OSHAWA COURT FILE NO.: FC-05-697

DATE: 20121219

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MEJGANI FAKEIRY, Applicant

AND:

Nasir Fakeiry , Abdul Fakeiry , Shareifa Fakeiry , Shakib Fakeiry and Bamiyan Silver Ltd ., Respondents

BEFORE: THE HON. MR. JUSTICE J.P.L. McDERMOT

COUNSEL: Gail K. MacRae, for the Applicant

Brian Korb, for the Respondent, Nasir Fakeiry

Barry Rubinoff, for the Respondents, Abdul Fakeiry, Shareifa Fakeiry, Shakib Fakeiry and Bamiyan Silver Ltd.

HEARD: November 15, 2012

ENDORSEMENT

Introduction

[ 1 ] This was, essentially, a motion for dismissal of the within application commenced by the Applicant Wife, Mejgani Fakeiry (“Mejgani”) in 2005. The moving parties both complain that nothing was done during a five year period of time between now and September, 2007, when certain procedural directions were made and that because of this delay, their positions have been prejudiced to the extent that the claims against them should be dismissed.

[ 2 ] The Applicant originally brought these proceedings against the Respondent Husband, Nasir Fakeiry (“Nasir”) as well as a number of other Respondents including Nasir’s father, Abdul Fakeiry, Nasir’s mother, Shareifa Fakeiry, Nasir’s brother, Shakib Fakeiry and the family business, Bamiyan Silver Ltd. (collectively the “Added Respondents”). Both Mejgani and Nasir claim custody of the two children and Mejgani claims spousal support and child support; Nasir requests child support. The parties claim equalization of assets, including equalization of the business owned by Nasir and several of the Added Respondents. Mejgani’s claims against the Added Respondents are trust claims arising from their ownership of certain matrimonial assets including the business and several homes. Throughout the years since the commencement of this application, neither Nasir nor the Added Respondents have filed an answer or any respondents’ claim in this proceeding.

[ 3 ] As noted, the motions brought by both Added Respondents and Nasir each request dismissal of these proceedings for delay. Nasir also asks that, if the proceedings against him are not dismissed, the spousal support that he was previously ordered to pay cease and that the Applicant pay him child support; both Nasir and Mejgani request disclosure from each other.

[ 4 ] There was insufficient time available to the parties for argument of the disclosure issues, and there was little evidence as to what disclosure had been provided, and what had not. Moreover, although Mejgani requested an order for the questioning of the parties, that was ordered by Clark J. on May 11, 2005 and accordingly, there is no need for a further order for questioning and that motion is therefore dismissed. The argument before me centred around the respective requests for dismissal for delay, as well as the Nasir’s support claims.

[ 5 ] For the reasons set out below, there will be an order to go as follows:

a. The application against the Added Respondents is dismissed for delay;

b. Nasir’s motion for dismissal of the action, for termination of spousal support, for child support and for disclosure is dismissed without prejudice;

c. Mejgani’s motion for disclosure and questioning is dismissed, without prejudice.

History of These Proceedings

[ 6 ] Mejgani and Nasir were born in Afghanistan. They came to Canada in their youth, were married in 1993 and they separated on February 1, 2004. There are two children, Billal and Samir, who are presently 18 and 11 respectively; they have lived with their father since separation.

[ 7 ] Mejgani commenced proceedings in this court by way of application filed on April 5, 2005; a subsequent amended application was filed on November 6, 2006. In addition to her husband, Nasir, the Applicant named the Added Respondents and made distinct claims against those Added Respondents. From my reading of the Amended Application, it appears that Nasir’s parents are named as respondents because they were the registered owners of the matrimonial home (which has now been sold) as well as another home bought after separation. Abdul and Shakib Fakeiry appear to have been named as shareholders of the family business, Bamiyan Silver Ltd. against which the Applicant claims a constructive trust interest; considering that claim, Bamiyan Silver Ltd. is also named as a party for obvious reasons.

[ 8 ] The Respondent Husband completed a business valuation respecting Bamiyan Silver Ltd. Based upon the valuation, he says that he paid the Applicant $417,000 toward the equalization payment; Mejgani states she received $378,500 on account of the equalization plus $36,500 on account of the net proceeds of the sale of the home for a total of $415,000. According to the materials, Nasir had paid the Applicant the advance on the equalization payment and her share of the net proceeds of the home by the end of 2005.

[ 9 ] The Applicant had concerns about the business valuation produced by Nasir; she retained Linda Brent to obtain her own valuation. This has not been completed; Mejgani states that this is because Nasir has failed to provide necessary disclosure but Nasir denies this to be the case and states that he has or is willing to provide everything requested including documents in the hands of his business valuator; there is, however, a recent dispute over the costs of photocopying those documents. It appears that although Nasir’s accountant had documentation related to the business, it has now been lost due to the failure of the hard drive on his computer.

