Court File and Parties

COURT FILE NO.: 00-BN-2492 DATE: 2017-03-27 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: TALAT KHAN, Plaintiff

AND:

MOHAMMAD MUNIR SUBHANI, SOBHANI INC., Carrying on business as Pharmacy Clinic, KHATIJA KHATRI, ZULEIKHA KHAN, ABDUR RAHIM KHAN, JOHN DASHWOOD, Barrister & Solicitor and SHERIDAN PARK CREDIT UNION LIMITED, Defendants

BEFORE: EMERY, J.

COUNSEL: Anthony M. Speciale, for the Plaintiff V.K. Sharma, for the Defendants Mohammad Munir Subhani, Sobhani Inc. and Khatija Khatri Edward l. D’Agostino, for Khatija Khatri in Court File No. CV-12-4945 Abdur Rahim Khan, appearing for himself.

HEARD: April 7, 2015, October 7, 2015, December 18, 2015, February 9, 2016, March 9, 2016, March 21, 2016, June 20, 2016 and September 26, 2016

REASONS FOR DECISION

Introduction

[1] If this family case is not the oldest ongoing family matter in Brampton, it must be close to it.

[2] Talat Khan is the former spouse of Abdur Rahim Khan. Mr. Khan and Ms. Khan separated in 1989. Soon after, Ms. Khan brought an application for a divorce and for corollary relief under the Divorce Act and the Family Law Act. These claims included relief for spousal support as well as the determination of property ownership and a claim for equalization. I will refer to this family law proceeding as the “first application.”

[3] The parties were divorced on October 10, 1990. However, the trial of the corollary issues did not take place until early 1994 before the late Justice M. Caswell.

[4] Justice Caswell released her Reasons for Judgment on September 15, 1994. In those Reasons, Justice Caswell granted a final order to determine the property and equalization issues. Justice Caswell also made a final order that Mr. Khan pay spousal support to Ms. Khan until his pension with Atomic Energy Canada Limited (AECL) became payable.

[5] The facts behind the current proceedings have arisen since Justice Caswell released her decision in the first application. The current proceedings consist of a civil application commenced in Kitchener, and two family law motions in an action Ms. Khan commenced in the year 2000. These proceedings ask the court to adjudicate mechanisms the parties have put in issue with respect to Ms. Khan’s ability to enforce the support arrears she claims have accrued under Justice Caswell’s order.

Proceedings Before the Court

[6] The civil application was commenced in Kitchener by Khatija Khatri against Talat Khan in August of 2012. Subsequently, the application was transferred to Brampton. This application has been assigned court file number CV-12-4945, and was heard prior to the two motions brought within what has become known as the “Brampton action,” which she commenced in May, 2000.

[7] Ms. Khatri brings her application as one of the current owners of Bellwood Farm. Ms. Khatri seeks an order vacating the registration of a Certificate of Pending Litigation (“CPL”) from title to Bellwood Farm that Ms. Khan registered in December 1999, and other registrations left over from the first application.

[8] Ms. Khan brings the first motion in the Brampton action for leave of the court to issue a new CPL to register against title to the Bellwood Farm. She seeks that CPL to secure her ability to enforce support arrears against Mr. Khan’s interest in that property in the event the court should order the deletion of the previous CPL from title. She alleges that Mr. Khan’s transfer of Bellwood Farm to Ms. Khatri and to Mr. Subhani was a fraudulent conveyance aimed at defeating or hindering enforcement of the judgment for accumulated arrears in spousal support, interest and various court orders awarding costs.

[9] In the alternative, Ms. Khan asks the court to order that the Writ of Seizure and Sale she filed in 1998 be reinstated, or that leave be granted to register a new Writ of Seizure and Sale against Mr. Khan to enforce the arrears in support and costs Ms. Khan alleges he owes to her.

[10] Despite the long and complicated history of the family proceedings between Ms. Khan and Mr. Khan, I am only called upon in the motion brought by Ms. Khan to determine whether she is entitled on the evidence to a Certificate of Pending Litigation, or if a Writ of Seizure and Sale should be reinstated and filed against Mr. Khan and on what terms. This motion is therefore concerned about leave to issue either a Certificate of Pending Litigation or Writ of Seizure and Sale to preserve the rights of Ms. Khan to enforce the support arrears and costs she claims against Mr. Khan.

[11] The second motion is brought by Ms. Khatri and Mr. Subhani to dismiss this action as against them for delay.

[12] These reasons do not decide whether support is owing, or the amount of any arrears in support that may have accumulated, with interest. The application and the motions do not seek that relief. These reasons also provide no guidance for what preservation or enforcement mechanism may be appropriate for Ms. Khan to seek or employ to collect the support arrears she claims. That is a question she and her counsel must address at the appropriate time.

Factual Basis for Proceedings

[13] The factual foundation for the claims that Ms. Khan is making against Mr. Khan in the Brampton action can be found in the judgment granted by Justice Caswell in court file number 1748/90. At page 24 of the judgment, Justice Caswell found that no equalization payment was owing by either party. Mr. Khan was found to be entitled to retain ownership of the Bellwood Farm that was in his name. Ms. Khan was found to be entitled to retain ownership of the “Homelands” property of roughly the same value.

[14] The only asset that may have made a difference in the net family property of each party was Mr. Khan’s pension with Atomic Energy Canada Limited (AECL). In an agreed statement of fact filed at trial, Ms. Khan and Mr. Khan agreed that they would split this pension on an “if and when” basis (at pages 6 and 28).

[15] Mr. Khan was ordered to pay Ms. Khan $1,500 a month for spousal support. This court ordered support would terminate when his pension became payable.

[16] On February 14, 1998, Mr. Khan’s pension with AECL became payable.

[17] Ms. Khan claims that by February 1998, Mr. Khan was in arrears on the spousal support he was ordered to pay pursuant to the 1994 order. On July 27, 1998, Ms. Khan filed Writ of Seizure and Sale number 98-0259 with the Sheriff for the County of Dufferin that expressly stated on its face, “THIS WRIT ENFORCES AN ORDER FOR SUPPORT”.

[18] It was also on July 27, 1998 that Mr. Khan signed a transfer of Bellwood Farm from himself to Mr. Subhani and Ms. Khatri as joint tenants. This transfer was prepared by Mr. Khan’s lawyer, John Dashwood. Mr. Dashwood was joined as a defendant in the Brampton action, but has since been let out.

[19] Mr. Khan’s wife at the time, Zuleikha Khan, gave her consent under section 21 of the Family Law Act to the transfer of Bellwood Farm to Ms. Subhani and Ms. Khatri. Ms. Khatri is the sister of Zuleikha Khan.

[20] On September 10, 1998, Mr. Dashwood registered the transfer of title to Bellwood Farm from Mr. Khan to Mr. Subhani and Ms. Khatri.

[21] On November 18, 1998, Mr. Khan commenced an application under court file number 98-BN-07654, against Ms. Khan as the Respondent (the “Rescission Application”). In this application, Mr. Khan was seeking an order to rescind or vary all arrears of spousal support he owed. In response, Ms. Khan brought a motion to enforce all arrears in spousal support she considered owing by Mr. Khan.

