COURT FILE AND PARTIES

COURT FILE NO.: 5956/10
DATE: 2012-04-12
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GABRIJELA LAYLA SCHRYVER, Applicant

AND:

BRIAN FRANKLIN SCHRYVER, Respondent

BEFORE: MURRAY J.

COUNSEL:
Self-Represented
Self-Represented

HEARD: April 4, 2012

ENDORSEMENT

[ 1 ] In this motion, the respondent seeks to set aside a final order of Justice Snowie made on January 30, 2012.

Background Facts

[ 2 ] The applicant mother and the respondent father were married on March 12, 1999. They separated on August 15, 2006.

[ 3 ] There are two children of the marriage, Nicholas Dragan Schryver, born on August 20, 1999, and Alexander Paul Zivco Schryver, born on April 6, 2005. Both children are special needs children and suffer from neurodegenerative disorders. Nicholas lives at Sunbeam Lodge in Kitchener and requires care 24 hours a day/seven days a week. Nicholas has had his primary residence at the Sunbeam Lodge since on or about February 22, 2006 before the date of separation. It is likely that for Nicholas Sunbeam Lodge will remain his permanent residence. Alexander lives at home with the applicant mother. Since the date of separation, Alexander's principal residence has been with the applicant mother but there have been periodic placements of Alexander in Sunbeam Lodge for temporary care. According to the material filed, some of Alexander's temporary placements have been for a period of months, for example, from May 26, 2008 to February 1, 2009.

[ 4 ] The parties signed a separation agreement on August 15, 2006. The separation agreement set out some custody and residence arrangements but did not provide for the payment of any spousal support. The agreement provided that spousal support could be paid if there were a subsequent separation agreement or either party applied for divorce. According to the separation agreement, child support was payable by the respondent husband in the amount of $600 per month for Alexander. No basic monthly child support was payable with respect to Nicholas who resided at Sunbeam Lodge in Kitchener. Section 7 expenses were to be shared on a 50/50 basis.

[ 5 ] The respondent moved to Collingwood in January of 2008. He subsequently remarried and moved to Wasaga Beach in February 2010, where he currently resides. The applicant mother now resides in Oakville, Ontario with Alexander.

The Motion to Change

[ 6 ] Both parties jointly filed a divorce application which resulted in an order for divorce by Justice Herold on March 25, 2008. The order of Justice Herold granted only a divorce. The order of March 25, 2008 did not deal with collateral matters and did not sever the divorce from collateral matters.

[ 7 ] On March 31, 2009, the applicant mother commenced a motion to change the divorce order of Justice Herold dated March 25, 2008. In her prayer for relief, she requested an order giving her custody of both children. In addition, she asked for an order requiring the respondent father to pay child support in excess of the amount required by the child support Guidelines . She also asked for spousal support and for an order fixing the amount of support arrears to be paid by the respondent father.

[ 8 ] On April 14, 2009, Justice Seppi refused to hear the motion because no case conference had been held and the respondent had filed no material in response. The matter was adjourned to a case conference. On April 14, 2009, Justice Seppi ordered that the respondent pay child support for Alexander in accordance with the Guidelines in the amount of $333 per month.

[ 9 ] On March 22, 2010, a settlement conference was held before Justice Price. In addition to making certain orders regarding disclosure, Justice Price ordered that the “action” should be placed on the assignment court list for August 30, 2010.

[ 10 ] On June 29, 2010, the motion again came before the court. It was adjourned to July 13, 2010 in order to permit the respondent to obtain counsel.

[ 11 ] On July 13, 2010, the matter came before Justice Kruzick. The respondent was now represented by Mr. Brian McCann of the law firm Sorbara, Schumacher McCann LLP. Mr. McCann made certain jurisdictional objections which are reproduced below in more detail. Justice Kruzick adjourned the matter to a trial management conference stating that it was not trial ready and required a resolution of a number of issues, including jurisdictional issues, before it could proceed to trial.

