COURT FILE NO.: FS-20-14738
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARZANA RATAN SONIA
Applicant/Responding Party
– and –
ABDUL HANNAN RATAN
Respondent/Moving Party
Obaidul Hoque, for the Applicant/Responding Party
Syed Kabir, for the Respondent/Moving Party
HEARD: June 27-28, 2022
ENDORSEMENT
P.J. Monahan J.
I. Introduction
[1] The parties have asked me to answer an apparently straightforward factual question: did the Applicant marry a third party, Syed Towfique Ahmed (“Towfique”) in Dhaka, Bangladesh, on May 24, 2020?
[2] Although the question can be simply stated, the reasons why it matters to the parties and to this litigation are considerably more complicated. In essence, though, it boils down to this. The Respondent claims that the Applicant is pursuing her family law claims against him under false pretenses. He says that when she commenced this litigation in January 2020, the parties had already been divorced in Bangladesh for over two years. Then in May 2020, the Applicant married Towfique, with whom she had been involved in a romantic relationship since 2016. The Respondent further claims that the Applicant has been actively attempting to conceal her marriage with Towfique from the Court because she fears that, if it were discovered, it would lead to the dismissal of her claims in this proceeding.
[3] The Applicant denies all of the Respondent’s allegations and claims that it is he, rather than she, who is attempting to deceive the Court. The Applicant says that the parties were never divorced in Bangladesh and that the documents produced by the Respondent that purport to confirm the divorce are fraudulent. Nor was she involved in an affair with Towfique or marry him in May 2020, and the evidence produced by the Respondent purporting to show that this marriage took place are based on lies, forgeries and frauds. In fact, the Applicant alleges that the Respondent is conspiring with numerous other third parties to deceive the court into believing his false claim that she married Towfique. Sadly, Towfique passed away from complications due to Covid-19 in May 2021, and so he is not available to confirm that he never married the Applicant.
[4] Allegations of fraud should not be made lightly. Fraud claims allege unlawful conduct and are an attack on a person’s integrity. The mere making of such allegations in a public court proceeding can create a stain on a person’s reputation that is difficult to remove. Moreover, because such claims are difficult to prove (or disprove), they tend to lengthen and increase the cost of the litigation. For these reasons, amongst others, parties who consider making fraud allegations ought to be reasonably confident they can be proven.[^1]
[5] What distinguishes the fraud claims made by the Applicant in this case is the scale, scope, and complexity of the fraudulent conspiracy that she is alleging against the Respondent. Not only is the Respondent himself engaged in an ongoing fraud, but the Applicant also says he has recruited numerous other participants in Bangladesh, including friends and relatives of Towfique, a Marriage and Divorce Registrar, a religious scholar, the Manager of a major hospital in Dhaka (or, alternatively, an unknown person purporting to be the Manager), and the Special Superintendent of Police Immigration at the Hazrat Shahjalal International Airport. None of the alleged participants has any apparent connection to the Respondent, to this litigation, or to Canada. None of them appears to have anything to gain, or any other reason to participate in the Respondent’s fraudulent scheme. Nor has any of them defected from the conspiracy and exposed the Respondent’s attempted fraud. In fact, when questioned, these third parties insist that they are telling the truth and are not part of any scheme of lies and deception being directed by the Respondent.
[6] Successfully implementing such a sophisticated scheme would require careful planning and recruitment, attention to detail, and disciplined execution. Governments or major corporations might be able to do so without being discovered. But although the parties disagree on the Respondent’s financial circumstances, it does not appear that he has anywhere near the kinds of resources that would be required.
[7] I subscribe to principle of parsimony known as Occam’s razor, namely, that of two competing theories, the simpler and more obvious explanation is most often correct. This proceeding confirms the wisdom of this principle since the evidence overwhelmingly supports the conclusion that the elaborate conspiracy alleged by the Applicant simply does not exist.
[8] For the reasons set out below, I find that the Applicant did indeed marry Towfique on May 24, 2020. The inevitable corollary of this finding is that the Applicant has been attempting to conceal her marriage to Towfique for over two years, including by making unfounded allegations of fraud against the Respondent.
II: Background
[9] On January 7, 2020, the Applicant filed an Application seeking a divorce and corollary relief from the Respondent, including a claim for spousal support as well as for equalization of the parties’ net family properties.
[10] In his February 2020 Answer, the Respondent disputed the Applicant’s claims on various grounds, including that the parties had been divorced in Bangladesh in March 2017 (the “March 2017 Divorce”). Since the Applicant’s equalization claim was brought more than two years after the March 2017 Divorce, the Respondent brought a motion seeking a declaration that the Applicant’s property claims were barred by s. 7(3) of the Family Law Act[^2] (the “Act”). He filed extensive documentation in support of his motion, including a Divorce Certificate (the “Divorce Certificate”) issued on June 15, 2017 by a Marriage and Divorce Registrar in Dhaka (the “Registrar”) stating that the parties had been divorced on March 17, 2017.
[11] The Applicant responded by claiming that the March 2017 Divorce had been obtained by fraud and that the divorce documents filed by the Respondent, including the Divorce Certificate, were forged and fraudulent. The Applicant filed various documents in support of her claims of fraud, including affidavits from her parents stating that they had attended at the office of the Registrar in February 2020 and obtained a certificate purporting to be from the Registrar (the “February 2020 Certificate”), stating that the June 15, 2017 Divorce Certificate had never been issued by his office and was a forgery. The Applicant also argued that, even if the March 2017 Divorce had not been obtained by fraud, it was not valid under Bangladeshi law since the Respondent had not followed the correct procedure in obtaining it. Therefore, any such divorce should not be recognized in Canada.
[12] The Respondent disputed the Applicant’s claims that he was committing fraud, including through a detailed affidavit from the Registrar stating, inter alia, that the Divorce Certificate relied upon by the Respondent had in fact been duly signed by him and issued from his office in June 2017. The Registrar further affirmed that the February 2020 Certificate that the Applicant’s parents claimed to have obtained from him was itself a forgery. The Respondent argued that the March 2017 Divorce was valid under Bangladeshi law and should be recognized in Canada.
[13] It was agreed that a focused two-day hearing should be held to determine, as a preliminary matter, whether the alleged March 2017 Divorce was valid under Bangladeshi law and whether, even if valid under Bangladeshi law, it should be recognized under Canadian law (the “Preliminary Issue”).
[14] When the Preliminary Issue came before me on March 22, 2021, it was quickly apparent that far more than two days would be required to properly address it; after five days of testimony the first witness, the Respondent, was still being cross-examined by counsel for the Applicant.
[15] At the commencement of the second week, the Applicant advised that, although she was not abandoning her allegations of fraud against the Respondent in connection with the alleged March 2017 Divorce, in the interest of shortening the hearing she no longer wished to pursue such claims. Instead, she proposed to focus her argument on the fact that the Respondent had never properly served the divorce notice upon her and, further, had not followed the proper procedures required under Bangladeshi law in obtaining the divorce.
[16] With the allegations of fraud set to one side, the parties were then able to engage in productive discussions aimed at resolution. These discussions led to the parties agreeing to resolve the Preliminary Issue on the basis that the March 2017 Divorce would be recognized as valid only for purposes of Bangladeshi law, but that it would not be recognized in Canada on grounds of public policy. This meant that, notwithstanding the March 2017 Divorce, the parties would be considered to be married for the purposes of Canadian and Ontario law, with the further consequence that the Applicant could pursue the family law claims advanced in her January 7, 2020 Application. I therefore issued an Order giving effect to the parties’ agreement (the “March 30, 2021 Marriage Order”) as well as an order divorcing the parties for purposes of Ontario law (the “March 31, 2021 Divorce Order”).
[17] However, before the Applicant’s Ontario family law claims could be addressed, the Respondent raised a fresh concern, namely, that he had recently learned that the Applicant had married Towfique in April 2020. The Respondent subsequently filed an August 19, 2021 affidavit from one Eleyas Ahmed, who stated that he had attended the wedding ceremony in Dhaka on April 24, 2020 (the “Alleged Wedding”).[^3]
[18] For her part, the Applicant denied having married Towfique. She claimed that Eleyas Ahmed did not exist, that his purported affidavit had been fraudulently manufactured by the Respondent, or, if Eleyas Ahmed did exist, then he was lying.
[19] It was immediately evident that if in fact the Applicant had married Towfique, it would likely have significant consequences for the issues raised in this litigation.
