Court File and Parties

Court File No.: Toronto DFO-13-10215-00 Date: June 5, 2019 Ontario Court of Justice

Between:

E.S.R., Applicant

— AND —

R.S.C., Respondent

Before: Justice Alex Finlayson

Heard on: January 23, 2018, April 5, 11 and 30, 2018, May 2 and 10, 2018, June 26, 2018, July 23, 2018, August 23 and 30, 2018, September 18, 2018, November 30, 2018, January 30, 2019, February 1 and February 14, 2019

Reasons for Judgment released on: June 5, 2019

Counsel:

Dilani Gunarajah — for the Applicant

Washim Ahmed and Obaidul Hoque — for the Respondent

Christina Russa — Family Support Worker with the City of Toronto

PART I: NATURE OF THIS PROCEEDING

Background

[1] The Applicant, E.S.R., is the mother of two children, namely A.C., born in 2011 (now age 7), and N.C., born in 2015 (now age 3). The Respondent, R.S.C., is their father.

[2] On December 31, 2013, on the mother's initial Application, Justice Katarynych noted the father in default and made a Final Order, based on the mother's Form 23C Affidavit for Uncontested Trial and a separate Form 14A affidavit. She determined the father's income to be $150,000 per annum and required him to pay child support for A.C. of $1,263 per month, retroactively to March 1, 2013.

[3] By the time of Katarynych J.'s December 31, 2013 Order, only A.C. had been born. The parties have since had another child, N.C. This is a change in circumstances within the meaning of section 37(2.1) of the Family Law Act, R.S.O. 1990, c. F-3, as amended and section 14(1) of the Child Support Guidelines, O. Reg. 391/97 as amended, as of 2015.

[4] Nevertheless, the father launched a Motion to Change the Order of Katarynych J. as of a date earlier than that.

[5] The father's primary position is that the Order of Katarynych J. ought to be set aside. He says that he was neither served with the mother's initial child support Application, her Amended Application, nor the issued and entered Final Order. He says that he first found out about the Final Order towards the end of 2015 when he heard from the Family Responsibility Office (the "FRO") that it was taking enforcement steps against him to collect the support then owing.

[6] Following this, the father commenced his Motion to Change child support on January 31, 2017, but that was a little over one year later. Before so doing (and continuing for a time after he commenced the Motion to Change), he first tried, unsuccessfully, to resolve child support with the mother outside of the litigation.

[7] The father's alternative position, should the Court decline to set the Final Order aside, is that he seeks to vary it essentially back to the date it was made. However, according to him, this is insufficient as he says that remedy will not relieve him of the retroactive portion of Katarynych J.'s order (i.e. the child support of $1,263 per month that accrued between March 31, 2013 and December 31, 2013).

[8] As part of his alternative position, the father would not simply rely on the fact that there are now two children as of September 2015. That is because, he says, he did not make $150,000 in any year in issue. He says the Court ought to determine his income for all of those years and vary the child support Order accordingly.

[9] The mother opposes both the father's request to set aside the Order and his alternative position that it should be retroactively varied. She argues that the father was in fact served with her initial proceeding, but in any case she says the father's income was, and remains, at least $150,000.00. According to her, the Order of Katarynych J. is correct and there is no basis either to set aside or to vary the Order.

[10] This case involved a multi-day trial. The hearing was supposed to be a focused, two day trial. That time estimate was grossly under-estimated. The trial spanned over a number of additional days. While the trial did not proceed on each day that the Court allocated for the trial for various reasons, in the end, the parties still called evidence over 8 different days, plus required additional days for their closing submissions. By the end of the trial, the parties' positions remained polarized, with each party essentially asking the Court to order his and her preferred outcome.

[11] The question of whether the father received notice of the initial proceeding took up about half of the trial time in this case and it consumed a considerable amount of the time spent during the closing argument. In the result, the Court is finding that the father did in fact receive notice of the initial proceeding and the Final Order, and that he failed to advance a satisfactory reason for not coming to Court back in 2013.

[12] While the service issue is resolving in the mother's favour, the questions about whether the order should be varied in the alternative, and the determination of the father's income (which took up the remainder of the trial time) are not. But the Court does not adopt the father's position respecting his income either.

PART II: BACKGROUND FACTS

A. The Parties and their Families

[13] The mother is 38 years old and the father is 48. Again, there are two children, A.C. and N.C. A.C. and N.C. were born as a result of an on and off relationship between their parents that occurred between some point in 2010 and late 2016, or even into early 2017.

[14] Each party has children from other relationships. The mother was previously married, but she divorced her former husband around the time she started the relationship with the father. She has a 13 year old daughter from that prior marriage.

[15] The father has been married to his wife, F.C., since 1997. They have two daughters, ages 17 and 7.

[16] The father is the part owner and operator of a banquet hall in Scarborough. Prior to that, he operated a clothing store, and before that, he drove a taxi.

[17] The mother claimed at this trial (as well in her evidence for the uncontested trial before Katarynych J.) that the father was (and still is) running both the banquet hall and the clothing store at the same time. However, for reasons that the Court will explain later, the Court does not find this to be the case either now, nor at the time of the Final Order.

[18] The father's income from 2013 to present is very much in dispute in this proceeding. At this trial, the father advocated for a much lower income in the years since the Final Order than the Court is finding to be the reality. But the Court also agrees with the father that he did not, and has not since earned the income that Katarynych J. imputed to him.

[19] The mother has been, and still is struggling financially. She works part-time in a retail store. She testified that she earns $14.50 per hour and works between 25 and 30 hours per week.

[20] In addition, the mother explained that she also receives a child tax benefit of about $1,800 per month. And the children are in subsidized day care.

[21] The Court understands that the mother was in receipt of Ontario Works in the past. The City of Toronto has an interest in this matter by virtue of an assignment of the child support to it for the period of March 1, 2013 to February 28, 2016. Some of the arrears that the Court determines to be owing for that period will be owed to the City of Toronto and not to the mother.

B. History of the Relationship Between the Parties

[22] The parties began a relationship sometime after March of 2010. Both parties testified that they met as a result of the mother frequenting the clothing store that the father then operated in a Toronto neighbourhood. The father testified that they started out as friends, but these encounters at the clothing store evolved into an intimate relationship.

[23] The parties met privately. They had very few outings out in the community. Mostly they met at the mother's home.

[24] When the mother became pregnant with A.C., the father did not want her to have the baby. The father said he explained that he was not in a financial position to have another child. The father made similar statements when the mother later became pregnant with N.C.

[25] The mother has been almost solely responsible for caring for A.C., and then N.C., since their respective births. The mother testified that the father offered little financial or other support to her. The Court accepts this evidence to be substantially correct.

[26] The mother did admit that he bought milk and diapers for A.C., but said that he bought nothing for N.C. other than a "happy meal". The father said that he bought things the children would need, including meals, clothes and diapers. But he says that he did not keep receipts. He also says that he provided the mother with cash in the amount of $100, $150 or $200, off and on, but he did not keep records of this either.

[27] The father's evidence about the direct financial assistance that he provided was inconsistent as between his evidence in chief, his cross-examination and prior affidavits that he filed. The Court will explain this later in this Judgment. The Court is finding that his evidence about direct financial assistance is not reliable, and except where there are bank records to corroborate it, the Court would not afford him any credits for this in the retroactive analysis.

[28] The Court also finds the mother's statement that the father brought nothing other than a "happy meal" for N.C. to be somewhat of an overstatement, but otherwise the Court is accepting her evidence about the insufficient financial assistance that he provided.

[29] The mother commenced the first round of these proceedings on March 22, 2013. She said she commenced the proceeding because the father was not paying child support. At the same time though, the parties continued their relationship, albeit on and off, for the next three years.

[30] The father's wife, F.C., eventually found out about the relationship. The mother testified that F.C. found out about it during a telephone call that the mother was having with the father. According to the mother, during that telephone call, F.C. grabbed the telephone.

[31] The father's account about how F.C. learned of the relationship was different. He testified that the mother either emailed photographs to F.C. (via Facebook), or that she posted those photographs on the internet, knowing that F.C. would see them. The photographs were of the parties together. According to him, this happened at some point in 2013.

[32] The mother admitted that she had in fact put photographs on Facebook. But the Court was also shown a call log between E.S.R. and F.C., which revealed that E.S.R. had F.C. in her cell phone contacts. There was some evidence of telephone contact between the mother and F.C.

[33] Regardless of how F.C. found out about the relationship, there was a meeting between F.C. and E.S.R., in the father's presence, in 2013. Both parties agreed that this meeting did in fact occur. In fact, the father said he drove F.C. to meet E.S.R.

[34] During the meeting, F.C. told the father to choose between his wife and his girlfriend, E.S.R. The father chose his wife, F.C.

[35] The Court has discussed this evidence about the interactions between F.C. and E.S.R. because as the Court will explain, it was suggested to the father by mother's counsel, in cross-examination, that he and F.C. actually knew about the prior proceedings, and that is what led to this meeting in the car. The Court will address this evidence in more detail later when weighing the evidence about what notice of the proceeding that the father actually did have, but the Court wishes to say at the outset that the Court is not finding Ms. Gunarajah's suggestion to the father about what triggered the meeting to be fact.

