Court File and Parties

Court File No.: FC-21-636-00

Ontario Superior Court of Justice Endorsement

Applicant(s): Albert Naguib Counsel: Applicant acting in person - Harrison Notkin (Agent only)

Respondent(s): Nancy Ibrahim Counsel: Serena Lein

Respondent(s): Fedal Beshara and Violet Faltaous Counsel: Amit Dror

Date: March 18, 2024

[1] The Applicant filed a 14B motion requesting the following relief: The Applicant is seeking an adjournment of the Trial Scheduling Conference (“TSC”) scheduled for March 22, 2024, before Justice Bruhn. He also seeks leave for a second Settlement Conference (“SC”), alleging there is significant disclosure required from the Respondent and expert reports need to be filed. In addition, he seeks costs of $700.

[2] The Respondent Nancy Ibrahim responds, seeking orders that all of the Applicant’s requested relief be dismissed with costs awarded to her in the amount of $1,500. This Respondent also seeks leave to file additional pages (13 inclusive of exhibits, single-spaced).

[3] In the alternative, this Respondent seeks an order that the 14B motion before the court be heard via teleconference or virtual ZOOM attendance prior to the TSC scheduled on March 22, 2024.

[4] In the event the TSC is adjourned as requested by the Applicant, this Respondent seeks an order dispensing with the Applicant’s consent for the Respondent to travel with the children from July 13 to 21, 2024 inclusive or an order scheduling a motion to be heard in respect of this issue on an expedited/urgent basis.

[5] Finally, this Respondent seeks an order compelling the Applicant to attend questioning in-person on March 28, 2024.

[6] The other Respondents have not filed any materials regarding the motions before this court.

History of the Litigation

[7] A review of the online file indicates the following:

1. The Application was issued on April 13, 2021.
2. The original Answer was filed on July 23, 2021.
3. The Application was amended on March 13, 2023, to add parties, permitted by court Order of January 20, 2023.
4. The Amended Answer was filed on September 13, 2023.
5. The Answers of the added parties were filed on October 18, 2023.
6. On August 5, 2021, Himel, J. dismissed an urgent motion by the Applicant, on the basis that the motion did not meet the test for urgency as there had been no Case Conference. The process to be ready for an urgent Case Conference was provided for the children’s issues.
7. On August 31, 2021, the Case Conference was held before Vallee J. That court expressed very strong concern about the extreme degree of fighting in the presence of the children.
8. On October 12, 2021, MacPherson, J. granted a consent Order brought by a 14B motion. It provided for the parents to continue parenting the children within the matrimonial home with a nesting arrangement on alternate weekends.
9. On August 29, 2022, Bennett J. dismissed a 14B request by the Respondent for an urgent Case Conference or Motion. The court noted that the parties have engaged in mediation with an experienced mediator and have participated in a section 30 assessment conducted by an experienced assessor. The court described the children as “through no fault of their own, caught in the middle of their parent’s conflict.” The current situation within the home was described as “a recipe for disaster.” There was a strong recommendation for ADR, in the absence of which a Case Conference was to be scheduled with a recommendation that the parties secure a motion date to closely follow the Case Conference.
10. The first Settlement Conference was held on January 20, 2023. After conferencing the issues, the matter was stood down to allow the parties to confer and explore a possible consent Order, but the parties then advised that a consent could not be reached. A settlement meeting was agreed upon for January 23 with the hopes of resolving some of the issues. To be noted, when the court enquired about a consent/Minutes on disclosure, counsel advised that they were confident that the parties would be able to resolve this issue amongst themselves. A motion date of February 8, 2023 was acknowledged, and provisions were made to abridge the timelines to enable this motion to proceed, initiated by the Respondent, and cross-motioned by the Applicant, on the issues of exclusive possession and temporary parenting time.
11. Justice Bruhn specifically noted that “this is a high conflict matter. The parties continue to reside, separate and apart, in the matrimonial home. The children have been exposed to a significant amount of conflict between the parties. This matter should proceed to trial in the May 2023 sittings.”
12. The Matter was adjourned to April 13, 2023 for a TSC, to complete the TSEF, targeting the May 2023 sittings. Leave was granted for questioning to be arranged between counsels prior to the TSC. Leave was granted to the Applicant to amend his Application to add further property claims, if necessary.
13. On April 11, 2023, the Applicant filed a 14B motion requesting an order adjourning the TSC set for April 13, 2023 to a date for this event to be heard in September or October, 2023 and for an order removing the matter from the May 2023 trial list and placing it on the November 23 trial list. The court granted this Order on consent to enable the parties more time to complete the amendment of pleadings and the exchange of disclosure and to participate in further settlement discussions. The court noted that the matter must move forward to a resolution in a timely manner either by way of a negotiated settlement or by way of a trial.
14. Notwithstanding the adjournment of the TSC and trial, the trial in November 2023 was marked PEREMPTORY on both parties.
15. On April 13, 2023, at a brief Case Management Conference, the court was apprised that the maternal grandparents had been added as parties. The matter was adjourned to a Settlement Conference on September 14, 2023 to enable the newly added parties to participate in a Settlement Conference. The matter remained on the November 2023 trial list. The court reminded the parties that any expert reports which a party was relying upon at trial must be served and filed no less than six days before the scheduled Settlement Conference.
16. On August 28, 2023, MacPherson J. granted a consent Order which provided for the Applicant to receive a stipulated non-characterized payment, he would vacate the matrimonial home and have stipulated parenting time with the children, then aged 14 and approaching seven years of age. It appears that this Order referenced a partial resolution achieved a number of months earlier as it also vacated the motion referenced in paragraph 10, above.
17. On September 14, 2023, the second Settlement Conference was held (the first such event including the added Respondents). Counsel advised that the Applicant and Respondent were close to a final resolution on the parenting issues, but more disclosure was needed to be provided to resolve the financial issues. After a breakout session, counsel advised that they had a consent on the disclosure issues that were not yet reduced into writing), although they needed more time to work on a consent/minutes on the parenting issues. RFIs were to be exchanged and responses provided within an agreed-upon time frame. The parties were encouraged to consider mediation or mediation/arbitration in an effort to obtain a more timely and costly effective resolution of this matter.
18. That court granted an Order adjourning the TSC to a date to finalize a TSEF, targeting the May 2024 trial sittings.
19. On November 14, 2023, Bennett J. granted a consent Order requiring the Applicant and the added Respondents to exchange a RFI by October 16, 2023 and responding by November 30, 2023.

