Superior Court of Justice - Ontario
CITATION: Tajik v. Maharlouie, 2016 ONSC 7091
COURT FILE NO.: FC-11-81
DATE: 2016/11/15
RE: Zahra Tajik, Applicant
AND
Shahpour Maharlouie, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Kibondo Kilongozi, counsel for the Applicant
Philip W. Augustine, counsel for the Respondent
HEARD: November 8, 2016
ENDORSEMENT on motion and cross-motion
[1] The Respondent, Mr. Maharlouie brings a motion seeking an order requiring the Applicant., Zahra Tajik to post security for costs in the amount of $60,000, plus payment of the outstanding costs award of $5,000.00 made against her by Justice Doyle on June 27, 2016, failing which, the matter shall be removed from the trial list and the Applicant may not take any other steps in this case unless a judge orders otherwise.
[2] The Respondent also seeks his costs of this motion on a full indemnity basis.
[3] The Applicant contests the Respondent’s motion. The Applicant denies that she is a resident outside of the province and has produced an Ontario driver’s licence, health card and OSAP documentation.
[4] With respect to the costs award made against her for the payment of $5,000.00, she acknowledges that the award is still outstanding but that she has not been able to pay it for financial reasons. The reason given by her is that her only source of income is a student loan which she needs to continue with her education. The Applicant further submits that she has not refused to pay the costs award, and in fact has offered to pay it by way of monthly payments of $30.00, which offer the Respondent has refused.
[5] By way of Cross-Motion, the Applicant seeks the following two items of relief:
(a) Leave to amend her pleadings so as to include a claim for unpaid salary from the Respondent’s corporation and occupation rent; and
(b) Leave to file for purposes of trial expert business evaluations of the Respondent’s corporation which is being presented out of time of the court ordered schedule established by Justice Doyle in this matter.
[6] The Respondent contests the Cross Motion to amend the Applicant’s pleadings to include the claim for unpaid salary against the Respondent’s corporation and occupation rent on a property owned solely by the Respondent. It is his position that there is no basis in law for either claim. Furthermore, the delay in making this claim, on the eve of the trial of this matter, underlies the negligible merits of the claim.
[7] With respect to the request for leave to file the out of time expert reports, the Respondent contests the filing of such reports at this late date. The Respondent submits that the Applicant was given substantial opportunity to make such disclosure in the judicial case management directions given by the court and in the face of the Applicant’s chronic delays in this matter.
[8] In the alternative, the Respondent submits, should the Court grant such leave, the Respondent seeks time to respond to these expert reports being produced on the eve of trial. With respect to one of the reports, identified on the record (dated December 31, 2014), the Respondent seeks to have this excluded altogether on the basis that the time period chosen in that report has no relevance to the issues before the court and would create additional cost to him to reply to it.
[9] The Respondent’s motion for security of costs in addition to the immediate payment of the costs award outstanding is granted. My reasons are the following. A brief factual background of this matter is as follows.
[10] The parties married in 2004. After a relatively short marriage, peppered with numerous temporary separations, the parties finally separated in November, 2009. They were finally divorced in February of 2016. There are no children of this union. The Applicant never sought spousal support upon her final separation from the Respondent. Two years later, in January, 2011, the Applicant brought an application for a divorce, spousal support and an equalisation of net family property. The Applicant alleges that the Respondent treated her with cruelty, physical and psychological, and denied her the right to pursue her education.
[11] The Respondent denies that he was cruel to the Applicant and that it was evident very early on in the relationship that the Applicant was not interested in the marriage. He contests the Applicant’s claim and alleges that the marriage was one of convenience and a sham for the sole reason, on the part of the Applicant, to immigrate to Canada; that the Applicant contributed nothing to the marriage and his assets which were well established before the marriage and have always been in his name alone; that the Applicant took substantial cash from him during the marriage for her own purposes; and, that even at the separation, he provided her with a car and paid her insurance which was intended to be a final settlement between the parties. All of these mutual allegations have yet to be proven by way of a trial which is scheduled to be heard this month. This is clearly not the forum for deciding such issues.
[12] It cannot be disputed that since the commencement of her application, the Applicant has not advanced the litigation with any speed or diligence. The long history of the case to bring it to the present point is outlined in the order of Justice Doyle dated May 26, 2016. Nor did the Applicant comply with multiple orders for financial disclosure and undertakings which she gave on her questioning.
[13] On a motion to strike the Applicant’s pleadings brought by the Respondent on the grounds of non-compliance with Court orders for disclosure and the timelines set by the court, the Applicant was found to not have complied with those court orders. Nonetheless, Justice Doyle concluded, after examining the law on the issue, that striking pleadings was a “draconian remedy” in the circumstances of the case. She also noted that between 2011 and 2014 there was a “long hiatus” when neither party seemed interested in moving the case along. Justice Doyle placed the matter on the trial list for November 2016. In her costs decision dated June 27, 2016, Justice Doyle concluded that although unsuccessful, the Respondent’s motion was rendered necessary because of the Applicant’s delay in providing the complete court ordered disclosure. Justice Doyle then awarded costs against her in the amount of $5,000.00, which, as mentioned earlier, remains outstanding.
