Court File and Parties

Court File No.: D55950/12 Date: 2014-09-23

Ontario Court of Justice

Between:

P.M.

THORA ESPINET, for the APPLICANT

APPLICANT

- and -

S.M. AND S.O.

RESPONDENTS

THE RESPONDENT, S.M., acting in person THE RESPONDENT, S.O., not participating

Heard: September 22, 2014

Justice: S.B. Sherr

Endorsement

Part One – Introduction

[1] The respondent S.M. (the father) has brought a motion to set aside the final order of Justice Carole Curtis (the final order) dated April 24, 2012.

[2] The applicant (the aunt) is the father's sister. The final order granted the aunt custody of S.M. (the child), who is 8 years old. The final order was made on a default basis. The aunt asks that the father's motion be dismissed with costs.

[3] The respondent, S.O., is the child's mother. She resides in Jamaica. She did not attend on the motion but filed affidavits supporting the aunt's position.

[4] The aunt and the father filed voluminous material for this motion. The court read the affidavits listed in the aunt's 14C confirmation form filed with the court. The court also read all of the affidavits filed by and on behalf of the father (insofar as they related to his motion to set aside the final order) contained in Volumes 2-4 of the Continuing Motion Record.

Part Two – Background Facts

[5] In 2009, the aunt sponsored the father, the child and the father's older son to come to Canada from Jamaica.

[6] The father and his two children resided with the aunt when they came to Canada in February of 2009. The child was 3 years and 3 months old at that time.

[7] In October of 2009, the father moved into his own residence and the child returned to Jamaica to live with her mother.

[8] In March of 2010, the child returned to Canada and resided with the aunt. The father maintained his separate residence. The parties disagree on how frequently the father would see the child.

[9] On January 23, 2012, the father returned to Jamaica. The child continued to live with the aunt. The father appeared to be content with this arrangement as the child had lived with the aunt (with the exception of 5 months) since 2009.

[10] On January 31, 2012, the aunt issued an application in this court seeking custody of the child and several incidents of custody.

[11] Justice Curtis found that the respondents were properly served with the Application. As they did not file Answers or appear in court, the court proceeded on a default basis. The aunt was granted final custody of the child and the right to obtain documentation and to travel outside of Canada with the child, without the consent of the respondents.

[12] In her Form 23C affidavit filed in support of the final order, the aunt deposed that the respondents had agreed that she should obtain a custody order. She stated that the child's school, doctors and dentists had at times asked for a custody order. She stated that she had a very good relationship with the respondents and there had never been a problem arranging access.

[13] In May of 2012 the father returned to Toronto. He has maintained a separate residence from the aunt. The child has continued to live with the aunt.

[14] On November 29, 2012, the aunt issued a new application seeking child support from the father and a restraining order against him. The same day, the aunt filed affidavit evidence seeking a temporary order without notice, pursuant to subrule 14 (12) of the Family Law Rules (the rules). Justice Carolyn Jones made orders without notice, prohibiting the father from removing the child from Ontario and restraining him from communicating directly or indirectly with the child and the aunt (except through counsel) or coming within 500 meters of them. The aunt deposed that her relationship with the father changed when he became upset that he was no longer receiving the child tax credit for the child (since she now had legal custody of the child).

[15] On December 10, 2012, on consent, Justice Jones varied the restraining order to permit a supervised access order for the father to take effect.

[16] On January 15, 2013, the father filed his Answer/Claim and brought a motion to set aside the final order.

[17] On March 8, 2013, Justice Jones ordered the father to pay the aunt temporary child support of $192 per month and made a minor amendment to the temporary access order. She also made a referral order to the Office of the Children's Lawyer.

[18] On June 10, 2013, on consent, the aunt and the father agreed to an order that the father's access take place at the Toronto Supervised Access Centre.

[19] The father's motion to set aside the final order was not determined on any of the court appearances set out above.

[20] The Office of the Children's Lawyer delivered their report on October 1, 2013. They made a strong recommendation that the aunt continue to have custody of the child. They also recommended that the father have supervised access to the child, that he become involved in a parenting group and work with the child's therapist to transition to unsupervised access. They also recommended that the father engage in ongoing therapy and see a psychiatrist regularly to assist him in managing his anxiety and stress. The father has filed a Notice of Dispute to this report.

[21] The Office of the Children's Lawyer agreed to provide an updated report. It has not been delivered yet (although the court was advised that a disclosure meeting was recently held with the aunt and the father).

[22] On November 28, 2013, the father issued a fresh motion to set aside the final order.

[23] Amendments to the restraining orders were ordered by Justice Jones on January 22, 2014 and April 24, 2014.

