DATE : August 26, 2021 COURT FILE NO. D31342/19
ONTARIO COURT OF JUSTICE
B E T W E E N:
CLETUS OPPONG WIAFE
GLENDA PERRY, for the APPLICANT
APPLICANT
- and -
GIFTY AFOAKWA-YEBOAH
GABRIELLA V. DEOKARAN, for the RESPONDENT
RESPONDENT
HEARD: IN CHAMBERS
JUSTICE S.B. SHERR
ENDORSEMENT
Part One – Introduction
[1] On August 11, 2021, the court released its costs endorsement (the costs order) arising from a two-week trial about the parenting and child support arrangements for the parties’ three-year-old daughter (the child) See : Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 424.
[2] The court ordered the mother to pay the father’s costs of $72,000 for the trial stage and $3,000 for a motion step where costs had been reserved to the trial judge.
[3] Timelines had been set for the costs submissions. The mother failed to make submissions by the deadline.
[4] On August 13, 2021, the mother delivered a Form 14B motion to the trial coordinator’s office seeking to set aside the costs order and asking for an extension of time to file her costs submissions.
[5] The mother claims that she had emailed a Form 14B motion to the court on August 9, 2021, prior to the expiry of the filing deadline, seeking an extension of time to file her costs submissions (the extension motion).
[6] The court did not receive this email. All systems were checked for filings by the mother before the costs decision was released.
[7] The applicant (the father) asks that the mother’s motion be dismissed. He seeks costs of $1,000 jointly and severally against the mother and her counsel.
Part Two – Legal considerations to set aside an order
[8] Subrule 25 (19) of the Family Law Rules reads as follows:
CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE
25 (19) The court may, on motion, change an order that,
(a) was obtained by fraud;
(b) contains a mistake;
(c) needs to be changed to deal with a matter that was before the court but that it did not decide;
(d) was made without notice; or
(e) was made with notice, if an affected party was not present when the order was made because the notice was inadequate or the party was unable, for a reason satisfactory to the court, to be present.
[9] In Gray v. Gray, 2017 ONCA 100, the Court of Appeal held that there is authority to set aside an order under subrule 25 (19) of the Family Law Rules (the rules). In doing so, the court held that:
(a) The meaning of the word “change” is broad;
(b) The underlying philosophy, scheme and purpose of the rules supports such an interpretation. The court referred to Frick v. Frick, 2016 ONCA 799, where 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”.
[10] In Gray, the court wrote that judges can “change”, “vary”, “suspend”, or “discharge” a final order (paragraphs 26-27) or can set aside the entire order. At paragraph 31, the court wrote 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 subrule 25(19).
[11] In Benarroch v. Abitbol et al, 2018 ONSC 5964, Justice Heather McGee wrote that subrule 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.
[12] The Court of Appeal listed 5 factors that courts should consider in determining whether to set aside a default judgment in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194 as follows:
(a) Whether the motion to set aside was brought promptly after the defendant learned of the default judgment;
(b) The existence of a plausible excuse or explanation for failing to comply with Rules of Civil Procedure;
(c) Whether the facts establish that the defendant has an arguable defence on 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 that the court might make on overall integrity of administration of justice.
[13] This is not a conjunctive test. See: Smith v Sanftenberg, 2015 ONSC 6393, citing Peterbilt of Ontario Inc. v. 1565627 Ontario Ltd. (2007), 2007 ONCA 333, 87 O.R. (3d) 479 (C.A.):
On a motion to set aside a default judgment, the motion judge will be guided by the principles identified in the authorities. The motion judge must, however, ultimately determine whether the interests of justice favour an order setting aside the default judgment. In doing so, the motion judge will have regard to the potential prejudice to the moving party should the motion be dismissed, the potential prejudice to the respondent should the motion be allowed, and the effect of any order the motion judge may make on the overall integrity of the administration of justice.
Part Three – Analysis
[14] There are many reasons that would support the court dismissing the mother’s motion.
[15] Even if the court accepts that the mother attempted to e-file her extension motion on August 9, 2021, there are the following problems:
(a) The filing deadline for the mother’s costs submissions was August 7, 2021. This fell on a Saturday, so the mother had until the close of the court on August 9, 2021 to file her costs submissions. She said that she emailed the extension motion to the court at 4:50 p.m. on August 9, 2021. She should not have assumed that the court would grant the request. Her extension request was forwarded far too late.
(b) Despite the time-sensitive nature of her request, the mother chose to email her extension motion late in the day on August 9, 2021 to the court rather than file it in person. For e-filing, counsel have an obligation to ensure that the email communication went through, and the document is not considered to be filed until reviewed and accepted for filing by court staff. Counsel cannot simply ignore the matter without ensuring that the email communication has gone through and that the documents have been accepted. Counsel should have chosen a manner of delivery of her documents that would have provided immediate proof of receipt, such as in-person filing or same-day courier.
