Court File and Parties
COURT FILE NO.: FS-13-00386399-0001 DATE: 20240409 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARYAM ESKANDARI, Applicant AND: AHMAD HASSANALIZADEH, Respondent
BEFORE: Myers, J.
COUNSEL: Maral Mirhosseini, for the Applicant Poroshad Mahdi, for the Respondent
HEARD: April 9, 2024
Endorsement
[1] The applicant moves to void the divorce order made by Paisley J. dated August 14, 2013; to declare that the parties only separated upon the applicant learning of the divorce order in 2021; and that even if the parties did separate before the 2013 divorce, an order extending the time for the applicant to seek equalization under s. 2 (8) of the Family Law Act.
[2] The motion was initially scheduled at a case conference before Vella J. in July, 2023. It was to be a long motion. The motion came on for hearing before Black J. on January 23, 2024.
[3] Black J. adjourned the motion because the applicant had not delivered evidence to support the relief that she sought. It was not an issue of meeting the schedule set by Vella J. Rather, it was apparent to Black J. that counsel for the applicant, “was not entirely aware of the importance of affirmative evidence in the record, and the potential consequences of the absence of such evidence.”
[4] Black J. tried to provide assistance to the applicant by adjourning the motion with the following guidance:
Separate and apart from the absence in the applicant's materials of evidence that would be critical for her ability to advance her various positions, I also had a concern, which I shared with counsel, that the various contested issues do not lend themselves to determination by summary judgment.
That is, on virtually every issue (and assuming for these purposes that the applicant may yet file an affidavit containing her evidence on the various issues), there are stark disagreements between the parties about what happened. There are, for example, diametrically opposed affidavits filed by some of the parties' children, with the evidence of a daughter (filed in the mother's materials), being in complete contrast to the affidavit of a son (filed in the father's materials).
These various disagreements, and the array of disagreements between the parties themselves (again assuming the eventual existence of a proper affidavit from the applicant), will require various determinations about credibility of key witnesses and aspects of their evidence. Such determinations will frankly be difficult to make on the basis of a paper record (even one containing all of the necessary evidence).
In the face of my concerns, applicant's counsel requested an opportunity to adjourn the motion(s) to allow her to file a proper comprehensive affidavit on behalf of the applicant.
[5] While cognizant of a desire to avoid visiting counsel’s strategic missteps on the client, Black J. ordered the applicant pay $5,500 in costs thrown away within 60 days (by March 23, 2024). He concluded as follows:
In addition, albeit that for now I have simply adjourned the applicant's motion, I encourage her (and in particular her counsel), and the respondent, to consider my observations about whether or not the determination of the issues bound up in this motion are in any event appropriate for summary judgment.
I expect that any judge being asked to deal with these issues would immeasurably benefit from hearing viva voce evidence, at least from the parties and perhaps from some of the other witnesses as well.
With that observation, I leave it to the parties to decide on next steps. Given my concerns, the adjournment I have ordered should be treated as sine die; I was not inclined to set a further date with uncertainty about whether, or in what form, the matter will proceed.
[6] The motion returned before me today as a short motion scheduled for one hour. I had sufficient time in the day that I could have heard it as a long motion. But, as matters unfolded, that was not necessary.
[7] Counsel for the respondent objected to the motion being heard today on several grounds:
a. The applicant has not paid the costs ordered by Black J that were due three weeks ago;
b. The applicant has still not disclosed the documents ordered by Vella J and reiterated by Black J. These documents include the applicant’s ODSP file, her tax returns, and her accountant’s file. The respondent submits that these documents likely show that the applicant represented to the government that she was separated or divorced well before 2021;
c. The applicant delivered an affidavit of her daughter just yesterday. The affidavit includes videos of the parties arguing in Farsi and the daughter’s unofficial translation. None of this is admissible evidence under s. 125 (2)(d) of the Court of Justice Act, RSO 1990 c C.43; and
d. The applicant unilaterally booked the motion on a short motion list despite Vella J. requiring it proceed as a long motion and despite Black J. suggesting that it should proceed as a form of trial.
[8] Ms. Mirhosseini explained to me that her client is not being supported by the respondent and cannot afford to pay the costs order made by Black J. She tried to reschedule the motion before the costs were due on March 23, 2024 but the respondent would not cooperate. So, for “fairness” to her client she booked the motion on the first available short motion date to try to get it before a judge as quickly as possible and without paying the costs as ordered.
[9] I am afraid that, like Black J., I find myself doubting whether counsel understands the family law process. First, the time for dealing with what costs the applicant could afford to pay was in the costs submissions before Black J. Absent an appeal, his order is in full force and must be obeyed. There is no “fairness” in trying to find a way to ignore a court order.
[10] Moreover, booking a long motion with a mass of disputed facts into a short motion time slot is not appropriate. While I could have heard the motion if I had needed to do so, that was happenstance.
[11] Ms. Mirhosseini delivered a Motion Confirmation Form representing to the court that in her professional judgment each side needed just 30 minutes to argue her six heads of substantive relief. She did note that the respondent did not consent to the motion proceeding. But she expressly represented that the motion could proceed as a short motion and she took a spot properly meant for a short motion in another deserving case. Counsel had no business taking up a time slot dedicated to a short motion.
[12] I asked Ms. Mirhosseini whether there were any other issues before the court. She said that her client needs a motion for interim support. But she has not yet brought that motion.
[13] I raised with Ms. Mirhosseini the complaints made by Ms. Mahdi with reference especially to the point that the facts are highly contested. I asked her how the court could be expected to determine the date of separation on a motion with even more conflicting affidavits today than were before Black J. She submitted that she required cross-examination (questioning) of the respondents’ witnesses to establish her client’s position. She noted, in particular, concerns with the evidence by the officiant at the parties’ alleged religious divorce ceremony in 2011 and the stark conflicts in the evidence among the parties’ adult children.