The Applicant’s Motion

[8] The Applicant submits that an adjournment of the March 22, 2024 TSC is required as there remains significant outstanding disclosure from all parties involved and that the expert reports cannot be completed until the exchange of full disclosure and subsequent questioning of the parties, being essential steps that require completion.

[9] The Applicant indicates that he has retained an expert to review the Respondent’s disclosure. He states that her thorough examination and potential need for additional disclosure require time, underscoring the necessity for an adjournment.

[10] He also indicates a need to secure another expert to complete an income analysis of the Respondent’s “true income” which remains unestablished due to pending disclosure from the Respondent. He states that the Respondent’s income report is outdated and inaccurate and alleges that she has siphoned a large quantity of money from her Corporation during the marriage to her parents. He states his entitlement to a significant spousal support entitlement and if no proposal is received, a motion will be scheduled on that issue.

[11] An exchange of correspondence between counsel is appended as exhibits to the Applicant’s affidavit. In the Respondent’s counsel’s letter, there is a request for the Applicant’s response to a travel request and a draft Parenting Plan. The Applicant’s affidavit does not address these issues.

The Respondent’s Motion

[12] The Respondent comments on the ongoing delay in this matter reaching a trial date, noting that the matter commenced in April 2021.

[13] She implies that the Applicant had travel plans to Rome, necessitating him foregoing parenting time and likely being the cause for him not being prepared to proceed with the TSC.

[14] The Respondent submits that she has responded to RFIs dated in January, September, and November, 2023 and that no deficiencies in disclosure were communicated. Two and a half months later, a further RFI was served together with a request to adjourn the TSC. This last RFI was responded to on February 27, 2024. In addition, the added Respondents provided disclosure on November 30, 2023.

[15] The Respondent alleges the Applicant has not completed his disclosure and that the disclosure received was delivered in a disorganized manner but that she wishes to proceed with questioning. She maintains that the only added disclosure requested by her was proof of the Applicant’s 2023 and 2024 income.

[16] The Respondent indicates that she is prepared to move to trial (questioning and pre-trial motion(s) if necessary, adverse inferences, etc.) to seek closure for the parties and the children.

[17] She also states that her Income Report was initially received in January 2023 with an updated Report for the year 2022 received by him in September 2023.

[18] It is also alleged that the Applicant retained Mr. Silverberg as an Income valuator who delivered a RFI last summer. On November 30, 2023, the Applicant produced Mr. Silverberg’s Acknowledgement of Expert’s Duty and a copy of his CV, but no expert report has been received to date.

