Court File and Parties
Court File No.: 37361/14 Date: 2019 04 16 Superior Court of Justice - Ontario
Re: Nada Rahma, Applicant And: Safaaldin Hassan, Respondent
Before: Conlan J.
Counsel: Bruce Day, Counsel for the Applicant Anser Farooq, Counsel for the Respondent (removed from the record on the hearing date)
Endorsement
Motion to Strike Pleadings and to Hold in Contempt
Introduction
1The parties were married in February 1998. They physically separated in June 2014 when the Respondent was forced to leave the home after being charged with assaulting the Applicant.
2The Applicant is 41 years old. The Respondent is 52.
3There are four children of the union; all of them live with the Applicant. The Respondent is a dentist. The Applicant has not been employed outside of the home for many years. Apparently, the Respondent has left Canada and may not intend to return.
4The sordid history of this family law file was very nicely summarized by Justice Bielby in His Honour’s Endorsement made on January 2, 2019. Reproduced below are paragraphs 1 through 28 and 36 of that Endorsement.
Reproduced from Justice Bielby's Endorsement, January 2, 2019:
[1] There are two motions before me. The Respondent (R) seeks a reduction in the amount of child and spousal support he is to pay on the basis of less income.
[2] The Applicant (A) asks that the R.’s motion be dismissed for repeated failures to comply with existing court orders. She further seeks an order requiring Certas Home and Auto Insurance to pay directly to the A, the insurance proceeds resulting from an insurance policy for business interruption related to the destruction from the R.’s dental clinic.
[3] There are multiple outstanding orders in this matter and at least two trial dates have been vacated.
[4] There are twelve volumes of the Continuing Record, the application being commenced in 2014. The amounts of money in issue are significant.
[5] In December, 2014 the parties signed a separation agreement in which the R.’s income was fixed at $350,000 per year. The R. agreed to pay child support in the amount of $6662 per month and spousal support of $7708 per month.
[6] The R. failed to comply with the agreement requiring the A. to bring a motion and on May 13, 2015, an order was made imputing an income to the R. in the amount of $400,000 per annum. The R. was ordered to pay, on an interim basis, child support for four children in the amount of $6662 per month. He was ordered to pay interim spousal support of $6737 per month.
[7] The R. has never met this financial obligation and the arrears are well in excess of $200,000. In that order the R. was also ordered to pay $50,000 as an advance on equalization, an amount that has not been paid.
[8] In a subsequent order the R. was ordered to pay $40,000 as security for costs. This amount has not been paid.
[9] Certain disclosure remains outstanding and has been the subject of past orders. Timelines for disclosure were set and violated by the R.
[10] A number of orders require the R. to pay costs to the A.
[11] It is in the light of this history that I am being asked to grant the R. the relief he is seeking.
[12] I will focus on two orders; Gibson J.’s order of March 14, 2018 and Gray J.’s order, dated October 31, 2018.
[13] Before Gibson J. were motions from both parties. The R. sought a reduction of support as a result of the loss of his dental clinic and the income derived from his practise. He was awaiting a business interruption insurance claim.
[14] The R.’s motion was dismissed for non-compliance with previous orders. At the request of the A. the trial date was vacated for the R.’s failure to disclose.
[15] Gibson J. also ordered that the matter be adjourned until the R. has completed disclosure and had paid to the A., $26.000 for outstanding costs, $40,000 for the security for costs which had been ordered and $50,000 as an advance on equalization, as previously ordered.
[16] Further particulars were ordered in regards to the business interruption insurance.
[17] These conditions remain outstanding.
[18] On October 31, 2018, Gray J. put the A.’s motion for contempt and to strike pleadings over to April 16, 2019, a day for long motions, allocating 2 hours.
[19] The motions of both parties were put over to January 2, 2019.
[20] Further, Gray J. ordered further disclosure and required the R. to pay $10,000 for each of November and December, 2018, and a further $10,000 as a contribution to the outstanding costs.
[21] The R.’s failure to meet these conditions would result in the R.’s motion not being heard (on January 2nd).
[22] The R. has not met these conditions.
