Court File and Parties

COURT FILE NO.: FS-17-416419 DATE: 20210309 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Bibi Abdulla Applicant – and – Nazim Abdulla Respondent

Counsel: Sudha Chandra, for the Applicant Efua Cobbina, for the Respondent

HEARD: March 2, 2021 Shore, J.

Endorsement

[1] On August 18, 2019, Justice Goodman made an order setting out a mechanism by which the respondent was to purchase the applicant’s interest in a jointly owned property, municipally known as 31 Maryhill Drive, Etobicoke, ON. The order also set out various adjustments to be made for money owing between the parties. The buyout has still not taken place. The Respondent brought this motion, seeking an order in accordance with Justice Goodman’s order and specifically an order dispensing with the Applicant’s consent/signature to transfer title of the property. The Applicant did not file a motion of her own but opposes the Respondent’s motion.

[2] For the reasons set out below, the motion is granted.

[3] The parties separated on September 1, 2016. The parties were divorced in May 2018 and consented to a final order regarding parenting matters on November 5, 2019. The financial issues arising from the breakdown of their marriage have not been resolved.

[4] The parties have five children of their marriage ranging in age from 14 to 23 years old. The children all live with the respondent and have been living with him almost exclusively since separation. The applicant has not spent any meaningful time with the children since separation and has only seen the children twice in 2020 and not at all since March 14, 2020.

[5] On consent, on April 17, 2018, Justice Stewart made an order that the applicant pay temporary child support to the respondent in the sum of $772 per month. The applicant failed to make any meaningful payments towards child support. As of February 1, 2021, she owed $17,211 in child support arrears pursuant to the records maintained by the Family Responsibility Office.

[6] On August 14, 2019, the parties consented to an order that the respondent purchase the applicant’s interest in the jointly owned property located at 31 Maryhill Dr., Etobicoke. The agreement was incorporated into the order of Justice Goodman, dated that same day. Paragraph 7 of Justice Goodman’s order reads as follows:

The parties agree that the respondent may purchase the applicant’s interest in 31 Maryhill Dr., Etobicoke on the following terms:

a. the parties shall mutually agree to a home appraisal undertaken by a jointly retained home appraiser no later than August 23, 2019.

b. The fair market value of the property shall be determined by the appraiser. The net value of the property shall be the fair market value less:

i. current mortgage and associated fees

ii. 2.5% contingent disposition fees plus HST

iii. $1500 for legal fees

c. the notional net value of the property shall be divided in two.

d. From the applicant’s one-half portion, the following amounts shall be deducted and paid to the respondent

i. approximately $7200 in child support arrears enforced by FRO from the temporary order of J. Stewart dated April 17, 2018. Applicant’s counsel shall pay this amount to FRO. Applicant’s counsel shall confirm with FRO the amount outstanding.

ii. The shortfall in carrying costs for the property from the date of separation to end of 2018 in the amount of $11,953.06 (subject to receipts/verification from service providers/property taxes etc).

iii. Orthodontic costs for Samir and Mubeena in the amounts of $5990 and $6390 respectively, payable to Allison orthodontics and oral surgery by the respondent (total $12,380).

iv. $1000 in costs ordered by Justice Goodman on May 27, 2019.

e. The applicant shall receive $25,000 from the buyout. The balance of the applicant’s one-half share less the amounts deducted above shall be held in trust by the applicant’s counsel.

f. The respondent shall not encumber the property apart from the refinancing required to pay the applicant’s one-half net share of the property without further agreement of the parties or order of the court.

[7] In accordance with the terms of the order the parties mutually agreed to an appraisal of the property by David Wenger, of Ridgepoint Appraisal. The property was valued at $760,000. After deducting the outstanding mortgage, the mortgage penalty, legal fees, appraisal fee, and contingent disposition fees of 2.5%, the equity in the home was determined to be $289,645.64 in accordance with paragraph 7(b) of Justice Goodman’s order. Therefore, the applicant’s 50% share of the net equity in the property was $144,822.82.

[8] In accordance with paragraph 7(d) of Justice Goodman’s order, the following sums were to be deducted from the applicant’s one-half share of the net equity:

$17,211 for child support arrears,

$11,953.06 for the shortfall of carrying costs up to 2018,

$12,380 for orthodontics and oral surgery for two of the children,

$1000 for outstanding costs, and

$750 for outstanding costs from the order of Justice Goodman, dated November 5, 2019,

for a total of $102,278.76 owing from the Respondent to the Applicant to purchase the Applicants interest in the property. The order provides that from these proceeds, $25,000 may be paid out to the applicant, with the remainder to be held in trust by the applicant’s lawyer. The payment/transfer did not take place and following an attendance before Justice Goodman in November 2019, Justice Goodman made a further order for the transfer of the property.

[9] The Respondent is asking for an order dispensing with the Applicant’s signature or consent to transfer the property into his name, as a way to enforce the orders. The orders of Justice Goodman (dated August 14, 2019 and November 5, 2019) have not been appealed or set aside. Paragraph 25(19) of the Family Law Rules provides that the court may, on motion, change an order that was obtained by fraud or contains a mistake. The Applicant requests an adjournment of the motion before me to allow her forensic accountant time to complete his report and so that she can have evidence before the court for her motion to set aside the order due to misrepresentation and/or fraud when determined the sum to be paid from her share of the equity in the property.

