COURT FILE NO.: FC-19-1211
DATE: 20201015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HATEM ZEINELDIN
Applicant
– and –
HODA MAHMOUND ALY ELSHIKH
Respondent
Self-represented
Allan T. Hirsch, for the Respondent
HEARD: September 10, 2020
REASONS FOR decision
Audet J.
[1] This Application was commenced by the applicant father, Mr. Zeineldin (“the father”), in June 2019. In his Application, he seeks an order that Ontario does not have jurisdiction in this matter and that the parties’ two children (age 14 and 9) be immediately returned to Egypt. The mother takes the position that Ontario does have jurisdiction in this matter, and seeks an order granting her sole custody and primary residence of the children, as well as other corollary relief.
Background
[2] The hearing of the father’s application was set to proceed during the November/December 2019 Trial Sittings but was adjourned at his request to the May 2020 Trial Sittings. As a result of the pandemic which caused the partial suspension of the court’s operations, it had to be adjourned once again. Although the parties believed that new trial dates would be set during the November 2020 Trial Sittings, I was informed that this matter was not on the trial list, and consequently, no new trial dates have been set. This was likely an inadvertent administrative error, as this matter should have been scheduled to proceed to trial during the November 2020 Trial Sittings.
[3] As a result of the father’s initial request for an adjournment of the trial (originally scheduled for December 2019), the respondent mother brought a motion for interim relief including child and spousal support as well as the payment of interim disbursements for the forthcoming trial. That motion was heard by Engelking J. on January 16, 2020. In her decision released on February 24, 2020 (Zeineldin v. Elshikh, 2020 ONSC 1160, 38 R.F.L. (8th) 147), the motion judge set out in detail the facts and events relevant to the history of this family and the various claims made by each of them. I will not repeat them here. Based on all the evidence before her, she made a temporary without prejudice order requiring the father to:
1- pay the mother child support in the amount of $3,277 month based on an imputed income of $250,000, commencing on December 1, 2019;
2- pay the mother spousal support in the amount of $4,000 per month based on an imputed income of $250,000 (and the mother’s income of $14,000), commencing on December 1, 2019;
3- pay the mother the sum of $4,000 forthwith as an interim disbursement for retaining Jeremy Morley to attend court for questioning about his expert report dated October 25th, 2019.
[4] After receiving cost submissions from the parties, the motion judge subsequently made an order that the father pay the mother costs in the amount of $8,000 (hereinafter referred to as the “February 2020 Temporary Order”). That order was not appealed by the father.
[5] The father did not comply with any of the provisions of the February 2020 Temporary Order. The only amount received by the mother since it was made is the sum of $1,018 which was garnished by the Family Responsibility Office from the father’s former counsel’s trust account in June 2020, immediately after the mother received notice that the father would be representing himself going forward. The father made no payment whatsoever to the mother to satisfy, in part or in full, the terms of the February 2020 Temporary Order.
[6] At the time of the hearing of this motion, the father’s arrears of child and spousal support exceeded $58,000, in addition to the interim disbursements and costs imposed by Engelking J., which also have not been paid.
[7] Under the belief that this matter was to proceed to trial during the November 2020 Trial Sittings, the mother brought a motion seeking the following relief:
1- If the father fails to pay all outstanding costs and support arrears by September 17, 2020, an order pursuant to rule 1(8) striking the father’s pleadings or adjourning the trial set for November 2020;
2- In the alternative, if the trial is to proceed and costs remain unpaid by September 17, 2020, an order pursuant to rule 1(7.2)(i) that the expert report of Jeremy Morley be admitted into evidence without requiring the mother to call him as a witness or permitting the applicant to examine him or contest any of the facts or opinions stated in the report;
3- An order requesting the Office of the Children’s Lawyer to provide an update to the Voice of the Children’s Report dated September 10, 2019, and making recommendations as to interim Skype access as soon as possible;
4- A temporary order reducing the Skype access times with the children or making them subject to the children’s wishes;
5- If the trial is to proceed, an order that the father attend personally;
6- An order requiring the father to pay $50,000 into court as security for costs of the trial and/or security for support;
7- Costs for the motion.
[8] In response to the mother’s motion, the father filed a lengthy affidavit. Much of his evidence was focused on the substantive issues in this case and meant to prove or disprove the many allegations made by each party around those issues (abduction, domestic violence, parental alienation, etc.). I have explained to him that this evidence was not relevant in the context of this motion as I would not decide those issues.
Motion to Strike Pleadings
[9] Counsel for the mother readily acknowledges the jurisprudence of this Court which provides that where children’s interests are involved, court should use utmost caution in striking pleadings because the court needs the participation and evidence of both parties to assess what parenting arrangements are in the children’s best interests (Burke v. Poitras, 2018 ONCA 1025, and D. (D.) v. D. (H.), 2015 ONCA 409). For that reason, the mother’s request to strike the father’s pleadings was not pursued by her.
Suspension of Trial and/or Security for Costs
[10] The mother argues that enforcement efforts by the Family Responsibility Office have been made extremely difficult as a result of the fact that the father lives in Egypt and has no assets or income in Canada. Given that the father has both a Canadian and an Egyptian passport, the Family Responsibility Office’s suspension of his Canadian passport has very limited effect, if any. Given that she is not receiving any support from the father, as ordered by the court, there are no other ways in her submission to motivate and enforce payment by the father other than through the sanctions that she seeks from the court today. Further, the mother, who is relying on public assistance, student grants and loans and family donations to support herself and the children, does not have the financial means to present a full defence to the father’s claims at trial, which puts her at a clear disadvantage given the financial resources available to the father for the same purpose.
[11] The father concedes that he has not made any payment towards the February 2020 Temporary Order. In his affidavit, he reiterates much of the evidence that he provided in the context of the motion for temporary relief heard by Engelking J. In essence, he asserts that he does not have the financial ability to pay the level of support ordered by her, that his current annual income is less than $10,000 CAN, and that he has no asset or other source of income available to him to pay support and/or the costs and interim disbursements ordered by the motions’ judge.
[12] Engelking J. reviewed all the evidence presented by the father in support of these assertions during the motion held before her, and she did not accept his evidence. Based on the full record before her, she concluded:
30 The onus is on Hoda to establish an evidentiary basis upon which the court can impute income to Hatem. She has, in my view, succeeded in doing so. Hatem's return to Cairo University is not satisfactorily explained, particularly given his generous salary at Khalifa, his VISA extension (which would permit him to work in the UAE for a further nine or so years) and his refusal to permit Khalifa University to disclose information to Hoda. On the evidence before me, I can find only that Hatem's return to Cairo University, at a much-reduced salary, was voluntary. He is, thus, voluntarily under-employed for support purposes. Hatem is required to earn the income he is capable of earning, and he is clearly capable of earning a significantly higher income than he is currently doing.
31 Hoda seeks an order that the court impute income to Hatem of $250,000 per annum, which she submits is generously low, given his income at Khalifa University, his housing allowance there (much of which he was able to save and invest) and his assets in Egypt, which she submits include at least two real properties and interests in two his brothers' hospitals. In my view, Hoda has set out a sufficient evidentiary basis to determine that amount of income to be imputed of $250,000 is reasonable.
[13] As stated above, the father did not appeal the decision of Engelking J. Therefore, it is not open to the father to put in question the correctness of her factual conclusions in the context of this motion before me.
[14] The father was deemed to be earning (or of being capable of earning) an income of $250,000 per annum. He has provided no reasonable explanation as to why he has failed to make any payment towards the February 2020 Temporary Order, other than to reiterate that the motion’s judge’s conclusion with regards to his income was incorrect. In his defence, the father states that he is in full compliance with Egyptian Law which requires him to pay child support in Egypt, since he is a resident of that country. He states that pursuant to Egyptian Law, he is required to pay 7500 Egyptian Pounds per month (which is equivalent to approximately $600 CAN), and that failure to comply with this legislation would lead to serious consequences in his country. For that reason, he has complied with that order and deposited the child support in the Egyptian Court’s account.
[15] The power to suspend trial pending compliance with court orders is found in subrule 1(8) f) of the Family Law Rules, O. Reg. 114/99 which states:
FAILURE TO OBEY ORDER
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.
[16] In Price v. Putman, 2018 ONCJ 86, Justice Starr provided a helpful summary of the caselaw related to subrule 1(8) and set out the applicable test as follows:
there must be a triggering event that would allow the Court to consider the wording of sub-rule 1(8);
if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under the sub-rule, and;
if the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with the very broad discretion as to the appropriate remedy pursuant to the provisions of sub-rule 1(8).
