Ontario Court of Justice

Date: 2024 02 27 Court File No.: Sudbury D 42-15

Between:

Karen Beaudette Applicant

— And —

Michael James Respondent

Before: Justice G. Jenner Heard: In Writing Reasons for Judgment released on: February 27, 2024

Counsel: Samantha Chaput.......................................................................... counsel for the applicant Julie Lamothe............................................................................ counsel for the respondent

Jenner J.:

Part One: Introduction

[1] There are two motions before the court, both in writing. The first is the motion of the applicant, Karen Beaudette (Tab 9 of Continuing Record). She seeks an order setting aside the order of this court of January 18, 2022, noting her in default. She further seeks to set aside the order dated February 28, 2022, which followed an uncontested trial (the “final order”). In support of her motion the applicant filed an affidavit dated January 16, 2023 (Tab 10 of the Continuing Record).

[2] The second motion is that of the respondent, Michael James (Tab 11 of the Continuing Record) and is in direct response to the applicant's motion. The respondent seeks an order dismissing the applicant’s motion, first as a function of rule 1(8) of the Family Law Rules, and alternatively on the merits. The respondent further seeks an order prohibiting the applicant from bringing any further motions, including motions to change, without leave of the court, before all outstanding costs awards are paid in full. In support of his position, the respondent filed his own affidavit dated January 22, 2024 (Tab 12 of the Continuing Record).

[3] An earlier version of the applicant’s motion was initially filed as a regular motion to be heard in person (see Tabs 6-7 of the Continuing Record). On consent, the parties determined to proceed by way of Form 14B and were granted permission to do so.

Part Two: Facts and Procedural History

[4] The underlying matter is the respondent’s motion to change initiated October 5, 2021. The applicant was served on October 19, 2021. The first court appearance took place on November 9, 2021. Both parties were in attendance. The respondent was represented by counsel. The applicant, self-represented, advised the court that she was waiting to hear back from Legal Aid and had not yet served her response to the motion to change. The matter was adjourned to January 5, 2022, and the applicant was given until November 30, 2021, to file responding materials.

[5] On January 5, 2022, the applicant did not participate in the court appearance. The matter was adjourned to January 18, 2022. The applicant's evidence is that she had attempted to attend court virtually and could hear the other participants but could not unmute herself. She was aware that party could be noted in default if they failed to participate in court. She immediately contacted counsel for the respondent, who advised the applicant of the next court date. The court also advised the applicant of the date and the requirement to file materials lest she be noted in default. A copy of the endorsement was sent with an accompanying letter on January 7, 2022.

[6] At the court appearance of January 18, 2022, the applicant was absent. Counsel for the respondent advised the court that she had spoken to the applicant and had advised the applicant of the court date and of her client's consent for the applicant to file her response late. No response had been filed. The applicant was noted in default and an uncontested trial was scheduled for April 11, 2022.

[7] The applicant contends that she slept in on January 18, 2022, which caused her to miss court.

[8] It is uncontested that the respondent's counsel emailed the applicant the very same day advising that the applicant was noted in default and that an uncontested trial had been scheduled for April 11, 2022. That email is attached to the applicant's affidavit as an exhibit. In addition to advising of the noting in default and the date for an uncontested hearing, the email explains that being noted in default bars one from filing any further documents with the court and encourages the applicant to seek legal advice.

[9] The applicant indicates that as far as she was concerned, she had until April 11, 2022, to retain counsel and to bring a motion to set aside the order noting her in default.

[10] Despite the uncontested trial being initially set for April 11, 2022, on February 14, 2022, court administrative staff emailed the respondent's counsel to advise that the matter had been rescheduled to February 28, 2022, for an uncontested trial. No communication was sent to the applicant, presumably due to her default status.

[11] The uncontested trial proceeded on February 28, 2022. The respondent and his counsel were present. The applicant was not in attendance. The court made a final order granting the respondent sole decision-making responsibility and primary residence for the parties’ shared child. The order provided that the applicant would have supervised parenting time until her parenting could be assessed, and if the assessment was positive, unsupervised parenting time every second weekend. The order further terminated the respondent's child support obligations and required the applicant to pay costs to the respondent fixed at $1,000.

[12] The applicant acknowledges that in or around March 2022 she became aware of the final order. She indicates that she spoke to duty counsel about this matter and was advised that she needed to work quickly on it. She indicates she then filled out a 14B Motion form with the general guidance of duty counsel. Her draft form is attached to her affidavit as an exhibit. There is no indication in the affidavit or on the form itself as to when she filled it out. She states that she viewed the matter to be too complicated for her to attempt on her own, and that she believed she needed the assistance of counsel.