[23] To allow the R to proceed with his motion would be in effect to amend the orders of Gray J. and Gibson J. The conditions and obligations were not met and there was to be a penalty for such non-compliance.
[24] Of the $30,000 ordered by Gray J to be paid the R. has paid approximately one half.
[25] The circumstances have not changed.
[26] The R.’s non-compliance remains outstanding.
[27] The R.’s motion is to be dismissed and the R. may not bring any further motions prior to the long motion being heard and decided.
[28] In regards to the non-disclosure issues, the orders remain outstanding and need not be detailed. I will leave it to the judge hearing the long motion to determine if disclosure remains outstanding, the impact on such lack of disclosure in regards to the matter proceeding to trial and the remedy for non-compliance including non-disclosure.
[36] In summary I order:
- The Respondent’s motion is stayed and he is precluded from bringing any motion prior to the hearing of the long motion and the receipt of the decision of the judge hearing the long motion.
- The Applicant’s motion is dismissed.
- The matter it set down for trial during the civil blitz proceedings commencing October 7, 2019 (to take 7 days).
- The setting of the trial date is without prejudice to the Applicant seeking an adjournment on the grounds of the failure of the Respondent to disclose or the failure for timely disclosure, the result of which would prejudice the Applicant.
- The Respondent is to complete disclosure on or before March 15, 2019.
- If the parties cannot agree on costs I will receive written submissions of no more than three pages in length together with a bill of costs. Submissions are to be made within 14 days of the release of this ruling. Any response is to be received ten days thereafter. I do note a division in success.
5Today, April 16, 2019, in Milton, the Motion brought by the Applicant wife, Nada Rahma (“Rahma”), was heard.
6The only substantive issues remaining outstanding between the parties are financial ones – equalization of net family property, spousal support, and child support. There is also the overarching question of whether the parties’ Separation Agreement is valid.
7Rahma seeks an Order striking the pleadings of the Respondent husband, Safaaldin Hassan (“Hassan”), and to find Hassan in contempt of Court. Further, as the penalty for his contempt, Rahma seeks an Order that Hassan be imprisoned and pay a fine of $100,000.00 in favour of Rahma, plus Rahma’s costs of the Motion on a full recovery basis.
8Rahma’s counsel has filed a thorough Factum and Book of Authorities in support of her Motion. No similar filings were provided on behalf of Hassan.
The Issues
9There are three questions to be answered: (i) should Hassan’s pleadings be struck, (ii) should Hassan be found in contempt of Court, and (iii) if he is found in contempt, what penalty should be imposed on Hassan?
Short Conclusion
10The answers to the three issues are as follows: (i) yes, Hassan’s pleadings shall be struck, (ii) and (iii) no, a contempt finding is unnecessary given the striking of the pleadings, the other relief granted below, and the substantial award of costs against Hassan.
The Law
11Rule 1(8) of the Family Law Rules provides this Court with the authority to strike out Hassan’s pleadings, paragraph (c), and/or to find Hassan in contempt, paragraph (g).
12Either Order is discretionary as a response to a party who “fails to obey an order in a case”.
13Regarding the striking of pleadings, there is a three-part test. First, has there been non-compliance with a Court Order made in the case? Second, if so, are there exceptional circumstances that exist which run in favour of exercising discretion in favour of the defaulting party such that no Order should be made striking that party’s pleadings? Third, if not, what Order should be made in favour of the party that is not in default? Colivas v. Colivas, 2013 ONSC 1991, at paragraph 16.
14In a family law case, pleadings ought to be struck only in exceptional circumstances and where no other remedy will suffice. It is a serious step for the Court to take given its consequences – the defaulting party is effectively deprived of any ability to participate further in the proceeding. Pucaru v. Pucaru, 2010 ONCA 92, at paragraph 47.
15Even in a family law case that does not involve any child issues, such as ours, the power to strike pleadings ought to be used sparingly. It is reserved for only an exceptional category of cases. Roberts v. Roberts, 2015 ONCA 450, at paragraphs 15 and 16.
16Subrules 31(5) and (6) of the Family Law Rules provide for a wide variety of relief that a Court may grant if it finds that a person is in contempt. The potential relief includes imprisonment, a fine, a monetary penalty, an Order that the contemnor do or not do something, costs, and a writ of temporary seizure against the contemnor’s property.
17Any Order, other than a payment Order, may be enforced by a contempt Motion, even if another penalty (such as the striking of pleadings) is available: 31(1) of the Family Law Rules.
18Civil contempt of Court is a quasi-criminal proceeding. The following elements must be proven by the moving party beyond a reasonable doubt. First, that the relevant Order was clear and unambiguous. Second, that the Order was known to the alleged contemnor at the time of the alleged breach. In other words, that the person alleged to have breached the Order had proper notice of it and its terms. Third, that the contemnor breached the order deliberately (or intentionally or wilfully – these terms are synonymous). Sickinger v. Sickinger, [2009] O.J. No. 2306 (S.C.J.), affirmed 2009 ONCA 856, [2009] O.J. No. 5178 (C.A.).
19The civil contempt remedy is one of last resort, especially in the family law context. Where other adequate remedies are available, the Court ought not to resort to the civil contempt remedy. Contempt findings should be made sparingly and with great caution. Hefkey v. Hefkey, 2013 ONCA 44, [2013] O.J. No. 1697 (C.A.).
20At the same time, however, I am of the opinion that we have to be careful not to “water-down” the civil contempt remedy to the point where litigants have to parade to Court every few weeks to ask the Court to enforce an Order and remind the other side that Court Orders are directives and not polite suggestions.
The Law as Applied to our Facts
21This is not a close call. Hassan has turned a blind eye to Court Orders and made a mockery of the justice system for long enough.
22His history of non-compliance with Court Orders is lengthy, extensive, brazen, and unapologetic. He has been extended every courtesy imaginable by other Judges, only to maintain his ungovernability.
23The following is just a sampling of what he has put everyone through:
(i) he failed to comply with the support Order ($5000.00 lump sum) made by Justice Miller in December 2014;
(ii) he failed to comply with the payment Order ($50,000.00 lump sum towards equalization) made by Gibson J. in May 2015;
(iii) he failed to comply with the disclosure Order of Miller J. made in August 2015;
(iv) he failed to comply with the disclosure Order of Justice Gibson made in March 2017;
(v) for about six months after it was made in May 2015, he simply ignored the support Order made by Gibson J. (that he pay $6662.00 monthly for child support plus $6737.00 per month in spousal support based on an imputed gross annual income of $400,000.00), in that he paid nothing during that time;
(vi) today, Hassan is in arrears of support in excess of $300,000.00;
(vii) he has not made a single full payment of support since January 2018;
(viii) he ignored the Order of Gibson J., made in March 2017, to pay $40,000.00 for security for costs;
(ix) he did not comply with the costs Order of Gibson J. ($21,000.00) made in May 2017;
(x) he failed to comply with the Order of Justice Miller made in June 2017 which confirmed the prior Orders related to the $50,000.00, the $21,000.00, and the $40,000.00 noted above in May 2015, March 2017 and May 2017, respectively;
(xi) he failed to comply with the disclosure Order made by Justice Coats, which was made on consent, dated June 2017;
(xii) he failed to comply with the costs Order ($5000.00) of Justice Miller in August 2017;
(xiii) he failed to comply with the disclosure Order made by Coats J. in November 2017, which Order was made on consent;
(xiv) he failed to comply with the disclosure Order made by Justice Gibson in March 2018;
(xv) he failed to comply with the costs Order ($6700.00) made by Gibson J. in July 2018;
(xvi) he failed to comply with the disclosure Order made by Justice Gray in October 2018; and
(xvii) he failed to comply with the costs Order ($10,000.00) made by Gray J. in October 2018.
24Nearly twenty instances of Hassan’s non-compliance with Court Orders in this case. Well over $100,000.00 in costs and payments arrears. Over $300,000.00 in support arrears. Leaving the country for Iraq in the middle of an important Motion. Failing or refusing to give proper instructions to his lawyer. Frustrating the most basic of disclosure directives, leaving the issue of his actual income a mystery. Refusing to answer many questions during an out-of-Court examination conducted by counsel for Rahma. These are the ingredients of Hassan’s recipe for incorrigibility.
