Ontario Superior Court of Justice
Court File No.: CV-22-0000201
Date: 2025-02-25
Parties
Between:
Ainsworth Management Services Inc. (Operating as ServiceMaster Clean of Durham C.S.), Plaintiff
and
Duaa Hadweh a.k.a. Diana Hadweh, Bishara Hadweh a.k.a. John Hadweh, Roberto Campos, Fabiane Campos, Melba Carbajal, Emiliano Prieto, Gabriela Noel Amuz Balari, Gabriel Gustavo Amuz, Gabriel G. Amuz, Gabriel Amuz, Iris Castillo Castro, Rodrigo Nicolas Amuz Balari, Alexandra Ramos Bausero, Gustavo Malvare, Douglas Castillo, Mainor Hidalgo Quintero, 10373184 Canada Corp., Iris Janitorial Inc., Skyline Janitorial Inc., Madra Janitorial Services Inc., Jennifer Parra a.k.a. Jenniffer Parra Acevedo, Alejandro P. Caceres a.k.a. Alex Caceres, Gustavo A. Correa, Alberto A. Cistern, David Ortiz, Gualco Maintenance & Repairs, Mag Canada, Crystal 113 Maintenance Corp., 1992064 Ontario Limited, Septiembre 1903 Janitorial Services Corporation, Elba Janitorial Services, Al Janitorial Services, 10374512 Canada Inc., Wakeem Hadweh a.k.a. Richard Hadweh, John Doe 2, John Doe 3, Rina Hadweh, Jane Doe 2 and Jane Doe 3, Defendants
Appearances:
Jonathan Kulathungam and Mariah Tianna Crudo, for the Plaintiff
Akshay Sandhir, for the Defendants, Duaa Hadweh a.k.a. Diana Hadweh and Bishara Hadweh a.k.a. John Hadweh
Heard: January 13, 2025
Reasons for Decision
C.F. de Sa
Overview
[1] The Defendant, Duaa Hadweh (also known as Diana Hadweh), seeks to vary the existing Mareva injunction that was imposed on her assets by the Order of Justice C. Boswell on February 14, 2022 (the “Mareva Injunction Order”), and subsequently confirmed by Justice C. Verner’s Order on October 13, 2022 (“Justice Verner’s Order”).
[2] The Defendant seeks to add an additional $150,000 to the existing mortgage to assist with the payment of legal fees.
[3] Additionally, Ms. Hadweh seeks an order allowing her to access her frozen bank accounts up to a maximum of $4,000 per month for the purpose of covering living expenses and debts accruing in the ordinary course.
[4] Finally, Ms. Hadweh also seeks an order allowing her to open a new bank account which will not be subject to the Mareva Order, to be used solely to deposit her future employment income.
[5] The Plaintiff maintains that an analysis of the evidence demonstrates that there has been further dissipation of assets in breach of the Mareva Order. The record also suggests that the Defendant has access to other sources of funds including her family members.
[6] While the Plaintiff will agree to renew the mortgage without an increase in the principal amount, the Plaintiff is opposed to any additional funds being advanced to the Defendant.
[7] I have considered the materials filed and the submissions of the parties. My decision and the reasons for my decision are outlined below.
Summary of Facts
The Claim
[8] In this Action, the Plaintiff claims that Ms. Hadweh, through a fraudulent scheme, (with the assistance of various Defendants) created fabricated invoices (the “Fraudulent Invoices”), fraudulently manipulated the Plaintiff’s payroll to the benefit of her husband and children and caused the Plaintiff to make improper payment of upwards of $3,000,000.00 to her and/or her co-conspirators.
[9] The Plaintiff alleges that Ms. Hadweh created the Fraudulent Invoices in the name of various defendant corporations for fictitious subcontract cleaning services. None of these services were provided by the defendant corporations. Ms. Hadweh arrived at the office of the defendant corporations and would deliver a fraudulent cheque drawn on the Plaintiff’s account made payable to the defendant corporations. She would then be paid a percentage of the value of the cheque in cash by a defendant corporation. Ms. Hadweh did so over a period of 10 years, and such cheques amounted to millions of dollars.