[13] The applicant's evidence is that she then attempted to apply for a Legal Aid certificate but was not approved. She advises she contacted legal aid “for months” and obtained a certificate on September 16, 2022. She retained counsel on October 6, 2022. The applicant filed the initial version of this motion to set aside on November 23, 2022.

[14] The applicant also provided evidence with respect to her parenting time with the parties' child since the final order was made. She states that her first visit with the child did not occur until April 2, 2023. Following a visit cancelled by the applicant on April 30, 2023, the applicant was advised by the supervised access centre that she was unable to continue unless the respondent's permission was obtained. The respondent did not permit the visits to recommence. According to the applicant, even requests for virtual parenting time have been denied.

[15] The respondent also advanced evidence with respect to the substantive parenting issues. He raised concerns with respect to the applicant's substance use while in a caregiving role, her "unhabitual dwelling" and issues with their child's school attendance while in the applicant's care. The respondent also provides an alternate account of his efforts to accommodate parenting time for the applicant, and generally contests her evidence on this point.

[16] To date, the applicant has not complied with the court's previous final order with respect to costs.

Part Three: Legal Issues

[17] These motions raise three main issues:

(1) As a threshold matter, should the applicant be precluded from bringing her motion to set aside the noting in default and final order, or from receiving any relief from this court because she has not complied with this court's previous costs order? (2) Should the applicant’s noting in default and the final order be set aside? (3) Should the applicant be prohibited from bringing further motions or motions to change without leave of the court, until all outstanding costs orders have been paid in full?

Part Four: Analysis

Issue One: As a threshold matter, should rule 1(8) operate to preclude the applicant’s motion?

[18] It is uncontested that the applicant has failed to comply with the component of the final order of this court dated February 28, 2022, requiring her to pay costs to the respondent in the amount of $1,000. The respondent argues, as a threshold matter, that the applicant is thereby precluded from receiving an order from the court, by operation of subrules 1(8)(c) and (e) of the Family Law Rules.

[19] Rule 1(8) of the Family Law Rules reads as follows:

Failure to obey order

(8) If a person fails to obey an order in a case or a related case, the court may deal with the failure by making any order that it considers necessary for a just determination of the matter, including,

(a) an order for costs; (b) an order dismissing a claim; (c) an order striking out any application, answer, notice of motion, motion to change, response to motion to change, financial statement, affidavit, or any other document filed by a party; (d) an order that all or part of a document that was required to be provided but was not, may not be used in the case; (e) if the failure to obey was by a party, an order that the party is not entitled to any further order from the court unless the court orders otherwise; (f) an order postponing the trial or any other step in the case; and (g) on motion, a contempt order.

[20] Rule 1(8) broadly empowers a court to respond to a party's failure to obey an order and sets out a non-exhaustive list of tools. Those tools include an order striking out a document filed by a party, which in this case could include the applicant’s present motion, or an order that the party is not entitled to any further order from the court unless the court orders otherwise. Rule 1(8) does not operate as blanket ban on a non-compliant party advancing claims or receiving a further order from the court. It is discretionary, and only permits the court to make such orders, among others, in response to a party’s non-compliance.

[21] In my view, this is not an appropriate case in which to apply rule 1(8) as a threshold question. The clause which the applicant has failed to obey, that with respect to costs, was made as part of the very order she seeks to set aside. Without stating a general rule, in the circumstances of this case I think it more appropriate to first consider the merits of the motion to set aside. That analysis includes consideration of whether the applicant has acted reasonably in several respects, is a more appropriate starting point, and may subsume the issue entirely.

[22] That said, depending on the outcome of that analysis, rule 1(8) may have a residual role to play.

Issue Two: Should the applicant’s noting in default and the final order of this court be set aside?

[23] This court’s jurisdiction to set aside an order has been grounded in clause 25(19)(e) of the Family Law Rules: Gray v. Gray, 2017 ONCA 100, at paras. 26-32.

[24] Rule 25(19) of the Family Law Rules reads as follows:

Changing order — fraud, mistake, lack of notice

(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.

[25] When rule 25(19) is being applied, the onus is on the party who moves to set aside the order; in this case, the applicant: Irons v. Irons, 2020 ONSC 1471. The decision as to whether to set aside is a matter of judicial discretion: Mountain View Farms Ltd. V. McQueen, 2014 ONCA 194.

