Court File and Parties
Court File No.: FC-21-00000641-0000 Date: 2023-06-01
Ontario Superior Court of Justice
Between: WELFAT BAHOUS, Applicant And: JOHN BAHOUS, Respondent
Counsel: Arresha Zubair, for the Applicant Harold Niman and Chloe van Wirdum, for the Respondent
Heard: May 17, 2023
Before: SHORE, J.
Reasons for Decision
[1] At the commencement of the trial, scheduled to begin May 17, 2023, the Applicant brought a motion for an adjournment of the trial. I denied the request and provided some oral reasons, with written reasons to follow. These are my written reasons.
[2] The Applicant is seeking an adjournment of the trial scheduled to begin today, May 17, 2023, and/or an order striking the Respondent’s pleadings. She is also requesting a non-dissipation order with respect to the Respondent’s interest in the Group C of companies. The Applicant submits that she should not be forced to proceed to trial without receipt of the missing disclosure from the Respondent. The Applicant further alleges that the Respondent is in breach of court orders.
[3] The Applicant submits that the Respondent is in breach of the court orders of: Cameron J., dated August 6, 2021, requiring responses to their request for disclosure; Vallee J., dated February 4, 2022, where the Respondent was ordered to produce all personal bank statements; Himel J., dated May 16, 2022, requiring him to produce documentation that he holds his shares in trust for his son; and Bruhn J., dated February 16, 2023, requiring disclosure. The Applicant alleges the Respondent has not complied with the order for support, dated August 5, 2022, wherein Himel J. notes the Respondent is in breach of the court order, but which he later cured.
[4] The Respondent only produced some of the disclosure on the eve of trial. The Respondent continued to provide disclosure as late as last week and some further documents were served last night. These documents have not been tested. The Applicant submits that she should not be put through the time and expense of a trial while missing disclosure from the other side and that it is up to the trial judge to determine the participation rights of the parties, if any. The Applicant is asking that the Respondent not be permitted to participate in the proceedings.
[5] The Applicant is also seeking a non-dissipation order of the Respondent’s shares in the Group C companies (Group C is defined in the Applicant’s material).
[6] I also heard submissions from the Respondent and the group of companies. The group of companies is a non-party on this motion and represented by Mr. Gibson. There are three requests that affect the non-parties, including production of every bank statement for all of the companies from January 1, 2018, to December 31, 2020. Counsel for the non-party only received the motion materials less than 12 hours ago and had no opportunity to file responding materials.
[7] If I were simply to rely on the Applicant’s submissions, regarding the Respondent’s failure to provide disclosure and breach of court orders, I would have been inclined to adjourn the trial. However, decisions cannot be made in a vacuum. It is important to understand the context under which this motion is being sought.
[8] The primary objective of the Family Law Rules is key to understanding my decision. I am not going to reproduce the rule in this decision, but if you are not familiar with r.2(2)-(5) of the Family Law Rules, read it. Then read it again. It is that important to understanding this decision and many decisions of this Court.
[9] The parties separated in 2019, approximately four years ago, although they disagree on the exact date of separation. The Application was issued in April 2021. The issues arising from the breakdown of their marriage have still not been resolved.
[10] There is a long procedural history in this case, most of which has been set out in the recent decisions of Jarvis J., dated February 22, 2023, and Himel J., dated January 4 and April 17, 2023. I rely on the history set out in those decisions. To say that the parties are frequent users of the court is an understatement. There have been several decisions of this court finding that this matter “has been afforded more than its fair share of judicial resources” to the detriment of other families. The recent endorsements have been clear that this trial is to go ahead. Both parties share the blame for the manner in which this matter has proceeded through the court. Previous orders have clearly stated that this trial must proceed and that it is to be given priority in these trial sittings. The court would need a very good reason to adjourn the trial at this stage.