[22] On November 3, 1999, Ms. Khan brought a motion before Justice Wein to enforce the payment of certain arrears and to dismiss Mr. Khan’s Rescission Application. Justice Wein made an order on November 3, 1999 that Mr. Khan make specific payments by November 12, 1999, failing which the Rescission Application would be deemed dismissed.

[23] Mr. Khan did not make the payments required under Justice Wein’s order by November 12, 1999.

[24] Mr. Speciale informed Justice Seppi of this failure in the submissions he made in the course of a motion he brought to capitalize the amount of support arrears Mr. Khan owed to Ms. Khan on December 9, 1999.

[25] Justice Seppi also made an order on December 9, 1999 granting leave for Ms. Khan to have the registrar order a Certificate of Pending Litigation against title to Bellwood Farm to enforce support arrears and costs. This order was obtained in the Rescission Application commenced by Mr. Khan. This is curious in and of itself, as the Rescission Application was deemed to be dismissed by operation of Justice Wein’s order made the month before.

[26] Justice Seppi also made the following orders on December 9, 1999 in the Rescission Application:

2. THIS COURT ORDERS that monthly support for Talat Khan shall continue by the payment of one-half of the Atomic Energy of Canada Limited pension payable monthly to the Applicant, Abdur Rahim Khan, directly from source to the Respondent, Talat Khan, on a gross basis without the deduction of income tax, which tax shall then be payable directly by the recipient Talat Khan.

3. THIS COURT ORDERS that the Applicant, Abdur Rahim Khan, comply with the Judgment of Madam Justice Caswell dated April 28, 1994 requiring the support payments to be charged on his estate, by procuring a life insurance policy at his expense naming the respondent the sole beneficiary in an amount equivalent to the policy of life insurance existing at the time of the Judgment under which the Respondent was then named beneficiary.

4. THIS COURT ORDERS that because of the Applicant’s wilful refusal to comply with the Judgment of Madam Justice Caswell dated April 28, 1995, the Applicant’s solicitor in his dealings with the transfer of the Bellwood property are subject to an execution and non-depletion Order, costs be awarded to the Respondent on a solicitor and client scale which are fixed at $65,000 inclusive of G.S.T. payable forthwith.

[27] Ms. Khan also obtained a Writ of Seizure and Sale issued in the Rescission Application against Mr. Khan for $89,432.53 in spousal support arrears consisting of $68,000 for costs, and interest at 6% per years under the order made by Justice Seppi on December 9, 1999. This Writ of Seizure and Sale was filed with the Sheriff for the County of Dufferin under Writ Number 0350-99.

[28] On December 16, 1999, Ms. Khan obtained a Certificate of Pending Litigation from the registrar of the court, pursuant to the leave granted by Justice Seppi on December 9, 1999 (the “CPL order”).

[29] Ms. Khatri and Mr. Subhani, as the owners of Bellwood Farm, brought a motion to set aside the CPL order on December 17, 1999. At that time, Justice MacKenzie ordered that the CPL order be set aside on the condition that Abdur Khan make certain monetary payments (the “conditional order”). These conditions provided that he pay to Talat Khan a certified cheque or money order the sum of $8,070.00 on account of arrears, the amount of $2,500.00 for the costs thrown away before Justice Seppi on December 7, 1999 and the costs stipulated by Justice Wein’s order dated November 3, 1999 on or before December 31, 1999. These were the same amounts that Mr. Khan failed to pay under the Order made by Justice Wein on November 3, 1999.

[30] Later that afternoon, at 4:31 p.m. on December 17, 1999, Talat Khan’s solicitor, Mr. Speciale, registered the CPL obtained from the registrar the previous day on title to Bellwood Farm as instrument Number LTD23693.

[31] Justice MacKenzie was advised on March 20, 2000 that the terms of the conditional order made on December 17, 1999 had been fully complied with. On December 1, 2000, Justice MacKenzie signed the order setting the CPL order aside. That order was taken out at Brampton on December 20, 2000.

[32] For reasons that remain unclear 15 years later, neither Talat Khan, or Ms. Khatri and Mr. Subhani, or their respective lawyers took any steps to discharge or delete the CPL from title to Bellwood Farm even though Justice MacKenzie had made an order setting that CPL order aside.

[33] Mr. Khan took steps in 1999 to apply to Public Works and Government Services Canada for the division of his pension with the AECL under the Public Service Superannuation Act. Ms. Khan began to receive a diversion payment each month from Mr. Khan’s AECL pension.

[34] On January 14, 2000, Public Works and Government Services Canada wrote to Mr. Khan stating that since Justice Caswell’s order did not provide for a division, the Superannuation Directorate had no option but to reject his application. The letter further stated that the government required a court order on spousal agreement signed by both parties, which provides for the division of the pension benefits accrued during the period of cohabitation.

[35] The letter also provided a pension division “kit” to be helpful in the event Mr. Khan wished to make another application.

[36] On January 31, 2001, the Public Works and Government Services Canada (Superannuation Directorate) wrote to Ms. Khan to advise her that the diversion paid to her from Mr. Khan’s pension entitlement would cease in February, 2001.

[37] When the parties attended with counsel before Justice MacKenzie on March 20, 2000, Justice MacKenzie made an order in the Rescission application that Mr. Khan pay solicitor/client costs to Ms. Khan in the amount of $59,565. He further ordered that those costs be subject to a charging order against Mr. Khan’s property.

[38] Justice MacKenzie reserved the issue of the language to have the AECL pension divided to Justice Caswell as the trial judge. He further ordered, on consent, that interest on support arrears be determined on the medium amount between interest calculated on a simple interest basis and on a compound basis monthly. Justice MacKenzie granted costs to Ms. Khan of the day fixed at $15,000 plus $105 for G.S.T.

[39] Mr. Khan, Mr. Subhani and Ms. Khatri take the position that Justice MacKenzie knew that Mr. Khan had already transferred Bellwood Farm to Mr. Subhani and Ms. Khatri by March, 2000 when Justice Mackenzie awarded costs and made the charging order against Mr. Khan’s property.

[40] Mr. Subhani would ultimately take steps to convey his interest to Bellwood Farm to Ms. Khatri in 2004. On August 27, 2004 Tariq Shah, a lawyer acting on the behalf of Mr. Subhani and Ms. Khatri, applied to the Director of land titles for the deletion of Writ No. 98-0259 from title to Bellwood Farm.

[41] Talat Khan commenced the Brampton action against her former spouse, Mr. Khan, Ms. Khatri, and her husband Mr. Subhani on May 26, 2000. In the Brampton action, Ms. Khan alleges that Mr. Khan transferred title to Bellwood Farm to them in 1998 to defeat her ability to enforce support arrears by executing under a Writ of Seizure and Sale filed against that property in 1998. Ms. Khan commenced the Brampton action against the several defendants named to her claim to support arrears interest, costs and other relief against Mr. Khan’s estate in Bellwood Farm at all relevant times.

Analysis

The Khatri Application

[42] Khatija Khatri is the registered owner of the property known as Bellwood Farm in Dufferin County. Mr. Khan transferred title of Bellwood Farm to Ms. Khatri and her husband, Mr. Subhani on September 10, 1998.

