Court of Appeal for Ontario

Date: 20210119 Docket: C68243

Tulloch, Miller and Paciocco JJ.A.

BETWEEN

Marlene Dale Hilton Applicant (Respondent)

and

Charles Mark Hilton Respondent (Appellant)

Counsel: Michael J. Stangarone and Stephen P. Kirby, for the appellant Dale A. Turner, for the respondent

Heard: November 18, 2020 by video conference

On appeal from the order of Justice Paul Nicholson of the Superior Court of Justice, dated February 24, 2020.

Reasons for Decision

Background

[1] The respondent initiated divorce proceedings in September 2018. The appellant had not filed an Answer by the time of the first case conference on March 21, 2019. The respondent brought a motion for an order for an uncontested trial. At the case conference, Fryer J. noted the appellant in default and ordered him to deliver his Answer, disclosure, and financial statements – including Notices of Assessment – within 30 days. She held the respondent’s motion for an uncontested trial in abeyance until the 30-day period expired. If the appellant delivered the materials as required, the noting in default would be set aside and the motion for an uncontested trial would be dismissed. If not, the uncontested trial would proceed.

[2] The appellant did not comply with the order. By the second case conference on June 19, 2019, he had still not filed an Answer or any materials. Accordingly, Fryer J. confirmed the appellant’s noting in default and scheduled the uncontested trial for September 23, 2019. She also ordered the partition and sale of the matrimonial home.

[3] The uncontested trial was ultimately held on November 22, 2019 before Fryer J. She made orders providing the respondent with exclusive possession of the matrimonial home, facilitating the sale of the matrimonial home and the division of the sale proceeds, and granting the respondent temporary spousal support. The determination of final spousal support and child support were left to a continuation of the uncontested trial. The continuation has not yet taken place.

[4] Thereafter, in February 2020, the appellant brought a 14B motion seeking the following relief: setting aside all orders made to date; granting leave to serve and file an Answer and financial statements; and granting leave to dispense with the requirement to serve and file his Notices of Assessment, which he stated were unavailable due to the actions of the respondent. The motion was heard in writing by Nicholson J., who dismissed the motion. Although Nicholson J.’s handwritten endorsement is brief, his reason for the dismissal appears to be that the appellant had not appealed any of Fryer J.’s orders.

[5] The appellant now appeals Nicholson J.’s dismissal of the 14B motion and requests this court set aside Nicholson J.’s order. The appellant also requests that this court set aside all of Fryer J.’s previous orders, grant the appellant 30 days to file his Answer and financial statements without the Notices of Assessment, and order the parties to proceed to another case conference on the substantive issues. In the alternative, the appellant requests this court order the 14B motion be determined by another judge of the Superior Court of Justice via an oral hearing. Finally, he requests costs of this appeal. For the reasons set out below, we allow the appeal in part.

Analysis

[6] The appellant argues that the 14B motion before Nicholson J. was brought under r. 25(19) of the Family Law Rules, O. Reg. 114/99, although he did not specify that rule in the Notice of Motion. He makes his argument on the basis that the respondent had committed a fraud on the court through misrepresentations and material omissions in her evidence at the hearing of the uncontested trial. That is, the appellant argues there were things the respondent knew that she did not disclose, and things she said that she knew were not true. This resulted, the appellant argues, in an interim support order that was too high and an unfair division of the proceeds from the sale of the matrimonial home.

[7] Nicholson J. did not address the substance of the motion to dismiss prior orders on the basis of fraud. He dismissed the motion on the basis that Fryer J.’s November 22, 2019 and previous orders could not be set aside because the appellant had not appealed any of those orders.

[8] The appellant argues that the only route for him to challenge the November 22, 2019 order was to bring a motion to change under r. 25(19). An appeal would have been premature: Ketelaars v. Ketelaars, 2011 ONCA 349, 2 R.F.L. (7th) 296; Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65. This court held in Gray that r. 25(19) provides a more effective way to correct orders in its ambit and de-listed an appeal pending a decision at the court of first instance.

[9] We agree with this submission to some extent. However, some of the orders the appellant seeks to set aside were made on the basis of his own failure to provide required disclosure. Nicholson J. was correct that an appeal would be required to set aside those orders. However, to the extent that the relief sought by the appellant was on the basis of the respondent’s misrepresentations at trial, those assertions ought to have been decided on the merits.

[10] By failing to comply with the Family Law Rules and the orders of Fryer J., the appellant is the author of much of his misfortune. When a party does not participate in the process, things tend to not go well. Nevertheless, the appellant’s allegations of the respondent’s misrepresentations and material omissions must still be determined on the merits.

[11] We allow the appeal in part and direct that the allegations of the respondent’s misrepresentations and material omissions be returned to the Superior Court for a determination of the merits under r. 25(19)(a). We offer no opinion on the merits of that motion.

[12] It remains for the trial judge to determine the extent of the appellant’s participatory rights at the continuation of the trial, including whether the appellant will be permitted to advance any reliable and credible evidence that the respondent is misleading the court.

Disposition

[13] The appeal is allowed and the matter is returned to the Superior Court of Justice for a new hearing of the r. 25(19)(a) motion, based on the written record that was before Nicholson J. Costs of the appeal are fixed at $15,000 inclusive of HST and disbursements. These costs are to be awarded to the party that is successful on the r. 25(19) motion. However, if the appellant abandons the r. 25(19) motion, the costs of this appeal will be payable to the respondent, subject to any contrary order by the Superior Court of Justice.

“M. Tulloch J.A.”

“B.W. Miller J.A.”

“David M. Paciocco J.A.”