ONTARIO COURT OF JUSTICE
DATE: 2024 11 04 COURT FILE No.: Sudbury F0-15-00000216-002
BETWEEN:
JASON BERTIN Applicant
— AND —
SARAH DESHEVY Respondent
Before Justice G. Jenner
Heard on November 1, 2024 Reasons for Judgment released on November 4, 2024
Counsel: Julie Lamothe................................................................................. counsel for the applicant Jason Tremblay......................................................................... counsel for the respondent
JENNER J.:
REASONS FOR DECISION RE: MOTION TO SET ASIDE
Part One: Introduction
[1] On November 1, 2024, the court heard the respondent mother’s motion seeking to set aside the final order of this court dated May 16, 2023. That order was the outcome of an uncontested trial in which the mother did not participate. She did not participate because her pleadings were previously struck, and she was noted in default. Her pleadings were struck because, despite filing an answer to the applicant father’s application early in the litigation, her counsel was later removed from the record, and the mother thereafter stopped attending court and participating in the proceeding.
[2] The mother is unconcerned with the final order’s provisions regarding decision-making responsibility and parenting—these issues are almost entirely moot given the ages of the children—but she seeks to set aside the final order’s provisions regarding retroactive and ongoing child support, as well as costs. She argues the order should be set aside because she was neither made aware of her lawyer being removed from the record, nor of the father’s motion to strike. She claims that the email address used to provide her with notice of these steps was not in use. She further claims that her non-participation coincided with a period of great personal struggle for her, that the order has caused her significant financial hardship, and that once she hired new counsel to investigate the status of the proceedings, she moved quickly to bring this motion.
[3] The father disputes that there is an adequate explanation for the mother’s non-participation and suggests that any changes the mother now seeks should be pursued via motion to change.
[4] For the reasons that follow, the motion to set aside is granted.
Part Two: Background and Procedural History
[5] The parties separated on August 30, 2012. They have three children together, HB (23 years old), CB (21 years old), and DB (17 years old). Pursuant to a final order dated August 17, 2015, the father was granted custody (now decision-making responsibility) for all three children. The mother was granted supervised access (now supervised parenting time). The order made no provision for child support, as the mother was unemployed at the relevant time and child support was not sought.
[6] On December 12, 2019, the father brought an application before this court seeking child support as the mother was then earning income. The application was initially served, then amended and re-served. The mother was represented by counsel, Ms. Fortier, and filed an answer to the amended application on December 7, 2020.
[7] On January 19, 2021, the parties agreed to a temporary, without prejudice order wherein the mother would pay child support in the monthly amount of $776.00 based on the mother’s estimated income of $51,232.00. This support was for the benefit of CB and DB, as the parties disagreed about whether HB remained a dependent.
[8] Settlement conferences were held on April 23 and June 21, 2021. The mother attended both. On January 13, 2022, the matter was scheduled for a further settlement conference. The mother did not attend. As a result, she was ordered to pay costs of $300.00 to the father. The mother subsequently failed to attend court on March 22, 2022.
[9] On May 3, 2022, the court removed Ms. Fortier as counsel to the mother. The mother was not present in court. The court required that a copy of the order be sent to the mother by email at REDACTED EMAIL #1. This email address is not an address that appears on any court documents preceding the endorsement removing counsel, and during oral submissions neither counsel for the father nor counsel for the mother was able to direct me to its origin.
[10] The court scheduled a further settlement conference for June 27, 2022. That conference did not proceed. The mother failed to file a brief or attend. The matter was adjourned to September 13, 2022, to address the next step, which was expected to be the father’s motion to strike the mother’s pleadings. On September 13, 2022, the mother did not attend. The matter was adjourned to November 22, 2022. Again, the mother did not attend, and the father’s motion to strike was scheduled to be heard February 16, 2023.
[11] On February 16, 2023, the mother did not attend, and her pleadings were struck. The court noted the mother had not personally participated in the matter since June 2021, the earlier costs award of $300.00 had not been satisfied, and the mother was in arrears of child support in the amount of $3,669.90. The mother had been served with the motion to strike and did not attend. An uncontested trial was set for May 16, 2023. Costs of the motion to strike were addressed in writing and on February 17, 2023, this court ordered the mother to pay costs in the amount of $600.00, enforceable by the Family Responsibility Office (FRO).
[12] Notably, the mother was served with the father’s motion to strike her pleadings via email at REDACTED EMAIL #1, the address which first appeared in the court’s endorsement removing the mother’s counsel from the record.