[24] The father's motion to set aside the final order continued to be adjourned. Justice Jones noted that it was adjourned twice in 2014 at the request of the father. On the last occasion, she granted the adjournment, but ordered him to pay the aunt costs of $1,350 for the last two court attendances.

[25] The Toronto Supervised Access Centre terminated the father's access visits on April 27, 2014, due to his alleged violation of their policies (improper questioning of the child). The father advised the court that he has not seen the child since May 5, 2014.

[26] The father was represented by counsel until he filed a Form 4, Notice of Change of Representation (electing to act in person) on June 12, 2014. The father was represented by counsel when the affidavits in support of his motion were filed.

Part Three – The Position of the Parties

[27] The father claims that he was not served with the original Application. He claims that the aunt has perpetrated a fraud on this court by going behind his back to obtain a custody order - misrepresenting to the court that he was served with the Application. He states that he never told the aunt that he would consent to her obtaining a custody order.[^1] The father also claims that the aunt had him sign blank acknowledgement of service cards (AOS cards), telling him they were consents for the child's name to be changed.[^2] The father says that he only became aware of the final order when he attempted to obtain information from the child's school in November of 2012 and the school told him that they couldn't provide this information due to the final order.

[28] The father was very focused in his submissions on his perceived violation of his rights. He felt that unfair court orders are being made in this case as the aunt is a family law lawyer who practises at this court site. He presented himself as a victim of the system.

[29] The aunt claims that the father was properly served and was well aware of the court case. She also claims that the father encouraged her to obtain the custody order as she required it to deal with schooling and medical issues for the child. She also deposes that the AOS cards were sent to the father in Jamaica after he left Canada and that he signed and understood them.

[30] The mother deposed that the respondents both consented to the aunt obtaining a custody order.

Part Four – Legal Considerations

[31] The father has framed his motion under several provisions contained in the rules and the Rules of Civil Procedure (RCP).

[32] The father has first asked to set aside the order pursuant to clauses 25 (19) (a), (b), (d) and (e) of the rules. Subrule 25 (19) of the rules reads as follows:

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

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.

[33] The case law appears to establish that the court does not have jurisdiction to set aside an order pursuant to subrule 25 (19). It only has jurisdiction to change an order for the reasons circumscribed in the subrule. See: Boivin v. Smith, 2010 ONCJ 411 and Ontario (Family Responsibility Office, Director) v. Dick, 2013 ONCJ 198 - both cases applying the reasoning in DiCiaula v. Mastrogiacomo, 268 D.L.R. (4th) 180.

[34] However, applying subrule 1 (7) of the rules, the court can import provisions contained in the RCP (if the matter is not adequately dealt with by the rules) to set aside an order. See: DaRosa v. Gillespie, 2013 ONSC 3072; Boivin v. Smith, supra and Ontario (Family Responsibility Office, Director) v. Dick, supra. The father has asked the court to apply rules 19.08, 38.11 and 59.06 of the RCP as authority to set aside the final order. These rules read as follows:

SETTING ASIDE DEFAULT JUDGMENT

19.08 (1) A judgment against a defendant who has been noted in default that is signed by the registrar or granted by the court on motion under rule 19.04 may be set aside or varied by the court on such terms as are just.

(2) A judgment against a defendant who has been noted in default that is obtained on a motion for judgment on the statement of claim under rule 19.05 or that is obtained after trial may be set aside or varied by a judge on such terms as are just.

(3) On setting aside a judgment under subrule (1) or (2) the court or judge may also set aside the noting of default under rule 19.03.

SETTING ASIDE JUDGMENT ON APPLICATION MADE WITHOUT NOTICE

38.11 (1) A party or other person who is affected by a judgment on an application made without notice or who fails to appear at the hearing of an application through accident, mistake or insufficient notice may move to set aside or vary the judgment, by a notice of motion that is served forthwith after the judgment comes to the person's attention and names the first available hearing date that is at least three days after service of the notice of motion.

(2) A motion under subrule (1) may be made,

(a) at any place, to the judge who granted the judgment;

(b) at a place determined in accordance with rule 37.03 (place of hearing of motions), to any other judge;

(c) to the Divisional Court, in the case of a judgment of that court.

(3) On a motion under subrule (1), the judgment may be set aside or varied on such terms as are just.

AMENDING, SETTING ASIDE OR VARYING ORDER

Amending

59.06 (1) An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

Setting Aside or Varying

(2) A party who seeks to,

(a) have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made;

(b) suspend the operation of an order;

(c) carry an order into operation; or

(d) obtain other relief than that originally awarded,

may make a motion in the proceeding for the relief claimed.

