Court File and Parties

Date: August 17, 2020

Court File No.: 49/14

Ontario Court of Justice Central West Region

Between:

JESSICA EDDY Applicant

— AND —

CHRISTOPHER ERB Respondent

Before: Mr. Justice Richard H.K. Schwarzl at Orangeville

Heard on: August 5, 2020

Reasons released on: August 17, 2020

Counsel:

• Ms. Shokeen Singh for the Applicant
• Mr. Charles Mota for the Respondent

SCHWARZL, J.:

REASONS ON MOTION

1.0: INTRODUCTION

[1] The Respondent father, Christopher Erb, has brought a motion asking for three orders. First, setting aside the order of Justice Pugsley made March 5, 2020 noting him in default and striking his Motion to Change (MTC). Second, setting aside the order of Justice Pugsley made March 5, 2020 allowing the Applicant mother's Response to MTC to proceed as an uncontested trial by Rule 23. Third, setting aside the ex parte temporary orders of Justice Pugsley made June 24, 2020 reducing the father's access to his son, Caleb, and issuing a restraining order against the father.

[2] The Applicant mother, Jessica Eddy, opposes the motion in its entirety.

2.0: RELEVANT CHRONOLOGY OF THE CASE

[3] The parties lived together between September, 2010 and April, 2013 when they separated permanently. They have a son, Caleb, born in 2012. Caleb is nearly 8 years old at the time of this motion.

[4] In March, 2014 the mother brought an Application in the Ontario Court of Justice seeking full custody of Caleb and child support (Continuing Record, Tab 1). The father, through his then lawyer, Ms. Lisa Cherry, filed an Answer seeking an order of joint custody with primary residence of Caleb to him (CR, Tab 5).

[5] On November 25, 2015 a Final Order was issued by Justice Maund and was made pursuant to minutes of settlement agreed to by each party. The essence of the Final Order was that the parties have joint custody of Caleb, with primary residence with the mother and generous access to the father. Father was to pay child support in accordance with the Support Guidelines.

[6] In March, 2017 the father, through his then lawyer, Ms. Kemi Palmer, served and filed this MTC (CR, Tab 12). He sought sole custody of Caleb and to reverse the access arrangements, as well as other ancillary relief. The mother filed a Response to MTC (CR, Tab 15). She asked for sole custody of Caleb or, in the alternative, joint custody as long as she had the final say regarding parenting issues, while maintaining the present access order.

[7] For nearly three years, beginning in June, 2017 and right up to Justice Pugsley's temporary order of June 24, 2020, Caleb started residing equal time between each parent's home. He is a special needs student at Montgomery Village Public School in Orangeville. An interim report of the Office of the Children's Lawyer (OCL) dated December 5, 2017 (CR, Tab 22) made a number of interim recommendations, including that the residence sharing arrangements in place and enshrined in my temporary order of November 15, 2017 (made on consent of both parties) continue.

[8] On April 12, 2018, Ms. Palmer was removed as counsel for the father due to a breakdown in their relationship in part because the father stopped communicating with her.

[9] The father failed to appear for the court date of April 18, 2018. The mother sought to note him in default at that time and asked that his pleadings be struck. Justice Pugsley declined to do so but he ordered that the court administration write to the father and tell him not only of the next court date, but warn him that if he does not attend court in the future the matter may continue, or even conclude, without his further involvement. The father attended the next court date, May 9, 2018, in person.

[10] On July 20, 2018 the OCL, Marion Jacko, issued her final report (CR, Tab 24). Amongst her many recommendations, the OCL suggested the parties try to make custodial decisions jointly with the help of professionals and a parenting coach if necessary. If that didn't work, the OCL suggested that each parent take on sole responsibility for half of Caleb's four "significant domains" (i.e. educational, medical, dental, and recreational). She also recommended continuing the residence sharing arrangement.