[36] The parties then did not speak for a period of time after that, although it was unclear in the evidence for exactly how long their contact stopped before resuming. The father says that he telephoned the mother in the month of December (the father could not recall whether this occurred in December 2013 or 2014) because there had been an ice storm and a power outage. He says he was concerned about the children.

[37] The mother says that this telephone call from the father came in December 2013, although she says she initially ignored the father for a few months. But by March 2014, they resumed contact and ultimately their relationship.

[38] The mother complained at the trial that after this, they saw each other less than before. She explained that they had fights every month or so because F.C. now knew about the relationship and so the father was more restricted in his ability to see her.

[39] By January 2015, the mother discovered that she was pregnant with N.C. The mother testified that following N.C.'s birth, the father came even less frequently. She testified that the father didn't care about N.C.

[40] At some point towards the end of 2015, the father received a "First Notice to Suspend Driver's License" dated September 25, 2015 from the FRO advising him that he owed child support arrears of $37,606.75 as of September 25, 2015, and that his license would be suspended as of November 4, 2015. The Court was told that the father's license was in fact suspended for a period of time (from December of 2015 onward for about 1 ½ years).

[41] The relationship between the father and the mother is now over, although when that ended is unclear. The Court heard evidence at this trial, which the Court will come back to, that the mother participated to an extent, in helping the father commence this Motion to Change. At one point, she was willing to work with the father to perhaps adjust the arrears and the amount of ongoing child support to a more manageable level for him. She also withdrew the Order from enforcement through the FRO for a short period in or around March of 2018, but then she opted back in to FRO enforcement very soon thereafter. The mother explained that she did this, saying that she thought that she was withdrawing future enforcement only, but not the arrears.

[42] The father's wife, F.C., testified at this trial, primarily about the service issue. She testified that she had not received any Court documents on the father's behalf when asked about the service issue directly. And the father also denied receiving any Court documents prior to Katarynych J. granting the Final Order, and thereafter. Other than that, she had very little knowledge about the state of the father's financial affairs and so her evidence in that respect did not really assist the Court.

PART III: ISSUES AND ANALYSIS

A. Applicable Family Law Rules Respecting Setting Aside Orders Made at An Uncontested Trial

[43] The father moves to set aside the Final Order of Katarynych J. dated December 31, 2013. His request was framed pursuant to rule 25(19)(d) or (e) of the Family Law Rules. There are a number of other applicable rules though, that bear on the Court's determination in this case, which the Court will consider first.

[44] The Court begins with Rule 10.

[45] Pursuant to rule 10(1) of the Family Law Rules, a person against whom an application is made shall serve an Answer on every other party and file it within 30 days after being served with the application.

[46] There are consequences to a litigant who fails to file an Answer. Rule 10(5) says that if a respondent does not serve and file an answer, then the consequences set out in paragraphs 1 to 4 of subrule 1(8.4) apply.

[47] Those consequences, unless the Court orders otherwise are:

1. The party is not entitled to any further notice of steps in the case, except as provided by subrule 25(13) (service of order).

2. The party is not entitled to participate in the case in any way.

3. The court may deal with the case in the party's absence.

4. A date may be set for an uncontested trial of the case.

[48] Katarynych J. did not relieve the father of the consequences of not filing an Answer back in 2013. As such, as no Answer was filed in accordance with rule 10, the mother was entitled to proceed with an uncontested trial. Pursuant to rule 23(22), uncontested trials may be done with the Court either relying on a regular Form 14A affidavit or a Form 23C affidavit (in this case the mother had filed both), and a Form 35.1, if applicable. The Court may also direct that oral evidence be given. In this case, the uncontested trial was heard based on written material only.

[49] Even where a person fails to file an Answer, he or she is entitled to be served with the Final Order. Rule 25(13) says so. The person who prepared the Order is required to serve it.

[50] And the Court also refers to Rule 2. Rule 2(2) states that the primary objective of the Family Law Rules is to enable the court to deal with cases justly. Pursuant to rule 2(3), that includes ensuring a fair procedure to all parties, saving time and expense, dealing with the case in ways that are appropriate to its importance and complexity and giving appropriate resources to the case while taking account of the need to give resources to other cases. Under rule 2(4), the Court must apply the rules to promote the primary objective, and the parties and their lawyers are required to help the court in this regard. And lastly, the Court is also required to promote the primary objective by actively managing its cases pursuant to rule 2(5). Rule 2(5) lists a number of ways that this should be done. The list is not exhaustive.

[51] There is a theme of fairness, proportionality and justice that runs throughout the various rules, and these concepts should be applied to all family law cases.

[52] With those rules in mind, the Court turns to rule 25(19). It reads:

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.

[53] Next, the Court sets out the applicable legal principles that apply when a litigant moves under rule 25(19) to set aside an Order made at an uncontested trial.

B. Applicable Legal Principles Respecting Setting Aside Orders Made at An Uncontested Trial

[54] Prior to the Ontario Court of Appeal's decision in Gray v. Gray, 2017 ONCA 100, there was confusion in the law as to whether a court had jurisdiction to set aside an order under rule 25(19). In part, that was because the word "change" in the rule is defined in rule 2(1) to mean "to vary, suspend or discharge, or a variation, suspension or discharge" but the words "set aside" are omitted from the definition. See Gray v. Gray ¶17, 18.

[55] Some older cases broadly interpreted the word "change" to include "set aside". But another line of cases found otherwise. And there was also a further split in the case law about the jurisdiction to set aside. In some cases, judges relied on the inherent jurisdiction of the Court to set aside orders to prevent a miscarriage of justice, whereas in others, judges turned to rule 19.08 of the Rules of Civil Procedure by analogy, using rule 1(7) of the Family Law Rules. See Gray v. Gray ¶ 20-25.

[56] At ¶ 26-29 of Gray v. Gray, the Court of Appeal clarified this confusion about how rule 25(19) should be interpreted. The Court held that there is in fact authority to set aside an order under Rule 25(19) for three reasons:

(a) The Court held that the meaning of the word "change" is broad;

(b) Broadly interpreting the meaning of the word "change" to include "set aside" is consistent with the Court's comments in a prior case that it had decided; and

(c) The Court referred to the underlying philosophy, scheme and purpose of the Family Law Rules as supporting such an interpretation. Citing Benotto J.A. in Frick v. Frick, 2016 ONCA 799, the Court reiterated that family law litigation is different from civil litigation in a number of ways. The Rules embody a different philosophy "peculiar to a lawsuit that involves a family".

[57] In the result, at ¶ 31, the Court of Appeal held that judges should decide whether the most efficient remedy is to vary an order without setting it aside. Or, a judge may determine that a variation would not achieve a just result, and that the order needs to be set aside under rule 25(19).

[58] The Court declined to decide whether judges may still have resort to inherent jurisdiction to set aside orders to prevent a miscarriage of justice, or whether orders may be set aside according to rule 19.08 of the Rules of Civil Procedure by analogy using rule 1(7) of the Family Law Rules. Instead, the Court of Appeal in Gray v. Gray sent the matter back to the court of first instance for a hearing about whether the order should be set aside pursuant to rule 25(19).

[59] While the Court of Appeal clarified how rule 25(19) is to be interpreted in Gray v. Gray, it did not address the applicable legal test that applies when set aside is claimed under the rule. The Court's review of certain case law indicates to the Court that different considerations may be appropriate depending on the circumstances of each case, but generally the jurisprudence that has developed under Rule 19.08 of the Rules of Civil Procedure has been followed.

[60] More particularly, when dealing with claims that a family law Order be set aside, several cases have applied the five part test set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, developed pursuant to Rule 19.08 of the Rules of Civil Procedure.

[61] That test is:

(a) Whether the motion was brought promptly after learning about the judgment;

(b) Whether there is a plausible excuse or explanation for the defendant's default in complying with the Rules;

(c) Whether the facts establish that the defendant has an arguable defence on the merits;

(d) The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the respondent should the motion be allowed; and

(e) The effect of any order the court might make on the overall integrity of the administration of justice.

[62] For example, Gray v. Gray itself involved a situation where the father had been participating in the pre-trial proceedings, but then did not come to Court for the trial. He had sent a friend on the first day of trial to advise the trial judge that he had just found a job, that he has multiple sclerosis and that finding a job had been difficult. So he could not come to Court as he needed to work. The trial judge declined to excuse the father's absence and proceeded without him. See Gray v. Gray ¶ 9.

[63] After the appeal, at the subsequent motion to set aside the trial judge's Order, Fryer J. did indeed set the Order aside. In so doing, she relied in part on the Statement of Principles on Self-represented Litigants and Accused Persons (2006) and she otherwise referred to various portions of Rule 2. See Gray v. Gray, 2017 ONSC 5028 ¶ 14-61. She also found at ¶ 62 that the father's reason for not attending the first day of trial was satisfactory. Importantly for the analysis, the pre-condition to rule 25(19) in subsection (e) in this respect was engaged, thus enabling the Court to consider the set aside request on its merits. And she referred to aspects of the Mountain View Farms test.

