CITATION: Fasullo v. Fiorini, 2024 ONSC 639
DIVISIONAL COURT FILE NO.: DC-23-1384 DATE: 2024/01/30
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, McGee, Ryan Bell JJ.
BETWEEN:
ANTHONY FASULLO
Robert A. Fernandes, for the Appellant
Appellant
– and –
CHRISTINA MARIE FIORINI
Sydney Bunting, for the Respondent
Respondent
HEARD at Oshawa: January 25, 2024
REASONS FOR DECISION
Ryan Bell J.
Overview
[1] On May 15, 2023, Daurio J. dismissed the appellant’s motion to set aside the default order of Kaufman J. dated September 29, 2022 following an uncontested trial.
[2] The appellant appealed from the order of the motion judge and asked that the default order be set aside. The appellant argued that the motion judge erred in law in her application of the governing legal test to set aside a default judgment. In particular, the appellant argued that the motion judge erred in concluding that he did not have an arguable case on the merits and by failing to properly consider the issue of prejudice. The appellant also argued the motion judge erred by denying him an opportunity to participate in the main proceeding where issues affecting a child’s best interests were engaged.
[3] At the end of the appellant’s oral submissions, we dismissed the appeal with reasons to follow. These are the reasons.
[4] A motion judge’s decision to set aside a default judgment is a discretionary one that will attract deference on appeal. It should not be interfered with absent an error in law or principle, a palpable and overriding error of fact or unless the decision is so clearly wrong as to amount to an injustice: Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, at para. 55.
[5] We see no such error in the motion judge’s decision and the decision is not clearly wrong. To the contrary, it is clear from the motion judge’s comprehensive reasons that she considered the totality of the evidentiary record and each of the relevant factors before concluding that she was not prepared to set aside the default order.
Background facts
[6] The following facts are from the motion judge’s ruling.
[7] The appellant and the respondent were married on October 14, 2012. They separated on August 23, 2020. There is one child of the marriage.
[8] Between August 24, 2020 and June 13, 2021, the respondent’s counsel made 12 requests for disclosure and the payment of child support from the appellant. The correspondence warned the appellant that if he did not cooperate, the respondent would go to court.
[9] The respondent’s Application was served on July 20, 2021. The appellant did not serve or file an Answer or a Financial Statement.
[10] Until April 5, 2023 – approximately one month before the motion to set aside the default order – the appellant did not pay any child support and provided only one pay stub by way of disclosure.
[11] In July 2022, mediation was being contemplated and a mediator had been selected. However, on July 20, 2022, the appellant wrote to the respondent’s counsel and attached a list of items he wished to have returned to him before proceeding to schedule the mediation. The motion judge characterized the list of demands as “the last straw” for the respondent – one that reinforced her fear that the appellant was not engaging in good faith negotiations and that he had no intention of providing her with the required financial disclosure.
[12] The respondent served her motion for an uncontested trial on July 27, 2022.
[13] On August 31, 2022, the appellant served his Answer, Affidavit, Financial Statement, and a recent paystub. His Financial Statement was deficient because it did not include his notices of assessment. The notices of assessment were not produced for another eight months.
[14] The appellant then sought consent to late file his Answer and other documents. As a condition to her consent, the respondent requested that the appellant provide her with $3,000 to be credited to him for any support arrears that might be determined in the future. The appellant declined to make the payment and took no further steps to involve himself in the matter until he received the default order in November 2022.
[15] The matter proceeded as an uncontested trial before Kaufman J. On September 29, 2022, Kaufman J. made the orders requested by the respondent, including parenting orders and child support orders.
The motion judge’s ruling
[16] In dismissing the appellant’s motion to set aside the default order, the motion judge considered each of the relevant factors as set out in Mountain View:
(i) Whether the moving party moved promptly after learning of the default judgment;
(ii) Whether the moving party has a plausible explanation for the failure to respond and comply with the Rules;
(iii) Whether the facts establish that the moving party had an arguable case on the merits;
(iv) What is the potential prejudice to the moving party if the default order is not set aside, and what is the potential prejudice to the other party if the order is set aside; and
(v) What is the effect of the order made by the court on the overall integrity of the administration of justice.