[20] Since Canadian law prohibits a person who is legally married to one person from marrying a second person, for Canadian law purposes the Applicant could not be married to both Towfique and the Respondent at the same time. Therefore, if the Applicant married Towfique, she must have been divorced from the Respondent as of that date, both under Bangladeshi and Canadian law. (I note that while Bangladeshi law permits a man to have up to four wives, a Bangladeshi wife can have only one husband.) Moreover, on the assumption that the Respondent had acted on the March 2017 Divorce by marrying Towfique, there would seem to be no reason why that divorce should not be recognized for purposes of Canadian law. On that assumption, both of my March 2021 Orders would appear to have been issued in error and in all likelihood would need to be revised or set aside.
[21] The Respondent subsequently filed a Notice of Motion seeking a variety of relief, including:
a. an order finding that the Applicant married Towfique Ahmed on May 24, 2020;
b. an order that the March 17, 2017 Divorce in Bangladesh be recognized as valid and enforceable in Canada for the purpose of determining all issues in the current litigation; and
c. an order making necessary corrections to the March 30, 2021 Marriage Order, as well as to the Divorce Certificate that was issued pursuant to the March 31, 2021 Divorce Order, since they had been issued by mistake.
[22] In her Cross-motion, the Applicant seeks a variety of relief, including:
a. an order that the March 31, 2021 Divorce Order is valid and is not affected by any mistake, nor was it issued in error.
b. an order that the alleged marriage between Towfique and the Applicant is not valid, and/or is void ab initio for purposes of this proceeding; and
c. in the alternative, in the event that this Court determines that the alleged marriage is a valid marriage, the Applicant seeks an amendment to the March 31, 2021 Divorce Order such that the effective date of the Divorce would be May 24, 2020.
[23] I advised the parties that in order to properly manage the issues raised by these motions, I would first hold a hearing to determine whether, as a matter of fact, the Applicant had married Towfique in Bangladesh on May 24, 2020. Once this factual issue was determined, I would provide the parties with the opportunity to make further submissions on the remaining legal and factual issues raised by their motions.
III: Issue
[24] As set out above, the sole question to be determined at this stage of the litigation is whether the Applicant married Towfique in Dhaka, Bangladesh on May 24, 2020.
IV: Positions of the parties
[25] The Respondent has filed a detailed motion record of over 2000 pages in support of his assertion that the Applicant married Towfique on the evening of May 24, 2020 in Dhaka. This evidence includes:
i. affidavits from six individuals (collectively, the “Third-Party Affiants”) who say they either attended the Alleged Wedding or have direct knowledge of it, including a religious scholar who says he performed the Alleged Wedding;
ii. hospital records from Better Life Hospital Ltd. in Dhaka, Bangladesh (“Better Life Hospital”), where Towfique was admitted in April 2021 due to Covid-19, which state that the Applicant was Towfique Ahmed’s wife; [^4]
iii. handwritten letters between Towfique and the Applicant, exchanged in late 2020 or early 2021, in which Towfique addresses her as “My Sonia, My Loving Wife” and ends with “Your Husband Towfique”, and in which the Applicant appears to acknowledge that she is his wife;
iv. documents showing that in early May 2020, the Applicant purchased a man’s diamond wedding band at a cost of $1162 USD;
v. profiles from the Applicant’s social media accounts showing her name as “Sonia Ahmed”; and
vi. media reports published in the major daily newspapers and well as TV Channels in February 2022, in connection with the Applicant’s recent conviction and sentence to two years’ imprisonment for fraud in an unrelated immigration scheme. These media reports identified the Applicant as “Farzana Ahmed Sonia”, and described her as the wife of the late Syed Towfique Ahmed as well as the ex-wife of the Respondent.
[26] The Applicant has filed her own voluminous motion record to support her denial of having married Towfique. She acknowledges that she travelled from the United States to Bangladesh on May 15, 2020, but says that she spent the evening of May 24, 2020 with her parents at an apartment in Dhaka rented through Airbnb. She responded to the evidence produced by the Respondent as follows:
i. the affidavits that the Respondent has filed from the Third-Party Affiants are either forgeries manufactured by the Respondent himself, or else the Third-Party Affiants are engaged in a conspiracy with the Respondent to defraud her of her rightful claims and deliberately mislead the Court;
ii. the hospital records purportedly from Better Life Hospital stating that the Applicant was Towfique’s wife are fraudulent and did not emanate from the hospital;
iii. the handwritten letters do not establish that she and Towfique were married, merely that they were in love with each other; and
iv. the Applicant agreed that she purchased a man’s diamond wedding band in early May 2020 but claimed she did so for a friend who wanted to give it to the friend’s husband, and that the friend reimbursed her for the cost.
[27] Significant portions of the evidence have been tested through cross-examination. The parties questioned each other for a total of four days in March 2022 and questioned a number of the Third-Party Affiants before me via Zoom for three days in May 2022. Transcripts of all such questioning have been produced and filed on this motion.
V: Assessing Credibility
[28] Given that the parties’ positions are diametrically opposed to each other, and each claims the other is lying, my finding on the factual issue before the Court will largely turn on an assessment of their respective credibility.
[29] The principles applicable to the making of such credibility assessments are not in dispute. While there is no singularly correct or scientific method for assessing credibility, it is important to avoid credibility assessments based on what Paciocco J.A. has described as “impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork.”[^5] In particular, it is now increasingly recognized by both trial and appellate judges that a witness’ demeanour when testifying has limited value in assessing credibility.[^6]
[30] As Watt J.A. noted in R. v. M. (A.)[^7], one of the most valuable means of assessing witness credibility is to examine the consistency in their evidence. Inconsistencies may emerge not just from a witness’ oral testimony, but also from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
[31] That said, inconsistencies vary in their nature and importance. Some inconsistencies may, on closer examination, not materially impair a witness’ credibility or reliability. In other cases, however, an inconsistency on a matter central to the litigation, or a series of inconsistencies even on apparently minor issues, may call into serious question the credibility or reliability of a witness’ testimony. These concerns are much more serious if a witness is found to have lied under oath, or to have relied on false documents, which may well cause the trier of fact to question or reject the entirety of a witness’ testimony.
[32] A trial judge is not required to review and resolve every inconsistency in a witness’ evidence, nor to respond to every argument advanced by counsel. That said, a trial judge should address and explain how they resolved major inconsistencies in the evidence of material witnesses.[^8]
[33] The applicable standard of proof, as in all civil cases, is proof on a balance of probabilities. I must scrutinize the relevant evidence with care to determine whether it is more likely than not that the Alleged Wedding occurred.[^9]
VI: Analysis
[34] It is generally necessary to consider evidence in context and as a whole, rather than analyze individual items, or even categories of evidence, in isolation from each other. That is particularly so in this case, where a key allegation is that the Respondent is directing a complex conspiracy involving numerous individuals for the purpose of defrauding the Applicant.
[35] Nevertheless, before turning to that overall holistic assessment, I will review the various categories of evidence that have been produced by the parties and consider whether this evidence tends either to support or to disprove the Respondent’s claim that the Applicant married Towfique on May 24, 2020.
a. I accept the evidence of the Third-Party Affiants regarding the Alleged Marriage which, on balance, I find to be credible and persuasive
[36] As noted earlier, the Respondent filed affidavits from six Third-Party Affiants, four of whom said that they attended the Alleged Wedding and two others who claim to have had direct knowledge of it.
[37] The four individuals who say they attended the Alleged Wedding are as follows: (i) Eleyas Ahmed, who deposes that he is 22 years old and knows Towfique and the Applicant well, although I would also observe that he does not describe how or in what context he knows them; (ii) Belal Mahmud Bappi (“Bappi”), who says he is a childhood friend of Towfique and knew him for almost 35 years before Towfique’s death in May 2021; (iii) Babli Aktar Elin (“Elin”), Bappi’s wife, who says she attended the Alleged Wedding with her husband; and (iv) Mawlana Sharif Hajari (“Hajari”), a religious scholar who says he married the Applicant and Towfique on the evening of May 24, 2020.
[38] The Respondent also filed affidavits from two other individuals who, although they did not attend the Alleged Wedding, say they had direct knowledge of the fact that the Applicant and Towfique were married. These individuals are: (i) Sadia Haque (“Haque”), an apprentice lawyer who is married to Towfique’s younger brother, and who says that following the Applicant and Towfique’s wedding, the newly married couple stayed with her and her husband. Amongst other things, Haque says that Towfique showed her photos that Towfique took at the wedding; and (ii) Saiful Islam (“Islam”), who says he is Towfique’s nephew, and that he was hired as the Applicant’s full-time bodyguard after she married Towfique. Islam says that he accompanied Towfique and the Applicant to both of the hospitals where Towfique was admitted in April and May 2021. Islam says that the Applicant identified herself to hospital staff at both hospitals as Towfique’s wife, that she stayed with Towfique for the approximately six weeks that he was in the two hospitals, and that she made all treatment decisions for her husband and also paid for his medical care.
