Court File and Parties
Court File No.: D46108/08 Date: March 29, 2017
Ontario Court of Justice
Re: S.O. – Applicant And: E.A. – Respondent
Before: Justice Roselyn Zisman
Counsel: Lance Carey Talbot, for the Applicant Stella Iriah Anaele, for the Respondent
Heard On: March 23, 2017
Endorsement on Motion
Nature of Proceeding
[1] This is a Motion to Change the order of Justice Brownstone dated June 26, 2009 by the Respondent ("father") who had been noted in default of that proceeding.
[2] The order provided that the Applicant ("mother") have custody of the child of the relationship, E.O.A. born […], 2001 and the father pay child support of $557.00 per month commencing April 23, 2009 based on an attributed income of $60,000. A restraining order was also granted that prohibited the father from molesting, annoying or harassing the mother and child and that he not be within 200 meters of their place of residence, place of employment, school or anywhere he knows them to be except in accordance with any access order.
[3] The Respondent's Motion to Change sought to terminate his support obligation as of February 1, 2015 and rescind any arrears on the basis that he was never served with the Application and he also sought an order for joint custody with the child to reside with him on the basis that the child had expressed her preference to live with him.
Evidence on the Motion
[4] The parties appeared before the court on several occasions with the father making various allegations about the mother's care of the child. The father continued to allege that the child was not in the care of the mother but in the care of the Windsor Children's Aid Society despite the mother providing a letter from that society confirming that the child had never been in their care and that she was residing with the mother.
[5] With respect to the service of the original Application, an affidavit of service by a process server was filed setting out that the father was personally served at the corner of two streets in Toronto. There is no indication in the affidavit of service as to how the process server was able to identify the father. However, the mother deposed that there had been problems serving the father who was evading service and she told the process server that the father usually could be found in the vicinity of a bar located in an area of the city known as Little Portugal. The problems of serving the father are corroborated by the endorsements by the First Appearance Clerk that indicate the matter was adjourned two times for service.
[6] Counsel for the mother provided father's counsel with the name and contact information of the process server who served the father and confirmed that he had contacted the mother's previous counsel who had no information about the case other than providing the contact information for the process server.
[7] On December 15, 2016 father's counsel was granted leave to bring a motion for the appointment of the Office of the Children's Lawyer, release of the child's records and a motion to set aside the order of June 26, 2009 on the basis that the father was not served. A timetable was set for the serving and filing of motion materials.
[8] The father deposes that he was never served and if he had been aware of the court proceedings he would have appeared. He further deposes that he was in touch with the mother after the order was made and she never mentioned it to him.
[9] The father deposes in his affidavit sworn February 15, 2017 that he had a good relationship with E.O.A., took the mother and E.O.A. out for lunch or dinner several times and gave the mother money for E.O.A. at the end of each outing and that the last time they went out was May 2014. He also deposes that he would give the mother cash ranging from "$250 and $500 on a bi-weekly/quarterly basis" and gave the mother additional monies when he received his tax refund. He further deposes that when E.O.A. became a teenager he gave her money directly.
[10] The mother denies that the father provided her with money except for about a $100 in total in the first year after the separation. The mother only recalled one time in October 2014 when he took herself and the child out for lunch and at that time gave the child $500 to buy a cell phone and promised to pay her cell phone bill but that he stopped after two months. The mother agreed that the last time they all went out together was in about May 2014.
[11] The mother deposes that she did not specifically mention the order to the father but did try to raise the issue of child support. The mother deposes that she did not want to anger the father as there was a history of him being verbally abusive to her and he blamed her because he was charged with sexually assaulting her daughter from a previous relationship. Further, the final order was obtained by means of a 23C affidavit filed over the counter and the mother was not aware if the order had been granted.
[12] In his reply affidavit sworn March 17, 2017 the father deposes that he gave the mother $1,000 for a cell phone for the child and he has been responsible for all of the bills as the mother refused to pay for them. He produced a receipt for $2,052.27 dated February 2, 2016 for payment of a cell phone bill. He did not explain why if he had been paying the cell phone bill regularly as he alleged why there would be such a large balance.
[13] The father only found out about the order when he received a letter in January 2015 from the Family Responsibility Office notifying him of the order. He immediately contacted the Family Responsibility Office, attended at the courthouse to find out about the order and was given a copy of the endorsement and then he consulted with counsel. He commenced this Motion to Change on February 12, 2105.
[14] In June 2015, he received a draft copy of the order of June 26, 2009 from the mother's present lawyer. The order was subsequently issued and entered on October 13, 2015[1].
[15] With respect to the income of the father he deposes that he is not a certified plumber and did not earn $60,000 as alleged by the mother in the initial Application. He deposes that he can only work as a helper or assistant/labourer to a certified plumber. He further deposes that he has only earned between $30,000 and $40,000. He further deposes that he earned more money in 2015 as he worked overtime and received bonuses but that the overtime may vary drastically in the following years.
