Court File and Parties
COURT FILE NO.: North Bay File: FS-18-00000099-0000 DATE: 20221026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SAMINA HAKIM Applicant
– and –
MUHAMMAD OMAR HAKIM Respondent
Counsel: M. Eggert, Counsel for the Applicant Kristen Normadin/Jared Teitel, Counsel for the Respondent
HEARD: August 18, 2022
DECISION ON MOTION
WILCOX J.
INTRODUCTION
[1] We are dealing here with the respondent’s motion to have his pleadings reinstated, and for other relief.
[2] In a previous motion brought by the applicant, I found that the respondent had failed to provide the required disclosure and failed to follow court orders. His misconduct was held to be willful, exceptional and egregious. Mullin v. Sherlock[^1] was found to be the leading case on what to do in such circumstances. It noted the requirements for disclosure and the seriousness of the problem of non-disclosure in family law cases generally. It reviewed the remedies available under the Family Law Rules. The striking of pleadings was to be used with caution because the resulting judgment could provide for continuing obligations which could be difficult to vary if the initial judgment was based on incorrect assumptions, perpetuating injustice. With this in mind, the court in Mullin found it appropriate to strike out the offending party’s Answer and other documents, subject to the discretion of the trial judge to admit any. It also provided for augmented trial participation rights of the respondent, again subject to the discretion of the trial judge to allow more.
[3] Following the decision-making framework set out in Mullin, I made an order striking the respondent’s Answer/Claim by Respondent and any notices of motion that he had filed, his affidavits, his financial statements and his certificates of financial disclosure, with the consequences provided in Family Law Rule 1(8.4):
(8.4) If an order is made striking out a party’s application, answer, motion to change or response to motion to change in a case, the following consequences apply unless a court orders otherwise:
The party is not entitled to any further notice of steps in the case, except as provided by subrule 25 (13) (service of order).
The party is not entitled to participate in the case in any way.
The court may deal with the case in the party’s absence.
A date may be set for an uncontested trial of the case.
[4] However, the respondent was allowed some augmented participation rights at trial:
[137] The striking of the Answer/Claim by Respondent has the consequences provided for in Rule 1(8.4) unless the court orders otherwise. So, the matter will go to what would be an uncontested trial, but with some augmented participation rights of the respondent, as follow:
The respondent may make opening and closing statements.
The respondent is at liberty to serve complete financial disclosure pursuant to the rules and previous orders. Any such disclosure shall be itemized in contemporaneous Certificate of Financial Disclosure which shall be served and filed.
The respondent may participate in any further conferences with a view to resolving the issues without trial.
The respondent’s further participation would be with leave of the trial judge.
The respondent shall get notice of any further steps in the case in which he has the right to participate.
[5] My order was not appealed.
[6] The respondent has now brought a motion for the following relief:
An Order that the Respondent 's pleadings shall be reinstated.
Alternatively, if the Respondent's pleadings are not reinstated, the following Orders shall issue with respect to the Respondent's participatory rights at this case's trial:
a. The Respondent shall submit an affidavit in chief with respect to his income for support purposes, including his efforts to secure employment since the parties' separation.
b. The Respondent shall submit a Net Family Property brief, with a Net Family Property Statement, with respect to the equalization issues in contention.
c. The Respondent shall submit an exhibit brief with respect to his income information, personal and professional.
d. The Respondent shall tender the parties’ marriage contract, dated December 9, 1994, into evidence at trial.
e. The Respondent shall cross-examine the Applicant on her evidence in chief at trial, as well as to cross-examine the Applicant’s witnesses (if any).
f. The Respondent shall be served with the Applicant’s trial record, and shall be eligible to serve a Respondent 's trial record (if necessary).
g. The Respondent shall be permitted to adduce evidence (via at most one witness) with respect to the value of his interest at the time of marriage in the property located at 1-A1 11 South St. Phase 2, Defence Housing Authority, Karachi, Pakistan.
- An Order that the parties shall attend a Settlement Conference before this case's trial.
[7] The respondent submitted that there are three avenues the court can take to reinstate the respondent’s pleadings:
Rules of Civil Procedure rule 19.08;
Family Law Rule 25(19); and
Inherent jurisdiction.