[17] There is no dispute that the appellant acted quickly after being notified of the default order. The appellant did not take issue with the motion judge’s finding that he did not have a plausible explanation for his delays.
[18] With regard to the third factor, the motion judge was not convinced that the appellant had an arguable case on the merits with respect to the child support orders or the parenting orders made by Kaufman J. in the default order. The motion judge concluded that the appellant did not file sufficient evidence to convince the court, “even on a prima facie basis”, that the parties shared “almost 40% of the parenting time leading up to the default hearing. The motion judge further concluded that even if she had been convinced that the appellant had established a prima facie claim about the existing parenting schedule, he had failed to demonstrate that an “almost 40%” timesharing plan would have resulted in a different child support order. The motion judge contrasted the appellant’s evidence with that of the respondent, which the motion judge described as “detailed and complete” regarding her role as the child’s primary caregiver. These findings were available to the motion judge on the evidentiary record before her.
[19] The motion judge also found that the appellant’s “lacklustre” approach to the proceedings and his decision to actively delay any progress for two years created a status quo for the child and that he had already acquiesced to the plan that existed at the time the default order was made. The appellant was not denied an opportunity to participate in the main proceeding where issues affecting a child’s best interests are engaged because, as the motion judge concluded, the appellant’s behaviour was,
…not the behaviour of a parent who genuinely wishes to change the parenting schedule; nor does it suggest to this Court that the Respondent had any concerns that the parenting plan was inconsistent with [the child’s] best interests.
The motion judge’s findings and conclusions in this regard were amply supported by the record.
[20] The appellant submitted that the record before Kaufman J. did not adequately address the relationship between the child and the respondent’s stepchildren (who do not live with either party) and that the default order should be set aside on this basis. I reject this submission. There is nothing in the orders made by Kaufman J. that would prevent the appellant from fostering this relationship.
[21] I also reject the appellant’s submission that the motion judge failed to analyse the potential prejudice to the parties. The motion judge identified the potential prejudice that would be faced by both parties. If the orders were not set aside, the appellant would need to establish a material change in circumstances before they could be changed. For the respondent, if the orders were set aside, she would face additional costs, delay and stress of pursuing litigation against a party who had not demonstrated that he would genuinely engage in the matter. The issue of potential prejudice was properly considered by the motion judge and we see no basis to intervene.
[22] The motion judge’s finding that the appellant had not demonstrated he would genuinely engage in the matter was also integral to her consideration of the fifth factor of the Mountain View test – the effect of the default order on the overall integrity of the administration of justice. The motion judge agreed with the respondent that it was only the default order that triggered the appellant to take meaningful action, and even then, he delayed. The motion judge found that if the court were to allow the appellant the opportunity to reopen the proceeding – particularly after making the respondent chase him down for basic financial disclosure – it would bring the administration of justice into disrepute and would be a waste of valuable court resources. The appellant does not challenge these findings.
[23] Based on the evidentiary record before her and after considering and weighing each of the relevant factors, the motion judge exercised her discretion and declined to set aside the default order. The appellant has not shown any error or that the order was plainly wrong.
Disposition of the appeal
[24] For these reasons, we dismissed the appeal. The appellant shall pay costs to the respondent fixed in the amount of $6,200 all inclusive.
“Ryan Bell J.”
I agree: “D.L. Corbett J.”
I agree: “McGee J.”
Date of Release: January 30, 2024
CITATION: Fasullo v. Fiorini, 2024 ONSC 639
DIVISIONAL COURT FILE NO.: DC-23-1384 DATE: 2024/01/30
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, McGee, Ryan Bell JJ.
BETWEEN:
ANTHONY FASSULO
Appellant
– and –
CHRISTINA MARIE FIORINI
Respondent
REASONS FOR DECISION
Ryan Bell J.
Date of Release: January 30, 2024