The Mareva Order
[10] The Plaintiff commenced the within action on February 11, 2022 and brought a motion on an ex parte basis seeking an interim injunction. The motion was heard by Justice Boswell who granted the injunction on February 14, 2022. Justice Boswell explained:
The record establishes to the strong prima facie case standard that Ms. Hadweh engaged in a practice of falsifying invoices…for work they did not perform. She then approved those invoices in her capacity as the operations manager and submitted them for payment. …it is clear at least to the strong prima facie case standard, that she deprived ServiceMaster of large sums of money through fraudulent means.
[11] The Mareva Order was granted on February 14, 2022 freezing Ms. Hadweh’s assets up to $2,000,000.00, whether or not solely or jointly owned or in her own name.
[12] Ms. Hadweh brought a motion to set aside the Mareva injunction, which was heard on October 7, 2022 by Justice Verner. The Motion to Set Aside was dismissed. Justice Verner ordered the continuance of the Interim Injunction and awarded costs to the Plaintiff in the amount of $35,000 (which did not include any costs for the initial injunction motion, nor costs for the cross-examinations – both reserved for the trial judge). Ms. Hadweh has not made payment towards the costs award of Justice Verner.
[13] In Justice Verner’s decision, she explained:
Not only do I agree with Justice Boswell’s conclusions based on the evidence that was before him, but since the release of his Endorsement, the Plaintiff’s case has become stronger.
First and foremost, the Defendant cannot account for the money in her bank accounts… In fact, her evidence falls far short of being able to explain the money flow into her bank accounts. …
In addition to the Defendant’s inability to explain the money in her bank accounts, the Plaintiff’s case was also strengthened by text messages. The Defendant admitted to sending the following texts. It supports a finding that the Defendant was asking “Lulu” to cover up her action, which in turn is evidence she acted inappropriately.
The Current Motion
[14] Duaa Hadweh has now brought a motion requesting the Court to allow her to refinance her home, 92 Rex Tooley Lane, Courtice, Ontario (“92 Rex Tooley” or “the Matrimonial Home”) which she jointly owns with her husband, Bishara Hadweh to add an additional $150,000 to the existing mortgage to assist with the payment of legal fees. Bishara would also like to draw $100,000 for his share of the equity in the Matrimonial home.
[15] The funds used to purchase the Matrimonial home did not originate from any source related to the Plaintiff’s allegations. The house was purchased with the proceeds from the sale of the previous matrimonial home.
[16] Additionally, Ms. Hadweh seeks an order allowing her to access her frozen bank accounts up to a maximum of $4,000 per month for the purpose of covering living expenses and debts accruing in the ordinary course.
[17] Ms. Hadweh also seeks an order allowing her to open a new bank account which will not be subject to the Mareva Order, to be used solely to deposit her future employment income. Once she obtains employment, she intends to reduce the amount drawn from her accounts.
[18] Ms. Hadweh relies on paragraph 4 of the Mareva Injunction Order which provides as follows:
THIS COURT ORDERS that as otherwise may be permitted by paragraph 3 herein, Duaa Hadweh aka Diana Hadweh may apply for an order, on at least twenty-four (24) hours [sic] notice to the Plaintiffs, specifying the amount of funds which she is entitled to spend on ordinary living expenses and legal advice and representation.
[19] Ms. Hadweh maintains that she has no assets available except for those frozen by the Mareva injunction. For nearly three years since the injunction was granted, her husband and children have supported her living expenses and legal expenses. However, they have now exhausted their personal savings and can no longer provide financial assistance.
[20] Additionally, as Ms. Hadweh’s husband and children have also been impleaded as Defendants in this litigation, Ms. Hadweh maintains that her family are also facing their own legal expenses, which makes it impossible for them to support her. Without her family’s financial support, Ms. Hadweh maintains that she is in a situation where she cannot carry her living expenses let alone her litigation expenses.
[21] Examinations for Discovery are yet to be scheduled since the Plaintiff is seeking to amend its pleading for the second time since obtaining the Mareva injunction. According to Ms. Hadweh, this delay further exacerbates the financial strain on the Hadweh family.
[22] Furthermore, Ms. Hadweh has traced the source of the assets which undermines any proprietary claim the Plaintiff may advance over the Matrimonial Home. Given the circumstances, the balance of competing interests favours varying the injunction orders to allow Ms. Hadweh access to her frozen assets for living expenses and legal costs.
