Court Information
Ontario Court of Justice
Date: March 5, 2018
Court File No.: Toronto: D72031/14
Parties
Between:
SANA NASEEM Applicant (Mother, Responding Party)
— AND —
SAMIR SADDIQUI Respondent (Father, Moving Party)
Before the Court
Justice Robert J. Spence
Heard: March 1, 2018
Reasons for Judgment Released: March 5, 2018
Counsel
Ms. Pamila Bhardwaj — counsel for the applicant
Respondent father — in person
Judgment
R. J. SPENCE, J.:
Introduction
[1] The respondent father has brought a motion to set aside my default order dated November 6, 2017.
[2] By that order the court, inter alia, granted sole final custody of the four year-old child to the mother and awarded her child support payable by the father in the amount of $442 per month, based on an imputed annual income to father in the amount of $49,100.
[3] The father now says that this order ought not to have been made on a default basis because he was "actively" involved in the proceeding and he was very close to finalizing his materials when he was noted in default and, accordingly, the case was not fairly determined on the merits.
[4] At the conclusion of argument I dismissed the father's motion, with costs, for reasons to follow. These are my reasons.
Events Leading to the Default
[5] The mother issued her application in this court on July 5, 2017. In that application she sought certain orders, including custody, incidents of custody and child support.
[6] The application was served on the father on July 9, 2017, by special service.
[7] The first return date was on September 7, 2017, before the first appearance clerk of the court. As at that date the father had not yet filed an Answer/Claim or any of the financial documentation required by the Family Law Rules (Rules). The deadline for filing his responding material had been August 9, 2017, namely, 30 days from the date of service.
[8] The parties consented to an extension of time for father to file, by October 10, 2017. The matter was then adjourned to October 30, 2017.
[9] The matter returned to the first appearance clerk on October 30, 2017. By then the father had still not filed his responding material. On that date, the mother's counsel received instructions to proceed on a default basis, by a 23C affidavit.[1] Also on the same date the father handed mother's counsel his Answer. However, he did not serve any of his financial material on the mother's counsel. Nor did he file any of the required materials in the court record.[2]
[10] Accordingly, as at October 30, 2017 the father was in default, not having complied with two extensions of time to serve and file his full responding material.
[11] On November 6, 2017 the mother filed her 23C affidavit in support of her request for a default order. On the same day the court made the orders referred to earlier herein.
[12] On January 2, 2018 the father filed a chamber's motion seeking to set aside the default order. The court dismissed that motion, without prejudice to the father to bring his motion returnable in court, allowing sufficient time for the mother to file her response to his motion.
[13] Father then brought the within motion on February 13, 2018. Mother filed her responding materials on February 26, 2018. The motion was argued before me on March 1, 2018.
Analysis
[14] Rule 25(19) of the Rules provides:
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. O. Reg. 151/08, s. 6.
[15] This Rule states that the court may "change" an order. It does not specifically state that the court may "set aside" an order. However, the Court of Appeal has held that the language of this Rule, combined with the overall intent of the Rules to do justice to the parties, is sufficiently broad to permit a court to set aside an order in the appropriate circumstances. Gray v. Gray, [2017] O.J. No. 592 (Ont. C.A.).
[16] Accordingly, the court accepts that it has jurisdiction to grant the relief which the father is requesting.
[17] The question for the court, however, is whether that relief should be granted in the interests of justice.
[18] In Hoang v. Schorn, 2010 ONSC 2300, Reilly, J. was faced with a request to set aside a default judgment. At paragraph 9, the court stated [my emphasis]:
The law with respect to setting aside a default judgment is well settled, though its application may be problematic depending upon the circumstances. I do not intend to analyze the jurisprudence but simply note that I am mindful of the leading cases of Nelligan v. Lindsay 1945 CarswellOnt. 173 (Ont. S.C.J.), Caldwell v. Caldwell 2007 CarswellOnt. 433, [2007] O.J. No. 332 (Ont. S.C.J.), Bank of Montreal v. Chu 1994 CarswellOnt. 260 (Ont. C.J. Gen. Div.) and Page-Cole v. Cole, 2009 CarswellOnt. 6373, [2009] O.J. No. 4386 (S.C.J.), and in my view the principles governing the setting aside of a default judgment may be summarized as follows:
The application should be made as soon as possible after the judgment or ruling comes to the knowledge of the defendant, but mere delay will not bar the application, unless an irreparable injury will be done to the plaintiff or the delay has been willful;
The application to set aside the default judgment should be supported by affidavit material setting out the circumstances under which the default arose and disclosing a defense on the merits;
The affidavit material should not only explain the delay in making the application, but set out the nature of the defense and a statement of facts which will enable the court to determine whether there are real triable issues. The longer the delay in bringing the motion to set aside the default judgment, the clearer a possible defense on the merits must be established.
