsibility Office was resolved on consent and counsel for FRO was then excused from the proceeding. The motions for contempt and motion to strike were heard together.

Background Facts

[3] The parties married on May 13, 2012. There is one child of the marriage, Fatima Mohamed Hasson, born February 6, 2013. Ms Nouman was previously married and has no children from that marriage. Mr. Ahmed was previously married twice and has five children, ranging from ages eleven to thirty years from previous relationships.

[4] The parties separated on or about October of 2013.

[5] The parties' very different narratives of their relationship and separation were set out in their competing affidavits. Ms Nouman deposes that Mr. Ahmed was abusive to her and Fatima and threatened to kill them on a number of occasions. Mr. Ahmed denies all allegations of abuse and deposes that Ms Nouman made a complaint to the police against him after they argued over financial issues regarding Ms Nouman's export/import business, in which he was involved. Mr. Ahmed was criminally charged, however all criminal charges were subsequently withdrawn.

[6] Ms Nouman commenced an application for custody and child support in 2013. Although properly served, Mr. Ahmed did not serve an answer or financial Statement. Ms Nouman proceeded to a default hearing on February 25, 2014. Mr. Ahmed attended and requested an adjournment to retain counsel and to prepare his responding materials. The adjournment was granted to May 14, 2014.

[7] On May 14, 2014, Mr. Ahmed did not attend court nor did he serve or file responding materials. Justice Katarynych noted Mr. Ahmed in default and a default hearing was conducted. Ms Nouman was granted custody of Fatima with no access to Mr. Ahmed, a restraining order, and child support in the amount of $245.00 per month, based on an income imputed to Mr. Ahmed of $30,000.00 per annum, pursuant to the Child Support Guidelines.

[8] Mr. Ahmed commenced his motion to change on September 15, 2015 after the Family Responsibility Office started enforcement proceedings against him for failure to pay the court ordered child support. At that time, Mr. Ahmed had not made any child support payments and the arrears of child support were approximately $4,000.00. A restraining order was granted in the enforcement proceedings as FRO had issued a notice to suspend Mr. Ahmed's driver's license.

[9] In his motion to change, Mr. Ahmed claimed that he had been disabled since 2009 as a result of two serious car accidents and that he was unable to work. He was unemployed and in receipt of social assistance (Ontario Works). Previous to that he was working as a taxi driver.

[10] In her response to the motion to change, Ms Nouman disputed that Mr. Ahmed was not working and claimed that he continued to work as a taxi driver in London, Ontario. Further, she claimed that as a result of his car accidents, he had received large personal injury settlements of approximately $250,000.00.

[11] At the first case conference in this matter, the issue of Mr. Ahmed's insurance settlements was raised. The parties entered into a consent order for financial disclosure from Mr. Ahmed, which included a request for a full accounting of the compensation that he received from his motor vehicle accident settlements, copies of all bank account statements for accounts inside and outside of Canada, and the current status of his taxi license.

[12] It is not disputed that Mr. Ahmed was involved in three car accidents in 1999, 2009, and 2010 and claimed damages. He received a substantial settlement for all three claims in July of 2015 shortly before he brought his motion to change. A portion of these funds were released to Mr. Ahmed in 2015 to pay personal loans, debts, Legal Aid Ontario and Ontario Works. The remainder of the funds was held in trust by Mr. Ahmed's personal injury (civil) lawyer.

[13] On August 19, 2016, FRO issued a Notice of Garnishment for lump sum child support arrears in the amount of $8,860.14 to Mr. Ahmed's personal injury lawyers, who were holding the balance of the insurance settlement monies in trust for Mr. Ahmed.

[14] On September 12, 2016, the matter returned to court for a continuing case conference. On that date, Mr. Ahmed's previous family law counsel and Ms Nouman's counsel entered into the following consent order regarding the insurance settlement monies which reads as follows:

"Child support":

"The entirety of settlement funds from tort actions of October 6, 2009 and July 17, 2010, a total of $170,000.00 including the outstanding child support payments remaining [ sic ] of Avral Personal Injury Lawyers pending respondent's motion to dispute garnishment proceedings commenced by FRO, returnable on October 6, 2016." [ sic ]

[15] On October 6, 2016, Mr. Ahmed's previous family counsel brought a motion to "temporarily stay the enforcement of support obligations by the Family Responsibility Office" and for an order "to suspend the FRO's garnishment procedure against Mr. Ahmed's personal injury lawyers", among other relief.