[35] Case law has set out the following factors for the court to consider when determining whether to set aside a default order or judgment:

• The moving party must move promptly after learning of the order to have it set aside.
• The moving party must provide an adequate explanation for the default.
• The moving party must establish an arguable case on the merits.
• The moving party must act in good faith.
• The court should consider the prejudice that may be suffered by the responding parties to the motion.
• The ultimate determination is whether the interests of justice favour setting aside the judgment.

See: Scaini v. Prochnicki, 2007 ONCA 63; O'Donnell v. Davis, 2012 ONCJ 36; Ontario (Family Responsibility Office, Director) v. Dick, supra; Peterbilt of Ontario Inc. v. 156567 Ontario Ltd., 2007 ONCA 333, 41 C.P.C. (6th) 316.

[36] In Paragraphs 60 and 61 of Boivin v. Smith, supra, Justice S.S. Bondy reviews the case law relating to a request to set an order aside on the ground of fraud as follows:

60 In Dodge v. Dodge, 44 R.F.L. (6th) 317, Justice Grant A. Campbell of the Family Court branch of the Ontario Superior Court of Justice reviewed the authorities relating to a request to set an order aside on the ground of fraud pursuant to rule 59.06 of the Rules of Civil Procedure. He said that the test can be found in the old case of 100 Main Street East Ltd. v. Sakas, 8 O.R. (2d) 385, 58 D.L.R. (3d) 161, which was referred to in the decision of the Ontario High Court in International Corona Resources Ltd. v. LAC Minerals Ltd., 66 O.R. (2d) 610, 54 D.L.R. (4th) 647, and wherein the nine essential underlying principles that must be followed for a court to decide to set aside judgment as a result of fraud are summarized. They include (at paragraph [57] Justice Campbell's reasons):

1. The fraud alleged must be proved on a reasonable balance of probability. The more serious the fraud, the more cogent the evidence required.

2. The fraud must be material, going to the foundation of the case.

3. The evidence of fraud must not have been known at the time of trial by the party seeking to rely on it.

4. The unsuccessful trial party is exposed to a test of due or reasonable diligence.

5. The tests are more stringent if the fraud is of a non-party and the successful party at trial is not connected with the fraud alleged.

6. The due diligence test is objective. The questions are what the party knew, and what the party ought to have known.

7. Delay will defeat a motion to set aside a trial judgment under rule 59.06.

8. Relief under rule 59.06 is discretionary. The conduct of the moving party is relevant.

9. The central question is as stated in Wentworth v. Rogers (No. 5) at 538: "it must be shown by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found, which, by themselves or in combination with previously known facts, would provide a reason for setting aside the Judgment."

61 At paragraph [58] of his ruling, Justice Campbell had the following to say about the definition of civil fraud:

[58] In Derry v. Peek, (1889), 14 App. Cas. 337, [1886-90] All E.R. Rep. 1, Lord Herschell summarized the authorities on civil fraud:

... fraud is proved when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth.

[37] If a litigant wishes to challenge a procedural irregularity in a court order or pleading, they should do so promptly. They should not be taking substantive steps in a case and waiting until a later time to proceed with the procedural challenge. This is known as the "fresh step principle". See: Bell v. Booth Centennial Healthcare Linen Services, [2006] O.J. No. 4646 (SCJ); Dolvin Mechanical Contractors Ltd. v. Trisura Guarantee Insurance Company, [2014] O.J. No. 1744 (SCJ). Although this principle is not explicitly mentioned in the rules, it is encapsulated in rule 2.02 of the RCP which reads as follows:

ATTACKING IRREGULARITY

2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,

(a) after the expiry of a reasonable time after the moving party knows or ought reasonably to have known of the irregularity; or

(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.

[38] Rule 2.02 promotes the overall policy objectives of the RCP "to secure the just, most expeditious and least expensive determination of every civil proceedings on its merits" as set out in subrule 1.04 (1) of the RCP. See: Dolvin Mechanical Contractors Ltd. v. Trisura Guarantee Insurance Company, supra, at paragraph 25. This objective is comparable to the primary objective set out in rule 2 of the rules – to deal with cases justly. While the "fresh step" principle is not an absolute bar to the court considering a procedural attack on an order after a substantive step is taken in a case, consideration of the principle is consistent with the primary objective in rule 2 when determining whether it is just in the circumstances to set aside or change an order.

Part Five - Analysis

[39] Since all of the relevant evidence is before it, the court will determine if the final order should be set aside importing rules contained in the RCP, via subrule 1 (7) of the rules. If the answer is no, the court will also determine if the order should be changed pursuant to any of the clauses in subrule 25 (19) of the rules.