[ 10 ] By way of consent order of Clark J. dated May 11, 2005, Nasir has been paying temporary spousal support in the amount of $1,500 per month to Mejgani; that support was ordered retroactive to February 1, 2004. Although the children live with Nasir, Mejgani does not pay child support to him, which may be reflective of the fact that the support payable is well under the amount payable under the Spousal Support Advisory Guidelines (although the spousal support was ordered well before the SSAGs were promulgated).

[ 11 ] Since the sale of the home and the payment of the advance towards the equalization payment in 2005, little has been accomplished in this matter. There were several court appearances between April and June, 2005; no steps were then taken until September 19, 2007 when the parties appeared before Salmers J. for a settlement conference. At that conference, the following order was made:

1. The Applicant’s claims in pleadings to be amended, if desired, by November 1, 2007;

2. Resultant necessary amendments to other parties’ pleadings by December 1, 2007;

3. Disclosure lists shall be completed by December 31, 2007. Answers to be provided by January 31, 2008 and questioning to be completed by February 29, 2008.

4. The Applicant shall provide particulars of her claims against Mr. Rubinoff’s clients at the same time as delivery of her amended Claim.

5. The Applicant is granted leave to continue and amend claims against Mr. Rubinoff’s clients, provided that particulars are provided as per paragraph 5 above.

[ 12 ] Over a year later, Hughes J. noted at a scheduled settlement conference on December 17, 2008, “little progress has been made since the order of Justice Salmers dated the 19 Sept 07”. That was an understatement; the pleadings were not amended, particulars were not provided and no evidence was provided to me of disclosure lists having been exchanged. In fact, prior to that date, on July 21, 2008, a Notice of Approaching Dismissal was served by the clerk of the court; according to statements made by counsel in argument, no one took steps to set the matter down for a conference or trial pursuant to that notice, but the clerk failed to follow through with a dismissal order. It may be that the Respondents thought the matter to be over after that notice was served; according to the affidavit of Charlene Terry sworn June 6, 2012, Mr. Rubinoff as the solicitor for the Added Respondents had thought the matter to be dismissed until receiving a draft consent from Ms. MacRae dated March 16, 2012. [1] That consent purported to reinstate the matter while staying proceedings as against the Added Respondents. Although Mr. Korb signed the consent on behalf of Nasir, Mr. Rubinoff refused to sign the consent; it was his position, and remains so, that the action should be dismissed against his clients both for delay and because the Applicant failed to comply with the Salmers J. order dated September 19, 2007.

[ 13 ] Between the abortive settlement conference dated December 17, 2008, and the consent dated March 16, 2012, nothing appears to have been done by any party to this proceeding (although I understand that custody and access was settled between Mejgani and Nasir at some point in the proceedings). Mejgani states in her affidavit that the matter was “removed from the court process to negotiate a settlement in a collaborative-like process.” Although she states that the negotiations broke down, she does not say when negotiations came to an end; she also does not provide details of the negotiations or any narrative indicating when and what negotiations took place. It is acknowledged that, if negotiations took place, they did not involve the Added Respondents. In short, the explanation by Mejgani of her delay in moving this matter along is sadly lacking.

[ 14 ] After the solicitor for the Added Respondents refused to consent to the continuation of the application, the Applicant attempted to have the matter continued through a 14B motion filed on notice on June 5, 2012. In that motion, the Applicant requested that she be given leave to file a “Fresh Amended Statement of Claim” as well as an order setting the matter down for a further case conference, and an order that no motions be brought prior to the next case conference date. Affidavits in response were filed by both Nasir and the Added Respondents; the 14B motion was dismissed by Hatton J. based upon the complexities of the issues raised in the motion. Leave was given to bring the issues before the court on a regular motions date. Costs of that 14B motion were reserved to the next step in this proceeding, being this motion.

[ 15 ] Both Nasir and the Added Respondents have brought motions to have the matter dismissed due to delay. Nasir requests, in the alternative, that spousal support come to an end, again as a result of the delays by the Applicant. He also requests child support and financial disclosure. Mejgani moves for extensive disclosure and questioning.

Analysis

[ 16 ] The motions to dismiss brought by the Added Respondents and Nasir claim similar relief, but are based upon different principles. While Nasir and the Added Respondents both rely on delay, the Added Respondents also base their motion on the Applicant’s failure to comply with the order of Salmers J. dated September 19, 2007. As well, there are competing support issues between Nasir and Mejgani, something which is obviously not relevant to the Added Respondents. Moreover, Nasir also has claims against the Applicant which he also did not prosecute (for example, his claim for child support) which also may play into issues concerning his claim. I will accordingly deal with the motion brought by the Added Respondents separately from that brought by Nasir.