[16] On the same date, Ms Nouman brought a cross-motion for an order to strike Mr. Ahmed's motion to change, an order holding Mr. Ahmed in contempt, and orders for retroactive and prospective lump sum child support, among other relief.

[17] At the return of the motion on October 6, 2016, Mr. Ahmed's previous family law counsel requested an adjournment to respond to Ms Nouman's cross-motion to strike his pleadings. On consent of the parties, the motions were adjourned to November 17, 2016. The court further endorsed that "the previous Orders shall continue in the interim with respect to the preservation of all funds."

[18] On November 17, 2016, the next return date, Mr. Ahmed appeared without counsel as his previous counsel had brought a motion to remove himself as counsel of record by way of a 14b motion. This motion was reviewed in chambers and granted on November 3, 2016.

[19] Mr. Ahmed requested an adjournment to retain new counsel which was vigorously opposed by Ms Nouman. On that day, the court was advised that Mr. Ahmed had not complied with the September 12, 2016 order preserving his settlement monies in trust. According to counsel, approximately $80,000.00 to $90,000.00 had been disbursed to Mr. Ahmed, contrary to the consent order.

[20] Ms Nouman wished to proceed with her contempt motion and sought a finding of incarceration and a payment of lump sum child support in the amount of $50,000.00.

[21] Mr. Ahmed advised the court through an Arabic interpreter and with the assistance of duty counsel that his previous lawyer had not advised him of the September 12, 2016 Order and that he did not know that the settlement funds could not be released to him by his personal injury lawyers. He wished to retain new counsel to respond.

[22] Given the serious nature of the relief sought, the court granted Mr. Ahmed's request for the adjournment to seek counsel but with terms. The court ordered that Mr. Ahmed's personal injury lawyers shall remit the sum of $12, 780.14 from their trust account on behalf of Mr. Ahmed to FRO forthwith, to be held on behalf of Ms Nouman. This was the total arrears of child support owing plus thirteen months of prospective child support, based on Justice Katarynych's final order.

[23] Further, it was clear from a review of the materials that the motion for contempt brought against Mr. Ahmed had not been personally served nor was it constituted properly, in accordance with Rule 31 of the Family Law Rules. The court directed mother's counsel to prepare a proper Rule 31 Motion and effect special service of the motion in accordance with Rule 31 of the Rules. The contempt motion was adjourned to January 24, 2017 and was marked peremptory.

[24] Mr. Ahmed retained new counsel and served and filed his responding materials to the contempt motion, newly prepared and properly served, in advance of the January 24, 2017 motion date. Ms Nouman also filed further affidavit material, including an Affidavit of Ms Jasmine Gerwein Sworn December 21, 2016, which her counsel planned to rely upon in the contempt motion.

[25] Ms Gerwein is an interpreter who translated a Facebook message from Arabic to English alleging that Mr. Ahmed had wired approximately $90,000.00 out of the country for a wedding and that he planned to leave the country right after this motion to marry his new wife.

The Parties' Positions on the Contempt Motion

Ms Nouman's Position

[26] Ms Nouman submits that Mr. Ahmed was fully aware of the September 12, 2016 Order and that he was in clear breach of the Order when he instructed his personal injury lawyer to release the settlement monies to him. Mr. Ahmed was present in court on September 12, 2016 and was represented by counsel. An Arabic interpreter was present in court. The Order was made on consent of the parties. She further submits that Mr. Ahmed's previous family law counsel speaks Arabic fluently.

[27] Ms Nouman submits that the court should find Mr. Ahmed completely lacking in credibility, based on the history of this matter and a number of events that had occurred since the November 17, 2016 hearing. Ms Nouman deposed that Mr. Ahmed's previous wife had contacted her and advised that Mr. Ahmed had transferred a large sum of money to Sudan and was planning to leave Canada after the January 24th motion to marry a new wife.