[64] In a subsequent post Gray v. Gray decision, Benarroch v. Abitbol et al, 2018 ONSC 5964, McGee J. began by discussing some of the differences between Rule 25(19) and its counterpart in Rule 19 of the Rules of Civil Procedure. The Court has found her analysis on this point to be helpful.

[65] At ¶ 28-29, she said that unlike its in civil counterpart, in the Family Law Rules, there is no administrative procedure to note a respondent in default, no ability for a registrar to grant an Order on default, and no deemed admission of the truth of all allegations of fact found in an unanswered pleading. She held that rule 25(19)(d) is "positioned away from the more structured approach taken within Rule 19 of the Rules of Civil Procedure".

[66] McGee J. went on to hold that rule 25(19) is to be interpreted through the lens of Rule 2, writing that the Court has broad discretion to vary, suspend or discharge a final Order.

[67] In Benarroch v. Abitbol et al, McGee J. was dealing with an Order made without notice though. Thus, like in Gray v. Gray, one of the various pre-conditions to the applicability of rule 25(19) was engaged. McGee J. said that the Court may set aside the whole of the Order, or only certain portions, or it may change it, correct it or add to it under Rule 25(19). And she referred to the Mountain View Farms test.

[68] The following are examples of cases that have applied the Mountain View Farms test, in whole or in part: see for example Benarroch v. Abitbol et al ¶ 31; Bompas v. Henry, 2018 ONSC 7718 ¶ 15; Gray v. Gray, 2017 ONSC 5028 ¶ 54; Lin v. Ha, 2017 ONSC 6917 ¶ 9; and Ortiz v. Almeida, 2017 ONCJ 213 ¶ 23.

[69] While the Court does note the flexibility in the Family Law Rules that McGee J. referred to, the test that has developed under Rule 19.08 does provide for flexibility too. At ¶ 50-51 of Mountain View Farms Ltd. v. McQueen, the Court held that the five factors are not to be treated as rigid rules. The Court of Appeal held, "the court must consider the particular circumstances of each case to decide whether it is just to relieve the defendant of the consequences of his or her default". And, "for instance, the presence of an arguable defence on the merits may justify the court exercising its discretion to set aside the default judgment, even if the other factors are unsatisfied in whole or in part."

[70] And while there is broad discretion sprinkled throughout the Family Law Rules and under rule 25(19) in particular as McGee J. held in Benarroch v. Abitbol et al, one of the five preconditions to the rule must first be engaged before that discretion can be exercised. Those are the five preconditions are set out in subparagraphs (a) through (e). If those pre-conditions are not engaged, then rule 25(19) can have no application.

[71] In this case, for reasons that the Court will explain, the father has failed to satisfy the Court that one of the five pre-conditions to the operation of rule 25(19) are met.

[72] Nevertheless, it may be that the Court of Appeal's decision in Gray v. Gray has not completely foreclosed this Court's ability to set the order aside outside the parameters of Rule 25(19).

[73] While on the one hand, at ¶30, the Court held that the Family Law Rules are "intended to be a complete procedural code". Situations in which resort would be had to the Rules of Civil Procedure would be "rare". And when commenting in obiter about default orders as they are understood under the Rules of Civil Procedure and whether such terminology has any relevance in family law litigation, the Court said at ¶ 32 that "[a]n analysis of such terms would only confuse the scheme and narrative that are unique to family law litigation. Rule 25(19)(e) adequately covers the matter in this case."

[74] On the other hand, and while the father has failed to satisfy the Court that he fits within the parameters of rule 25(19), the Court is troubled by the evidentiary basis that was put before Katarynych J. in 2013. In the Court's view, it was misleading and contained errors.

[75] Although another possible basis to set aside was referred to, the father did not satisfy the Court that it should set the Order aside on other grounds apart from rule 25(19). And the Court need not decide the issue of alternate jurisdiction.

[76] In the Court's view, a remedy under section 37(2.1) of the Family Law Act achieves a just result in this case.

C. Applicable Family Law Rules Respecting Service

[77] It is a fundamental principle of justice that a party have a notice of a claim against him or her before a decision is made that affects him or her. Two of the five pre-conditions to rule 25(19) on which the father bases his claim to set the Final Order aside are directed at empowering the Court to remedy a situation where notice was either not provided, or where it was problematic.

[78] Indeed, in order for the father to avail himself of either rule 25(19)(d) or (e), the Court must first be satisfied that the Order was either:

(a) made without notice (this is 25(19)(d)); or

(b) made with notice, but that the father was not present when the order was made because the notice was inadequate (this is an aspect of 25(19)(e); or

(c) made with notice, but that the father was not present when the order was made because he was unable, for a reason satisfactory to the court, to be present (this is the other aspect of 25(19)(e)).

[79] Notice is typically given when a person follows certain methods of service, although the rules also make provision for allowing alternate methods of service, and even in limited circumstances, for dispensing with service altogether.

[80] While the father bears the onus of proof that the Final Order of Katarynych J. dated December 31, 2013 should be set aside, the onus of proof respecting service actually shifts between the parties within such an application.

[81] Except in the case of certain specified parties (of whom the father is not one), an Application must be served by way of special service. See Rule 8(5) of the Family Law Rules. What counts as special service is explained in Rule 6(3). A number of different methods will amount to special service. Insofar as the issues in this trial are concerned, there are two methods of special service that are relevant.

[82] Special service of the mother's Application could have been effected on the father by way of personal service to him pursuant to Rule 6(3)(a)(i). Or, someone could have left a copy of the documents at the father's residence, in an envelope addressed to him, with anyone who appeared to be an adult resident at the same address and, on the same day or on the next, by mailing a copy to him at that address, pursuant to rule 6(3)(d).

[83] Where special service is not effected or there is difficulty effecting it, the Court is empowered to authorize service by other means or to dispense with it. In this regard, the Court reproduces the current version of rules 6(15), (16), (18) and (19) here.

Substituted Service

6(15) The court may order that a document be served by substituted service, using a method chosen by the court, if the party making the motion,

(a) provides detailed evidence showing,

(i) what steps have been taken to locate the person to be served, and

(ii) if the person has been located, what steps have been taken to serve the document on that person; and

(b) shows that the method of service could reasonably be expected to bring the document to the person's attention.

Same, Notice

6(15.1) An order under subrule (15) may be obtained on motion without notice, except where the person to be served is a government agency.

Service Not Required

6(16) The court may, on motion without notice, order that service is not required if,

(a) reasonable efforts to locate the person to be served have not been or would not be successful; and

(b) there is no method of substituted service that could reasonably be expected to bring the document to the person's attention.

Approving Irregular Service

6(18) When a document has been served by a method not allowed by these rules or by an order, the court may make an order approving the service if the document,

(a) came to the attention of the person to be served; or

(b) would have come to the person's attention if the person had not been evading service.

[84] And finally, how service is to be proven is set out in rule 6(19). It reads:

Proof of Service

6(19) Service of a document may be proved by,

(a) an acceptance or admission of service, written by the person to be served or the person's lawyer;

(b) an affidavit of service (Form 6B);

(c) the return postcard mentioned in clause (3) (c);

(d) the date stamp on a copy of the document served by deposit at a document exchange; or

(e) a record of service provided by an electronic document exchange that meets the requirements of this rule.

D. Applicable Legal Principles When Service Is Challenged

[85] As the Court said earlier, there are shifting burdens within this case as it pertains to service. While the father bears the ultimate burden of proving that Katarynych J.'s Order should be set aside, within this proceeding, the mother has an initial burden of proving that he was served the initial Application or the Amended Application and related documents. But if service is done in accordance with the Rules, this will not a difficult burden to meet. Generally an affidavit of service in the proper form will suffice.

[86] Where the initial burden is met, the onus then shifts to the father to rebut evidence of service. See Allfur Trading Ltd. v. Polizon, 1991 CarswellOnt 471 (Gen. Div.) ¶ 2, 5; see also Ivan's Farms Inc. v. Kostelac, 1988 CarswellOnt 441 ¶ 6.

[87] The Court notes that although the cases cited are civil cases, Zisman J. followed this approach under the Family Law Rules in Ortiz v. Almeida, 2017 ONCJ 213. At ¶ 22, she said, "[w]hat 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."

[88] In Ortiz v. Almeida, Zisman J. found that the father failed to rebut the evidence of service. He simply denied being served in the face of a sworn affidavit of an independent process server.

[89] It is also a principle that a party cannot rely on a technical defect in service. Even if the forms are incorrectly prepared, or the technical requirements of service were not fully followed, the Court may still dismiss an application to set aside an order under rule 25(19), if for example the Court finds that the father received actual notice of the proceeding anyway. See Hawkins v. Huige, 2012 ONCA 219 ¶ 4.

[90] The Court notes that Zisman J. also commented about this in Ortiz v. Almeida. Referring to the affidavit of service that had been filed in that case, she wrote, "[a]lthough 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." In any event, a read of Ortiz v. Almeida reveals that Zisman J. was focused on substance over form.