[14] Ms. Mirhosseini had previously asked Ms. Mahdi for the respondent to agree to questioning of the divorce officiant. Ms. Mahdi refused as there was no order allowing for questioning. The respondent was tactically waiting to see if the applicant paid the costs and made the disclosure as had been ordered.
[15] Ms. Mirhosseini therefore asked for an adjournment of the motion to allow for questioning. (In her Motion Confirmation Form, Ms. Mirhosseini represented that the motion was proceeding on all issues knowing of Ms. Mahdi’s position. Ms. Mirhosseini made no mention of a request for an adjournment for cross-examination.)
[16] With Ms. Mirhosseini recognizing that her motion could not proceed today, and given that she had already raised a concern about her client’s financial need, I continued the line of inquiry raised by Black J. as to whether a contested motion was the most efficient, affordable way to bring this case to resolution.
[17] Cross-examination of multiple witnesses will take months. Barring determinative documents to contradict witnesses’ testimony, chances are that even after cross-examinations, the judge who hears the motion will just have a thicker mass of conflicting testimony than already exists.
[18] Black J. was obviously correct that the judge will need to hear live witness testimony to get through the opposition among so many witnesses associated with each side.
[19] A simple example suffices – Ms. Mirhosseini expects that the applicant’s tax returns for the past decade will show that she filed as “separated” or “divorced” despite claiming in this application that she only learned of the divorce in 2021. Ms. Mirhosseini submits that this is readily explained because the accountant is a friend of the husband. But to have a judge rule that the accountant conspired with the husband to trick the applicant into lying to the government in her tax returns for a decade, will require that the accountant be called as a witness and be given an opportunity to provide his side of the story. Browne v. Dunn (1893), 6 R. 67 (H.L.) To date, the applicant has yet to even produce his file despite the order of Vella J. made nine months ago.
[20] It is apparent that what the applicant tries to bring as a motion is actually the main trial of the application. What she has not yet brought is the motion for interim support that she says she needs and is entitled to receive to tide her through to the trial.
[21] Ms. Mirhosseini agreed with this analysis and therefore asked to withdraw the long motion. But then she submitted that to move the case toward trial, the parties should proceed to cross-examination (questioning) of the non-party witnesses. Once again, this is not how the Family Law Rules work. If the motion is withdrawn, the witnesses’ affidavits will be spent. Discovery questioning is presumptively limited to the parties alone absent a court order to proceed otherwise.
[22] If the motion is withdrawn, the respondent seeks costs of the motion of almost $32,000. The missteps of the applicant will have wasted all this money. Ms. Mahdi says that the applicant is on Legal Aid so that her lawyer gets paid to launch even improper proceedings while leaving the respondent out tens of thousands of dollars with unpaid costs awards. She submits that this is a case for security for costs.
[23] It is apparent that the applicant has yet to take to heart the concerns raised by Black J. about this motion. She needs to think through what she wants and how to get there as quickly and affordably as she can within the structure of the Family Law Rules.
[24] I am not prepared to allow the motion to be withdrawn yet. Ms. Mirhosseini needs to consider the issues raised by Black J. and me and to seek instructions. She should not be held to what was an iterative discussion in the heat of the moment in court. The consequences are too stark.
[25] I am dubious that the two counsel will be able to reach a cooperative consensus on how to proceed. I am also concerned not to doom a case to endless case conferences especially where at least one side, if not both, claim economic limitations. But the parties need a case conference with a judge to find a way forward.
[26] If the motion is withdrawn, I see little answer to a substantial costs award in favour of the respondent. No cross-examination (questioning) of non-parties will remain available. Might there not be a more creative way to move the case toward resolution on its merits that utilizes some of the work already performed and time invested?
[27] The parties also need to consider support issues and the possibility of security for costs. Both of these issues will also likely involve at least some assessment of the strength of the applicant’s case.
[28] There are competing strands that need to be woven together in the interests of justice - with fairness remaining at the forefront under the Family Law Rules.
[29] In my view, the parties and a judge may be able to work out a customized process, perhaps with a hybrid trial, to get the key gating issues resolved as quickly and fairly as possible.
[30] If the motion or some variant of a summary trial perhaps is to proceed, it also needs to be properly scheduled. There can be no more last-minute affidavits with inadmissible evidence. Court orders must be obeyed and there can be no unilateral scheduling of long motions as short motions.
[31] The motion is adjourned to a case conference to be scheduled by the parties with a judge through the trial office.
[32] In my view, the steps taken by the applicant have again caused an unnecessary attendance and unnecessary expense. I am ruling only on the costs thrown away today. I expressly reserve to the judge at the case conference the remaining costs of the motion should it not go ahead. Perhaps some of it will proceed in one form or another.
[33] But today’s hearing should not have occurred. There was never a short motion to book. Moreover, booking the motion as a short motion did not give the applicant any basis to refrain from paying the costs on March 23, 2024 as ordered by Black J. This was just a wrong step.
[34] The respondent needed to prepare for the return of a long motion one day in any event. The affidavits and factum are not yet wasted. What was wasted was the respondent’s lawyer’s time dealing with the contested nature of today’s hearing, reviewing last minute materials delivered by the applicant, and preparing for and attending the hearing today.
[35] The applicant is therefore ordered to pay costs thrown away to the respondent of $7,500 all-inclusive on or before May 10, 2024. The disclosure order made by Vella J. and the order of Black J. remain in full force as well.
“FL Myers” FL Myers, J. Date: April 9, 2024