Manzoor v Zahooruddin, 2016 ONSC 257 (CanLII)

CITATION: Manzoor v. Zahooruddin, 2016 ONSC 257

COURT FILE NO.: FS-04-51306-00

DATE: 2016 01 11

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: FARZANA MANZOOR

Applicant

– and –

SHIEKH ZAHOORUDDIN

Respondent

BEFORE: MacKENZIE J.

COUNSEL: A. Farooq, for the Applicant

The Respondent, self-represented

ADDENDUM TO ENDORSEMENT DATED JANUARY 5, 2016

NATURE OF THE PROCEEDING

[1] The applicant moves under Family Law Rule 16(12)(a) for summary judgment on a question of law dismissing the claims of the respondent relating to the validity of a divorce and to equalization of family property being the former matrimonial home. The applicant relies on the provisions of section 7(3)(a) of the Family Law Act.
OVERVIEW

[2] The parties were divorced by an Order of Justice Van Melle dated February 24, 2005. By motion dated August 15, 2013 made under Family Law Rule 15, the respondent seeks:
(a) to set aside the divorce order dated February 24, 2005;

(b) permission to file an answer and assert a claim for equalization pertaining to the former matrimonial home; and

(c) a certificate of pending litigation in aid.

[3] It should be noted that the former matrimonial home was sold on or about July 30, 1997 to a third party on an arms’ length basis; accordingly the claim for a certificate of pending litigation has been rendered moot.
Analysis

[4] The position of the respondent is that the application for divorce which was dated August 21, 2004 had never been served on him either through personal service or any alternative to personal service. He states the divorce order came to his attention in September of 2012 on his making inquiries as to the status of the property purchased by him in Mississauga.
[5] In relation to the former matrimonial home (the Property), his position is that the Property was sold on or about July 30, 1997 by the applicant without his knowledge or consent, the sale being effected through “a fraudulent power of attorney that I had never authored or authorized”.
[6] In his notice of motion to change, the respondent accuses the applicant of various forms of misconduct, including adultery and perjury.
[7] In response to the motion to change, the applicant through counsel served a response to the motion to change on or about October 28, 2013. In her affidavit of materials in support of the response, the applicant denies the allegations of adultery on her part made by the respondent and in turn alleges it was the respondent who committed adultery. Further, the applicant points to an affidavit of service of the application for divorce on the respondent at an address in Karachi, Pakistan on or about December 14, 2004, and that in the respondent’s change information form in support of his motion to change, he states he became aware of the divorce application in September, 2012.
[8] The applicant further states there was no forgery or fraudulent signing of the power of attorney authorizing the sale of the Property and the respondent agreed to sign a power of attorney authorizing the applicant to sell the Property and execute such documents as were necessary to do so on his behalf. She indicates with the consent of the respondent, she delivered the subject power of attorney to a friend of the respondent who would be visiting Pakistan on the basis the respondent would sign the power of attorney and return the same by mail to her.
[9] In December 2014, the respondent served a notice of change in representation indicating that he would represent his own interests in the matter without the assistance of a lawyer. In due course on or about January 16, 2015 such notice of change was served on the applicant.
[10] On or about March 31, 2015, a trial management conference notice was issued to the parties setting a return date of July 15, 2015. In her trial scheduling endorsement form dated July 15, 2015, the case management judge, Tzimas J., stipulated (among other things) that the legal issues for the trial judge were the limitation period on the subject of equalization and the validity of the divorce order in 2005; further, “there shall be no further motions without permission obtained from the case management judge. Exception: leave is granted to the applicant to bring a summary judgment motion (limitations period).” It is noteworthy in light of the respondent’s claim of a forged power of attorney, the qualifications of the expert witness and report dated June 8, 2015 proffered by the respondent were not admitted by the applicant and the applicant at that time indicated she would not proffer expert evidence on that issue.
[11] The trial scheduling endorsement form provided that all documentary evidence to be relied on at trial was to be served by both parties on or before January 4, 2016 and the trial record was to be served and filed by the respondent on or before January 4, 2016. The trial management judge further stipulated the matter was to be put on the civil trial blitz in Brampton commencing January 4, 2016 but granted leave to the applicant to bring a summary judgment motion for the relief set out in the words “exception”, noted above.
[12] In her endorsement sheet relating to the trial management conference dated July 15, 2015, Tzimas J. made the following comments and observations:
Leave is granted to the applicant for a summary judgment motion as there is a serious limitation periods issue that may be dispositive of Mr. Zahooruddin’s [respondent] claims.

