COURT FILE NO.: 98-FA-6715-0001

DATE: March 8, 2012

SUPERIOR COURT OF JUSTICE – ONTARIO

APPLICANT: Shabana Mahmood Alvi

RESPONDENT: Sultan Mahmood Alvi

BEFORE: Mr. Justice Perkins

LAWYERS: Philip M. Epstein and Michael Zalev, for the applicant mother

Evelyn Kohn Rayson and Eli Antel, for the respondent father

HEARD: March 5, 2012

ENDORSEMENT

[ 1 ] Before me is a motion by the respondent father in which he asks for:

• an up to date “accounting/tracing” by the applicant mother of the assets transferred to her in satisfaction of her net family property equalization entitlement;

• the striking out of her pleadings if the accounting is not delivered within 30 days;

• temporary spousal support payable to him in the amount of $2,902 monthly;

• costs.

[ 2 ] For the reasons set out below, the motion is dismissed.

[ 3 ] The parties were married in 1976 and separated in 1997. I have not been told when they were divorced. They had three children, the youngest of whom is now 27. During the marriage, the applicant mother was a homemaker. The respondent father was a medical doctor who owned a very valuable and lucrative laboratory business known as Med-Chem as well as other income producing investments. The father is 76 years old now and is retired, though in good health.

[ 4 ] On April 9, 1998, when the father was working and earning, this court made a temporary support order in the applicant mother’s favour. The order was made in default of appearance by the respondent father. It provided for child support for the three children of $11,000 and spousal support of $8,000 to be paid monthly to the mother. It did not state the father’s income.

[ 5 ] The support terms in the April 9, 1998 order were made final in an order dated November 9, 1998, also made in default against the father. The support had no termination or review date. The final order also provided for the mother to have sole custody of the three children and to receive a net family property equalization payment of $11,286,844 from the father, on which 6% postjudgment interest was payable.

[ 6 ] On February 4, 1999, this court made a consent order, based on a settlement agreement dated January 28, 1999, dealing with how the mother’s equalization entitlement was to be satisfied. The parties knew at the time that the father’s Med-Chem business was involved in a major dispute with creditors that resulted in an attempt to restructure its debts under insolvency legislation and eventually in a bankruptcy. The mother wanted to be sure she was not left with an equalization order that would never be paid. The 1999 consent order provided for the father to retain his shareholdings (direct or indirect) in Med-Chem and for the mother to release all claims to those shares. It also provided for the father to transfer all other property he held (directly or indirectly through corporations), other than his Med-Chem shares, to the mother “on an ‘as is where is’ basis”, with the mother responsible for paying all taxes and fees associated with the transfer. It went on to say:

8. THIS COURT ORDERS THAT, in the event that the wife realizes on any of the property transferred, then the husband will have credit for every dollar the wife receives against the judgment ... dated November 9, 1998 until the judgment has been fully satisfied.

[ 7 ] The mother received the assets contemplated by the settlement. The father retained his Med-Chem shares. Over the following seven years there was a great deal of litigation involving the father and Med-Chem. The mother was a defendant in some of that litigation, as creditors of Med-Chem attacked her entitlement under the 1999 settlement agreement.

[ 8 ] On April 14, 2010, the respondent father issued a motion to change the support order made on April 9, 1998. The motion does not refer to the final order of November 9, 1998 but this appears to be a slip. The father’s motion seeks a retroactive termination of his child and spousal support payments under the order and the retroactive creation of a new spousal support obligation payable by the mother to him. The extent of the retroactivity is not specified.

[ 9 ] The argument proceeded before me on the basis that the father’s motion to change the support order was governed by the Divorce Act . However, the final support order was expressly made under the Family Law Act . The objectives and factors to consider on a motion to change support are different in the two different statutes, but the facts in this case bring about the same result regardless of which of the two statutes is applicable.

[ 10 ] Other than a case conference on September 1, 2010, no steps have been taken in the court process until now to advance the father’s motion to change. There have, however, been some discussions and negotiations between counsel. There has not been a request for information or documents, a request for an affidavit of documents, a request to admit, an attempt to conduct questioning after the 2010 case conference or the scheduling of any other event in court. The father served and filed a financial statement dated April 12, 2010, which attached income tax assessments from 2006 to 2008, but has not provided updated financial information.

[ 11 ] The mother acknowledges receipt of more than $16 million from realizing on the assets transferred to her, arising from various transactions from 1999 to 2008. She takes the position her property and support entitlements under the November 9, 1998 order have not been satisfied, because of the accrual of interest and because the father did not pay the support required under the order. She says well over $2 million is still owed to her. She also says she is entitled to substantial sums in costs from litigation involving the father.

