Court File and Parties
COURT FILE NOS.: 838/20 and CV-20-74557 DATE: 20230705 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rana Alsous, Applicant AND: Elias Shahin, Respondent
AND RE: Rana Alsous, Plaintiff AND: Bishara Hadweh and Duaa Hadweh, Defendants
BEFORE: Justice D.A. Broad
COUNSEL: Daniel Mauer, for the Applicant/Plaintiff Rana Alsous Kenneth Wise, for Elias Shahin, Respondent and Bishara Hadweh and Duaa Hadweh, Defendants
HEARD: June 20, 2022
Endorsement
1Elias Shahin, the respondent in family proceeding 838/20 (the “family proceeding”) and Bishara Hadweh and Duaa Hadweh, the defendants in a civil proceeding CV-20-74557 (the “civil proceeding”) have brought a motion for an order that the two proceedings be heard together or one after the other before a judge of the Family Court at Hamilton. Rana Alsous is the applicant in the family proceeding and the plaintiff in the civil proceeding.
2For convenience and clarity the parties will be referred to by their given names in this Endorsement. No disrespect is intended by so doing.
3Although additional relief is sought by Elias in his Notice of Motion, only the claim that the two proceedings be tried together or one after the other was pursued at the hearing.
Relief Claimed in the Family Proceeding
4Rana and Elias have each claimed against each other in the family proceeding a divorce, spousal support, child support, decision-making responsibility for their three children, parenting time with the children, equalization of net family property and other corollary relief.
Parties and Relief Claimed in the Civil Proceeding
5Duaa is the sister of Elias. Bishara is the husband of Duaa and is thus the brother-in-law of Elias.
6Bishara and Duaa are the registered owners of a property in the City of Hamilton, Ontario municipally known as 227 Rymal Road East (the “Rymal Property”). They acquired title to the Rymal Property in or about the month of June 2015. The purchase price for the Rymal Property was $365,000.
7Rana has claimed in the civil proceeding against Bishara and Duaa, inter alia, a declaration that she is the beneficial owner of all or a part of the Rymal Property based upon a resulting or constructive trust.
8Rana alleges that Bishara and Duaa approached her to contribute $200,000 towards the purchase price of the Rymal Property and requested her to pay off certain of their credit card and other debts in order to facilitate them obtaining financing for the balance of the purchase price.
9Rana alleges that she transferred funds to Bishara and Duaa totaling $216,282.59 to be applied towards (a) the purchase price for the Rymal Property, (b) certain closing costs in relation to its acquisition, (c) payment of certain debts owing by Bishara and Duaa and (d) renovations or maintenance with respect to the Rymal Property. Rana has pleaded in the civil proceeding that, as a result of the advance of these funds, Bishara and Duaa were enriched to her corresponding detriment for no juristic reason and the Rymal Property is impressed with a resulting or constructive trust in her favour.
Defence to the Civil Proceeding
10Bishara and Duaa have defended the civil proceeding on the basis that the estate of Duaa’s (and Elias’) father Ibrahim Shahin was the beneficial owner of the Rymal Property, notwithstanding registration of title in their names. Ibrahim died intestate and Bishara and Duaa assert that subsequent to his death the Rymal Property became beneficially owned by them and their five surviving siblings, including Elias.
11The Rymal Property has been sold and an amount derived from the proceeds of sale agreed upon by the parties is being held in trust pending final disposition of the civil proceeding.
12In support of their claim that Ibrahim supplied the funds for the acquisition of the Rymal Property, Bishara and Duaa have pleaded that on or about July 15 2006 Ibrahim acquired a commercial property located at 538 Upper Sherman Ave. in the City of Hamilton (the “Upper Sherman Property”) and placed Rana on the title to it, despite the fact that all of the funds for its acquisition came from him.
13Bishara and Duaa pleaded further that, upon the sale of the Upper Sherman Property in 2014, the proceeds of approximately $275,000 were paid to Rana with a view to her using those proceeds to acquire another property for Ibrahim’s benefit in the future. They say that the funds advanced by Rana to Bishara and Duaa towards the acquisition of the Rymal property were proceeds of the sale of the Upper Sherman Property and she never had any legal, beneficial or equitable interest in the amounts used to purchase the Rymal Property.
14Bishara and Duaa have also pleaded that any ownership interest that Rana had in the Upper Sherman Property and the proceeds of its sale, including the amounts used to acquire the Rymal Property, was subject to a resulting trust in favour of Ibrahim, and the inclusion of Rana’s name on title and/or any transfer of funds into her bank account, was for convenience only and not a gift.
