Court File and Parties

Ontario Court of Justice Date: 2023 02 23 Court File No.: Toronto F0-21-41678-0000

Between: Seemi Tariq, Applicant

— AND — Tariq Siddiq, Respondent

Before: Justice D. Szandtner

Heard on: January 10, 2023 Reasons for Judgment released on: February 23, 2023

Counsel: Theodora J. Oprea, counsel for the applicant Sage Harvey, counsel for the respondent

Reasons for Judgment

SZANDTNER J.:

Overview

[1] This is Ms. Tariq’s (“the mother”) motion to lift the automatic stay of proceedings in this court that flows from Mr. Siddiq’s (“the father”) commencement of a Divorce application in the Superior Court of Justice. In the Superior Court application the father is seeking a divorce, parenting time with the children, an equalization of net family property and the sale of family property.

Part One – Background

[2] The mother is originally from Pakistan and was sponsored by the father to move to Canada.

[3] The mother and the father were married on October 11, 2015.

[4] The parties have two children, born in 2016 and 2019.

[5] The parties and their eldest child are deaf.

[6] The mother alleges that the father was physically, psychologically and financially abusive towards her throughout the relationship.

[7] On March 17, 2021, the father physically assaulted the mother. He was criminally charged with assault. The charges were withdrawn on October 31, 2022.

[8] The mother and the children left the matrimonial home in March of 2021. The father remained in the home which he owned. The parties have remained separate and apart since then.

[9] The mother is in receipt of Ontario Disability Support Benefits (“ODSP”). The father was employed in a restaurant.

Part Two – Litigation History

[10] The mother issued an application in the Ontario Court of Justice on July 30, 2021. In that application, she claimed child support, sole decision-making responsibility for the children, an order for specified parenting time for the father, the ability to travel outside of Canada and obtain government documents for the children without the father’s consent, a restraining order, a non-removal order and costs.

[11] On December 9, 2021, the mother filed an amended application to also seek spousal support. The father filed an affidavit on July 28, 2022 which included one line seeking reconciliation with the mother. He further filed a brief affidavit sworn August 4, 2022 dealing with some parenting time issues.

[12] The first return date of the mother’s application was on October 1, 2021.

[13] On November 19, 2021, the parties appeared before Justice Robert Spence for their first case conference. On that date the mother was represented by Ms. Oprea and the father was represented by Mr. Harvey. On that date the court made the following orders on consent:

a) Temporary without prejudice child support payable by father to mother in the amount of $445.00 per month for two children, commencing December 1, 2021.

b) The Children’s Aid Society of Toronto’s file pertaining to this family/children to be released to mother’s counsel, who will then distribute as required.

c) Temporary order for primary residence of both children to be with the mother.

d) Father to have temporary access supervised by Renew Supervision Services or Side by Side Supervision Services, on such terms and conditions and frequency as agreed upon by the parties through counsel. Father to pay the cost of the supervision service.

e) Father to forthwith, and in any event, within 7 days, return to the mother all of the children’s official documents in his possession or otherwise in his control.

[14] On February 25, 2022, the parties appeared before Justice Melanie Sager for their second case conference. On that date, the mother was represented by Ms. Oprea and the father was represented by Mr. Harvey. On that date the court made the following temporary without prejudice orders on consent:

a) The mother shall have temporary sole decision-making responsibility with respect to the children named in the application.

b) Should the mother have to make a major decision impacting the children, she shall immediately notify the father through counsel.

c) The father shall provide counsel for the mother with proof of his income from all sources in 2021 at least 14 days before the next court date.

[15] On June 10, 2022, the parties appeared before me for their third case conference. On that date, the mother was represented by Ms. Oprea and the father was represented by Mr. Harvey. On that date, issues arising with respect of father’s use of his parenting time and his production of financial disclosure were raised. On that date, the mother’s counsel advised that she had been served with the father’s Answer/Claim and Financial statement. The father’s counsel committed to ensuring that these documents were filed with the court.