[43] Ms. Khatri brings her application as one of the registered owners with the intention of completing unfinished business with respect to various instruments registered against title to Bellwood Farm arising from the family law litigation between Ms. Khan and Mr. Khan. Those instruments include the registration of a motion record dated September 23, 1993 as a document general under instrument number MF207081, and a non-depletion order made by Justice Simmons on September 20, 1993 registered as a document general under instrument number MF208079.

[44] Ms. Khatri states in her affidavit that Ms. Khatri and Mr. Subhani were aware that these instruments were registered against title when Mr. Khan transferred title of Bellwood Farm to them in 1998.

[45] Ms. Khatri also seeks to have the CPL that was registered after they had acquired the Bellwood Farm discharged from title. This CPL was obtained in the Rescission Application, which was a different proceeding than the first application concerning all family law issues between Ms. Khan and Mr. Khan, and after various orders had been made by Justice Caswell in 1994.

[46] Ms. Khatri and Mr. Subhani were not parties to the Rescission Application.

[47] Ms. Khatri deposes that neither she nor Mr. Subhani were notified before Ms. Khan’s motion for leave was brought to obtain the CPL in 1999, and they did not appear on the motion.

[48] Mr. D’Agostino made submissions on behalf of Ms. Khatri as though the test for leave to set aside a CPL is applicable on the current application. He submitted several reasons for the discharge of the CPL as a matter of first instance.

[49] Mr. Speciale opposed the application on the following grounds:

1. Ms. Khan had legitimate grounds to obtain leave from Justice Seppi for the registrar to issue the CPL against title to Bellwood Farm on December 9, 1999 because Mr. Khan had previously transferred title to Bellwood Farm to Ms. Khatri and Mr. Subhani in 1998. Ms. Khan alleges this transfer was made by Mr. Khan with the intent of delaying, defrauding or hindering her enforcement of support arrears that had built up under Justice Caswell’s judgment since 1994, and various costs awards had been made against Mr. Khan while he remained the registered owner of the title to Bellwood Farm;
2. A Certificate of Pending Litigation is available under such circumstances where the Fraudulent Conveyances Act applies; and
3. Ms. Khan obtained the CPL and had registered it against title while those support arrears and the costs awards were still owing.

[50] In my view, there is no need to determine whether the CPL order should be set aside or discharged to determine this application. Justice MacKenzie made that determination when he granted the order on December 1, 2000 upon finding that the conditional order he made on December 17, 1999 had been satisfied. The order made by Justice Seppi on December 9, 1999 was already set aside by Justice MacKenzie’s subsequent order.

[51] There is no evidence before me that either of the orders made by Justice MacKenzie in December 1999, March 2000 or December 2000 were ever appealed or set aside.

[52] This leaves only the question of whether the CPL should remain registered against title to Bellwood Farm, even though the authority for that CPL was removed over 16 years ago.

[53] The court should exercise discretion under section 103 of the Courts of Justice Act on the same criteria it applies when deciding whether to grant leave for a CPL to issue, or to set aside a Certificate of Pending Litigation. The relevant factors consider in that event are set out by Master Glustein, as he then was, in Perruzza v. Spatone, 2010 ONSC 841.

[54] A CPL issued under section 103 of the Courts of Justice Act is notice of a legal proceeding to all persons who are not parties to that proceeding. Notice to the world of that proceeding in which a claim to an interest of land is given only if a CPL is issued with leave of the court and registered against title in the proper land registry office under the Land Titles Act or the Registry Act.

[55] Once a CPL is issued with leave of the court and registered against title, it has the practical effect of an interlocutory injunction because it effectively prevents the owner from dealing with the property: Clock Investments Ltd. v. Hardwood Estates Ltd. , 16 O.R. (2d) 671 (Div. Ct.)

[56] The court is given the discretion in section 103(6) in the Courts of Justice Act to discharge the certificate and to make any order the court considers just by imposing such terms as to the giving of security.

[57] Justice MacKenzie exercised his discretion under section 103(6) of the Courts of Justice Act when he set aside the order made by Justice Seppi on December 9, 1999 and granted his order on December 1, 2000. Once Justice Seppi’s order was set aside, the CPL had no legal basis to remain registered against title.

[58] Ms. Khan obtained the CPL order within Mr. Khan’s Rescission Application, and at a time when Mr. Khan no longer owned Bellwood Farm. Mr. Khan requested relief in the Rescission Application to determine support arrears and to vary Justice Caswell’s judgment with respect to his support obligations. Ms. Khan did not bring her own application at the time to claim an interest in land against title to Bellwood Farm when she obtained the CPL order. There was no originating process where she made a claim to an interest in Bellwood Farm.

[59] It has been held by the courts in Ontario that the failure to claim an interest in land or to plead entitlement to a CPL in the original pleading is a fatal defect: Dileo v. Ginell , [1968] 2 O.R. 32 (Master). Therefore, Talat Khan did not have the right to obtain the CPL order from Justice Seppi within the Rescission application.

[60] I heard no evidence that the Rescission Application had been resolved or adjudicated after the order made by Justice Seppi was set aside in 1999. However, the transcript of the proceedings before Justice Seppi on December 9, 1999 was filed on the application. Mr. Speciale had made submissions on that attendance that Mr. Khan had not made the payments to Ms. Khan within the time required by the order made by Justice Wein on November 3, 1999.

[61] Consequently, Mr. Khan’s Rescission Application was deemed dismissed by operation of Justice Wein’s order.

[62] I find that the Rescission Application came to an end for the reasons given by Mr. Speciale to the court on December 9, 1999, and because the same payments were ordered after the deadline set by Justice Wein in Justice Mackenzie’s order dated December 17, 1999. If they had been paid before that time, Mr. Khan would not have been ordered to pay them again.

[63] In the case of Indcondo Building Corp. v. Sloan, 2014 ONSC 4018, [2014] O.J. No. 3722, Justice Penny of this court held that a CPL is superseded by the conclusion of the case in which it was obtained by explaining that:

[166] The ex parte motion was for an interlocutory order, the sole purpose of which was to prevent the dissipation of assets in dispute pending the trial of this action. There has now been, of course, a full hearing on the merits of the plaintiff’s claims and, subject to rights of appeal, a final determination of those claims. In my view, therefore, the issue of the sufficiency of the evidence on the plaintiff’s ex parte motion for a CPL is now moot. I therefore find it unnecessary to rule on the defendants’ motion to set aside the CPLs. Any CPL affecting Hill 'N' Dale must and shall be discharged. Any CPL affecting 42 Riverside has been superceded by my judgment.

[64] A CPL is particular to the legal proceeding in which it is obtained. In my view, it is valid only while the litigation of the issues within that legal proceeding is pending. The CPL ceases to have force and effect upon the resolution or adjudication of the issues within that particular legal proceeding, unless an order of the court provides otherwise. Upon the resolution, adjudication or abandonment of the Rescission Application, the litigation of the issues within the application came to an end, and the litigation was no longer pending.

[65] Talat Khan had already filed a Writ of Seizure and Sale number 98-0259 on July 27, 1998 against title to Bellwood Farm to enforce support arrears under Justice Caswell’s judgment. Talat Khan was already secured as a creditor of Mr. Khan prior to September 10, 1998 when he transferred title of Bellwood Farm to Ms. Khatri and Mr. Subhani. Therefore, Ms. Khatri and Mr. Subhani took title to Bellwood Farm subject to that Writ of Seizure and Sale against property owned by Mr. Khan.