Status of the Proceedings
15The Trial Record in the civil proceeding was passed by Rana on November 24, 2022. Bishara and Duaa have not brought a motion for answers to undertakings or questions refused at Rana’s examination for discovery although they were ordered at the March 15, 2023 Trial Scheduling Court to do so by May 17, 2023. Rana takes the position that all of her undertakings on discovery were answered by March 27, 2023. The civil proceeding is ready for trial and Rana’s counsel estimates that it can be heard during the September or November 2023 Hamilton civil trial sittings, and that the trial will likely take 3 to 5 days.
16In contrast to the civil proceeding, the family proceeding is not ready for trial. Justice Lafreniere rendered a decision on December 14 2022 in the family proceeding following a focused trial on the discrete issue respecting the date of Elias and Rana’s separation. Justice Lafreniere’s decision remains under appeal in the Court of Appeal. The appeal has not been perfected and no date has been set for the hearing of the appeal.
Guiding Principles
17Rule 12(5) of the Family Law Rules provides that the court may combine two or more cases if it would be more convenient to hear them together.
18The jurisprudence indicates that, in relation to consolidation or trial together of a family and a civil proceeding, courts have considered Rule 6 of the Rules of Civil Procedure by analogy pursuant to Rule 1(7) of the Family Law Rules as it is more particularized and instructive (see Cruikshank v. Bastien, 2012 ONSC 7169 at para. 11-12 and Malkov v. Stovichek-Malkov, 2015 ONSC 4836 at para 13).
19Rule 6.01 of the Rules of Civil Procedure provides that, where two or more proceedings are pending in the court, and it appears to the court that:
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under the rule
the court may order that the proceedings be consolidated or heard at the same time or one immediately after the other.
20In assessing whether there is a question of fact or law common to both proceedings, the focus is on whether the proposed common issue has sufficient importance in relation to the other facts or issues such that it would be desirable that the matters be consolidated, heard at the same time, or after each other (see Canadian National Railway v. Holmes, 2011 ONSC 4837 at para. 43).
21The court is to follow a two-step process in determining whether to make a consolidation order or an order for a trial together. First, the court will consider whether the criteria defined by the rule have been satisfied, and then consider whether the balance of convenience favours such an order (see Canadian National Railway at para. 43).
22At para. 14 of Malkov Healey, J. set out a list of factors that should be taken into account at the second stage when considering a request to consolidate proceedings or order them to be tried together, derived from a longer list of factors set forth in Canadian National Railway at para. 44. The list of factors from Malkov is as follows:
a. The extent to which the issues in each action are interwoven;
b. Whether there is a risk of inconsistent findings or judgments if the actions are not joined;
c. Whether the issues in one action are relatively straightforward compared to the complexity of the other action;
d. Whether a decision in one action, if kept separate and tried first, would likely put an end to the other actions or significantly narrow the issues for the actions or significantly increase the likelihood of settlement;
e. The litigation status of each action;
f. Whether any of the parties will save costs, or alternatively have their costs increased, if the actions are tried together.
Discussion
23As indicated previously, on the authority of Canadian National Railway, the first step is to assess whether there is a question of fact or law common to both proceedings, focussing on whether the proposed common issue has sufficient importance that it would be desirable that the matters be heard at the same time, or after each other.
24I find that there is no issue of law in common between the two proceedings. The legal issue in the family proceeding is whether any interest of Rana in the Rymal Property forms part of her net family property and is therefore subject to an obligation to make a payment to Elias for equalization under the Family Law Act, R.S.O. 1990 c. F. 3. By contrast the legal issue in the civil proceeding is whether Rana has a beneficial interest in the Rymal property by way of a resulting or constructive trust as against Ibrahim’s estate or the beneficiaries of his estate.
25It may be argued that there is a factual issue in common, namely, whether Rana made an advance of funds to acquire a beneficial interest in the Rymal Property, and if so, the value of it. However, the precise issue in the family proceeding is whether Rana had a beneficial interest in the Rymal Property on the date of her separation from Elias. Whether she had an interest on the date of separation is not an issue in the civil proceeding.
26However, finding a common issue of fact, by itself, is not sufficient to satisfy the first branch of the test. The common issue must have sufficient importance to make it desirable that the proceedings be heard together. I find that this factor has not been satisfied.
27The civil proceeding concerns one discrete issue, namely whether Rana supplied all or part of the funds used to acquire the Upper Sherman property such that when that property was sold the proceeds were used to acquire the Rymal Property. There are no other issues in the civil proceeding which are of any importance to the family proceeding. Moreover, whether Rana had a beneficial interest in the Rymal Property on the date of separation is only one question to the determined in the equalization analysis and has no importance to the parenting and support issues to be tried in the family proceeding. In my view the issue of whether Rana had a beneficial interest in the Rymal Property is not of sufficient importance in relation to the other facts or issues such that it would be desirable that the two proceedings be heard at the same time, or after each other.
