Court File and Parties
COURT FILE NO.: FS-20-16390 DATE: 20200626 SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Hiba Yehia de Jauhari, Applicant AND: Fedi Jauhari Jauhari, Respondent
BEFORE: C. Horkins J.
COUNSEL: Fareen L. Jamal, for the Applicant Fedi Jauhari Jauhari, not appearing
HEARD at Toronto: June 25, 2020
REASONS FOR DECISION
Overview
[1] This matter was first before me on April 22, 2020. I granted the Applicant wife’s motion for ex parte relief and ordered that the Respondent husband, “Fedi Jauhari Jauhari shall be restrained from transferring, assigning, pledging, disposing of, depleting, dissipating, or otherwise dealing with any assets under his control. The Respondent shall preserve such property until further Order of this Court. The sole exception to this order is payments necessary to preserve and maintain the home.”
[2] I ordered that the Respondent be served with the application, motion material and April 22, 2020 order and that the Applicant’s motion be returned before me on May 15, 2020, on notice to the Respondent. The Respondent was ordered to serve and file his responding material by May 8, 2020.
[3] The Applicant’s motion returned before the court on May 15, 2020. On that occasion, the Respondent and his counsel requested an adjournment of the Applicant’s motion. Counsel asked for time to settle the terms of an adjournment and agreed to advise the court when done. An agreement was not reached. I ordered that the motion continue on May 22, 2020 and that each party provide brief submissions on the terms of the adjournment requested.
[4] The motion returned on May 22, 2020 and I heard submissions on the requested adjournment. At the hearing of the motion on May 22, 2020, the Respondent was represented by counsel.
[5] After the hearing of the motion on May 22, 2020, I released my Reasons for Decision on May 25, 2020 (2020 ONSC 3227) and rely on them for this decision. I made extensive disclosure orders against the Respondent and dealt with the Respondent’s verbal submission that in his view this court does not have jurisdiction. I explained that this court does have jurisdiction. I decided that based on the claims advanced in the Application and the undisputed evidence that I reviewed, this Court has jurisdiction under s. 3 of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) to hear this Application.
[6] An order dated May 25, 2020 was issued. The Respondent was ordered to make disclosure and the restraining orders against him were continued. The Applicant’s motion was adjourned to June 25, 2020 on the terms I ordered.
Return of the Applicant’s Motion / Respondent’s non-compliance
[7] On June 25, 2020, the Respondent did not appear on the return of the motion. Like the previous court attendances, the motion was heard by telephone conference due to the COVID 19 pandemic. The Respondent was provided with the telephone call in details but did not participate. The motion proceeded in his absence.
[8] The Respondent has not complied with any of the court orders.
[9] The Respondent has never filed any evidence responding to this motion. He has had ample opportunity to do so. In fact, he has filed nothing in this application. The time for filing an Answer expired on May 24, 2020.
[10] On June 5, 2020, Ms. Mourao, Respondent’s counsel, advised the Applicant’s counsel that she had received instructions from the Respondent that he would not provide his banking records as ordered, that he was proceeding with Court proceedings in Lebanon and Venezuela and would not agree to the release of the $10,000 to each party as ordered (he had consented to this payment). Shortly after this communication, Ms. Mourao brought a motion and obtained an order removing her as solicitor of record for the Respondent.
[11] On June 9, 2020, the Applicant received a package by courier containing the Respondent’s Application to the Druze Religious Court for Divorce in Lebanon.
[12] To date, the Applicant has been unable to obtain the release of $10,000 from the parties’ joint bank account in Lebanon. This was part of the May 25, 2020 order. The Bank has been given the court order but has not released the money.
[13] More than two months have passed since the Applicant’s motion was first before the court. The Respondent clearly has no intention of complying with the Court orders and complying with the Family Law Rules, O Reg 114/99. He will not file an Answer and refuses to produce the court ordered financial disclosure that is required by the Family Law Rules.
[14] He is in Lebanon and has left his wife and two dependent children with no financial assistance. In good faith, the Applicant gave the Respondent time to respond to her motion. The Respondent took advantage of her cooperation when he had no intention of ever complying with the Court orders or participating in this Application. This bad faith conduct resulted in three court attendances after the ex parte motion and caused the Applicant considerable expense.