[11] The father missed the court date of September 12, 2018, advising the mother's then lawyer, Julia Bradley, that he was "unaware of the date", despite consenting to it on the prior court appearance.

[12] The father also missed the next court date of October 24, 2018, communicating with Ms. Bradley that he was ill.

[13] On February 28, 2019 the father brought a motion without notice seeking an order that the mother be refrained from moving Caleb outside Dufferin County because the mother had moved to Milton (CR, Tabs 26 and 27). I dismissed the motion as the father had failed to comply with the requirements of Rule 14 and because he failed to serve the mother's lawyer.

[14] On March 5, 2019 the father properly served the motion material on the mother's lawyer (CR, Tab 28). On March 7, 2019 the mother's lawyer served and filed a cross-motion seeking, in the main, temporary sole custody of Caleb with severely restricted access to the father (CR, Tabs 29 and 30). The mother's cross-motion bore similarities to the additional relief she would seek in June 2020 in her 23C materials.

[15] The motions were argued in front of Justice Pugsley on April 10, 2019, who released his ruling the following day. In making temporary orders, His Honour did not reverse the mother's move to Halton Region, but required her to maintain Caleb's enrolment at Montgomery Village Public School in Orangeville. He also ordered that the residence sharing arrangement remain intact.

[16] In May, 2019 the mother decided to represent herself (CR, Tab 32). At this point neither party was represented by counsel.

[17] On July 17, 2019 a settlement conference was held before Justice Pugsley. The father stated that he intended to hire a lawyer. The mother said that she wanted to bring a motion regarding interim child support. His Honour noted that the mother's motion would be heard on September 4, 2019.

[18] On September 4, 2019 the mother failed to appear. Nor had she served or filed any motion materials. Given that the father had attended, Justice Pugsley ordered that the mother pay $200 in costs within 90 days and directed that the court administrator mail the endorsement to the mother. There is no evidence suggesting that the mother did not pay as ordered.

[19] On September 25, 2019 both parties appeared in court, but the father left before the matter could be spoken to. The father sent a text to the mother stating that he was in the process of hiring a lawyer. On consent, the matter was adjourned to November 13, 2019 for a trial management conference.

[20] On October 11, 2019 the mother brought an ex parte motion for an order dispensing with travel consent so that she could take Caleb to Jamaica because father was withholding his consent (CR, Tabs 34 and 35). In chambers, Justice Pugsley granted the relief sought.

[21] On November 13, 2019 the mother attended for the trial management conference. She came with her present counsel, Ms. Shokeen Singh, whom she had retained only a couple days earlier. The father did not appear and neither party filed briefs as required by the Rules. I was the judge that day. I ordered that a trial management conference be held February 5, 2020 peremptory on both parties given the age of the matter. I directed that a copy of my endorsement be mailed to the father.

[22] On January 27, 2020 Ms. Singh served the trial management conference brief and endorsement sheet on the father by email (CR, Tab 36).

[23] On February 5, 2020 the mother and her lawyer appeared for the trial management conference. The father failed to appear despite being notified that it was peremptory and having been served with the mother's materials the week before. Despite his failure to appear, the mother did not ask that the father be noted in default. Justice Pugsley made several orders including (a) that the matter be adjourned to March 4, 2020 for a trial audit, (b) that the father pay to the mother $1000 in costs within 90 days (i.e. by May 5, 2020), and (c) that the court's endorsement be emailed to the father.

[24] On March 4, 2020 the mother attended for the trial audit. The father was absent once again. This time, Justice Pugsley agreed with the mother's request to note the father in default and to strike his pleadings. In addition, His Honour ordered that the mother could proceed to an uncontested trial of her Response to MTC via Rule 23. The matter was then adjourned to April 15, 2020 to be spoken to.

