Gray v. Gray

Ontario Reports

Court of Appeal for Ontario

Doherty, MacPherson and Lauwers JJ.A.

February 8, 2017

137 O.R. (3d) 65 | 2017 ONCA 100

Case Summary

Family law — Practice — Trial court having jurisdiction to set aside order under rule 25(19)(e) of Family Law Rules — Family Law Rules, O. Reg. 114/99, rule 25(19)(e).

The appellant brought an application to reduce his child support obligation, to end his spousal support obligation and to rescind support arrears. The respondent sought to fix support arrears. The appellant did not attend at trial. The trial judge fixed child support arrears and increased the appellant's child support obligations. The appellant appealed. The respondent brought a motion to quash the appeal, arguing that the appellant had to first bring a motion to set aside the trial judge's order in the Family Court before he could appeal to the Court of Appeal.

Held, the motion should be dismissed.

The word "change" in rule 25(19)(e) of the Family Law Rules includes "set aside". The trial court had jurisdiction under rule 25(19)(e) to set aside the order under appeal. The proper procedural route in this case was to bring a motion under rule 25(1) of the Family Law Rules rather than appealing to the Court of Appeal. If the motion was dismissed, the appellant could appeal to the Court of Appeal by filing an amended notice of appeal.

Cases Referred To

Boers v. Boers, 2010 ONSC 1264; Boivin v. Smith, 2010 ONCJ 411; Chambers v. Johnson; Diciaula v. Mastrogiacomo; Einstoss v. Starkman, 2010 ONSC 4126; Farhan v. Farhan, 2012 ONSC 6596; Frick v. Frick, 2016 ONCA 799; Gotkowski v. Gotkowski, 2012 ONSC 5579; Gray v. Rizzi, 2011 ONCA 436; Ketelaars v. Ketelaars, 2011 ONCA 349; Lemieux v. Lehane, 2014 ONSC 4462; M. (P.) v. M. (S.), 2014 ONCJ 496; McDonald v. McDonald, 2015 ONSC 2605; Ontario (Family Responsibility Office, Director) v. Dick, 2013 ONCJ 198; Page-Cole v. Cole; Pascal v. Mostafev, 2015 ONCJ 639; West v. West.

Rules and Regulations Referred To

Family Law Rules, O. Reg. 114/99, rules 1(7), 2(1), (2), 15(4), 25(1), (19)(e)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 19.08

Motion to Quash

Motion to quash the appeal of Magda J. of the Superior Court of Justice dated May 25, 2016.

Counsel:

• Michael H. Tweyman, for applicant
• Andrew Feldstein, for respondent
• Cindy Boyd, for Regional Municipality of Durham

The judgment of the court was delivered by

MACPHERSON J.A.:

A. Introduction

[1] The respondent mother brings a motion to quash the appellant father's appeal for jurisdictional reasons.

[2] The father seeks to appeal the trial judge's order made in his absence at the Superior Court of Justice, Family Court Branch ("Family Court"). The mother claims that the father must first bring a motion to set aside the trial judge's order in the Family Court before he can appeal to this court.

[3] There are two main issues on this motion:

(1) Does a trial court have jurisdiction to set aside an order under rule 25(19)(e) of the Family Law Rules, O. Reg. 114/99?

(2) What is the proper procedural route in this case: (i) an appeal from the trial decision to this court or (ii) a motion to set aside the trial decision in the Family Court?

B. Facts

(1) The Parties and Events

[4] The parties married in 1997 and separated in 2005. They have three children.

[5] In 2006, Rowsell J. of the Family Court ordered on consent that the father pay child and spousal support of $700 and $1,200 respectively, commencing in 2007.

[6] In early 2014, the father started a variation application, seeking to reduce his child support obligation, to cease paying spousal support and to rescind all his support arrears that accumulated under Rowsell J.'s order.

[7] In response, the mother sought to fix support arrears at $108,960 for the period of 2007 to 2012. She consented to terminate spousal support effective December 2012.

[8] The parties attended a trial management conference on May 13, 2016. Pursuant to the trial scheduling endorsement, all exhibits were to be served as soon as possible, the opening statements would be oral and the parties could file late expert reports. Any admissibility issues would be determined by the trial judge. The trial was scheduled for May 25, 2016.

