COURT FILE NO.: FS-19-001-00
DATE: 2022 01 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shalaby v Nafei
BEFORE: Fowler Byrne J.
COUNSEL: Adela Crossley, for the Applicant
Ron Shulman, for the Respondent
HEARD: November 26, 2021
ENDORSEMENT
[1] The Respondent Husband has brought a motion seeking an order that the Applicant Wife produce the complete file of her former counsel, Sharan Sodhi. In the alternative, the Husband seeks an order directed to Ms. Sodhi, that she release the Wife’s file to the Husband.
I. Issue
[2] The issue to be decided on this motion is whether the Wife’s file with Ms. Sodhi is privileged, or whether the Wife has waived that privilege and is obligated to produce it to the Husband.
II. Background
[3] The parties were married on April 1, 2005 and separated in May 2018. The Wife has alleged that this was a marriage fraught with control, manipulation, and abuse at the hands of the Husband, which is vehemently denied.
[4] There are two children of the marriage, ages 15 and 11. In August 2018, the Wife and the Husband entered into a comprehensive separation agreement (“the Separation Agreement”). Ms. Sodhi represented the Wife at the time she signed a Separation Agreement and Mr. Shulman represented the Husband. The Wife’s signature was witnessed by Ms. Sodhi, who also signed a Certificate of Independent Legal Representation. The Husband’s signature was witnessed by Mr. Shulman, who also signed a Certificate of Independent Legal Representation. The Certificate signed by Ms. Sodhi, states:
Yasmine Mahmoud Hani Shalaby acknowledged that she completely understood the nature and effect of the Agreement and that she would execute the Agreement of her own volition without any fear, threats, compulsion or influence by Hesham Mahmoud Abdel Haleem Nafei or any other person.
[5] In December 2018, the Wife sent the children to stay with the Husband in Egypt for the Winter break, as was provided for in the Separation Agreement. While it is not exactly clear what happened, the Husband claimed he did not have the children during that entire period but that the maternal grandfather withheld them. The maternal grandfather denies this, indicating the children went with the Husband as arranged. There was a period of approximately two weeks during which the Wife was frantic, not knowing exactly where her children were overseas. During this time, the Husband’s lawyer accused the Wife of withholding the children and being in “contempt” of the Separation Agreement. In a letter sent by the Husband’s lawyer, the lawyer continued, “[i]n that event, we will strongly consider pursuing all legal avenues to limit your client’s financial entitlements pursuant to the Separation Agreement, as his agreement to those generous financial terms were largely based on the parenting arrangements.”
[6] The Wife sought the assistance of the Peel Police Services, detailing the alleged abusive history of the marriage, and charges were laid against the Husband in Ontario. If the Husband comes to Ontario, he may be arrested. The Husband took similar steps in Egypt and the Wife may be arrested if she travels there.
[7] The children were returned to Canada on January 1, 2019. On January 6, 2019, the Wife commenced this Application. In this Application she seeks, inter alia, that the Separation Agreement be set aside. On the preprinted form, there is a spot where the parties can indicate if there was ever any written agreement dealing with any of the matters in the case. In her response, the Wife admitted that there was an agreement, dated August 14, 2018, “which I am seeking to set aside. I am seeking to set aside the Agreement in its entirety as I dispute all of the items.”
[8] On the part of the Application where a party sets out the relief claimed, the Wife stated that she seeks,
An Order setting aside the Separation Agreement, dated August 14, 2018 in its entirety.
[9] In the body of the Amended Application, the Wife pleads, inter alia, as follows:
After the incident in May 2018 as described above in paragraph 15(e), our relationship was completely broken down and I could no longer tolerate the constant abuse and suffering at the hands of the Respondent.
On August 10, 2018, the Respondent came to Canada as he told me that he wanted to formalize our separation through a separation agreement. We met on this day and he told me that if l attempt to fight with him or take this matter to court, he would ensure that he hired many lawyers who would keep me in court 'forever', and I would be forced to live a life of poverty and despair. He was clear to me that he has the money and the power and he was the one who could afford lawyers and years of litigation in the courts. He was very threatening and he even told me that he could hire ten lawyers at a time to bankrupt me and keep me fighting in court.