[ 17 ] Accordingly, the issues to be considered are as follows:

a. Should the application for trust relief be dismissed as against the Added Respondents?

b. Should the application against Nasir be dismissed for want of prosecution?

c. Is Nasir entitled to a variation or elimination of the spousal support payable under the temporary order of Clark J. dated May 11, 2005 and /or an order for child support?

d. Should an order for disclosure go as requested by both Nasir and Mejgani as requested in their respective motions?

The Motion of the Added Respondents

(a) Should the application for trust relief be dismissed as against the Added Respondents?

[ 18 ] There are two grounds for the Added Respondents’ motion to dismiss. Firstly, Mr. Rubinoff states that the application should be dismissed as against his clients because the Applicant failed to comply with the order of Salmers J. dated September 19, 2007. That order, it will be recalled, stated that the Applicant was to provide particulars of her claims against the Added Respondents; the order further provides that the Applicant had leave to “continue and amend her claim” against the Added Respondents, “provided that particulars are provided as per paragraph 5 above.” Secondly, Mr. Rubinoff states that even if there is no breach of the order sufficient to allow for a dismissal of the claim, the Applicant has delayed matters to such an extent that his clients are prejudiced and the claim should not be permitted to continue against his clients.

[ 19 ] I shall consider each of those grounds in turn.

(i) Dismissal for failure to comply with the Salmers J. order dated September 19, 2012

[ 20 ] There are several claims against the Added Respondents outlined in the Amended Application dated November 6, 2006. The Amended Application firstly states that Nasir’s parents, Abdul Fakeiry and Shariefa Fakeiry, held 80% of the matrimonial home located at 1060 Sherman Crescent in Pickering, Ontario in trust for that Applicant and Nasir. That home has now been sold; according to the affidavit sworn by Nasir, the Applicant has received her one half share of the net proceeds of that home. The claim secondly states that another residence purchased after separation at 2198 Greenwood Avenue, Ajax, Ontario, was purchased in the names of Abdul and Shariefa Fakeiry; the Applicant states that this property was purchased with the equity in the matrimonial home in order to remove that equity “beyond my reach for purposes of equalization.” Finally, the claim alleges that Nasir’s father, Abdul Fakeiry and Nasir’s brother Shakib Fakeiry, hold their shares in the business known as Bamiyan Silver Ltd. in trust for both the Applicant and the Respondent.

[ 21 ] This is not a motion for summary judgment and I am accordingly not concerned with the merits of the Applicant’s claim; however, I do note that Nasir states that Mejgani has already received her share of the net proceeds of the matrimonial home along with a substantial payment made on account of the equalization payment owing to her. The receipt of her share of the equity in the home is not denied by Mejgani. The claim against 2198 Greenwood Avenue is stated to be based upon the fact that Nasir’s “true equity in the matrimonial home has been transferred into property which is now beyond my reach for the purposes of equalization.” Although Mejgani now states in her affidavit that other matrimonial assets went into that home, the basis of the claim in the Amended Application is the misappropriation of the funds from the matrimonial home and nothing else. It is difficult to see how Mejgani can claim that her equity in the matrimonial home was removed from her reach when she was paid her share of the net proceeds from that home sometime in October, 2005, which Mejgani acknowledges receiving in paragraph 45 of her affidavit sworn November 8, 2012. Those facts alone may deal with the claims against Nasir’s mother and father respecting both the matrimonial home and 2198 Greenwood Avenue apart from the issue of delay.

[ 22 ] The jurisdiction to strike pleadings for failure to comply with a court order is contained in Rule 1(8) of the Family Law Rules [2] which reads as follows:

(8) The court may deal with a failure to follow these rules, or a failure to obey an order in the case or a related case, by making any order that it considers necessary for a just determination of the matter, on any conditions that the court considers appropriate, including,

(a) an order for costs;

(b) an order dismissing a claim made by a party who has wilfully failed to follow the rules or obey the order.

[ 23 ] Throughout this proceeding, the Added Respondents have been consistently concerned with the lack of particulars of the claim against them; they have not filed an answer because they say that the Application does not set out the claim against them with sufficient particularity to allow them to make response. This was recognized in paragraph 6 of the Salmers J. order noted above; that paragraph along with paragraph 5 of the order not only states that particulars are to be provided; it also states that the Applicant may “continue and amend her claim” against the Added Respondents only if she provides those particulars.

[ 24 ] It must also be noted that the Salmers J. order was not the first order requiring the Applicant to provide particulars in this matter. I had previously spoken of the Clark J. temporary order dated May 11, 2005; in addition to the support provisions contained in that order, that order also provided that the Applicant was “to file full particulars in her amended pleadings respecting the claims for constructive or resulting trusts.” Presumably the response to that paragraph was the Amended Application dated November 6, 2006; the failure of that amended claim to adequately address that issue is evidenced by the Salmers J. order which not only orders further particulars; it states that the matter cannot be continued against the Added Respondents unless and until those particulars are provided. Moreover, those particulars were to have been provided by December 1, 2007, almost five years prior to argument of the motion.