[26] Mountain View Farms Ltd. also set the standard factors which courts weigh in the exercise of that discretion as applied to motions to set aside default judgments:

1. Whether the motion to set aside the default judgment was brought promptly following the moving party’s discovery of the default judgment;
2. Whether the moving party has established that there exists a plausible excuse or explanation for the default;
3. Whether the moving party has set forth sufficient evidence to establish that there is an arguable case to present on the merits;
4. The potential prejudice to the moving party should the motion be dismissed, and the potential prejudice to the Respondent should the motion be allowed;
5. The effect of any order the motion judge may make on the overall integrity of the administration of justice.

[27] The Court of Appeal for Ontario rearticulated and supplemented those factors, as adapted to the family law context as follows, in Zia v. Ahmad, 2021 ONCA 495, at para. 4:

a) Whether the moving party moved promptly, after learning of the order, to have it set aside; b) Whether the moving party has provided an adequate explanation for the failure to respond to the proceeding in accordance with the Family Law Rules; c) Whether the moving party has established an arguable case on the merits; d) Whether the moving party is acting in good faith and with “clean hands”; e) The prejudice that may be suffered by the moving party if the motion is dismissed and to the responding party if the motion is allowed; and f) Whether, in the final analysis, the interests of justice favour setting aside the judgment.

[28] There has been some debate in the jurisprudence as to whether, before considering the above factors, the court must make a finding of fraud, mistake, omission, lack of notice, or satisfactorily explained absence, as those are the five conditions precedent for an order being set aside under subrules 25(19)(a)-(e). That debate is concisely outlined in Brown v. Forrester, 2023 ONCJ 161, at paras. 23-24:

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 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.

[29] In a motion to set aside grounded in fraud, mistake, or omission, engaging clauses (a) through (c) of rule 25(19), respectively, this debate is unlikely to be seriously engaged. The controversy appears to arise in motions to set aside a noting in default, and the corresponding outcome of an uncontested trial. Must the moving party demonstrate a satisfactory explanation for their non-participation or absence as a condition precedent? Or is the merit of their explanation simply one factor among many to be considered by the court? In other words, can a party without a good excuse for being noted in default still succeed if the other Mountain View Farms Ltd. / Zia factors are sufficiently compelling?

[30] I need not attempt to settle this debate in the present case. Even applying the latter framework, which is more favourable to the moving party, I would not exercise my discretion to set aside the orders. In arriving at that conclusion, I have considered and applied the factors as follows.

Did the applicant move promptly, after learning of the orders, to have them set aside?

[31] The evidence does not suggest the applicant moved promptly in this case in response to learning of either her noting in default or the final order.

[32] The applicant learned of her noting in default the very same day the order was made. She was advised by the respondent’s counsel in clear terms of the consequences of being noted in default and was encouraged to seek legal advice. Rather than acting immediately to remedy the circumstances, the applicant took the position that she could wait to do so until the date of the uncontested trial, some three months later. The court cannot countenance such an approach. Being noted in default is not an invitation to wait for a later stage, or indeed the last stage of a proceeding to rectify the situation.

[33] Due to the change in date for uncontested trial, the applicant’s plan to wait until April was interrupted. I pause here to note that I do not fault respondent’s counsel for not advising the applicant of the change in date. Counsel was under no obligation to communicate the initial date to the respondent. That she did so as a courtesy does not in my view trigger an obligation to continue that courtesy in perpetuity.

[34] When the applicant learned of the final order—sometime in March 2022—she spoke to duty counsel and was advised that she needed to “work quickly on it.” While she completed a Form 14B explaining the reasons she had missed court, she did not serve or file it. Instead, she began a process of seeking legal representation. The applicant advised that she spent months and months trying to obtain a Legal Aid certificate, but she has not presented any detailed evidence with respect to these efforts which would permit the court to assess applicant’s diligence. Moreover, despite the applicant’s misgivings about proceeding without counsel, I am not persuaded that the initial steps of serving and filing a motion to set aside, or at least of notifying opposing counsel of such an intention, were sufficiently complex to justify a delay of six-to-seven months to pursue Legal Aid.

[35] To be sure, some delays occasioned by the seeking of legal assistance can be justified, and the court may be sympathetic to litigants who are diligently making good faith efforts to obtain assistance through Legal Aid Ontario. But where, as here, that process unfolds over a protracted period, it is incumbent on the requesting party to provide a detailed account of their efforts, and where appropriate to advise the other party of their intention.

[36] Lastly, given the extensive delay before counsel was retained, on October 6, 2022, I do not view a further period of 48 days before the initial motion to set aside was brought to be very satisfactory.

[37] Ultimately the applicant waited 10 months after she learned of her noting in default and some eight-to-nine months following her learning of the final order to bring her concerns to the opposing party’s and the court’s attention. This factor weighs against the setting aside of the orders.

