A.J. v. M.P., 2023 ONCJ 218

ONTARIO COURT OF JUSTICE DATE: May 18, 2023 COURT FILE No.: Brantford F 436/13 ext 001

BETWEEN:

A.J. Applicant

— AND —

M.P. Respondent

Before: Justice A.D. Hilliard

Heard on: May 8, 2023 Reasons for Judgment released on: May 18, 2023

Counsel: M. McCarthy, duty counsel for the applicant S. Ashraf, counsel for the respondent

Hilliard J.:

Overview

[1] On November 28, 2015, the Respondent father, M.P., was noted in default by Justice Zivolak. A final order was made in his absence, which included a provision that he pay child support for the one subject child, J.H.J.

[2] M.P. brought a motion to set aside the Order of Justice Zivolak in December 2022. He also sought an order that the parties and child’s name be initialized due to the facts set out in his affidavit material filed in support of his motion.

[3] The Applicant mother, A.J., opposed M.P.’s motion to set aside the default order. She represented herself on the motion argument with the assistance of duty counsel. I heard argument on the motion with the parties and counsel in attendance via Zoom on May 8, 2023, after which I granted the request that the names of the parties and the child be initialized and title of proceedings be amended to use initial only. The balance of the motion was reserved.

[4] These are my reasons for judgment on M.P.’s request to have the Order of Justice Zivolak, dated November 28, 2015 set aside.

Background

[5] A.J. and M.P. are the biological parents of one child, J.H.J.

[6] The child, J.H.J. was conceived when A.J. was 16 years of age and M.P. was 13 years of age. M.P. therefore was legally unable to consent to sexual intercourse with A.J. Although a report was made to the police at the time, criminal charges were not laid at the request of M.P.’s mother.

[7] The relevant dates and court appearances are as follows:

• December 30, 2013: Court application issued by A.J. seeking custody and child support
• February 20, 2014: First appearance on application – both parties present utilizing the assistance of duty counsel; minutes of settlement regarding the completion of DNA testing entered into; matter adjourned to allow DNA testing to be complete
• April 16, 2014: A.J. not present, M.P. present with duty counsel; application dismissed for wont of prosecution
• February 6, 2014: new application issued by A.J. seeking the same relief
• April 1, 2015: first appearance on the second application; both parties present with duty counsel and minutes of settlement again executed regarding the completion of DNA testing
• June 10, 2015: both parties present with duty counsel; matter adjourned for the completion of the DNA testing
• July 9, 2015: both parties present with duty counsel; DNA test results obtained and proved conclusively that M.P. is the biological father of J.H.J.; M.P. ordered to pay $232.50 to Ontario Works for the DNA testing; M.P. provided representative from Ontario Works a copy of his pay stub; M.P. was given a further 30 days to serve and file his Answer
• November 28, 2015: M.P. not present, no Answer filed, order regarding the payment to Ontario Works for DNA testing not complied with, A.J. present with duty counsel; M.P. noted in default and final order made for custody to A.J. and child support based on the income disclosed in the paystub provided by M.P. to Ontario Works on the July 9 court date
• December 12, 2022: Notice of Motion is issued by M.P. seeking to have the Order of Justice Zivolak set aside
• January 16, 2022: Notice of Motion and supporting affidavit is served upon A.J.

Legal Principles

[8] Authority to change a previous court order is found in Rule 25(19) of the Family Law Rules:

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] The Court of Appeal in Gray v Gray confirmed that a court’s authority to set aside an order is grounded in Rule 25(19). The Court held that in applying Rule 25(19) the meaning of the word “change” is to be interpreted broadly as the underlying philosophy, scheme and purpose of the rules supports such an interpretation.

[10] Factors to be considered on a motion to set aside a default judgment are as follows:

(a) whether the motion was brought promptly after the defendant learned of the default 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;

(e) the effect of any order the court might make on the overall integrity of the administration of justice. Mountain View Farms Ltd. v. McQueen, 2014 ONCA 194, paras 47-49.

[11] Justice Sherr in his recent decision of Brown v Forrester noted that there are two approaches that have been taken by courts to motions to set aside:

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.

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 v. Gray, 2017 ONSC 5028 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.

Analysis

Not present when the order was made

[12] M.P. argues that subrule 25(19)(e) applies because although he had notice of the court date, he did not appear before the Court due to his not being adequately notified. Specifically, M.P. states that he was present at the courthouse on the settlement conference date but missed attending during the hearing because he did not hear his name paged and he was not notified otherwise that the court appearance had begun in his absence. He states that despite being physically present in the courthouse on the date the settlement conference was scheduled it was not adequately brought to his attention where he needed to be and therefore he missed appearing before the Court.

[13] M.P. does not, however, indicate in his affidavit filed in support of his motion what steps, if any, he took to inquire into whether the settlement conference was proceeding on the date in question. He does not provide any evidence as to what steps, if any, he took to get information about what happened with the application after the scheduled settlement conference date. I note that his evidence is wholly lacking in any detail or explanation as to what happened on the settlement conference date, such as whether he checked the daily court lists, looked inside all of the different courtrooms, or whether he asked court staff or duty counsel about his matter. M.P. does not even indicate how long he waited at the courthouse without hearing his name be called before deciding to leave.