[91] What evidence will be required to rebut evidence of service will vary. However where a process server or other person effecting service was involved, it would be prudent to summons that person to testify. In Ortiz v. Almeida, Zisman J. held that the father could have summonsed the process server to testify to challenge service. But he chose not to, instead relying on a bald denial of service. See ¶ 28-29. Rightly, that did not satisfy Zisman J. that the father had not been served.

E. Applicable Legal Principles When the Court Has Previously Made An Order for Substituted Service

[92] A wrinkle in this case, which was not present in the case before Zisman J., is that the father was not served by way of special service. Rather, the mother encountered difficulties serving the father initially, and then she ultimately moved, ex parte by way of 14B Motion, for an order for substituted service upon the father.

[93] And on August 20, 2013, Katarynych J. granted that request.

[94] Then, on December 31, 2013, Katarynych J. noted the father in default and made the Final Order.

[95] Where a motion is made without notice, the failure to make full and frank disclosure may be sufficient grounds to set aside the ex parte order obtained. As the mother obtained the substituted service order on an ex parte basis, the mother was required to disclose to Katarynych J. all material facts relevant to her determination under rule 6(15). To be clear, that means all facts that Katarynych J. needed to arrive at a decision. See Girsberger v. Kresz, 1998 CarswellOnt 915 (Gen. Div.) ¶ 28-29; leave to appeal refused at [1998] O.J. No. 2392.

[96] What transpired before Katarynych J. respecting service was put before the Court at this trial. The substituted service order that Katarynych J. granted essentially means that there has already been judicial oversight and approval of an alternate form of service upon the father. In other words, Katarynych J. was satisfied that the requirements of rule 6(15) were met. That meant that she was of the view that the method of service that she approved, back in 2013, could reasonably be expected to bring the documents to the father's attention.

[97] This Court must not just ignore that fact now. That is not to say that this Court, following this trial with a full record, cannot revisit the service issue if there is a proper basis to do so. And to engage rule 25(19)(d) or (e) as the father seeks to do, he must necessarily undermine the substituted service order. Nevertheless, for this Court to now find that the father was not served, such a finding would have to be made on a principled basis.

[98] Counsel for the father relies on Lin v. Ha, 2017 ONSC 6917. In that decision, the mother had attempted to serve the father by sending a process server to an address at which he no longer lived, and then by priority post on a number of occasions. Personal service failed and the subsequent mail was returned. Nevertheless, the mother appeared at a trial on December 20, 2016 and obtained an uncontested Order. The father later moved to set aside the Order.

[99] But unlike the case before Zisman J., in Lin v. Ha, the father did not merely baldly deny service. He called witnesses to prove the various defects in service and to establish that he did not in fact receive the documents.

[100] In finding that the father did not have notice of the Court proceedings and ultimately setting aside the Order in Lin v. Ha, Kristjanson J. said the following at ¶ 27:

It is important for parties to realize that the purpose of service is to ensure that proceedings come to the attention of litigants. Even where there is an order for substituted service, a party which has not taken steps to ensure that the opposing party is personally aware of the proceedings runs the risk that default orders and judgments in undefended proceedings may be set aside. In order to mitigate that risk, in cases where there has never been personal service on the other party, and thus no assurance that the party is aware, parties should take steps to actually bring the commencement of family law proceedings to the attention of the other party. In this case, for example, an explanatory phone call or e-mail to Mr. Ha or his mother, who after all had raised the granddaughter for years, coupled with sending a copy of materials to the grandmother's address or a copy by e-mail to Mr. Ha, could well have eliminated the need for default proceedings and this motion.

[101] Below the Court makes findings of fact respecting what happened with service in this case. And based on that evidence, the Court finds that the mother took a risk by not taking further the steps that Kristjanson J. explained should be taken in Lin v. Ha.

[102] Nevertheless, the Court is satisfied that the father had notice of the initial proceedings. The Court says that because documents were sent to him multiple different times, in multiple different ways, and it is the Court's view that he had notice of the proceeding, well before Katarynych J. made the Final Order.

[103] In particular, based on the evidence that the Court summarizes below, the Court finds:

(a) The mother has failed to meet her initial burden of proof respecting the initial Application, but she has met her initial burden respecting service of the Amended Application and the related documents;

(b) The father should have called a process server named Hamza Balata to testify and he did not do so;

(c) The Court is not satisfied with the reasons the father advanced for his failure to call Mr. Balata;

(d) The father has not rebutted proof of service, either through the evidence he did call, nor through his cross-examination of either the mother or her witness from the City of Toronto Employment and Social Services Family Support Program;

(e) The Final Order was not obtained without notice to the father. Therefore, rule 25(19)(d) has no application;

(f) The notice to the father that the mother provided was adequate;

(g) The father has not offered any reason satisfactory to the Court to explain his absence;

(h) Therefore rule 25(19)(e) has no application in this case either; and

(i) As such, the father's request to set aside the Final Order of Katarynych J. dated December 31, 2013 under either Rules 25(19)(d) or (e) must fail.

F. Findings of Fact Respecting the Prior Proceedings

(1) The Preparation of the Pleadings

[104] The mother commenced the first round of this proceeding on March 22, 2013. In her Application, she claimed custody of A.C. and child support retroactively to A.C.'s birth.

[105] The mother first met City of Toronto Employment and Social Services' Family Support Worker Susie Barbisan at the first appearance of the Application on May 2, 2013. The Court was told that there were problems with service of the original documents, about which the mother had just learned from the First Appearance Clerk. So after the First Appearance, the mother met with Ms. Barbisan to get some assistance.

[106] Ms. Barbisan testified that in those early days, she also wanted to explore with the mother whether she should add a claim for special or extraordinary expenses to the initial Application. Thus, a discussion and eventual decision to amend the pleadings also became part of the agenda for their subsequent meeting following the First Appearance.

[107] The mother then amended the Application, with Ms. Barbisan's assistance, and tried to serve the father again.

[108] The Amended Application was issued on May 15, 2013. The claims in it essentially remained the same as those in the original Application though, but the amended document is typed as opposed to handwritten. And the mother more particularly set out the history of her relationship with the father in the new document, and she provided some factual basis upon which she asked the Court to impute an income to him.

(2) Service of the Application and the Amended Application upon the Father

[109] The Court heard a considerable amount of testimony from both parties, from F.C. and from Ms. Barbisan, about service of the different sets of Court documents prior to December 31, 2013, when Katarynych J. granted the Final Order. In a nutshell, the father says he was neither aware of the prior proceedings, nor that a Final Order had been made, until he received a telephone call from the FRO in 2015 advising him that he owed a considerable amount of arrears. By contrast, the mother argues that the father was served multiple times, and in multiple different ways. She also says that after each time documents were sent to the father, he would return an opened envelope to her containing the Court documents. While the Court does not accept all of the mother's evidence respecting service, in the result, the Court is satisfied that the father did have notice of the proceeding.

(i) Service of the Initial Application via the Mother's Friend and via the Mail

[110] The mother says that she had a friend, Mr. A.N., serve her Application and Form 35.1 Affidavit along with a blank Answer and Financial Statement to the father. The mother testified that she gave A.N. the father's address so that he could serve him.

[111] The mother filed an Affidavit of Service of A.N. sworn March 28, 2013 with the Court. The Affidavit of Service says that the father was in fact served with the initial documents on March 22, 2013.

[112] The mother testified that she had partially completed this Affidavit of Service, while A.N. completed other parts of it. The Court was told that A.N., who did not testify at this trial, signed the affidavit of service.

[113] At paragraph 2 of the Affidavit of Service, the boxes indicating that the documents had been served by mail and courier are both checked off. However, the check mark in the courier box was then scratched out. And the check box for personal service is not marked.

[114] Nevertheless, although the box indicating special service is not checked off in paragraph 2, paragraph 3 says that A.N. did in fact give the documents to the father personally at his home address.

[115] If this in fact happened, then that is special service, regardless of the other ways in which the form was completed.

[116] Paragraph 4 of the Affidavit of Service is also completed. It says that A.N. then mailed the documents to the father at his home address. The father's counsel questioned the mother as to why, if service of the initial application was indeed effected personally, did the documents need to be sent by mail subsequently. The mother's answer was that was because she wanted to send the documents by mail also.

[117] Admittedly, the manner in which this Affidavit of Service was completed is confusing. It also appears to have confused the First Appearance Clerk. The Court was told that when the mother attended at the First Appearance Court in 2013, she was told by the clerk that this attempt at service was invalid. The Endorsement of the First Appearance Court on May 2, 2013 indicates that the father was not present that day. It also says that Ms. Barbisan agreed to advise the father of the next Court date.

[118] The First Appearance was then adjourned to July 8, 2013.

(ii) Service of the Amended Application by Process Server

[119] As the Court said earlier, after the First Appearance on May 2, 2013, the mother amended her Application with Ms. Barbisan's assistance and she then took fresh steps to serve the amended documents. This time, Ms. Barbisan arranged to have a process serving company named McRoberts Legal Services serve the father on the mother's behalf.

[120] Unfortunately this second attempt at service was fraught with difficulty.