[13] The uncontested trial proceeded as scheduled on May 16, 2023. The father’s evidence was that HB, though an adult, was enrolled in college full-time and was being supported by the father financially; and that CB, now also an adult, was no longer attending school and was generally employed full-time. The father did not have the benefit of the mother’s financial disclosure for 2021 and 2022, but submitted evidence that the mother’s income was $57,270.00 in 2020, $19,038.69 in 2019, and $6,252.23 in 2018. The father sought an order for retroactive child support and retroactive proportional share of s. 7 special and extraordinary expenses in the total amount of $17,691.40. He further sought an order for ongoing child support for the benefit of two children, HB and DB, in the monthly amount of $776.00, as well as proportional share of s. 7 expenses, commencing May 1, 2023. The ongoing support was based on the same income used for the temporary without prejudice order: $51,232.00.
[14] The court granted the father’s requested relief, with the retroactive amounts owing payable at a rate of $250.00 per month and ordered the mother to pay the father’s costs of $6,000.00, enforceable by the FRO.
[15] On June 12, 2023, the mother retained new counsel after being contacted by the FRO regarding garnishment. New counsel investigated the status of proceedings and advised the mother on July 7, 2023, of the uncontested trial and final order. After seeking unsuccessfully to have the order set aside on consent, the mother brought this motion to set aside, serving the father on September 16, 2023.
[16] Several court appearances followed wherein the motion was adjourned from time to time. Of note, on August 16, 2024, the motion was adjourned as the mother had not filed certain financial documents, and the court issued a costs order against her in the amount of $1,000. The motion was ultimately argued on November 1, 2024.
Part Three: Analysis
[17] This court’s jurisdiction to set aside an order is grounded in r. 25(19) of the Family Law Rules: Gray v. Gray, 2017 ONCA 100, at paras. 26-32.
[18] 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.
[19] When rule 25(19) is being applied, the onus is on the party who moves to set aside the order; in this case, the mother: Irons v. Irons, 2020 ONSC 1471, at para. 112. The decision as to whether to set aside is a matter of judicial discretion: Mountain View Farms Ltd. V. McQueen, 2014 ONCA 194, at para. 55.
[20] 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: see para. 48-49. The Court of Appeal for Ontario rearticulated and supplemented those factors, as adapted to the family law context, 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.
[21] 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): see Brown v. Forrester, 2023 ONCJ 161, at paras. 23-24. In other words, 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?
[22] I need not attempt to settle this debate in the present case. As discussed below, the mother’s explanation for her default demonstrates that she did not receive notice of the motion to strike her pleadings.
Did the mother move promptly, after learning of the orders, to have them set aside?
[23] The mother learned of the final order flowing from the uncontested trial approximately one month after it was made. She immediately hired new counsel, who then acted promptly on her behalf to seek a consent remedy, and then promptly served and filed this motion. This factor favours the mother’s request.
Has the mother provided an adequate explanation for the default?
[24] The mother says she was never made aware of her former counsel’s request to be removed or of the subsequent order for removal. She was operating on the understanding her counsel continued to be involved and claims she was never served with materials relating to the father’s motion to strike her pleadings. She says she has not had access to the email account REDACTED EMAIL #1 for several years and uses a different email account.
[25] The initial application in this matter was served on the mother through her then-counsel. The amended application was served on the mother personally by leaving a copy with her. Neither the mother’s answer nor any of the documents she later filed with the court list any email address for her. She includes her physical address only, in addition to contact information for her counsel. On my review of the continuing record, at no time does the mother hold out REDACTED EMAIL #1 as an email address that she can be reached at or should be served at.
[26] The very first reference to any email address for the mother is found in the affidavit of service relating to Ms. Fortier’s motion to be removed as counsel. That affidavit of service indicates that the mother was served via email. A copy of the email is attached to the affidavit, but that email does not show the address used for the mother. [1] The first time that REDACTED EMAIL #1 appears is in this court’s endorsement stipulating how the order removing counsel is to be served. I can only presume that this email was provided to the court by Ms. Fortier as a method of contact with the mother.
[27] Following that endorsement, the father began to use that email address as his method of service for the mother. He served the mother with his notice to strike her pleadings, as well as the supporting documents, by emailing materials to that address.