(c) There is no evidence that the mother made any attempt to contact the father to seek his consent to a filing extension.
(d) The father claims that he was not served with the extension motion. Given that the mother’s affidavit in support was sworn the same day that she said her motion was sent to the court, it appears, that at best, the father received extremely short notice. The mother claimed that the motion was urgent, but any urgency was self-created by her neglect of the timelines.
(e) The filing deadline for the costs submissions was set with the mother’s input. The father had brought a Form 14B motion (on notice) and had been granted an extension of time to file his costs submissions until July 12, 2021. In her own Form 14B motion, the mother had sought an extension of time to file her costs submissions until July 31, 2021. The court extended this a week until August 7, 2021. The mother had plenty of time to prepare her submissions.
(f) The court also granted the mother’s request to have the costs submissions delivered to the trial coordinator’s office, who would then contact the parties to pick them up. The trial coordinator tried to contact the mother’s counsel when the father’s costs submissions were delivered. Her phone number was out of service. The court emailed the mother’s counsel to pick up the submissions. No one came. The court then had the costs submissions emailed to mother’s counsel, aware that there was a history in this case of mother’s counsel claiming that she had not received documents emailed to her.
(g) It is puzzling that, despite the mother having sought a personal delivery structure for the costs submissions, she emailed the extension motion to the court instead.
(h) The court’s concern with the mother failing to meet filing deadlines has been a constant theme in this case. The mother also failed to file costs submissions related to the costs decisions made by Justice Melanie Sager on April 7, 2021 in the amount of $1,500 and by Justice Roselyn Zisman on April 27, 2021 in the amount of $20,000. The mother should have been highly attuned by this point to the importance of complying with court ordered deadlines.
(i) The mother’s reasons for failing to comply with the costs deadline have no merit. The mother claimed that she was depressed. No medical evidence was provided by the mother that would justify her failure to make costs submissions. As set out in the trial decision, the mother made false medical claims to thwart court orders during this case. The court does not accept her health statements at face value.
The mother also claims that her counsel needed additional time because she was responding to a law society complaint made against her by Justice Zisman.
However, during the extended time given to her to make costs submissions, the mother had the time to bring an unsuccessful motion without notice in the Ontario Court of Justice to prevent the father from traveling with the child and a Form 14B motion before Justice Sager to seek permission to obtain transcripts from a case conference in order to make a judicial complaint about her.
The mother and her counsel had the ability to make the costs submissions in the time ordered. They chose instead to focus on different legal steps.
(j) The mother complained that court staff should have called her counsel when her costs submissions had not been received. This is not the job of court staff.
(k) The mother also complained that court staff have been blocking her counsel’s emails. There is no merit to this allegation.
To the contrary, court staff have bent over backwards to accommodate the mother’s counsel, trying to contact her to file her trial documents (that were finally late-filed the business day before trial) and emailing the father’s costs submissions to her when she failed to pick them up to give her the opportunity to respond.
(l) The mother failed to provide the court with her proposed costs submissions so that the court could evaluate whether her submissions had any merit.
(m) The court must also consider the prejudice to the father of granting the mother’s requests. The court accepts that the mother’s blatant disregard for court orders, combined with her relentless litigation at all court levels in this case has taken a toll on him.
(n) The court also must maintain the integrity of the administration of justice. The mother has breached multiple court orders. Many costs orders have been made against her at all court levels. She has paid nothing towards them. What we condone we enable.
[16] The father made serious allegations about the integrity of the mother’s counsel. He deposed that:
(a) His counsel was not served with the extension motion that the mother said her counsel sent to the court on August 9, 2021. The mother’s counsel had checked the box “with notice to all persons affected” on the motion form.
(b) His counsel was not served with the mother’s Form 14B motion that was delivered to the court on August 13, 2021, despite the mother filing an affidavit of service that it had been served. The father asserts that his counsel only learned about the motion after it was forwarded to her by the court.
(c) There has been a pattern of the mother’s counsel filing false affidavits of service in this case or serving him with documents and then filing different versions of the documents with the court.
[17] The father also deposed that the mother’s counsel is currently facing serious disciplinary proceedings by the Law Society of Ontario (LSO). LSO is taking the unusual step of seeking an interlocutory suspension of the mother’s counsel’s license to practice law. On August 13, 2021, as set out in the LSO website, the law society tribunal ordered as follows:
August 13, 2021
In this proceeding concerning Gabriella Varsha Deokaran, 2011, of Mississauga, the panel considered:
- the Law Society’s motion for an interlocutory suspension of the respondent’s licence (the motion); and
- the respondent’s request for an adjournment.
The panel orders:
The hearing of the motion is adjourned to September 27-29, 2021 peremptory on the respondent.
Commencing immediately and continuing until such time as this motion is heard on its merits, or until further order of the Hearing Division, the respondent’s licence is restricted on an interim interlocutory basis.