[121] A process server named Hamza Balata from McRoberts Legal Services attempted service of the documents twice. Mr. Balata's first affidavit of service was sworn on June 12, 2013. It says that on June 8, 2013, Mr. Balata served the Amended Application, Form 35.1 and a Blank Answer, Financial Statement and Form 35.1 to the father's address by leaving a copy with an "unidentified female who resides there" and mailing a copy thereafter.

[122] But the father was not present at the second, First Appearance on July 8, 2013. And once again the mother was told this was not valid service. Indeed, the Endorsement from the First Appearance Court on July 8, 2013 indicates that the father had not been served.

[123] A third First Appearance was set for August 28, 2013.

[124] This time, there was another affidavit of service of Mr. Balata, now sworn July 24, 2013, which says that on July 20, 2013, Mr. Balata served the Amended Application again. And once again, an adult member of the household took the documents. And once again, this individual is not named on the form.

[125] In her affidavit sworn August 12, 2013 that she filed in support of the 14B Motion respecting substituted service, the mother says that after each of the June 8 and July 20, 2013 attempts, the father brought back opened envelopes containing the Court documents. At this trial, the father has denied this.

[126] As the Court will explain, the Court does not accept this aspect of the mother's evidence on this point.

(iii) The 14B Motion for Substituted Service

[127] The mother's 14B Motion to obtain an order for substituted service was dated August 12, 2013. She filed it on Ms. Barbisan's advice, after Ms. Barbisan spoke to Carol Smith, a lawyer for the City of Toronto, to get advice about what to do next.

[128] Based on what the mother filed, on August 20, 2013, Katarynych J. granted an order for substituted service. She wrote, "[t]he evidence satisfied me that the respondent has been served, but keeps trying to return the documents".

[129] Nevertheless, Katarynych J. directed the mother to send a copy of the August 20, 2013 Order and the 14B Motion to the father at his address. She then adjourned the matter to October 8, 2013.

[130] It was Ms. Barbisan who mailed the Order of August 20, 2013, plus the 14B Motion and the affidavit, to the father at his home address on September 10, 2013, on the mother's behalf. There is an affidavit of service to this effect and Ms. Barbisan was also called to testify. The Court accepts that this was done, and the Court finds that Ms. Barbisan's mailing to the father was indeed in compliance with Katarynych J.'s August 20, 2013 Order.

[131] The Court does not accept that the father returned documents as Katarynych J. found. The Court will explain why next.

(3) Findings of Fact Respecting Service

[132] The Court's findings of fact respecting this evidence regarding service are as follows.

(i) Findings of Fact Respecting Service of the Initial Application

[133] The Court is not prepared to find that there was personal service or some other valid form of service of the initial Application on the father for five reasons.

[134] First, the Court heard conflicting evidence from the mother as to whether she attended with A.N. when he served the documents on March 22, 2013, or whether she only attended with him later to mail the documents. In fact, in her examination in chief, the mother said that she was not present with A.N. when he served the father personally. She did say she was present, however, when A.N. mailed the documents to the father thereafter.

[135] Yet at paragraph 9 of the Amended Application, the mother said that she accompanied A.N. both when he served the documents to the father and when he mailed them. Then in her affidavit of August 12, 2013 sworn to support a 14B Motion, she is silent as to whether she attended with A.N. or not on March 22, 2013 to serve the father. She does specifically say that she accompanied him to mail the documents though.

[136] During this trial, the mother referred to those inconsistencies in the Amended Application versus her affidavit as a "mistake". Based on her testimony at the trial, the Court finds that she was not present with A.N. when he served the documents and therefore has no direct observation of service upon the father.

[137] Second, as the Court said earlier, the documents were subsequently mailed to the father. The Court accepts that this was done. The Court accepts that the mother was present with A.N. when this was done. But the Court is unable to find that the documents were actually correctly delivered this time by the mail.

[138] The mother and A.N. used a Canada Post service to mail the documents to the father that required his signature upon delivery. Attached as Exhibits "A" and "B" to the mother's August 12, 2013 affidavit are a confirmation from Canada Post that the mail was in fact delivered somewhere in Scarborough on March 26, 2013, but there is no delivery address on the Canada Post document. There is a signature on a form indicating that someone retrieved the documents. The father has denied that the signature is his.

[139] Whoever received the documents appears to have written a short form of the father's name on the form. During the trial, mother's counsel attempted to suggest that the signature looks like the father's. The Court is not prepared to make this finding. The Court cannot determine this. And moreover, the father's name is misspelled on the form. The father explained that he would not have misspelled his own name.

[140] Third, as the Court also said earlier, the mother was asked in cross-examination why she felt the need to mail the documents to the father, if in fact the father had been personally served on March 22, 2013. If the father had been personally served, subsequent delivery by mail was not required by the Rules. Her answer was simply that she wanted to mail the documents also. She did not explain this further. While it was certainly prudent to send the documents by mail, her failure to better explain this is somewhat confusing.

[141] Fourth, the mother said that the father returned the initial Court documents to her one to two weeks later. But in her Amended Application, her affidavit of August 12, 2013 that she later filed in support of a 14B Motion for substituted service, and in her affidavit sworn August 10, 2017 used in this current proceeding, she did not say this. Rather, in those documents, she said the father was upset, told her to withdraw the Application and said that he would never come to Court. She said nothing about him returning the documents to her after service of the initial Application. She does in her written documentation refer to the father returning other documents to her later, but not these initial documents.

[142] The mother went further and testified at this trial that she showed Ms. Barbisan an opened envelope of Court documents that the father had returned. But Ms. Barbisan in her testimony did not confirm this. She explained that she had written in her notes that the mother had only told her, back in 2013, that the father returned the documents. Ms. Barbisan could not recall whether she had seen an opened envelope.

[143] The Court declines to find that the father had returned an opened envelope of Court documents. Had Ms. Barbisan actually seen this, as the mother alleged, Ms. Barbisan would have recorded that in her notes.

[144] Fifth, counsel for the father objected to the affidavit of service of A.N. being tendered for the proof of its contents. Counsel for the father correctly pointed out that the mother did not move to introduce at this trial A.N.'s affidavit of service as evidence to be used for the proof of its contents under rules 23(20) and (21). The Court agrees with counsel for the father in this respect and the Court is not considering the affidavit of service of A.N. as evidence to be used for the proof of its contents.

[145] Regarding the initial Application, as the Court has said, the mother bears the initial burden to prove service. A.N. is not a professional process server as was the situation in the case before Zisman J. There was an objection as to the admissibility of A.N.'s affidavit of service. As the Court has not admitted the affidavit of service of A.N. into evidence for proof of its contents and given the deficiencies that the Court has just highlighted respecting the other evidence of service, the initial burden is not met.

[146] The mother ought to have called A.N. to testify to discharge her initial burden. She chose not to.

[147] When asked in cross-examination about that, the mother said that A.N. is in Trinidad, they haven't spoken since 2014, and she said she did not need to have A.N. testify because she was relying on the subsequent service that she says the City of Toronto effected. That was her choice. And she was correct in that the Court is satisfied about the second round of service.

[148] But the Court pauses to note that the mother was similarly unable to get A.N. to correct the deficiency to the Affidavit of Service back in 2013 either though. Had the father actually been served personally on this first occasion but the affidavit of service was merely incorrectly completed, then A.N. could have just returned to the Court to fill out another form and that would have ended the matter.

[149] The Court notes that in cross-examination, Ms. Barbisan testified that, at the First Appearance back in 2013, she suggested to the mother that she have A.N. do just this. And the mother told Ms. Barbisan that A.N. could not come back to Court to do this back in 2013 either.

[150] In the result, the Court finds that the mother has failed to discharge her initial onus to prove service. There was no service of the initial Application.

(ii) Findings of Fact Respecting Service of the Amended Application

[151] The Court's conclusion respecting service of the Amended Application is different though. The Court finds that the father had adequate notice of the proceeding as a result of service of the Amended Application for five principal reasons.

[152] First, as the Court has already said, on August 20, 2013, Katarynych J. was satisfied that substituted service was appropriate under rule 6(15), and specifically, that the method of service she authorized could reasonably be expected to bring the Amended Application to the father's attention.

[153] Second, the Court appreciates that the August 20, 2013 substituted service order was obtained on an ex parte basis. It may be set aside if material facts that ought to have been disclosed weren't. While in her affidavit of August 12, 2013, the mother said that the father received and returned the documents to her, which the Court has not accepted, that was not the only evidence that supported the request for an Order for substituted service. After a careful review of the other evidence, the Court does not see a basis to set aside Katarynych J.'s ex parte substituted service order based on material non-disclosure, even in spite of the Court's finding that the father did not return opened envelopes as the mother said.

[154] The record before Katarynych J. at the time of the August 20, 2013 substituted service order included the affidavits of service of Mr. Balata. The Court appreciates that, like with A.N., the Court did not hear viva voce evidence from Mr. Balata. But in the Court's view, that is nuanced and different.

[155] In the case of Mr. Balata, both parties did attempt to compel his attendance to testify at this trial. The Court heard about the various unsuccessful attempts to get Mr. Balata to this trial from counsel.