[25] The mother delayed filing her 23C due to the COVID-19 pandemic. On June 24, 2020 she filed the 23C materials. In them, she asked for additional relief that was not part of her Response to MTC, but similar to the relief she sought by cross-motion in March, 2019. Due to the events from May and June, 2020 as she described them, the mother sought to alter the access arrangements to be at her discretion, as well as other relief not previously sought (CR, Tabs 39 and 40). She sought this new relief without notice to the father.

[26] On June 24, 2020 Justice Pugsley made temporary orders based on the mother's materials. Those temporary orders included restricting access to be at her discretion, and a restraining order against the father. His Honour also ordered that the mother refile her 23C materials because several text messages she relied on were too dark to read. The court ordered the matter to be spoken to on July 22, 2020.

[27] It is obvious that the father became aware of Justice Pugsley's temporary orders made June 24 because the father hired his present lawyer, Mr. Charles Mota, on July 21, the day before the court appearance. That same day, Mr. Mota served and filed the motion now before me (CR, Tabs 41 and 42). On July 22, 2020 both parties and their lawyers appeared in court by teleconference. The matter was adjourned to August 5, 2020 to argue the motion which happened before me. I was told that upon advice from his lawyer, the father paid the $1000 cost order to the mother's lawyer shortly after Mr. Mota was hired. The payment was made nearly three months late.

[28] It is clear from this chronology that this matter has become unduly protracted, in no small measure from the numerous absences and actions of the father.

3.0: THE ISSUES

3.1: Issue #1: Request to set aside the default and to restore the father's pleadings

3.1.1: The Father's Position

[29] The father submits that he missed the trial management conferences in February and March because he was distracted by two traumatic events that occurred in November 2019. The first event was the premature birth of his daughter on November 1, 2019 that caused her to be hospitalized in Toronto for two months. The second event was the destruction by fire of the father's roofing shop which required him to scramble to save and repair his business. He said these events and the need to focus on them distracted him from his obligations to his MTC and to this court (CR, Tab 42: Affidavit of Mr. Erb, sworn July 21, 2020).

[30] The father submits that he is now focussed on this case and is ready to be serious about getting this case back on track. He submits that finally hiring a lawyer and paying the outstanding cost order shows his sincerity to move the matter forward.

[31] The father submits that any prejudice suffered by the mother as a result of setting the default aside including missing court dates and the mother's preparation of trial management conference materials and 23C trial materials can be remedied by a substantial financial penalty of $3000 to $3500 in costs being paid to the mother. He submits that his explanations for his conduct that led to the default were reasonable insofar as he was distracted by catastrophic personal trauma beyond his control.

3.1.2: The Mother's Position

[32] The mother submits that the father did literally nothing to rectify his default until he was served with the temporary orders of Justice Pugsley made June 24, 2020. She submits that when assessing the behaviour of the father over the whole of his MTC, and not just in the last two months of 2019, the court ought not be persuaded that he is serious about this proceeding and is now only engaging in stall tactics.

[33] The mother submits that the true prejudice she will suffer if the default is set aside in not only financial, but the lost opportunity to bring unnecessarily prolonged proceedings to a timely end. She submits that to allow the father to have his MTC restored would be against the best interests of justice and, most importantly, Caleb's best interests.

3.1.3: Analysis

[34] Both parties referred me to several decisions that set out the test for setting aside default judgments: HSBC v. Firestar, 2008 ONCA 894; TD Bank v. Radiancy Canada Inc.; Ozugowski v. Lake Stars Corp., 2019 ONSC 2032.

[35] These authorities state that the moving party must satisfy three elements to be successful in setting aside a default:

(a) That the motion to set aside was brought without delay after learning of the default;

(b) That the circumstances giving rise to the default were adequately explained; and

(c) The moving party has an arguable case on the merits.

[36] In Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, the Ontario Court of Appeal added two further elements to those stated above, namely:

(d) Assessing the potential elements to the parties if the motion is either granted or dismissed; and

(e) The effect that any order made on the motion would have on the overall integrity of the administration of justice.