[17] Starr J. further added that the sanction imposed on the party who failed to obey a court order should be of some significance, that is, of such consequence as to ensure the administration of justice is not brought into disrepute (at paras. 41-42).
[18] The jurisprudence makes it clear that the Court has the discretion to impose an order it considers necessary when faced with a party in breach of a court order. This includes a stay. In Jiang v. Parham, 2019 ONSC 2131, the applicant mother sought an order before Parfett J. postponing the trial (which centered on parenting issues) until outstanding costs orders made against the father were paid or, in the alternative, an order for security for costs at trial. The father sought to bring a motion to change his support obligations.
[19] In that context, Justice Parfett considered s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 as well as subrules 1(8)(a), 1(8)(f), and 24(13) of the Family Law Rules. Justice Parfett remarked that “the principle that a party must comply with court orders sometimes comes into conflict with the principle that there must be access to justice. Consequently, the court must carefully balance these principles and apply the power to stay or postpone the proceedings sparingly” (at para. 16).
[20] In Jiang, the evidence presented by the father demonstrated that the father was in a dire financial situation and that he was likely unable to pay the costs awards made against him. Consequently, the motion’s judge had significant concerns about ordering him to pay security for costs or to pay outstanding costs awards before he would be permitted to proceed with his motion to change. As a result, she declined making an order for security for costs or an order staying the proceedings.
[21] In the present case, the father’s evidence in relation to his financial circumstances and ability to pay was fully canvassed by Engelking J. She concluded that, for ten years prior to the parties’ separation (and up until one year after the parties’ separation), he had been continuously employed as a Professor and later as the Department Head of Electrical and Computer Engineering at the Khalifa University in Abu Dhabi, earning in the range of $300,000 annually. Noting that he had resigned from that position for reasons which she found to be contradictory in his affidavit and unsatisfactorily explained, she concluded that he was voluntarily under-employed and imputed an annual income of $250,000 to him for support purposes. She also concluded that the father likely had access to much greater wealth, in the form of real estate and income producing assets, as alleged by the mother. This is a significant distinguishing factor from the facts in Jiang.
[22] The case at bar presents facts that are much more closely aligned to the facts in Hall v. Hall, 2019 ONSC 5195, 31 R.F.L. (8th) 401. In that case, the court found that the father was intentionally unemployed and imputed an income of $240,000 for support purposes. When the father fell into significant support arrears, the mother brought a motion seeking to strike his pleadings. The support arrears and unpaid costs owing by the respondent amounted to $79,561.32. Mitrow J. found that the respondent’s conduct was contumacious and that his failure to comply with the two orders was “willful, deliberate and flagrant”. Accordingly, in considering the sanction available pursuant to subrules 1(8) and (8.4), Mitrow J. found that the appropriate consequence was to strike the respondent’s answer, but to impose a time-limited stay to allow the respondent to avoid that consequence by paying all arrears within a specified time.
[23] Of importance, however, is the fact that in Hall, the parties’ children were 18 and 24 and the proceeding did not involve parenting issues and the need to assess best interests of young children, as is the case here.
[24] In Price, Starr J. compared the court’s powers under subrule. 1(8) of the Family Law Rules to civil contempt proceedings. More specifically, he stated that “the primary objective of the remedies available under subrule 1(8) is to coerce the offender into obeying the court judgment or order”, and the second objective is general deterrence. In turn, an order under subrule 1(8) should be “restorative to the victim of the breach and punitive to the noncompliant party” (at para. 43-44). To that end, Starr J. proposes a list of factors to consider in determining whether an order under subrule 1(8) would achieve a fair and just determination of the case:
a) the available remedies under the subrule;
b) the proportionality of the sanction to the wrongdoing;
c) the similarity of sanctions in like circumstances;
d) the presence of mitigating factors;
e) the presence of aggravating factors; and,
f) deterrence.
[25] In this case, the father was found by Engelking J. to have (or to have access to) much greater financial means that what he wanted the court to believe. The level of income imputed to him is not negligible. The motion judge found that he was able to pay considerable amounts of child and spousal support, as well as interim disbursements. Had the father made even the slightest payments towards the temporary order, he would have been in a much better position in this motion. His failure to make any payment at all, or to demonstrate efforts to comply in the form of partial payments, over the course of the past eight months, is an aggravating factor which supports a finding that his non-compliance is willful, deliberate and flagrant.