[66] It would appear from the evidence before me that neither counsel brought any of these facts to the attention of Justice Seppi at the time she granted the CPL order.

[67] It is unfortunate that Justice MacKenzie did not use the statutory language in his order that the CPL was discharged, and that its registration be deleted from title to Bellwood Farm. It is equally unfortunate that the order did not specifically direct Talat Khan to have the registration of the CPL deleted from title to Bellwood Farm. However, I consider the language and intent behind Justice MacKenzie’s order dated December 1, 2000 to have the same effect as though Justice MacKenzie had made an order discharging that CPL and ordering that its registration be deleted from title.

[68] Even if I am wrong about the effect of Justice MacKenzie’s order setting aside the CPL order, I would make an order discharging that CPL and ordering the deletion of the instrument LTD23693 from title because of the way the CPL order was obtained.

[69] Section 103(7) of the Courts of Justice Act provides that where a certificate is discharged, any person may deal with the land as fully as if the certificate had not been registered. I consider this language sufficient to permit Ms. Khatri as an owner of Bellwood Farm to seek an order as an aggrieved person, given the default and the unnecessary delay in having Justice MacKenzie’s order varied to specifically require deletion of the CPL from title. I therefore order that the Director of Land Titles in the County of Dufferin to rectify the register by deleting the CPL registered against title to Bellwood Farm as instrument number LTD23693 under section 160 of the Land Titles Act.

[70] On consent, the motion record registered against title to Bellwood Farm as instrument number MF207081 and the related order granted by Justice Simmons, as she then was, on December 20, 1993 registered as instrument number MF208079 shall be deleted from title to Bellwood Farm. This order is made to complete the order made by Justice Snowie on February 20, 2002 to remove and vacate those instruments, which had the intended effect of requiring that each of them be deleted from title to Bellwood Farm at the time.

[71] The application of the applicant Khatija Khatri is therefore granted. An order shall go as follows:

1. An order that the Director of Land Titles for the County of Dufferin, (or Talat Khan, if the Director takes the position that he or she is not bound by this order because the Director was not named as a respondent) to remove and delete the motion record registered as a document general against title to Bellwood Farm as instrument number MF207081;
2. An order that the Director of Land Titles for the County of Dufferin, (or Talat Khan if the Director takes the position that he or she is not bound by this order because the Director was not named as a respondent) to remove and delete the “non- depletion” order of Justice Simmons dated September 20, 1993 registered as a document general against title to Bellwood Farm as instrument number MF208079; and
3. An order that the Director of Land Titles for the County of Dufferin, (or Talat Khan if the Director takes the position that he or she is not bound by this order because the Director was not named as a respondent) to remove and delete the Certificate of Pending Litigation registered against title to Bellwood Farm as instrument number LTD23693 on December 17, 1999.

The Khatri and Subhani Motion to Dismiss for Delay

[72] Talat Khan commenced this action by having a statement of claim issued in Brampton on May 24, 2000 against Mr. Subhani, his business Subhani Inc., Khatija Khatri, Zuleika Khan, Mr. Khan, John Dashwood and Sheridan Park Credit Union Ltd. In that action, the plaintiff Talat Khan alleges various defendants acted in a fraudulent, deceitful and conspiratorial manner. These acts included, but were not limited to the transfer of Bellwood Farm with the intention to hinder, defeat or delay the claims of Ms. Khan. Ms. Khan seeks to have that transfer found to be fraudulent and void without specifically pleading the Fraudulent Conveyances Act. Talat Khan claims a further CPL as an item of relief in her statement of claim.

[73] The Brampton action was dismissed as against Mr. Dashwood in 2007 and as against Sherwood Park Credit Union Ltd. in 2015 as defendants, on consent.

[74] Ms. Khatri and Mr. Subhani bring this motion within the Brampton action to have it dismissed as against them on the basis of delay.

[75] Mr. Subhani and Ms. Khatri bring their motion under Rule 24.01(1) of the Rules of Civil Procedure for the dismissal of the action for delay. Rule 24.01(1) 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) Revoked: 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. R.R.O. 1990, Reg. 194, r. 24.01 ; R.R.O. 1990, Reg. 194, r. 24.01 (2) ; O. Reg. 770/92, s. 7; O. Reg. 533/95, s. 4 (1).

[76] A defendant who seeks relief under Rule 24.01(1) of the Rules of Civil Procedure must meet the prerequisites that he or she is not in default under the Rules or an order of the court, and to show that the plaintiff has failed to meet one of the timelines specified under the Rule. For the purpose of the motion, the evidence is clear that the plaintiff has failed to set the action down for trial within six months after the close of pleadings under subparagraph (c). This leaves the matter of whether the defendants are in default under the Rules or an order of the court as a threshold question.

[77] The plaintiff obtained a Certificate of Non-attendance against Mr. Subhani and Ms. Khatri respectively on December 17, 2003 when each of them failed to attend to be examined for discovery pursuant to a Notice for Examination. A motion was brought against Mr. Subhani and Ms. Khatri to strike their defence on November 29, 2005. That motion was adjourned on a sine die basis. Ultimately, Ms. Subhani and Mr. Khatri were examined for discovery on January 16, 2006. Although there is evidence that Mr. Speciale required Ms. Subhani and Mr. Khatri to answer undertakings given on their examination for discovery, no motion has been brought to compel answers to those undertakings.

[78] In the absence of evidence that Ms. Subhani and Mr. Khatri are in default under the Rules or under a court order at the time their motion was brought, I find that they have satisfied the threshold requirements.

[79] The test for dismissing an action for delay under Rule 24.01(1) of the Rules of Civil Procedure is now well settled. It is not enough for the moving defendant to show the failure of the plaintiff to meet any one of the timelines set out under the rule; something more is required.

[80] Meeting the component parts of the Rule gives the court its jurisdiction and the power to make the order requested. Whether that order should be granted depends on whether the court is satisfied on the evidence that the test is met, having regard to the significant repercussions a dismissal of the action for delay would cause, and the equities between the parties.

[81] The Court of Appeal articulated the elements of the test for a motion to dismiss an action for delay under Rule 24.01(1) of the Rules of Civil Procedure in Langenecker v. Sauvé, 2011 ONCA 803. In Langenecker, Justice Doherty adopts the language of Lord Diplock in Allen v. Sir Alfred McAlpine and Sons Ltd., [1968] 1 LER 543 to identify two types of cases in which a dismissal of an action for delay would be warranted. To dismiss an action for delay, the evidence must satisfy a court that either:

1. The default has been intentional and contumelious, or
2. There has been a delay for which the plaintiff or the plaintiff’s lawyer is responsible which is an ordinate or inexcusable, and in either respect gives rise to a substantial risk that a fair trial of the issues in the litigation will not be possible because of the delay.

[82] The onus is on the moving party to establish the grounds of justification for a dismissal of an action for delay. It has been held that if evidence provided by the moving party raises an inference that is adverse to the plaintiff or counsel for the plaintiff, the plaintiff has the burden to provide responding evidence to address an adverse inference that may otherwise be drawn, including any explanation for the delay: Steele v. Volpini, 2015 ONSC 2552 (SCJ).