[40] The evidence revealed that the aunt made several efforts to serve the respondents with the court papers in Jamaica. She sent copies to them by mail and to other persons in Jamaica by mail for the purpose of serving the respondents personally.

[41] The aunt provided affidavits of service that the father was personally served in Jamaica with the court documents by W.C. on February 12, 2012[^3] and by E.M. (the aunt's sister), on February 18, 2012. W.C. is the brother-in-law of E.M.

[42] The mother confirmed in her two affidavits that both she and the father were served with the court documents in Jamaica at the same time.

[43] In addition, the respondents each signed two AOS cards in the presence of E.M. and the child's former caregiver in Jamaica (E.S.), acknowledging service of the court documents. E.M. and E.S. swore affidavits deposing to this.

[44] The evidence of W.C. was very problematic. He swore an affidavit of service on April 4, 2012, that he personally served the respondents with the court documents. He then swore an affidavit on July 16, 2013, deposing that he did not serve the respondents with the court documents. He said that he was only asked by the aunt to deliver the court documents to E.M. He said that he gave the court documents to E.M.'s son and that E.M. later confirmed receiving them. W.C. deposed in this affidavit that the aunt had told him what copies of the documents to sign and he did so, without reading them. He stated that his affidavit of service was not sworn.

[45] W.C. retracted the evidence in his July 16, 2013 affidavit in a subsequent affidavit sworn on December 6, 2013. In essence, this affidavit claimed that he was tricked into signing his affidavit of July 16, 2013 - he did not understand it, and the information in it was false. He said that the father took advantage of his poor reading ability. He reverted to his original evidence that he personally served the respondents with the court documents and that his affidavit of service was properly sworn.

[46] In response, the father's former counsel filed a very convincing affidavit that W.C. had full knowledge of the contents of his affidavit sworn on July 16, 2013 and executed it voluntarily at her office. Whether the contents of that affidavit are accurate is another story.

[47] The court cannot conclude, based on W.C.'s evidence that he served (or didn't serve) the father with the court papers. He keeps changing his evidence. For the purpose of this motion, the father will be given the benefit of the doubt and the court will give no weight to W.C.'s original affidavit of service.

[48] However, the analysis does not end there. The court must also consider the affidavit of service of E.M. and the AOS cards.

[49] E.M. provided considerable detail in her affidavits about how the court papers came to her and how she arranged to personally serve the respondents. She was also present when the AOS cards were signed by the respondents. She confirmed that all of the court documents listed on the AOS cards were served on them.

[50] E.M.'s evidence was confirmed by both E.S. and the mother who were present at the time the court documents were served on the father.

[51] The father asked the court to reject E.M.'s evidence as her affidavit of service was sworn more than one year after the purported service of the court documents. The aunt provided a reasonable explanation about why E.M's affidavit was sworn at the later date. The aunt first received the affidavit of service of W.C., believed it was sufficient and filed it with the court. There did not appear to be any need to have her sister swear a second affidavit of service at that time. When W.C.'s affidavit of service was challenged, it then became necessary for her to obtain E.M.'s affidavit of service.

[52] The father denied being served with the court papers by E.M. However, he did not deny that he signed the AOS cards. He claimed in his affidavit that the aunt gave him the AOS cards about one to two weeks before he left to Jamaica (he left on January 23, 2012) and told him to sign them in Jamaica and return them to her. He deposed in his affidavit of January 15, 2013 that he did not receive any court documents with the AOS cards, but they were dated January 31, 2012. He said that the aunt told him that the documents were required to legally change the child's name and that he did not suspect that the documents were to give the aunt custody of the child. He deposed that he signed the AOS cards in Jamaica and gave them to E.M. to return to the aunt.

[53] The evidence of the father was not credible on the face of the documentation. The AOS cards returned to the aunt had a written insertion of the court file number and a detailed listing of the court documents served. This information only became available on January 31st, 2012 (when the aunt issued the application) - 8 days after the father left Canada to go to Jamaica. It is not possible that this information could have been on the AOS cards if they were given to the father prior to his leaving Canada, as he alleged.

[54] The aunt retained the services of two computer technicians (F.M. and H.E.) who both swore affidavits for this motion. They both scanned the aunt's computer to determine when the AOS cards were generated and to ascertain if any such documents were deleted from her computer. Both F.M. and H.E. deposed (retained independently from the other) that the AOS cards were generated from the aunt's computer on February 4, 2012 and that no AOS cards were deleted from her computer. The father could not have taken the AOS cards with him to Jamaica, as he stated, on January 23, 2012. They were clearly given to him in Jamaica by E.M. This seriously undermined his credibility.

