CITATION: Ahmed v. Hawthorne, 2016 ONSC 571
COURT FILE NO.: FS-15-402837
DATE: 20160122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Syed Mohammed Ahmed
Applicant
– and –
Juanita Beatrice Hawthorne
Respondent
Juanita B. Hawthorne in person
HEARD: January 21, 2016
F.L. Myers J.
[1] Juanita Beatrice Hawthorne moves to set aside the order for divorce made by Paisley J. dated October 22, 2105. The order was made on a Rule 14B written motion by the husband Mr. Ahmed. Ms. Hawthorne asserts that her husband committed a fraud on the court. She says that he sought judgment without serving her with the application and without having any grounds for divorce.
[2] Ms. Hawthorne also testified on information and belief that Mr Ahmed very quickly re-married in Pakistan. Ms. Hawthorne learned of her divorce and Mr. Ahmed’s re-marriage on October 25, 2015. Justice Paisley’s order contains the usual provision deferring the effectiveness of the divorce for 31 days. Accordingly, even if the order was properly made, it appears that Mr. Ahmed was not yet divorced under Canadian law at the time that he re-married.
[3] Rule 25(14) allows the court to change an order that was obtained by fraud or one that was obtained without notice. Both grounds apply here.
The Facts
[4] The parties married on October 7, 2006. They lived together, in Toronto, at 310-83 Parkwood Village Drive until September 4, 2015. On that day, Ms. Hawthorne drove Mr. Ahmed to the airport so he could fly home to Pakistan to care for his ailing father. He has not returned.
[5] Ms. Hawthorne testified that Mr. Ahmed has been trying to obtain his Canadian citizenship for several years. He learned in early 2015 that his citizenship papers would be coming through shortly. He became a citizen of Canada in June, 2015.
[6] On May 21, 2015, Mr. Ahmed issued his application for divorce. In it, he claims that he and Ms. Hawthorne separated in August, 2013. There are no children of the marriage.
[7] The parties do not own a home. Mr. Ahmed told Ms. Hawthorne that he worked for cash at a Tim Horton’s store. She has been on disability benefits for some time. Accordingly there are no property issues and spousal support is not a practical issue.
[8] By affidavit of service sworn October 14, 2015, Waheza Sheik Hassen testified that on May 27, 2015, she served the application for divorce and a blank answer form on Ms. Hawthorne at Ms. Hawthorne’s apartment on Parkwood Village Drive.
[9] Waheza Sheik Hassen and her husband are friends of Mr. Ahmed.
[10] Ms. Sheik Hassen’s affidavit of service was sworn before lawyer Mbong Elvira Akinyemi on October 14, 2015. On that same date, Mr. Ahmed’s affidavit for divorce was also sworn before Ms Akinyemi. Mr. Ahmed swore in his affidavit for divorce that the parties have been separated for at least one year. He swore that they separated in August, 2013. Mr. Ahmed’s address in his application is the parties’ apartment on Parkwood Village Drive. In his affidavit for divorce, he swears that he lives in Mississauga and that his address is 3255 Stoney Crescent. That is the address of Ms. Sheik Hassen and her husband.
[11] There are two problems with Mr. Ahmed’s affidavit for divorce. First, according to the evidence of Ms. Hawthorne, until he left to travel to Pakistan to care for his ailing father on September 4, 2015, Mr. Ahmed and she live together as spouses at their apartment. They never lived separate or apart. In addition, on October 14, 2015, the date that Mr. Ahmed swore the affidavit for divorce before lawyer Akinyemi in Toronto, Mr. Ahmed remained in Pakistan.
[12] Ms. Sheik Hassen testified that she despite her sworn affidavit of service, she did not serve any papers on Ms. Hawthorne on May 27, 2015 or otherwise. She denied ever attending at Ms. Akinyemi’s office or swearing the affidavit of service before the lawyer. She denied ever having seen or met Ms. Akinyemi before seeing her in court at this hearing. Rather, she says that her friend Mr. Ahmed asked her to sign a document to show that she knew him and that he wanted a divorce so that he could go to Pakistan to care for his ailing father. She says that she signed the document without reading it and returned it to Mr. Ahmed. She also said that Mr. Ahmed never lived at her address.
[13] Ms. Sheik Hassen also testified that since being served with a summons to witness in this matter, she has spoken to Mr. Ahmed in Pakistan. She says that he knows that this proceeding has been brought by Ms. Hawthorne to challenge the divorce. She says that he cannot attend court because he is caring for his ailing father. She also says that does not know if he has re-married.
[14] Lawyer Mbong Elvira Akinyemi testified under summons to witness as well. She says that she has a very busy law practice. People drop in all the time to have her sign or witness documents. She would not be able to recognize them again if she saw them. She says that on October 14, 2015, two people, a man and a woman, attended her office and asked her to swear Mr. Ahmed’s affidavit for divorce and Ms. Sheik Hassen’s affidavit of service. Ms. Akinyemi took copies of their Ontario Drivers’ Licenses. She produced a copy of Ms. Sheik Hassen’s license and Mr. Ahmed’s license. The photocopies are physically quite different. Ms. Sheik Hassen’s license is enlarged and is at the top of a page. The copy of Mr. Ahmed’s license is small, very dark, and is displayed sideways at the bottom of a page. It does not look like they were copied by the same person at the same time. Ms. Akinyemi says that she saw original licenses and looked at the pictures at the time. But she could not say today that it was Ms. Sheik Hassen and Mr. Ahmed who appeared before her that day in her office. She has a busy practice.