[16] The mother deposes that when the court order was made the father was employed full-time as a plumber with N[…] Services and was earning about $5,000 per month. She produced a business card from that company. The father did not provide any evidence from his employer with that company or proof of his earnings for 2009.
[17] The father filed financial statements sworn March 10, 2015 and December 6, 2016 and provided most of his Notices of Assessment. The father's income as reported to Canada Revenue Agency is as follows:
| Year | Income |
|---|---|
| 2009 | no information provided |
| 2010 | $30,005 |
| 2011 | not produced despite deposing in his affidavit sworn March 10, 2015 he filed his return and would file the Notices of Assessment |
| 2012 | $32,060 |
| 2013 | $33,382 reported but $39,956 processed |
| 2014 | $35,215 |
| 2015 | $59,431 |
| 2016 | no information provided |
Applicable Law
[18] Family Law Rule 25 (19) ("Rule") permits a court to change an order in several circumstances including if the order was obtained by fraud, or if it was obtained in the absence of a party and such absence occurred because of reasons satisfactory to the court. The Rule states as follows:
Changing Order—Fraud, Mistake, Lack of Notice
(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.
[19] Until recently there had been conflicting jurisprudence with respect to whether or not the wording of Rule 25 (19) authorized the Ontario Court of Justice to set aside an order or if resort needed to be made to the Rules of Civil Procedure.
[20] In the case of Gray v. Gray[2] the Ontario Court of Appeal held that Rule 25 (19) does include the authority to set aside an order based on three grounds:
The definition of "change" in the Rules is broad and means to "vary, suspend or discharge";
Such a broad definition is consistent with prior comments by the court; and
Most importantly this interpretation promotes the underlying philosophy, scheme and purpose of the Rules.
[21] The court further held at paragraph 31 that:
An interpretation of "change" as including "set aside" best promotes the efficient and just resolution of family law matters. On a motion under r. 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 to 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.
[22] Where service is challenged, the onus lies on the person said to have been served to rebut the evidence of service provided by the other party.[3] What the onus requires will vary with the circumstances of the case, however once the burden of proof has shifted to the respondent, a bald denial of service, unaccompanied by any corroborating evidence, is unlikely to be persuasive.[4]
[23] In the case of Mountain View Farms Ltd. v. McQueen,[5] the Ontario Court of Appeal articulated the factors that a court should consider on a motion to set aside a default judgment. Among those factors are the following:
Whether the motion to set aside was brought promptly after the defendant learned of default judgment;
Existence of a plausible excuse or explanation for failing to comply with Rules of Civil Procedure;
Whether facts establish that the defendant has an arguable defence on the merits;
Potential prejudice to moving party should the motion be dismissed and potential prejudice to the respondent should the motion be allowed; and
The effect of any order that the court might make on the overall integrity of the administration of justice.
[24] These factors are not treated as rigid rules; the court must consider the particular circumstance of each case to decide whether it is just to relieve the Respondent from the consequences of his default.[6]
[25] The court's ultimate task on a motion to set aside a default judgment is to determine whether the interests of justice favour granting the Order.[7]
[26] The default judgment may be set aside in whole or in part, as the interests of justice may require.[8] If an arguable defence is shown on the merits in relation to only a portion of the applicant's claim, the court may set aside the default judgment, only in relation to those issues. In showing a defence on the merits, the respondent need not show that the defence will inevitably succeed. However, the respondent seeking to set aside a default judgment is required to show specific evidence which demonstrates a genuine issue for trial.[9] There must be an air of reality to the defence being advanced by the respondent.[10]
If the court exercises its discretion to set aside the default judgment, the court may do so on terms as are just.
[27] The court must balance the competing principles of ensuring litigants comply with their obligations under the Rules and litigation is brought to an end in a timely fashion on the one hand, and not permitting procedural irregularities from barring a meritorious defence on the other.[11]
Analysis
[28] The onus rests on the father to prove that he was not served with the initial Application and supporting documents. He has simply denied he was served. The mother relies on the sworn affidavit of an independent process server that the father was served. Although it might have been prudent for the process server to include how he was aware that the person he served was the father such as stating he had a photo or that the father self-identified himself. However, such information is not required on the affidavit of service form.
[29] Counsel for the father could have served a Motion and summons for the process server to be or questioned in person or by written questions in accordance with Rule 20 but she chose to simply rely on the bald denial of service by the father.
[30] I find that the father has not met the onus on him to prove he was not served. I find that the father was properly served.
[31] As the father did not file an Answer or any pleadings, he was noted in default and the matter proceeded as an uncontested hearing. The father is now seeking to set aside that order.
[32] With respect to the factors the court must consider in considering if an order should be set aside, the father did commence this motion to change promptly after the order came to his attention. Through no fault of either party, counsel for the mother did not prepare the June 26, 2009 order so that the order, was never brought to the attention of either party until 2015.