[15] The Respondent has failed to comply with the Court orders and has not filed an Answer as required by Family Law Rule 10(1). Under Family Law Rule 10(5), the failure to file an Answer triggers the consequences set out in Family Law Rule 1(8.4). Failure to obey an order triggers Family Law Rule 1(8).
[16] As the Court of Appeal has stated on many occasions, the duty to disclose financial information is the “most basic obligation in family law proceedings”. The duty is “immediate and ongoing”; Martin v. Watts, 2020 ONCA 406; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13, leave to appeal refused, [2017] S.C.C.A. No. 29.
[17] Family Law Rules 1(8) and 1(8.4) state as follows:
1(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,
(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.
1(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
- The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
- The party is not entitled to participate in the case in any way.
- The court may deal with the case in the party’s absence.
- A date may be set for an uncontested trial of the case.
[18] In a case such as this where the Respondent has not filed an Answer and has blatantly refused to comply with court orders, the consequences in rule (8.4) must follow. There is no point in giving the Respondent yet another opportunity to comply, because he has made it clear he will not do so. Imposing the consequences in rule 1(8.4) is necessary in the circumstances and will allow the Applicant to move forward with her claim without further delay.
[19] I will now deal with the orders that I am making as a result of the facts of this case and the Respondent’s conduct.
[20] The April 22, 2020 and May 25, 2020 orders made against the Respondent shall continue, specifically, the orders restraining the Respondent from dealing with any assets under his control as set out in paragraph 2 of the April 22 order and paragraph 2 of the May 25 order.
[21] Since the Respondent has chosen not to participate and comply with the Family Law Rules, such orders are now final.
[22] The orders requiring the Respondent to provide disclosure shall continue regardless of my order directing an uncontested trial. These orders are set out in the May 25, 2020 order at paragraphs 7, 8, 9 and 10. Such orders are final.
[23] Paragraph 3 of the May 25, 2020 order shall not be continued. This was a concession that the Applicant made in exchange for the Respondent’s hollow promise to cooperate.
[24] Finally, I make the following final orders that are necessary because of the Respondent’s conduct. The Applicant is entitled to have her Application move forward without further delay and in a cost-efficient manner. The following orders reflect the primary objective of the Family Law Rules that is to “deal with cases justly”:
(1) The Respondent is not entitled to any further notice of steps in this Application, except as provided by subrule 25 (13) of the Family Law Rules (service of orders in this Application). (2) The Respondent is no longer entitled to participate in this Application in any way. (3) The Court shall deal with the Application in the Respondent’s absence. (4) The Applicant shall proceed to an uncontested trial of her Application. The uncontested trial shall proceed in writing with affidavit evidence to be filed with the Court by Monday, June 29, 2020 at 4 p.m. The Applicant and her counsel shall be available on July 3, 2020 at 2:30 pm to answer any questions that the Court might have concerning the material filed. The uncontested trial shall proceed before Justice C. Horkins, if available. Directions for the July 3 attendance will be provided to the Applicant by the trial coordinator.
Spousal Support
[25] Prior to the return of the motion on June 25, the Applicant served and filed a new motion seeking temporary spousal support. The Respondent has not filed anything in response to this motion. The Applicant has an urgent need for support and so I allowed this motion to proceed without a case conference. Further, nothing would be achieved in a case conference given the Respondent’s lack of participation.
[26] The evidence that supports a temporary spousal support order is uncontested.
[27] The parties were married for 30 years. They separated on April 4, 2020. During the marriage, the Applicant was predominantly a housewife who worked with the Respondent to build his businesses and establish his wealth. She was solely responsible for the raising their four children.
[28] The Applicant sacrificed her educational pursuits to follow the Respondent to a foreign country (Venezuela) where she did not know the language and had no connections, family or friends.
[29] The parties are Lebanese nationals who lived for the majority of their marriage in Venezuela. When they fled Venezuela, they left behind significant assets including land and four pharmacies and major investment accounts that generate significant interest income in Lebanon.
[30] When the family fled to Canada, they purchased a franchise restaurant in downtown Toronto. This business was not doing well before the COVID 19 pandemic struck and the parties had to transfer investment income from their accounts in Lebanon to support the family.
[31] The Applicant has no control over the restaurant. It is owned and operated under a corporation registered in the Respondent’s name and he is the sole shareholder. As a result of the pandemic, the restaurant was closed and is no longer operational. There is no prospect of this business earning income given the debts that have been incurred.