[ 25 ] It is common ground that the necessary particulars were never provided within the time limits set out in the order or at all. Apart from the obvious effect of paragraph 6 of the Salmers J. order (which seems to state that the application cannot be continued as against the Added Respondents unless those particulars were provided within the time limits in the order), the issue is whether there is a wilful breach of the order sufficient to allow me to dismiss the Applicant’s claim against the Added Respondents.

[ 26 ] As is clear from the rule, for a remedy to be available to the moving party, the breach of the order must be “wilful”: see Martin v. Martin , [2005] O.J. No. 4567 (S.C.J.) . For an action to be wilful, it must be “voluntary and intentional, but not necessarily malicious”: see Black’s Law Dictionary , (9 th ed.) at p. 1737.

[ 27 ] The Added Respondents have provided no evidence of an intentional breach of the order for particulars. There is no evidence of a demand for compliance which was ignored as was the case of Martin v. Martin, supra , where there was clear evidence of a failure to convey the matrimonial home to the responding party contrary to a final order and notwithstanding demands made by counsel. I do not find that the Added Respondents have provided evidence of a wilful breach by the Applicant of the order in question. If anything, the failure to provide the particulars in question appears to have been an inadvertent or negligent omission, with either counsel or the Applicant having failed to have in any way addressed or provided the particulars to the Added Respondents. Based upon the evidence provided, Rule 1(8) is not engaged.

[ 28 ] However, based upon the wording of the Salmers J. order, it is evident that the Applicant could not proceed, in any event, with her claim against the Added Respondents until the particulars were provided. This appears to have been recognized by the consent dated March 16, 2012, which provided that the action was to be stayed as against the Added Respondents, something not acceptable to Mr. Rubinoff. Accordingly, apart from the issue of delay, and based upon the wording of the order in question, I would have ordinarily ordered a stay of the proceedings as against the Added Respondents. Therefore, I must consider the issue of inordinate delay in determining whether a dismissal, rather than a stay, is the appropriate remedy in this case.

(ii) Dismissal for Delay

[ 29 ] The basis for this dismissal claim is the delay of nearly five years since the order of Salmers J. That order was made in September, 2007; as far as can be seen, at least in respect of the Added Respondents, and other than the abortive Settlement Conference held in December, 2008, nothing further was done until the draft consent signed by two of the three parties in March, 2012. As noted, the December, 2008 settlement conference did not proceed and I cannot find it to be a step to be taken in the proceeding; it appears that the conference was set down, if anything, to avoid the dismissal of the application by the clerk under Rule 39. I do not find it to be a fresh step in the proceeding; accordingly, the first step taken by the Applicant subsequent to September, 2007 (other than circulating the above noted consent) was the 14B motion brought in June, 2012. Therefore, the delay is in taking any step in this matter is nearly five years, between September, 2007 and June, 2012.

[ 30 ] Rule 39 of the Family Law Rules is not applicable to these motions as that rule deals only with reinstatement of an application after an administrative dismissal by the registrar which never occurred in this case. Outside of setting aside an administrative dismissal of an application pursuant to Rule 39, there is no specific jurisdiction under those rules to dismiss an application for delay. Recourse must be had to either the Rules of Civil Procedure or alternatively the inherent jurisdiction of the court to manage its own process and to prevent abuse of process.

[ 31 ] Under Rule 1(7) of the Family Law Rules , where those rules fail to adequately address an issue before the court, recourse may be had, inter alia , to the Rules of Civil Procedure : [3]

(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

[ 32 ] Although I may have reference to the Rules of Civil Procedure under Rule 1(7), that presumes that there is a rule which is applicable to the present situation. The only rule allowing the striking of a pleading for delay is rule 24.01(1) which reads as follows:

24.01 (1) A defendant who is not in default under these rules or an order of the court may move to have an action dismissed for delay where the plaintiff has failed,

(a) to serve the statement of claim on all the defendants within the prescribed time;

(b) to have noted in default any defendant who has failed to deliver a statement of defence, within thirty days after the default;

(c) to set the action down for trial within six months after the close of pleadings; or

(d) R evoked : R.R.O. 1990. Reg. 194, r. 24.01 (2) .

(e) to move for leave to restore to a trial list an action that has been struck off the trial list, within thirty days after the action was struck off.