[16] On August 18, 2022, the parties appeared before me for their fourth case conference. On that date, the mother was represented by Ms. Oprea and the father was self-represented. Mother’s counsel raised disclosure issues. She also advised that she had not been served with the affidavits that the father had recently filed with the court. I advised the father that his Answer and Financial Statement had not been filed with the court. I granted him leave to file these documents without his 2019 Notice of Assessment.

[17] On October 31, 2022, the parties appeared before me for their fifth case conference. On that date, the mother was represented by Ms. Oprea and the father was once again represented by Mr. Harvey. I was advised during the appearance that the father had commenced an application in the Superior Court to deal with a property issue. Mother’s counsel was made aware of this application in mid-October. Costs of $500.00 were awarded to the mother as the father once again had failed to file his Answer and Financial Statement. The parties were granted an adjournment to permit them to discuss their position with respect to next steps. The return date was set as either a motion to lift the automatic stay or a case conference.

[18] On January 10, 2023 the parties appeared before me. The mother brought a motion seeking an order finding the father in default and permitting her to proceed on an uncontested basis.

[19] In the alternative, the mother sought an order finding the father in default and:

a) Permitting her to proceed on an uncontested basis on the issues of decision-making responsibility, primary residence of the children, travel/documents for the children and a restraining order OR scheduling a focused hearing on these issues.

b) Traversing the issues of the father’s parenting time to the Superior Court of Justice in Toronto;

c) Paragraphs 1 and 4 of the temporary order of the Honourable Justice Spence, dated November 19, 2021 with respect to child support and the Respondent’s supervised parenting time remaining in effect until temporary orders are made in the Superior Court of Justice;

d) The father pay her costs of $7,500.

In the further alternative, the mother sought an Order traversing this matter to the Superior Court of Justice in Toronto Ontario and an order that the following orders shall remain in effect until temporary or final orders are made in the Superior Court of Justice:

a) Paragraphs 1 and 5 of the temporary order of the Honourable Justice Spence, dated November 19, 2021 with respect to child support and the father’s supervised parenting time;

b) Paragraphs 1 and 2 of the temporary order of the Honourable Justice Sager, dated February 25, 2022 with respect to decision-making responsibility;

c) The children’s primary residence shall be with her;

d) The father shall not contact or communicate directly or indirectly with her without her express written consent or a Court order;

e) The father shall not remove the children from the mother’s care and custody or from the Greater Toronto Area without her written consent or a Court order;

f) The applicant may obtain and renew passports, birth certificates, health cards and all other documents for the children, without the father’s consent;

g) The father shall pay costs in the amount of $25,000 for the Ontario Court of Justice proceeding.

[20] The father opposed the motion and took the position that the automatic stay ought to remain in place. In the alternative, he seeks leave of the court to file his Answer and Financial statement.

Part Three – Legal Considerations

[21] Subsection 36(1) of the Family Law Act states:

s.36 Effect of divorce proceeding .- (1) When a divorce proceeding in commenced under the Divorce Act (Canada) , an application for support that has not been adjudicated is stayed, unless the court orders otherwise.

[22] Section 27 of the Children’s Law Reform Act (the CLRA) states:

s.27 Effect of divorce proceedings – If an action for divorce is commenced under the Divorce Act (Canada) , any application under this Part in relation to decision-making responsibility, parenting time or contact with respect to a child that has not been determined is stayed, except by leave of the court.

[23] Section 138 of the Courts of Justice Act sets out the objective that as far as possible, the multiplicity of legal proceedings should be avoided.

[24] The principles developed in the case law regarding section 27 of the CLRA establish that the Ontario Court of Justice (“OCJ”) should only exercise its discretion to lift a stay of OCJ proceedings in the following circumstances:

1. Bad faith: Was the divorce application issued in bad faith? Bad faith can constitute sufficient grounds for the lifting of the automatic stay. See Husain v. Chatoor, 2005 ONCJ 240, 141 A.C.W.S. (3d) 453, D’Appolllonio v. D’Appollonio (1992) 35 A.C.W.S. (3d) 824 (G.D.)