[23] If the Mareva Injunction Order is not varied, it is inevitable that the Bank of Montreal will pursue possession of the Matrimonial Home, resulting in extreme hardship for the entire family.
Concerns Raised by the Plaintiff
[24] The Plaintiff maintains that an analysis of the evidence demonstrates that there has been further dissipation of assets in breach of the Mareva Order. The record also suggests that the Defendant has access to other sources of funds including her family members.
Alleged Misconduct/Breaches
i) The Line of Credit on the Hadweh House
[25] After the Mareva was issued, the balance owed under a joint line of credit in the name of Mr. and Ms. Hadweh secured against the Hadweh house (“LOC”) has ballooned from approximately $198,000.00 to $360,000.00.
[26] The Hadweh house is a jointly owned asset and is clearly the subject of the Mareva Order. Monies drawn on the LOC is therefore in direct breach of the Mareva Order.
[27] The affidavit material submitted by the Hadweh family was silent as it relates to the LOC and does not mention money being drawn on the LOC.
[28] The Plaintiff submits that this is a clear breach of the terms of the Mareva Order. Ms. Hadweh maintains that these funds were drawn by Mr. Hadweh and were permitted because he owns half the house. Accordingly, Ms. Hadweh submits this conduct does not amount to a breach of the Mareva Order.
ii) Income from Lightning Cleaning
[29] The Plaintiff takes the position that an inference should be drawn that Ms. Hadweh is operating and profiting from Lightning Cleaning. The Plaintiff submits that William, who works 40 hours a week at Bell for the past year, is likely not the party who is operating Lightning Cleaning, but it is in fact Ms. Hadweh who had business cards created wherein she is listed as the Director.
[30] Lightning Cleaning is thriving, receiving payment on $225,857.45 of invoices between 2023 and 2024, and receiving inflows to its RBC account in the amount of $157,746.68 between February 2024 and December 2024.
[31] The Plaintiff argues that instead of paying for legal fees and expenses from Lightning Cleaning, Ms. Hadweh has chosen to do so through the LOC in an effort to further dissipate her assets and put them out of reach of the Plaintiff.
iii) Transferring Funds to Undisclosed Accounts
[32] According to the Plaintiff, Ms. Hadweh has also breached the Mareva Order by paying significant monies towards various credit cards, and transferring funds to an undisclosed account in January of 2024 when BMO closed her account.
[33] Given the Mareva Order, Ms. Hadweh was told by BMO that she was required to close her accounts at BMO Bank. Ms. Hadweh could have simply sought the consent of Plaintiff’s counsel to transfer her monies from her BMO accounts to a new account. Instead, on January 22, 2024 she transferred more than half of the approximate $44,000 dollars to two unknown accounts (one of which is alleged to be her husband’s account) and made payment towards at least four separate credit cards in the amount of $15,000.00.
[34] Six months later, in July, Ms. Hadweh opened an account with RBC, and deposited $44,000 into the RBC account. This transfer was only disclosed to the Plaintiff after cross-examinations were conducted. The Plaintiff submits that this is an example of Ms. Hadweh trying to cover her tracks and conceal her financial activity and breach of the Mareva Order.
[35] Ms. Hadweh acknowledges that the withdrawal from the BMO account was in breach of the Mareva Order. However, according to Ms. Hadweh, this wrong was addressed by returning the money to the RBC account.
iv) Lifelong Account
[36] On March 1, 2022, Ms. Hadweh served the Plaintiff with a motion record listing her bank accounts and assets in the Hadweh Affidavit sworn on March 1, 2022. The Plaintiff maintains that Ms. Hadweh misled the Court as she did not include account PL0092 with Lifelong Capital (Lifelong).
[37] Records relating to this Lifelong Account indicate an initial investment date of April 1, 2021 in the amount of $120,000 (the “Lifelong Account”). The records also suggest that Ms. Hadweh operated the Lifelong Account and withdrew $100,000 from the account on November 15, 2023.
[38] Ms. Hadweh does not acknowledge that she owns any account or asset other than those listed in the Hadweh Affidavit. Lifelong also takes the position that Ms. Hadweh never opened an account with them, and the records relate to discussions about a possible account that was never opened. It was through a computer error that these records were produced.