[ 33 ] Although it is difficult to analogize this rule to the family law situation, where there is no formal noting in default of a Respondent who has not filed an answer, or no formal close of pleadings, the rule does give a court jurisdiction to strike for delay where there is a substantial delay (in the case of that rule, failure to set the matter down for trial six months from the time that pleadings may be closed). The availability of a remedy to dismiss for delay is strengthened by the fact that a court has an inherent jurisdiction to dismiss for delay where to continue would be an abuse of process. See Marche D’Alimentation Denis Theriault Ltée v. Giant Tiger Stores Limited , 2007 ONCA 695 () , [2007] O.J. No. 3872 (C.A.) where R.J. Sharpe J.A. stated [at para. 24]:

A court has inherent jurisdiction to control its own process, which "includes the discretionary power to dismiss an action for delay": Housser v. Savin Canada Inc. (2005), 2005 35779 (ON SC) , 77 O.R. (3d) 251 , [2005] O.J. No. 4217 (S.C.J.) , at para. 9 . As the Manitoba Court of Appeal wrote, "The power of a superior court to strike a matter for want of prosecution does not hinge on the niceties of the wording of the rules, but rather flows from the inherent power of the court to prevent an abuse of its own process": Kuhr v. Pearlman , 1991 11776 (MB CA) , [1991] M.J. No. 438 , 76 Man. R. (2d) 67 (C.A.) , at para. 16 .

[ 34 ] Based upon a reading of Rule 24 of the Ontario Rules of Civil Procedure as well as the dicta in Marche D’Alimentation, supra , I am of the opinion that there is jurisdiction in the family law context to strike certain applications if I find that there is an unreasonable and unexplained delay which causes undue prejudice to the moving party. At most, those applications must be for financial claims in respect of property; as discussed below, in the family law context, a request to dismiss for delay is likely not available respecting support claims or custody claims, over which a court has an ongoing jurisdiction in considering the best interests of the children or hardship. That is not the type of claim that we are dealing with here; the claims against the Added Respondents sound in trust and the Applicant seeks only a property or financial remedy against them. Accordingly, I have the jurisdiction to strike the within application in respect of the Added Respondents if I find prejudice resultant from the Applicant’s undue delay in proceeding in this matter.

[ 35 ] The test for dismissing a matter for delay requires balancing the dismissal of an application without the opportunity of the Applicant having his or her day in court, as opposed to the prejudice presumed to be suffered from inordinate delay. As stated, again by R.J. Sharpe J.A. in 1196158 Ontario Inc. v. 6274013 Canada Ltd. , 2012 ONCA 544 () , [2012] O.J. No. 3877 (C.A.) [at para. 20]:

The challenge posed in cases involving dismissal for delay is to find the right balance between, on the one hand, the need to ensure that the rules are enforced to ensure timely and efficient justice and, on the other, the need to ensure sufficient flexibility to allow parties able to provide a reasonable explanation for failing to comply with the rules to have their disputes decided on the merits.

[ 36 ] What is important from that statement is that, once inordinate delay is found, it is up to the party responding to the motion, in this case the Applicant, to explain the failure to take steps in prosecuting her application against the Added Respondents for almost five years in this matter. According to R.J. Sharpe J.A., it is her responsibility to provide a “reasonable explanation” for failing to move a matter toward trial on a timely basis. Numerous cases have commented on the proposition that inordinate delay gives rise to a presumption of prejudice that must be rebutted by good and cogent evidence from an Applicant who has failed to take steps within a reasonable time. An often cited case is Woodheath Developments Ltd. v. Goldman , 2001 28019 (ON SC) , [2001] O.J. No. 4018 (Master) as aff’d by 2003 46735 (ON SCDC) , [2003] O.J. No. 3440 (Div’n’l Ct.); in that case Master Dash summarized the case law regarding dismissal for delay as follows:

In conclusion, in order to dismiss an action for delay, unless the delay is intentional and contumelious:

(a) There must be an inordinate and inexcusable delay in the litigation for which the plaintiff or his solicitors are responsible.

(b) The delay must give rise to prejudice to the defendant, in the sense that there is a substantial risk that a fair trial of the issues will not be possible at the time that the action is likely to go to trial.

(c) Inordinate delay since the cause of action arose will give rise to a presumption of prejudice. It will be presumed that the memories of witnesses will fade over time.

(d) Undue delay following the passing of a limitation period will also give rise to a presumption of prejudice.

(e) If there is a presumption of prejudice, there is no onus on a defendant to prove actual prejudice. The plaintiff must lead satisfactory evidence to rebut the presumption of prejudice, failing which the action may be dismissed.

(f) The presumption of prejudice may be displaced by evidence that the issues in the lawsuit do not depend on the recollection of witnesses for their resolution, or that all necessary witnesses are available and they recall their testimony in detail, and that all documentary evidence has been preserved.

(g) If the presumption is rebutted, the onus shifts to the defendant to lead convincing evidence of actual prejudice.