[28] Ms Nouman deposed that Mr. Ahmed had emailed her after the November 17 2016 hearing and once again threatened to kill her and the child unless she abandoned her claims. Ms Nouman has contacted the police and Mr. Ahmed may be facing new criminal charges.

[29] During the course of his argument, when questioned by the court, counsel for Ms Nouman conceded that the contempt hearing could not proceed based on the affidavit evidence filed given the numerous issues of credibility raised, the competing affidavits and the remedy sought (incarceration). He then requested that there be an expedited viva voce hearing of the contempt motion.

Mr. Ahmed's Position

[30] It is Mr. Ahmed's position through counsel that the motion for contempt is completely lacking in foundation and that it should be dismissed in its entirety. He vigorously opposed the proposal that it should be set for an expedited viva voce hearing.

[31] Mr. Ahmed submits that the September 12, 2016 handwritten consent is only signed by counsel on behalf of their respective clients. It is unclear and ambiguous. Mr. Ahmed was never served with a court order, nor had his civil counsel. A draft order had not been prepared and issued nor had any notice been sent to his civil lawyers. They were not even aware of the order. At the time of the contempt hearing, the issued and entered order had still not been obtained by mother's counsel.

[32] According to Mr. Ahmed, the Arabic interpreter was not present when Mr. Ahmed and his previous counsel discussed the court appearance outside of the courtroom. He did not receive any reporting letter from his previous lawyer about the details of the court order and he was only advised that his lawyer was "attempting settlement".

[33] Mr. Ahmed states that he first learned of the September 12, 2016 court order at the court appearance on November 17, 2016 and that he was shocked. He immediately contacted his personal injury lawyer to inquire if he had received a copy of the order, who confirmed that he had not. Once the November 17th Order was sent to his personal injury lawyer, the amount of $12, 780.14 in child support arrears and prospective support was remitted to FRO for distribution to the mother.

[34] Finally, Mr. Ahmed submits that Ms Gerwein's Affidavit contains false and inaccurate information about him, as well as hearsay. The mother should not be able to use this Affidavit as evidence for her contempt motion unless Mr. Ahmed's counsel is given an opportunity to cross-examine Ms Gerwein on the affidavit. Given his position that the contempt motion should be dismissed in its entirety, the affidavit should also be struck.

The Law

[35] Rule 31 of the Family Law Rules, O. Reg. 114/99 governs contempt of court and when contempt motions are available in family court proceedings before the Ontario Court of Justice.

[36] Rule 31(1) provides that an order, other than a payment order, may be enforced by a contempt motion made in a case in which the order was made even if another penalty is available. [Emphasis added.]

[37] Rule 2 of the Family Law Rules defines a "payment order" as an order requiring a person to pay money to another person and includes a support order and a support deduction order, among a number of other types of orders listed.

[38] The Notice of Contempt Motion (Form 31) shall be served together with a supporting affidavit, personally on the alleged contemnor, in accordance with Rule 6(4) of the Rules. (See Rule 31(2)).

[39] The supporting affidavit may contain statements of information that the person signing the affidavit learned from someone else, but only if the source of information is identified by name, that the person signing the affidavit believes the information to be true and that "the information is not likely to be disputed". (See Rule 31(3) and Rule 14(19)).

[40] In Hefkey v. Hefkey, 2013 ONCA 44, the Ontario Court of Appeal set out the following principles regarding the use of contempt in family law cases:

1. The civil contempt remedy is one of last resort;

2. A contempt order should not be granted where other adequate remedies are available to the aggrieved party;

3. Great caution should be exercised when considering contempt motions in family law cases;

4. Contempt findings should be made sparingly and only where conferences to resolve problems or motions for enforcement have failed.