[156] The father tried first. Then, on May 10, 2018, the father's counsel complained to the Court that Ms. Nancy McRoberts, the owner of McRoberts Legal Services, would not speak to him, because the father had not been their client (recall the City of Toronto hired McRoberts). Counsel for the father's complaint was that he could not even get specific contact information for Mr. Balata to serve a summons on him.

[157] In response to that complaint, the Court suggested to counsel that the father summons someone from McRoberts Legal Services instead, to get that contact information (for example from employment records). Unfortunately, that did not happen properly.

[158] Next, on August 30, 2018, the father's counsel showed the Court a summons to witness that he had sent, addressed to "McRoberts Legal Services". No one from McRoberts Legal Services came to Court. But a summons cannot compel a company, with no person named, to come to Court. So this time, the Court told counsel to summons to the owner of the company personally.

[159] Next, on September 18, 2018, the Court was told that the mother's counsel had tried to get Ms. McRoberts to come to Court. Apparently, Ms. McRoberts was properly served, but returned the mother's counsel's summons and was refusing to come to Court. The mother's counsel asked the Court to issue a warrant. But she did not have a copy of the summons and affidavit of service with her.

[160] The Court declined to issue a warrant as requested. Instead, the Court endorsed that mother's counsel should file a 14B Motion if she sought further orders to compel Ms. McRoberts' attendance.

[161] No further steps were taken to get anyone from McRoberts Legal Services to attend Court, and in the end, the Court heard no evidence from Mr. Balata, nor anyone else from McRoberts Legal Services.

[162] In fairness to Ms. McRoberts, the Court did not hear her side of the story. But the Court does note that the Court was told from two different counsel, who are officers of the Court, that a professional process serving company, who had been hired by an institution (the City of Toronto Employment and Social Services) to undertake service on its behalf, was avoiding its duty to come to Court to give needed evidence about service in a proceeding. If that is in fact what was happening, then the Court finds it troubling that a professional process server would act in this fashion. Part of being a process server is providing proof of service to the Court. And in cases where service is disputed, then an attendance at Court to give evidence may be required. It is surprising that the owner of a professional process serving company seems to have not acted accordingly.

[163] Nevertheless, and third, the affidavit of service of Mr. Balata was treated differently than A.N.'s. During one of the various attendances on what should have been the first days of this trial, the parties agreed that his affidavit of service would be filed, on consent, as evidence of the proof of its contents. However, the father argues that the Court should place little weight on it. But no one has seriously challenged that Mr. Balata did in fact deliver the documents to an unnamed adult, twice, at the father's address and followed by delivering copies by mail thereafter. In this respect, the affidavit speaks for itself.

[164] In the Court's view, this is sufficient for the mother to meet her initial burden respecting service of the Amended Application and related documents. Despite what happened at the First Appearance, Mr. Balata's affidavits of service are in fact evidence of special service within the meaning of rule 6(3)(d) of the Family Law Rules.

[165] The father attempted to rebut service by essentially saying he neither received the documents, nor any mail thereafter. In this respect, the Court heard evidence about the layout of the house in which the father resides, about the other occupants of the house (as there were (and still are) tenants in parts of the home), and even about how and when the mail arrives each day.

[166] The evidence did establish that the father was generally home in the mornings when the mail arrived as he left for work later in the day. The evidence also established that in 2013, there were other family members living with the parties, as well as two different families renting portions of the father's and F.C.'s house. All of these other persons, in addition to the father and F.C., had access to the mail box.

[167] But fourth, to rebut proof of service, the father only called one of those other persons, his wife F.C., to testify at this trial. F.C. was asked whether she had received Court documents. She specifically denied having received any envelopes containing Court documents. She said that she would have given the father his mail had she received any. And incidentally, she said that she only learned about the court proceedings after the father's driver's license had been suspended, not earlier.

[168] Without Mr. Balata's oral testimony, given the number of persons living in the home at the time, the Court cannot make a specific finding as to who was the unnamed adult female who received the documents. F.C. said it was not her, but there were other residents.

[169] But this is not fatal to the mother's argument that the father had adequate notice of the proceeding.

[170] As the Court has found that the mother discharged her initial onus to prove service of the Amended Application, again, the onus shifted to the father to rebut proof of service. While what happened with Mr. Balata is very unfortunate, ultimately it fell on the father's shoulders to call him, and he did not.

[171] In cross-examination, the father's counsel embarked upon a valiant effort to lead evidence to suggest that the Court should find no service. For example, in cross-examination, the mother admitted that she was meeting the father regularly throughout 2013. She agreed she made no attempt to have the father personally served when he came to visit her. In fairness though, she did say that she understood the law to be that he could not be served at her home.

[172] Another example is that the mother acknowledged that she could have had the father served at his work place, but she chose not to attempt service to him there. Ms. Barbisan testified that she had a conversation with the mother about serving the father at work, but the mother did not wish to do that. Ms. Barbisan testified that the mother did not want to embarrass the father by serving him that way.

[173] The mother also admitted that she knew the father was on Facebook, that she had his cell phone number and was able to send him text messages. She agreed that she knew how to contact him otherwise than at his home (for example there was contact information for him on his business' website), but she made no attempts to serve him via other means. Ms. Barbisan testified, though, that she did not think that service via Facebook was really an option at the time, because to her understanding at the time, only one judge (Justice Sherr) was then allowing service by Facebook in 2013.

[174] It could be said that this evidence that the father fleshed out, through cross-examination of the mother and Ms. Barbisan, might amount to material non-disclosure at the time of Katarynych J.'s August 20, 2013 substituted service Order. In other words, it might be argued that had the mother said she had not done these things, Katarynych J. would have told her to.

[175] But in the Court's view, this evidence falls short of rebutting proof of service.

[176] While, as Kristjanson J. said in Lin v. Ha, it would have been prudent for the mother to have taken those steps, the Court is ultimately satisfied that the father still had adequate notice of the proceeding because:

(a) The Amended Application and other supporting documents were delivered to the father's residence twice and left with an adult. The Court finds it hard to believe that whomever it was who received the documents, whether F.C., another family member or a tenant, would not have given her spouse, relative or landlord his mail upon receiving it;

(b) The documents were then mailed to his address; and

(c) Ms. Barbisan mailed the 14B motion for substituted service and related documents to the father's address.

[177] In short, 5 different sets of documents were delivered to the father's address, repeatedly, in a short period of time. It defies common sense that all 5 sets of documents went missing.

[178] This is not a case like in Lin v. Ha where the responding party called evidence to prove that he was not living at the house, to prove that the documents sent had actually been returned to sender, and to prove that others did not receive the documents. Rather, in this case, it is a fact that the father lives at the address that Mr. Balata, and the subsequent mailings, went to. Other than testifying about this himself, the father only called F.C. to testify, who did say she did not get the documents. But there were others living in the home whom he ought to have called. The Court heard no evidence from anyone else in the home.

[179] In the absence of cross-examination of Mr. Balata to challenge that he actually delivered the documents, or the evidence of anyone else from the home to rebut the proof of service like was done in Lin v. Ha, what the Court is left with is essentially a bald denial from the father. And that resembles the facts before Zisman J.

[180] Therefore, the Court is finding that the father cannot avail himself of rule 25(19)(d) to set the Final Order aside because the Final Order was made with notice.

G. The Uncontested Trial and the Father's Failure to Come to Court

[181] After she obtained the order for substituted service and complied with it, the mother then attempted to obtain a Final Order based on a Form 23C Affidavit for Uncontested Trial at an appearance before Justice Cohen on October 8, 2013. The father was not present.

[182] According to Ms. Barbisan though, Cohen J. had questions about the effect of Katarynych J.'s Order regarding service, as well as about the evidentiary basis for the Final Order sought. Regarding the latter, Cohen J. wrote the following in her Endorsement, "[i]ssue of child support is adjourned for further and better evidence (evidence/how sum claimed is arrived at) and for app. to receive legal advice regarding access claim." At this early stage, the mother already had a warning that the evidentiary basis to support the Final Order was questionable.

[183] Nevertheless, the mother proceeded to file a 14B Motion, this time dated December 13, 2013, again seeking a Final Order. In support of her request, the mother filed an affidavit sworn December 9, 2013 to supplement what she had said in the Form 23C Affidavit for Uncontested Trial. On December 31, 2013, Katarynych J. noted the father in default and made the Final Order that is in issue in this trial. Later in these reasons, the Court will explain the deficiencies in these two affidavits.

[184] But before turning to that, in addition to relying on rule 25(19)(d) to set the Final Order aside, the father also relied on rule 25(19)(e). Yet the father's attack on the Final Order focused heavily on the alleged lack of service.

[185] This is not a case like the re-hearing in Gray v. Gray where there was notice, but the moving party had some other valid reason for not coming to Court. Having found the father had notice in this case, the Court is not satisfied that there were other good reasons for him not to have come to Court.

[186] The Court finds that the father cannot avail himself of rule 25(19)(e) either to set the Final Order aside.