[39] Ms. Hadweh maintains that her sister, Rania, was looking to immigrate to Canada with her family. In January 2021, Rania wanted to transfer money to Ms. Hadweh to invest on her behalf (towards the eventual purchase of a home). After several discussions, Ms. Hadweh agreed to invest the funds on her behalf. While she agrees that she completed an initial Subscription Agreement with Lifelong, Ms. Hadweh denies she ever had funds with the company.
[40] The Plaintiff intends to further investigate the matter and has a contempt motion currently scheduled relating to the Lifelong account.
Alternate Sources of Funds
[41] Mr. Hadweh earned between $55,000 and $58,000 in 2022 and 2023. Ms. Hadweh maintains that he alone is able to cover most of the household expenses and can pay 70% of the mortgage payment with his income. Mr. Hadweh also stated that the current sum for mortgage payments, grocery and utility bills is only approximately $4,000.00 per month.
[42] The evidence of Mr. Hadweh is that his three adult children (including Rina), who are all gainfully employed and reside at their parents’ home, are contributing approximately a collective amount of $2,000 per month, or around $20,000 per year since 2022.
[43] Wakeem has provided more than $100,000.00 towards the legal fees of Ms. Hadweh, with these monies being drawn from his BMO and TD accounts. Mr. Hadweh agreed with this total and that Rina has contributed towards legal fees. He estimates that his children together have contributed $130,000 – $140,000 towards the legal fees.
[44] According to the materials filed, the children have also paid more than $230,000 towards credit cards.
[45] William provided evidence that, through his cleaning corporation (“Lightning Cleaning”), $5,000 – $10,000 has been paid towards the legal fees of Ms. Hadweh.
Payment of Legal Fees
[46] As an answer to an undertaking, counsel for the Hadwehs produced payments received for legal fees in this proceeding:
| Date | Payment by | Amount | Corresponding Note |
|---|---|---|---|
| March 16, 2022 | Mr. Hadweh | $25,000 | $36,000 drawn from LOC March 4 – 14, 2022 |
| May 13, 2022 | Mr. Hadweh | $25,000 | $37,000 drawn from LOC April 20 – May 13, 2022 |
| June 9, 2022 | Mr. Hadweh | $25,000 | $38,000 drawn from LOC May 20 – June 9, 2022 |
| August 24, 2022 | Mr. Hadweh | $15,000 | |
| Oct 3, 2022 – Jun 23, 2023 | Wakeem | $40,120 | 13 installments of $3,000 per, plus one payment of $1,200 |
| Jul 23, 2023 – Dec 17, 2024 | Lightning Cleaning | $23,912.75 | 13 payments |
| Total | $154,032.75 |
[47] The Hadweh family’s evidence is that the children were the ones who were paying for the legal fees of Ms. Hadweh, however, the records disclosed demonstrate that the majority of the legal fees have been paid from the cash advances obtained from the LOC.
Analysis
The Test for Varying a Mareva Injunction
[48] A party seeking to vary a Mareva injunction has the onus of proving that they have no assets, other than those frozen, available for legal fees or living expenses. A requirement of meeting this onus is that they must be candid about their ability to obtain funds from various sources: HMQ v. Madan, 2020 ONSC 8093, at paras 16-17.
[49] In Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, [2003] O.J. No. 40 (S.C.J.), Justice Molloy summarized the applicable test at para. 26 as follows:
(i) Has the defendant established on the evidence that he has no other assets available to pay his expenses other than those frozen by the injunction?
(ii) If so, has the defendant shown on the evidence that there are assets caught by the injunction that are from a source other than the plaintiff, i.e. assets that are subject to a Mareva injunction, but not a proprietary claim?
(iii) The defendant is entitled to the use of non-proprietary assets frozen by the Mareva injunction to pay his reasonable living expenses, debts and legal costs. Those assets must be exhausted before the defendant is entitled to look to the assets subject to the proprietary claim.