[41] The test on a motion for contempt is set out in A.G.L. v. K.B.D.. The court must make the following findings in relation to each alleged breach of an order:

1. The relevant order must be clear and unambiguous and not subject to interpretation. Implied terms cannot be read into the order;

2. The respondent (on the motion) must know of the order's existence at the time of the alleged breach;

3. The respondent intentionally did, or failed to do, anything that was in contravention of the order. The act stated to constitute the contempt must be wilful, not accidental;

4. The contempt must be proven beyond a reasonable doubt;

5. The respondent was given proper notice of the terms of the order.

[42] The onus is on the person alleging contempt to prove it beyond a reasonable doubt. See Fisher v. Fisher; Einstoss v. Starkman; Prescott-Russell Services for Children and Adults v. G. (N.). Any doubt must be exercised in favour of the person alleged to be in breach of the Order. See Prescott Russell Services for Children and Adults, supra.

[43] Hearsay evidence is not admissible on a motion for contempt. See Stupple v. Quinn. If there is a conflict as to material facts in the affidavits, there should be a viva voce hearing. The standard is quasi-criminal. See Fischer v. Milo, 2007 CarswellOnt 6144 (Ont. S.C.J.).

Application of the Law to the Facts of this Case

[44] In paragraphs 7 through 10 of his Notice of Contempt Motion (Form 31), Ms Nouman seeks an order finding Mr. Ahmed in contempt for failure to pay any child support and to permit arrears to accumulate under the Order of Justice Katarynych. The order for child support is clearly a "payment order" within the meaning of Rule 31(1) and Rule 2 of the Family Law Rules. It is therefore not enforceable by a contempt order. Paragraphs 7 through 10 of the contempt motion are dismissed.

[45] Paragraphs 11 and 12 of the contempt motion address, in very broad and vague terms, the issues of the restraining order and financial disclosure. These paragraphs are not properly constituted and there are other appropriate remedies under the Family Law Act and the Family Law Rules to address these issues. They are dismissed.

[46] Paragraph 5 of the contempt motion addresses the September 12, 2016 Order. In general, an order to preserve settlement monies in trust imposes an obligation on counsel to hold funds in trust pending further order of the court. It is clearly not a "payment order" within the meaning of s.31(1), because counsel is not a "debtor" making payments to a "creditor", but someone who holds the funds in trust pending further order. Accordingly a breach of that order could be sanctioned by a contempt order. See Salituro v. Salituro, 2015 O.J. No. 2563 (Ont. S.C.J.) at paragraph 14.

[47] Here the key issue is whether or not Mr. Ahmed knew that there was a court order prohibiting the distribution of the settlement monies pending the resolution of his motion and that he wilfully and deliberately breached that order, resulting in the release of over $90,000.00 to his benefit.

[48] It is obvious that this issue cannot be decided on the contradictory affidavits before me, given the standard of proof in a contempt hearing and the remedy sought. The question therefore is whether I should adjourn this motion to a viva voce hearing or dismiss it in its entirety. Mr. Hamoody, on behalf of Mr. Ahmed submits that I should simply dismiss this motion in its entirety because, to use his expression, "it has no legs."

[49] It is not disputed that Mr. Ahmed's first language is Arabic and that he requires an interpreter. It became clear during the course of argument that Mr. Ahmed's previous family counsel does not speak Arabic, or at least there was a dispute or uncertainty about this issue. The court, with counsel's consent, listened to the DVD recordings of the September 12, 2016 case conference that gave rise to the September 12 Order. It was established that there was an Arabic interpreter in the courtroom that day interpreting for Mr. Ahmed and that there was some discussion regarding the preservation of funds. Ms Nouman was not present on that day because the child was ill.

[50] However, there was no evidence from the court record regarding the nature of the consent order that was being entered into on that day as the matter was held down so that counsel could draft the consent. The court only has the evidence of Mr. Ahmed regarding what went on outside of the courtroom. There is no evidence from his previous counsel regarding what was explained to him after court on that day and whether the consent was explained to him, and whether the Arabic interpreter was present or had left at that point.