[37] Some cases in the Ontario Court of Justice have considered all of these elements when deciding whether to set aside a default: P.M. v. S.M., 2014 ONCJ 496; S.O. v. E.A., 2017 ONCJ 213; E.S.R. v. R.S.C., 2019 ONCJ 381.

[38] It is clear from the authorities that the court must balance all of these elements to decide if the interests of justice favour granting the relief to set aside the default in whole or in part.

[39] In the case before me, the father failed to act promptly after learning of the default in early March, 2020. Despite (a) being warned in the past that the matter could conclude in his absence if he did not participate, (b) being notified that the trial management conference was peremptory on both parties, and (c) being ordered to pay $1000 in costs, the father did nothing until he lost access to Caleb in late June, 2020. The father's absences on several court dates prior to November 2019 further illustrate his somewhat cavalier approach to his MTC.

[40] When assessing his overall behaviour and in consideration of the communications sent by the court and Ms. Singh after November 13, 2019 I am not satisfied that the father's explanations for letting the case "slip his mind" are reasonable. While it is true that he suffered significant personal and business traumas in November, 2019 his own affidavit material says that the distraction from this case was for a couple of months, which means until mid-January 2020 at the latest. These explanations do not address why he ignored all communications after that time. These explanations do not explain why he failed to pay the cost order until late July, 2020. They do not explain his tardiness before November, 2019.

[41] With respect to the merits of his MTC, events as they have unfolded over the past three years since he commenced his action reveal that these two parents operate inside an emotionally-charged atmosphere of high conflict. Caleb is a special needs student who appears to be doing well at Montgomery Village Public School and he appears to be thriving in the 50-50 shared residence arrangement. As such, it appears that interests of justice and of Caleb are best served if the issues of custody and access are subject to a trial, in the absence of any settlement between the parties.

[42] Of significance to this issue is the move by the mother in her 23C materials to significantly change the relief sought from that contained in her Response to MTC. By doing so without notice to the father, the mother has engaged the issue of access and schooling and placed them squarely into the spotlight. Because of this, the interests of justice are best served by allowing the father to be heard on these new requests for relief made by the mother.

[43] As to the matter of prejudice, dismissing the motion to set aside the default could reasonably harm the father's opportunity to answer the mother's newly sought relief set out in her 23C materials. The prejudice to the mother if the motion is granted is not just financial but the continuation of an already aged proceeding.

[44] Despite the poor procedural behaviour of the father, I am persuaded that the overall interests of justice require that I set aside the orders made by Justice Pugsley on March 5 that noted the father in default, struck his pleadings, and permitted the mother to proceed by an uncontested trial on her Response to the MTC. I find that the prejudice to the mother in granting the motion can be relieved by an order for costs and setting strict and early timelines to move the case forward.

[45] In the totality of the circumstances of this case, the overall integrity of the administration of justice is not compromised by setting aside the default in the fashion I just described.

3.2: Issue #2: Review of the Temporary Orders of Justice Pugsley made June 24, 2020

3.2.1: Position of the Father

[46] The father submits that given his supporting affidavit evidence (CR, Tabs 42, 43 and 44) the temporary orders made by Justice Pugsley on June 24, 2020 restricting access to the mother's discretion and the restraining order be set aside.

[47] The father argues that there is no material change to the situation and that Caleb is safe and happy with the current residence sharing and access arrangements.

3.2.2: Position of the Mother

[48] The mother submits that the events she described in her affidavit materials (CR, Tabs 38, 39, 40, and 45) demonstrate that the 50-50 residence sharing is no longer in Caleb's best interests and that, at a minimum, the father should be subject to drug-testing to ensure that he is drug-free while Caleb is in his care.

3.2.3: Analysis

[49] I was impressed by Ms. Cranfield's affidavit evidence (CR, Tab 44). She appeared candid and reasonable when she described a more rational and nuanced situation than painted by either parent. The Dufferin CAS have been involved with the father's household and found there is no evidence that Caleb is in need of protection, which is the essential position of the mother.