[19] Requested disclosure was forwarded by the Respondent to the newly retained expert on February 16, 2024.

[20] Further comments are provided by the Respondent concerning allegations of improper conduct by the Applicant in lodging a complaint against her with the College of Physicians and Surgeons, appealing that decision and serving her with a Statement of Claim against her, her medical corporation and medical centre where she practices, seeking substantial damages. She also notes the absence of any child support payments from the Applicant over the 10 months since he vacated the matrimonial home pursuant to a consent Order.

[21] The parenting issues remain unresolved despite the exchange of a number of versions of parenting plans.

[22] A request for a travel consent, sent on February 8, 2024 is without a response.

[23] The Respondent quotes Mr. Hurwitz, in his section 30 Report that “the Applicant is attempting to annihilate her relationship with the children.”

[24] Contrary to the Order of Justice Bruhn dated January 20, 2023, questioning that was to be completed prior to the TSC, has not been scheduled.

[25] The Respondent files another affidavit dated on February 28, 2024, apparently in response to the Applicant’s RFI dated February 16, 2024.

Analysis

[26] The parties and their respective counsels (whether on the record or acting as agent) are hereby put on alert. There are Family Law Rules that have been in place since 1999. These rules govern the conduct of family law matters that come before the court. They govern all aspects of a case including 14B motions that these parties use to facilitate their whims from time to time notwithstanding that their usage of Rule 14(10) is not procedural, uncomplicated or unopposed. In fact, their usage of this Rule is an abuse of the court and must cease. They are forewarned that further breaches of this Rule will be met with costs sanctions under Rule 24(9) and they should note that those sanctions apply equally to counsel and agents.

[27] These Rules are quite informative. Reading of them is strongly recommended.

[28] Rule 2 sets out the primary objectives of the Family Law Rules. A review is in order.

Primary objective

(2) The primary objective of these rules is to enable the court to deal with cases justly. O. Reg. 114/99, r. 2 (2) .

Dealing 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. O. Reg. 114/99, r. 2 (3) .

Duty to promote primary objective

(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. O. Reg. 114/99, r. 2 (4) .

Duty to manage cases

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial; (b) encouraging and facilitating use of alternatives to the court process; (c) helping the parties to settle all or part of the case; (d) setting timetables or otherwise controlling the progress of the case; (e) considering whether the likely benefits of taking a step justify the cost; (f) dealing with as many aspects of the case as possible on the same occasion; and (g) if appropriate, dealing with all or any part of the case without requiring parties, witnesses or lawyers to attend in person on the basis of written documents or by using telephone or video technology, by way of an order under clause 1 (7.2) (i) or (i.1). O. Reg. 114/99, r. 2 (5) ; O. Reg. 152/21, s. 2.

[29] A simple summary is that the parties and their counsels (including agents) join with the court to promote the primary objectives of the Rules. My review of the file reflect that the parties and their counsels have abdicated their roles in proceeding in a self-serving manner, thereby infringing the rights of the other cases attempting to gain access to justice.

[30] There have been numerous court Orders granted in the three years that this case has existed. There has been scarce compliance. In the words of Justice Quinn, in Gordon v Starr, 2007 CarswellOnt 5438:

Court orders are not made as a form of judicial exercise. An order is an order, not a suggestion. Non-compliance must have consequences. One of the reasons that many family proceedings degenerate into an expensive merry-go-round ride is the all-too-common casual approach to compliance with court orders.

[31] The Trial Scheduling Conference will proceed, as scheduled. The TSEF shall be forwarded to the court, in Word format, appended to the respective Confirmations. It is irrelevant if the parties feel that the case is ready to proceed or not. Too many consent Orders and Orders imposed on the parties by the court have been ignored. This decision is made for several reasons:

1. There is no valid explanation tendered regarding when the Applicant retained his experts. It appears that his affidavit has been crafted to be evasive on this issue. What happened to Mr. Silverberg, who submitted his qualifications and compliance with his required Acknowledgment?

2. The Applicant threatens to bring a motion for spousal support. Why has he not done so if he feels there is entitlement? Motion dates are not available until after the trial sittings in May when this matter is expected to proceed. Why does he implicitly believe that the trial will not proceed? As an aside, with all of the litigation concerning what the parties perceive to be in the best interests of the children, why has there been no payment of child support?

3. If the determination is made by the presiding justice at the TSC to consider an adjournment, perhaps the parenting issues should proceed to afford the children some finality. Perhaps an adjournment of the financial issues should be predicated upon a resolution of the parenting issues.