2. Prejudice: When the delay involved in transferring the proceedings to the Superior Court could cause prejudice to the children and the delay in the determination of the proceedings pertaining to the children is not in their best interests: See: Husain v. Chatoor, supra.

3. Waste of court resources: When the consequences of a stay cause a pointless and inequitable waste of court resources and does not serve the interests of the administration of justice (this is often coupled with bad faith): See: Kucera v. Smith 2010 ONCJ 172.

Part Four – The Mother’s Position in Support of Lifting the Stay

[25] The mother’s position focuses on both the prejudice to her and her children and the waste of court resources.

[26] The first case conference scheduled in the Superior Court for the father’s application is on April 3, 2023.

[27] This proceeding has already had the benefit of five case conferences at this court resulting in a range of temporary orders. The mother’s counsel submits that a focused hearing on the issues in this case could be scheduled within the next month.

[28] The mother states that the father has significantly contributed to delay in this proceeding. For example, while he served her with his materials, he has yet to file his Answer and Financial statement with the court. His counsel agreed to do so at a case conference in June of 2022. He is technically in default.

[29] The mother submits that the father could have brought his Superior Court application one year ago, as he was aware of the property issue at that time. She submits that the reason for the delay is that the father is unhappy with the current temporary parenting orders made by this court and seeks an alternate forum to relitigate those issues.

[30] The mother’s counsel further draws the court’s attention to the legal costs to her client of the multiple case conferences to date. The father’s financial circumstances are more secure as evidenced by the property which is identified in his Superior Court application. Her client is in receipt of ODSP. This financial imbalance renders the further delay caused by a change of forum more prejudicial to the mother.

[31] The mother submits that this financial imbalance is amplified by the power imbalance in the marriage. The mother claims in this case that the father was a controlling and abusive figure in their relationship.

[32] The mother states that the father has not been paying child support despite consenting to the temporary child support order.

[33] The mother’s position is that the father should not be allowed to delay the within proceeding and then be rewarded for his unreasonable conduct by being granted the opportunity to relitigate the issues in the Superior Court.

Part Five – The Father’s Position in Support of the Stay

[34] The father argues that there is no bad faith involved in his decision to commence the Superior Court application.

[35] The father said that the increase in interest rates made his mortgage unaffordable and required the immediate sale of his property. His mortgage payments increased from $3,500.00 per month to $5,500.00 per month from September to October of 2022. He said that he was unable to meet this financial obligation due to a recent significant decline in his income from $33,000.00 to $800.00 a month.

[36] It is his position that the Superior Court application was required in order to dispense with the mother’s consent to the sale. However, there is no evidence before the court that the father did made efforts to secure the mother’s consent to the sale prior to the commencement of his Superior Court application.

[37] The father submitted that he is not unhappy with the existing parenting orders made by this court. He notes that the orders with respect to decision-making and primary residence were made on consent of the parties.

[38] The father’s counsel submits that to proceed with this matter in two levels of court would be far too costly for the parties. The family lacks the resources to proceed in two courts. Furthermore, court appearances require in person attendances and both Deaf and ASL interpreters to assist the parties which also adds to the cost to the court system of multiple proceedings.

[39] The father states that his Answer/Claim and Financial statement were served on the mother on February 2022. He said that it was updated on June 6, 2022. The father’s counsel was removed from the record following the case conference in June of 2022 and the responding materials were not filed. The father’s position is that in spite of the fact that the material was not filed with the court, the mother had notice of the father’s position through service. As a result, he submits that there is no prejudice to her in permitting his materials to be filed at this time.

Part Six – Should the court exercise its discretion and lift the stay?

[40] The court must consider the following questions within the circumstances of this case:

a) Was the divorce application issued in bad faith?

b) Is it in the children’s best interests to lift the stay?

c) Would the mother and children suffer undue prejudice if the stay on the parenting issues was not lifted?

d) Would the consequences of a stay cause a pointless and inequitable waste of court resources and not serve the interests of the administration of justice?