[51] Further, the handwritten consent is only signed by counsel, not the parties. The consent, set out previously at paragraph 16 of this decision, is poorly drafted and its meaning is unclear. The word "shall" appears to be missing from the sentence directing that the settlement funds remain in trust by Mr. Ahmed's personal injury lawyers pending the return of Mr. Ahmed's motion on October 6th, 2016. It is also not clear whether the order expires on October 6th or continues pending the resolution of his motion to stay the garnishment proceedings.

[52] When counsel returned to the court to file the consent, Mr. Ahmed was not present nor was the Arabic interpreter. There is no evidence that Mr. Ahmed knew that the consent reached between counsel was incorporated into a court order.

[53] It is very regrettable that counsel did not immediately arrange to have the September 12th Order prepared, issued and entered and served upon Mr. Ahmed and his personal injury lawyer. It is not disputed that Mr. Ahmed's personal injury lawyer was not aware of the Order until after the November 17, 2016 court hearing when contacted by Mr. Ahmed. It is further not disputed that Mr. Ahmed's personal injury lawyer immediately complied with the November 17th Order by remitting funds directly to FRO to pay the child support arrears and the thirteen months of prospective child support.

[54] At the hearing of the contempt motion before me on January 24, 2017, there was still no issued and entered order. It is therefore not disputed on the evidence before me that Mr. Ahmed could not have known of the existence of an order that had never been prepared or served upon him or his personal injury lawyer. At best, he may have been aware of the consent drafted between counsel filed in court on that day.

[55] It is well settled law that on a motion for contempt, the alleged contemnor must know of the court order's existence and be given proper notice of the terms of the order. See Prescott-Russell Services for Children and Adults v. G. (N.), supra. Counsel should have immediately prepared the order, arranged to have it issued and entered and then served it on Mr. Ahmed and his civil counsel immediately after the September 12th hearing.

[56] In my view, even if this matter were to proceed to a viva voce hearing, the contempt motion would fail. The onus is on the person alleging contempt to prove the contempt beyond a reasonable doubt. On the undisputed evidence before me, Ms Nouman would not be able to discharge this onus.

[57] I wish to make it very clear that my findings regarding the contempt motion should in no way be interpreted to condone Mr. Ahmed's conduct in this matter. Mr. Ahmed instructed his civil lawyer to release approximately $90,000.00 to him during this contested motion to change hearing and according to his own evidence, he used the money to pay his own personal debts and expenses. He did not use the money to pay the almost $10,000.00 in child support arrears or to pay any child support. He has not made one voluntary child support payment since the parties separated, notwithstanding clear evidence that he had access to substantial funds from the settlements that he received.

[58] The court directs that there be an expedited hearing of Mr. Ahmed's motion to change. The parties will be cross-examined on their affidavits in a focused Rule 1 hearing.

Order

[59] Accordingly, I make the following order:

1. The motion for contempt is dismissed;

2. The motion to change is to be heard on an expedited basis as a Rule 1 focused hearing. Counsel are to contact the trial coordinator immediately to arrange a trial management conference before me.

3. Ms Jasmine Gerwein's Affidavit can only be relied upon in the focused hearing if she is available for cross-examination by Mr. Ahmed's counsel.

Costs

[60] Regarding the costs of this motion, subrule 24(4) of the Family Law Rules, O. Reg. 114/99 provides that a successful party that has behaved unreasonably during a case may be deprived of costs or required to pay the costs of the unsuccessful party.

[61] In this case, Mr. Ahmed failed to make any voluntary child support payments since ordered to do so by Justice Katarynych. He received substantial monies from various motor vehicle settlements prior to commencing his motion to change and did not pay any child support or disclose this to FRO when he commenced his motion for a restraining order.

[62] Mr. Ahmed also withdrew approximately $90,000.00 for his own benefit during this motion to change proceeding and failed to pay any of the child support arrears owing, even after FRO commenced garnishment proceedings. The arrears were remitted to FRO after the court so ordered on November 17, 2016.

[63] Although Mr. Ahmed was the successful party in this motion, he will not be awarded costs.

[64] I thank counsel for the very helpful submissions and case law provided.

Released: February 8, 2017

Signed: "Justice Sheilagh O'Connell"