[55] Further, the father, in his affidavit sworn on May 23, 2014, deposed that the aunt did not provide him with prior notification of her request to change the child's name. This appears to contradict his statement in his January 15, 2013 affidavit where he states that he thought the purpose of the AOS cards was to permit the aunt to change the child's name. His explanation about why he signed the AOS cards was not credible.

[56] The mother acknowledged receipt of the April 24, 2012 court order by mail. The father denied receiving it. The aunt deposed that she mailed the final order to the father.

[57] The court makes the following findings based on the evidence:

• The father was personally served with the court papers by February 18, 2012 (at the latest). The court accepts the evidence of E.M., E.S. and the mother concerning service of the court documents.

• The father signed the AOS cards and understood its contents.

• The father was well aware of the court case and chose not to defend it.

• There has been no fraud committed with respect to the service of the court documents.

[58] The analysis does not end there. The court must still determine whether to exercise its discretion to either set aside or change the final order for reasons other than the father not having been given notice of the Application.

[59] The court finds it more probable than not that the father received the final order in a timely manner by ordinary mail, as it has found his evidence not to be credible about being served with the court documents in the first place.

[60] The father returned to Canada from Jamaica in May of 2013. He did not move promptly to set aside the final order. The court does not accept, on a balance of probabilities, his explanation that he first learned of the final order in November of 2012.

[61] The father did not provide an adequate explanation for his delay in bringing his motion to set aside the final order. It appears to be more than coincidence that his desire to set aside the final order happened after he learned that he would no longer receive the child tax credit.

[62] The "fresh step" principle is also a factor in this case. The father brought a motion to set aside the final order on January 15, 2013, but did not actively pursue an adjudication of his motion. Instead, he took substantive steps in this case. He attended on case conferences and motions. He asked for substantive relief. Orders were made with respect to access and the referral to the Office of the Children's Lawyer. Restraining orders were made. The father participated in the investigation process of the Office of the Children's Lawyer.

[63] It was only after the father received the adverse report of the Office of the Children's Lawyer that he brought a fresh motion on November 26, 2013 to set aside the existing order. The "fresh step" principle is intended to avoid this type of litigation behaviour. A party cannot sit on a potential procedural remedy to see how the winds are blowing on the substantive aspects of the case.

[64] The aunt would suffer considerable prejudice if the father's motion was granted. She would have to start over on the custody case when the child has been in her care for over five years. She has already incurred considerable expenses on this case.

[65] There also appears to be no merit to the father's case for custody. The child has been in the aunt's care for over 5 years and appears, for the most part, to be doing well. The father has not seen the child since May 5, 2014 and was only exercising supervised access before then. His access wasn't terminated by the aunt, but rather by the Toronto Supervised Access Centre, for violation of their policies. The aunt has brought a summary motion judgment that will be heard by another judge.

[66] One of the grounds for changing an order under clause 25 (19) (b) of the rules is if the order contains a mistake. The father provided no evidence to support this ground of his claim.

[67] The court further finds, pursuant to clause 25 (19) (e) of the rules, that the notice given to the father was adequate and that the father did not provide a satisfactory reason for not being present at the hearing. He did not fail to appear at the hearing of the case by accident or mistake (two of the criteria for potentially setting aside an order under rule 38.11 of the RCP). There is no basis for setting aside or varying the order based on facts arising or discovered after the final order was made (criteria for potentially setting aside an order under subrule 59.06 (2) of the RCP).

[68] The court finds that it would not be just in all of the circumstances of the case to either set aside or change the final order.

[69] This decision does not preclude the father from proceeding with the balance of relief claimed in his Answer/Claim.

Part Six – Conclusion

[70] An order will go on the following terms:

• The father's motion to set aside the final order of Justice Curtis dated April 24, 2012 is dismissed.

• The father's motion to change the final order of Justice Curtis based on any of the clauses in subrule 25 (19) of the rules is dismissed.

[71] If the aunt wishes to seek her costs of this motion she shall serve and file written submissions by October 3, 2014. The father shall have until October 15, 2014 to serve and file any responding submissions. The submissions shall not exceed 2 pages, not including any bill of costs or offer to settle the issue. The submissions should be delivered to the trial coordinators office on the second floor.

Justice S.B. Sherr

Released: September 23, 2014

[^1]: The father acknowledged that he had a good relationship with the aunt until he learned of the custody order.

[^2]: The aunt applied to change the child's first name to the name commonly used by her family. The father was content with this.

[^3]: This was the affidavit of service that was produced to Justice Curtis when she proceeded on a default basis.