COURT FILE NO.: FC-162728
DATE: 2021/05/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHSIN HILMI MESBAH ABU-SHABAN
Applicant
– and –
MONA SOBHY ABU-SHAABAN
Respondent
Rod A. Vanier, for the Applicant
Annmarie Roodal, for the Respondent
HEARD: In writing
reasons for decision
M. SMITH J
[1] The Applicant, Mohsin Hilmi Mesbah Abu-Shaban (the “Father”) and the Respondent, Mona Sobhy Abu-Shaaban (the “Mother”) proceeded to a trial that took place over a two-month period. It was heard on January 19, 20, 21, 22, February 3, 4, 16, 18, and March 8, 2021. The decision is under reserve.
[2] The issues in dispute include child support, imputation of income, equalization of the net family property, sale of the matrimonial home and the enforcement of a marriage contract.
[3] On April 12, 2021, counsel for the Mother wrote to the Court seeking leave to reopen the trial on the basis that fresh evidence has presented itself since the closing of the trial on March 8, 2021. The motion materials were filed on May 5, 2021.
[4] The Mother brings a formal motion seeking leave to reopen the trial and seeks an Order requesting that Mr. Maher Aly Abu-Sabha, Head of the Palestinian Land Authority, and the Palestinian Land Authority, and/or Mr. Issam Abdel Fattah Al-Hamarneh, Director General of the General Administration of Lands and Real Estate- Gaza Land Registry, and the Gaza Land Registry provide the following information to the parties and the Court: (a) copy of the Father’s updated land registration documents for the property owned by him located at Plot No. 704, Parcel No. 29, Gaza Al-Jadidah, Arremal, Gaza City, Palestine and (b) copy of the Father’s brother, Mazin Abu-Shaban (the “Brother”) contract of sale or any documentation confirming the details of the sale of his share of the Gaza property, located at Plot No. 704, Parcel No. 29, Gaza Al-Jadidah, Arremal, Gaza City, Palestine, including the amount of money that the property was sold for, square meters of the land sold, and the date of the sale.
FACTUAL BACKGROUND
[5] The parties were married on June 6, 1987 and separated on December 9, 2016.
[6] One of the main issues at trial dealt with the equalization of net family property. More specifically, a significant amount of trial time was spent dealing with the valuation of the property that is co-owned by the Father, located in The Gaza Strip (the “Gaza property”).
[7] The Gaza property, which is the subject of the equalization claims between the parties, is situated in a commercial area and measures 1610 square meters of land. The Father inherited 1/16 of the Gaza property, which represents 100.62 square meters.
[8] In preparation for trial, the Mother had retained an expert from The Gaza Strip to appraise the Gaza property. Mr. Sami M.S. Abu Aubaid, Licenced Real Estate Appraiser No. 28, Land Authority – Gaza Palestine prepared a report dated December 18, 2019. He valued the Gaza property at $5,600 per square meter, as at the date of separation.
[9] On the second day of trial, it was revealed that Mr. Aubaid had also been retained by the Father who authored a second report dated February 26, 2020. In that report, Mr. Aubaid opined that the Gaza property was valued at $4,000 per square meter, as at the date of separation.
[10] Given the unreliability of the contradictory opinions expressed by Mr. Aubaid and in the interest of dealing with the matter justly and fairly, the parties were permitted to retain new experts. Invariably, the trial was delayed.
[11] The Mother retained Mr. Majed Saadi Hussein Khayal who delivered a report dated January 21, 2021. He valued the Gaza property at $6,000 per square meter, as at the date of separation.
[12] The Father retained Mr. Mohammad Al-Farawi who delivered a responding report dated January 25, 2021. He valued the Gaza property at $3,000 per square meter, as at the date of separation.
[13] Mr. Khayal and Mr. Al-Farawi both testified at the trial.
THE ISSUE
[14] Should the Court grant the Mother’s motion to provide fresh evidence regarding the Gaza property?
POSITION OF THE PARTIES
The Mother
[15] The Mother says that a key issue in dispute regarding the equalization payment calculations is the value to be attributed to the Gaza property.
[16] Following closing arguments, the Mother received information that the Brother recently completed the sale of his portion (192 square meters) of the Gaza property for the approximate sum of $1,000,000 USD dollars or roughly $5,000 per square meter.