[41] The father’s position is that he commenced his Superior Court application as a result of the escalation of interest rates. He could no longer cover the cost of the mortgage on the matrimonial home and needed to commence the application to secure the mother’s permission to sell the property.

[42] The parties separated in 2021. The mother brought her application in the Ontario Court of Justice in 2021. The father was represented by counsel. He was aware at that time that he owned a property that was a matrimonial home.

[43] At that time he did not commence an application in the Superior Court of Justice to address all of the outstanding issues in one forum. He also did not raise it as a possibility at the initial case conferences. Had he done so immediately, the judicial resources of the OCJ would not have been deployed.

[44] The father also failed to file a financial statement with the court disclosing this significant asset. He has also failed to pay any child support, as ordered by this court, despite his ability to earn rental income.

[45] The father seeks an equalization of net family property and the sale of the matrimonial home in the Superior Court. He also seeks “reasonable and specified parenting time” with the two children. This is the only relief he seeks in the Superior Court that is also before this court.

[46] This ground of relief gives weight to the mother’s position that the father is seeking to relitigate the issue of parenting time which has been the focus of many case conferences to date.

[47] The court heard evidence that the mother was not asked for her consent to the sale of the home prior to the filing of the Superior Court application. The court finds that this issue could have been resolved without a court appearance if the father had made any effort to obtain consent from the mother.

[48] The court finds that the father has acted in bad faith. He has:

a) Failed to file his Answer/Claim and financial statement despite being provided with multiple opportunities to file them.

b) Breached orders for financial disclosure.

c) Breached court orders to pay child support. This is part of the father’s campaign to obtain a litigation advantage by applying financial pressure on mother.

d) Failed to approach the mother for her consent to sell the home prior to starting proceedings in the Superior Court.

e) Failed to follow through with orders for parenting time. There was no need for him to claim reasonable and specified parenting time in the Superior Court when he is not consistently exercising the parenting time he has been granted. This is more evidence of his intention to frustrate the proceedings in this court and increase the mother’s costs.

f) Has inordinately delayed this case.

g) Has litigated in a manner designed to frustrate the mother and increase her legal costs.

[49] The children before the court in this case have been waiting for 20 months for the resolution of issues that have a profound impact on their well-being. Multiple case conferences before this court have resulted in a host of temporary orders including child support, parenting time, decision-making and primary residence. Further delay in finalizing these orders is not in the best interests of the children.

[50] If the stay is not lifted and all issues need to be started again in the Superior court the extensive case management work with this family will be wasted. There will be a duplication of case management efforts on the Superior court level. Furthermore, the family will not have the benefit of an expeditious hearing on the parenting and child support issues.

[51] There is only one issue between the parties that must be addressed in the Superior Court – the equalization of net family property. There is no issue regarding possession of the matrimonial home. The equalization issue is quite discrete from the issues in this court. No evidence was led that there would be a spillover of the issues in the two courts. It is more cost-effective for the parties to lift the stay and have the bulk of the issue between them completed in this court.

[52] The court will also lift the stay because the administration of justice is best served by this court continuing the work it has almost completed on the issues property before it. It is contrary to the administration of justice to permit the father to use the statutory stay as a litigation tactic to frustrate the mother’s claims and increase her costs.

[53] The stay will be lifted to allow this work to proceed to a timely resolution.

Part Seven – Conclusion

[54] This court makes the following orders:

a) The stay of the within proceeding pursuant to both section 27 of the CLRA and subsection 36(1) of the Family Law Act is lifted;

b) The father is granted an extension of time of 30 days to serve and file his Answer and updated financial statement;

c) The return date is set for settlement conference/trial management conference with briefs and offers to settle.

d) A focused hearing will be scheduled during the May trial sittings.

[55] If either party seeks costs of this motion they shall serve and file written submissions by March 15, 2023. The other party will then have until March 31, 2023 to serve and file their written response (not to make their own costs submissions). The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs. The costs submissions should be delivered to the trial coordinator’s office.

Released: February 23, 2023 Signed: Justice D. Szandtner