[14] In considering Rule 24(13) of the Family Law Rules which forms the basis of the motion for security for costs, I am satisfied on the material before me that the Respondent meets a number of factors listed in the Rules, justifying the granting of an order for security for costs. It is also supported by the case law presented by the Respondent’s counsel (See Majeed v. Chaudhry, 2015 ONSC 6014 (Ont. S. C. J.)
[15] Firstly, while the Respondent maintains that she continues to reside in the province of Ontario, I find that her effective residence is in the province of Quebec. That is where she has her home under a tenant’s lease and where she returns to on a daily basis while she attends a University in the city of Ottawa. Her driver’s licence, her health card and her student loan documents show the address of an aunt, whose address is in the city of Ottawa and where the Applicant has lived for different periods of time during the marriage and since the separation. In my view in the face of all of the evidence this is for convenience and for her own reasons and does not in any way prove that her residence is in the province of Ontario.
[16] It is not disputed that there is an outstanding award of costs in the amount of $5,000.00 that has not been paid. I cannot conclude that the Respondent’s refusal to accept that the costs be paid at the rate of $30.00 per month is unreasonable. By my calculation it would have the outstanding costs paid in a little over 12 years. It is unreasonable to expect the person entitled to costs to wait that long. The Applicant had some funds in her bank account and could have made a more reasonable offer to pay off the costs award against her that would have demonstrated her good faith in meeting that obligation.
[17] Finally, as I earlier indicated, this is not the forum for determining the issues in the main application on its merits. Nonetheless, certain undisputed facts of this case raise some serious issues concerning the merits of the case and the good faith of the Applicant’s claims in this family law matter. The first is the short duration of the marriage which is shorter than the period of separation. The second is the length of time it has taken to bring this matter to trial and the Applicant’s substantial contribution to that delay. And thirdly, is the fact that the Applicant has relied on her own financial resources to support herself since the separation of the parties, almost 7 years ago, and yet has never been employed during all of that time. By her own evidence she has been in school for the last 7 years.
[18] The Applicant does not deny that she does not have enough assets in Ontario to pay costs. In fact she has no assets in Ontario.
[19] Clearly, the trial of this matter could incur the level of costs being sought by the Respondent as security for costs. Substantial costs have already been expended on this matter.
[20] For all of these reasons, an order for security of costs in the amount of $60,000.00 is justified and it is so ordered to be deposited with the Court by the Applicant within 7 days from the date of this endorsement. The Applicant is also ordered to pay the outstanding costs award to the Respondent within 7 days from the date of this endorsement. If the Applicant fails to do both of these things, the matter shall be removed from the trial list and the Applicant may not take any other steps in this case without the leave of the Court.
[21] It is not for this Court to deny any party access to the Courts. However, it is the duty of the Court, with orders such as security for costs, to control litigants from pursuing litigation with such a lack of diligence and in a wasteful manner.
[22] With respect to the Applicant’s request to amend her application to include a claim for unpaid salary from the Respondent’s corporation and occupation rent for the home owned solely by the Respondent, the claim for the former is questionable in law as is the claim for the latter. I am persuaded that to allow these amendments at this late date, on the eve of trial, would be unfair to the Respondent and create further delay in this matter. The explanation given for not having made these claims at a much earlier date, in my view, is deficient. The request on both counts is therefore denied.
[23] With respect to the request for leave to file the expert Desnoyers report, clearly they are relevant to the issues raised in this matter and were relevant from the inception of the application. Leave is granted to the Applicant to file all of the expert Desnoyers reports requested, with the exception of the report dated December 31, 2014. After hearing counsel’s explanation for why he seeks to file that particular report, dated December 31, 2014, I was not persuaded that it is relevant to the property or support issues raised in this case and would only create more costs, unjustifiably, for the Respondent.
[24] Given the lateness of the filing of the Desnoyers expert reports, which are admitted, the Respondent is not bound by the timelines provided for in the Rules concerning the filing and serving of expert reports. He shall have until one week before the commencement of the trial to file a reply expert report, if he so chooses.
[25] The Respondent has been substantially successful on this motion and is entitled to his costs. Both Counsel have filed their Bill of Costs. I order the Applicant to pay the Respondent his costs of this motion, which I fix at $5,000.00, payable within 14 days.
M. Linhares de Sousa J.
Released:
CITATION: Tajik v. Maharlouie, 2016 ONSC 7191
COURT FILE NO.: FC-11-81
DATE: 2016/11/15
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Zahra Tajik, Applicant
AND
Shahpour Maharlouie, Respondent
BEFORE: M. Linhares de Sousa J.
COUNSEL: Kibondo Kilongozi, counsel for the Applicant
Philip W. Augustine, counsel for the Respondent
ENDORSEMENT
M. Linhares de Sousa J.
Released: 2016/11/15