COURT FILE AND PARTIES
COURT FILE NO.: FS-11-371125
DATE: 201211203
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: October 9, 2012 with Respondent’s Addendum of October 10, 2012 sent to my assistant on October 10, 2012 and a Reply to the Addendum received from Applicant’s Counsel dated November 19, 2012
ENDORSEMENT
Background
1This endorsement deals with costs arising from my rulings of March 27 and July 20, 2012 mainly dealing with disclosure issues.
2This is yet another case bogged down by issues relating to disclosure.
3Although the Respondent (husband) initially had counsel, he has since sometime in December 2011 decided to act in person.
4The Respondent is a very bright person and is successful in business, yet his decision to proceed without counsel has made the court process more difficult and certainly more expensive for the Applicant (wife).
5The Parties appeared before me on October 9, 2012 to make oral submissions on costs having exchanged written submissions (Respondent September 27, 2012 and Applicant’s October 1, 2012). Because the Respondent also wished to deal with his request for disclosure I set time limits on the costs issues and disclosure issues. After hearing the submissions the Respondent sent and addendum to his written and oral submissions to my assistant the next day, and while the Applicants counsel correctly objected, since I had read the addendum I considered the addendum and the Applicant’s reply to the addendum dated November 19, 2012.
6The issue of costs is not an invitation to re-argue my earlier ruling rulings. My rulings dealt with the Applicant’s motion wherein she sought a finding of contempt based on the allegation that the Respondent failed to comply with Justice Sanderson’s order of December 1, 2011 and at the same time a motion requesting further disclosure from the Respondent.
7The most substantive order relating to disclosure in this case was made on December 1, 2011 by Justice Sanderson. Justice Sanderson gave written reasons and continued a preservation order first made by Justice Kiteley on August 25, 2011 and particularized that the Respondent was restrained from selling, transferring, pledging or otherwise depleting his shares and interest in Envision Mobile Ltd., the property known as 200 Victoria Street, Suite 1006, Toronto. While the wife sought relief against third parties as she alleged they conspired to deprive her from a fair share of the value of Envision Mobile by allegedly lending $700,000 to the husband as seed money for Envision and now the third parties have 39% interest (78%) in total thereby reducing the husband’s share to 22%, Justice Sanderson concluded that the wife had failed to meet the test to grant the injunctive relief against the two lenders.
8Thereafter Justice Sanderson, in great detail, ordered the Respondent to make specific disclosure. The Applicant returned to seek relief based on the Respondent’s non-compliance with Justice Sanderson’s order.
9While not finding contempt, I did find, as I endorsed on March 27, 2012, that I was satisfied that there was non-compliance, reserved costs and adjourned the costs and set new dates for compliance.
10On April 19, 2012, the Respondent brought a motion to seek disclosure from the Applicant. Justice Klowak adjourned the Respondent’s motion to the return date of the motion I adjourned on March 27, 2012 to May 14, 2012.
11At the request of the parties, Justice Greer conducted a conference in an effort to settle the case, but because the case did not settle, the motions were returned to me on June 12, 2012 and I released my Ruling July 20, 2012.
12While I am satisfied that the motion was necessary to compel the Respondent to make some of the disclosure the process could have been simplified and less expensive. I take all this in consideration as I exercise my discretion to fix costs under Family Law Rule 24 and the Courts of Justice Act and keeping in mind the objectives under Rule 2.
Disclosure
13On October 9, 2012, I heard submissions on costs and the Respondent asked that I consider his motion for disclosure by the Applicant. On October 12, 2012, the last day I sat before being away for two weeks the Respondent sent by e mail an Addendum and Respondent’s Reply to Costs Submissions and I was advised that the document was also served on Applicant’s counsel.
14On October 9, 2012 I was asked by the Applicant to relieve the parties from the obligation to produce Affidavit of Documents. Given the continuing allegations and cross allegations I see no reason to relieve either party from properly completing Affidavit of Documents and except for documents solely in the control of the other party relevant to the issues of equalization and income for support purposes the documents should be available for inspection and production no later than February 4, 2012. Included with the Affidavit of Documents should be all documents not previously produced and all documents relied on to support either party’s income and net family property statements relied on for equalization calculations.