[39] The Applicant responded by claiming that all of the affidavits from the Third-Party Affiants have either been forged by the Respondent, or are part of the fraudulent conspiracy that he is directing. The Applicant has not provided any direct evidence of this ongoing fraudulent conspiracy involving the Third-Party Affiants. However, she says that there is circumstantial evidence of such a conspiracy, namely, that three of the Third-Party Affiants (Eleyas Ahmed, Bappi and Haque) originally claimed that the Alleged Marriage took place on April 24, 2020. It was only when the Applicant filed her own affidavit on November 26, 2021 proving that she was in Virginia, USA on April 24, 2020, that the Respondent and these three Affiants realized that they had made a misstep in their scheme. Within a day, the Respondent had procured fresh affidavits from Eleyas Ahmed, Bappi and Haque, equally false to be sure, now saying that the Alleged Wedding had actually taken place on May 24, 2020 rather than April 24, 2020.
[40] The Applicant argues that it simply could not have been a coincidence that, just one day after filing an affidavit disproving the claim that she had married Towfique on April 24, 2020, these three Affiants provided fresh affidavits alleging a different marriage date. What is even more suspicious, according to the Applicant, is that the fresh affidavits were all commissioned by the same notary. The inference drawn by the Applicant is that Eleyas Ahmed, Bappi and Haque must be conspiring with each other — and with the Respondent — to fraudulently defeat her claims in this litigation. By implication, the other Third-Party Affiants who claim that she married Towfique, namely Elin, Hajari and Islam, must be part of the same conspiracy, despite the fact that they never made the mistake of claiming that the Alleged Marriage took place on April 24, 2020. Also suspicious is the fact that Elin and Hajari swore their affidavits on November 28 or 29, 2021, before the same notary who commissioned Eleyas Ahmed, Bappi and Haque’s second affidavits, and just days after her own November 26, 2021 affidavit.
[41] It was evident that these fraud allegations could only be properly addressed through direct questioning of the Third-Party Affiants. I therefore ordered that that they attend for questioning before me, to be conducted via Zoom through a Bengali interpreter (the “Questioning Order”).
[42] Before this questioning could take place, the Respondent was contacted by all six Third-Party Affiants (or members of their respective families), advising that they had been threatened with dire consequences if they testified in accordance with my Questioning Order. In fact, Islam’s mother told the Respondent that she had been physically assaulted by some unknown persons who had come to her home searching for Islam, in an effort to prevent him from testifying. As a result of these threats, Eleyas Ahmed and Islam refused to testify. The other four Third-Party Affiants said that, although they felt severely threatened, they were nonetheless prepared to testify, as they believed it was important that this Court know the true facts regarding the Alleged Wedding.
[43] The Applicant (through her counsel) was dismissive of these allegations that the Third-Party Affiants had been threatened, and claimed that these allegations had been concocted by the Respondent to prevent the questioning from taking place. The Applicant further submitted a written brief claiming that not only are the Respondent and the Third-Party Affiants perpetrating an ongoing scheme of fraud upon the court, but Respondent’s counsel himself knows that the affidavits of the Third-Party Affiants are false and is hiding this from the Court.[^10]
[44] I will return to this matter later in this endorsement, as it raises a number of troubling concerns that extend beyond the confines of this particular case. For the moment, I will state only that, based on their uncontradicted oral evidence, it is absolutely clear that Haque, Bappi, Elin and Hajari were threatened in an effort to prevent them from testifying in this proceeding. I also accept the Respondent’s evidence that Eleyas Ahmed and Islam were subjected to similar threats, and I therefore draw no adverse inference from the fact that neither of them was prepared to testify as a result of these threats. To the contrary, I accept their evidence as set out in their affidavits. I do so as a matter of principle, since any other result would indirectly reward those unknown persons who attempted to intimidate Eleyas Ahmed and Islam into not testifying.
[45] Key aspects of the oral evidence of Haque, Bappi, Elin, and Hajari included the following:
i. They each described receiving a telephone call from Towfique a few days prior to May 24, 2020, inviting them to attend his upcoming wedding to the Applicant. Towfique told them that the ceremony would be held at his flat in Mirpur 1, an area of Dhaka, on May 24, 2020 in the evening.
ii. Haque and Bappi were told that the wedding was private because the Applicant was involved in a court case in Canada in which she was trying to get money from the Respondent. Towfique told them that if it were known that the Applicant had married Towfique, she would lose the Canadian court case and not get any money from the Respondent.
iii. Hajari said that he arrived in the evening of May 24, 2020 at the address he had been given by Towfique. When he got there, he was met by someone that had been instructed by Towfique to bring him to the apartment where the wedding was to take place. He walked up the stairs to the fourth floor. Once there he verified that the Applicant was divorced from the Respondent, and that Towfique’s second wife consented to the marriage.[^11] After performing the ceremony, he instructed Towfique and the Applicant to register the marriage as soon as possible but does not know whether or not they did so.
iv. Bappi, Elin and Hajari did not recall the street address in Mirpur 1 where the wedding took place. Bappi and Elin said it was in Towfique’s flat on the fourth floor of the building where he was living and that they walked up the stairs to get there. Bappi and Hajari specifically remembered the apartment number as being 4F, and Bappi thought it was a five or six story building. They each said that the building was set back just a few steps from the street and none of them recalled seeing any elevators or encountering building security when they entered the building.
v. Even though Haque didn’t attend the ceremony, she was sure that Towfique lived on the fourth floor of an apartment building, and that’s where the wedding was held.
vi. Following the questioning, the Applicant has disclosed that during May of 2020, Towfique was living on the 4th floor of an apartment building in Mirpur 1, located about a seven-minute drive from the Airbnb apartment where the Applicant was staying with her parents at that time. Based on photos available from Google maps, Towfique’s apartment appears to be in a six-story building.[^12]
vii. Because the ceremony was private, Towfique asked the guests at the event not to take any pictures while there. Haque and Bappi said that Towfique was the only one who took pictures, and that he used his cell phone.
viii. Bappi thought that the Applicant was wearing a red sari at the ceremony. Although Haque didn’t attend the ceremony she saw photos on Towfique’s phone one or two days later and recalls that the Applicant was wearing a red sari with lots of ornaments and flowers, while Towfique was wearing a blue suit.
ix. Haque asked Towfique if he would send her the photos of the ceremony he had taken on his cellphone, but he said the marriage had to kept private right now. He would send her photos later when the time was right.
x. Haque said that sometime after they were married, Towfique and the Applicant stayed with her and her husband (who was Towfique’s younger brother) for about a month. They were openly living as a married couple, and family and friends knew that they were married.
xi. Bappi and Haque said that they each separately contacted the Respondent sometime in September 2021, met with him, and agreed to provide an affidavit in this proceeding.
xii. Bappi said he contacted the Respondent when he heard from Towfique’s second wife, who lived across the street from Bappi’s home in his hometown, that the Applicant was denying that she had married Towfique. Towfique had been his friend and Bappi wanted to set the record straight.
xiii. Haque said she contacted the Respondent because she thought that Towfique and the Applicant had done an injustice to her children from her marriage to the Respondent. She wanted to give the Respondent a Prada bag that the Applicant had left at her house containing handwritten letters written between Towfique and the Applicant, at a time when the Applicant had been in jail. (Haque said that because she was an apprentice lawyer, she had access to the prison and used to take letters from Towfique to the Applicant, and replies from the Applicant to Towfique, which the Applicant used to write on napkins).
xiv. Bappi said when he met with the Respondent in September 2021, the Respondent asked him if he knew who had performed the wedding. Bappi said the wedding had been performed by Hajari. The Respondent asked Bappi to reach out to Hajari, and to ask Hajari to call him.
xv. Bappi said he then called Hajari, who agreed to contact the Respondent. In his evidence, Hajari confirmed that he was contacted by Bappi about the Alleged Wedding and that in November 2021 he contacted the Respondent. After speaking with the Respondent, he agreed to provide an affidavit describing the fact that he had performed the Alleged Wedding on May 24, 2020, which was the day before Eid al-Fitr.
xvi. I note that in his questioning in March 2022, the Respondent’s evidence on his discussions with Bappi, Haque and Hajari was in substance identical to the evidence they provided about the same events.