The respondent is restricted from engaging in court or tribunal attendances, except to address scheduling issues or when appearing on her own behalf on a matter in which she is named as a party.
The respondent is restricted from any real estate conveyancing work, including handling trust funds, unless under the direct supervision of a lawyer.
The respondent is restricted from engaging on any matter identified in the current Law Society motion, and in particular as set out in the supporting affidavit of Renae Oliphant sworn on July 7, 2021, unless performed under the direct supervision of a lawyer so as to avoid conflicts and missing deadlines, if applicable. This restriction does not apply to steps required to perfect the application to the Divisional Court for judicial review of a previous Tribunal order.
Pursuant to her undertaking, the respondent is to engage in weekly supervisory meetings with lawyer Steven Hinkson to review new or ongoing matters not identified in the Law Society’s motion to ensure an avoidance of conflict and seek guidance on any future steps in such matters, and for prior approval for any access to the respondent’s trust account.
The respondent shall comply with the terms of the Law Society’s Guidelines for Lawyers Who Are Suspended or Who Have Given an Undertaking Not to Practise, except that she may continue to practise in accordance with the restrictions set out in this order and her undertaking.
Costs are reserved to the completion of this motion.
[18] The court is not going to delve into whether the mother’s counsel has filed false affidavits of service or whether she attempted to send her extension motion to the court on August 9, 2021. This is not the appropriate forum to determine this. These determinations are also not necessary to decide these motions – the court did not receive the mother's request to extend the deadline to file costs submissions until she filed it in person on August 13, 2021 – two days after the costs decision had been released.
[19] There are many reasons to dismiss the mother’s Form 14B motion, as set out above. But there are also reasons not to do so. The court always prefers to make substantive orders with the input of both parties. The costs order made against the mother is substantial. The mother may have legitimate arguments to reduce the costs award. One possible reason to do so would be if she had made a reasonable offer to settle. The mother moved quickly to set aside the order and while there is some prejudice to the father, the court can set up a quick timeline to conclude this matter. If the mother had made her extension request in a timely manner, it would likely have been granted as the court had granted similar requests to the father.
[20] Further, the father’s allegations about the mother’s counsel raise a concern that the mother is being prejudiced due to the conduct of her lawyer – in this instance, that her failure to make costs submissions was due to her lawyer’s neglect.
[21] The court’s challenge is to structure an order that balances these considerations and provides a just result within the meaning of rule 2.
[22] The court will give an extension of time to the mother to file her costs submissions. It is prepared to consider changing or even setting aside its costs order. However, conditions will be attached for this consideration to take place.
[23] The mother should no longer be permitted to disregard court orders – whether for filing timelines or to pay costs orders – without consequence. To allow her to continue to do this brings the administration of justice into disrepute. Merely making another costs order that she is unlikely to pay is not a consequence.
[24] The mother will be required to pay the father the amount of $3,500, by money order or certified cheque, to have the court consider changing or setting aside the costs order. This payment will be applied to the outstanding costs orders of Justice Sager, dated April 7, 2021 and Justice Zisman dated April 27, 2021. If the mother fails to deliver this payment, together with her costs submissions, within 14 days, the costs order can be issued and entered.
[25] The court is only requiring this modest payment towards the outstanding costs orders because of the mother’s limited financial circumstances. She may be able to access funds from her husband and family in Ghana to make this payment. She was able to afford to travel to Ghana in 2019. She may also need to have a serious conversation with her counsel about whether counsel should be contributing to this amount.
Part Four – Conclusion
[26] An order shall go on the following terms:
(a) The court will consider changing or setting aside the costs order if the mother delivers a money order or certified cheque made payable to the father in the amount of $3,500, together with her costs submissions, by Thursday, September 9, 2021 at 4:30 p.m. The funds and costs submissions must be delivered in person to the trial coordinator’s office. The costs submissions are not to be mailed, emailed or filed through the court’s portal. Court staff are not to accept the mother’s costs submissions unless accompanied by the funds ordered.
(b) The previous directions for costs submissions continue. The mother’s submissions shall not exceed 4 pages, not including any offer to settle or bill of costs. The father has already made his submissions and shall not make any further submissions.
(c) The costs order is suspended until further order of the court. It shall not be issued and entered until there is a further order of the court. This suspension will be lifted if the mother does not comply with the terms set out in subparagraph (a).
(d) The father’s claim for costs of this Form 14B motion is reserved. If the mother meets the conditions set out in this order, his claim will be considered in the costs consideration. If she does not, a separate endorsement will be issued.
[27] The mother should not expect the court to be receptive to any further extension requests.
[28] Court staff are directed to send a copy of this endorsement to Steven Hinkson, the supervisory counsel for the mother’s counsel named by the LSO.
Released: August 26, 2021
Justice S.B. Sherr