[83] It has also been held by the Court of Appeal in Faris v. Eftimovski, 2013 ONCA 360 that the threshold is high to establish grounds to dismiss an action for delay under Rule 24.01 of the Rules of Civil Procedure. This high threshold is understandable given the judicial reluctance to dispose of an action by a plaintiff without an adjudication on the merits. This is likely why the equitable test must be met, even though the prerequisites under the rule are easily satisfied.

[84] Any inordinate delay must be explained by a plaintiff. However, in addition to providing the court with a reasonable explanation for the passage of time without significant activity in the litigation, the moving party must satisfy the court that either part of the test is met and that the case falls into one category or another to merit dismissal.

[85] I have considered all of the evidence filed on Ms. Khatri’s application and on the motions before the court where Ms. Khatri and Mr. Subhani seek an order dismissing the action as against them. I have also considered the evidence filed on the motion in which Ms. Khan seeks a new CPL and/or the reinstatement of the Writ of Seizure and Sale discharged in 2004.

[86] Justice Doherty in Langenecker described the elements of the first type of case as follows:

[6] The first type of case described by Lord Diplock refers to those cases in which the delay is caused by the intentional conduct of the plaintiff or his counsel that demonstrates a disdain or disrespect for the court process. In dismissing cases which fall within this category, the court effectively declares that a continuation of the action in the face of the plaintiff’s conduct would constitute an abuse of the court’s process. These cases, thankfully rare, feature at least one, and usually serial violations of court orders. This case does not fall into that category.

[87] I would not go so far as to say that Talat Khan or her counsel have intentionally belaboured the Brampton action even though it has not moved forward in a significant way since 2006. The pleadings were closed in the latter part of 2001, affidavits of documents were exchanged in some form that did not merit a motion, and examinations for discovery had been conducted by 2006.

[88] The last activity to occur was John Dashwood’s motion for Summary Judgment to have the action dismissed as against him in 2007. That motion was resolved by a consent order to let him out of the litigation. Although there was no step taken by the plaintiff or her counsel after 2007 until the motion was brought for leave to obtain a new CPL and to reinstate the Writ of Seizure and Sale No. 98-0259 and other relief in April of 2015, I am not satisfied that the delay was intentional on the part of either Ms. Khan or her lawyer. Nor am I satisfied that the delay demonstrates a disdain or disrespect for the court process. The Brampton action itself does not involve a serial violation of court orders by the plaintiff.

[89] I therefore conclude that the delay in this action does not fall within that category of case where the delay is caused by the intentional conduct of the plaintiff, or that the plaintiff and her counsel have demonstrated a disdain or disrespect for the court process. The conduct of the plaintiff and her counsel cannot by any measure be construed as contumelious.

[90] The second type of case where an action may be dismissed for delay will be justified if three characteristics are made out on the evidence. To dismiss an action for delay, that delay must be:

1. inordinate, or
2. Inexcusable; and
3. In either respect, give rise to a substantial risk that a fair trial of the issues in a litigation will not be possible because of the delay: DDE Marco v. Mascitelli (2001), 14 C.P.C. (5th) 384 (SCJ).

[91] When considering a motion in the second type of case identified in Langenecker, Justice Doherty provides further guidance on the application of the three elements of the test in the following manner:

[8] The inordinance of the delay is measured simply by reference to the length of time from the commencement of the proceeding to the motion to dismiss. Most litigation does not move at a quick pace. Some litigation, because of the issues raised and/or the parties involved, will move even more slowly than the average case. It is fair to say that many medical malpractice actions are among those cases that move slowly. However, even accepting that litigation customarily moves at a somewhat stately pace and that this kind of litigation can move even more slowly than most, there can be no doubt that 15 years from the commencement of the action to the motion to dismiss constitutes inordinate delay.

[9] The requirement that the delay be “inexcusable” requires a determination of the reasons for the delay and an assessment of whether those reasons afford an adequate explanation for the delay. As LaForme J. explained in De Marco, at para. 26, explanations that are “reasonable and cogent” or “sensible and persuasive” will excuse the delay at least to the extent that an order dismissing the action would be inappropriate.

[10] In assessing the explanations offered, the court will consider not only the credibility of those explanations and the explanations offered for individual parts of the delay, but also the overall delay and the effect of the explanations considered as a whole. For example, in this case, the appellants offered a “sensible and persuasive” explanation for part of the lengthy delay in completing the discovery process, but offered little by way of cogent explanation for the many other lengthy delays that occurred in the course of the 15 years since this action was commenced.

[11] The third requirement is directed at the prejudice caused by the delay to the defence’s ability to put its case forward for adjudication on the merits. Prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defence case flowing from that delay: Tanguay v. Brouse , 2010 ONCA 73, at para. 2.

[92] The court also held that a long delay could cause case specific prejudice in addition to prejudice that is presumed or manifested by lengthy delays in an action. This can take the form of the death of an expert, a party or an important witness.

[93] It is my view that the plaintiff has caused an inordinate delay in the prosecution of this action. Even using the example given by Justice Doherty in Langenecker, the 15 years from the date the action was commenced to the date the motion to dismiss was brought constitutes inordinate delay when measured objectively by the length of time that has passed. This satisfies the first element of the test. This also shifts the burden of proof to the plaintiff to explain why the delay is not unreasonable.

[94] The question of whether the delay was unreasonable, or if it was “inexcusable” involves an exercise of weighing the reasons for the delay to determine if the plaintiff has provided a reasonable explanation to the court. This weighing exercise is part fact finding in nature, and part an exercise in judgment.

[95] Mr. Speciale argues that the Brampton action should not be viewed in isolation, but rather in the historical context of Talat Khan’s overall efforts to collect the arrears in spousal support that accumulated under Justice Caswell’s order in the first application. Talat Khan took steps to register Writ of Seizure and Sale number 98-0259 and other measures to enforce her rights to spousal support ordered by the court. Her materials include little, if any, evidence of her efforts to formalize her rights to equal payments from Mr. Khan’s pension after it become payable in February 1998.

[96] Taking Mr. Speciale’s submissions to put Ms. Khan’s position at its highest, it is beyond dispute that until 2015:

1. No motion for leave to obtain a new CPL was brought in the Brampton action or in any of the litigation for 15 years
2. No effort to obtain an amending order to Justice Caswell’s judgment for the division of Mr. Khan’s pension for the AECL was made for 16 years or at all, except for the motion before Justice Seppi in December, 1999;
3. No proceeding was ever taken to execute the writ for 17 years, or to reinstate the writ removal by Mr. Shah until Ms. Khatri brought her application to clear title; and
4. No step has ever been taken to register the charging order granted by Justice Mackenzie against any property owned by Mr. Khan; and

[97] After Mr. Khan commenced the Rescission Application in 1998, Ms. Khan engaged the litigation process within that application by seeking orders to enforce her rights to collect the arrears in support that had accumulated under Justice Caswell’s order. Her numerous attendances before various judges of the court in 1999 and 2000 included the occasion where Ms. Khan obtained an order from Justice Wein on November 3, 1999, and attending before Justice Seppi on December 9, 1999 to obtain the CPL. The attendance before Justice Mackenzie on December 17, 1999 where terms were ordered for Mr. Khan to meet in order to set aside the order made by Justice Seppi, and again in March and December 2000 that confirmed that Justice Seppi’s order dated December 9, 1999 had been set aside, were all incurred in the Rescission Application.