(2) The Trial Judgment

[9] The father did not attend at trial. A friend appeared to explain his absence to the trial judge. The friend stated that the father has multiple sclerosis, which makes it very difficult for him to find work in construction. She explained that the father learned on the eve of trial that he had secured employment, and could not attend court because it was his first day of work.

[10] The trial judge decided that the father's employment did not excuse his absence, and proceeded without him. According to the transcript, the trial judge stated, "[s]o the evidence I'm prepared to hear, very simply, is, essentially, on default". The trial judge instructed the mother's lawyer to call the mother as a witness to adopt the contents of her opening statement. The mother did so. The trial judge accepted the contents of her opening statement and the father's income assessment in her expert report. He endorsed as follows: "On the evidence which I accept as exhibits 1 and 2 at trial [the mother's opening statement and expert report] an order is to go pursuant to the draft order as amended and signed this date."

[11] The trial judge's order fixed child support arrears at $191,924 for the years 2007 to 2015. The trial judge also ordered the father to pay ongoing monthly child support for the children in the amount of $2,159 based on an average annual income of $120,000.

(3) Subsequent Events

[12] In June 2016, the father commenced his appeal from the trial judge's order at this court. Among other things, the father claims that the trial judge erred by failing to provide him with an opportunity to attend the trial, failing to provide sufficient reasons, permitting the mother to submit her expert report four days prior to the trial and permitting the mother to submit as evidence her opening statement, which was not served on him prior to trial.

[13] In July 2016, the father also commenced a motion in the Family Court to set aside or change the trial judge's order pursuant to rule 25(19)(e) of the Family Law Rules. For various reasons, this motion has been adjourned on multiple occasions and has not yet been heard.

[14] The mother has now brought a motion to quash the father's appeal at this court. The mother submits that the trial judge's order is akin to a default judgment, and therefore the proper procedural route is the motion to set aside in the Family Court. If the motion is unsuccessful, the father may then try to appeal to this court.

[15] The father has perfected his appeal and it is scheduled to be heard on February 27, 2017. The mother has not yet provided responding material because she is waiting for a decision on this motion to quash.

C. The Relevant Legislation

[16] Rule 25(19) of the Family Law Rules provides:

25(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide;

(d) was made without notice; or

(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.

[17] I observe that rule 25(19) was added to the Family Law Rules in 2008. Prior to this, there was a substantially similar provision under rule 15(14).

[18] Rule 2(1) of the Family Law Rules defines "change" as follows: "'change', when used to refer to an order or agreement, means to vary, suspend or discharge, or a variation, suspension or discharge".

[19] Rule 1(7) of the Family Law Rules states:

1(7) If these rules do not cover a matter adequately, the court may give directions, and the practice shall be decided by analogy to these rules, by reference to the Courts of Justice Act and the Act governing the case and, if the court considers it appropriate, by reference to the Rules of Civil Procedure.

D. Analysis

(1) Does a Trial Court Have Jurisdiction to Set Aside an Order Under Rule 25(19)(e)?

(a) Conflicting Jurisprudence

[20] As cited above, rule 25(19) explicitly states that a court may "change an order". Neither rule 25(19) nor the definition of "change" in rule 2(1) refers to setting aside an order. This wording has led to conflicting jurisprudence from lower Ontario courts on the issue of whether or not rule 25(19) authorizes a court to set aside an order.

[21] On the one hand, there is a line of authority that broadly interprets the term "change" in rule 25(19) to include "set aside": see, e.g., Boers v. Boers, 2010 ONSC 1264; Gotkowski v. Gotkowski, 2012 ONSC 5579; and Chambers v. Johnson.

[22] On the other hand, there is an opposing line of authority for the proposition that the court does not have jurisdiction to set aside an order under rule 25(19); it only has jurisdiction to change an order for the stated reasons. One of the leading cases in this regard is Diciaula v. Mastrogiacomo, where the Ontario Divisional Court reasoned that the Family Rules Committee intentionally omitted the words "set aside". For other examples, see Boivin v. Smith, 2010 ONCJ 411; Einstoss v. Starkman, 2010 ONSC 4126; Farhan v. Farhan, 2012 ONSC 6596; and Ontario (Family Responsibility Office, Director) v. Dick, 2013 ONCJ 198.

[23] Within this second line of authority, courts have adopted two main approaches to address motions to set aside in the family law context.