25The list of examples of Hassan’s intransigence goes on and on. Enough is enough.
26There comes a time in family litigation when the Court’s attempts at being fair and patient, when looked at by a reasonably informed member of the public whose confidence in the administration of justice we depend on, are awkward, to borrow a euphemism. We have all done it. “I order you to do what three other judges have already ordered you to do”. “Or else”. Costs orders on top of unpaid costs Orders.
27The cautionary notes from our Court of Appeal, with respect, were not intended to handcuff judges to the point where the ideal of equal participation by both sides of the adversarial process trumps all else.
28Hassan has simply forfeited his right to participate any further. We are not waiting any longer for him to play ball.
29The situation might be different if there was good reason to think that Hassan had no means to pay the costs Orders and paid as much as he could as quickly as he could. That is not what has happened here.
30The situation might be different if there was good reason to think that Hassan had made genuine efforts to satisfy the disclosure Orders and is delinquent only with regard to complex items that necessarily take much time to gather and produce. That is not what has happened here.
31Frankly, Hassan has decided to roll the dice. He has hedged his bets that the Court will give him another chance on top of all the former chances. Not so.
Conclusion
32Hassan’s Answer is hereby struck. The case shall proceed uncontested, without the participation of Hassan.
33Given that Order, notwithstanding the ability to find a party in contempt in addition to striking his or her pleadings, and despite my shock at just how irresponsible Hassan has been in this proceeding, I find it unnecessary to deal with the contempt request. Nothing further will be accomplished that will benefit Rahma. Counsel for Rahma states that an Order for incarceration is needed so that Hassan, if he returns to Canada, will be held by border officials. I disagree.
34I have the authority, under 1(8) of the Family Law Rules, to make an Order that is not specifically listed thereunder provided that I otherwise have the jurisdiction to make the Order and that it is deemed necessary to achieve a just determination of the case.
35Thus, I Order that Hassan deposit with Canada Border Services Agency, forthwith, his passport. That Order is enforceable by border officials should Hassan return to the country. Counsel for the Applicant should file the Order with the authorities.
36As a courtesy, copies of this Endorsement and the Order, once taken out, shall be provided by the Court to Mr. Farooq. And copies shall be provided by counsel for the Applicant to Hassan.
37On costs, the only fair, just and reasonable thing to do is to provide substantial indemnity to the Applicant for the within Motion. Anything short of that would not recognize to the degree warranted the bad faith exhibited by Hassan. In fact, full indemnity would be warranted, however, counsel for the Applicant requested reimbursement of fees only at the rate of $500.00 per hour (1979 Call to the Bar, Toronto practice) at 18 hours. That equals $9000.00.
38Costs are ordered payable to Rahma by Hassan, forthwith, in the amount of $9000.00.
Postscript
39At the commencement of the hearing of this Motion at Court in Milton on April 16th, two matters arose that required rulings.
40First, by Notice of Motion dated April 12th, supported by counsel’s Affidavit sworn on April 15th, all materials served very late and never filed until in the Courtroom on the 16th, Hassan asked for an adjournment of the Motion.
41The request had absolutely no merit and was refused. This hearing date was scheduled in the Fall of 2018, many months ago. It was confirmed again in the Endorsement of Bielby J. made in January 2019.
42In the face of the Motion, Hassan chose to go to Iraq, where he is currently. It is alleged that he is caring for his sick mother. I was provided with a photocopy of what purports to be a private laboratory report for the mother. It in no way confirms that her condition required Hassan to ignore the Motion and leave the country for weeks on end. It should be noted that Hassan left Canada after the Endorsement of Justice Bielby was released.
43Second, counsel for Hassan moved to get off the record. Although opposed, that request was granted. It would have been unfair to force Mr. Farooq to argue a Motion for which he had inadequate instructions and no materials. This Court directed Mr. Farooq to provide, forthwith, to counsel for Rahma any and all current contact information for Hassan.
Conlan J.
Date: April 16, 2019