xvii. Bappi, Elin, Haque and Hajari each denied having been pressured by the Respondent to provide an affidavit. They also said they had nothing to gain from providing an affidavit and, in fact, were coming forward despite the threats to their physical safety. None of them had seen or was aware of any other affidavits in the case, nor had any of them discussed their affidavits with any of the other Third-Party Affiants. They had each given their affidavits directly to the Respondent.
xviii. Bappi and Haque were asked why in their initial affidavits they had said that the wedding took place on April 24, 2020, rather than May 24, 2020. Bappi and Haque were not sure of the exact day of the month on which the wedding was held, but they both recalled that it was held on the day before Eid al-Fitr in 2020.
xix. Bappi and Haque were asked how they came to realize that they had made a mistake in their original affidavits and that the wedding had actually taken place on May 24, 2020. Bappi said that he was discussing his affidavit with his wife a few days after swearing his initial affidavit and she pointed out to him that the wedding had taken place on May 24, 2020, not April 24, 2020. Haque said she realized her mistake when she saw the date on a courier package containing a wedding gift that she had received at the time of the wedding. Bappi and Haque, independently of each other, asked a notary to prepare a second affidavit with the correct date, which they then gave to the Respondent.
xx. Hajari and Elin (who had never said that the wedding was held on April 24, 2020) said that the wedding was held on the day before Eid al-Fitr in 2020, which was May 24, 2020.
xxi. The Affiants could not explain how it was that they had attended at the same notary or notaries, on the same date or dates, to swear their respective affidavits. None was aware of how or when the others had sworn their affidavits. They did say that the notary or notaries had prepared the affidavits for them based on their verbal instructions, and that they signed what the notary had prepared for them.
[46] Putting aside for one moment the fact that three of the Third-Party Affiants initially made the same mistake regarding the date of the wedding, as well as the apparent suggestion in Hajari’s evidence that the wedding took place at the Airbnb apartment rented by the Applicant, I find their evidence to be internally consistent, and consistent with the other evidence in the case. Although the Applicant points to various other inconsistencies in their evidence, these inconsistencies generally relate to minor or peripheral details, such as the precise time they arrived at the wedding, how long they were there, and what they ate. None of the witnesses took contemporaneous notes or had any particular reason to remember these details. It is therefore perfectly understandable that they cannot now, two years later, recall precise details about the event. In any event, the issue is not whether the Alleged Wedding took place at 8 pm or 9:30 pm, or what they ate, but whether the Alleged Wedding took place at all.
[47] The Applicant complains that the evidence of the Third-Party Affiants didn’t include enough detail. In fact, however, each has included numerous small details that line up closely with what the others are saying, as outlined in paragraph 45 above. The Applicant further takes issue with the evidence of Hajari, arguing that he was vague in describing exactly what he did at the actual ceremony. But Hajari is an elderly gentleman who was experiencing obvious physical difficulties throughout his questioning, and who had to take a number of breaks for health reasons or to perform his daily prayers. I do not find it surprising or suspicious that he was not able to recall a lot of details about the event itself.
[48] The Applicant makes much of the fact that the Third-Party Affiants all went to the same notaries, on the same days, to swear their affidavits. The Applicant also points to the fact that most of the stamps on the affidavits are numbered consecutively, suggesting they were printed at the same time. She alleges that this could only be because the Respondent took the Affiants there himself as part of his scheme.
[49] But there are other, less sinister explanations for how the affidavits came to be prepared. The witnesses came from the same area in Dhaka, and the first notary may well have been known to them. The Affiants also said that they had spoken to the notary on one occasion, that he then prepared their affidavit for signature, and that they came at some later time and simply signed them. Since the affidavits all related to the same natter, it is not surprising that the notary would have printed them off at the same time, and at that same time informed the Affiants that they were ready for signature. I also note that Haque said when she wanted to prepare her second affidavit, the first notary said he wasn’t available, and he recommended she go to the second notary. It is possible that the first notary told the same thing to the others, and that is how the second notary became involved.
[50] In any event, how the Affiants came to know of the notaries, and minutiae such as the numbering on the affidavits, do not constitute evidence of a conspiracy. What must also be kept in mind is that, not only do we have the affidavits of the Third-Party Affiants, but we also have their oral testimony regarding the Alleged Wedding. As set out above, their testimony includes numerous details that are consistent with each other. I find it very unlikely (to say the least) that six individuals, with little or no prior connection to each other or to the Respondent, could have fabricated such a detailed account of their involvement in this matter, and then through hours of questioning have testified in what the Applicant herself acknowledges to be a generally consistent manner.
[51] Moreover, despite repeatedly claiming that these six individuals are all lying about the Alleged Wedding at the behest of the Respondent, the Applicant has not explained why they would agree to lie about such a matter. I have already noted that none had any meaningful prior connection with the Respondent. In fact, what most of them had in common was their prior connection to Towfique. In my view, it is simply not credible that they would agree to participate in a conspiracy orchestrated by the Respondent to defraud the Applicant of her rightful claims.
[52] This is particularly the case for Haque, an apprentice lawyer married to Towfique’s younger brother. In handwritten letters to the Applicant written in early 2021, Towfique had described the Respondent as “a beast-like person” and vowed to take revenge upon him. Haque had delivered Towfique’s letters to the Applicant and thus was aware of her late brother-in-law’s animosity toward the Respondent. Why would Haque agree to take part in a conspiracy with the Respondent, Towfique’s sworn enemy, by providing testimony that would impugn the integrity of her late brother-in-law? I also note that Haque is an apprentice lawyer. By swearing false affidavits and then lying in her oral evidence before a judge, Haque would have been jeopardizing her prospects of her ever having a career as a lawyer. In short, the idea that Haque would have been the Respondent’s willing dupe in his effort to defraud the court simply make no sense.
[53] The same holds true for Bappi, Towfique’s lifelong friend. In 2016, he had assisted Towfique and the Applicant in securing an apartment and he told the landlord that Towfique and the Applicant were married even though he knew at the time they were not. He was also assisting the Applicant in court cases against the Respondent, and he and the Respondent had an adversarial relationship. Why would the Respondent have selected Bappi as his co-conspirator and, even if he had, why would Bappi and his wife agree to betray Bappi’s lifelong friend by telling lies about Towfique in a court case?
[54] As for Hajari, he seems to have had little to no personal connection with either Towfique or the Respondent prior to providing his evidence in this case. (I note that Hajari was approached by Bappi initially, rather than by the Respondent directly.) But Hajari is a religious scholar and a person of integrity. I see no credible basis for believing that he would swear false affidavits and then lie in his oral testimony regarding this or any other matter.
[55] I also regard it as significant that the four Affiants who did testify were willing to do so even in the face of threats to their personal safety. Why would they be willing to risk danger to themselves and their families by providing false testimony in order to assist a person they hardly know, in family law litigation taking place in Toronto, Canada?
[56] I acknowledge that it is unclear how three of the Affiants initially made the same mistake regarding the date of the wedding. It may be that the mistake originated with Eleyas Ahmed, and that the same mistaken date was simply repeated in the initial affidavits the notary prepared for Bappi and Haque, which they signed without paying sufficient attention to the date.
[57] Regardless of how this initial mistake in the wedding date arose, the key point is that Bappi, Haque, Elin and Hajari each recalled in their oral evidence that the wedding took place on the evening before Eid al-Fitr in 2020. In other words, it is not clear whether in their initial affidavits they paid any particular attention to the date on which the wedding had been held. What emerged from their oral evidence was the connection to Eid al-Fitr. When viewed in context and in light of their evidence as a whole, the mistake in the date is much less suspicious than it might originally have appeared.
[58] I have also noted the fact that there is an apparent inconsistency between the evidence of Haque, Bappi and Elin on the one hand, and Hajari on the other, as to whether the wedding took place in Towfique’s apartment or in the building where the Applicant was staying with her parents. But all four Affiants’ actual description of the building where the wedding took place more closely resembled the building where Towfique was living, as opposed to the building where the Applicant was staying with her parents. I also would observe that this apparent inconsistency does not support the theory that these Affiants were engaged in a conspiracy with the Respondent since, if that were the case, he would have instructed them to say that the wedding took place on the ninth floor (rather than the fourth floor) of the building where the Applicant was staying. On balance, therefore, although I cannot account for this inconsistency, it does not cause me to question their truthfulness.