[24] First, some courts have relied on their inherent jurisdiction to set aside an order to prevent a miscarriage of justice: see West v. West.

[25] Second, other courts have imported rule 19.08 of the Rules of Civil Procedure through rule 1(7) of the Family Law Rules. For example, in Gray v. Rizzi, 2010 ONSC 2858, affirmed 2011 ONCA 436, the respondent father never filed an answer and the court made orders regarding child and spousal support. The father then sought to set aside the orders under rule 25(19). While dismissing the father's motion to set aside, Boswell J. considered rule 1(7) of the Family Law Rules and rule 19.08 of the Rules of Civil Procedure. In a short endorsement, this court upheld Boswell J.'s decision to dismiss the father's motion, but the applicability of rule 19.08 was not at issue on appeal. For other examples of this approach, see McDonald v. McDonald, 2015 ONSC 2605; Pascal v. Mostafev, 2015 ONCJ 639; Lemieux v. Lehane, 2014 ONSC 4462; M. (P.) v. M. (S.), 2014 ONCJ 496; and Page-Cole v. Cole.

(b) A Court Can Set Aside an Order Under Rule 25(19)(e)

[26] In my opinion, rule 25(19)(e) includes the authority to set aside an order. I say this for three main reasons.

[27] First, the definition of "change" in the Family Law Rules is quite broad. It means to "vary, suspend or discharge". As an example of the wide scope of these terms, the definition of "discharge" in Merriam-Webster's Collegiate Dictionary includes "to set aside: annul": 11th ed. (Springfield, Mass.: Merriam-Webster Inc., 2003), at p. 356.

[28] Second, a broad interpretation of rule 25(19) as including the authority to set aside an order is consistent with prior comments from this court. In Ketelaars v. Ketelaars, 2011 ONCA 349, this court considered an appeal from a judgment following an uncontested trial. The appellant's pleadings had been struck for failure to comply with various disclosure obligations. The respondent brought a motion to quash the appeal for jurisdictional reasons. This court quashed the appeal, stating, at para. 5, that "[t]here are procedures available in the Superior Court to change, vary or set aside" such an order (emphasis added).

[29] Finally, and most importantly, this interpretation of rule 25(19)(e) promotes the underlying philosophy, scheme and purpose of the Family Law Rules. As Benotto J.A. stated in Frick v. Frick, 2016 ONCA 799, at para. 11:

The Family Law Rules were enacted to reflect the fact that litigation in family law matters is different from civil litigation. The family rules provide for active judicial case management, early, complete and ongoing financial disclosure, and an emphasis on resolution, mediation and ways to save time and expense in proportion to the complexity of the issues. They embody a philosophy peculiar to a lawsuit that involves a family.

[30] Rule 2(2) states that the "primary objective of these rules is to enable the court to deal with cases justly". While rule 1(7) permits a court to refer by analogy to the Rules of Civil Procedure where the family rules do not adequately cover a matter, such instances will be "rare": Frick, at para. 12. The Family Law Rules are intended to be a complete procedural code.

[31] An interpretation of "change" as including "set aside" best promotes the efficient and just resolution of family law matters. On a motion under rule 25(19)(e), the court may decide that the most efficient remedy is to vary the order at issue without setting it aside. However, the court may instead determine that the order needs be set aside entirely; a variation of the order at issue would not produce a just result. For example, a new hearing on the merits may be required.

[32] There is no need to further consider the provisions and language from the Rules of Civil Procedure in this case, such as whether the trial judge's order is analogous to a "default order". An analysis of such terms would only confuse the scheme and narrative that are unique to family law litigation. Rule 25(19)(e) adequately covers the matter in this case.

(2) What is the Proper Procedural Route in This Case?

[33] In my view, the proper procedural route in this case was to bring a motion under rule 25(1) of the Family Law Rules rather than to appeal to this court. While this court retains jurisdiction to hear any appeal of a final order, rule 25(19) provides a more effective way to correct orders within its ambit.

E. Disposition

[34] I would accordingly dismiss the motion to quash but order the appeal scheduling unit to de-list the matter until the father's motion to set aside has been decided in the Family Court. If the father's motion to set aside is dismissed, he may appeal to this court filing an amended notice of appeal.

[35] The mother is entitled to her costs of this motion fixed at $1,000, inclusive of disbursements and HST.

Motion dismissed.

End of Document