Has the applicant provided an adequate explanation for failing to respond to the proceeding in accordance with the Family Law Rules?

[38] The applicant suggests that she was noted in default because she missed a single court appearance. I disagree. The applicant was noted in default because she failed to file responding documents. She was served with the respondent’s motion to change on October 19, 2021. She was provided an extension first to November 30, 2021, and then ultimately to January 18, 2022. She was sent the court’s endorsement of January 5, 2022, which outlined that if she did not file her response she would be noted in default. While the applicant has provided a passable explanation for missing court on January 18, 2022—that she slept through her alarm—she has offered no reasonable explanation for failing to file a response to the motion to change, beyond a vague assertion that she was “having difficulties finding counsel”. The onus is on the applicant in this motion to set aside, and again she has not furnished the court with any detailed evidence to assess the reasonableness or diligence of her efforts in this regard.

[39] While the applicant has not provided a very satisfactory account of her failure to respond in accordance with the Family Law Rules, hers is not the most egregious illustration of non-compliance. I am mindful that had she appeared in court on January 18, 2022, she may well have obtained one further extension. This moderates to some degree the extent to which this factor weighs against setting aside the orders.

Has the applicant established an arguable case on the merits?

[40] A motion to set aside is not a trial on the merits. The moving party is called on to demonstrate an ‘air of reality’ to their position; not a likelihood or guarantee of success. The question has been framed as whether the result could have been materially different if the moving party’s evidence had been presented and accepted as credible, or whether there is a serious issue to be adjudicated: Irons v. Irons, 2020 ONSC 1471, at para. 116.

[41] In examining this factor, the motion judge ought to take a “good hard look” at the merits” and assess whether the moving party has established an arguable case. The court may assess credibility. A moving party who furnishes only self-serving statements devoid of detailed evidence, and who fails to provide independent, corroborating evidence, may find themselves falling short of their onus: HSBC Securities (Canada) Inc. v. Firestar Capital Management Corporation, 2008 ONCA 894, at para. 28.

[42] The respondent provided evidence that his motion to change was brought because the applicant was being neglectful and emotionally and psychologically abusive to their child. The applicant would make unannounced visits to Toronto and would leave the child in the care of a 15-year-old babysitter for days at a time. The respondent contends that the applicant struggles with substance misuse and is embroiled in drug-related violence which culminated in the fatal shooting of her boyfriend. The respondent details his concerns at paras. 21-24 of his affidavit.

[43] In contrast, the whole of the applicant’s evidence with respect to the merits is contained at para. 27 of her affidavit:

The Motion to Change was brought by the Respondent. We had been following the Order of Justice Mendez dated 2019 [sic]. I had primary care of our child. The Respondent would have had to explain that there was a change of circumstances to allow for any change to our Order. The onus is on the Respondent. Given the consistency of the status quo and the fact that I have been our child’s primary caregiver since birth, I do not believe that the results of this matter would be the same if I were to effectively participate in the matter.

[44] This broad and conclusory statement, bereft of detail or corroborative evidence, falls short of persuading this court that there is an arguable case on the merits. This factor too militates against setting aside the orders.

Is the applicant acting in good faith and with “clean hands”?

[45] There is no evidence of bad faith on the part of the applicant. She has, however, failed to satisfy the $1,000 costs award that was made as part of the final order on February 28, 2022, nearly two years ago. The applicant has not explained her failure to do so. That is concerning to the court.

What prejudice may be suffered by the parties?

[46] Given that the applicant has failed to provide a detailed account of her position on the merits, it is difficult to assess the prejudice she will suffer if the orders are not set aside. I grant that she will suffer some prejudice: should she wish to challenge the final order in future, she will need to do so via motion to change and will bear the onus to demonstrate a material change in circumstances.

[47] The applicant argues that the respondent’s frustration of her parenting time as set out in the final order is a further prejudice that will be perpetuated if the order is not set aside. She alleges the respondent is in contempt of the final order. If these claims are made out, however, the prejudice flows from the respondent’s non-compliance, not the final order itself. It is open to the applicant to advance those concerns by seeking to enforce the final order, either by resort to rule 1(8) or a contempt motion, subject to any conditions this court may place on her.

[48] The respondent will suffer prejudice if the motion to set aside is granted. He will have to essentially recommence his motion to change. Given that two years have passed, he would also likely need to expend resources in updating the record, and in obtaining interim relief to avoid a sudden reversion to the previous order. That passage of time might also render it more difficult for him to marshal evidence with respect to the material changes in circumstances he relied on initially to support his motion to change.