[33] The father has an arguable defence as he has provided proof of his income for most of the years in question and except for the year 2015 he did not earn close to $60,000.
[34] Although I find that the father is not a credible witness given the lack of any details in his affidavits or any corroboration regarding the amount of money he gave the mother and the child, the Notices of Assessment he produced are based on T-4 income except for 2015 where there is a notation that he receive "other income" of $126. Although there may be some suspicion that the father was earning cash, the mother would not be able to provide any evidence to this effect and did not do so when she filed her affidavit for an uncontested hearing.
[35] I have considered that there would be considerable prejudice to the father if his motion was dismissed but there would also be prejudice to the child in not being able to obtain the child support that the father should have being paying since 2009.
[36] I find that the most efficient remedy and one that promotes a just resolution of this case, is that the order should be varied and the father required to pay child support based on his actual income.
[37] When I asked father's counsel her position if I varied the order instead of setting it aside, she submitted that the father should get credit for the funds he paid and that his support obligation should only commence in 2015. Counsel submitted that an average of the funds the father stated he paid should be used to calculate any credit. Based on the vague numbers used by the father and the fact that the mother denied receiving these funds, there is insufficient evidence to calculate any credit to the father. I am also not prepared to give the father credit for the $2,052.28 he states he used to pay for the child's cell phone bill, as at the time the case was already before the court and the father should have paid any funds through his counsel or through the court if he expected to have these funds considered to be child support.
[38] It was the position of mother's counsel that if the court was considering varying the order then the father should be imputed income at the rate of $60,000 for the years of 2009 and 2011 when he failed to provide his income information to the court. I agree with this submission and draw an adverse inference as a result of the father's failure to provide proof of his income for those years.
[39] I also find that as the father did not provide proof the father his 2016 and year to date 2017 income, that the court is entitled to rely on his 2015 income as being the most current income information available.
[40] Based on the following income, the father's child support obligation as of April 23, 2009 is as follows:
| Year | Income | Monthly Child Support | Yearly Amount Owing |
|---|---|---|---|
| 2009 | $60,000 (imputed) | $557 | $5,013 |
| 2010 | $30,005 | $270 | $3,240 |
| 2011 | $60,000 (imputed) | $557 | $6,684 |
| 2012 | $32,060 | $270 | $3,240 |
| 2013 | $39,956 | $359 | $4,308 |
| 2014 | $35,215 | $305 | $3,660 |
| 2015 | $59,431 | $540 | $6,480 |
| 2016 | $59,431 (imputed) | $540 | $6,480 |
[41] The total arrears from April 23, 2009 up to and including December 23, 2016 are $39,105.00. As no submissions were made with respect to the repayment of any arrears, it will be up to the Respondent to negotiate a repayment plan with the Family Responsibility Office.
Order
[42] There will be an order as follows:
The Respondent's Motion to Change is dismissed.
The Order of June 29, 2009 is varied as follows:
(a) The arrears from April 23, 2009 up to and including December 23, 2016 are fixed at $39,105.00.
(b) Based on the Respondent's imputed income of $59,431, he shall pay child support to the Applicant for the support of the child, E.O.A. born […], 2001, in the amount of $540.00 per month as of January 23, 2017 in accordance with the Child Support Guidelines.
Support Deduction Order to issue.
[43] If the Applicant as the successful party is claiming costs, brief cost submissions not to exceed 3 pages together with a Bill of Costs and any Offer to Settle to be served and filed with the trial co-ordinator within 30 days. The Respondent shall have 14 days to serve and file any responding cost submissions not to exceed 3 pages together with any Offer to Settle with the trial co-ordinator.
Justice Roselyn Zisman
Date: March 29, 2017
Footnotes
[1] The order was never prepared by the lawyer who represented the mother on initial Application.
[2] 2017 ONCA 100
[3] Allfur Trading Ltd. v. Polizos (1991), 7 C.P.C. (3d) 39 (Ont. Master); Teskey v. Ricciardella, [1999] O.J. No. 3077.
[4] Long v. Carl, [2000] O.J. No. 1007, [2000] O.T.C. 207, 2000 CarswellOnt 1004 (Ont. S.C.J.); Teskey v. Ricciardella.
[5] 2014 ONCA 194, [2014] O.J. No. 1197, 119 O.R. (3d) 561, 317 O.A.C. 255, 372 D.L.R. (4th) 526, 2014 CarswellOnt 3011.
[6] Ibid, para 50
[7] Ibid, paragraph 47
[8] Ibid, at paragraph 64.
[9] Teskey v. Ricciardella, [1999] O.J. No. 3077 (Ont. Master), at paragraph 10.
[10] Mountain View Farms Ltd. v. McQueen, at paragraph 51.
[11] Teskey v. Ricciardella at paragraph 5.