I believed everything the Respondent said (I know that he was not joking and that he has the resources) and I asked him to reach some form of compromise with me, as I did want my children to suffer financially and emotionally through years of court proceedings. The Respondent had his lawyer draft an agreement, which favours him. I was told to get independent legal advice. The first lawyer I approached to provide me with independent legal advice flat out refused to take me on as a client as she said that the Agreement was too unfair to me and there was no financial disclosure provided. I looked around and found another lawyer who agreed to represent me when I explained to her how powerless l felt and how afraid I was to go against the Respondent, given the unequal bargaining power and my inability to pay extensive legal fees to litigate.
I signed as soon as possible, for the sake of peace and out of fear that if l did not go along with the Respondent, he would use his significant financial resources to punish me and our children. Given that I did not work during the marriage, at the insistence of the Respondent, I have no independent source of income and I am dependent financially on the Respondent: a fact that he is well aware of.
[10] The Wife also pleaded that when the children were unaccounted for in Egypt, the Husband actually had them the entire time. It is the Wife’s position that the Husband accused the Wife of improperly withholding the children, contrary to the Separation Agreement, so that he could avoid his financial obligations under the Separation Agreement. The Wife claims that the Husband has breached the Separation Agreement by his actions in Egypt.
[11] In an affidavit sworn by the Wife, on February 28, 2021, she states, inter alia:
This case is a highly complex one, involving legal issues including but not restricted to the validity of the Separation Agreement that the Respondent and I signed in August 2018. […]
The Respondent also told me that he wanted to formalize our separation through a separation agreement and that if I attempted to fight with him or take this matter to court in Canada, he would ensure that he hired many lawyers who would keep me in court ‘forever’, and I would be forced to live a life of poverty and despair. He was clear to me that he had the money and the power and he was the one who could afford lawyers and years of litigation in the courts. He was very threatening to me during this call and he even told me that he could hire ten lawyers at a time to bankrupt me and keep me fighting in court. I had no doubt that he was serious about bankrupting and punishing me if I failed to go along with him. This conversation left me feeling that I had no choice but to resolve things outside of court.
I was pressured to enter into and sign a separation agreement. The Respondent made clear that all of the property in the Middle East and elsewhere belonged to him and that I had no entitlement or even a right to seek a portion of this. Knowing his personality, and having experienced violence from him, I was afraid to challenge him, especially as he had threatened me in the past about harming my family in Egypt, “disappearing” my brother, etc., if I went after “his” property. I felt that I had no choice but to agree to the terms dictated by him, as our children and I were living in Canada with absolutely no independent source of income, other than the money that he permitted me to have in our account. I knew that if I displeased the Respondent, he would retaliate by withholding these funds and our children and I would be destitute.
The Respondent was the person who dictated the terms of settlement, not me. I took the terms to my lawyer whom I retained, as he requested me to do. I felt that I had no choice but to go along with him, as our main marital assets are in the UAE and Egypt and the Respondent lives and works in the UAE. I knew that enforcing a court order for support in the UAE is next to impossible. I knew that if I tried to get what we know as Equalization in the Middle East I will be unsuccessful, given the laws there and the fact that these countries are very corrupt, they do not favour women, and if one has money, one can bribe individuals to drag on cases for years, or to make documents disappear.
[12] In her cross-examination, the Wife confirmed that she felt she had no choice but to sign the Separation Agreement that the Husband proposed because he would not agree to any changes and would not make financial disclosure. The following statements were made by the Wife:
- Q. Did Ms. Sodhi explain to you what rights and obligations you were giving up by signing this agreement?
A. Yes. Actually, she was saying, somehow, that, like, may not be in my favour, most of it.
- Q. Did Ms. Sodhi explain to you that once you signed this agreement, it would become final?
A. The thing...I am very honest here. I was thinking at that time, and that was...I remember telling her that this is just to organize stuff and that is it, like, we are not going to be going through it again, that is it, at that time.
- Q. Okay. What do you mean you are not going to be going through this again?
A. I thought things are going to go... we can move on with our lives, that I complied to his conditions and terms, and we can move forward with our lives with no consequences whatsoever afterwards.
- Q. Right, is that to mean that you told Ms. Sodhi that you complied with what Mr. Nafei has asked, and you understand that you would be following this agreement going forward?
A. Yes. Yes, because I had no other option but to comply for sure.
- Q. And you told Ms. Sodhi that Mr. Nafei threatened you and your family?
A. No, I can't remember those conversations. You are talking about conversations how many years now? But, like, of course we had our talks, but I can't recall everything.
- Q. All right. So, again, I will ask you the question. Were you signing this agreement under fear, threat, compulsion or influence by Mr. Nafei?
A. I was stressed and pressured, because if I am not going to comply to his conditions and terms, I will not have an agreement in the first place.
- Q. Right, and you wanted to have an agreement, correct?
A. I wanted to move on with my life, knowing that we can survive.
[13] Ms. Sodhi was served with this motion. She did not attend. She has provided an affidavit sworn February 25, 2021, outlining her position. She is not currently practicing law. She states that she is opposed to the relief sought by the Husband herein. She claims she is bound by solicitor-client privilege and has not been authorized to release the file.
[14] The Mother maintains that this file is protected by solicitor and client privilege, which she has not waived. The Mother has also indicated her intention to call Ms. Sodhi as a witness as trial and she will be subjected to cross-examination. In her argument, the Mother indicates that when she started the Application, it was not so much about duress or lack of financial disclosure, but about the Husband’s actions with respect to the children while in Egypt and his attempt to use that episode as a way to withhold his financial obligations.
III. Analysis
[15] Rule 19(1) of the Family Law Rules, O. Reg. 114/99, states that within 10 days of a party’s request, the other party shall produce every document which is relevant to an issue in the case. A document over which a privilege is claimed, may only be used at trial if the other party was provided a copy, free of charge, at least 30 days prior to a settlement conference, or on conditions that the judge deems appropriate: r. 19(5). If at questioning, a party refuses to answer a proper question, the court may decide if the question is proper and direct the person’s return for questioning: r. 20(19).
[16] Finally, if certain disclosure is available from a third party, and not protected by a legal privilege, and it would be unfair to go to trial without this disclosure, the court may order that the third party produce this disclosure: r. 19(11).
[17] In this case, the Husband asked the Wife to produce Ms. Sodhi’s file, and the Wife has claimed privilege. He has repeated that request in writing and with this motion. It is not necessary that I review the file to determine if the claim of privilege is proper. Clearly, the Wife’s consultation with Ms. Sodhi was initially subject to solicitor and client privilege. What must be determined by this court is if the Wife subsequently waived that privilege in any way.
[18] The functional purpose of the solicitor-client privilege goes to the very heart of the administration of the legal system. All persons must have access to expert legal counsel without fear that this recourse may be used to their detriment: Jones v. Smith, 1999 674 (SCC), [1999] 1 S.C.R. 455, at para. 46.
[19] The onus rests on the party asserting privilege to establish that the communications in question are in fact, privileged: Davies v. American Home Assurance Co., 2002 62442 (ON SCDC), 60 OR (3d) 512 (Div. Crt.) at para. 37. Once that is established, the burden then shifts to the party wishing to overcome the privilege and compel disclosure of communication between solicitor and client: Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC), 2 CPC (6th) 276 (Ont. S.C), at para 76.
[20] In Laliberté v. Monteith, 2021 ONSC 4133, at para. 22, the Divisional Court approved the lower court’s statement of the circumstances in which privilege can be waived:
[21] A waiver of privilege may be express or implied. Implicit waiver may arise in two circumstances: (i) waiver by disclosure – once the privileged communication has been disclosed, the privilege attached to it is said to be lost; or (ii) waiver by reliance – by pleading or otherwise relying upon the privileged communication as part of a substantive position taken in the legal proceedings: Super Blue Box, at paras. 79-80; Leitch v. Novac, 2017 ONSC 6888, at para. 60.
[22] A deemed waiver, and an obligation to disclose a privileged communication, requires two elements: (i) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence, in other words, the presence or absence of legal advice is material to the lawsuit; and (ii) the party who received the legal advice must make the receipt of it an issue in the claim or defence: Creative Career Systems Inc. v. Ontario, 2012 ONSC 649, at para. 30.
[23] A party will have waived solicitor-client privilege where they have placed their state of mind at issue and given evidence that they received legal advice which, in part, formed the basis of that state of mind. An implicit waiver can also arise by reason of the positions taken by a party which implicitly require the disclosure of communications between solicitor and client: Spicer v. Spicer, 2015 ONSC 4175, at paras. 13, 15
[21] Pursuant to the Family Law Act, R.S.O. 1990, c.F.3 (“FLA”), a separation agreement can be set aside on a number of grounds. First, if any provision of a separation agreement may not be in the best interests of the child (s .56(1)), or if the child support provisions are unreasonable (s. 56(1.1)). Section 56(4) also sets out as follows:
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(b) if a party did not understand the nature or consequences of the domestic contract; or
(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).
[22] The grounds that would justify a court setting aside a domestic contract pursuant to s. 56(4)(c) of the FLA, include the following contractual concepts: Unconscionability, undue influence, duress, uncertainty, mistake, misrepresentation, fraud, and repudiation of a term of a contract: Ward v Ward, 2011 ONCA 178, at para. 21.
[23] In the Wife’s Application, she seeks an order setting aside the Separation Agreement, but does not explicitly state the grounds on which she intends to rely do so. A review of the allegations set out in the Amended Application leave many avenues open to the Wife – duress, lack of financial disclosure, unconscionability, fraud, repudiation, mistake, or misrepresentation, to name a few. I specifically make no finding of whether some, all, or none of these grounds will be successful, but the facts pleaded surrounding the negotiation and formation of the Separation Agreement, do give rise to the possibility that she could advance some or all of these arguments. The Husband is entitled to answer these allegations. The Wife’s Application amounts to waiver by reliance.
[24] In addition, due to what the Wife has said in her affidavit, and then in her cross-examination, she has waived her solicitor and client privilege by disclosing the discussions between herself and her lawyer.
[25] A review of the transcript of the Wife’s cross-examination, shows that she disclosed the details of her discussions with her lawyer. The only question that the Wife refused to answer on the basis of privilege was when the Wife was shown a copy of an email between herself and her counsel, which was in the Husband’ possession. In the course of the examination, it was shown that this email was forwarded by the Wife to the Husband prior to the litigation. Otherwise, she does not refuse to answer any other question by reason of solicitor and client privilege. Instead, it was only when asked to produce Ms. Sodhi’s file that the refusal is made on the basis of privilege. The Wife’s answers in her examination results in waiver by disclosure.
[26] Even if the Wife is not relying on her legal advice in relation to the Separation Agreement, the solicitor’s certificate and affidavit of Independent Legal Advice is, in fact, a waiver of solicitor/client privilege as to the matters addressed in it: Griffore v. Adsett, 2001 28207 (ON SC), 18 R.F.L. (5th) 63, at para. 20; Balsmeier v. Balsmeier, 2014 ONSC 5305, at para. 29.
[27] The Certificate of Independent Legal Advice in this matter is all encompassing. It states that the Wife was consulted “with respect to her rights and obligations under this Agreement.” It continues that Ms. Sodhi explained to the Wife the nature and effect of the Separation Agreement, that the Wife understood it completely and signed it of her own free will. Accordingly, this Certificate would constitute a waiver of any advice given in relation to the Separation Agreement.
Conclusion
[28] The privilege is the Wife’s to waive. I have found that she has waived the privilege and thus, I will order her to authorize Ms. Sodhi to release the file. If the Wife fails or refuses to do so, or Ms. Sodhi does not release the file when so authorized, either party may attend before me.
[29] Accordingly,
a) within 7 days, the Wife shall authorize Ms. Sodhi to release a full copy of her file to the Wife;
b) The Wife shall forward to the Husband, a full copy of her file, delivered by Ms. Sodhi, within 45 days of the date of this Order;
c) In the event that the Wife fails and/or refuses to deliver a copy of Ms. Sodhi’s file within this time, or Ms. Sodhi fails to deliver the file to the Wife, despite the authorization to do so, the Husband or Wife may bring a motion before me, on notice to the other and Ms. Sodhi, for a 9:00 a.m. video attendance, wherein either may seek an order that Ms. Sodhi release the file, and will be at liberty to seek his or her costs as against a party, and/or Ms. Sodhi for that attendance;
d) The parties are urged to resolve the issues of the costs of this motion as between them; if they are unable, the Husband is to serve and file his written costs submissions, single sided and double spaced, limited to two pages, exclusive of Costs Outline, on or before February 11, 2022; the Wife shall serve and file any responding written submission, which must include a Costs Outline, with the same size restrictions, on or before February 18, 2022; the Husband may serve and file reply submissions, if he wishes, restricted to one page, on or before February 25, 2022;
e) Paragraph 2 of the Husband’s Notice of Motion, dated November 15, 2021, is adjourned sine die to be brought back on before me, as indicated in subparagraph 29(c) herein, with a minimum of 7 days notice; and,
f) The remainder of the Husband’s motion is dismissed.
Fowler Byrne J.
DATE: January 25, 2022
COURT FILE NO.: FS-19-001-00
DATE: 2022 01 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Yasmine Mahmoud Hani Shalaby v.
Hesham Mahmoud Nafei
COUNSEL: Adela Crossley, for the Applicant
Ron Shulman, for the Respondent
ENDORSEMENT
Fowler Byrne J.
DATE: January 25, 2022