28It is therefore not necessary to go on to the second stage, namely, to consider whether the balance of convenience favours an order that the proceedings be tried together.
29However, in the event that I am wrong on the question of whether the common issue of fact is of sufficient importance to justify that the proceeding be heard together, in applying the factors listed in Malkov I find that the balance of convenience does not warrant the proceedings to be ordered tried together.
30First, the issues relating to the Rymal Property in the two proceedings are not interwoven. The finding in the civil proceeding will depend upon consideration of Rana’s dealings with Ibrahim and the source of funds into her bank account and their application to the acquisition of the Upper Sherman Property, the sale of the Upper Sherman Property and the transfer of the proceeds of sale into Rana’s bank account and then to Bishara and Duaa to fund the purchase of the Rymal Property, to pay down their debt and contribute to the cost of renovations and maintenance. None of these facts are relevant to the family proceeding.
31There is no risk of inconsistent findings if the civil proceeding were to be tried first. A finding in that proceeding on whether Rana had a beneficial trust interest in the Rymal Property on the date of separation will be determinative of whether such interest forms part of Rana’s net family property for equalization purposes in the family proceeding.
32The issues in the civil proceeding are relatively straightforward compared to the complexity of the family proceeding which will be concerned with issues of parenting, child and spousal support, and equalization involving other assets of Elias and Rana.
33As noted previously, a decision in the civil proceeding respecting Rana’s beneficial interest in the Rymal Property, if kept separate and tried first, would in my view likely significantly narrow the issues or increase the likelihood of settlement.
34The litigation status of the two proceedings are not aligned. The civil proceeding IS ready for trial at the September or November 2023 trial sittings, whereas the family proceeding is not ready to be scheduled for trial due to the pending appeal of Justice Lafreniere’s determination of the date of separation.
35There is no indication that any of the parties will save costs if the proceedings are tried together. The estimated time for the trial in the civil proceeding is three to five days and there is no basis to suggest that trying it with the family proceeding would result in a significant or any saving of trial time.
36Another significant factor militating against the making of an order that the two proceedings be tried together is the late stage at which the motion has been brought. In the case of Flitney v Howard, [1958] O.R. 701 (C.A.) the Court of Appeal stated:
The purpose of consolidation is to save expense and avoid multiplicity of pleadings and proceedings and this purpose can only be achieved by ordering consolidation at a very early stage. To order it on the very eve of trial would not accomplish that purpose.
(see also Bestco Construction Corp. v. Thermal Brick International Inc., [2004] O.J. No. 2016 (S.C.J.) at para. 6)
37In support of their motion that the proceedings be tried together Elias, Bishara and Duaa rely heavily on the case of Bledin v Bledin, 2021 ONSC 2674.
38In Bledin the family proceeding, in which the wife sought an order setting aside a mortgage on the matrimonial home in favour of the husband’s father on the basis that the advance of funds secured by the mortgage was a gift and not a loan, was ordered to be tried with the civil action brought by the husband’s father to enforce the mortgage.
39In my view Bledin is distinguishable from the case at bar. In Bledin Horkins, J. found that the question of “gift versus loan” was a central issue both proceedings, the dispute arose from the same transaction (i.e. the purchase of the matrimonial home) and the facts and central issue were the same in both proceedings. She also found that the husband’s father would typically be called as a witness in the family proceeding even had he not issued his own claim. In my view these factors are not present in the case at bar.
40Horkins, J. also found, in contrast to the case at bar, that the risk of inconsistent findings of fact was clear and obvious if each matter were to proceed separately and that neither proceeding was further ahead of the other.
41At para. 36, Horkins, J. observed that allowing the civil action to proceed in that case while holding the “gift/loan” issue in the family application in abeyance was not practical given the parenting and support issues involved. In contrast, the delay in setting a date for trial in the family proceeding in the case at bar is not connected to the existence of the civil proceeding but to the fact that the pending appeal of Lafreniere’s decision must be disposed of first.
Disposition
42On the basis of the foregoing, I am not satisfied that the preconditions for the making of an order directing that the civil and family proceedings be tried together or one after the other have been satisfied. The motion is therefore dismissed.
Costs
43The parties are strongly encouraged to resolve the issue of costs.
44If they are unable to do so, the applicant Rana Alsous may deliver written submissions on costs within 14 days of the release of this Endorsement. The respondent Elias Shahin has 10 days to deliver responding submissions on costs. There shall be no reply submissions without leave or without a request by the court.
45The costs submissions shall not exceed three double-spaced typewritten pages, exclusive of Bills of Costs, Costs Outlines and Offers to Settle, and shall be delivered to my chambers at the Brantford Superior Court at the address utilized for the release of this Endorsement.
46If the foregoing timetable is not followed, the parties shall be deemed to have settled the question of costs.
D.A. Broad, J.
Date: July 5, 2023