[59] The Applicant’s conspiracy theory is based on a microscopic analysis of minutiae, while ignoring the larger picture. While the Third-Party Affiants’ recollections were in a number of cases unclear or uncertain, they were crystal clear in their assertion that they had in fact attended the Alleged Wedding. Each of them categorically denied that they were colluding with each other or with the Respondent, and there is no direct evidence whatsoever to the contrary. The Applicant’s conspiracy theory is constructed on a house of cards, in which she asks the court to draw sinister inferences from certain minor inconsistencies or unexplained facts in the evidence of the Third-Party Affiants. But these sinister inferences collapse in the face of logic and common sense, which leads inescapably to the conclusion that there is simply no way that the Respondent and these six unsophisticated individuals could have pulled off such a complex scheme, even if they had wanted to.
[60] I therefore find that the Third-Party Affiants are telling the truth when they say they attended the wedding between Towfique and the Applicant on May 24, 2020. I specifically accept the evidence of Bappi and Elin that they attended the Alleged Wedding, and the evidence of Hajari that he performed the wedding after verifying that the Applicant was divorced from the Respondent and that Towfique’s second wife had consented to his marrying the Applicant.
b. The hospital records from Better Life Hospital confirm that the Applicant was married to Towfique Ahmed, and the Applicant’s allegation that the records are fraudulent is baseless
[61] When it came to light that Towfique Ahmed had been admitted to Better Life Hospital and Dhaka Medical College Hospital in April and May 2021, I directed counsel for the Applicant to request from these hospitals disclosure of patient records indicating whether or not Towfique was married to the Applicant. I specifically directed that the disclosure request come from counsel for the Applicant because of my concern that the Applicant would seek to claim that any records received were fraudulent.
[62] Counsel for the Applicant made the request by email to both hospitals on September 3, 2021. No response was received from Dhaka Medical College Hospital. However, on September 15, 2021, Md. Johurul Islam, the Manager of Better Life Hospital (the “Manager”) replied on hospital letterhead, stating that their records show that Towfique Ahmed’s wife was the Applicant, “Farzana Ahmed”, who was also known as Sonia. Hospital records also show that Towfique specifically instructed the hospital that she have authority to make medical decisions on his behalf. The Manager included Towfique’s Admission Form confirming this information.
[63] Since the authenticity of these documents is material to the issue before me, I set out the relevant portion of the Manager’s letter to Applicant’s counsel:
Syed Towfique Ahmed was admitted at Better Life Hospital Ltd. on April 9, 2021 at 10:21 PM with complaints of fever for eight days. The Admission Form shows that he was accompanied by his wife Farzana Ahmed (Cell Number: 01707242537) of 940 Motalib Tower, B. Baria, Dhaka and that she was the responsible person for the patient. A copy of the Admission Form of Syed Towfique Ahmed is enclosed.
During the time that Syed Towfique Ahmed was admitted at Better Life Hospital Ltd., the hospital staff and doctors communicated with his wife Farzana Ahmed (also known as Sonia) regarding the patient, since she was the person responsible for the patient.
While Syed Towfique Ahmed was at the hospital, he gave specific instructions to the hospital that only Farzana Ahmed should be present with him and have authority to make decisions on his behalf.
Syed Towfique Ahmed was admitted at Better Life Hospital Ltd. from April 9, 2021 to May 9, 2021. On May 9, 2021 he was discharged from Better Life Hospital Ltd to be admitted to Dhaka Medical College Hospital.
Syed Towfique Ahmed’s wife Farzana Ahmed (also known as Sonia) took care of the payments while she was admitted at our hospital and all receipts/laboratory report/cash memos/hospital bill/doctors’ notes etc. related to the patient were handed over to her from time to time.
[64] Immediately upon receiving this correspondence from the Manager, counsel for the Applicant claimed that it was fraudulent. The basis for this claim of fraud was that it was not clear whether the email address that was used to send the Manager’s response was connected to the hospital. Seizing on this unknown email address, the Applicant claimed that the correspondence purportedly provided by the Manager in fact emanated from a source unconnected to the hospital. In other words, the letter appeared to be on official hospital letterhead, and the attached form appeared to be an actual Admission Form, but in fact both documents were actually clever forgeries created by some unknown person with the necessary information and expertise, acting in concert with the Respondent.[^13] The Applicant acknowledged that she had dealt with the staff at Better Life Hospital when Towfique was admitted to the hospital on April 9, 2021, as Towfique was being taken immediately to Intensive Care. However, she maintained that the hospital staff had never asked her about her relationship with Towfique, either at the time he was admitted or at any other time over the next month while he was a patient there. When Towfique was admitted, hospital staff did ask her for Towfique’s contact information. She did not know Towfique’s address and so gave them her address and telephone number.
[65] In considering whether the Manager’s letter is authentic or a forgery, I note that the information provided by the Manager is consistent with other evidence in the case, including the Applicant’s own evidence. In particular, in her August 26, 2021 affidavit, the Applicant had provided various documents that she had received directly from Better Life Hospital and which she acknowledged were genuine. All of the information in the genuine documents provided by the Applicant (including Towfique’s admission registration number; the exact time on April 9, 2021 when he had been admitted to the hospital; the fact that upon his admission he had been experiencing a fever for eight days; and the name of the doctor who was responsible for treating him) were repeated in the documents provided by the Manager on September 15, 2021. No one other than an official of the Better Life Hospital could have possibly obtained such confidential personal information regarding Towfique. The Manager’s letter also gave the Applicant’s telephone number and address as Towfique’s contact information, just as the Applicant herself had described in her March 2022 questioning.[^14]
[66] The Applicant says that most of the information set out in the Manager’s letter could have been found through a careful search through the hospital documents she had provided as attachments to her August 26, 2021 affidavit. Therefore, it would have been possible for the Respondent to use those documents in order to create, or assist in someone else creating, the allegedly forged reply from the Manager on September 15, 2021. But in September 2021, the Respondent had no way of knowing that the Applicant had provided her telephone number and address as Towfique’s contact information, since that was not disclosed until her questioning in March 2022. Nor could the Respondent have known that the Applicant was known to the hospital as “Farzana Ahmed”, or that she was the only person who was with Towfique throughout his stay in the hospital. The fact that the Manager’s letter contained these particular details, which were unknown to the Respondent at the time, suggests that the letter had to have come from the hospital and is therefore genuine.
[67] Consider, also, that if the Applicant was not actually known to Better Life Hospital as Towfique’s wife, then the hospital might well have responded to the September 3, 2021 inquiry by saying so. In other words, if the September 15, 2021 Manager’s letter was a forgery prepared by the Respondent, he was running the risk that his scheme would be exposed by the hospital later providing information contradicting and exposing his lies. What was even more risky was sending a forgery on September 15, 2021, less than two weeks after the Applicant’s counsel had written to the hospital. Surely if the Respondent intended to prepare a forged reply, he would have waited until it was clear whether or not the hospital was planning on responding.
[68] I also note that the Manager’s letter is corroborated by the December 19, 2021 affidavit provided by Saiful Islam. In his affidavit, Saiful Islam says that when Towfique was admitted to the hospital, the Applicant identified herself to hospital staff as his wife. Saiful Islam also says that the Applicant communicated with the medical staff, made all treatment decisions required for Towfique, and paid his medical bills over the next month. (For her part, the Applicant admits that she stayed with Towfique at the hospital for the entire time he was there, in a waiting area of the ICU, and that she was the only person to do so on a full-time basis.)
[69] Following oral argument but before this endorsement was issued, the Applicant submitted additional email correspondence questioning whether the September 2021 email sent by her then-counsel to the Better Life Hospital had been received by the hospital. Notwithstanding my June 3, 2022 endorsement stating that no further evidence would be accepted, I admitted this additional correspondence, over the objection of Respondent’s counsel.[^15] This caused further investigations to be undertaken, which confirmed that the email address that was used to send the Manager’s September 2021 letter was a Better Life Hospital email.[^16] This confirmation put to rest any suggestion that the Manager’s letter was a forgery, since the September 15, 2021 letter on Better Life Hospital letterhead had clearly been sent by the Hospital. It necessarily follows that the Hospital must have received the September 3, 2021 letter from the Applicant’s then-counsel, either by email or by regular mail.[^17]
[70] I therefore find the Manager’s letter is authentic, that the Better Life Hospital records show that the Applicant’s name was “Farzana Ahmed”, and that she was Towfique’s wife. I further find that this information must have been provided to the hospital by the Applicant herself, since she has acknowledged that she was the only person dealing with staff when Towfique was admitted to the hospital. The Applicant’s evidence claiming that she was never asked about her relationship with Towfique and yet was permitted to stay for an entire month with him in the hospital’s ICU, is entirely implausible and is rejected.
[71] In oral argument, counsel for the Applicant acknowledged that, in light of the evidence as a whole, there was no longer any basis for claiming that the Manager’s letter and the Admission Form from the Better Life Hospital were fraudulent. In other words, the documents had in fact been sent by the Manager, rather than by someone impersonating him.
[72] Counsel then attempted to advance an alternative argument on this issue, namely, that even if the Applicant had told the staff at Better Life Hospital and the Dhaka College Medical Centre that she was Towfique’s wife, this didn’t necessarily mean they were actually married. She might have told the hospital staff that they married because otherwise the hospital would have refused to treat Towfique.
[73] It is remarkable that the Applicant would suggest that, in the middle of a global pandemic, the Better Life Hospital would have refused to provide medical care for a seriously ill Covid-19 patients unless they were accompanied by their wives. But putting this implausible suggestion aside for a moment, if for whatever reason the Applicant did inform hospital staff that she was Towfique’s wife, it means that she has been lying about these matters all along. Moreover, she would be admitting that she has known all along that the claims of fraud that she has repeatedly advanced in relation to the documents from Better Life Hospital were deliberate falsehoods. Such deliberate falsehoods would only deepen, rather the resolve, the serious concerns over the Applicant’s credibility.
c. Towfique and the Applicant appear to acknowledge that they were married in the handwritten letters they wrote to each other in early 2021
[74] The Respondent filed handwritten letters that had been exchanged between Towfique and the Applicant in early 2021, while the Applicant was in jail. The Respondent received the letters from Haque, who said she had found them in a Prada bag that the Applicant had left in Haque’s residence. Haque was aware of these letters because she had carried them back and forth between Towfique and the Applicant.
[75] The letters were originally written in Bengali but English translations were prepared and filed in this proceeding.
[76] In these letters, Towfique addresses the Applicant as “My Sonia, My Loving Wife” and ends with “Your Husband Towfique”. He also refers to the Applicant’s parents as his father and mother-in-law, and to his mother as the Applicant’s mother-in-law.
[77] In one of her letters to Towfique, the Applicant writes as follows:
I have been a burden throughout my life. Before marriage, I was a burden to my parents, then for 20 years I was a burden of someone and now I am lying as your burden.
[78] I note in passing that the reference to the “someone” to whom the Applicant had been a burden for 20 years was obviously a reference to the Respondent.
[79] In another letter to Towfique, the Applicant writes:
Towfique you are mine. You are my inspiration for everything, your love has taught me to be alive again, gives me strength. Even when there are hundreds of problems, it teaches me to be strong. Your words, your laughter says to me you are there, beside me.
[80] In her evidence, the Applicant says that she never saw the letters from Towfique until the Respondent produced them in this litigation. She acknowledges that the handwriting appears to be Towfique’s but says for reasons unknown to her he did not actually deliver the letters to her. She also says that the fact that Towfique addressed her as his “loving wife” and that he signed the letters as “Your Husband Towfique” were merely expressions of his love for her and are not an indication that they were married.
[81] The Applicant’s evidence that she never saw the letters prior to receiving them from the Respondent is inconsistent with that of Haque, who explained that she had been the go-between delivering the letters back and forth between Towfique and the Applicant in early 2021. The Applicant’s evidence on this particular point is also inconsistent with Haque’s evidence that she found the letters in a Prada bag that the Applicant had left at Haque’s residence.
[82] I accept Haque’s evidence that she found these handwritten letters in the Prada bag, since there is no other explanation for how the letters were obtained by the Respondent. I therefore reject the Applicant’s evidence that she never saw the letters prior to receiving them from the Respondent. I further find that that it is implausible that Towfique would have referred to the Applicant as his wife, to himself as her husband, and to their parents as “in-laws”, if he and the Applicant were not actually married. Moreover, the Applicant’s own statement in her letters that “before marriage” she had been a burden to her parents, and that after marriage she had been a burden to the Respondent and was now a burden to Towfique, is an implicit acknowledgement that her relationship with Towfique is equivalent to her prior relationship with the Respondent. In other words, she was married to the Respondent, and is now married to Towfique.
d. The Applicant’s evidence with regards to the reason why she purchased a man’s wedding band in early May 2020 is contradictory and implausible, and I find that she in fact purchased it for Towfique in view of their upcoming wedding
[83] As noted above, the Respondent produced evidence showing that just prior to her travelling to Bangladesh in early May 2020, the Applicant purchased a man’s wedding band. The ring cost US$1162 and was a man’s size 12.
[84] In a January 2022 affidavit, the Applicant acknowledged that she had purchased the wedding band in May 2020, but said she made the purchase on behalf of Shahida Hossain (“Hossain”), Towfique’s cousin, with whom she was staying at the time. The Applicant said that Hossain wanted to give the ring to her husband, but she did not have a credit card or bank account in her name alone, so she asked the Applicant to purchase it for her. The Applicant claimed that Hossain subsequently reimbursed her for the purchase price.
[85] However, in her March 2022 questioning, the Applicant provided an entirely different explanation for why she purchased this wedding band. The Applicant said she decided on her own to purchase the man’s wedding band as a surprise gift for Hossein’s husband, on the occasion of their upcoming anniversary. The Applicant said that she did not discuss this ring purchase with Hossain in advance. She also said she knew the husband’s ring size because she had been staying there with the couple. When the ring arrived, Hossain and her husband said it was too expensive and told her she should return it. She did so and produced an email from the seller confirming the cancellation of the order for the ring.
[86] In her March 2022 questioning, the Applicant was asked why she had provided a different account of this incident in her January 2022 affidavit. She was unable to explain the inconsistency between her two sworn statements, and simply said that the second explanation was true. The Applicant was also unable to explain how she could have known the ring size for Hossain’s husband simply by looking at his hand. Further, when she was asked if she had purchased a second man’s wedding band as a replacement for the order she cancelled, she said she did not recall.
[87] Obviously, the Applicant’s two explanations, each given under oath or affirmation, are entirely contradictory and both cannot be true. Since the Applicant says that the second explanation is true, it follows that she is admitting that her January 2022 affidavit is false. Moreover, she has not made any attempt to explain why she would have made this initial false statement regarding the ring purchase, which leads me to conclude that that falsehood was deliberate rather than inadvertent.
[88] I further find that the March 2022 explanation for the ring purchase — the one that the Applicant now says is true — to be entirely implausible. It is simply not believable that the Applicant would purchase an expensive wedding band for Hossain’s husband without even discussing the matter with either Hossain or her husband in advance. Nor is it believable that the Applicant, who has no apparent expertise in estimating a man’s ring size, could have known the ring size for Hossain’s husband simply by looking at the husband’s hand. It is also not believable that the Applicant could not recall whether she had purchased a replacement ring for the ring order that she cancelled.
[89] I therefore reject the Applicant’s evidence on this issue and find that the Applicant purchased the man’s wedding band for Towfique in May 2020 on account of their upcoming marriage. I further find that both of the alternative explanations she provided for the purchase were fabrications designed to conceal the true reason for the purchase.
e. The Applicant’s evidence on numerous other issues simply cannot be believed, while the Respondent’s evidence is largely credible
[90] In addition to the Applicant’s misrepresentations on the matters described above, there are numerous other aspects of her evidence that are contradicted by independent credible evidence, or are otherwise simply implausible. These include the following:
i. in the initial hearing in March 2021, a significant issue in dispute was whether or not the Respondent had delivered a divorce notice to the Applicant on November 17, 2016. The Respondent said he had handed the divorce notice directly to the Applicant while they were at the Hazrat Shahjalal International Airport in Dhaka waiting for an Air India flight, and that they departed together on that flight at around 8:30 pm that evening. On the other hand, the Applicant said that the Respondent was lying, as she had left Dhaka on a flight that had left on the morning of November 17, 2016, and that she and the Respondent had taken different flights that day.
In an effort to prove that his account was correct, the Respondent contacted Mr. Mohammad Shahriar Alam, the Special Superintendent of Police Immigration at the Airport. Mr. Shahriar confirmed, through an email and two certificates, that according to the Bangladesh Immigration Management System, the Applicant and the Respondent departed Dhaka on November 17, 2016 on the same Air India flight, which left at 8:26 pm.
The Applicant seized on what her counsel alleged were discrepancies in the documents from Mr. Shahriar and claimed that the documents appeared to be fraudulent.