[98] The attendances before Justice Seppi in 2002 and before Justice Snowie in 2002 where the non-depletion orders made by Justice Simmons 10 years before were set aside all occurred within the Rescission application.

[99] Ms. Khan commenced the Brampton action in May 2000 with specific reference to joining:

1. Mr. Subhani and Ms. Khatri as the transferees of Bellwood Farm, Mr. Khan as the transferor;
2. John Dashwood as the lawyer facilitating the transfer; and
3. Sheridan Park Credit Union Ltd. as the one time mortgagee who had been granted a charge against Bellwood Farm as the asset owned by Mr. Khan prior to 1997 as a source for the enforcement of all support and support arrears.

[100] Within the context of the Brampton action, Ms. Khan required the defendants to serve affidavits of documents and to participate in examinations for discovery up to and including 2006. However, it appears from the evidence that Ms. Khan took no definitive steps after 2006 to advance the action. The motion for summary judgment brought by John Dashwood in 2007 was not a step taken by Ms. Khan to advance the action; it was a step taken by a defendant to have the action dismissed as against him.

[101] It seems that no other step was taken by Ms. Khan in the Brampton action until she brought her motion dated March 30, 2015 and returnable on April 7, 2015 for leave to obtain a new CPL, to reinstate the Writ of Seizure and Sale number 98-0259 and other relief. Even then, that motion was only brought as a counter measure to the Khatri application that had been commenced in 2012 to delete the 1999 CPL from title. This court granted an adjournment on January 28, 2015 to provide Mr. Speciale further time to bring this motion.

[102] When assessing whether the delay is “inexcusable” and weighing the reasons for the delay and assessing whether those reasons afford an adequate explanation for the delay, the court may consider explanations that are “reasonable and cogent” or “sensible and persuasive” to excuse the delay at least to the extent that to conclude that an order dismissing the action would be inappropriate.

[103] A plaintiff who is potentially responsible on objective grounds measured by the passage of time for an inordinate delay in proceeding with her action on the merits is compelled to provide an explanation for that delay. The explanation needs to be found reasonable. Therefore where an excuse is not acceptable to the court, or its corollary, it is found to be inexcusable. If the explanation is reasonable and accepted by the court, then it is an excusable delay even though it is inordinate in length of time.

[104] The court is therefore left with the question whether the plaintiff’s delay to bring this action to trial for 15 years, or to take any significant step for almost 10 years is inexcusable.

[105] Regrettably, I find that it is. There is no excuse given by Mr. Speciale that I find acceptable for why a similar motion to the motion heard by Justice Seppi on December 9, 1999 was not brought in the Brampton action within a reasonable time after the Brampton action was commenced. This may have helped to crystalize the arrears and support claimed by Ms. Khan. This motion may have implemented enforcement mechanisms against Mr. Khan for the orderly payment of spousal support by dividing his pension payments at source and to ensure they were not diverted to another person. If the motion had been brought in a timely manner, the court might also have provided instructions to the sheriff to enforce Writ of Seizure and Sale number 98-0259 prior to its removal in 2004.

[106] There is simply no excuse why Ms. Khan did not take any steps at all to move this action forward between 2006 and March 30, 2015.

[107] The plaintiff is responsible for bringing the action along: Wallace v. Crate’s Marine Sales Ltd., 2014 ONCA 671 (Ont. C.A.).

[108] In this case, I find that the delay in the prosecution of the Brampton action caused by the plaintiff or her counsel was inordinate in length of time. I further find that the explanation given for the delay was unreasonable, which means that the delay caused by the plaintiff or her lawyer was inexcusable. This satisfies the second element of the equitable test.

[109] A presumption of prejudice arises where an inordinate delay occurs after the cause of action arose or after the passage of a limitation period. In Langenecker, the court wrote that “prejudice is inherent in long delays. Memories fade and fail, witnesses become unavailable, and documents and other potential exhibits are lost. The longer the delay, the stronger the inference of prejudice to the defendants case flowing from that delay…”.

[110] The plaintiff has filed little in the way of convincing evidence to rebut the presumption that the defendants Subhani and Khatri will suffer prejudice because there is substantial risk that a fair trial of the issues will not be possible. There is further evidence in the form of a supplemental affidavit of Khatija Khatri sworn on September 24, 2015 that her husband, Mr. Subhani, has been suffering from Alzheimer’s disease for some time now. The evidence shows that he has been prescribed medication to help him cope with his condition. She deposes that Mr. Subhani has been taking this medication once every day since 2009. She attaches a copy of Mr. Subhani’s prescription for this medication as an exhibit to her affidavit.

[111] Ms. Khatri states that Mr. Subhani’s ability to remember things has been seriously affected. It will be very difficult, if not impossible for him to recollect events that occurred between 1995 and 1998. It was during this period that Mr. Khan and his family resided with them and that Bellwood Farm was transferred to them.

[112] Ms. Khatri further deposes that Mr. Khan has informed her and that she verily believes him to be in failing health. He will not be able to recollect the incidents that happened between 1995 and 1998 with a level of accuracy that could assist the court in finding the truth.

[113] Owing to the inordinate delay attributable to the plaintiff or her lawyer to move this action along since 2000, and my finding that Ms. Khan’s delay in prosecuting this action is inexcusable, I also find that there is a presumption of prejudice due to the passage of time. This presumption has not been rebutted by convincing evidence from the plaintiff. There is also the evidence from Ms. Khatri that the memory of two of the primary witnesses to the events that took place between 1995 and 1998 giving rise to the transfer of Bellwood Farm are compromised due to health and age. There is a substantial risk that a fair trial of the issues will not be possible because of this delay.

[114] This is not a case like the facts before the court in Indcondo Building Corp. v. Sloan, where the court considered the doctrine of laches. Here, Mr. Subhani and Ms. Khatri specifically seek a dismissal for Ms. Khan’s inexcusable delay under Rule 24.01 of the Rules of Civil Procedure. Unlike Indcondo, there were no procedural steps that the plaintiff periodically took to show an interest in the action as an answer to any suggestion he had abandoned any intent to proceed with the litigation, or to allow the defendants to rely upon any accumulation of inactivity. Nor is this a case like Bray v. Fijnheer , 2016 ONSC 1546, where Justice Leitch found, despite 16 years of relative inactivity, that minor procedural steps had been taken by the plaintiff to lift it from a prolonged period of inactivity.

[115] The motion of Mr. Subhani and Ms. Khatri is therefore granted. The Brampton action commenced by Talat Khan in May 2000 is hereby dismissed as against those defendants.

Motion for a new Certificate of Pending Litigation

[116] Ms. Khan brought a motion within the Brampton action in 2012 for a new CPL in the event this court ordered that the CPL she obtained in 1999 be removed and deleted from title to Bellwood Farm.

[117] For the reasons that follow, that motion is dismissed. Ms. Khatri and Mr. Subhani have been successful in their motion to have the Brampton action dismissed as against them. Consequently, there was no pending litigation involving them as parties to harbour a CPL.