[26] Although he seeks the assistance of this Court for relief regarding his children, the father does not appear to have any intention to comply (even a little) with the orders that it makes. The motion judge concluded that an order requiring the father to pay interim disbursements was necessary to level the playing field in this case. Costs were awarded to the mother to recognize her success in the motion and to compensate her for the financial burden of having to bring it in the first place. In my view, allowing the father to proceed to trial, thus forcing the mother to do the same without the financial resources that she needs to present a proper defence, when the father has fulfilled none of his court-imposed obligations as a litigant, would lead to a significantly unjust and unacceptable result and bring disrepute to the proper administration of justice.
[27] As eloquently stated by Quinn J. in Gordon v. Starr, [2007] W.D.F.L. 4107, [2007] (Ont. S.C.), “An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders”.
[28] In this case, I conclude that the only way to force compliance from the father is to stay the trial until he substantially complies with the terms of the February 2020 Temporary Order. The adjournment of the trial, in my view, strikes a reasonable balance between the importance of the father’s voice being heard in the context of assessing his children’s best interests, and the need for court orders to be respected and complied with. Once he demonstrates that he has substantially complied with the February 2020 Temporary Order, the father will be permitted to proceed to trial.
[29] Given the above, I am not prepared to entertain the mother’s motion for security for costs at this time. If the father complies with the February 2020 Temporary Order, their respective financial position will be significantly different, which will have an impact on the mother’s request for security for costs. As such, her motion is adjourned without prejudice to her right to bring it back before the court when the father demonstrates substantial compliance with the February 2020 Temporary Order and is granted leave to proceed to trial.
Voice of the Child and Reconsideration of Temporary Access
[30] Pursuant to the current interim order in place, the father has access to the children via Skype twice per week, for at least thirty minutes each time. The mother alleges that these Skype calls have been highly problematic and the source of much stress and anxiety for the children. In support of her assertions in that regard, she produced letters and case notes from the children’s pediatrician, Dr. Abaza, which confirm that both children have been diagnosed with anxiety and panic attacks, allegedly caused by their current circumstances and the threat of being taken back to Egypt against their will.
[31] The father disputes the mother’s evidence in that regard and alleges that the mother fails to support and promote his relationship with the children, and that she negatively influences them to reject and refuse to engage in access visits.
[32] The mother seeks an order that the Skype calls between the children and their father be reduced in terms of frequency and duration, or that they be subject to the children’s wishes and preferences. Given the allegations made by the father against the mother in relation to Skype calls, the mother asks for an order that the Voice of the Child’s Report prepared by social worker Ms. Poole dated September 10, 2019 be updated.
[33] I agree that hearing directly from the children in relation to their contact with their father would be extremely useful in the context of assessing the mother’s request for a change in the current interim access order. For that reason, the mother’s request for an updated Voice of the Child’s Report is granted, and her motion to change the father’s access to the children is adjourned to a date after the updated report has been provided. To the extent that the Office of the Children’s Lawyer declines re-involvement, the mother’s motion to vary interim access can be brought back before me, on notice to the father. For that purpose, updated evidence from both parties is allowed in accordance with the Rules.
Order
[34] Based on the above, the following temporary order is made;
The trial in this matter is adjourned until the father demonstrates, in a motion on notice to the mother, that he has substantially complied with the terms of the Temporary Order made by Engelking J. on February 24, 2020.
The mother’s motion for security for costs is adjourned without prejudice to her right to bring it back before the court if and when the trial is allowed to proceed.
The Office of the Children’s Lawyer is hereby appointed to provide an update to the Voice of the Child’s Report prepared by social worker Karen Poole dated September 10, 2019.
The mother’s motion to vary the children’s interim access with their father is adjourned to a date after the Office of the Children has provided an updated report or has confirmed that it will not get re-involved with this family, whichever comes first.
Costs
[35] If the parties are unable to agree on costs, they may provide me with brief written submissions not exceeding three pages, exclusive of Offers to Settle and Bills of Costs, in accordance with the following timelines:
1- The mother shall provide her submissions by October 29, 2020;
2- The father shall provide his submissions by November 12, 2020;
3- Any reply by the mother, which shall be limited to one page, shall be provided by November 19, 2020.
Madam Justice Julie Audet
Released: October 15, 2020