4. If a “critical batch” of disclosure was received in late December, why has it not been considered in over two months?

5. The Applicant submits that more disclosure is needed. He submits that the next event should be a Settlement Conference. These submissions are at odds with one another. The Applicant is non-compliant with the rule governing Settlement Conference proceedings, most of which are mandatory. Both parties are claiming deficient disclosure. There have already been two Settlement Conferences. I quote Justice Jarvis in Ni v. Yan, 2020 ONSC 5941 at paragraphs 8, 9 and 12:

   [8] Family law litigants are entitled to one settlement conference unless otherwise permitted by the case management judge. They are expected to come to that conference fully compliant with all the Family Law Rules. A settlement conference should not be the forum to dispute and adjudicate upon disclosure issues where there are numerous items in dispute the relevance and proportionality of which can only be determined by a motion. To hold a settlement conference otherwise is a complete waste of the court’s valuable time and the parties’ resources. Either parties come to a settlement conference prepared to discuss settlement confident that they have as much relevant information as obtainable to assist them or they come unprepared. The parties in this case are clearly unprepared. Non-compliance with the above Rules is evidence of that. None of the Rules is permissive.

   [9] It is inconceivable that a party who raises serious disclosure shortcomings can make an informed settlement decision or that a lawyer can competently give settlement advice to such a client. A settlement conference is not a disclosure dartboard.

   [12] The parties are entitled to one settlement conference unless otherwise ordered. Either they comply with their disclosure obligations, bring a disclosure motion if they are dissatisfied with the other’s disclosure and comply with the Family Law Rules or their day in court will not happen any time in the near future. A settlement conference can serve many purposes. Serialized mediation is not one of them.

6. The most recent RFI was served by the Applicant on February 16, 2024. Where is the motion seeking leave to breach the Order of Justice Bennett on November 14 where it was ordered that the parties exchange a RFI by October 16, 2023 and respond by November 30, 2023?

7. Why has the Applicant chosen to ignore the request for a travel consent that was forwarded to him on February 8?

8. Why has the Applicant allegedly not responded to the requests for a response to the Parenting Plan proposals?

[32] The Respondent complains about “woefully and incomplete” disclosure received from the Applicant on November 30, 2023. In view of the background and allegations of delay and numerous judges commenting upon the high conflict nature of this case, where is the motion to compel full disclosure?

[33] Leave for questioning was granted by Justice Bruhn 14 months ago, to occur prior to the TSC. Why is it appropriate to provide eight days notice to the Applicant to attend questioning? Is that further evidence of a high conflict case or just a lack of civility? Why was the request for an attendance for questioning not arranged immediately following the September 14, 2023 attendance at court? The request for a court order compelling attendance for questioning on an eight day turnaround is dismissed.

[34] The Respondent requests that the 14B motion be converted into a motion argued in court? Motion dates are currently available in June as the trial sittings occupy much of the month of May. Why should the parties be able to jump the queue ahead of other parties awaiting a motion date on much more serious issues?

[35] The 14B request for a travel consent is dismissed. It is not urgent. Seemingly, this has been the judicial response to numerous 14B motions brought by the parties in this case. An urgent motion within a court proceeding contemplates issues such as abduction, threats of harm and dire financial consequences. As required by the principles found in Rosen v. Rosen, [2005] O.J. No. 62, there has been no evidence (other than one letter) that demonstrate the parties have engaged in settlement discussions to try and resolve this issue. There has been no inquiry made as to available conference dates to deal with this matter. The filed material does not state any information regarding the destination of the travel. The Respondent’s affidavit does contemplate a pre-trial motion if necessary. Where is that “pre-trial” motion date coming from? If the intended travel is in July, why not book the motion now while dates are available?

[36] It is recommended that the Respondent serve an Offer to Settle setting out the intended travel plans, including dates of departure and return and destination and a willingness to have the children contact the Applicant for a mid-week telephone call in their absence. If a motion is required, it should set out all of the details of prior refusals for travel that are alluded to without specifics. The Applicant is forewarned that absent a valid reason for refusing his consent, the potential costs consequences may result in his paying for the vacation.

[37] There will be no more motions scheduled in this matter (other than for the travel consent issue addressed herein) without leave of the court.

[38] In summary, both 14B motions are dismissed. The TSC is to proceed as scheduled.

[39] For all of the reasons discussed above, there will be no costs. Costs are not designed to reward one party for not breaching as many court Orders as the other party.

The Honourable Justice R. Kaufman