[ 37 ] This summary has been adopted in the civil context on a number of occasions: see Farhi Holdings Corp. v. Lampton (County) , [2009] O.J. No. 5475 (S.C.J.) and Eby v. Reuber , [2011] O.J. No. 5372 (C.A.) .

[ 38 ] In the present case, as noted above, I do not find the delay to be intentional; I characterized the delay as one of omission and negligence rather than intentional. That being said, the Applicant has not offered any sort of excuse for the delay in question; she states in her affidavit that the matter was withdrawn from the court process for negotiation, a process she admitted the Added Respondents were not involved in. She gives no further explanation of why nothing was done in respect of the Added Respondents. Although the Applicant complains that matters were delayed because of difficulties with disclosure, she does not blame this on any of the Added Respondents; she blames her husband, Nasir for the issues concerning disclosure.

[ 39 ] More than seven years after the original application was issued against them in 2005, the Added Respondents still have not been able to file an answer because their very legitimate requests for particulars (as previously recognized by Salmers J.) have not been answered. The Applicant did not comply with the request for particulars set out in the Salmers J. order; although I have already determined that this is not wilful in the sense that this would allow for the striking of pleadings under the Family Law Rules , the failure to comply with the order goes to the issue of unreasonable delay. The Applicant in fact was willing to stay proceedings against the Added Respondents, an action which Mr. Rubinoff found to be unacceptable because his clients would still be left in limbo with the threat of litigation hanging over their heads. The suggestion, however, by the Applicant that proceedings be stayed with an option of moving forward against these parties in the future at will indicates to me the attitude of the Applicant which is that there was little need to move the matter along in respect of those Added Respondents. That is, in my view, an attitude with little consideration for the toll litigation takes on anyone, as well as the failure to recognize the need for finality for parties involved in difficult and sometimes acrimonious family litigation: see para. 14 of 1196158 Ontario Inc., supra . Based on all of the above, I find the seven year delay since the original Application was issued, and the near five year delay in failing to comply with the order of Salmers J. and move the matter towards to be inordinate and unreasonable.

[ 40 ] What of the issue of prejudice? The Applicant states that there is no prejudice; she states in her affidavit that all of the Respondents “are aware of what is going on.” That is the sole statement in her affidavit which deals with the issue of prejudice. Nowhere does she address the available evidence, or whether the evidence that was available seven years ago, when the original application was issued, was still available today. She does not provide material which indicates what evidence will be necessary at trial or the availability of that evidence today. In fact, one piece of evidence which may be crucial at trial, the contents of the accountant’s hard drive, have now been irretrievably lost. The prejudice to the Added Respondents is particularly egregious where they have not even had the opportunity to file their answer due to the Applicant’s failure to provide particulars as to the claims against them. The limitation period for any claims against them has now expired: see s. 4 of the Limitations Act ; [4] this also goes to the issue of prejudice: see Woodheath Developments, supra .

[ 41 ] Finally, considering the Applicant’s right to equalization, the Applicant does not really address the reason for the constructive trust claim against the Added Respondents. As noted above, I am ordering that the proceedings be continued against Nasir and as such, Mejgani has the right to an equalization payment in respect of any assets that he may have had a beneficial ownership interest in on the date of separation. Were she to prove that the Added Respondents have no interest in the assets in question (the business and home at 2198 Greenwood Avenue, Ajax, Ontario) and that they are held in trust for Nasir or were purchased with assets held by Nasir on the date of separation, then the Applicant is entitled to an equalization payment respecting Nasir’s beneficial interest in those assets. No issues of enforcement have been presented to me, and no evidence has been provided of Nasir’s inability to pay the equalization payment; in fact he made a substantial voluntary payment in 2005. It may be that Mejgani wishes to take advantage of any increases in value of those assets since separation and if so, I find it offensive for her to do so considering the time taken to move this matter along; to delay the matter while those assets may have accrued in value is neither equitable nor fair. As the constructive trust claim is a claim in equity, to succeed in this matter, the Applicant’s claim should have been pursued on a timely basis, and it was not.

[ 42 ] The Applicant has not satisfied her onus to displace the presumption that there is prejudice to the Added Respondents resulting from the delays. I accordingly have no choice but to find that these Added Respondents have been prejudiced by the delay in this matter, and that the claim against them be struck. So ordered.

Nasir’s Motion

(b) Should the application against Nasir be dismissed for want of prosecution?

[ 43 ] Although I am of the view that dismissal for delay may be ordered in a family law proceeding, the decision that I made in respect of the Added Respondents was in respect of claims made against them which were, of their nature, civil or financial claims. The claims against the Added Respondents sounded in trust and were to recover an interest in property purportedly held by those respondents. With respect to normal family law claims between spouses (and this may be the reason why there are few if any family law cases considering this issue), different considerations apply.