[10] Should an adjournment be granted? In the circumstances of this case, I decline to grant the request for an adjournment. The Applicant is requesting an adjournment of this motion to obtain a report from a forensic investigator so that she can provide evidence to this court of misrepresentation or fraud. Considering the history of this case, the request is denied.

[11] There have been at least six adjournments of various conferences from May 2019 until the end of 2020, at the request of the Applicant. The Applicant has anticipated obtaining a report from a forensic investigator, since at least May 2019. The discussion of the report from the forensic investigator arose at least as early as May 2019 in a conference with Justice Goodman.

[12] Further, Justice Goodman’s Order dated August 14, 2019 states as follows:

3. If the forensic investigator has not completed his investigation, and more time is needed, then the applicant shall produce a letter from the forensic investigator setting out the date he was retained and the steps he has yet to take and his estimate as to when he will finalize his work and provide a report to Ms. Abdulla, if she intends to adduce his evidence during the trial as an expert.

4. Ms. Chandra shall advise Mr. Douglas that Ms. Abdulla must have the investigation completed as soon as possible, obviously appreciating the nature of his work. If there are reasons for any delay in his work, Mr. Douglas is to be directed to include the reasons for the delay in the letter he writes pursuant to paragraph three above.

[13] The parties attended a further conference with Justice Goodman on November 5, 2019. Mr. Douglas’s report had still not been received. The endorsement provides that “according to Mr. Douglas, the report can and will be delivered within three weeks of his receipt of the last of the information he has requested”. Justice Goodman ordered as follows:

3. If the report from which Ms. Abdullah has been waiting has not been completed by the middle of December and Ms. Abdullah is not able to make an offer to settle by January 10, 2020 and or reasonably consider Mr. Abdullah’s offer because she still has not received her expert’s report, then the attendance on January 20/20 will be a TMC and not a S/C.

4. Absent agreement in writing by the parties otherwise, they shall proceed immediately to cooperate to complete the financial arrangements they consented to respecting the Mayhill property on August 14/19. To that end, within the next 10 days, Ms. Abdulla shall (via counsel) advise Mr. Abdulla (via counsel) of the amount of arrears owing by her to Mr. Abdulla as of November 1/19, inclusive, according to FRO. If he does not agree that the amount is correct, he shall immediately contact FRO to determine what the amount is. If the parties still disagree, the lower of the amount shall be deducted and paid to the respondent under paragraph 2(d)(i) of the consent (and order). The difference between the two amounts (the lower and higher ones) shall be deducted under 2(d)(i) but paid into court in the amount of arrears to be deducted under para 2(d)(i) shall be sorted out at trial.

[14] Likewise, the child support order has not been appealed or set aside. Despite agreeing to pay child support, the Applicant currently owes over $17,000 in child support and has not made any payment towards her child support obligation in quite some time. The Applicant has chosen to ignore her obligations under the court orders, and I have difficulty in her now seeking an indulgence or relief from this court.

[15] As I set out at the start of this decision, there is currently no motion before this court to set aside the order. The order has not been appealed. The Applicant is essentially asking this court not to enforce two prior court orders.

[16] I am not sure why the Applicant, or any litigant for that matter, is of the belief that adhering to court orders is optional or simply a suggestion. While there may be some exceptions (which will be few and far between), if the court were to allow this to go without consequence, it would bring the administration of justice into disrepute. There need to be consequences for non-compliance for court orders: see Cirinna v. Cirinna, 2018 ONSC 4831 at par 3.

[17] Almost every family lawyer in our court can repeat, almost verbatim, the often cited wording of Justice Corbett from Taylor v. Taylor at para. 3:

When the court issues orders, it is essential that they be obeyed. Court orders are not “suggestions” for “frameworks” or “guidelines”. They are mandatory. They must be obeyed. A resentful spouse is not above the law. Where a party disagrees with an order, he may seek to appeal it. In some circumstances, he may seek to vary it. But it is not an option to simply disregard the order.

[18] Under rule 1(8) of the Family Law Rules (FLR), there are a number of remedies available to the court when a party fails to obey an order in a case. Some of the remedies include costs, striking pleadings and not permitting the party to seek further orders of the court.

[19] In the case before this court, the relief being sought by the Respondent will remedy the breach of the child support order (arrears), unpaid costs and the buyout of the property.

[20] There is no question that this court has the jurisdiction transfer the property from the joint names of the parties into the Respondent’s sole name. Section 100 of the Courts of Justice Act states that a “court may by order vest in any person an interest in real or personal property that the court has authority to order be disposed of, encumbered or conveyed.”: R.S.O. 1990, c. C.43, s. 100. Further, section 9 (d) of the Family Law Act, permits the court to make an order that “property be transferred to or in trust for or vested in a spouse, whether absolutely, for life or for a terms of years”, in order to satisfy a court order with respect to the equalization of property. In the case before me, I am prepared to grant the relief requested and order that the property be transferred into the Respondent’s sole name, dispensing with the need to obtain further cooperation from the Applicant.

