



COURT OF APPEAL FOR ONTARIO

CITATION: Zia v. Ahmad, 2021 ONCA 495

DATE: 20210708

DOCKET: C69391

Brown, Roberts and Zarnett JJ.A.

BETWEEN

Maria
    Zia

Applicant (Respondent)

and

Zafar
    Ahmad

Respondent (Appellant)

Gary S. Joseph, for the appellant

Michael H. Tweyman, for the respondent

Heard: In writing

On
    appeal from the order of Justice Cheryl Lafrenière of the Superior Court of
    Justice, dated October 22, 2020.

REASONS FOR DECISION

[1]

The appellant, Zafar Ahmad, appeals from the dismissal of his motion
    under r. 25(19) of the
Family Law Rules
, O.
    Reg. 114/99, to set aside a default order granted on January 17, 2020. The
    default order directed, among other things, that Mr. Ahmad pay spousal support
    to the respondent, Maria Zia, that he designate Ms. Zia as a beneficiary on his
    life insurance for as long as he was obligated to pay spousal support, and that
    he make an equalization payment to her.

[2]

The parties were married in 2009 and separated
    in 2015. In 2016, they participated in an arbitration conducted through their
    Ahmadiyya Muslim community; an award was made on August 13, 2016 (the Award).
    The Award stated that it was addressing four issues: divorce and habitation
    rights, dower money, possession of certain household items, and possession of
    certain  jewellery. None of the issues decided were described as equalization
    of net family property or as support. A space on the Award form entitled spousal
    support was crossed off with the notation N/A. An issue concerning the
    matrimonial home was not decided; the Award instead advised the parties to
    consult court because of legal implications of subject matter.

[3]

Ms. Zia commenced her court application for
    support and an equalization payment on March 6, 2018. She served the
    application on Mr. Ahmad in April 2018, and then served an amended version of
    it on him in June 2018. Mr. Ahmad did not respond to either service. He was
    noted in default in February 2019. He took no steps up to and including the
    making of the default order.

[4]

Mr. Ahmad does not challenge the test that the motion judge applied,
    under which the following factors are considered:

a)

whether the moving party moved promptly, after
    learning of the order, to have it set aside;

b)

whether the moving party has provided an
    adequate explanation for the failure to respond to the proceeding in accordance
    with the
Family Law Rules
;

c)

whether the moving party has established an
    arguable case on the merits;

d)

whether the moving party is acting in good faith
    and with clean hands";

e)

the prejudice that may be suffered by the
    moving party if the motion is dismissed and to the responding party if the
    motion is allowed; and,

f)

whether, in the final analysis, the interests of
    justice favour setting aside the judgment.

[5]

Mr. Ahmad submits that the motion judge erred by
    failing to appreciate that the default order was made without jurisdiction
    because the parties had previously submitted their dispute to an arbitration, or
    in failing to appreciate that the Award gave rise to a
res

judicata

defence to Ms. Zias claims.

[6]

We do not accept these arguments.

[7]

The default order was not made without
    jurisdiction simply because the parties had participated in an arbitration. Mr.
    Ahmad does not point to any evidence that the parties had agreed that they
    would submit, to arbitration, claims for support, insurance to secure spousal
    support, or equalization. Nor does he identify any evidence that the parties
    made that agreement after their dispute arose or that the arbitration about
    such matters was to be conducted exclusively under Ontario law or the law of
    another province of Canada  preconditions to any such agreement being valid or
    any such arbitration having legal effect:
Family Law Act
, R.S.O. 1990,
    c. F.3, ss. 59.2(1)(b) and 59.4. In any event, an arbitration agreement does
    not preclude the court from exercising jurisdiction if a motion to stay the
    court proceeding has not been brought and granted:
Arbitration Act
,
1991
,
    S.O. 1991, c. 17, s. 7. Here, there was no motion for a stay.

[8]

The argument that the Award bars Ms. Zias
    claims based on the doctrine of
res judicata
is also without
    substance. For that doctrine to apply, the issues that were, or could have
    been, dealt with in the arbitration would have to be the same as those that
    were the subject of the court proceeding:

Rathwell v. Hershey Canada Inc.
(2001)
, 152 O.A.C. 1 (CA),
at para.
    5, leave to appeal refused, 164 O.A.C. 279 (note) (SCC). The Award does not
    deal with equalization, support, or insurance to secure support; nor, for the
    reasons above, is there any evidence that it could, with legal effect, have
    dealt with those issues.

[9]

Mr. Ahmad also submits that the motion judge
    failed to take into account that he was self-represented or consider his
    evidence about his ability to make support payments or the net family property
    calculations. He argues that the motion judge should not have decided the
    matter without
viva voce
evidence, and that her reasons are inadequate.

[10]

We reject these submissions. The motion judge
    was clearly aware of the fact that Mr. Ahmad was self-represented. She considered
    his submissions and the evidence he put forward. Her findings of fact arising from
    her assessment of that evidence are entitled to deference, as is her exercise
    of discretion as to whether to set aside the default order.

[11]

The motion judge concluded that although Mr.
    Ahmad had acted promptly once he became aware of the default order, this was
    the only factor of the test that he satisfied. She found that he failed to
    provide an adequate explanation for his failure to respond to the application
    for more than 18 months after he was served, did not establish an arguable case
    on the merits, provided no financial disclosure, and lacked clean hands. She
    was not required to conduct a
viva voce
hearing. Her reasons are not
    inadequate; they permit meaningful appellate review.

[12]

The appeal is dismissed. If the parties are
    unable to agree on costs, they may make submissions in writing, not exceeding 2
    pages each, within 10 days of the release of these reasons.

David
    Brown J.A.

L.B.
    Roberts J.A.

B.
    Zarnett J.A.


