Brampton Registry No. 942/11

DATE: 2012·I·23

CITATION: O’Donnell v. Davis, 2012 ONCJ 36

ONTARIO COURT OF JUSTICE

BETWEEN:

JENNIFER A. O’DONNELL,

Applicant

— AND —

JUAN A. DAVIS,

Respondent

Before Justice Juliet C. Baldock

Heard on 18 January 2012

Reasons for Judgment released on 23 January 2012

Douglas J. Simpson ....................................................................... counsel for the applicant mother

Juan A. Davis ....................................................................................................... on his own behalf

[1] JUSTICE J.C. BALDOCK:— This is a motion brought by the respondent father to set aside an order, made on a default basis on August 18, 2011. That order provided for custody of and access to one child, Kason Davis O’Donnell, born December 2, 2010. The order also contained a child support provision based on an imputed income.

1: BACKGROUND

[2] The parties never resided together.

[3] The applicant commenced her application on July 4, 2011.

[4] The affidavit of Peter O’Donnell (father of the applicant) confirms personal service of the application returnable August 18, 2011 at 1:00 p.m., and related documents, on July 18, 2011.

[5] These documents included notice to the respondent to attend the Mandatory Information Program (“MIP Notice”, “MIP”) on August 18, 2011 at 3:00 p.m.

[6] The respondent acknowledges receipt of the MIP Notice and some of the other documents but states the first two pages of the application were missing.

[7] According to the court endorsements, the respondent was paged three times at 1:25 p.m., and again at 2:50 p.m. he did not respond.

[8] The respondent maintains that he attended the MIP at 3:00 p.m. but was unaware he was to appear in court at 1:00 p.m.

[9] The respondent has provided the court with a certificate of attendance at the MIP.

[10] On September 29, 2011, the respondent brought a 14B motion to the court requesting that the matter “be restored to the list for a hearing”.

[11] That motion was denied, as the order made August 18, 2011 was final and therefore there was no ongoing matter to be restored to the list.

[12] On October 13, 2011, the respondent filed a new 14B motion asking to have the August 18, 2011 order set aside and to permit him to file an answer and related material.

[13] This motion was considered by Justice Patrick W. Dunn on October 14, 2011, at which time he permitted the filing of the respondent’s answer and other documents and ordered a date be set for the motion.

[14] This date was originally set for January 10, 2012, but subsequently re-scheduled before me on January 18, 2012.

[15] The applicant is represented by counsel Mr. Simpson, the respondent is self-represented but has received assistance from duty counsel in the preparation of his material.

2: ISSUES

[16] In determining whether it is appropriate to set aside a final order, I consider the following:

(a)

whether the respondent acted in a timely manner in bringing his motion;

(b)

whether the respondent’s material discloses a viable defence;

(c)

whether a different outcome would likely have resulted had his material been before the court at the time the order was made;

(d)

whether the respondent has acted in good faith; and

(e)

whether, in the interests of justice, such an order is appropriate.

[17] These issues are addressed as follows:

2.1: Did the Respondent Act in a Timely Manner?

[18] The order was made August 18, 2011. The respondent’s first attempt to deal with the order was made some 5-6 weeks later on September 29, 2011. His second motion was made October 13, 2011, two months after the original order.

[19] I conclude that there was no significant delay in commencing the motion.

2.2: Is There a Viable Defence?

[20] The respondent’s answer at paragraphs 2, 3 and 5 does not disclose any disagreement with,

(i)

the facts set out by the applicant in her application;

(ii)

the claims made by the applicant; or

(iii)

the family history.

[21] The only claim made is for “joint custody” and “support”.

[22] On page 2 of the answer under the heading “6. The important facts that form the basis of my position”, the respondent has actually set out more details of his claim:

Shared custody;

Child support to be paid at $150.00 per month “as per recent agreement with Jennifer O’Donnell”;

That the applicant not be permitted to obtain a passport for the child or authorize travel; and,

“A written custody agreement”.

[23] The respondent’s material discloses no factual basis whatsoever for his claims.

[24] The respondent also filed a form 35.1 Affidavit in Support of Claim for Custody, in which he states that the applicant has a drinking problem and suffers from depression. This is unsubstantiated and vigorously denied by the applicant.

