Court File and Parties

Newmarket Court File No.: FC-19-59650-00 Date: 2020-06-15 Superior Court of Justice - Ontario

Re: Wenwen Numair, Applicant And: Muhammad Numair, Respondent

Before: The Honourable Mr. Justice D.A. Jarvis

Counsel: Lalit Kalra, Counsel for the Applicant Muhammad Numair, Self-Represented

Heard: In Writing

Ruling on Urgent Motion Request

[1] As a result of COVID-19 regular Superior Court of Justice operations are suspended at this time as set out in the Notice to Profession, the Public and Media Regarding Civil and Family Proceedings of the Chief Justice of Ontario. See the Notice to the Profession dated March 15, 2020, as revised on April 2 and May 5, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/ [“the Chief’s Notice”] and as locally revised, effective as of May 19, 2020.

[2] On June 3, 2020 Sutherland J. dealt with an urgent motion by the applicant (“the wife”) for financial and related procedural relief against the respondent (“the husband”) and third parties who were business associates of the spousal parties. Voluminous material had been filed. Sutherland J. ruled that there had been a failure to comply with the Chief’s Notice and local practice directions. The motion failed to clearly and succinctly set out why the relief requested was urgent. The wife’s motion was dismissed without prejudice to her bringing a proper motion compliant with the current practice.

[3] The wife has now brought her motion for a broad range of injunctive relief of a financial nature against the husband, the parties’ business partners (who are married to each other) and the two companies in which both couples are shareholders. She claims that the husband and the other spousal couple are engaging in conduct intended to deplete the husband’s assets and prejudice her family law equalization rights. The wife wants the business partners and the companies joined as parties to these proceedings. She also seeks leave to file or at least have the court consider the extensive material filed before Sutherland J. (a 198 paragraph, 26-page affidavit with 20 exhibits).

[4] The husband, Tamara Ann Butt and her husband, Naveed Ahmed Butt, were served with the wife’s motion material by email on June 8, 2020. The husband and Tamara Butt are the principals of 2340409 Ontario Inc, a Pizza Pizza franchise: the wife and Naveed Butt are the principals of 2607742 Ontario Inc, a Thai Express franchise.

[5] Tamara Butt has filed an affidavit disputing that she is helping the husband to deplete his assets. Naveed Butt has filed an almost identical affidavit. Each of theses persons allege that they have taken steps to remove the spousal parties in this case from the numbered companies because neither of them has been actively contributing to the businesses for quite some time.

[6] The husband has not filed any responding material.

Background

[7] The parties were married on June 8, 2008 and separated on April 24, 2019. There are two children of the marriage, UN born October 24, 2009 and NN born December 29, 2012 (“the children”). NN is a special needs child. The children live with their mother in the parties’ jointly-owned matrimonial home.

[8] An urgent case conference was conducted by MacPherson J. on November 15, 2019. The husband agreed to a temporary, without prejudice child support Order in the amount of $500 a month. On March 4, 2020 Douglas J. dismissed a motion by the husband to sell the matrimonial home and awarded exclusive possession of it to the wife. The parties were ordered to share in the home’s monthly expenses and the carrying cost of a line of credit. The husband was ordered to pay $3,000 costs. It is unknown whether those have been paid.

[9] The wife submits that almost since she began these proceedings the husband has failed to make meaningful financial disclosure. Requests for disclosure made of the Butts dealing with the operations of the two numbered companies in which the parties in this case are interested have been ignored. The husband’s conduct has been such as to suggest that he is engaging in a scorched earth strategy to divest himself of the value of his assets to which the wife may have a claim and, directly and indirectly, colluding with the proposed Butt respondents to deplete his and the wife’s assets.

Disposition

[10] The unchallenged, alleged failure of the husband to make meaningful disclosure is serious as are the allegations of financial misconduct. The actions of the Butts in failing to provide meaningful information to the wife so as to distance themselves from the parties’ financial dispute raise, together with the husband’s behaviour, important financial issues that are pressing and urgent. The wife has satisfied the test for urgency as set out in the Chief’s Notice. Her allegations about collusion between her husband and the Butts have, prima facie, merit.