[ 44 ] It is trite that family law proceedings are never finalized; they often consist of claims arising from the breakdown of the marriage, which are revisited between the parties from time to time over the years resulting from changes in circumstances. This is particularly so in respect of claims for spousal and child support, which may be revived or reviewed if there is a material change in circumstances: see s. 17 of the Divorce Act . [5] The same would apply to custody and access claims which are also subject to review under s. 17 of the Divorce Act . The interests of children or issues of hardship to be addressed through support are almost always open to court intervention notwithstanding inordinate delay; there are no time limits to any claims concerning children for obvious reasons and delays in prosecuting support claims are addressed through retroactivity of support and not through dismissal of the claim: see D.B.S. v. S.R.G. , 2006 SCC 37 () , [2006] 2 S.C.R. 231. Even a claim to equalization of property is not necessarily statute barred after the applicable limitation period as a court may exercise its jurisdiction to extend that limitation period under certain circumstances: see s. 2(8) of the Family Law Act . [6]

[ 45 ] Between spouses, it may therefore be inappropriate to impose a presumption of prejudice through inordinate delay as is the case of non-family parties. However, in the present case I do not have to consider that issue; apart from the fact that the claims against Nasir are family law claims as opposed to claims of a civil nature, there are, in any event, several distinguishing factors between Nasir and the Added Respondents which, in my view, make it inappropriate to strike the claim as against Nasir. These are as follows:

a. Nasir in fact, indicated his willingness to proceed with this matter in March, 2012, when his solicitor signed the consent which effectively permitted the application to continue. In other words, in March, 2012, had there been an issue of severe prejudice warranting a striking of pleadings, Nasir could have told his lawyer not to sign the consent; he did not. The execution of the consent is inconsistent with the position of Nasir today which is that his case has been prejudiced through delay. This is in contrast to the Added Respondents, who were consistent throughout that they wished the proceedings against them dismissed and in fact instructed Mr. Rubinoff not to sign the consent when it was circulated.

b. Unlike the Added Respondents, there is no order in respect of Nasir which is in default. The Added Respondents were entitled to rely upon the failure to provide particulars which was ordered on several occasions, and which prevented them from filing an answer over a seven year period of time; that is not the case for Nasir (who apparently has also not filed an answer even though there is no stated reason why he failed to do this as was the case of the Added Respondents).

c. As indicated by Nasir’s failure to file an Answer and Claim by Respondent in this proceeding, he has been less than diligent in prosecuting his claims as against the Applicant. He is making a claim for child support and also presumably would be making a competing claim for the equalization of property. This, as well as the settlement of the custody and access issues may indicate that Mejgani and Nasir had, as alleged by Mejgani, withdrawn from the litigation process in order to negotiate a settlement. As well, apart from that, if Nasir has failed to adequately prosecute his own claims in this proceeding (and he does not explain his own delay in moving the matter along), he cannot now ask a court to strike his former wife’s claims because of a similar default.

d. On the issue of prejudice, the Respondent has, in fact, obtained a business valuation; if there is prejudice, it is the Applicant who is prejudiced as evidence which may go to the valuation of the business has now been lost through the failure of the accountant’s hard drive. Nasir has his own business valuation, which was completed on a timely basis; Mejgani’s failure to prosecute her claim may result in a business valuation which was not as complete or which may not carry as much weight at trial; that prejudice results from her own default. If any party is prejudiced by the delay, it appears to be the Applicant who is so prejudiced.

[ 46 ] Accordingly, as between Mejgani and Nasir, the delay in prosecuting this application appears to be mutual in nature, and any prejudice resultant from this delay appears to be to the account of the Applicant and not Nasir. In March, 2012, Nasir appears to have agreed that the matter could proceed; by doing so, he acknowledged as of that date the lack of prejudice in proceeding in this matter and his material does not show any circumstances which may have arisen since then to displace that. Nasir’s motion to strike the Applicant’s claims against him is therefore dismissed.

(c) Is Nasir entitled to a variation or elimination of the spousal support payable under the temporary order of Clark J. dated May 11, 2005 and /or an order for child support?

[ 47 ] In his affidavit sworn on July 25, 2012, Nasir states that he has been paying $1,500 per month in spousal support as ordered by Clarke J. on May 11, 2005. He requests that his spousal support be terminated because of delay, or that the Applicant be ordered to pay child support retroactive to February 1, 2004. As noted, both children have resided with Nasir since separation; it is common ground that no child support has been paid by Applicant since that date.

