Court File and Parties
DATE: April 14, 2023 COURT FILE NO.: D42913/22 ONTARIO COURT OF JUSTICE
B E T W E E N:
NACIMA BROWN, APPLICANT MARA CLARKE, for the APPLICANT
- and -
MILTON VAUGHNEL FORRESTER, RESPONDENT R.P. ZIGLER, for the RESPONDENT
HEARD: APRIL 12, 2023
JUSTICE S.B. SHERR
Endorsement
Part One – Introduction
[1] The respondent (the father) has brought a motion to set aside two final court orders. The first order is dated October 18, 2022 (the first order) and the second order is dated December 9, 2022 (the second order). He further seeks orders permitting him leave to file an Answer/Claim, to fix his child support obligations in accordance with the Child Support Guidelines (the guidelines) and for shared parenting and decision-making responsibility for the parties’ 7-year-old son (the child).
[2] The mother asks that the father’s motion be dismissed.
[3] The court read two affidavits filed by the father, one by his cousin and one by the applicant (the mother).
Part Two – Brief background facts
[4] The mother is 33 years old. The father is 38 years old.
[5] The parties have the one child together.
[6] The parties have never cohabited.
[7] The child has always primarily resided with the mother.
[8] The mother issued her application on July 18, 2022. She sought orders for sole decision-making responsibility for the child, incidents of parenting, and child support retroactive to January 1, 2017.
[9] The father was served with the application on September 4, 2022. He did not serve and file an Answer/Claim, a Form 35.1 parenting affidavit and a financial statement.
[10] The father did not attend at First Appearance Court. It was endorsed that the mother intended to serve and file a Form 23C affidavit for uncontested orders before the next court date set for December 9, 2022.
[11] The mother then served and filed a Form 23C affidavit for uncontested orders.
[12] On October 18, 2022, the court found the father in default. It made final parenting orders as requested by the mother. The court ordered that the mother have primary residence and sole decision-making responsibility for the child. The mother was permitted to obtain or renew government documentation for the child without the father’s consent and to travel with the child outside of Canada, for vacation purposes, without the father’s consent. The court ordered that the father would have parenting time on Wednesday and Friday evenings and on alternate weekends.
[13] In her Form 23C affidavit, the mother sought child support retroactive to January 1, 2017. The court was not satisfied with the mother’s evidence regarding her retroactive support claim and asked her to serve and file a further affidavit with better evidence to support it. The court made a temporary support order based on an imputed annual income to the father of $55,000.
[14] The matter returned before Justice Roselyn Zisman on December 9, 2022. The mother attended court. The father did not. The mother decided not to pursue her claim for retroactive support.
[15] Justice Zisman made final parenting orders, mirroring the first order. She also made a final support order that the father pay the mother child support of $507 each month, starting on August 1, 2022, based on an annual imputed income to him of $54,995. She also ordered the father to pay 50% of the child’s special and extraordinary expenses (section 7 expenses), as defined by section 7 of the guidelines. This is the operative order.
[16] On February 7, 2023, the father moved to set aside the second order made by Justice Zisman.
[17] On April 4, 2023, the father brought the amended notice of motion that was heard by the court.
Part Three – Legal considerations
[18] Subrule 25 (19) of the Family Law Rules (all references to rules in this decision are to 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.
[19] 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). 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”.
[20] 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).
[21] Courts may also set aside part of a final order, or correct or add to a final order. See: Benarroch v. Abitbol et al, 2018 ONSC 5964; Foster v. Cripps, 2023 ONSC 828; Braun v. Braun, 2022 ONSC 7031.
[22] In Benarroch, Justice Heather McGee wrote that subrule 25 (19) is to be interpreted through the lens of rule 2 – to deal with cases justly.
[23] Some courts have found that while there is broad discretion and flexibility under the rules, and under subrule 25 (19) in particular, at least one of the five preconditions outlined in subrule 25 (19) must be engaged before that discretion can be exercised. If none of those preconditions are engaged, then subrule 25 (19) can have no application. See: E.S.R. v. R.S.C., 2019 ONCJ 381, at para. 70, per: Justice Alex Finlayson; Foster v. Cripps, supra; Van Aman v. Mugo, 2022 ONSC 299.
