COURT FILE NO.: FS-18-0319 DATE: 2018 12 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SEDIQA GHANDAHARI v. RAAFAT METWALLY
BEFORE: Doi J.
COUNSEL: Evan Clemence, for the Applicant
ENDORSEMENT
Overview
[1] In this family law proceeding, the Applicant is moving without notice for a temporary interim order to restrain the Respondent from depleting, transferring, or otherwise disposing of certain funds on deposit in a personal bank account that he controls, and over which the Applicant claims an interest. Effectively, the Applicant is seeking a Mareva injunction to preserve these funds until the main application is heard.
Relevant Facts
[2] I briefly make the following factual findings solely for the purpose of dealing with this motion, and not to make any findings on the main application.
[3] The Applicant and the Respondent were in an unmarried relationship from about November 2007 until November 17, 2018 when they separated. During this period, the parties lived together in three (3) different residences. The first residence (on Hansen Road) was owned by the Applicant, the second residence (on Personna Circle) was owned by the Applicant and her daughter, and the third residence (on Unwind Crescent, and valued at $898,222.24) was owned primarily (99%) by the Applicant save for a limited 1% interest which the Applicant transferred to the Respondent in recognition of their relationship and her gratitude towards him.
[4] Throughout the relationship, the Applicant paid the majority of the carrying costs for each of the residences they resided in together, with the Respondent making certain contributions to the carrying costs that reflected his more modest means.
[5] On May 1, 2017, the Applicant obtained a bank draft made out solely to her in the amount of $140,427.77 reflecting the proceeds from the sale of a condominium investment property that she solely owned in Richmond Hill. She deposited the funds into a Scotiabank account (4280) that she jointly held with the Respondent, although the Applicant gave evidence that she previously understood, mistakenly, that this account was only in her name. After making inquiries with Scotiabank, the Applicant clarified the nature of this account (4280) in a supplementary affidavit which was filed with the court.
[6] On August 23, 2017, the Applicant deposited another bank draft, also made out solely to her, for $156,839.35 to the Scotiabank account (4280) reflecting the proceeds from the sale of the Personna Circle home that she solely owned and co-habited with the Respondent.
[7] On or about December 12, 2017, the Applicant transferred $216,941.60 from the above-mentioned account (4280) to an investment account (7636, bearing saving period code 6454) for the purpose of generating some investment income. The investment account (7636) was jointly held with the Respondent, who attended at the bank with the Applicant when she made the transfer. The Applicant states that the transferred funds were derived from the proceeds of her earlier property transactions.
[8] On November 17, 2018, the parties separated. As a result of his conduct towards the Applicant that day, the Respondent was arrested and charged under s.264.1(1) (uttering threats) of the Criminal Code and entered into a recognizance of bail that included conditions that he not have contact with the Applicant.
[9] On or about November 22, 2018, the Respondent unilaterally withdrew $218,758.58 from the investment account (7636) without advising the Applicant. After withdrawing the funds, the Respondent phoned the Applicant's daughter and advised of the withdrawal. The Respondent later advised police that the withdrawn funds were the proceeds of overseas property he owned and sold, which the Applicant says is "categorically false". The Applicant further states that the Respondent never once deposited funds into either of the subject accounts (4280 or 7636) mentioned above.
[10] In the wake of the $218,758.58 withdrawal, the Applicant's son and daughter asked the Respondent to return the funds. When this proved unsuccessful, the Applicant made inquiries with her Scotiabank branch manager and attempted, unsuccessfully, to reverse the withdrawal transaction. During her inquiries, the branch manager advised the Applicant that the Respondent had placed the withdrawn funds into a chequing account held solely in his name at that same branch.
Mareva Injunction
[11] In Sibley & Associates LP v. Ross, 2011 ONSC 2951, Strathy J. (as he then was) set out (at para 11) the five (5) requirements for a Mareva injunction:
- the plaintiff must make full and frank disclosure of all material matters within his or her knowledge;
- the plaintiff must give particulars of the claim against the defendant, stating the grounds of the claim thereof, and the points that could fairly be made against it by the defendant;
- the plaintiff must give grounds for believing that the defendant has assets in the jurisdiction;
- the plaintiff must give grounds for believing that there is real risk of the assets being removed out of the jurisdiction or disposed of within the jurisdiction or otherwise dealt with so that the plaintiff would be unable to satisfy a judgment awarded to him or her; and
- the plaintiff must give an undertaking as to damages.