If the matter proceeds to trial there are two issues for trial: a) Validity of the 2005 Divorce and b) Equalization.

and

The Respondent is currently self-represented. He has been provided with the Court’s Memo for Self-Reps to assist him with his trial preparation and the trial procedure. He is strongly encourage[d] to seek the guidance of duty counsel…

[13] In accordance with the procedure in Brampton for civil/family trial blitz sittings, a final pre-trial was scheduled for the morning of January 4, 2016 before the undersigned. A notation by a Brampton court official indicating that she left a voicemail message to the respondent at his acknowledged current telephone number on December 27 as to the date and time of this final pre-trial is in the file. The pre-trial proceeded on January 4, 2016 with Mr. Farooq, counsel for the applicant appearing. No one appeared on behalf of the respondent though paged at 11:15 a.m. on that date.
[14] After hearing submissions from Mr. Farooq on behalf of the applicant, I made the following endorsement:
Mr. Farooq for the applicant informs that he has received no responding materials from or on behalf of the respondent, as directed by the Endorsement dated Dec 29, 2015, nor has he received any communication from the respondent since Dec 29, 2015.

In accordance with the Dec 29/2015 endorsement, the summary judgment motion by the applicant may proceed on an uncontested basis before the trial judge, subject to his/her discretion.

[15] On January 5, 2016, the hearing of the summary judgment motion by the applicant commenced at 11:10 a.m. The hearing proceeded to approximately 12:35 p.m. whereupon a lunch break was taken and the matter resumed at approximately 2:00 p.m. At or about 2:35 p.m., as the submissions by counsel for the applicant and my observations were completed, I directed the court registrar to page the respondent. At or about 2:35 p.m., the respondent appeared and produced a single volume of materials of materials which he described as a trial record. Attached to the alleged trial record was a note in the handwriting of the Family Law Information Centre advice lawyer or duty counsel. This note is attached as Schedule “A” to these reasons.
[16] A brief recess was taken from approximately 2:50 p.m. to 3:10 p.m. to enable counsel for the applicant to review this alleged trial record.
[17] The hearing resumed shortly after 3:10 p.m. with submissions by Mr. Farooq, counsel for the applicant. In summary Mr. Farooq indicated that the alleged trial record contained no responding materials to the Family Law Rule 16(12)(a) motion for summary judgment and that this was the matter before the court.
[18] The respondent was permitted to address the court but sought to argue the merits of his contentions respecting non – or fraudulent – service of the application for divorce, the alleged fraudulent or forged power of attorney and generally to give evidence on the merits of his case without taking the stand. He was asked whether he had any materials in the alleged trial record that were responsive by way of affidavits or otherwise to the motion for summary judgment. He essentially repeated his previous observations.
[19] In the circumstances, I dealt only with the motion for summary judgment on the materials properly before me. I note with interest that in mid-July of 2015 the case management judge did supply the respondent with a fulsome memorandum for self-represented persons in this court.
[20] A party who chooses to represent himself or herself is bound by the same rules and requirements as a represented party and the court can only assist a self-represented party on matters of procedure. The court’s obligation was discharged fully by the case management judge (Tzimas J.). In the result, I granted the summary judgment motion under Family Law Rule 16(12)(a) and granted the applicant her costs of the proceeding. In aid of the latter disposition, I gave directions to the applicant’s counsel to serve and file a costs outline and permitted the respondent to make any responding submissions in writing within 10 days of receipt of the submissions and costs outline of counsel for the applicant.
[21] In light of the prior history and circumstances of this case. I stipulated that the approval of form and content of the order in question by the respondent would be dispensed with.

___________________________

MacKENZIE J.

DATE: January 11, 2016

Schedule “A” to Addendum to Endorsement dated January 5, 2016

CITATION: Manzoor v. Zahooruddin, 2016 ONSC 257

COURT FILE NO.: FS-04-51306-00

DATE: 2016 01 11

SUPERIOR COURT OF JUSTICE

ONTARIO

RE: FARZANA MANZOOR

Applicant

– and –

SHIEKH ZAHOORUDDIN

Respondent

BEFORE: MacKENZIE J.

COUNSEL: A. Farooq, for the Applicant

No one appearing for the Respondent

ADDENDUM TO ENDORSEMENT DATED JANUARY 5, 2016

MacKENZIE J.

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