[21] As set out below, I am also prepared to award costs to the Respondent both because he was successful on the motion and because of the Applicant’s failure to obey court orders. There should be a consequence for ignoring court orders and forcing the other party to incur legal costs for the sole purpose of enforcing same. This also goes hand in hand with rules 2(2) and 2(5) of the FLR which set out the primary objective: to enable courts to deal with cases justly, which includes ensuring a fair process which is efficient, proportional, and cost-effective, and represents an appropriate use of the court’s resources. It unjust to the Respondent to spend time and money addressing compliance with two prior court orders. It is also a grossly inefficient use of court resources at any time, but especially at time when there are waiting lists throughout most of the province to have motions heard in family courts.

Sponsorship Debt

[22] The Respondent is asking that a debt owing to the government of Canada be repaid from the Applicant’s proceeds of sale. The Applicant sponsored her family for permanent residency in Canada during the marriage. The Respondent co-signed the sponsorship undertaking for her brother in May 2003. However, the brother ended up on social assistance during this time frame, and therefore, as a result of the sponsorship, the Applicant is required to pay back approximately $20,000 to the government. The debt is still owing and shows up as a debt on the Applicant’s financial statement (and net family property statement) on the date of separation. The Respondent is concerned that he may become liable for part of this debt as a cosponsor and wants this court to make an order that the debt be paid from the buyout proceeds.

[23] I am not prepared to make this order at this time. There is no evidence that the government is taking enforcement steps at this time or that the Respondent’s credit rating is being affected in any way. This debt can be addressed on final resolution of the issues or if and when enforcement steps are taken by the government against the applicant and/or respondent.

Costs

[24] The Respondent was successful on his motion, but for the issue of payment of the debt to the government, which has been adjourned to be addressed at a later date. The Respondent is entitled to his costs as the successful party under rule 24(1) of the Family Law Rules. The Respondent should not have had to bring a motion to facilitate the buyout of the property when there are already two court orders requiring the Applicant to facilitate same.

[25] In considering the cost amount under rule 24(12), the court shall consider:

a. the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

i. each party’s behaviour,

ii. the time spent by each party,

iii. any written offers to settle, including offers that do not meet the requirements of rule 18,

iv. any legal fees, including the number of lawyers and their rates,

v. any expert witness fees, including the number of experts and their rates,

vi. any other expenses properly paid or payable; and

b. any other relevant matter. O. Reg. 298/18, s. 14.

[26] In light of the two prior court orders, I find the Applicant’s action/behaviour to be unreasonable. The Respondent should not have had to bring this motion.

[27] The Respondent produced a bill of costs and has incurred costs of just over $7,100. The Applicant did not prepare a bill of costs but acknowledged that costs of $5,000 was reasonable, payable to the successful party. The Applicant did not take issue with the time spent, the legal fees incurred or anything else set out in the bill of costs. I have reviewed the bill of costs and have no issue with the time spent and the fees incurred. This is an appropriate case for costs to be paid on a full indemnity basis, especially because costs are payable not only under rule 24, but also under rule 1(8) as set out above.

[28] The Applicant shall pay the Respondent costs of $7,100, to be deducted from the proceeds of the buyout payable by the Respondent to the Applicant.

Order

[29] Order to go as follows:

1. Subject to paragraph 5 below, the Respondent shall pay $102,278.76 to the Applicant’s lawyer in trust, for the Applicant’s share of the equity in the property, municipally known as 31 Maryhill Drive, Etobicoke, ON (“the property”). From these funds, $25,000 shall be released to the Applicant with the remainder to be held in trust pending further court order or agreement between the parties.

2. Concurrently upon payment of the sum set out above, title of the property shall be transferred from the joint names of the parties to the sole name of the Respondent. For clarification, title shall be transferred without the need to obtain the Applicant’s signature or consent. Title shall be vested in the Respondent’s name, in accordance with the terms of this order.

3. The respondent shall not encumber the property without further agreement of the parties or order of the court, apart from the refinancing required to pay the applicant’s one-half net share of the property.

4. Upon payment of the amount set out in paragraph 1 above and the transfer of the property to the Respondent: a. there are no arrears of child support owing under the order of Justice Stewart, dated April 17, 2018, from the date of that order until and including February 1, 2021; b. the cost awards of Justice Goodman dated May 27, 2019 and August 4, 2019 and of this motion have been paid; c. the Applicant’s share of the shortfall in carrying costs for the property from the date of separation to end of 2018 have been paid; and d. the Applicant’s contribution to the orthodontic costs for Samir and Mubeena has been paid.

5. The Applicant shall pay the Respondent costs of this motion in the sum of $7,100, to be deducted from the proceeds owing by the Respondent to the Applicant for the buyout of the property, so that the total payable to the Applicant’s lawyer in trust under paragraph 1 above shall be $95,178.76.

Justice S. Shore Released: March 9, 2021