



COURT OF APPEAL FOR ONTARIO

CITATION: Al-Fadhly v. Al-Pachachi, 2018 ONCA 1013

DATE: 20181211

DOCKET: C63096 and C64255

Juriansz, Brown and Roberts JJ.A.

BETWEEN

Aysar Monthar Sharif Al-Fadhly

Applicant (Respondent)

and

Zuhair Ahmed SaJeh Al-Pachachi

Respondent (Appellant)



Tiffani Frederick, for the appellant

Peter M. Callahan, for the respondent

Heard: December 3, 2018

On appeal from the order of Justice David Price of the
Superior Court of Justice, dated November 28, 2016, and the order of Justice Gisele
M. Miller of the Superior Court of Justice, dated August 8, 2017.

REASONS FOR DECISION

[1]

File C63096 is an appeal of the order of Price J., dated November 28,
2016, striking the appellants pleadings. The appeal is moot. That order was
stayed by the order of Pepall J.A. dated April 12, 2017, the trial took place
while the order was stayed and the appellant participated in the trial on the
basis of his pleadings.

[2]

The motion judge found the appellant had failed to obey an order of the
court. As a result, he was entitled by
Family Law Rule

1(8)(e)
to dismiss the appellants counter-motion to strike the respondents pleading
for non-compliance with an earlier disclosure order dated July 26, 2016. In any
event, the affidavit evidence before the motion judge established that the
respondent had complied with the earlier order.

[3]

The appeal is dismissed.

[4]

In appeal C64255, the appellant appeals from the final order of Miller
J. dated August 8, 2017 after a trial heard April 19-28, 2017.

[5]

The trial judge did not err by declining to adjourn the trial until the
appellants appeal of the November 28, 2016 order striking his pleadings was
determined. The order striking his pleadings had been stayed by Pepall J.A.,
who refused to adjourn the trial, emphasized that the appellant was still
required to comply with the production orders made against him, and noted that
in the absence of full disclosure by the applicant, it would be open to the
trial judge to draw an adverse inference against him.

[6]

We do not accept the appellants submissions that issue estoppel
prevented the trial judge from finding that the appellant had failed to make
proper disclosure, as Price J. had already made that finding earlier on Nov.
28, 2016. The question before Price J., whether the appellant had made proper
disclosure by November 28, 2016, is different. The question before the trial
judge was whether the appellant had made proper disclosure by the time of
trial. The trial judge did review the appellants history of noncompliance with
the earlier production orders before addressing his failure to make disclosure
before trial. The trial judge also referred to his attempts to tender new
documents into evidence.

[7]

Even if issue estoppel applied, the result would not have changed for
the appellant because the trial judge would have been bound to proceed on the
basis of Price J.s earlier finding the appellant had failed to make
disclosure.

[8]

The appellant applied to admit fresh evidence. Tab J of the material
tendered is not fresh evidence, but a portion of transcript that is properly
part of the appeal record. The appellant could have obtained the remaining
material before trial by exercising due diligence and its admission is refused.

[9]

The appellant submitted that he was prejudiced by the admission into
evidence of an email dated November 17, 2014, in which the trial judge found he
indicated his intention to drain his accounts of any liquid cash in
anticipation of the divorce process. Though the email was introduced during the
re-examination of the respondent, the trial judge allowed the appellants trial
counsel to conduct a supplemental cross-examination of her regarding the email.
No objection was made to the emails admission into evidence. When the
appellant testified, his counsel put the email to him and asked questions about
it. We are not persuaded that any unfairness was occasioned by the admission of
the email.

[10]

The
appellant takes issue with the trial judges award of an unequal division of
family property, 75% in favour of the respondent. He submits the trial judge
had an inadequate basis to find unconscionability. We do not agree. To meet the
high standard of unconscionability contemplated in
Ward v. Ward
, 2012
ONCA 462, the trial judge relied on the combination of the appellants failure
to make proper disclosure before trial, the evidence of his stated intent to
divert assets prior to separation, and his actions in actually diverting assets
after separation, including a concocted loan scheme with his brother. We see no
error.

[11]

The
appellant submitted that in effecting the unequal division of family property,
the trial judge exceeded his jurisdiction by re-establishing a higher net
family property for the appellant. She provided the court with an illustrative
net property statement showing that the appellants net family property of $613,042.97,
increasing, after the unequal provision, to $776,553.52. This submission is
based on counsels misapprehension of para. 47 of the trial judges reasons.
The figure of $776,553.52 in paragraph 47 of the trial judges reasons refers
to 75% of the total family property, not the respondents net family property.

[12]

On
cross-appeal, the respondent submits the trial judge erred by declining to make
a lump sum payment of spousal support, after finding that she was entitled to
compensatory support. The trial judge gave cogent reasons for finding no
spousal support payable to the respondent from the date of separation.

[13]

The
appeal and cross-appeal are dismissed. Given the divided success we fix costs of
the appeals, and all motions, in favour of the respondent in the amount of $12,500
inclusive of applicable taxes and disbursements.

R.G. Juriansz J.A.

David Brown J.A.

L.B. Roberts J.A.


