



COURT OF APPEAL FOR ONTARIO

CITATION: Nashid v. Michael, 2013 ONCA 638

DATE: 20131022

DOCKET: C57046

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Nabila Nashid

Appellant (Applicant)

and

Waheed Michael

Respondent

Granville N. Cadogan, for the appellant

Avra Rosen, for the respondent

Heard: October 15, 2013

On appeal from the order of Justice K.V.W. Whitaker of
    the Superior Court of Justice, dated April 5, 2013.

ENDORSEMENT

[1]

The appellant appeals from the order of Whitaker J. of the Superior
    Court of Justice (the Motion Judge), dated April 5, 2013, dismissing her
    motion to set aside the judgment of Kruzick J. of the Superior Court of Justice
    (the Trial Judge), dated May 18, 2012, in an undefended matrimonial trial
    (the Matrimonial Trial).

[2]

The appellant raises four grounds of appeal.  She argues that: (1) after
    she was found in contempt of various court orders by order of Herman J. of the
    Superior Court of Justice, dated April 5, 2011, (the Contempt Order), she was
    denied procedural fairness because the Matrimonial Trial proceeded without
    notice to her and in her absence; (2) she has, in fact, purged her contempt;
    (3) the Matrimonial Trial proceeded without disclosure to the Trial Judge of
    what the appellant describes as her then pending motion to set aside the
    order of Herman J., dated February 3, 2012, striking the appellants pleadings
    in the matrimonial litigation (the Strike Order) due to the appellants continuing
    contempt of various court disclosure orders; and (4) the respondent failed to
    make full and frank disclosure of his financial affairs and of the appellants
    allegedly pending motion to the Trial Judge.

[3]

We conclude that these grounds of appeal must be rejected and the appeal
    dismissed.

[4]

The litigation between the parties has been acrimonious and protracted. 
    It has resulted in numerous court motions and multiple court orders against the
    appellant, the full details of which need not be set out in these reasons.  The
    following aspects of the litigation history are particularly pertinent:

1)

by
    three separate court orders dated April 7, 2011, May 26, 2011 and June 28, 2011
    (two of which were on consent), Herman J. directed the appellant to make
    various types of financial disclosure and effect various property transfers
    (the Disclosure Orders);

2)

by
    the time of the hearing of the contempt motion on July 28, 2011, the appellant
    had failed to fully comply with the Disclosure Orders.  She had also failed to
    pay several outstanding costs orders against her, then totalling $6,500;

3)

the
    appellants continuing non-compliance with her court-ordered obligations led to
    the Contempt Order.  In her reasons for the Contempt Order, Herman J. concluded
    that the appellants acts of non-compliance were deliberate and wilful, not
    trivial and involved significant matters in the litigation;

4)

nonetheless,
    Herman J. provided the appellant with one final opportunity to comply with the Disclosure
    Orders and purge her contempt, by August 31, 2011.  The appellant failed to do
    so without adequate excuse and also failed to attend multiple court hearings
    related to the matter.  The Strike Order followed on February 3, 2012;

5)

under
    the Strike Order: (1) the respondent was granted leave to proceed with an
    undefended trial
after March 31, 2012
; and (2) the appellant was
    granted leave, on terms, to apply to the court,
prior to March 31, 2012
,
    to set aside the Strike Order;

6)

the
    appellant appealed the Contempt Order to this court.  Her appeal was adjourned,
    at her own request.  This court ordered that after March 31, 2012 (the outside
    date by which the appellant was to purge her contempt and move to set aside the
    Strike Order), the appellant could bring her appeal back on by May 31, 2012. 
    Costs were awarded in favour of the respondent;

7)

the
    appellant attempted to schedule a motion to set aside the Strike Order before
    March 31, 2012.  However, she was unable to set the motion down because the
    court file had gone missing;

8)

counsel
    for the respondent did not hold the appellant to the March 31st date.  She
    agreed to two subsequent dates for the motion and later indicated her
    availability on a third date  May 17, 2012  to argue the motion;

9)

no
    scheduled motion proceeded on any of these dates.  The appellant failed to file
    a factum for the motion or to serve and file a return of motion in accordance
    with the
Family Law Rules
;

10)

nor did the
    appellant otherwise purge her contempt by fully complying with the Disclosure
    Orders.  She also did not pay the outstanding costs orders; and

11)

in the meantime,
    the Family Court offices scheduled a commencement date  May 14, 2012  for the
    undefended Matrimonial Trial.  The appellants pleadings not having been
    reinstated and her contempt continuing, the undefended Matrimonial Trial proceeded
    on May 14 and 15, 2012 in accordance with the Strike Order.

[5]

Against this backdrop, the appellant argues that she was denied
    procedural fairness because the Matrimonial Trial proceeded without notice to
    her and in her absence.  She also asserts that the respondent failed to inform
    the Trial Judge of her pending motion to set aside the Strike Order and purge
    her contempt.  Further, she alleges that the respondent failed to make proper
    financial disclosure at the Matrimonial Trial.

[6]

On this record, these claims are unsustainable.

[7]

The respondent was entitled under the terms of the Strike Order and Rule
    10(5) of the
Family Law Rules
to proceed with the Matrimonial Trial
    after March 31, 2012 if the appellant failed to purge her contempt and obtain
    an order reinstating her pleadings by that date.  Neither event occurred,
    notwithstanding the appellants numerous opportunities to meet the terms of the
    Strike Order.

[8]

Indeed, on May 11, 2012 (the Friday before the commencement of the
    Matrimonial Trial), the appellant remained in contempt, had not fully satisfied
    the Disclosure Orders, had not paid all the outstanding costs orders against
    her, and had not obtained a court-ordered reinstatement of her pleadings.

[9]

Moreover, contrary to the appellants submission, by the time the
    Matrimonial Trial commenced on May 14, 2012, there was no pending motion to
    set aside the Strike Order.  The appellant conceded before this court, through
    counsel, that no properly served and filed return of her intended March 2012
    motion to set aside the Strike Order had been scheduled.

[10]

We
    note that almost one year later, these acts of non-compliance continued.  In
    his reasons dated April 2, 2013, the Motion Judge held:

(1)

the
    appellant had not provided the court ordered disclosures;

(2)

costs
    orders remained unpaid;

(3)

the
    appellants obligations remained outstanding; and

(4)

the
    appellant failed to move with dispatch within the time frame set out by
    Justice Herman in the [Strike Order].

[11]

These
    factual findings were open to the Motion Judge on the record.  On the record
    now before this court, there is no basis to conclude that any of these findings
    are tainted by reversible error.

[12]

The
    appellants complaint of the respondents alleged inadequate or incomplete
    disclosure of his financial affairs before the Trial Judge must also be
    rejected.  The appellant has not provided a transcript of the Matrimonial
    Trial; nor, as we have said, was she in attendance at that trial, during which
    the oral evidence of the respondent was heard over two days.

[13]

In
    these circumstances, this court is unable to give effect to this claim.   The
    Trial Judge, having considered the evidence at the Matrimonial Trial, was
    satisfied with and accepted the respondents evidence, indicating that he was
    not only fair but at times fair to his detriment in his testimony at trial.

[14]

The
    appeal is dismissed.  The respondent is entitled to his costs of the appeal,
    fixed in the total amount of $8,500.00, inclusive of disbursements and all
    applicable taxes.

E.A. Cronk
    J.A.

Paul Rouleau
    J.A.

M. Tulloch
    J.A.


