DATE: 20030117
DOCKET: C38505
COURT OF APPEAL FOR ONTARIO
RE: ANNE MARIE SANGSTER - Respondent (Petitioner) – and – ROBERT SCOTT SANGSTER - Appellant (Respondent)
BEFORE: LABROSSE, CHARRON and GILLESE JJ.A.
COUNSEL: Mark Kowalsky for the appellant Grant Gold for the respondent
HEARD: January 15, 2003
RELEASED ORALLY: January 15, 2003
On appeal from the order of Justice Casimir Herold of the Superior Court of Justice dated June 6, 2002.
E N D O R S E M E N T
[1] On April 19, 2000, Langdon J. issued default judgment against the appellant and granted the respondent, amongst other things, a divorce, an order for property division, child support in the amount of $800 per month, an order for an immediate payment of child support accruing under an order of August 6, 1993 and costs.
[2] The respondent’s affidavit material filed in support of the motion for default judgment misled the court in a number of ways including the following:
stating that the appellant failed to file an Answer and Counter-petition without acknowledging that an answer and counter-petition had been served;
stating that the appellant refused to pay child support when the respondent had received $37,455.47 in child support since separation, which was an average of $480 per month; and
stating that the appellant was represented by counsel for four months of the negotiations “which commenced in February, 1993 and represented himself for the balance of the time”. It was not disclosed that the appellant had counsel of record since February of 1999.
[3] It is to be noted that counsel for the respondent on appeal was not counsel below.
[4] Neither the appellant nor his counsel were put on notice that the procedural error of serving an answer and counter-petition, rather than filing it, would be relied upon in support of default proceedings. Nor were they notified that a motion for default judgment was being brought.
[5] Counsel for the appellant was not served with a copy of the default judgment.
[6] The appellant moved, unsuccessfully, before Herold J. to have the default judgment set aside in relation to the corollary relief. He took no issue with the granting of the divorce. He appeals from the dismissal of that motion.
[7] The want of full and fair disclosure is sufficient reason to allow the appeal and we would allow the appeal on that basis alone. The court is entitled to rely on materials filed as being full and frank, particularly where, as here, the motion is brought on an ex parte basis.
[8] The appeal is allowed and the order of Herold J. is set aside. The default judgment of Langdon J. dated April 19, 2000 is set aside except for paragraphs 1, 2, 3, 12 and 13 which shall remain. Paragraph 4 of the default judgment shall be amended to read that neither party may remove the child from the Province without notice to the other.
[9] The funds referred to in paragraph 14 of the default judgment are to be returned to the trust fund held by Simmons, da Silva & Sinton. The husband shall file and serve an answer and counter-petition within seven days of today’s date.
[10] In light of the misleading affidavit filed in support of the default motion, it is our view that the appellant is entitled to his costs of the motion below on a substantial indemnity basis. The appellant is also awarded his costs of this appeal on a partial indemnity basis. We fix those costs at $2,500 and $2,500 respectively, as requested.
“J.M. Labrosse J.A.”
“L.V. Charron J.A.”
“E.E. Gillese J.A.”