(iv) If the defendant has met the previous three tests and still requires funds for legitimate living expenses and to fund his defence, the court must balance the competing interests of the plaintiff in not permitting the defendant to use the plaintiff's money for his own purposes and of the defendant in ensuring that he has a proper opportunity to present his defence before assets in his name are removed from him without a trial. In weighing the interests of the parties, it is relevant for the court to consider the strength of the plaintiff's case, as well as the extent to which the defendant has put forward an arguable case to rebut the plaintiff's claim.
[50] Regardless of whether the frozen assets are proprietary or not, the first inquiry is always the same – has the defendant established that he/she has no other assets from which to pay the expenses? Waxman v. Waxman, 2007 ONCA 326, para 38.
[51] As noted above, the defendant must establish “on the evidence” that he has no other assets: Credit Valley at para. 26.
[52] It should also be remembered that a Mareva injunction is an equitable remedy granted under the Superior Court’s inherent jurisdiction when it is just and convenient to grant such an order (see s. 101 of the Courts of Justice Act). Therefore, varying a Mareva order is also discretionary relief.
[53] Where full disclosure has not been made of relevant and material evidence, this court retains the jurisdiction to exercise its discretion to dismiss the motion. The court should not have to speculate on the moving party’s assets and liabilities: Trade Capital v. Peter Cook, 2015 ONSC 7776, para 21.
Application to the Facts of this Case
[54] Ms. Hadweh has sworn under oath that her family is unable to provide her with further financial support and has refused to contribute to her financial needs.
[55] I am not satisfied that the Defendant has established that she has no other assets from which to pay the expenses.
[56] Ms. Hadweh’s three adult children (including Rina) are all gainfully employed, reside at their parents’ home and have been contributing a collective amount of approximately $2,000 per month, or around $20,000 per year, since 2022. They have agreed that they would assist to the extent they are able to.
[57] Mr. Hadweh has also acknowledged in his cross-examination that his children have contributed $130,000 – $140,000 towards the legal fees. Mr. Hadweh and the children (Wakeem and Rina) will continue contributing to the legal fees given that they themselves are now also engaged in the litigation and represented by the same counsel.
[58] Ms. Hadweh herself has not been working. If she were to work, this would also provide an additional source of income.
[59] Most significantly, the Defendant has failed to show the transparency that this court requires to satisfy it that the other financial resources of the Defendant have been accounted for. She has also clearly breached the terms of the Mareva order.
[60] Lightning Cleaning is thriving, receiving payment on $225,857.45 of invoices between 2023 and 2024, and receiving inflows to its RBC account in the amount of $157,746.68 between February 2024 and December 2024. In the circumstances, Ms. Hadweh likely has access to these funds and has failed to disclose this fact.
[61] Justice Verner outlined the Plaintiff’s legitimate concern that Ms. Hadweh would dissipate her assets if the Mareva Order was varied:
…I agree with Justice Boswell that the fact there is a prima facie case that the Defendant has defrauded the Plaintiff of large sums of money over a period of years is sufficient for grounds to believe she will dissipate her assets if she has access to them. Her bank records provide further grounds for believing she will dissipate her funds. Her balances decreased before the injunction was put in place, such that despite having deposited over $800,000 over and above her employment income during the investigation period, there is only a total of $84,000 left in her accounts. The bank records also reveal that she enjoys gambling.
[62] If the Mareva Order was varied as requested by the Defendant, I am satisfied that Ms. Hadweh will further dissipate the assets which have been frozen. Indeed, there would be no incentive for Ms. Hadweh to seek employment if she were granted access to the frozen funds in the manner that is sought.
[63] I will permit Ms. Hadweh to open a new bank account which will not be subject to the Mareva Order, to be used solely to deposit her future employment income. The records for this account are to be disclosed to the Plaintiff on a monthly basis.
[64] I am also prepared to allow for some funds to be drawn from equity in the home to pay the outstanding legal fees given that Mr. Hadweh retains equity in the home. Before I allow for this, however, I would like some additional evidence regarding the actual equity remaining in the home as well as an outline for the legal fees that are required to be paid immediately.
[65] The matter is to return before me on a date to be scheduled with the trial coordinator to address these issues.
[66] I will receive costs submissions from the Plaintiff within three (3) weeks of the release of this decision. The Defendant has two (2) weeks thereafter to respond.
Justice C.F. de Sa
Released: February 25, 2025