[25] The respondent’s financial statement, sworn October 19, 2011, discloses no income or expenses, no assets or debts, in fact all sections have been crossed out except Schedule B, which indicates that he resides with his wife, their three children and his brother-in-law.

[26] The information is contradictory in that he states his spouse earns no income but contributes $1,200.00 per month towards household expenses, the source of which is not disclosed.

[27] There are no tax returns, nor any other material, filed by the respondent.

[28] He does not indicate the extent to which he has been involved with the child. He offers no evidence of any agreements with the applicant relating to support or access. The financial material is incomplete and of no value whatsoever, and his Answer discloses no disagreement with the facts or claims made by the applicant.

[29] In short, the respondent has disclosed no factual or evidentiary basis for any of his claims.

[30] Accordingly, I cannot conclude that the respondent has demonstrated any defence to the applicant’s claims.

2.3: Outcome

[31] The material filed by the respondent does not disclose the basis for any outcome other than that requested by the applicant and granted August 18, 2011.

2.4: Good Faith

[32] In considering the respondent’s bona fides, I have reviewed the affidavit of the applicant sworn December 31, 2011, to which the respondent has not replied, and is therefore uncontradicted.

[33] The applicant states that she believes the respondent is or was employed at Lange Transportation based on the following:

she picked him up and returned him to that location on July 13, 2010, when the parties attended for her to have a prenatal ultrasound;

the respondent has cancelled plans stating the need to work overtime as the reason;

the respondent has told her he earns $24.00 per hour and “time and a half” for overtime.

[34] The applicant also attached copies of text messages from the respondent, clearly indicating he was employed with such statements as “had to work late” and “we are going to be finished by about 11:00 because the electrician just got here”.

[35] The respondent’s Form 35.1 affidavit states he is unemployed and waiting for a work permit to enable him to look for a job.

[36] In his submissions in court, the respondent stated he had been unemployed since arriving in Canada in 2009.

[37] I conclude that either the respondent was lying to the applicant or to the court. In either case, he has an undisclosed source of funds.

[38] The respondent shows no assets whatsoever on his financial statement, nor any expenses related to a vehicle. However, the applicant has submitted copies of advertisements for the sale of vehicles showing the respondent’s cellular telephone number as the contact number for any prospective purchaser.

[39] The respondent asks the court to order a payment of $150.00 per month for child support based on an alleged agreement with the applicant, yet his financial material shows no means by which he could pay that amount. The applicant confirms that, prior to the court action, the respondent provided her with sporadic support of approximately $300.00 per month plus groceries and necessities for the child. In addition, he has provided cheques for support, one of which was for $500.00, since the order was granted. This reinforces my conclusion that the respondent has not been truthful in his financial disclosure and has access to funds.

[40] Overall, I find that the respondent has not come to the court with clean hands. When he attended the MIP, he would have been made aware of the need to file material and the time lines for doing so. He also had every opportunity to request assistance from duty counsel or the court staff at the Family Law Information Centre, and to enquire about court dates, if necessary.

2.5: Interests of Justice

[41] Self-represented litigants will generally be afforded some leeway in the presentation of their material, especially if they act promptly in submitting the required documents.

[42] This is not a case where delay is a factor.

[43] The respondent’s evidence is not credible.

[44] The respondent’s earnings as reported to the applicant were $24.00 per hour. This translates to an annual income of approximately $50,000.00. He reported working overtime at $36.00 per hour. Accordingly, I find that there is a factual basis for imputing income at $70,000.00. If that income is cash, then the figure would be much higher when grossed up for income tax.

3: CONCLUSION

[45] The respondent has not persuaded me that the order should be set aside.

[46] The applicant frankly admits her child care costs have reduced since October 1, 2011 and as such, the respondent’s share is now $332.80 per month. Accordingly, paragraph 5.2 of the August 18, 2011 order is varied to reflect the lower amount effective October 1, 2011. Otherwise the respondent’s motion is dismissed.

[47] Counsel for the applicant may file a brief (maximum two pages) submission with respect to costs within 30 days.

Released: 23 January 2012

Justice J.C. Baldock