[118] Even if Ms. Khatri and Mr. Subhani had not been successful on the motion to dismiss the Brampton action as against them, Ms. Khan’s delay defeats her entitlement. The court is given discretion under section 103 of the Courts of Justice Act to dismiss a motion for leave to obtain a CPL for delay on the equities between the parties.

[119] Upon carefully considering the equities and the factors set out in 572383 Ontario Inc. v. Dhunna , (1987), 24 CPC (2nd) 287 (Master) including the 15 year delay between 2000 and 2015, I would not consider that the equities favour Ms. Khan. It is not enough to say that she held a belief she was protected by the registration of the CPL against title to Bellwood Farm over the intervening years. This is a spurious argument given the disposition of that issue in the current proceeding.

[120] Overall, I find that Ms. Khan’s refusal to remove the registration of the CPL that remained an empty shell against title, and her failure to move the Brampton action along for a trial on the merits, disentitles her to leave for a new CPL to issue. The court held in Kentish v. Karasy , (1976), 14 O.R. (2d) 519 (H.C.) that leave may be refused because of the unduly delay of the plaintiff to bring the motion.

[121] The motion of Talat Khan for leave to obtain a new Certificate of Pending Litigation is therefore dismissed.

Writ of Seizure and Sale

[122] Talat Khan further seeks an order reinstating the Writ of Seizure and Sale that Mr. Shah removed on behalf of Mr. Subhani and Mr. Khatri in August 2004. In the alternative, she seeks an “alias writ” against Mr. Khan, Ms. Khatri and Mr. Subhani to secure any amounts owing to her pursuant to the support orders made in Justice Caswell’s judgment.

[123] The writ of seizure and sale issued on July 15, 1998 and filed on title to Bellwood Farm and with the Sheriff for the County of Dufferin on July 27, claimed that $64,668.45 was owing as of that date, plus interest at 8% per year. Writ of Seizure and Sale No. 98-0259 expressly stated that “THIS WRIT ENFORCES AN ORDER FOR SUPPORT”.

[124] A Writ of Seizure and Sale is a writ of execution under the Execution Act , R.S.O. 1990, Ch. E.24. Accordingly, lands subject to a Writ of Seizure and Sale issued by the court can be sold by the Sheriff to satisfy debts of a judgment creditor. Paragraph 13 of the Execution Act provides that:

13. Subject to the Courts of Justice Act and the rules of court, land and other hereditaments and real estate belonging to any person indebted are liable to and chargeable with all just debts, duties and demands of whatsoever nature or kind owing by any such person to Her Majesty or to any of her subjects and are assets for the satisfaction thereof and are subject to the like remedies, proceedings and process for seizing, selling or disposing of them towards the satisfaction of such debts, duties and demands, and in like manner as personal estate is seized, sold or disposed of.

[125] The Writ of Seizure and Sale binds the land of the judgment debtor from the time it was filed with the Sheriff and entered onto the electronic database under section 10 of the Execution Act. The evidence is unclear whether Ms. Khan ever filed the Writ with the Sheriff for the County of Dufferin. However, it is clear from the abstract that the Writ was filed with the Director of Land Titles in 1998 to bind Bellwood Farm at a time Bellwood Farm was still owned by Mr. Khan.

[126] Mr. Subhani and Ms. Khatri retained Mr. Taraq Shah in 2004 for the purpose of having title to Bellwood Farm transferred from both their names into the names of Ms. Khatri alone for estate planning purposes. Apparently, this decision was made because of Mr. Subhani’s health. In the course of searching title, Mr. Shah detected Writ number 98-0259 that had been registered at the Land Title’s Office at Dufferin County to attach to Bellwood Farm.

[127] Mr. Shah ultimately registered an application as instrument number DC38176 on August 27, 2004 against title to Bellwood Farm to delete Writ No. 98-0259 from title.

[128] Although there is some suggestion that Mr. Shah was acting for Mr. Khan as well as Mr. Subhani and Ms. Khatri, I am prepared to find that he was acting only for Mr. Subhani and Ms. Khatri when he applied to delete the Writ from title. I base this finding on the evidence given by Mr. Shah in an affidavit and when he was examined on his affidavit by Mr. Speciale. I also rely on evidence given in affidavits by Ms. Khatri, and the submissions made on behalf of Mr. Subhani and Ms. Khatri by their counsel, Mr. Sharma on this motion.

[129] There is no better evidence of Mr. Shah’s purpose for registering the application to delete writ number 98-0259 from title to Bellwood Farm than his own statement contained in that document that reads as follows:

“Schedule: I Tariq Shah, solicitor for the applicants confirm that I have searched the MAG database and was advised that writ number 98-0259 does not exist and hereby apply to have the same deleted from the property description.”

[130] Mr. Subhani and Ms. Khatri are shown on the application to be the applicants.

[131] I note that the Writ of Seizure and Sale No. 98-0259 was detected on title to Bellwood Farm when the transfer from Mr. Khan to Mr. Subhani and Ms. Khatri was registered as instrument number LTD12522 on September 10, 1998.

[132] Writ number 98-0259 in form 60A was filed electronically with the Land Title’s Office on July 27, 1998. Ordinarily, Writs of Seizure and Sale in form 60A issued under Rule 60.07 of the Rules of Civil Procedure expire after six years unless they are renewed with leave of the court.

[133] According to Family Law Rule 28 of the Family Law Rules, a Writ of Seizure and Sale to enforce support shall not expire.

[134] Rule 28(4) of the Family Law Rules provides that a Writ of Seizure and Sale to enforce a family law order continues in effect until the Writ is withdrawn under subrule (6.5) or (7), or the court orders otherwise under subrule (8).

[135] Family Law Rule 28(5) further provides as follows:

(5) A writ directing the sheriff to seize and sell a payor’s property that was issued by the court under the rules that applied before these rules take effect has the same legal effect as a writ of seizure and sale issued under these rules, and does not expire except as subrule (4) provides. O. Reg. 544/99, s. 13 (3).

[136] The Family Law Rules came into effect on November 15, 1999 for general application by the Ontario Court of Justice and the Family Law Branch of the Superior Court of Justice, and on July 1, 2004 for the use and application by the Superior Court of Justice in all other locations. Under the authority provided by Family Law Rule 28(5), Writ of Seizure and Sale No. 98-0259 was a Writ of Seizure and Sale under Family Law Rule 28 that did not require renewal within or after six years.

[137] Writ number 98-0259 was issued in form 60A under Rule 60.07 of the Rules of Civil Procedure at a time when the Family Law Rules were not yet in effect. It was therefore necessary for Ms. Khan and her counsel to use the form of Writ and Seizure and Sale under Rule 60.07 of the Rules of Civil Procedure to enforce Justice Caswell’s judgment awarding spousal support as a family law order.

[138] When Rule 28 of the Family Law Rules is read with section 44 of Family Responsibility and Support Arrears Enforcement Act , 1996 with respect to the application of Writs of Seizure and Sale to enforce support orders, Writ number 98-0259 bound the property of Mr. Abdul Khan for the amount specified in that Writ pursuant to sections 11 and 13 of the Execution Act until it was withdrawn or removed by order of the court.

