Endorsement

DATE: 201207120
DOCKET: FS-11-371125
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sania Muneeb Ahmed, Applicant

AND:

Muneeb Ahmed Ghuman, Respondent

BEFORE: Czutrin J.

COUNSEL:
James S. Marks, for the Applicant
Respondent – In Person

HEARD: June 12, 2012

ENDORSEMENT

[ 1 ] Although this motion commenced as a notice brought by the Applicant, wife, seeking a finding of contempt against the Respondent, husband, for failing to provide disclosure pursuant to Sanderson J.’s Order of December 1, 2011, returnable March 27, 2012, her counsel submitted that the main objective of the motion was to compel the disclosure, or alternatively, striking the Respondent’s Answer, and not necessarily a contempt finding.

[ 2 ] When the motion first came before me, I was concerned about how it was presented and the Respondent’s ability to respond.

[ 3 ] I allowed the Respondent to be questioned viva-voce concerning the disclosure.

[ 4 ] By the time I heard submissions, the Respondent conceded that he only substantially complied with Sanderson J.’s December 1, 2011 Order (Sanderson J.’s Order) after he was served with the Motion for Contempt.

[ 5 ] The Applicant seeks additional disclosure as per a proposed draft Order filed on June 12, 2012 submitting that this additional disclosure is part of paragraphs 5(nn) of Sanderson J.’s Order requiring the Respondent to respond to the Applicant’s valuator’s requests and supply documents or “indicate in writing why the request is not reasonable”.

[ 6 ] The Respondent maintains that some of these requests relate to documents after the date of the parties separation and would include some documentation that his valuator’s, Deloitte, did not have when they prepared their report on his behalf.

[ 7 ] Sanderson J.’s order set out 42 items of disclosure. The Applicant still seeks a contempt findings with respect to paragraphs 5(cc), (ff), (gg) and (oo) of Sanderson J.’s Order. Originally, the Applicant deposed that 33 items of disclosure remained outstanding. As I said, after being served with the motion, the Respondent substantially complied.

[ 8 ] The Applicant’s Notice of Motion was on Form 14. Rule 14 (23) deals with motions for failure to obey orders.

[ 9 ] A contempt motion must be on Form 31 and must be served personally.

[ 10 ] While no contempt finding can be made, given the failure of the Applicant to use Form 31. For a contempt finding rule 31 must be complied with, however, a rule 14 (23) remedy may still be available.

[ 11 ] Paragraph 5(cc) of Justice Sanderson’s Order requires the respondent to provide an answer (that is his explanation), not a document and while the Applicant may not be satisfied with the Respondent’s answer given, his answer may be explored by questioning. Even if Rule 31 had been complied with, not being satisfied with the Respondent’s answer cannot, in the circumstances satisfy a wilful non compliance with a clear and unambiguous order.

[ 12 ] With respect to subparagraphs 5(ff), (gg) (oo), if these documents are in the possession, control of the Respondent or if he has the ability to obtain them (he claims no interest in Envision Studios Inc.), he should produce these documents and make the request of Envision Studios Inc., I if he does not have control or possession) and to provide evidence of his request and their response forthwith to the Applicant’s counsel. If he provides no proof of request and response and if the disclosure is not made within 30 days and after questioning of the Respondent, the Applicant is at liberty to bring a motion for disclosure, on notice to Envision Studios Inc., and any other third party.

[ 13 ] I note that Sanderson J.’s Order refers to Mr. Figov, an expert retained by the Applicant.

[ 14 ] I also note that para. 5(nn) also deals with additional disclosure and the method to be used.

[ 15 ] Therefore, with respect to the additional requests for disclosure outlined in the proposed draft Order of the Applicant, the Respondent shall, as Sanderson J.’s Order provided, comply and respond as per subparagraph 5(nn). For ease of reference, her Order of December 1, 2011 is attached to this endorsement as Appendix “A”. Applicant’s counsel submits that while no motion was served for this specific Order, Sanderson J.’s subparagraph 5(nn) of the Order should have been complied with. The Respondent shall have thirty days from the release of this endorsement to provide why ant “request is not reasonable” or provide same. At the same time, he should return to Deloitte and show them the request and ask if the requests are reasonable to critique their report or to elevate the report from a “Calculation Valuation”. Their response should be provided to Applicant’s counsel. This issue may be returned thereafter if any dispute remains on this issue. I note that the Respondent maintains that he has satisfied 1(k), (l), if so, he is to provide reference to where this may be found or provide copies to Applicant’s counsel.

[ 16 ] With respect to requests for interim disbursements requested by the Applicant, the issue is adjourned pending a letter from Mr. Figov, the Applicant’s expert, outlining his proposed work and estimate of fees.

[ 17 ] I did not get to Respondent’s motion for disclosure, as the motion took longer than anticipated, however I note that the Respondent seeks disclosure similar to the process envisioned by Sanderson J. Counsel for the Applicant is to respond to the request outlining her position and willingness to provide the disclosure.

[ 18 ] I agree with Applicant’s counsel that requests for joint bank statements, passports have been appropriately answered by responses in his letter of March 13, 2012.

[ 19 ] The Applicant’s suspicions concerning the Respondent’s income and business interests are understandable. They however may be more fully explored as outlined by questioning and the completion of the disclosure issues as outlined by this endorsement.

[ 20 ] The Motion for Contempt is dismissed.

[ 21 ] The parties are to comply with this endorsement.

[ 22 ] All Orders previously made remain.

[ 23 ] The request for further disclosure and advance on equalization or disbursements are adjourned on seven days’ notice as outlined in this endorsement and further and better material, before me, if I am available.

[ 24 ] The Respondent is reminded that since he is a shareholder and officer of Envision Mobile Ltd., his income is not merely what is disclosed on his tax returns. The businesses and corporations in which he has an interest need to make ongoing disclosure so that his income may be determined. The Respondent has the obligation to satisfy the court as to his income. Similarly, he has the onus of satisfying the court as to his business interests and the values, as of the date of separation. The Applicant has the right to relevant and sufficient disclosure to explore the accuracy and reliability of the information provided.

[ 25 ] Costs are reserved to me upon return of motion.

Czutrin J.

Released: July 20, 2012

Appendix “A”