



COURT OF APPEAL FOR ONTARIO

CITATION: Abu-Saud v. Abu-Saud, 2020 ONCA
    824

DATE: 20201217

DOCKET: M51992 (C67699)

Strathy C.J.O., Huscroft and Roberts
    JJ.A.

BETWEEN

Amneh Tawfic Abu-Saud

Applicant

(Respondent
/Moving Party
)

and

Azam Asaad Abu-Saud

Respondent

(Appellant/Responding
    Party)

Sharon E. Hassan, for the moving party

William R. Clayton, for the responding
    party

Heard: December 11, 2020 by
    videoconference

On a
    motion to quash the appeal from the order of Justice Thomas J. Carey of the
    Superior Court of Justice, dated October 30, 2019, with reasons reported at
    2019 ONSC 6303.

REASONS FOR
    DECISION

Overview

[1]

The moving party, Amneh
    Tawfic Abu-Saud, moves to quash the appeal of her former spouse, the responding
    party, Azam Asaad Abu-Saud, based on his ongoing and wilful breach of court
    orders that he pay spousal support and arrears to Ms. Abu-Saud.

[2]

We agree that the responding
    partys breach of not only the trial judges order but this courts order dated
    May 22, 2020, with reasons reported at 2020 ONCA 314,
per
Benotto
    J.A., is, as aptly characterized by Ms. Abu-Sauds counsel,
deliberate, relentless, and indefensible.

[3]

We therefore advised the parties at the
    conclusion of submissions on the motion that the appeal was quashed with costs
    to the moving party, with reasons to follow. These are our reasons.

[4]

It is common ground that the
    court has jurisdiction to quash or dismiss an appeal in the face of
    non-compliance with a support order: see
Courts of Justice Act
, R.S.O.
    1990, c. C.43, s. 134(3);
Dickie v. Dickie
, 2007 SCC 8,
[2007] 1 S.C.R. 346,
at para. 6;
Brophy v. Brophy

(2004), 180
    O.A.C. 389 (C.A.), at para. 11;
Siddiqui v. Anwar
, 2018 ONCA 965, 22
    R.F.L. (8th) 92, at para. 19. Moreover, this court has consistently refused to
    hear from the defaulting appellant or entertain the appeal where the record
    shows continuing disobedience with court orders:

Cosentino v. Cosentino
, 2017 ONCA 593, 98 R.F.L. (7th) 53, at para. 8.

[5]

Quashing or dismissing an
    appeal for non-compliance is not automatic. Factors to be considered by the court
    in determining whether to exercise its discretion to quash an appeal include:
    the wilfulness of the breach; the amount of arrears; the excuse for the breach;
    and the efforts to correct the breach:
Brophy
, at paras. 9-15.

[6]

All these considerations
    unequivocally favour Ms. Abu-Saud and her motion to quash the appeal. A review
    of the relevant factual and procedural chronology of these proceedings, as set
    out by the trial judge and our colleague in their respective reasons, and as
    briefly supplemented here, clearly demonstrates that Mr. Abu-Saud has
    deliberately undertaken, without lawful justification, whatever step he can to
    avoid his support obligations to Ms. Abu-Saud.

Facts and Procedural History

[7]

Ms. Abu-Saud left the
    matrimonial home in 2015 after 27 years of marriage with no income or financial
    support. She was dependent on assistance from family, social assistance, and Canada
    Pension Plan Disability Benefits. Except when ordered to do so, Mr. Abu-Saud
    has never willingly or voluntarily paid any support to his former spouse.
    Rather, he ignored the trial judges order of $2,653 monthly spousal support,
    plus retroactive support, continued to pay only $1,500 per month pursuant to an
    interim order, and then in January 2020, unilaterally reduced the monthly
    spousal support payment to $1,100.

[8]

Mr. Abu-Sauds continuous
    and deliberate disobedience of the trial judgment led to the first compliance
    motion before Benotto J.A. At para. 19 of her reasons, she characterized Mr.
    Abu-Sauds breach as flagrant and clearly directed him to comply with the
    trial judgment, noting his acknowledgement that he had the funds to pay. We
    endorse and repeat her direction at para. 17 of her reasons, which is apposite
    here:

Compliance with an order for support is not
    optional
.
    Support payments are not stayed pending appeal. If the
appellant
seeks relief from this requirement, the
    procedure is to bring a motion to stay the support. The procedure is not to
    decide for yourself how much to pay. This court has repeatedly admonished
    payors who do not pay the support pending appeal. In
Murphy v.
    Murphy
,

2015 ONCA 69
, 56 R.F.L. (7th) 257, the court refused to entertain
    submissions from a party who had not paid support pending appeal. To do
    otherwise would be to reward his deliberate and willful misconduct: at para.
    6. [Emphasis added.]

[9]

Benotto J.A. granted Ms.
    Abu-Sauds request for payment of a portion of the equalization payment and
    stayed the appeal, with costs of $3,500, until Mr. Abu-Saud complied with
    the trial judgment. He did so in short order. By a further order dated June 12,
    2020, Benotto J.A. then disposed of the remaining issue, ordering that Mr.
    Abu-Saud post security for Ms. Abu-Sauds appeal costs in the amount of $20,000
    by July 15, 2020, with costs of $1,500, and that if he failed to comply, Ms.
    Abu-Saud could move to dismiss the appeal. He complied by June 30, 2020.
    However, in June 2020 and from August to November 2020, in breach of the trial
    judgment and the May 22, 2020 order of this court, he again reduced his monthly
    support payments to $1,100, less than half the court-ordered monthly support of
    $2,653. As a result of this continued non-compliance, Ms. Abu‑Saud was
    obliged to bring this motion to quash the appeal.