[ 12 ] On February 12, 2009, the father wrote a letter to the mother’s lawyer. The letter states that, under the settlement agreement of January 28 and the consent order of February 4, 1999, the mother “was required to provide [the father] with a detailed accounting of the cash and assets that have been transferred to her.” It asks for a copy of the mother’s accounting.

[ 13 ] Neither the agreement nor the order uses the word “accounting” or contains any term creating a reporting obligation on the mother’s part, other than paragraph 8 of the order, reproduced above. The father has taken the position that an obligation to provide a full accounting is implicit in that provision of the order.

[ 14 ] The mother made a procedural objection to the father’s motion, saying he had not made a claim for an accounting by way of substantive relief and he is not entitled to claim an accounting relating to property within a motion to change a support order. In my view this objection is not well founded. It is always open to a party to bring a motion to change a final support order alongside a motion, even a contempt motion, dealing with compliance with or enforcement of any other aspect of the same final order. The two motions may not always be subject to the same timelines or procedures (for example, case conferences), but they may be dealt with together so long as the applicable rules are complied with, adequate notice is given and a party is not unduly delayed or otherwise prejudiced by dealing with them together.

[ 15 ] In this case, the father is not seeking the equitable remedy of an accounting so much as he is seeking a taking of postjudgment accounts of payments made or sums credited against his obligations under the order of November 9, 1998. The relief the father seeks is a determination of whether the order has been satisfied (or not) or even overpaid. This claim is in the nature of interlocutory relief, although it is sought after the final order, because it arises out of the final order. A separate application is not necessary. A motion could have been brought on its own, but in this case the father has chosen to bring his motion at the same time that his motion to change the support order is moving forward, and indeed his notice of motion also seeks temporary relief from the support terms of the final order. The procedure chosen is appropriate.

[ 16 ] That is not, however, to say that the father is entitled to the orders he seeks. The mother has provided a statement of account, albeit only one page long, but containing dates, references to transactions, amounts received, interest calculations and balances owing. The mother’s lawyer acknowledged that the father would be entitled to more detail and to substantiating documentation, at least for transactions that are not matters of public record (such as real estate transfers). There was no evidence before me to indicate that the various devices in rules 13, 15, 19 and 20 to secure the disclosure of information and documents have been used. In argument, the father’s lawyer told me she had not even checked the interest calculations provided, which state a start and end date and a principal balance on which the interest is calculated. It is not appropriate for the court to order now what the father has not asked for or tried to obtain through the disclosure mechanisms in the rules or in a case conference focused on disclosure.

[ 17 ] The mother also submits that the court should not entertain the father’s motions because he is not in compliance with the 1998 final support order. The father claims he is impecunious. The proof of that, so as to cause the court to exercise its discretion to permit him to seek orders of the court now, lies on him. A full explanation of the events over the last 14 years would be necessary. That has not been provided.

[ 18 ] Having brought on a motion to change the 1998 support order, the father is required to comply with the rules, especially rule 13, governing his own financial disclosure. The father has not updated his financial statement, which is now approaching two years old and attaches proof of income from four to six years ago. He has not explained what has become of the substantial sums of money that came to him after Med-Chem’s bankruptcy, which resulted in the almost unheard of result of payment of the creditors’ claims in full, with interest, and a return of capital to the father in seven figures, according to the mother’s uncontradicted evidence.

[ 19 ] The father has not explained why, after 14 years of separation, the mother should now become responsible for his support. There is equally no explanation of why the motion to change has proceeded so slowly. He has not made out a clear or compelling case that he is entitled on a temporary basis not just to terminate a final support order, but also to reverse the flow of support. The mother has actually conceded that all support under the order is now at an end except for postsecondary education costs for the youngest child.

[ 20 ] For all the above reasons, the father’s motion is dismissed. Matters relating to disclosure by either party are to proceed following the normal disclosure process under the rules and may be addressed at a case conference if desired.

[ 21 ] The mother also raised a limitations issue as a bar to the father’s motion. In my view, since both parties rely on the terms of the February 4, 1999 consent final order as still governing their rights, and the mother has asserted the order has not been satisfied and has produced a summary version of the sums she claims and the amounts credited under it, the father is entitled to ask for disclosure of documents and provision of information to substantiate the state of the account under the order as claimed by the mother.

[ 22 ] Costs may be addressed in writing, if not agreed. The mother may serve and file up to three pages of argument, plus a costs summary and any relevant offers. The father may serve and file a responding argument of up to three pages, plus a costs summary and any relevant offers. The mother may serve and file a one page reply argument. The mother is responsible for having the file sent to me. If either party wishes, costs may be spoken to for 30 minutes on any day I am hearing motions or trials, by booking time through the trial coordinator. If no appointment is sought by June 30, the costs will be deemed to have been settled by the parties.

Perkins J.

Date: March 8, 2012