H. Findings of Fact Respecting Service of the Final Order of Katarynych J. dated December 31, 2013 and Analysis

[187] Rule 25(13)(a) of the Family Law Rules says that, unless the court orders otherwise (and Katarynych J. did not order otherwise), the person who prepared an order shall serve it on every other party, including a party to whom paragraph 1 of subrule 1(8.4) applies. Therefore, even though the father did not file an Answer, he was still entitled to be served with the Final Order.

[188] The father alleges that he did not receive the Final Order either. Again, the father's evidence was that he only became aware of the proceeding after he heard from the FRO in 2015.

[189] For the reasons the Court has just explained, the Court has rejected his assertion that he did not have notice of the proceeding prior to 2015. And the Court finds that rule 25(13)(a) was complied with and that the father was sent the Final Order by mail.

[190] The mother, who was self-represented at the time, did not prepare the Order. The mother did not serve the Order either. And she admitted in cross-examination that she did not speak to the father about the terms of the Order after it was granted. It was the mother's evidence that she thought that either the worker from the City of Toronto sent him the Order, or that the Court did.

[191] But Ms. Barbisan neither prepared the Order nor did she send it to the father.

[192] Therefore, the Court finds that a Clerk of the Court had to have prepared the Order. And so it fell to the Clerk to send the Order to the father in accordance with rule 25(13)(a). And that was done.

[193] The Final Order of December 31, 2013 was issued and entered on February 8, 2014. The original Order, still in the Court's Endorsements Record, contains a stamp indicating that it was sent to both parties, to the Family Responsibility Office and to CPIC. The stamp is initialed by the same clerk who signed the Order. The Court is satisfied that the usual process was followed and the Order was sent to both parties, including the father, in the ordinary course of business.

[194] In any case, it fell to the father to call evidence to rebut this, but once again, he baldly denied receipt of the Final Order. The Court does not accept his bald assertion that he did not receive it. The Court finds it hard to accept that this piece of mail, coming from the Court, would go missing too. For that to be true, this would be the 6th set of documents that would have to have gone missing. That would be quite the coincidence.

[195] The Court also notes that the father tendered no case law as to what the impact of not receiving the Order should be and whether that would be a separate basis to set the Final Order aside. But given the Court's findings about notice and service of the Order, the Court need not say anything further about this.

I. Applicable Legal Principles Concerning the Nature of the Evidence at the Uncontested Trial and Analysis

[196] Although the father has not satisfied the Court that the Order should be set aside pursuant to an applicable Family Law Rule, the Court intends to comment, both about the father's conduct in not participating in the initial round of these proceedings, but also about the calibre of the evidence that the mother put before the Court back in 2013, as the Court finds both of these aspects of the evidence to be relevant to the father's alternative request to vary the Order.

[197] On the one hand, sometimes support payors operate on the mistaken belief that they may choose not to participate in an initial proceeding for support, and then return to Court to pray for relief once the Family Responsibility Office ("FRO") has caught up with them. The Court accepts that at the initial stage, when a payor is refusing to participate in the Court's process, an applicant often has no choice but to seek final relief on an unopposed basis, relying on the best information known to him or her.

[198] A payor has a positive obligation to respond and to provide details of his or her income. A payor refusing to do this runs the risk of adverse inferences being drawn against him or her. And he or she will not necessarily be entitled to retroactive relief is he or she fails to cooperate as ought to have been done in round one.

[199] The Court is mindful of Kiteley J.'s comments in Reyes v. Rollo (2001), 24 R.F.L. 5th 120 (S.C.J.) at ¶ 44 in this regard, where she said:

It is inherent in the circumstances of those who are self-employed, that they have a positive obligation to put forward not only adequate, but comprehensive records of income and expenses. That does not mean audited statements. But it does mean a package from which the recipient spouse can draw conclusions and the amount of child support can be established. Where disclosure is inadequate and inferences are to be drawn, they should be favourable to the spouse who is confronted with the challenge of making sense out of financial disclosure, and against the spouse whose records are so inadequate or whose response to the obligation to produce is so unhelpful that cumbersome calculations and intensive and costly investigations or examinations are necessary.

[200] But by the same token, it is the Court's finding that the father never made $150,000 as alleged by the mother and then found by Katarynych J. at the uncontested trial. And the evidentiary basis put forward by the mother is particularly problematic. Frankly, it contains errors and it was misleading, in light of what the Court heard at this trial.

[201] So even though the father chose not to participate in the initial proceeding, the mother was still under an obligation to provide as complete and accurate information to Katarynych J. as possible, and she did not do that.

[202] In saying this, the Court relies on three cases that set out these well-established principles.

[203] At ¶ 21-22 of Ahmed v. Hawthorne, 2016 ONSC 571, albeit in the context of a motion to set aside an ex parte order, Myers J. cited courts' "reluctance to re-open matters that have been determined" as a "longstanding principle". But ultimately, he wrote, "the law sides with honesty over administrative convenience". Then at ¶ 24, Myers J. wrote that parties must make full and frank disclosure of all material facts. The failure to do so can itself lead to the order being made set aside even where the moving party establishes good grounds for moving for the relief sought.

[204] Vogeslang J. made similar comments in Tomanec v. Tomanec, 1990 CarswellOnt 311 (Prov. Div.)

[205] Similarly, in Cadas v. Cadas, 2013 ONSC 2608, a pre-Gray v. Gray decision decided pursuant to rule 1(7) of the Family Law Rules and Rule 19.08 of the Rules of Civil Procedure, Stevenson J. set aside an order obtained at an uncontested trial for an equalization of net family property. At ¶ 42-45, she found that the applicant did not file a complete and accurate affidavit in support of the relief sought. She found that there had not been full and fair disclosure of all material facts before the judge who heard the uncontested trial. Had certain information been disclosed to the trial judge, which she found had not been, the trial judge's decision would have been affected. She found it troubling that the applicant had relevant information which she chose not to disclose.

[206] At ¶ 46 of Cadas v. Cadas, Stevenson J. cited Ontario (Director, Family Responsibility Office) v. Shore, 2010 ONSC 5267, saying, "…there is a tremendous need for litigants within the family court system to be held to the strictest standards of accuracy in the evidence provided to the court given the tendency among family litigants for exaggeration or "stretching" of facts to suit their purposes in the affidavits presented to the court on a daily basis, fuelled by the high stakes and high emotion present in many of the cases that come before this court."

[207] The Court has already alluded to the principle that an ex parte order is vulnerable to being set aside on the basis of material non-disclosure earlier in these reasons when addressing Katarynych J.'s substituted service Order of August 20, 2013. And the Court appreciates that Myers J.'s, Vogeslang J.'s and Stevenson J.'s comments were made either in the context of ex parte orders or an application to set aside a Final Order under rule 1(7) and rule 19.08 of the Rules of Civil Procedure.

[208] But nevertheless, whether under the Family Law Rules or the Rules of Civil Procedure, an uncontested trial, even where there has been service, is still in effect an application heard on one sided evidence. And as the Court has said, the applicant still has an obligation to make full and frank disclosure.

[209] Again, the Court finds the evidentiary basis in the mother's Form 23C Affidavit for Uncontested Trial sworn October 8, 2013 and her supplementary Form 14A affidavit to have been erroneous and misleading. In the 23C, the mother claimed the father made $150,000.00. But she also said the following (the Court reproduces verbatim what she wrote):

The Respondent is self-employed. I do not know exactly what the Respondent's income is. However the Respondent would talk to me about the expenses he had related to the business. The Respondent advised me that the cost of renting the clothing store was $3,000-$4,000 per month, the rent for the Convention Centre was $16,000, his car loan was $1,000 per month and the monthly mortgage payments for his home was $3,000. The Respondent had also told me that he owns land in Bangladesh and he is a shareholder in his family's ice cream business. Given this information, I estimate his income to be approximately $150,000. I am asking for an order for Child Support in the amount of $1,263.00 per month, in accordance with the Child Support Guidelines, effective March 1, 2013.

[210] The December 9, 2013 supplementary affidavit is in some respects just a longer version of what the mother said in the Form 23C Affidavit for Uncontested Trial. In the December 9, 2013 affidavit, she added the following about the father's income:

(a) The father was the owner of a clothing store and continued to work there throughout the relationship;

(b) In 2012, he started another business. She said that the father had told her that he owned two businesses;

(c) The father owns a 2005 Honda and has a leased 2012 Honda;

(d) The father had 7 credit cards with various balances. In this affidavit, the mother set out the balances owing on the credit cards, the monthly payments and claimed that there were no past due amounts as of July 2013. (Presumably this evidence was offered to the Court to explain that he either had the ability to qualify for a number of credit cards or that he could make monthly payments. But what this affidavit revealed was that the father owed $34,166 in credit card debt. The monthly payments on the cards having a balance were then $617 per month);

(e) The father's car lease was a joint lease. The monthly payment was $678.00; and

(f) The father's mortgages balances were then $408,000.00, and his monthly payments were $2,192.00.

[211] In summary, the mother referred to the aforementioned monthly expenses as "mortgage and personal expenses" totalling $41,844 per year.

[212] She then went on to say that the cost of rent for the clothing store was between $3,000 to $4,000 per month and the rent for the banquet hall was $16,000 per month.