[14] M.P. must provide an explanation for why he was not present which is satisfactory to the Court. The onus is on M.P. to demonstrate that he made reasonable efforts to be present at the court appearance. M.P. provides no explanation as to what steps he took on the day the order was made when he claims he was physically present at the courthouse just not in the courtroom where the matter was being heard. I am not satisfied with the explanation provided by M.P. and I find that there is no evidentiary basis for me to conclude that there is a satisfactory explanation for why M.P. was not present when the order was made.

[15] M.P. did not advance any arguments under any other subsection of Rules 25(19). Despite no other subsections being relied upon by M.P., I have considered whether any other subsection applies on these facts. I find that no other subsection of that Rule applies on the evidence before me.

[16] However, even though M.P. has not demonstrated that any of the provisions of 25(19) apply, I have considered whether his motion should be granted applying a more flexible interpretation considering the factors set out in Mountain View.

Brought promptly

[17] There is no evidence that M.P. took any steps to inform himself as to whether a court order was made in his absence immediately or shortly after the scheduled court date. This motion to set aside was brought approximately seven years after the original order was made. M.P. contacted A.J. by text message in June 2022 proposing an out of court settlement of her claim for child support in exchange for her agreeing to withdraw the support order from enforcement by the Family Responsibility Office. After A.J. declined M.P.’s settlement proposal, this motion was commenced on M.P.’s behalf by counsel.

[18] It is notable that the motion was brought at least two years after M.P. knew or ought to have known there was a support order made against him. M.P.’s 2020 and 2021 income tax returns were garnished on account of child support arrears owing.

[19] Despite this garnishment, M.P. took no steps to bring a motion to set aside or a motion to change until a default proceeding was commenced by the Director, Family Responsibility Office. Furthermore, there is no evidence before the Court as to what M.P.’s explanation is for such a lengthy delay in dealing with this matter, except for his evidence about his mental health, which I will address below.

[20] I am not satisfied that M.P. brought his motion promptly and has not provided a sufficient explanation as he did not move promptly to set aside the default order after it was brought to his attention.

Mental Distress – Plausible Explanation for Default

[21] M.P. argues that he was unable to navigate the court process at the time the application was brought due to the mental distress he was experiencing at the time. M.P. deposes that the sexual assault he alleges A.J. committed against him when he was 13 years old has seriously impacted his mental health and he states that he continues to struggle to this day. He argues that I can and should consider his mental health at the time the default order was made. M.P. claims that he was unable to actively participate in the proceedings back in 2015. He further states that he did not file an Answer due to a lack of understanding of the legal process.

[22] A review of the endorsement record reveals that M.P. was able to engage with and instruct duty counsel who assisted him in preparing minutes of settlement regarding paternity testing at court appearances, not once but twice. M.P. demonstrated an ability to interact with the Court and pursue his position in the application, at least insofar as he articulated to or through duty counsel that he was contesting paternity.

[23] M.P. attended each and every court appearance until the court appearance on November 28, 2015. At each of the court appearances he did attend, he had the assistance of duty counsel. He even received an extension of time to file his Answer at the July 9, 2015 court attendance after having received the positive result of the DNA testing.

[24] There is no explanation provided as to how M.P., despite the mental distress he states he was experiencing, was able to instruct duty counsel on the issue of contesting paternity, but was not thereafter able to file an Answer and attend court as required. The evidence of M.P.’s attendance at court appearances prior to November 2015 and his ability to enter into minutes of settlement regarding paternity testing is irreconcilable, in my view, with his assertion that his mental health prevented him from understanding and participating in the court process.

[25] I find that M.P. was actively participating in the court process up to and until July 2015, and, at a minimum, had the opportunity to get legal advice about the court process from duty counsel during the five (5) court appearances he attended.

Integrity of the Administration of Justice / Arguable on the Merits

[26] The most strenuous argument put forward by M.P. is that the Court should exercise it’s broad discretion to set aside Justice Zivolak’s order because not to do so would bring the administration of justice into disrepute. M.P. alleges that he was a victim of a childhood sexual assault and therefore he should be found not to meet the definition of a parent to J.H.J. as there was no legal or factual consent to intercourse and there was no preconceived intention to impregnant A.J.

[27] Under the Criminal Code, no person under the age of 14 years can legally consent to sexual contact of any kind, even with a person who is 16 years of age. However, this is not a criminal proceeding and no criminal charges were ever laid.

[28] During argument of the motion, I specifically asked M.P.’s counsel what authority she could point to in support of her argument that M.P. does not meet the definition of a parent due to a lack of consent to the intercourse that ultimately conceived J.H.J. She acknowledged that she searched and could not find any Canadian legislative or common law authority to support her client’s position.