[ 48 ] Nowhere in that affidavit does Nasir address the issue of how the spousal support was quantified; moreover, until the issue of delay was raised, he took no step towards obtaining an interim variation of the order. Other than the delay, he does not provide evidence of a change in circumstances which would normally be required to vary an order under s. 17 of the Divorce Act . It may very well be that the spousal support was set in a lesser amount based upon the Applicant’s child support obligation; certainly as noted by Mejgani, it was a lesser amount than that dictated by the SSAGs.

[ 49 ] Finally, I note that Nasir has not complied with Rule 13(4) which requires a financial statement to be filed with any motion to change a temporary support order. I have absolutely no updated financial information with which to determine the amount of support which should be payable by Nasir.

[ 50 ] The within motion should only be heard once the ongoing issues of spousal support and child support are conferenced. The motion for a change in spousal support and/or for child support to be payable is dismissed without prejudice to renew upon proper material including proof of a change in circumstances, and only once the issue has been adequately conferenced by the case management justice.

Applicant’s and Nasir’s Motions re Disclosure

(d) Should an order for disclosure go as requested by both Nasir and Mejgani as requested in their respective motions?

[ 51 ] As noted above, there was little or no time to argue the issues of disclosure. Presumably, Nasir wishes updated financial disclosure because of the ongoing support that he is paying; Mejgani wishes disclosure in order to complete her business valuation.

[ 52 ] Usually a motion for disclosure, especially one as extensive as that of Mejgani, requires some evidence of the requests for disclosure, what disclosure was provided, what disclosure was not and the reasons as to why that disclosure was refused if given. In the case of extensive disclosure to complete a business valuation, the evidence will sometimes include correspondence from the business valuator indicating the deficiencies in provided disclosure.

[ 53 ] In the present case, there is a conflict on the evidence as to whether disclosure was provided or not. It may be that Linda Brent will be satisfied with the disclosure received from Nasir’s business valuator; some evidence may be missing due to the failure of the accountant’s hard drive and because of the delay and that may in fact be Mejgani’s problem. At present, however, there is no evidence before me which allows me to determine that, as far as Mejgani is concerned, she is lacking the requested disclosure or is entitled to the disclosure requested, or as to whether that disclosure is presently available.

[ 54 ] In respect of the motion for financial disclosure brought by Nasir, I note that the last financial statement filed by either party was that filed by the Applicant in March, 2005; Nasir has never filed a financial statement in this proceeding.

[ 55 ] Accordingly, both motions for disclosure are dismissed, subject to the following:

a. Each of Nasir and Mejgani to file a financial statement in this proceeding within 30 days of this order, with all attachments as required by the Family Law Rules ;

b. Motions for disclosure may be brought back before the case management justice on proper evidence as noted above by way of 14B motion, only after disclosure issues have been adequately canvassed between the parties at a conference.

Order

[ 56 ] There will accordingly be an order to go as follows:

a. The Applicant’s claim against the Added Respondents is hereby dismissed for delay.

b. Nasir’s motion for dismissal for delay is dismissed;

c. Nasir’s motion for child support and to vary spousal support is dismissed without prejudice to renew on proper evidence, including compliance with Rule 13(4), and only once the issues of interim support are conferenced by the case management justice;

d. The motions for disclosure are dismissed on the following terms:

i. Each of Nasir and Mejgani to file a financial statement in this proceeding within 30 days of this order, with all attachments as required by the Family Law Rules ;

ii. Both motions for disclosure may be brought back before the case management justice on proper evidence as noted above by way of 14B motion, only after disclosure issues have been adequately canvassed between the parties at a conference.

e. Mejgani’s motion for questioning is dismissed.

f. Matter to be adjourned to a settlement conference on a date to be set for the trial coordinator, with settlement conference briefs to be served and filed prior to setting the matter down for the settlement conference.

[ 57 ] The parties may make written costs submissions (including costs submissions respecting the 14B motion heard by Hatton J.) not exceeding four pages in length not including costs memoranda and any offers to settle made on the motion. The Applicant to make her costs submissions within 20 days of this order and the Added Respondents and Nasir to provide their responding costs submissions on a ten day turnaround.

McDERMOT J.

Date: December 19, 2012

[1] It must be noted that although Mr. Rubinoff’s staff member states that her office thought the matter had been dismissed as of July 21, 2008, Mr. Rubinoff did attend before Hughes J. on December 17, 2008, some five months after the clerk’s notice. At that conference, stated to be a settlement conference which could not proceed, Hughes J. gave leave for any motions to be brought as deemed necessary. It may be that that the clerk did not dismiss the application because the Applicant had complied with Rule 39(12)(e) by setting the matter down for the settlement conference returnable on December 17, 2008.

[2] O. Reg 114/99

[3] R.R.O. 1990, Reg. 194

[4] S.O. 2002, c. 24

[5] R.S.C. 1985, c. 3 (2 nd Supp.)

[6] R.S.O. 1990, c. F.1