[17] The Mother argues that given the difficulties that the parties experienced at trial with respect to appraising the Gaza property, this fresh evidence would assist the Court in its determination of the value of the Father’s share in the Gaza property.
[18] The Mother submits that with an Order from this Court, she will be able to obtain from the Palestine Land Authority, the information regarding this most recent sale.
The Father
[19] The Father opposes the motion. He says that the fresh evidence does not deal with the Gaza property’s value as of the date of separation, being December 9, 2016. The amount of monies received by the Brother for his share of the Gaza property would not be of any assistance to the Court because it does not give any indication as to the property value at the date of separation. The sale is therefore not material to this case.
[20] The Father says that the family is in turmoil and he does not speak to his Brother. He claims that the sale of the Brother’s portion of the Gaza property was done in a hostile fashion, in a direct effort to threaten the siblings’ ability of selling their respective shares.
[21] If the fresh evidence is allowed, additional time and costs would be added because new witnesses would have to be called as well as recalling witnesses that have already testified at trial. It is submitted that there would be no benefit to this evidence, while the costs would be significant. The reopening of the trial would be contrary to the principles of natural justice and prejudicial to the Father.
[22] The Father concludes in saying that this Court does not have jurisdiction in forcing the Palestine Land Authority to disclose any information and as such, there is no guarantee that it will be provided.
ANALYSIS
The Law
[23] The Family Law Rules, O. Reg. 114/99 does not address the request to reopen the trial to file new evidence. Rather, one needs to turn to r. 52.10(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) which provides the following authority:
FAILURE TO PROVE A FACT OR DOCUMENT
52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case,
(a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs;
[24] Subrule 53.01(3) of the Rules permits a trial judge to recall, at any time, a witness for further examination.
[25] In Malkov v. Stovichek-Malkov, 2018 ONCA 620, the Ontario Court of Appeal affirmed the factors to consider when entertaining a party’s request to reopen the case, as originally set out in Catholic Children’s Aid Society of Toronto v. M.R., 2014 ONCJ 762, 64 R.F.L. (7th) 470, at para. 17:
• At what stage of the trial is the motion made?
• Why was evidence not adduced during the party's case? Did the party intentionally omit leading the evidence earlier? Or did the evidence only recently come to the party's attention, despite diligent earlier efforts?
• What is the prejudice to the defendant? A defendant might have conducted his case differently if he had known and had an opportunity to investigate the evidence which is the subject of the motion.
• Can any prejudice be remedied in costs?
• How would a reopening of the case affect the length of the trial? How much evidence would have to be revisited?
• What is the nature of the evidence? Does it deal with an issue which was important and disputed from the beginning, or with a technical or non-controversial point?
• Does it merely "shore up" evidence led in chief?
• Is the proposed new evidence presumptively credible?
[26] The need for finality is paramount, especially when a decision has been rendered and judgment entered. If a case has not yet been decided, fairness and truth-seeking should be considered over finality. When a decision is pending and has not been made, the test for admitting fresh evidence does not include whether the fresh evidence could affect or have an influence on the result: Brasseur v. York, 2019 ONSC 4043, at paras. 38 and 45.
Discussion
[27] The Mother deposes that in or around March 22, 2021, she was told by Mr. Khayal that he had learned that the Father’s Brother had recently sold his piece of land for approximately $1,000,000 USD. On April 12, 2021, Mr. Omar Zaida, a Manager at the Palestine Land Authority told the Mother that with a Court Order, he would be able to provide her with a copy of the recent land registry ownership for the Gaza property.
[28] To demonstrate the family discord, the Father provides a copy of a legal notice received from his Brother’s attorney in Gaza, threatening legal action against him and his siblings, unless payment of $1,000,000 JOD dollars in damages is made.
[29] The legal notice was translated by the Mother and submitted in her reply materials. Of note, the Brother’s attorney claims, amongst other things, that:
a. In 2016, a lawsuit had been initiated by the Father (and others) against the Brother. A Court Order was obtained prohibiting the sale of his Brother’s portion of the land.
b. On April 22, 2019, the Court struck out the lawsuit.
c. During the time of the prohibition Order (2016-2019), the real estate prices and demands had increased. The Brother had obtained offers to purchase his portion of the land in an amount exceeding $6,000 JOD per square meter.
d. As a result of the prohibition Order, the Brother suffered a loss in terms of earnings, when he sold his portion of land at a lower price.