15There appears some dispute as to a TD Safety Deposit Box and its contents. If the Applicant used such a box owned or registered in the name of a third party and she has access to such box, she is to disclose any of its contents that belong to her. Any motion related to a non party otherwise need be on motion pursuant to the rules and on notice. I make no further order of disclosure apart from this as against the Applicant as I am satisfied that she has provided the requested disclosure or provided an explanation of why she has not.
16By February 4 th , 2013, the parties shall produce 2011 income tax returns with all attachments as filed and up-to-date financial statements. By February 4 th , 2013 the Respondent is to up-to-date corporate returns of all private companies that he is a shareholder of and the financial statements for each company.
17By no later than February 26 th 2013 , the Applicant may return a motion for advance fees and disbursement and details of any requirements of any expert she will be retaining to deal with the Respondent’s income or values of his assets at separation or issue arising from my July 20, 2012 endorsement ( paragraphs 11 through 16).
18Thereafter, I wish to set a timetable for trial and any further conferences.
Costs
19As far as the issue of costs, the Respondent wishing to exchange disclosure is not an acceptable answer to non-compliance of the orders of this court as the order did not provide for an exchange as a condition of the disclosure being made.
20Significant transactions on various accounts has been made by the Respondent, while he may ultimately have explanations acceptable to the court, non explanations will continue to create suspicions and ultimately perhaps adverse inferences.
21I do not find the Respondent’s excuses for non production of certain bank accounts (that the Applicant had them) as either reasonable or plausible.
22As I started, costs are not about revisiting the rulings I have made arising from the Applicant’s motions first returnable before me on March 27, 2012.
23I have the benefit of the March 27, 2012 transcript and the evidence given by the Respondent. I have reviewed my ruling of July 20, 2012. While I did not find contempt I did find that while there was substantial compliance but that it was not complete or timely.
24The motion giving rise to the motion was served on the Respondent on March 15, 2012. He delivered disclosure thereafter. The Respondent’s answers on March 27, 2012 to questions put to him by Applicant’s counsel confirms non compliance (for a twelve to thirteen month period (Scotia I trade account) because of the costs involved in retrieving the statements and non availability on line.
25The Respondent also conceded that while he had other disclosure ready by January 2012, he did not deliver the documents to Applicant’s counsel but wanted to set up a time to attend at counsel’s office to deliver his disclosure and in fact delivered documents after being served with the motion on March 15, 2012.
26The Respondent claimed that misunderstood the order that required him to deliver bank statements to present as being to the date of separation and not to the date of the order.
27The Respondent also questions why he needs to produce joint accounts as the Applicant has access and right to get such statements on her own request. There was also some issue over the meaning of cancelled cheques.
28I stopped the questioning on March 27, 2012 because based on the questioning I was not prepared to making a finding of contempt. I was also puzzled why the Applicant’s counsel would simply not allow the Respondent to attend at his office to deliver the disclosure he had and offer a time for such delivery to be made.
29On June 12, 2012 I heard further submissions and considered further requests for disclosure. In paragraphs 11 through 15 I deal with the certain limited sub paragraphs of Justice Sanderson’s order and the issue of additional disclosure.
30The Applicant seeks costs of $60,166.54 for her counsel’s efforts to obtain the disclosure ordered by Justice Sanderson on December 1, 2011.
31The Applicant’s counsel should have allowed the Respondent to attend at his office to deliver whatever disclosure he had by January 2012 and acknowledge whatever was brought to him. The motion might have been avoided. The Respondent once served with the motion did attempt to comply and his excuses for certain non compliance and not understanding the period covered or the meaning of the order could have been resolved short of the motion.
32This is a case where, while I am prepared to fix the costs at $35,000, I fix $10,000 to be payable forthwith by the Respondent but the balance left to the trial judge in the cause or before any judge if there is return of the motion for advance on fees and disbursements or unresolved disclosure.
33If the Applicant is to retain an expert, the expert should review the disclosure, the expert’s report provided by the Respondent and provide any further requests for disclosure, costs incurred to date and estimate of fees for any further work to help establish the Respondent’s net family property and income. With that information and evidence, the payment of costs set by me here and further costs or advance on equalization fees and disbursements may be addressed. This endorsement does not relieve the parties from their obligations under the Rules for disclosure or satisfying the court as to the evidence necessary to establish the values supporting their net family property statements and income form before separation and ongoing.
Czutrin J.
Released: December 3, 2012