[139] Ms. Khatri has given evidence that both she and Mr. Subhani had knowledge of this Writ when title to Bellwood Farm was transferred to them in September 1998. In fact, she acknowledges liability under the Writ was part of the consideration they gave along with their forgiveness of $160,000 that Mr. Khan and Mr. Subhani say that Mr. Khan owed.

[140] I find as a fact that Mr. Subhani and Ms. Khatri had actual knowledge of Writ number 98-0259 when they took title to Bellwood Farm on September 10, 1998. I also find it remarkably coincidental that Mr. Khan signed the transfer document on July 27, 1998, the same day that Writ number 98-0259 was filed with the Land Title’s Office in Dufferin County.

[141] I also draw the inference that Mr. Shah knew of this Writ when he registered the application to delete it from title to Bellwood Farm on August 27, 2004. I drew this inference not only from his statement in the application, but also from the reference to and remarks about the Writ on title to Bellwood Farm he would have seen when conducting the title search. The Family Law Rules were then in effect and Mr. Shah would have understood that Writ number 98-0259 continued in effect without renewal because of the words “THIS WRIT ENFORCES AN ORDER FOR SUPPORT,” if he had taken the time to read Family Law Rule 28.

[142] Six years would pass between the time Writ number 98-0259 was filed on July 27, 1998, and August 27, 2004 Mr. Shah registered the application to delete that Writ from title. Whatever the reason may be for Mr. Shah to conclude that this Writ No. 98-0259 did not exist to justify his application to delete that Writ from title, it has continued in effect as of August 27, 2004.

[143] It is fortuitous that Ms. Khan’s failure, rightly or wrongly, to remove the CPL registered in December 1999 has effectively preserved the state of title held by Ms. Khatri and Mr. Subhani to Bellwood Farm. In fact, now that they have paid off the first charge to Sheridan Park Credit Union, Ms. Khan may even be in a better position to enforce the Writ because the equity in the property has increased.

[144] Based on the effect of Family Law Rule 28 and the evidence, I conclude that Mr. Shah improperly registered the application as instrument DC38176 on August 27, 2004. Accordingly, an order shall go requiring the Director of Land Titles for the County of Dufferin, (or alternatively Mr. Subhani and Ms. Khatri if the Director will not act on this order because he or she has not been named as a party or did not receive notice of this motion) to delete the application registered at DC38176 from title to Bellwood Farm. This order shall restore Writ or Seizure and Sale No. 98-0259 to the same effect, and priority it held on August 27, 2004.

[145] I also grant an ancillary order to Talat Khan for leave to file any other Writ of Seizure and Sale with respect to the order for support enforceable under Writ No. 98-0259 for this purpose if deleting the application from title does not have the desired effect.

[146] For clarity, the ancillary relief I am granting to Talat Khan to file a further Writ of Seizure and Sale to enforce the order for support in Writ No. 98-0259, if necessary, relates to the order for support made in September 1994 within the original application. The ancillary relief does not extend to any other relief granted in the Rescission application, including Writ No. 0350/99 to enforce Justice Seppi’s order dated December 9, 1999, as that order was set aside.

[147] There is no evidence that a charging order was ever registered as an instrument against title to Bellwood Farm. Talat Khan has deposed in paragraph 28 of her affidavit sworn on October 2, 2012 that Justice Mackenzie granted the charging order to protect her interest in the interim, pending the commencement of the Brampton action. The motion of Talat Khan seeks an order in the alternative granting leave to register that charging order. There is no evidence before the court to explain why the charging order was never registered against title to Bellwood Farm after December 17, 1999. Furthermore, there is little, if any, explanation given to the intention behind registration of the charging order under section 34(k) of the Family Law Act to secure payment against Bellwood Farm at this late date.

[148] The fact that the Writ of Seizure and Sale No. 98-90259 has been reinstated does not alter the fact that the proper amount owing under the judgment of Justice Caswell from Mr. Khan to Ms. Khan for spousal support interest and costs has yet to be determined. It is up to Ms. Khan to take whatever steps she considers necessary to quantify the support arrears she claims and interest on that support. Any steps provided under section 44 of the Support Under Arrears Act and the Family Law Rules to enforce Writ No. 98-0259 under the provision of the Execution Act against are entirely the responsibility of the party seeking to collect that indebtedness.

[149] It is instructive to recognize that Justice Seppi wrote a definitive endorsement when certain orders were made on December 9, 1999. Justice Seppi found that the support arrears and one half of the respondent’s share of the pension payments owing to that date, with interest on those arrears were fixed in the total amount of $99,432.53. Justice Seppi directed that one half of the AECL pension payable to Mr. Khan be paid directly to the respondent Talat Khan on a gross basis, without the deduction of income tax, which tax shall then be payable directly by the recipient Talat Khan. Justice Seppi also found that the costs of Ms. Khan on a solicitor and client scale be fixed at $65,000 inclusive of GST, among other things.

[150] The order made by Justice Seppi and the reasons given in her endorsement dated December 9, 1999 were made on the submissions of Mr. Speciale for Talat Khan without hearing from Mr. Khan, as he was at that time acting in person and did not appear. Justice Seppi’s order was subsequently set aside on Mr. Khan’s motion by Justice Mackenzie on December 1, 2000.

[151] In my view, just because her order was set aside, a court at a later time would not be precluded from referring back to the findings made by Justice Seppi as a reference point. Ms. Khan should not overlook the fact that the Brampton action shall continue as against Mr. Khan, and provides the procedural avenue to obtain findings against him that may inform her efforts to quantify and to enforce her claim for support arrears.

Summary on the Motions

[152] The motion to dismiss the Brampton action as against the defendants Mohammad Munir Subhani, Subhani Inc. and Khatija Khatri is granted.

[153] The motion of Talat Khan in the Brampton action for leave to obtain a new Certificate of Pending Litigation against title to Bellwood Farm is dismissed.

[154] Writ of Seizure and Sale No. 98-0259 obtained by Ms. Khan and registered against title in 1998 did not expire as a Writ to enforce support. That Writ remained in effect and has never expired. I therefore order that Writ of Seizure and Sale No. 98-0259 is therefore ordered as reinstated on title to Bellwood Farm under section 159 of the Land Titles Act, with a copy to be filed at the sheriff’s office for the County of Dufferin.

[155] An order shall go deleting instrument No. DC 38176 registered on August 27, 2004 that removed Writ No. 98-0259 from title in 2004. Leave is also granted to obtain, file and register another Writ of Seizure and Sale against Abdur Rahim Khan and all assets legally or beneficially owned by him on and after July 27, 1998 as though Writ of Seizure and Sale No. 98-0259 had never been withdrawn.

Directions and Costs

[156] I have no doubt that one or more of the parties may consider it necessary to seek further directions as a result of these orders. Others may consider themselves in a position to seek costs. Any party is therefore at liberty, upon consultation with all other parties, to obtain an appointment before me from the trial coordinator to seek directions or to speak to costs. If a mutually agreeable date cannot be agreed upon, counsel may arrange a conference call with me at 9:00 a.m. on a morning I am already sitting in Brampton to schedule that appointment.

Emery, J. Date: March 27, 2017