[49] I am mindful that is preferable, in determining a child’s best interests, to have the benefit of input from all relevant parties: King v. Mongrain, 2009 ONCA 486, at para. 31. I am unable to conclude, however, that it serves the child’s best interests for litigation in this matter to recommence in the absence of the applicant herein presenting detailed and cogent evidence on the issues of decision-making responsibility and parenting time. Moreover, as noted above, concerns relating to the child’s potential alienation from the applicant can be meaningfully addressed by other means, under the current order.

[50] On balance, this factor does not support the setting aside of the orders.

In the final analysis, do the interests of justice favour setting aside the orders?

[51] This final factor, alternatively framed as “the effect an order may have on the integrity of the administration of justice,” involves a weighing of all the above factors: Irons v. Irons, 2020 ONSC 1471, at para. 118.

[52] I am unable to conclude that this is a case in which the court should exercise its discretion to set aside the noting in default and the final order. The issue was not raised promptly. The applicant has not provided a satisfactory explanation for her failure to follow the Family Law Rules. The applicant has not demonstrated an arguable case on the merits. The modest prejudice to the applicant in dismissing her motion is outweighed by the prejudice to the respondent if it is granted.

[53] I am similarly concerned that granting the applicant’s request in this case would be contrary to the primary objective of the Family Law Rules, to deal with cases justly (rule 2), and would send the wrong signal to other litigants concerning the need to rectify a noting in default urgently.

Issue Three: Should the applicant be prohibited from bringing further motions or motions to change without leave of the court, until all outstanding costs orders have been paid in full?

[54] As set out above, rule 1(8) is broad, and includes the authority to preclude a party from further steps without leave of the court.

[55] In a motion brought under rule 1(8), the court follows the three-step process established in Ferguson v. Charlton, 2008 ONCJ 1, at para. 64:

• First, the court must ask whether there a triggering event that would allow it to consider the wording of either subrule 1(8) or subrule 14(23). That triggering event would be non-compliance with a court order “in the case or a related case” [subrule 1(8)] or an order “made on motion” [subrule 14(23)].
• Second, if the triggering event exists, the court should then ask whether it is appropriate to exercise its discretion in favour of the non-complying party by not sanctioning that party under subrule 1(8), or by ordering that subrule 14(23) does not apply. My review of the foregoing case law suggests that this discretion will only be granted in exceptional circumstances. In my view, the court’s decision whether or not to exercise its discretion in favour of a non-complying party, ought to take into account all relevant history in the course of the litigation and, more specifically, the conduct of the non-complying party.
• Third, in the event that the court determines that it will not exercise its discretion in favour of the non-complying party, it is then left with a very broad discretion as to the appropriate remedy pursuant to the provisions of either subrule 1(8) or subrule 14(23).

[56] Implicit in this analysis is the principle that the court’s response to the breach of a court order should be proportionate to the non-compliant conduct: Mills v. Hachey, 2018 ONCJ 779, at para. 15. In Price v. Putman, 2018 ONCJ 86, at para. 44, Justice Starr added that a sanction under rule 1(8) “should be restorative to the victim of the breach and punitive to the noncompliant party.”

[57] In the present case, there is no question that the costs order was not complied with, nor that the order was an order “in the case.”

[58] At the second stage, I find that it would not be appropriate to exercise discretion in favour of the applicant by foregoing any sanction in this case. To forego relief would fail to redress the harm to the respondent and would leave the respondent exposed to further potential legal expenses should the applicant bring further motions without satisfying the current costs award.

[59] In exercising my discretion, I conclude that the remedy sought by the respondent—an order barring the applicant from bringing further motions or motions to change without leave of the court until the costs awards are satisfied—is an appropriate remedy. It would incentivize the applicant to comply with her outstanding costs obligations, while somewhat insulating the respondent from incurring further legal costs in the interim. It is also proportionate: if the applicant has a compelling case to proceed with a new step in the proceed without satisfying the existing cost awards, such a case will be considered by the judge on an application for leave.

Part Five: Conclusion

[60] The applicant’s motion to set aside her noting in default and the final order is dismissed.

[61] The respondent is entitled to his costs of this motion. If he seeks costs he shall serve and file written costs submissions by March 13, 2024. The applicant shall then have until March 20, 2024 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.

[62] The applicant is prohibited from bringing further motions or motions to change in this proceeding or a related proceeding without leave of the court, until such time as the costs order of Justice Buttazzoni dated February 28, 2022, and any costs order issued in relation to this motion have been paid in full, and the applicant has filed proof of same.

[63] The next court appearance of April 16, 2024 is vacated.

Released: February 27, 2024 Signed: Justice Jenner