[29] The results of the DNA testing confirm that M.P. is the biological father of J.H.J. and A.J. does not deny that sexual intercourse occurred when M.P. was 13 years old and she was 16. However, I cannot find any authority that would allow a judge of the Ontario Court of Justice, a statutory court, to find that a biological parent does not have an obligation to support a child because he or she does not meet the definition of a parent under the Act. Furthermore, I can find no authority for the proposition that a judge of the Ontario Court of Justice has the jurisdiction to make a finding that a biological parent is not a parent for the purpose of the Child Support Guidelines.

[30] Parent is a defined term under section 1 of the Family Law Act:

“parent” includes a person who has demonstrated a settled intention to treat a child as a child of his or her family, except under an arrangement where the child is placed for valuable consideration in a foster home by a person having lawful custody.

[31] The Children’s Law Reform Act (CLRA) sets out Rules of Parentage at sections 6 to 13. For the purpose of M.P.’s argument, the only applicable sections are section 6 and section 13:

6 (1) The birth parent of a child is, and shall be recognized in law to be, a parent of the child. 2016, c. 23, s. 1 (1).

(2) Subsection (1) is subject to the relinquishment of an entitlement to parentage by a surrogate under section 10, or to a declaration by a court to that effect under section 10 or 11. 2016, c. 23, s. 1 (1).

13 (1) At any time after a child is born, any person having an interest may apply to the court for a declaration that a person is or is not a parent of the child. 2016, c. 23, s. 1 (1).

(2) Subsection (1) does not apply if the child is adopted. 2016, c. 23, s. 1 (1).

(3) If the court finds on the balance of probabilities that a person is or is not a parent of a child, the court may make a declaration to that effect. 2016, c. 23, s. 1 (1).

(4) Despite subsection (3), the court shall not make any of the following declarations of parentage respecting a child under that subsection unless the conditions set out in subsection (5) are met:

1. A declaration of parentage that results in the child having more than two parents.

2. A declaration of parentage that results in the child having as a parent one other person, in addition to his or her birth parent, if that person is not a parent of the child under section 7, 8 or 9. 2016, c. 23, s. 1 (1).

(5) The following conditions apply for the purposes of subsection (4):

1. The application for the declaration is made on or before the first anniversary of the child’s birth, unless the court orders otherwise.

2. Every other person who is a parent of the child is a party to the application.

3. There is evidence that, before the child was conceived, every parent of the child and every person in respect of whom a declaration of parentage respecting that child is sought under the application intended to be, together, parents of the child.

4. The declaration is in the best interests of the child. 2016, c. 23, s. 1 (1).

[32] Having reviewed the sections of the CLRA regarding the Rules of Parentage, there is only one reference to a lack of consent being a consideration in making a determination of parentage and that is in relation to assisted reproduction or insemination by sperm donor. Therefore, the only provision through which M.P. could make a claim that he should be deemed not to be a parent to J.H.J. is through a claim pursuant to section 13 seeking a declaratory order that he is not a parent under the Act.

[33] A declaration of parentage can only be made by the Superior Court of Justice. So, there is a jurisdictional issue insofar as M.P. is wishing to pursue a claim that can only be granted by way of declaratory relief. A judge of the Ontario Court of Justice has no jurisdiction to make declaratory orders and would therefore not be able to grant the order M.P. is seeking be made. The Court of Appeal made clear in J.N. v Durham Regional Police Service that no matter how compelling the argument may be, a court cannot exceed its jurisdiction:

The law has long been clear, however, that jurisdiction is fundamental to a court or tribunal’s authority to deal with a matter. Jurisdiction is not optional, cannot be conferred by consent, cured by attornment, or assumed voluntarily just because there is an interesting and significant issue to be considered.

[34] Although the caselaw certainly supports the proposition that the moving party on a motion to set aside does not need to be able to demonstrate that his claims will necessarily be successful, the argument being advanced must at least support a finding that there is the prospect of a different outcome. The novel argument that parentage requires a preconceived intention to impregnant cannot, in my view, form the basis for a finding that the order should be set aside.

[35] Even if I granted M.P.’s motion and set aside the order of Justice Zivolak, the claim being put forward by M.P. could not result in a different outcome because there is no jurisdiction for this court to make the order he is seeking as a basis for finding that no child support should be ordered payable. Even on a broad definition of arguable on the merits, M.P.’s position does not meet even that low threshold.

[36] I find that denying M.P. the opportunity to make a claim in his Answer that is outside of the jurisdiction of this court would not bring the administration of justice into disrepute because this ruling is not a bar to M.P. seeking declaratory relief by way of an application in the Superior Court of Justice.

Conclusion

[37] On either approach taken in the jurisprudence on motions to set aside court orders, a stricter adherence to the application of Rule 25(19) or a more flexible approach, M.P.’s evidence fails to demonstrate why I should grant his motion and set aside Justice Zivolak’s order.

[38] Order to go on the motion as follows:

1. The balance of the Respondent’s motion is dismissed.

Released: May 18, 2023 Signed: Justice A.D. Hilliard