[11] Paragraphs 13 and 14 of the Applicant’s affidavit filed in support of this motion succinctly summarize why this motion is being dismissed:
On March 31, 2023, I sought permission by this Honourable Court to proceed to a motion to strike the Respondent’s pleadings for failure to comply with his basic disclosure obligations, and for an Order for further disclosure. My requests were denied and I was required to attend a trial without further disclosure. Attached hereto and marked as Exhibit “D” is the Order of the Honourable Justice Himel, dated April 5, 2023.
As such, I am now bringing my requested relief before this Honourable Court on the day of my trial, in order to avoid a serious miscarriage of justice.
[12] The Applicant already brought the motion to adjourn the trial and/or to strike the Respondent’s pleadings. When the parties appeared before Himel J. on April 4, 2023, Her Honour set a timeline by which responding material should be served, and a further conference was scheduled specifically to address the issue of disclosure. Justice Himel heard from both parties and on April 17, 2023, Himel J. denied the Applicant leave to bring her motion. The decision has not been appealed.
[13] The Applicant submitted that this court is not bound by the order of Himel J., dismissing the Applicant’s motion, and that drawing adverse inferences against the Respondent does not assist in quantifying his income and assets. I disagree. This court cannot ignore previous endorsements. Although, as the trial judge, I am not bound by most interim orders, I cannot ignore the reasons why previous judges have found that this trial must go ahead. Likewise, I cannot ignore the history of this file.
[14] The Applicant is seeking the same relief she requested on her motion before Himel J. and on the same set of facts. When the issue of res judicata was raised by this court, the Applicant took the position that a trust document was produced after Himel J. heard their motion. Given the history of this file, I am not prepared to adjourn this trial for one document. The timing of service of this document, the authenticity of the document or the Respondent’s ability to rely on this document at trial can be addressed during the trial.
[15] With respect to her request to strike the Respondent’s pleadings, striking of pleadings is permissible under r. 1(8) of the Family Law Rules, O. Reg 114/99 (the “Rules”). Where there is a failure to follow court orders or the Rules, pleadings may be struck, or in the alternative, an order can be made to strike parts of the Respondent’s affidavit. I accept that the Respondent has not provided all of the disclosure he has been ordered to. However, for all of the reasons set out in the endorsements of Himel, Vallee and Jarvis JJ., I am not prepared to exercise my discretion and adjourn the trial or strike the Respondent pleadings.
[16] At paragraph 26 of the endorsement of Vallee J., it states: “This matter has been stalled over the issue of disclosure for over a year now. Further delay would be contrary to the primary objective. This matter must move forward.”
[17] Bringing this motion on an urgent basis at the commencement of trial is not the way to proceed. Bringing a motion that has already been argued, is also not the way to proceed. This motion took approximately two hours of the court’s time this morning. Materials were being served as late as this morning. The non-parties are not the cause of this urgency. I agree that there was no reason the motion materials were serviced on the third party with little to no notice. As Mr. Niman aptly stated during his submissions, “this is not the wild west”.
[18] This case needs to be reigned in and the only way to do that is to proceed to trial. The court does not have the resources to allow this case to drag on any longer. It is taking away significant time and resources from other families. There are other ways to address the Respondent’s late or lack of disclosure that would ensure that the trial is fair to both parties.
[19] If the Respondent has failed to provide proper disclosure, it can be addressed during the trial with negative inferences being drawn against the Respondent and/or costs, to name just a few remedies available to the Applicant and the court.
[20] I question why the Respondent is taking the risk of proceeding to trial without having provided the disclosure. He is at a disadvantage because the court will have no choice but to make assumptions and inferences in favour of the Applicant where evidence is questionable, scant or missing.
[21] On the issue of the non-dissipation order, the Respondent did not address this issue in his submissions or his material. I am prepared to make the order, but only as it affects the Respondent and not any of the third parties.
[22] Order to go as follows:
- The Respondent shall not transfer or dissipate his shares or any interest he has in the Group C of companies pending further order this court (Group C is as defined in the Applicant’s material).
- The rest of the Applicant’s motion is dismissed.
- Costs of this motion shall be addressed at the end of the trial.