[24] Other courts have applied a more flexible interpretation. In Singla v. Tayal, 2023 ONSC 688, the court wrote at paragraph 12 that several judges have seized upon the characterization of the breadth of subrule 25 (19) in Gray in order to read in a residual power in addition to the five criteria contained in the subrule. In establishing this residual power, the case law has drawn upon the law with respect to setting aside a default judgment in the civil context. See for example: Gray v. Gray, 2017 ONSC 5028; Lin v. Ha, 2017 ONSC 6917; S.J.K. v. J.P.G., 2019 ONCJ 493; Wiafe v. Afoakwa-Yeboah, 2021 ONCJ 453; Benarroch, supra.
[25] These cases have relied on the following five factors set out in Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, in determining whether to set aside a default judgment:
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.
[26] There factors must be examined together in order to determine whether a case for setting aside has been established. See: Singla v. Tayal, supra, par. 14.
[27] It is preferable to have the input of both parents in determining the best interests of a child. See: King v. Mongrain, 2009 ONCA 486. In King, the court found that striking a party’s pleadings on parenting issues should be a last resort.
[28] However, parties cannot lie in the weeds, taking a wait-and-see approach to litigation and then, if the outcome does not suit them, move to set aside the order to reset the clock and restart the litigation. This wastes judicial resources and results in unnecessary costs to all parties. See: Braun v. Braun, supra, par. 73.
[29] It is not open to a litigant to fail to produce financial information, run the risk that a trial judge will impute income, and then come back to a new court and suggest that the imputed income was wrong. Support claimants should not be required to go through this two-step process. Our family court system cannot afford it. See: Trang v. Trang, 2013 ONSC 1980; Ruffolo v. David, 2016 ONSC 754 (Ont. Div. Ct.).
Part Four – Position of the father
[30] The father asserts that he did not attend at First Appearance Court on October 14, 2022 due to technological issues. He also claims that the mother represented to him that she would mediate the outstanding issues with him and that she did not tell him that she would proceed in his absence. His cousin filed an affidavit setting out that after the father missed First Appearance Court the mother told her that she was prepared to stop the court case and negotiate with the father.
[31] The father also claims that he did not receive the court endorsements after each court appearance. He said that he has two email addresses, and the court sent the endorsements to the email address that he rarely uses. He said that he was not aware of the court’s orders and court dates until he received the second order.
[32] The father said that he moved promptly to retain a lawyer to set aside that order. The mother does not contest that the father brought his motion relatively promptly.
[33] The father attests that he has meritorious claims. He said that the child has been spending three days each week at his home since April 2022. He said that he has been equally involved in decision-making for the child. [1] The father said that his annual income is $50,000, not $55,000, and that he is on a contract that ends in May 2023. He submits that since the mother earns closer to $60,000 annually, the order requiring him to pay 50% of section 7 expenses is in error.
Part Five – Analysis
5.1 Are any of the preconditions set out in subrule 25 (19) engaged?
[34] The father’s evidence in support of his motion to set aside the two orders does not fall within any of the criteria set out in clauses 25 (19) (a) to (d) of the rules. He needs to fit his claim within clause (e) of the rules which reads as follows:
(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.
[35] The notice given to the father of the court proceedings was adequate.
[36] The court also finds that the father has not provided a satisfactory reason for not being present at either First Appearance Court on October 14, 2022, or at the December 9, 2022 court hearing when the second order was made.
[37] The father acknowledges that he was served with the mother’s application, Form 35.1 parenting affidavit and financial statement on September 4, 2022. The mother’s materials clearly set out what the mother was seeking, including a specific parenting time schedule between the father and the child and an imputation of annual income to the father of approximately $55,000. The materials also clearly set out the date, time and location of the first court attendance.
[38] The father was already in default when the matter was before the First Appearance Court. He has still not provided a plausible explanation about why he failed to file any responding material as required by the rules.