[8] Because it is a family law case, I will begin with Family Law Rule 25(19). It reads as follows:
(19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[9] The Ontario Court of Appeal has held that the authority to change an order includes the authority to set it aside.[^2]
[10] I find that the present case does not fit within the situations listed in Rule 25(19)(a-e). However, there is authority for applying rule 19.08 of the Rules of Civil Procedure.
In Bompas v. Henry[^3] the court stated:
[15] It is my view that the inquiry should not end with r. 25(19)(e). Rule 2(2) of the FLR’s states that the primary objective of the rules is to enable the court to deal with cases justly. In consideration of what would be just, I refer to r. 19.08 of the Rules of Civil Procedure. That provides the court with the authority to set aside a default judgment on such terms as are “just”. The Ontario Court of Appeal considered that test in Mountain View Farms Ltd. v. McQueen. It said that the ultimate task is to determine whether the interests of justice favour granting the order and five factors identified for consideration. The court further said that the factors were not to be regarded as rigid rules nor must all need be satisfied before the judge can grant relief. The factors are:
a) Whether the motion was brought promptly after the respondent learned of the default judgment;
b) Whether there is a plausible excuse or explanation for the defendant's default in complying with the rules;
c) Whether the facts establish that the respondent has an arguable defence on the merits;
d) The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and
e) The effect of any order the court might make on the overall integrity of the administration of justice.
[11] This was repeated in Ostapyk v. Ostapyk.[^4]
[12] Rule 19.08(1) reads as follows:
A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.
Rule 19.01(1) shows that this applies both where a defendant has failed to deliver statement of defence and where a statement of defence has been struck out, as here.
[13] Dealing with the factors in Mountain View, it appears that the respondent planned to bring this motion in January, 2022, being the first available date after my decision of May 10, 2021 striking his documents, but was delayed by the applicant's change of counsel. Although that is not particularly prompt, it is not an excessive delay, especially in COVID times.
[14] There was no excuse offered for the respondent’s failure to comply with the rules and orders. Instead, it appears that efforts have been made to come into substantial compliance. Whether he has completely done so is the subject of some dispute between the parties’ affidavits, which cannot be resolved here.
[15] In my opinion, the more important factors are the last three, which I will deal with together.
[16] The case law is replete with comments about the importance of full disclosure and the court having a proper appreciation of the facts so that the appropriate orders may be made. In this regard, the importance of cross-examination in our adversarial system to test the evidence cannot be overlooked. It is especially important that any orders made be based on accurate information where there are continuing obligations such as support which can be subject to variation based on material changes in circumstances.
[17] The current motion arises out of a series a serious failure on the respondent’s part to provide the necessary disclosure. It appears to have had a positive effect in that the respondent has retained new counsel through whom he is providing disclosure in an organized, digestible fashion. In addition, the respondent has pointed to shortcomings in the applicant’s presentation of the facts. Obviously, there are issues to resolved. That would best be done with the active, positive participation of both sides. The sanction was imposed on the respondent for failure to disclose the information necessary for the court to make a proper decision. It would be counterproductive to now take further steps which would compromise the court's ability to do so. The integrity of the administration of justice requires not only that misconduct be dealt with, but that the court be in a position to make appropriate decisions on the merits, which requires it to be fully informed.
[18] Turning briefly to the issue of prejudice, there is no doubt that the respondent’s failure to engage in the process would have prejudiced the applicant, for which costs might provide only limited compensation. The question, however, is about the potential prejudice going forward. That the applicant might have to go through the normal court process provided by our laws and rules, as compared to the truncated process of an uncontested trial in which she would not have her evidence challenged, is not a legitimate source of prejudice to be avoided. On the other hand, the risk of obtaining a result based on insufficient, incomplete and untested evidence, with the implications noted above for ongoing obligations and the variation thereof, potentially prejudice the respondent and arguably also the applicant.
[19] Taking the above into account, the task of the court is to fashion an order that does not exonerate the respondent but provides for a proper evidentiary basis on which to base a judgment. Consequently, I considered not reinstating the respondent’s Answer/Claim by Respondent, but providing for enhanced participation rights. The respondent’s motion sought participation rights in the alternative. In my decision of May 10, 2021, I provided for the respondent to have augmented participation rights, including any allowed by the trial judge. As I am now the putative trial judge, I could augment those rights in any event.