[10]

Rather than making any
    attempts at compliance, in response to Ms. Abu‑Sauds motion to
    quash his appeal, at the eleventh hour, Mr. Abu-Saud attempted to bring before
    this court a cross-motion to stay the trial judges order. We did not permit
    him to do so, although we allowed him to file the supporting affidavit
    materials in response to this motion to quash.

Analysis

[11]

Mr. Abu-Saud has admittedly,
    unabashedly, and, in our view, unjustifiably, breached the trial judges and
    this courts orders. He has always been represented by counsel. He has never
    expressed confusion about what the court orders mean or what is required of
    him. Other than very recently when faced with the present motion to quash his
    appeal, he has never attempted to stay the trial judgment. He has breached
    court orders with the certain knowledge that Ms. Abu‑Saud is
    disabled, unable to work, and in dire financial straits that are exacerbated by
    these proceedings and his failure to comply with court orders. According to Ms. Abu‑Saud,
    as of December 1, 2020, the spousal support and retroactive spousal support
    arrears totalled $23,901. This is an enormous sum for Ms. Abu‑Saud.
    We draw the inescapable conclusion that Mr. Abu-Saud just chooses not to pay
    the amount of court-ordered spousal support to Ms. Abu-Saud because he simply
    does not want to do so.

[12]

Mr. Abu-Sauds continued
    refrain of impecuniosity, rejected by the trial judge, Benotto J.A., and
    repeated again here, rings hollow. It stands sharply contradicted by the trial
    judges findings about his imputed income, as well as the financial
    documentation produced in these proceedings, his admissions concerning his
    assets, and his substantial withdrawal of his assets to further his lifestyle
    with his new spouse, which serves to dilute Ms. Abu-Sauds security for his
    payment of support in further breach of the trial judgment. We also note that
    instead of satisfying his court-ordered obligations to his former spouse, he
    appears to be engaged in income-splitting with his new spouse by initially
    paying her $500 per week and then $480 bi-weekly for ostensibly providing
    undocumented and unsubstantiated services to his business. He also revealed
    that he has instigated a motion to vary the court-ordered support, alleging a
    material change in his means and circumstances, which is returnable before the
    Superior Court of Justice in February 2021.

[13]

Mr. Abu-Saud is inexcusably
    in breach of court orders that he pay spousal support to his former wife. He
    has doggedly and undeniably chosen to thumb his nose at court orders. We
    condemn his behaviour in the strongest terms.


Disposition

[14]

The appeal is therefore quashed.

[15]

This is one of those very clear
    and exceptional cases where Ms. Abu‑Saud is entitled to her full
    indemnity costs of her motion to quash and the appeal. Simply put, but for Mr.
    Abu-Sauds contumelious refusal to comply with his court-ordered obligations,
    she would not have been put to this tremendous expense.

[16]

Mr. Abu-Saud is required to
    pay to Ms. Abu-Saud on or before December 23, 2020 the amount of $38,419.90,
    representing $7,852.94 for the motion to quash and $30,566.96 for the appeal,
    inclusive of all disbursements and applicable taxes. These costs are amply
    justified in the circumstances of this case.

[17]

Ms. Abu-Saud is entitled to
    the costs paid into court under the June 12, 2020 order of Benotto J.A. in
    payment of her costs incurred on her motion to quash and in response to the appeal.
    We order that those funds be paid out to her forthwith on request.

[18]

As the costs paid into court
    will be insufficient to satisfy our cost order, we also order that, as the
    costs here were incurred in relation to Ms. Abu-Sauds claims for spousal support,
    Mr. Abu-Sauds obligation to pay our cost order shall be binding and constitute
    a first charge on the estate of Mr. Abu-Saud and shall be enforceable as a
    support order under the
Family Responsibility and Support Arrears
    Enforcement Act, 1996
, S.O. 1996, c. 31. Our cost order shall also be
    secured against any of Mr. Abu-Sauds assets.

[19]

As noted above, this court
    has discretion to refuse to entertain a further proceeding in the face of a
    record showing continuing disobedience with court orders. We have determined
    that is the case here. Mr. Abu-Saud is therefore precluded from bringing any
    further proceeding before this court until he has complied with the trial
    judges order and the orders of this court, including the cost orders, and the
    ongoing support obligations.

[20]

We end with this. While Mr.
    Abu-Sauds newly launched motion to vary the trial judges order was not before
    us for determination, it was referenced as yet another example of Mr.
    Abu-Sauds persistent attempts to avoid his court-ordered obligations. Rule
    1(8)(e) of the
Family Law Rules
, O. Reg. 114
/
99,
explicitly empowers the court to order that a
    party who has not complied with prior orders is not entitled to any further
    order from the court unless the court orders otherwise. In our view, any
    attempt by Mr. Abu-Saud to vary support or take any other step in the Superior
    Court of Justice proceedings while he remains in substantial non-compliance
    with the trial judges order and the orders of this court would appropriately
    attract such an order, in keeping with the primary objective of the
Family
    Law Rules
, as stated under r. 2(2), to deal with cases justly, including
    saving expense and time, as stated under r. 2(3)(b).

[21]

To summarize:

1.

The appeal is quashed;

2.

Mr. Abu-Saud must comply with all support
    obligations listed in the trial judgment and the reasons of Benotto J.A.;

3.

The money paid into court for security of costs,
    $20,000, will be paid out to Ms. Abu-Saud forthwith on request;

4.

The remaining $18,419.90 is to be paid by Mr.
    Abu-Saud to Ms. Abu-Saud forthwith, and no later than December 23, 2020.

G.R.
    Strathy C.J.O.

Grant
    Huscroft J.A.

L.B.
    Roberts J.A.