[50] In assessing the evidence on this aspect of the motion, it is clear that the parents are very angry with each other. Notwithstanding this, Caleb appears to be relatively happy and safe in the current residence and access environment which has now been going on for most of his young life.

[51] There are troubling aspects to the father's behaviour. The evidence from Caleb's phone of pictures of illegal drugs and a search history for pornography suggest that the father is using his son's phone for unsavory and inappropriate purposes. The father denies drug use. The photos of drugs suggests that the father at least has an interest in, if not temptation to use, illicit drugs. The concerns raised by this evidence are, at this time, offset by two facts. The first is that there is no persuasive evidence that the father is actually using illegal drugs at this time. The second is the position of Ms. Cranfield that if she found out that the father was using drugs, that would be cause for her to terminate a relationship that is clearly a stable and good one for the father. In other words, maintaining his present intimate relationship provides incentive for the father to stay clean. At a minimum, however, the father needs to stop using Caleb's cellphone or any other computing device of his for personal use.

[52] I also found that the evidence in support of the father reasonably explained the tumult in May and June, 2020 as described by the mother. As such I am not concerned at this time that Caleb's health, safety, or welfare are jeopardized while in the father's care, other than my lingering concerns over the inappropriate use of his son's phone and his potential interest in drug use.

[53] Having heard from both sides about the events relied on by the mother to seek restricted access, I am satisfied that at this juncture the 50-50 residence and other access arrangements be restored to the status quo prior to the temporary order made by Justice Pugsley on June 24, 2020. However, given the demonstrated animosity and high conflict between the parties, the temporary restraining order shall remain in place until the court orders otherwise.

4.0: CONCLUSIONS

[54] In consideration of the evidence presented at this motion, the procedural history of this case, the submissions of counsel, the applicable legal principles, and the best interests of justice and of the child, I make the following orders:

1. The orders of Justice Pugsley made March 5, 2020 noting the Respondent father in default, striking his MTC, and allowing the Applicant mother to proceed with her Response to MTC by uncontested trial are set aside provided that the father pay to the mother $3500 in costs, inclusive of HST and disbursements, by not later than Friday, September 11, 2020;

2. If said costs herein are not paid as ordered, then the orders made by Justice Pugsley on March 5, 2020 as set out above are confirmed;

3. Provided that the Respondent father has paid the costs as ordered herein, a trial management conference on the MTC and the Response to MTC shall be set by the court administrator in consultation with counsel for the parties to be heard not later than September 30, 2020 without further order of this court;

4. The restraining order made at paragraphs 2, 3, and 4 of the order made by Justice Pugsley on June 24, 2020 is confirmed and shall remain in force for one (1) year from the date of issuance, unless otherwise ordered by the court;

5. The temporary access order made at paragraph 1 of the order made by Justice Pugsley on June 24, 2020 is set aside;

6. With respect to access, I make a temporary order in the identical terms as set out at paragraph 36 of the endorsement/order made by Justice Pugsley on April 11, 2019;

7. I make a temporary order that neither parent shall change Caleb's school from Montgomery Village Public School without further order of the court;

8. With respect to access I make a temporary order that beginning 48 hours prior to Caleb residing with the Respondent father and continuing throughout any period of residency by Caleb with the Respondent father, that the Respondent father not consume, or be under the influence of, any alcohol, illicit drug, or any other intoxicants;

9. I make a temporary order that the Respondent father not make any personal use of Caleb's cellphone or other computing device without further leave of the court;

10. Although the Respondent father was successful on this motion, there shall be no order for costs given his laches to this point;

11. The matter shall be spoken to via teleconference on Wednesday, September 16, 2020 at 10:00 a.m. in courtroom #101;

12. These reasons together with a copy of the endorsement of Justice Pugsley made April 11, 2019 shall be emailed to counsel for both parties.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice