SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: FS-10-70618-00
Date: 20121116

RE: Svetlana Gazizova – and – Elias Hamouche

BEFORE: Tzimas J.

COUNSEL:
John Syrtash for the Applicant
James Singer, for the Respondent

HEARD: November 15, 2012

E N D O R S E M E N T

[ 1 ] The Applicant brought two motions before this court on July 16, 2012. The motions resulted in two court orders. The first, dated July 19, 2012 ordered the Respondent to:

a) Pay the Applicant $40,000.00 to fund interim disbursements and such payment is to be made within 30 days;

b) Participate in questioning on or before October 15, 2012;

c) Serve and file an updated financial statement;

d) Serve and file his 2010 income tax return and notice of assessment within 30 days;

e) Serve 2011 income tax return and notice of assessment within 30 days; and;

f) Provide the disclosure requested in the Report issued by Mr. Jonathan Hames dated July 6, 2012.

[ 2 ] The second order dated August 31, 2012 was a cost order in favour of the Applicant, for both motions in the amount of $8,770.84.

[ 3 ] As of October 26, 2012, the Respondent had not complied with either of the orders of Justice Van Melle.

[ 4 ] Today the Applicant seeks an Order that the Respondent be found in contempt for failure to comply with the orders noted above. The Applicant also seeks an Order that the Respondent’s case be dismissed or that his answer be struck from the Record pursuant to Rules 1(8)(b), 14(23), 19(10)(4,5,6,7), 13 (17)(a, b, c, e) of the Family Law Rules, and costs of this motion on a substantive recovery basis.

[ 5 ] The Respondent does not appear to appreciate the gravity of failing to comply with the orders of this court. The affidavit filed in response to today’s motion does not offer any satisfactory explanation over why the non-monetary items listed in the order of July 19 remain outstanding. Nor is there any satisfactory explanation or a proposed timetable as to when those obligations might be satisfied. Similarly, regarding the outstanding financial obligations flowing from the two said orders, the Respondent limited his evidence in his affidavit to a criticism of Justice Van Melle’s Orders and furthermore he indicated that he simply could not “ever come up with $49,000.00”. I note that the respondent did not seek to appeal either of these Orders. Simply not liking the Orders is not a basis for non-compliance.

[ 6 ] Taking into account the submissions of the parties, the specific circumstances and history of this case, as well as the cases dealing with the appropriate remedies in instances where a party deliberately fails to comply with court orders, the court orders the following:

a) Participation in the trial of this case, with the exception of matters relating to custody and access shall be conditional upon the satisfaction and compliance with the Orders of July 19 and August 31, 2012, no later than 30 days from the date of this Oder;

b) If the terms of the two said orders are not satisfied within the next 30 days, the Respondent’s pleadings shall be struck insofar as they relate to any and all matters, other than custody and access; and

c) The Applicant is awarded costs for this motion in the sum of $5,000.00.

[ 7 ] The Applicant raised a concern that with the trial set for January 2013, even if the financial disclosure is completed within the 30 day period, it will likely be very difficult to be ready for trial in January and asked that the trial be adjourned. Given the history of this matter, I am reluctant to accede to any adjournment request at this time. The question of an adjournment will be affected in large measure by whether or not the Respondent complies with this and the previous orders. In the circumstances, although I am not prepared to adjourn the trial at this time, this is without prejudice to the Applicant’s ability to seek an adjournment soon after the 30 day period of this order has expired.

Justice E.R. Tzimas

DATE: November 16, 2012

SUPERIOR COURT OF JUSTICE - ONTARIO RE: Svetlana Gazizova – and – Elias Hamouche BEFORE: Justice E.R. Tzimas COUNSEL: John Syrtash, for the Applicant James Singer, for the Respondent ENDORSEMENT Tzimas J.

DATE: November 16, 2012