I find that the discrepancies identified by the Applicant were minor and inconsequential and did not, on any reasonable analysis, suggest that the documents were fraudulent. Although it is not necessary for me to make any definitive finding on this issue at this stage, it certainly appears that the Applicant misrepresented the time and manner of her departure from Dhaka on November 17, 2016 and, when confronted with documents that contradicted her account, simply claimed without foundation that such documents were fraudulent.
ii. The Applicant denied that she has ever gone by the name “Ahmed”. This denial is contradicted by my earlier finding that the Applicant identified herself as “Farzana Ahmed” to the Better Life Hospital. Moreover, the Applicant has no explanation as to why, in her social media profiles, she identifies herself as “Sonia Ahmed”. Nor does she have any explanation for the fact that in a recent criminal court case in Bangladesh, she was identified as Farzana Ahmed Sonia, the wife of the late Syed Towfique Ahmed.[^18] The only conclusion I can reasonably draw is that the Applicant has falsely claimed she has never gone by the name Sonia Ahmed.
iii. The Applicant obtained Towfique’s death certificate and other medical records relating to Towfique’s stay at the Dhaka Medical College Hospital. When asked how she obtained these documents if she was not known to the hospital as Towfique’s wife, she said the hospital had given them to an acquaintance of hers, even though this acquaintance was not related to Towfique.
The suggestion that the hospital would have given confidential medical records to an individual who had no relationship to Towfique is simply not credible. Moreover, I have already found that the Applicant identified herself to Better Life Hospital as Towfique’s wife. The logical inference is that the Applicant must have also identified herself as Towfique’s wife to the Dhaka Medical College Hospital, and that this is how she was able to obtain Towfique’s confidential medical records. I therefore find that the Applicant’s claim that she obtained Towfique’s medical records from an unrelated acquaintance is false.
iv. I also find that the Applicant has offered inconsistent evidence, or has failed to offer any reasonable explanation, for a wide variety of other matters raised over the course of this litigation, including: (A) whether she had a romantic affair with Towfique from 2016 onward, or whether they were just close friends; (B) whether or not Towfique’s nephew, Saiful Islam, was with her at the two hospitals where Towfique had been admitted in April and May of 2021; (C) how she obtained Towfique’s succession certificate if she was not his wife; (D) why she arranged to fly to Dhaka in May 2020, who paid for her flight, and who arranged her accommodation in Dhaka; and (E) whether there are additional photographs posted in social media of her and Towfique.
[91] In contrast, the Respondent’s evidence throughout this proceeding, dating back to March 2021, has generally been internally and externally consistent. Moreover, in cases where he has alleged that certain documents filed by the Applicant are fraudulent, his claims in this regard have turned out to have real substance and credibility.
[92] For example, as noted earlier, in March 2021, the Applicant filed affidavits from her parents in which they said they had obtained the February 2020 Certificate from the Marriage and Divorce Registrar. The Certificate tendered by the Applicant’s parents stated that the June 15, 2017 Divorce Certificate tendered by the Respondent was fraudulent. The Applicant’s parents said they had gone to the Registrar’s office on a particular day in February 2020 and obtained the February 2020 Certificate directly from him.
[93] The Respondent claimed that the Applicant’s parents were lying and that the February 2020 Certificate which they claimed to have obtained from the Registrar was itself fraudulent. The Respondent produced his own affidavit from the Marriage and Divorce Registrar, in which the Registrar swore that he had never signed the February 2020 Certificate that had been provided by the Applicant’s parents. The Registrar further stated that the Divorce Certificate issued by his office on June 15, 2017 was genuine. The Registrar appeared on the first day of the hearing in March 2021 and indicated that he was prepared to give oral evidence and be cross-examined on the matter. The Respondent also produced a police report showing that, on the day that the Applicant’s parents claimed to have gone to the Registrar’s office and obtained the February 2020 Certificate, they were not even in Dhaka.
[94] I make no specific finding on this issue at this stage, other than to note that the Respondent’s claims of fraud in relation to the Applicant had real substance, in stark contrast to her claims of fraud she has made in relation to him.
f. Conclusion: The Applicant married Towfique on May 24, 2020
[95] When I step back and consider the evidence as a whole, I find that it overwhelmingly points to the conclusion that the Applicant married Towfique on May 24, 2020.
[96] I have already outlined the significant number of misrepresentations and contradictions in the Applicant’s evidence in this proceeding, which call into serious question her credibility. Three observations are in order.
i. First, these misrepresentations deal with matters of central importance to the litigation;
ii. second, they are part of a repeated pattern rather than mere isolated instances; and
iii. third, these misrepresentations and contradictions are deliberate since it is not possible that the Applicant could have been honestly mistaken as to the relevant facts.
[97] In fact, whenever confronted by a document or fact that contradicts her position, the Applicant’s response has been to simply allege, usually without credible evidence, that the inconvenient document or fact is part of a fraudulent conspiracy being directed by the Respondent. This strategy is similar to that adopted by the plaintiffs in a recent decision of the Commercial Court in the UK, whereby “the desire to allege fraud/dishonest/conspiracy becomes a kind of philosopher’s stone which transforms innocent errors into dishonest conspiracies – from which in turn the main conspiracy can itself be inferred.”[^19] As was pointed out by Justice Cockerill in that UK case, it is simply not appropriate to “jumble together a vast array of different, apparently trivial or marginally suspicious facts relating to different matters and turn them into a valid pleading of fraud.”[^20]
[98] It goes without saying that the Applicant’s single-minded focus on uncovering evidence of fraud flies in the face of the primary objective of the Family Law Rules,[^21] which requires parties and their lawyers to assist the court in encouraging settlement, saving time and expense, and giving appropriate court resources to the case while taking account of the need to give resources to other cases. The Applicant’s fraud claims have been the subject of 25 appearances before me spanning 17 months, consumed hundreds of hours of court time, caused the production of thousands of pages of evidence, and required numerous rulings and endorsements culminating in this detailed endorsement running over 100 paragraphs. It has been over two-and-a-half years since the Applicant commenced this proceeding and yet most of the substantive relief she is seeking has yet to be considered. If all family litigation were conducted in this manner, the family law system would well and truly grind to a halt.
[99] In light of the fundamental concerns over the Applicant’s credibility outlined above, I find that her evidence on contested issues of fact simply cannot be believed. Accordingly, I give no weight to her affidavit stating that on May 24, 2020, she remained in her flat for the entire evening with her parents. For similar reasons, I give no weight to the Applicant’s parents’ affidavits that the Applicant has filed in support of her position.
[100] The evidence tendered by the Respondent is not without flaws. The Third-Party Affiants were not able to recall many details about the wedding ceremony and there were certain inconsistencies between their accounts. But these inconsistencies generally dealt with peripheral matters and were unsurprising given that these witnesses were being asked to recall details about an unremarkable event that they attended over two years ago. On no account do the inconsistencies or gaps in their evidence support the conclusion that they are lying about the Alleged Wedding having taken place. These individuals have no reason whatsoever to take part in a fraudulent conspiracy being directed by the Respondent. In fact, for reasons described above, most of them have prior close connections to Towfique, thereby making it entirely implausible to imagine that they would have betrayed Towfique by providing false testimony in this case. In short, the claim that these six unrelated individuals have been conspiring with the Respondent and with each other flies in the face of logic and common sense.
[101] The evidence of the Third-Party Affiants, even if it had been standing alone, might have been sufficient to establish, on a balance of probabilities, that the Alleged Wedding took place. But there also is a large body of circumstantial evidence corroborating the evidence of the Third Party Affiants, including the fact the Applicant identified herself to the Better Life Hospital using the name “Farzana Ahmed”, and as Towfique’s wife; the handwritten letters between the Applicant and Towfique in which he refers to her as his wife; the Applicant’s purchase of an expensive wedding band for Towfique in May 2020; social media posts in which the Applicant identifies herself as Sonia Ahmed; and the fact that the Applicant has recently been convicted of fraud in a criminal case in Bangladesh in which she is identified as “Farzana Ahmed Sonia”, the wife of the late Towfique Ahmed.
[102] Moreover, although there are minor inconsistencies in his evidence, I have no material concerns regarding the Respondent’s credibility or reliability. I accept his evidence as to how he came to be aware of the Alleged Wedding, of his interactions with the Third-Party Affiants, and that he is not engaged in a fraudulent conspiracy with anyone else.
[103] I therefore find that the Applicant married Towfique in Dhaka on May 24, 2020. I further find that Hajari performed the ceremony after verifying that the Applicant had previously been divorced from the Respondent and that Towfique’s second wife consented to his marriage to the Applicant. The inevitable corollary is that the Applicant has been deliberately attempting to conceal these facts for over two years, including by making numerous false allegations of fraud against the Respondent.