[12] A strong prima facie case is a condition precedent to a Mareva order; Sibley at para 12; and 2092280 Ontario Inc. v. Voralto Group Inc., 2018 ONSC 2305 (Div Ct) at para 16. Where the requirements for a Mareva injunction are met, notice to an affected party is not required initially; Voralto at para. 17.
[13] Having considered this matter, I am reasonably satisfied that the Applicant has a strong prima facie case, has made full and frank disclosure of all material matters within her knowledge, and has provided reasonably adequate particulars and details of her claim over the subject funds and the grounds upon which she makes her claim. To afford the best disclosure of information for her case, the Applicant made further inquiries and filed better supporting evidence to supplement her record as a result of questions put to her during the ex-parte hearing of her motion. Accordingly, I am reasonably satisfied that she has met the condition precedent and the first two requirements for a Mareva injunction.
[14] From inquiries with her Scotiabank branch manager, the Applicant learned that the Respondent placed the subject funds into a chequing account held solely in his name at that branch. This offers adequate grounds to believe that the assets are in the jurisdiction, and meets the third Mareva requirement.
[15] Several days following their separation, and without giving the Applicant any notice beforehand of his intention to do so, the Respondent unilaterally withdrew and transferred $218,758.58 from the jointly held investment account (7636) to another account held solely in his name. While the Respondent subsequently advised the Applicant's daughter of the withdrawal during a phone call, his actions to move these substantial funds unilaterally (without prior notice to the Applicant) are troubling given the sizeable amount of the withdrawn funds. When later questioned by police, the Respondent indicated that the withdrawn funds reflected the proceeds of overseas property he had owned and sold. This explanation is described as being "categorically false" by the Applicant, who gave evidence that the Respondent never once deposited funds into either of their jointly held accounts (4280 or 7636). The evidence also indicates that the Respondent is of modest financial means. I am also mindful that the subject assets are liquid, and reportedly are held by the Respondent in a personal account. Accordingly, from my review of all of the circumstances, I find that the Applicant has established a real risk of the subject assets being removed, dissipated or otherwise dealt with in a manner that would leave her unable to satisfy a judgment awarded to her, which meets the fourth Mareva requirement.
[16] Finally, and in satisfaction of the fifth Mareva requirement, the Applicant has given an undertaking as to damages.
[17] Given the context of this case, I believe that it is reasonable to infer that the Respondent might well attempt to move, dissipate or otherwise place the subject funds out of the Applicant's reach should he come to know that she is tracking down the funds. Mindful that a Mareva injunction should, if possible, be tailored to specific assets and accounts (Sibley at para 68), I am making an interim order for the financial institution, the Bank of Nova Scotia, operating as Scotiabank, to enjoin dealings with the Respondent's chequing accounts at its Mississauga Road & Williams Parkway Scotiabank branch (Branch 68726) located at 9483 Mississauga Road in Brampton. I also order that the financial institution disclose to the Applicant the particulars of the transactions in those accounts for the months of November 2018 and December 2018. I further order that a copy of my endorsement be served on the Respondent and the financial institution forthwith, and that this matter is returnable on December 28, 2018.
Orders
[18] I order the following:
- The Bank of Nova Scotia, operating as Scotiabank, is to enjoin dealings with any chequing accounts held by the Respondent at the Scotiabank Mississauga Road & Williams Parkway branch (Branch 68726) located at 9483 Mississauga Road in Brampton;
- the financial institution is to disclose to the Applicant the particulars of the transactions in the aforementioned accounts held by the Respondent for the months of November 2018 and December 2018;
- the Applicant is to serve the financial institution and the Respondent with a copy of this endorsement forthwith;
- the Applicant is to serve the Respondent with the record for this motion forthwith; and
- this matter is adjourned to December 28, 2018.
Costs
[19] I reserve the issue of costs to the judge that will hear the return of this motion on December 28, 2018.
[20] I am not seized.
Doi J. DATE: December 21, 2018