[30] The above information is new to the Court and was not presented at trial.
[31] In applying the factors adopted by the Ontario Court of Appeal in Malkov v. Stovichek-Malkov, I find that it is appropriate to reopen the trial, for the following reasons:
a. The Mother’s request to reopen the trial was made immediately upon learning of the fresh evidence, approximately one month after the close of the trial. She was due diligent in her pursuit of this request.
b. During the cross-examination of Mr. Al-Farawi, there was a suggestion made to him that the Brother had accepted an offer to purchase his share of the property. Yet, no further information was presented at trial. I accept that the details of this sale only came to the Mother’s attention after the close of the trial.
c. The Father says that if the trial is reopened, he will be prejudiced by the delays. There is no doubt that additional trial time will be required. However, the Father’s only prejudice that could be occasioned by this delay is that the selling of the matrimonial home will be postponed, which I do not qualify as significant. If it is later found that the delay was unreasonably caused by the Mother’s request to admit fresh evidence and that the Father has been prejudiced, this can be remedied by costs.
d. The Father argues that if the Court allows this fresh evidence or attribute’s the Brother’s property value in 2021, it would be prejudicial. He further argues that the fresh evidence is not relevant because it does not ascribe a proper value of the Gaza property at the date of separation. At this juncture, no decision has been made by the Court regarding the valuation that is to be attributed to the Gaza property. The issue is whether the fresh evidence is to be allowed because it is relevant and material. The answer is yes. At trial, the Father’s expert testified, amongst other things, that the value that he attributed to the Gaza property was based, in part, on the following: (1) nobody would be interested in purchasing a portion of the Gaza property; (2) the Gaza property is completely seized by the Court and as such, nobody could buy the portion of the Gaza property even if they wished to sell it; (3) the dispute between the siblings impacts the valuation of the Gaza property. The Father testified that for the last 10 years, some of his family members tried unsuccessfully to sell their share of the Gaza property. In my opinion, the fresh evidence proposed by the Mother is relevant and material because it addresses directly all these issues, including the marketability of selling a portion of the Gaza property, and whether the existence or not of a Court seizure and/or a family dispute impacts the value of the Gaza property.
[32] In my assessment of the expert evidence, I must consider the appropriateness and reliability of the experts’ methodologies and the facts that they relied upon in the determination of their respective valuations. The expert evidence presented at trial was less than ideal. The experts’ opinions were largely based on their own personal subjective experiences rather than some concrete comparable data. They were unable to provide the Court with any evidence of comparable properties that were sold in or around 2016. Unlike Canada, there are no available databases of the properties that were sold in the area of the Gaza property. Although the proposed fresh evidence deals with a sale that occurred in 2021, I believe that it is important to consider this evidence because it relates to some of the proffered opinions by the experts. Considering the problems that exist with the expert evidence, I believe that the fresh evidence will assist me to better assess the expert opinion evidence tendered in this case.
[33] To refuse fresh evidence that is relevant and material, especially when the adjudication of the case has yet to be completed, would undermine the truth-seeking function of the trial.
[34] I am aware that an Order of this Court will not necessarily guarantee that the Palestinian Land Authority will provide the registry information. I am also mindful that given the volatile political climate that presently exists in the Gaza Strip, the timing of this request is less than optimal and obtaining copies of the requested information may be challenging. Considering the relevance and materiality that I have placed on this fresh evidence, I am of the view that an Order is nonetheless appropriate in the unique circumstances of this case.
Disposition
[35] For the reasons outlined above, the Mother’s motion is granted.
CONCLUSION
[36] An Order to issue in accordance with paras. 1 and 2 of the Mother’s Notice of Motion.
[37] The costs of this Motion are reserved in the cause.
[38] Counsel will cooperate with one another in the implementation of this Order. Counsel shall discuss and attempt to agree upon the next steps in these proceedings. At the request of counsel, a Trial Management Conference shall be scheduled by the Trial Coordinator’s office.
Justice Marc Smith
Released: May 18, 2021
COURT FILE NO.: FC-162728
DATE: 2021/05/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MOHSIN HILMI MESBAH ABU-SHABAN
Applicant
– and –
MONA SOBHY ABU-SHAABAN
Respondent
REASONS FOR DECISION
Justice Marc Smith
Released: May 18, 2021