[39] On the morning of the First Appearance Court attendance, the mother and father communicated through Whatsapp. The following exchange took place: [2]
Mother: Court at 10am Father: Cancle it don’t have time we cam work it out another way Mother: I am not cancelling anything my lawyer set that date. It is online. I also have work but I am making time. I reminded u as a courtesy. Father: What if I keep him 3 days a week. Mother: The court date is today. Father: U really wana waste money goimg to court over something we can work out without Father: I don’t have access to know internet. As I said u don’t have go go to court and reslove something that can be taken care of with a phone call. I explained my situation to u on multiple occasions. And a have made offeres to you. I said if u ur ok with it ill keep the child 40 to 50 percent of the time and provide for him. U never had any issues with be being there for the child but u wamt to pretend like u do amd go down a path that once u do this can never undo
[40] This exchange informs the court of the following:
a) The father was well aware of the First Appearance Court attendance scheduled for that morning. b) The father did not want to attend at court and was trying to talk the mother out of proceeding with the case. c) The mother was clear that she was proceeding with the court appearance that day. d) It was courteous of the mother to remind the father of the court appearance. e) Every court notice contains a phone number for the parties to call in to the virtual hearing if they do not have an internet connection. The father did not call in. He could also have attended physically at the court. He didn’t do this either. The father made choices. He chose not to file responding material and he chose not to attend at First Appearance Court. f) There is nothing contained in this conversation to indicate that the mother agreed to attend mediation instead of proceeding to court, as alleged by the father. g) The father was proposing that he have the child three days a week. The inference is that he was not exercising parenting time three days a week at that time and was seeking this increase. h) The father was well attuned to the 40% parenting time threshold required for support to be calculated pursuant to section 9 of the guidelines instead of the table amount.
[41] The court sent the father the endorsement from the First Appearance Court attendance to his email address listed on the application. The father acknowledges that this is one of his email addresses. The father knew, or ought to have known that any court documentation would be sent to him at the address listed on the application. He never advised the court that it should send documentation to him at a different email address.
[42] The father took no steps to find out what happened at the First Appearance Court. He did not phone the court that day or on any other day. There is no evidence that he ever asked the mother what had happened at court.
[43] The mother then served the father with her Form 23C at the email address she had for him – the one she had listed on the application. The mother attested that she had communicated with the father at that email address even after the First Appearance Court date. The Form 23C precisely set out the relief she was seeking. The father did not respond.
[44] It should have been clear to the father that the mother intended to proceed with the court application.
[45] The court sent the first order to the father’s email address listed on the application. Again, the father took no steps to address this.
[46] The father did not attend at the December 9, 2022 court appearance before Justice Zisman. The court finds that he had notice of this date. However, even if he had not received the court’s endorsements and the mother’s Form 23C affidavit (which the court seriously doubts), he had the positive obligation to contact the court to find out the status of the court application. Instead, he ignored the court process.
[47] The father offered no evidence of attempts made during this time to arrange for mediation.
[48] This is not a case where a parent has literacy or mental health issues that may have adversely impacted their ability to attend at court. The father deposed that in 2022 he received a diploma as a social services worker from Centennial College and graduated with honours. He has no mental health issues.
[49] The court finds that the father made an informed choice not to participate in the court case. He was then dissatisfied with the court’s order and decided to ask for a do-over.
[50] The court finds that the father has the onus to demonstrate that he has met the criteria set out in clause 25 (19) (e) of the rules, and he has not done so.
5.2 Discretionary factors
[51] The evidence also does not support the court exercising its discretion to set aside all or part of the final orders. The court is guided by the five factors set out in Mountain View Farms Ltd. v. McQueen in making this determination
[52] The motion to set aside the court’s orders were brought promptly enough.
[53] The father did not provide a plausible explanation for his failure to comply with the rules.
[54] The claims that the father wishes to put forward have marginal merit.
[55] With respect to the father’s intention to make claims for joint decision-making responsibility and shared parenting, the court observes that:
a) The child has always resided with the mother. b) The father has never asserted these claims before. It was the mother who came to the court seeking these orders. c) The father offered no independent evidence of ever having been fully involved in decision-making for the child, as he alleged. d) The communication between the parties is too poor to order joint decision-making responsibility and shared parenting. See: Kaplanis v. Kaplanis, 2005 ONCA 1625, [2005] O.J. No. 275 (OCA). A shared parenting time plan requires a high level of communication and coordination between the parties, particularly when the child is very young. See: L.B. v. P.E., 2021 ONCJ 114; L.I.O. v. I.K.A., 2019 ONCJ 962. e) The manner in which the father has approached these court proceedings is indicative of someone with poor communication skills and a questionable sense of responsibility. f) The mother asserted in her affidavit that she did not even know that the father was married and that the child had a step-sibling until she received his motion materials. The father did not refute this. The father’s secrecy is indicative of a lack of trust in and respect for the mother. Mutual trust and respect are basic elements for a joint decision-making responsibility order to work effectively. See: G.T.C. v. S.M.G., 2020 ONCJ 511; T.P. v. A.E., 2021 ONSC 6022; Shokoufimogiman v. Bozorgi, 2022 ONSC 5057; Jacobs and Coulombe v. Blair and Amyotte, 2022 ONSC 3159; El Khatib v. Noun, 2023 ONSC 1667. g) The evidence informs the court that the mother has made responsible major decisions for the child. h) The mother attested that the father did not have any overnight visits prior to October 2022. The father claims that it was difficult to arrange overnight parenting time with the child prior to April 2022 due to his studies and part-time work. He said that starting in April 2022, the child has been sleeping at his home 3-4 nights each week. The court finds that is overstated. Otherwise, the father wouldn’t have been proposing that amount of parenting time in his chat exchange with the mother in the morning of the First Appearance Court attendance. i) The second order provided more parenting time for the father than he had been previously exercising.