[20] Not reinstating the Answer/Claim by Respondent would be largely symbolic. Custody and access (now decision-making responsibility and parenting time) are no longer live issues, given the ages and stages of the children. Only financial issues are live, and both sides claimed property equalization. So, there is no relief sought by the respondent that could not be dealt with under the applicant’s Claim.
[21] In considering the list of participation rights that I felt would be required to achieve a full, accurate evidentiary picture on which to base orders, it became apparent that there would be little if any practical difference from a regular, contested trial, but that there might be confusion as to what is or is not allowed. The better course is to opt for the known procedure.
[22] Therefore, the respondent’s pleadings, including his Answer/Claim by Respondent, are hereby reinstated. This is not to be understood as an exoneration of the respondent.
[23] Numerous changes of counsel by the respondent in the in the past created delay and confusion. I am encouraged by the progress being made with the assistance of the respondent’s current counsel. This influenced my decision. It follows that any further changes by the respondent in his counsel without a good explanation will be looked upon negatively.
[24] The next issue was whether to order a settlement conference as sought by the respondent’s motion.
[25] Indeed, my decision of May 10, 2021 provided for the respondent to participate in any further conferences with a view to resolving issues without a trial. The respondent submitted that, now that his disclosure has been made, there could be a productive conference and the case is capable of resolution, which would result in substantial savings of money to the parties.
[26] The applicant had been resistant to holding a further settlement conference as they had not been productive in the past. However, her counsel submitted that he would not be opposed to a settlement conference combined with the trial management conference, as long as it did not create delay. In this regard, I would start with the primary objective of the family law rules. Rule 2 (2-4) provides:
(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.
[27] My general impression is that litigants too often think that the goal is to have a trial, when the goal is to resolve the issues by various means, of which trials are the last option. They need to know that settlement is a valid and the preferred option. The settlement rate is very high. Relatively few cases get to trial. There are various reasons for this. In a case such as this where the issues are financial, once the required disclosure is made in the prescribed forms, unresolved matters can be identified and dealt with and the answers become clearer. The cost/benefit analysis and other considerations militate against continued litigation, and especially trial. I encourage counsel to impress this upon their clients.
[28] As for delay, recent statistics show that a trial in this matter would be months, perhaps even a year or more, away. There is plenty of time before then in which to hold settlement conferences even after a trial date is scheduled.
[29] Therefore, an order shall go for the parties to attend one or more settlement conferences before any trial.
[30] Family Law Rule 2(5) says that the court shall promote the primary objective of the rules by active management of cases. In this regard, I know that there continue to be disagreements about whether full disclosure has been made. There are also allegations by the respondent of uncooperativeness, failure to communicate and failure to respond constructively against the applicant. These go so far as to suggest that she is “lying in the weeds” and planning to spring surprises at trial. Without commenting on the veracity of these allegations, I simply note that such conduct is contrary to the primary objective of the rules and will not be tolerated. If there are outstanding disclosure issues, they need to be addressed promptly between counsel. Rule 13(11) provides a mechanism for doing so, although cooperation is preferred. Consequently, I will make the following order:
Any issues about outstanding disclosure shall be dealt with forthwith through counsel, failing which the rule 13(11) procedure shall be used.
[31] If costs are sought and cannot be agreed upon, the applicant shall have twenty days to serve and file costs submissions. The respondent shall have ten days after that to serve and file responding costs submissions. Submissions shall be limited to three double-spaced pages plus bills of costs, if any.
The Honourable Justice James A. S. Wilcox
Released: October 26, 2022
COURT FILE NO.: North Bay File: FS-18-00000099-0000 DATE: 20221026
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SAMINA HAKIM Applicant
– and –
MUHAMMAD OMAR HAKIM Respondent
DECISION ON MOTION
WILCOX J.
Released: October 26, 2022
[^1]: 2018 ONCA 1063 [^2]: Gray v. Gray, 2017 ONCA 100 paragraphs 26 and 31 [^3]: 2018 ONSC 7718 paragraph 15 [^4]: 2022 ONSC 400 paragraph 13