[28] Subrule 6(2)(e) of the Family Law Rules permits regular service of a document to be made by “emailing a copy to the person’s lawyer or, if none, to the person, subject to any technical or other requirements that the court may specify.” The subrule does not stipulate that email service is only to be used when other methods of service are unavailable. It is not a method of service of last resort. But the subrule does not provide guidance for determining the appropriate email address to be used for service. It would seem obvious that an email address used by a party to conduct the litigation would be suitable. As would an email address the party lists on their pleadings. After all, the standard form of pleadings in this court provides the following:
Full legal name & address for service – street & number, municipality, postal code, telephone & fax numbers and e-mail address (if any)
[Emphasis added.]
[29] But what if the email address used is dubiously sourced? Or what if the evidence of last use is dated?
[30] Subrule 1(7) of the Family Law Rules stipulates that if the Family Law Rules do not cover a matter adequately, courts may be guided by analogy to the Courts of Justice Act and the Rules of Civil Procedure. Subrule 16.01(4)(b)(iv) of the Rules of Civil Procedure allows for serving on a self-represented litigant,
by e-mailing a copy to the last e-mail address for service provided by the party or other person or, if no such address has been provided, to the party’s last known e-mail address…
[31] In contrast to the Family Law Rules, this subrule establishes a hierarchy of email service: the ‘last known email address’ can only be used if the party has not provided an alternative. The subrule is nonetheless some support for the notion that valid email service can rely on an address not used by the party within the litigation. I accept that when the mother’s former counsel brought the email address to the court’s attention, that was some evidence of its use by the mother, such that it could then be taken up as an email for service.
[32] But validity of service is not the ultimate question. Rule 25(19)(d) and (e) do not refer to “service”, but to “notice”. The two are not interchangeable. Subrule 6(20) of the Family Law Rules provides some guidance in this respect. It allows a court, on motion, to set aside the consequences of failing to take a step by a specified time, or make any other order that is just, if, despite service of a document having been effected, the person shows that document did not come to her notice. Subrule 6(20) has its own equivalent in the Rules for Civil Procedure, in r. 16.07. Taken together, these provisions demonstrate that in certain circumstances, justice requires that the court revisit the consequences of technically valid but practically ineffective service. The rules for service thus guide the parties but contemplate that not all service will result in notice, and that ultimately the question of adequate notice can be revisited.
[33] I have no doubt that the father’s counsel acted in good faith when serving the mother using the email address identified during the removal motion. Counsel was following the rules, as well as adopting the court’s own practice with respect to the order removing counsel. But it was a manner of service that was not without risk. I accept the mother’s evidence that, as it turned out, she did not use that email and did not receive notice of the motion to strike. It explains her absence from the proceedings, and there was no evidence offered to the contrary. This factor weighs in favour of the mother’s motion to set aside.
Has the father established an arguable case on the merits?
[34] 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.
[35] 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.
[36] Had the matter proceeded in a contested fashion, the two main issues would have been (i) whether HB and CB were dependents during the relevant timeframes, and (ii) calculating the mother’s income.
[37] With respect to the first issue, the mother’s position is that while HB was pursuing post-secondary education in the relevant timeframe, she lived independently, without financial support from the father. She further suggests that as of February 1, 2021, CB moved out of the father’s residence and into the mother’s own for a period.
[38] With respect to the second issue, the mother says that the income attributed to her in the order of $51,232 does not reflect her actual income at the time or going forward. She suggests that 2020 and 2021 were anomalous in that the COVID-19 pandemic presented her with employment opportunities she otherwise did not have. She indicates her annual income in the years 2014-2019, and 2022-2023 has been below $20,000. She supports these figures with appropriate documentation. She also attributes her lower earning potential to depression and substance abuse issues she is working to overcome.
[39] The father responds with evidence to the contrary.
[40] It is not my role at this juncture to determine between the competing accounts as to the status of the children or the mother’s imputable income. I find the mother has demonstrated an air of reality to her claim, and an arguable case that her child support obligations ought to have been less than was ordered at the uncontested trial. This factor weighs in the mother’s favour.
Is the mother acting in good faith and with “clean hands”?
[41] Though in arrears, there is evidence the mother has made payments to the FRO totaling $22,737.74 since June 2021. She has satisfied some of the costs awards against her, and the remaining costs continue to be addressed through FRO enforcement. While the precise state of outstanding costs is not clear to me on the evidence, I do accept that the mother is engaged in a good faith effort to satisfy them.