[213] Therefore, the total of these expenses, she said, was $240,000.00 per year.

[214] The mother's affidavit did not really differentiate between business expenses and personal expenses, nor how those should be treated (differently) in an income or lifestyle analysis.

[215] And again, she mentioned the land in Bangladesh and the ice cream business.

[216] But in her evidence in chief at this trial, the mother essentially testified that she knew very little about the father's income. She said what she knew about the father's income was based on what he had told her. That was quite some time ago.

[217] She also testified that she observed him driving a Honda Odyssey. She said that was a new car (at least the time when the father used to visit her). The Court gathers she inferred from this that he must have had some money to be able to afford the car.

[218] The mother continued to maintain that the father did own more than one business, but that too was based on what he had told her. She also said that he sings and performs with a band. She said that he gets paid for that, but she did not know how much.

[219] The Court does not accept that the mother really believed that the father owned two businesses at the time. The Court says this because the parties' relationship started when the father owned the store and continued after it closed. The Court will explain in more detail below when dealing with the father's income, but the evidence was not that the father ran two locations at the same time. Rather the allegation that the Court heard at this trial is that the father has continued to secretly run a clothing business out of his banquet hall.

[220] The Court heard no evidence that the mother continued to attend at the Toronto clothing store location at any point after 2012 (that is the date that the Toronto store location was closed). Therefore, the father was not paying two sets of business rent at the same time as the uncontested trial evidence stated.

[221] In cross-examination at this trial, the mother testified that she did not know how or why she said the father's income was $150,000. She was unable to explain what formula she used to come up with this income figure back in 2013. She said that the Family Support Worker from the City of Toronto prepared her affidavit. She testified that the $150,000 number came from the information she had given to the Family Support Worker though, such as the information about his mortgage payments and his credit. But she also said that she only glanced quickly at the Equifax Report that the Family Support Worker had obtained.

[222] It was incumbent upon the mother, as the applicant, to pay attention to the evidence that she was filing. There was an Equifax report, but she did not scrutinize it.

[223] And Ms. Barbisan contradicted the mother's testimony in this respect. She said that from the very first appearance, going back to May of 2013, the mother always said that the father made $150,000 per year. Ms. Barbisan testified that she understood her role to be to assist the mother.

[224] The evidence the Court heard at the trial was insufficient to establish that the father owned two businesses in Ontario at the same time. Nor did the evidence at this trial establish that the father owned land in Bangladesh resulting in an income stream, nor a stake in a family ice cream business. Nor did the Court hear any evidence upon which the Court could rely to quantify an income to him from singing in a band.

[225] Even if the father did have two businesses here in Ontario at the same time at some point, adding up the cost of rent (a business expense) is not tantamount to establishing personal income. Renting commercial space for either kind of business is a legitimate business expense that gets deducted from gross business revenues. So it would be from net business income (after the payment of rent) that the father's personal income for child support would be determined.

[226] That was a fundamental flaw in the logic that underlay the mother's uncontested trial materials.

[227] And incidentally, the evidence that the Court heard at this trial (which the Court will come to), is that the rent expense for the banquet hall that the father has been incurring, is nowhere near the level of rent that the mother told the Court back that he was paying back in 2013.

[228] And incidentally, the evidence that the Court heard at this trial (which the Court will come to), is that the rent expense for the banquet hall that the father has been incurring, is nowhere near the level of rent that the mother told the Court back that he was paying back in 2013.

[229] In her affidavit of December 9, 2013, the mother referred to the father's credit card expenses as personal expenses. But the evidence the Court heard at this trial is that the father may be using some of these credit cards to pay for business expenses too.

[230] Even if he did not use the credit cards that way, and so those expenses were entirely personal to him, the father's credit card payments to service his debt that the mother told the Court about back in 2013, do not support an income of $150,000 either.

[231] Assuming that all of the mortgage, credit card expenses and the car lease expense were in fact all personal expenses, the affidavit reveals little more than the father needed to have income (after tax) to pay $41,844 per year (plus whatever other unspecified expenses that he might have).

[232] But the evidence that the Court heard at this trial also revealed that his spouse, F.C., had some income coming into the household too, and that was used to help defray these expenses. That was not told to the Court in the uncontested trial materials either.

[233] The Court does not accept the mother's evidence at this trial that Ms. Barbisan did the analysis and arrived at a figure of $150,000 on her own. The Court accepts Ms. Barbisan's account that it was the mother who said, from the beginning, that the father made $150,000.00 and she wanted to pursue an order for child support based on that amount.

[234] The Court finds that the evidence filed at the uncontested trial was results oriented in this regard. Documents were prepared in an attempt to support that number.

[235] And for reasons that the Court will explain, the Court finds that the father neither then, nor in any year since, made $150,000.

[236] But he didn't make as little as he would have the Court believe either.

[237] It may be that the father could have availed himself of rule 25(19)(a). Rule 25(19)(a) authorizes the Court to set aside an Order that was obtained by fraud. In Farhan v. Farhan, 2012 ONSC 6596, Minnema J. set aside two orders on the grounds of fraud. At ¶ 22 of Farhan v. Farhan, citing Dodge v. Dodge, [2007] O.J. No. 3888 (S.C.J.), Minnema J. explained that the often quoted definition of civil fraud is that fraud will be proved when a false representation has been made either knowingly, without belief in its truth, or recklessly, careless as to whether it be true or false.

[238] But that was not argued for at this trial. And given the seriousness of a finding of fraud, the Court will not use this rule to set the Order aside. Nevertheless, as Stevenson J. said ¶ 47 of Cadas v. Cadas, while the Court was unable to find that the applicant deliberately intended to mislead the Order and therefore that the uncontested trial order was obtained by fraud, "…the applicant's omission of these essential facts outlined above is sufficient to set aside the equalization provisions of the order …" Albeit, again she relied on Rule 19.08 of the Rules of Civil Procedure as the starting point for her analysis on this point though.

[239] Counsel did not fully argue whether this case is one of the rare cases that might engage Rule 19.08 of the Rules of Civil Procedure having regard to the Court of Appeal's comments in Gray v. Gray, and so the Court declines to consider a possible set aside pursuant to that rule either.

[240] But by analogy, the Court views these comments of Stevenson J. to be of assistance when considering the father's alternative request to vary the Order.

PART IV: ORDER

[519] Based on the foregoing, the Court makes the following Orders:

(a) The father's request to set the Final Order of Katarynych J. dated December 31, 2013 is dismissed;

(b) The father is not entitled to any variation, reduction or rescission of any arrears that accrued between March 1, 2013 and December 1, 2013;

(c) The Final Order of Katarynych J. shall be varied retroactively commencing January 1, 2014 and the father shall pay child support in accordance with the applicable tables based on his income, determined by the Court in this Judgment, for the period January 1, 2014 through June 1, 2019;

(d) To be clear, this means child support for one child, A.C., from the period of January 1, 2014 through September 1, 2015 and then for two children, A.C. and N.C., for the period October 1, 2015 thereafter;

(e) For the purposes of the determining the amounts, the Court finds the father's income to be $60,921 in 2014, $61,803 in 2015, $64,643 in 2016 and $84,495 in 2017. Because there is no more current information, the Court will use the 2017 income for 2018 and 2019;

(f) Commencing July 1, 2019, the father shall pay child support for the two children based on the 2017 income that the Court has determined;

(g) Counsel are directed to book a date to re-appear before the Court through the trial coordinator's office as soon as possible for the purpose of finalizing the amount of arrears owing. Counsel shall come with a child support calculation based on the findings in this Judgment. It shall calculate the father's child support owing from March 1, 2013 less the payments through the FRO that he has made, reflected on Ex 14, less the $400 monthly payments since May 1, 2018 and less the additional credit of $800 that the Court has given him. And in doing this calculation, counsel are directed to pay specific attention to the fact that the child support tables changed in November 2017;

(h) Once the Court hears those submissions, the Court will fix the amount of arrears owing. The Court will also hear submissions about repayment now that the actual numbers will be known to both parties;

(i) At the re-attendance, the Court requires submissions as to how much of the arrears are owing to the City and how much are owing to the mother. A precise number will be required, as it should form part of the issued and entered Order. And the Court also requires submissions about how any repayment, if ordered, should be prioritized as between the City and the mother;

(j) The father shall provide annual disclosure in accordance with the Guidelines. The Order to be issued and entered shall contain the usual clause required by the Guidelines;

(k) In addition, if the father embarks on a construction project regarding his house in the future, he shall provide the mother will all documentation necessary to show how the project is being financed. This shall include any financing documents in which he reports and income. If the mother is dissatisfied with the level of disclosure she receives, then she should return the matter to Court;

(l) If the parties cannot agree on costs, then costs shall be argued at the attendance to be set by the trial coordinator; and

(m) Prior to re-attending, counsel are directed to exchange Bills of Costs and any previous Offer upon which they intend to rely at the costs hearing. They should bring those documents with them to present to the Court, along with any case law, at the hearing. Case law is to be exchanged in advance also.

Released: June 5, 2019

Signed: Justice Alex Finlayson