[56] The father is correct in submitting that the second order does not set out a holiday parenting schedule. However, the court is confident that the mother will facilitate generous holiday parenting time between the father and the child. She put forward a substantive parenting time schedule in her Form 23C despite the father’s lack of participation. She has readily agreed to him exercising even more parenting time than set out in the two orders, after those orders were made. The father provided no evidence that he has been denied holiday parenting time in the past and he has never come to court to seek this.
[57] With respect to the father’s intention to seek different child support orders, the court observes that:
a) The mother was very generous with the father regarding the support issues despite his failure to provide her with any financial disclosure. She likely had a substantive claim for retroactive child support and she chose not to pursue it. The father is very fortunate that the entire support issue will not be reexamined. b) The mother estimated that the father earned annual income of $55,000 and he says that he earns $50,000. Close enough. There are consequences for not providing financial disclosure and participating in the case. c) The mother was very careful to give the father credit for all support payments he had made when she sought her final order and provided documentary evidence to support this in her Form 23C affidavit. d) The father also claims that the 50% allocation of section 7 expenses in the second order is an error. It is not an error. The court has the discretion to allocate section 7 expenses as it deems fit. Sharing section 7 expenses in proportion to the respective incomes of the parties is only a guiding principle. [3] Given that the father has not been required to pay any retroactive support and since he did not provide timely financial disclosure, the sharing of section 7 expenses set out in the second order is a reasonable exercise of judicial discretion. e) If the father’s contract is not renewed and he cannot find work, despite a diligent search for new employment, he can always bring a motion to change the support order.
[58] The court finds that the father will not suffer much, if any, prejudice from the existing orders remaining in place, given the marginal merit to his claims.
[59] The mother will suffer prejudice if the orders are set aside. She will suffer financial prejudice and the prejudice of having to start the case all over again.
[60] The court is mindful that it is preferable to have the benefit of the input of both parents in determining a child’s best interests. However, unlike in King v. Mongrain, supra, this case is not about striking the pleadings of a party who has been fully participating in the case. This case is about whether the father can start all over again when final decisions have been made and after he chose not to participate in the first instance. It is not in the child’s best interests to start litigation over again.
[61] The court also finds that it would impair the integrity of the administration of justice to set aside the orders. The father made a choice not to participate in the case. It was only when he didn’t like the outcome that he wanted to start over. Litigants and children require finality. A party cannot ignore a proceeding and expect to then be given the opportunity to re-litigate the case, if dissatisfied with the outcome. To condone such conduct would undermine the administration of justice. [4]
[62] Lastly, the court finds that it is contrary to the primary objective of the rules, as set out in rule 2 (to deal with cases justly) to set aside the orders.
Part Six – Conclusion
[63] The father’s motion is dismissed.
[64] The mother is entitled to her costs of this motion. If she seeks costs she shall serve and file written costs submissions by April 28, 2023. The father shall then have until May 12, 2023 to serve and file any written response. The submissions shall not exceed 3 pages, not including any offer to settle or bill of costs and shall be delivered to the trial coordinator’s office.
[65] The court thanks counsel for their professional presentation of this motion.
Released: April 14, 2023
Justice Stanley B. Sherr
[1] The mother deposed that the father significantly overstated his involvement with the child and his participation in making decisions for the child. [2] The court has provided the conversation verbatim, with the exception of not naming the child. [3] See: Subsection 7 (2) of the guidelines. [4] This is the same conclusion that was reached in both Foster v. Cripps and Braun v. Braun, set out above.