[42] The mother can be properly criticized, however, for her failure to keep apprised of the status of proceedings. Once counsel was removed on May 3, 2022, 13 months passed before a call from the FRO prompted the mother to think about the status of her court matter. During that period, she did not attend court, and presumably did not have any contact with the lawyer she thought was still acting on her behalf. This was an unacceptable head-in-the-sand approach. It is perhaps explained by the mother’s personal struggles, but it cannot be countenanced by the court. While not bad faith, per se, it is cause to question whether the mother comes before this court with “clean hands.” This factor weighs against setting aside the order.
What prejudice may be suffered by the parties?
[43] The mother claims she will suffer significant financial hardship if the order is not set aside. She has been treated for her mental health and alcohol use disorder. Her income is limited. She has costs relating to bankruptcy proceedings from 2015. Her driver’s license was suspended due to her child support arrears. She has depleted her assets. She relies on family members to assist with her basic needs, and she has borrowed from family members to pursue this motion.
[44] The father counters that if the motion to set aside is dismissed, the mother may still address her concerns by way of a motion to change. The father concedes that there has been a material change in circumstances which would permit the court to re-examine child support, even retroactively. Given that concession, the mother could pursue a motion to change to address issues of overpayment, though she would be without remedy with respect to the $6,000 costs award against her.
[45] I am not persuaded that a motion to change is the appropriate method to challenge final determinations made at an uncontested trial, even through the lens of retroactive child support. The father’s concession, however, that there has been a material change in circumstances, does relieve somewhat against the potential prejudice to the mother.
[46] There is potential prejudice to the father that I must consider as well. He has, of course, expended time and resources prosecuting his claims leading up to and including the uncontested trial. Some, but not all that expense, has been addressed by prior costs awards. If the order is set aside, he will need to resume those expenses to bring the matter to a close.
[47] The father raises another concern: that if I set aside the order, the parties will be governed by the 2015 order which makes no provision for child support. The FRO would recalculate the support obligations, resulting in a determination that the mother has significantly overpaid. This is problematic, he says, for two reasons. First, even accepting the mother’s position, some support would be warranted. And second, he is concerned he would be suddenly and unfairly ‘on the hook’ for repayment of what he has collected to date.
[48] While I accept there is prejudice to the father in having to resume the litigation, I reject the notion that the child support payable would be automatically reduced to zero under the terms of the 2015 order. The mother’s submission ignores the temporary without prejudice order of January 19, 2021. If the final order is set aside, then the status quo would be that of the temporary order of 2021, not the order of 2015. Though the temporary order reflects child support for the benefit of a different subset of the children, it nonetheless orders child support in the exact same amount as the final order of May 16, 2023. It is true that setting aside the order would affect issues of retroactive child support and the repayment schedule, but it would not be nearly as disruptive as the father suggests.
[49] There is potential prejudice to both parties. In either case, the prejudice can be partially, but not wholly addressed as the litigation continues, either by resuming as the original application, or by the mother bringing a motion to change. This factor does not weigh strongly either for or against granting the motion to set aside.
In the final analysis, do the interests of justice favour setting aside the orders?
[50] 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.
[51] Weighing all the factors, I exercise my discretion to set aside the final order resulting from the uncontested trial. I recognize the prejudice this visits on the father. I recognize also that the mother’s inattentiveness to the proceedings was unacceptable. However, these factors, which may be partially addressed in the context of costs, are outweighed in the balancing. The mother moved diligently on learning of the final order and presents an arguable case on the merits. Most significantly, the mother did not have notice of the motion to strike her pleadings. Notice and the opportunity to be heard are basic tenets of our justice system: A.M. v. J. M., 2016 ONCA 644, at para. 29. Holding fast to the final order in the face of ineffective notice would tarnish the integrity of the administration of justice in this case. The remaining contentious issues between these parties, which are few, should be determined with the participation of both.
Part Five: Conclusion
[52] The mother’s motion is granted. The order of this court dated May 3, 2023, is set aside, as is the order dated February 16, 2023 striking the mother’s pleadings. The application resumes.
[53] The mother is the successful party in this motion. However, as discussed above, her own actions and inattentiveness to the litigation were a contributing cause to the need for this motion. As such, I will not exercise my discretion to award her costs. There shall be no costs payable by either party on this motion.
[54] The next court appearance of January 23, 2025, originally intended for oral judgment in this matter, is converted to a joint settlement conference and trial management conference. Briefs are to be filed in accordance with the rules.
Released: November 4, 2024 Signed: Justice Jenner
[1] I suspect that had I this document in electronic form, the address used could be discovered by hovering the mouse over the mother’s name.