[19] In Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd., 2007 ONCA 333, 87 O.R. (3d) 479, the Court of Appeal held that there must be a sufficiently fleshed out defence disclosed in the affidavit of the moving party, in support of a motion to set aside a default judgment.[3]
[20] In the present case, the court is not overly concerned with the father's delay in moving to set aside the default judgment. However, it is the lack of substance in the father's supporting affidavit which causes the father's motion to fail. Specifically, his supporting affidavit material is almost entirely devoid of stating the grounds for his proposed defence.
[21] In his supporting affidavit, the following represents the totality of the father's proposed defence in respect of the child support and access issues:
The issues of child support and access in this case are very serious. I have been laid off from my job and have sought employment. Moreover, I have been given minimal access to my child. These are issues that are of to [sic] concern me as well as the best interest of the child and they should be adjudicated fairly.
[22] There is nothing further in the father's supporting affidavit which addresses a possible defence to those substantive issues.
[23] Dealing first with the support issue, the father failed to file with his supporting affidavit either his sworn financial statement, as required by subrule 13(1)(b) or his Notices of Assessment from Canada Revenue Agency for the last three years, as required by subrule 13(7).
[24] Therefore it is impossible for this court to determine whether on the financial issue the father's proposed defence has any merit. Despite having been served with the application in July 2017, despite having been given a number of extensions to file his responding material, and even now at this late date when he seeks to set aside the default order on the support issue, he has yet to file his financial material as required by the Rules. All of this in respect of an application which was served on him almost 8 months ago.
[25] Furthermore, even if the father's financial circumstances have changed since the default order was made, that is something which can be remedied by a motion to change pursuant to section 37 of the Family Law Act. Simply put, the father is not deprived of an opportunity to change the child support order, providing the circumstances warrant such a change.
[26] I turn next to the father's claim to "have been given minimal access" to the child of the relationship. The default order was in fact silent as to access. Pursuant to the Children's Law Reform Act (CLRA), the father is at liberty to bring an application seeking specified access, should he choose to do so.[4]
[27] Leaving aside for the moment that the father has shown no defence to the access issue, he is not deprived of the opportunity to seek relief by pursuing his application under the CLRA.
[28] Furthermore, it is difficult to comprehend what his complaint is about the access issue when the default order was actually silent on that issue.
[29] I turn next to the issue of child custody and the incidents of custody. When I asked the father during argument what he really wanted from this proceeding, he claimed he wanted custody of his child. And yet, nowhere in the father's supporting affidavit does the father even mention why, or on what basis, he would seek to change the default order insofar as custody is concerned. In fact, as I read his supporting affidavit, the word "custody" appears only once in that affidavit, when the father states:
I wish to file my Answer and Affidavit in Support of a Claim for Custody or Access.[5]
[30] Once again, that is the totality of the basis for seeking to set aside the default order in respect of the custody issue.
[31] It is important to note that the father was, at all material times, represented by counsel in this matter until the father filed a Form 4, Notice of Change in Representation on February 7, 2018.
[32] I note this because of father's oral plea to the court during argument that he didn't really understand the various rules of court and so that any deficiencies in his motion material to set aside the default order should be excused by the court, notwithstanding the fact that the father acknowledged that his supporting affidavit in the motion was in fact drafted by a lawyer, or by someone with legal training. The court treats the father's plea as disingenuous in the circumstances.
[33] Courts almost always prefer to decide cases on the merits rather than on a default basis. And because of that, in a motion such as this reasonable latitude should be afforded to the moving party, in an effort to decide the case on the merits, and thereby do justice to the parties.
[34] However, in this case the father has fallen far short of persuading the court that the interests of justice require the court to set aside the default order and to permit the father to inject himself back into a proceeding which was properly and fairly put to rest almost four months ago.
Released: March 5, 2018
Signed: Justice Robert J. Spence
Footnotes
[1] Pursuant to subrule 23(22) of the Rules
[2] As at the date of the hearing of this motion, the father had still not filed any of his materials, not even in draft form.
[3] At paragraphs 3 and 4.
[4] Section 21 of the CLRA
[5] At paragraph 22 of the father's affidavit.