[32] Since the separation, the Respondent has refused to transfer any investment income from their accounts in Lebanon to Canada and has refused to cooperate in directing the bank to transfer funds. The Applicant has no access to the investment income that the family used for living expenses before separation.
[33] The two youngest children are dependent and remain in the Applicant’s care. The Respondent has not provided for their support. The Applicant is claiming child support in her Application.
[34] As a result of her desperate financial circumstances, the Applicant found part-time employment as a sales clerk with Dollarama. This was the only job she could find. However, her earnings are not enough to meet the daily needs.
[35] The Applicant needs support. She believes that the Respondent has directed the bank officials in Lebanon not to release any funds to her as punishment for having commenced this Application.
[36] The Applicant’s sworn financial statement and affidavit evidence explain that the family has two sources of investment income. Since separation, the Applicant has had no access to this income. She attributes 100% of this income to the Respondent for the purpose of determining spousal support. There is $6,500 of monthly investment income in Lebanon. This is non-taxable income. Second, there is $2,176 in monthly income from Venezuela. It is the Applicant’s evidence that in total the Respondent has yearly income of $104,112. With the gross up for the $6,500 monthly income, the total income is $146,902. The Applicant has prepared Spousal Support Advisory Guideline calculations that show monthly spousal support of $4,504 at all levels.
[37] I am satisfied that this uncontested evidence supports imputation of a yearly income of $146,902 to the Respondent.
[38] I have considered the factors in s. 15.2(4) of the Divorce Act and the objectives of a spousal support order as set out in s. 15.2(6). The Applicant has shown that she has a compensatory and non-compensatory need for spousal support. This was a long-term marriage and the Applicant has limited work skills that would allow her to find a job to support herself. Spousal support must recognize the Applicant’s economic disadvantage that results from the breakdown of their marriage. The Applicant has no support and is destitute.
[39] On a temporary basis, I order that the Respondent shall pay the Applicant monthly spousal support of $4,504 commencing July 1, 2020.
Costs
[40] The Applicant seeks costs on a full recovery basis. I find that the Respondent’s conduct justifies this level of costs.
[41] After the ex parte order, there were three court attendances solely because the Respondent requested time to respond to the motion. He had no intention of complying with the court orders. This is obvious given the above uncontested facts that I have set out. His aim was to delay the Ontario application while he was taking steps to proceed in Lebanon. He raised the issue of this court’s jurisdiction and yet never filed any material to support his oral position. This caused unnecessary expense for the Applicant as she had to be prepared to address the jurisdiction issue.
[42] The Respondent’s conduct is directly responsible for the legal expenses that the Applicant incurred. This was bad faith.
[43] The Applicant has filed a Cost Outline that covers four court attendances. Full recovery of all fees, disbursements and HST totals $32,154.28. I order the Respondent to pay this amount.
Conclusion
[44] I make the following orders:
(1) The time for service and filing of the Applicant's Motion dated June 17, 2020 is abridged and may proceed prior to the hearing of case conference. (2) The April 22, 2020 and May 25, 2020 orders made against the Respondent shall continue, specifically, the orders restraining the Respondent as set out in paragraph 2 of the April 22, 2020 order and paragraph 2 of the May 25, 2020 order. (3) The orders requiring the Respondent to provide disclosure shall continue regardless of my order directing an uncontested trial. These orders are set out in the May 25, 2020 order at paragraphs 7, 8, 9, and 10. (4) Paragraph 3 of the May 25, 2020 order shall not be continued. (5) The Respondent is not entitled to any further notice of steps in this Application, except as provided by subrule 25 (13) of the Family Law Rules. (6) The Respondent shall no longer be entitled to participate in this Application in any way. (7) The Court shall deal with the Application in the Respondent’s absence. (8) The Applicant shall proceed to an uncontested trial of her Application. The uncontested trial shall proceed in writing with affidavit evidence to be filed with the Court by Monday, June 29, 2020 at 4 p.m. together with a factum. The Applicant and her counsel shall be available on July 3, 2020 at 2:30 p.m. to answer any questions that the Court might have concerning the material filed. The uncontested trial shall proceed before Justice C. Horkins, if available. (9) On a temporary basis, I order that the Respondent shall pay the Applicant monthly spousal support of $4,504 commencing July 1, 2020. (10) The Respondent shall pay the Applicant costs, fixed at $32,154.28 all inclusive, no later than July 25, 2020. (11) All orders herein are final except paragraph 9.