[11] The wife seeks leave to file in support of her motion when it proceeds a 25-page affidavit with 91 exhibits, a transcript of the husband’s questioning and a factum. It is unknown how, if at all, that volume of material differs from what Sutherland J. described in his June 3rd Ruling but, clearly, that is excessive, especially given the current COVID-19 pandemic and restrictions on the courts. Limitations must be placed on the material that the parties may wish to file.

[12] The following is ordered:

(a) Leave is granted to the wife to amend her pleadings to join as respondents Tamara Ann Butt, Naveed Ahmed Butt, 2340409 Ontario Inc. and 2607742 Ontario Inc. Those amendments shall be made and served with 30 days of the release of this Ruling;

(b) The wife’s motion dated June 8, 2020 shall proceed on a date and time to be scheduled by the court administration;

(c) Pending a return of the wife’s motion to court, an Order shall issue against the respondent Numair (non-depletion) in accordance with paragraph 1A of the wife’s Notice of Motion dated June 8, 2020 (“the wife’s motion”);

(d) Pending a return of the wife’s motion to court, an injunction shall issue against the proposed respondents in accordance with paragraphs 1(B), (C)(i) and (E) of the wife’s motion (Mareva injunction);

(e) Within 10 days of the date of release of this Ruling the proposed respondent Naveed Ahmed Butt shall provide to the wife the documents and information requested in paragraphs 1(C)(iii) and (iv) of the wife’s motion, failing which there will be a $1,000 daily penalty assessed for each day of non-compliance after June 25, 2020;

(f) Within 10 days of the release of this Ruling the husband and proposed respondent Tamara Ann Butt shall provide to the wife the documents and information requested in paragraph 1(D) of the wife’s motion, failing which they shall be jointly and severally assessed with a $1,000 daily penalty for each day of non-compliance after June 25, 2020;

(g) The court reserves the right to assess such further financial penalty on the proposed Butt respondents should the disclosure ordered of them, if delivered, is determined to be inadequate or, in the event that they say the information cannot be easily retrieved or obtained, they are disbelieved;

(h) Email service on Tamara Ann Butt shall be addressed to her at tamara.butt@yahoo.ca;

(i) Email service on the husband and the proposed respondent Naveed Ahmed Butt shall be effected, respectively at muhammad.numair@gmail.com and nahmed_b@hotmail.com;

(j) Leave is granted to the wife to file an affidavit no longer than eight pages, double-spaced. The number of exhibits shall be restricted to eight, having an aggregate length of twenty pages. This shall be filed no later than June 25, 2020 (4:00 p.m.);

(k) The husband shall have until July 3, 2020 (4:00 p.m.) to file his responding material which shall be subject to the same length restrictions as set out in (j) above;

(l) The proposed Butt respondents shall file their responding material by July 3, 2020 (4:00 p.m.). The material shall not exceed ten pages, inclusive of exhibits;

(m) The wife shall be entitled to deliver one, comprehensive reply affidavit to the responding material from the husband and proposed respondents, not to exceed in the aggregate six pages. That shall be done by July 10, 2020 (4:00 p.m.);

(n) The material filed by the parties for this Ruling may be referenced by the parties when the wife’s motion is heard and need not be duplicated in the material to be filed as set out in (k) to (m) above;

(o) The court administration shall schedule a hearing of the wife’s motion to proceed on or after July 15, 2020 before the first available judge;

(p) The total time allocated to the wife’s motion will be one hour-fifteen minutes for each of the wife and husband, five minutes each for Tamara Butt and Naveed Butt and a ten- minute reply for the wife. The balance of time is for the court;

(q) No other motion than the wife’s motion now before the court will be heard;

(r) The wife shall forthwith serve a copy of this Ruling on the husband and the proposed Butt respondents, service of which by email shall be deemed personally effective on those proposed respondents and on the numbered companies of which they are officers as set out in the wife’s motion. The wife shall forthwith file an affidavit of service with the court when that has been done.

[13] There is simply no excuse any longer for persons involved in family law litigation to ignore their disclosure obligations or, where third parties are involved, to unreasonably fail to provide relevant financial information not subject to privacy concerns. This especially applies to the proposed respondents in this case due to their close business involvement with the parties.

[14] The court is watching.

[15] In the circumstances of the COVID-19 emergency, this Order is operative and enforceable without any need for a signed or entered, formal, typed Order. Approval is dispensed with. The parties may submit a formal Order for signing and entry once the court re-opens.

Justice David A. Jarvis Date: June 15, 2020