V: Next Steps and Closing Comments
[104] In my July 12, 2022 endorsement I set out the schedule for the filing of documents and oral argument on the remaining issues raised in the parties’ respective notices of motion. For ease of reference, I repeat that schedule below:
The Applicant is given leave to serve and file a supplementary expert report dealing with issues relating to the validity of marriages under Bangladeshi law, by no later than July 25, 2022.
The Respondent is given leave to serve and file a supplementary expert report responding to the supplementary expert report of the Applicant, by no later August 2, 2022.
Respondent to serve and file his factum on his motion by August 9, 2022;
Applicant to serve and file her factum replying to the Respondent’s motion and dealing with her cross-motion by August 22, 2022;
Respondent to serve and his reply by August 26, 2022;
Applicant to serve and file her sur-reply by August 31, 2022, dealing only with issues raised in the Respondent’s reply to her cross-motion.
The page limits for factums set out in the applicable Practice Direction applies to the factums to be submitted by the parties. Any material in excess of those page limits will not be read or considered by the court.
Oral submissions will be made on September 6, 2022 before me via Zoom for one day. A court reporter and Bengali interpreter should be provided for that hearing. If available, Mr. Chowdry will be the interpreter.
The issue of costs will be addressed separately, after the release of my endorsement on the remaining issues raised by the parties’ motions.
[105] In closing, I return to the troubling issue of the efforts made to intimidate the Third-Party Affiants into refusing to comply with this court’s order that they testify.
[106] Having the good fortune to live in a society governed by the rule of law, as opposed to the rule of the strong over the vulnerable, cannot be assumed to be the natural or inevitable order of things. The rule of law depends in significant part on jealously guarding and nurturing public trust in the lawful exercise of public authority – including the belief that when disputes arise, they will be settled through lawful means and ultimately, if necessary, through the decisions of courts.
[107] But courts cannot fulfill their essential role if those who are ordered to provide relevant evidence are prevented from doing so because they have been threatened with harm if they comply with the court’s direction. Thus, although directed specifically at the Third-Party Affiants, these threats were in fact an attack on the jurisdiction of this court, since those engaging in such tactics were attempting to usurp and arrogate to themselves the judicial function of determining what evidence should be heard in this matter. It is precisely for this reason that Parliament has made it a crime to attempt to obstruct justice through witness intimidation. Even more troubling is that these threats almost succeeded (and in fact did succeed in preventing two of the Affiants from testifying), and were only overcome through the courage of Haque, Bappi, Elin and Hajari, who were willing to testify despite the risk to themselves and their families.
[108] The fact that these efforts at witness intimidation very nearly succeeded is no doubt as much of a concern to Bangladesh as it is to Canada, since both societies are equally committed to the resolution of disputes through law. This court stands ready to assist the relevant administration of justice authorities in either jurisdiction who may wish to conduct the appropriate investigations.
P. J. Monahan J.
Released: July 18, 2022
COURT FILE NO.: FS-20-20-14738
DATE: 20220718
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARZANA RATAN SONIA
Applicant/Responding Party
– and –
ABDUL HANNAN RATAN
Respondent/Moving Party
ENDORSEMENT
P.J. Monahan, J.
Released: July 18, 2022
[^1]: See Hawley v. Bapoo (2006), 2006 CanLII 24333 (ON SC), 82 O.R. (3d) 382, at para. 21 (S.C.); Berta v. Berta, 2015 ONSC 1493, at paras. 20-21; and Circoflex v. Royal Bank of Canada, 2013 ONSC 685, at para. 5; See also Ip v. Insurance Corp of British Columbia (1994), 1994 CanLII 19779 (BC SC), 89 B.C.L.R. (2d) 251, at para. 8 (B.C.S.C.).
[^2]: R.S.O. 1990, c. F.3.
[^3]: As will be described below, although the Respondent initially claimed that the Applicant had married Towfique on April 24, 2020, upon further inquiries it appeared that the Alleged Marriage took place on May 24, 2020, rather than April 24. For this reason, the issue at hand is whether the Alleged Wedding took place on May 24, 2020.
[^4]: From April 9 to May 9, 2021, Towfique was a patient at Better Life Hospital. He was then transferred to Dhaka Medical College Hospital, where he passed away from complications relating to Covid-19 on May 22, 2021.
[^5]: David M. Paciocco, "Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment" (2017) 22 Can Crim L Rev 31, at p. 57.
[^6]: R. v. N.S., 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 27-28; R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45; R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at paras. 85-89; Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. G. (G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 7-10; R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 90 C.C.C. (3d) 242 (Ont. C.A.), at p. 250, leave to appeal refused [1994] 2 S.C.R. x (note); R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 173-174; and R. v. C.C., 2018 ONSC 1262, at paras. 61-62.
[^7]: 2014 ONCA 769, 123 O.R. (3d) 536 (“R. v. M”), at paras. 12-14.
[^8]: R. v. M, at para. 14; see also R. v. Williams, 2018 ONCA 138, at para. 33.
[^9]: F.H. v McDougall, 2008 SCC 53, at para 48.
[^10]: These allegations against the Respondent’s counsel are baseless and should never have been made, as Mr. Kabir has throughout this proceeding conducted himself with the utmost integrity, honour and restraint.
[^11]: As noted earlier, under Bangladeshi law a man is permitted to have up to four wives, provided that any existing wives consent to the marriage. Towfique had been married twice prior to May 24, 2020, and his second wife was still married to him at that time. In other words, it is asserted that the Alleged Wedding was Towfique’s third marriage.
[^12]: The Applicant insists that the Third-Party Affiants are claiming that the wedding took place on the 4th floor of the building where she was staying temporarily after arriving in Bangladesh, based on an apparent reference to that building at one point in Hajari's testimony. The Applicant’s Airbnb apartment was on the 9th floor of a 16-story building. Therefore, the Applicant says, the Third-Party Affiants are lying when they say the wedding took place on the 4th floor of the building where she was staying in the Airbnb apartment. But Bappi, Elin and Hajari’s description of the building where the wedding took place resembled the building where Towfique was living (not the building where the Applicant was staying temporarily), and Haque specifically said that the wedding took place in Towfique’s apartment, which she said was on the fourth floor of a four-story building. I return below to this issue of the apparent inconsistency in the Affiants’ evidence with respect to whether the wedding took place at Towfique's apartment or the Applicant's rented Airbnb.
[^13]: Counsel for the Applicant wrote an inflammatory letter to the Manager of the Better Life Hospital accusing him of making false statements. Counsel also demanded 10 categories of information from the manager, including the names and contact details of the hospital senior management, the hospital's legal counsel and compliance officer, and the hospital's organizational chart. Not surprisingly, the Manager did not respond to this inflammatory correspondence.
[^14]: I note that in her November 26, 2021 affidavit, the Applicant had denied giving her address to the hospital when Towfique was admitted; she claimed that the fact that the hospital had mistakenly identified this address as Towfique’s supported her theory that the Manager’s letter was part of the Respondent’s conspiracy. However, in her March 2022 questioning, the Applicant acknowledged that she had given the Hospital her address as Towfique’s contact address, in effect admitting that her claims to the contrary in her November 26, 2021 affidavit were false.
[^15]: My July 12, 2022 endorsement accepting this correspondence from the Applicant’s former counsel reiterated my earlier June 3, 2022 ruling that no further evidence would be admitted. Yet on July 13, 2022 counsel for the Applicant sought once again to adduce further emails from Better Life Hospital. This request was refused on grounds of (i) the proportionality and fairness considerations set out in paragraph 99 below; and (ii) the fact that counsel had had ample time prior to the argument on June 27-28, 2022 to investigate which email addresses were associated with Better Life Hospital and had simply neglected to do so.
[^16]: According to the Facility Register of the Ministry of Health and Family Welfare of the Government of Bangladesh, the email address betterlife@fargroupbd.com belongs to the Better Life Hospital. This could have been discovered simply by entering the email address into a web browser and clicking on the first search result, something which neither counsel had done prior to July 12, 2022.
[^17]: The September 3, 2021 letter from Applicant’s counsel to the Better Life Hospital stated that it was being sent both by email and regular mail.
[^18]: The Applicant was convicted of having defrauded the victim of the equivalent of C$30,000 on the basis that the Applicant would provide the victim with a Canadian visa. She was sentenced to two years imprisonment and a fine the equivalent of C$750.
[^19]: King v. Stiefel, [2021] EWHC 1045 (Comm), at para. 482.
[^20]: King, at para. 479.
[^21]: O. Reg. 114/99.