[15] Finally, Ms. Hawthorne testified that she recently received a telephone call from a lady whose call-displayed telephone number was from Pakistan. She identified herself as Mr. Ahmed’s cousin. She asked Ms. Hawthorne if she still loves Mr. Ahmed. Ms. Hawthorne said that she does and she asked the caller if she loved Mr. Ahmed. She said that she does. She also said that she and Mr. Ahmed had planned for several years that as soon as he obtained his citizenship, he would come home to Pakistan for her and her daughter.
Analysis
[16] I find that Mr. Ahmed did not serve his application for divorce on Ms. Hawthorne. Ms. Sheik Hassen’s affidavit was fraudulently obtained and submitted to the court. She chose to deny swearing it rather than admitting to swearing a false oath. In either case, Mr. Ahmed deliberately misled Paisley J. as to service and as to the existence of grounds for divorce. The divorce order could not have been granted had Mr. Ahmed not misrepresented the truth.
[17] But that does not end the matter. The divorce is a judgment in rem. That means that it creates a legal status. It is not like typical judgments that just bind one person to pay money to another. Those judgments are personal remedies between the parties. By contrast, a divorce creates a status that can be relied upon by anyone in the world. It is like a marriage or a bankruptcy order. Once a divorce is given, “a new state of fact exists, the parties have a fresh status, and can contract fresh marriages.” Hitsman v. Hitsman, 1970 380 (ON SC). Courts are very reluctant to re-open in rem judgments especially where the status created may have been relied upon by third parties.
[18] I have to consider the fact that if I set aside this divorce, I might be retroactively rendering void the marriage of a lady in Pakistan to Mr. Ahmed. Mind you, I do not know if that is the case. It may already be void since it appears that Mr. Ahmed re-married before the divorce order was effective. Moreover, Pakistan may not require a divorce in Canada before allowing its residents to marry. Ms. Sheik Hassen would not admit if she knew that Mr. Ahmed had married. Mr. Ahmed has chosen to refrain from submitting evidence or participating in this proceeding. I have no sense of the reliability of the information provided to Ms. Hawthorne about Mr. Ahmed’s re-marriage. Accordingly, I regard the prospect of re-marriage by Mr. Ahmed as a possibility rather than as a fact.
[19] Although Ms. Hawthorne has been hurt and embarrassed by Mr. Ahmed’s actions, I do not find there to be any real prejudice to her legal rights. The right to bring some property claims under the Family Law Act, RSO 1990, c F.3 can be lost on divorce. But Ms. Hawthorne does not seem to have any realistic property claims. The status of being married is also a fundamentally important element of one’s personhood that has been lost by Ms. Hawthorne. However, under the Divorce Act, RSC 1985, c.3 (2nd Supp) a marriage can be terminated as of right simply by one spouse separating himself or herself from the other for one year. That is, despite the importance of the state of being married to Ms. Hawthorne, she was always susceptible to that state being ended by the unilateral action of Mr. Ahmed. What he appears to have done is to bring the end about sooner than he might otherwise have been able to do lawfully.
[20] I asked Ms. Hawthorne why she would want to reinstate her marriage at this point. She responded firstly that she did not think that Canada should have to receive Mr. Ahmed’s new wife and her daughter. But that is not a decision for Ms. Hawthorne or for this court. Her other stated reason for seeking to annul the divorce was to require her husband to face her and “do it right.”
[21] Courts’ reluctance to re-open matters that have been determined is a longstanding principle. As Lord Justice James stated in Flower v. Lloyd (1878), 10 Ch. D. 327 at pp. 333-4:
Perjuries, falsehoods, frauds, when detected, must be punished and punished severely; but, in their desire to prevent parties litigant from obtaining any benefit from such foul means, the Court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those very perjuries, falsehoods, and frauds.
[22] Ultimately however, the law sides with honesty over administrative convenience. In Meek v. Fleming, [1961] 3 All E.R. 148, Lord Justice Holroyd Pearce wrote at p. 154:
Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so) it would be wrong to allow him to retain the judgment thus unfairly procured. Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object. Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials. In every case it must be a question of degree, weighing one principle against the other.
[23] In the Hitsman decision mentioned above, Wright J. determined that a mistake made by lawyers was not reason enough to set aside a divorce. He stressed that the judgment for divorce terminates the status of marriage and must therefore be final. However, even in doubting the power of a court to re-open a judgment for divorce, His Lordship noted that there is an exception for fraud.
[24] This is especially the case where a party’s conduct includes failing to serve the party opposite and coming to court, effectively, on a without notice basis. Case law governing the obligations on parties who come to court without notice establish a very high standard of transparency and accountability. Parties who seek relief without notice must make full and frank disclosure of all material facts. The failure to do so can itself lead to the order made being set aside even where the moving party establishes that he ultimately had good grounds for the relief sought. Chitel et al. v. Rothbart et al., 1982 1956 (ON CA).
[25] In my view, the order of Paisley J. must be set aside. The court’s process cannot be so vulnerable to deliberate misuse and provide no remedy. Were it otherwise, we would be inviting people to defraud their spouses and the court to obtain a quick divorce with no grounds and no justice.
[26] I therefore set aside the divorce order of this court dated October 22, 2105 in this application. Ms. Hawthorne shall deliver her Answer and other required documents within 45 days. Ms. Sheik Hassen admitted in court to having received the applicant’s telephone number in Pakistan. The court orders Ms. Sheik Hassen to provide all contact information that she has for the applicant and his brother to Ms. Hawthorne forthwith. Ms. Hawthorne shall serve a copy of this order on Ms. Sheik Hassen by regular mail.
F.L. Myers J.
Released: January 22, 2016
CITATION: Ahmed v. Hawthorne, 2016 ONSC 571
COURT FILE NO.: FS-15-402837
DATE: 20160122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Syed Mohammed Ahmed
Applicant
– and –
Juanita Beatrice Hawthorne
Respondent
REASONS FOR JUDGMENT
F. L. Myers, J.
Released: January 22, 2016