[ 12 ] A trial management conference was held on July 26, 2010 before Justice Lemon. At that TMC before Justice Lemon, the respondent father was represented by counsel, Mr. Brian McCann of the law firm Sorbara Schumacher McCann LLP. Mr. McCann again made several objections to the process and to the jurisdiction of the court to grant the relief requested by the applicant in her motion to change. Justice Lemon ordered the respondent to prepare a supplemental trial management conference brief to address the jurisdictional issues raised by him on behalf of the respondent.

[ 13 ] On August 20, 2010, on behalf of the respondent father, Mr. McCann served and filed a trial management brief in which he reiterated the submissions made on behalf of the respondent father at the TMC before Justice Lemon. In part, these submissions contain the following submissions:

1. That the divorce order of March 25, 2008, made by Justice Herold, did not make any reference to any of the terms that the applicant was proposing to vary in her motion to change, filed March 31, 2009;

2. That the applicant was asking the Court to amend the divorce order of March 25, 2008 to include - for the first time - provisions for custody and support;

3. That her motion to change the divorce order was not the appropriate procedure because the applicant was not asking a change in the order granting divorce but rather she was asking for an amendment of the order to include provisions related to custody and support;

4. That the Court did not have jurisdiction to grant the relief requested by the application on a motion to change the divorce order made by Justice Herold;

5. That spousal support was not requested in the application for divorce or in the material filed in support; and

6. That in the separation agreement both parties had waived spousal support unless a subsequent separation agreement was entered into or either party claim spousal support in a subsequent divorce.

[ 14 ] On October 12, 2010, the motion to change was transferred to Milton, Ontario by order of Justice Fragomeni.

[ 15 ] On August 27, 2010, a TMC was held in Milton, Ontario before Justice Coats.

[ 16 ] On August 31, 2010, because it appeared the matter was settled, Justice Herold struck the matter from the trial list.

[ 17 ] On November 10, 2010, the parties appeared before Justice Herold on the original motion to change brought by the applicant mother. By this time both parties were self-represented. According to the record, “Partial minutes of settlement” were filed by the parties before Justice Herold. The partial minutes of settlement dealt with custody of Nicholas and Alexander. The partial minutes of settlement did not deal with child or spousal support. The result of filing partial minutes of settlement was that Justice Herold, on November 10, 2010, made an order related to custody “on a final and partial basis.” In his order, Justice Herold also permitted what he referred to as an amendment of pleadings in accordance with the applicant's notice of motion, dated November 2, 2010. In her notice of motion dated November 2, 2010, the applicant mother had requested permission to amend her pleadings and proceed with her claim by way of application.

[ 18 ] No application was commenced by the applicant mother and a trial management conference was held before Justice Coats on February 16, 2011 and adjourned by her to continue on March 9, 2011. On March 9, 2011, the TMC did not proceed and Justice Coats ordered the TMC to be rescheduled by the trial coordinator. It is not clear that any further TMC was ever scheduled.

[ 19 ] On September 15, 2011, the formal order of Justice Herold was issued and entered - almost one year after November 10, 2010 when Justice Herold made the order. On September 15, 2011, the order was signed by the clerk of the court. It stated, inter alia , that the “applicant mother shall be permitted to amend the pleadings and proceed with her claim by way of an application”.

[ 20 ] On December 5, 2011, the applicant mother issued an application in which she claimed child support, including section 7 expenses, spousal support, retroactive child and spousal support, and other relief. In her application, the applicant mother claimed the same relief she had claimed from the outset in her motion to change the divorce order.

[ 21 ] The application was served on the respondent father on December 6, 2011 together with the applicant's financial statement dated December 5, 2011. The respondent did not serve and file an answer within 30 days after the date of service.

[ 22 ] On January 18, 2012, Justice Snowie set the application down for an uncontested trial.

[ 23 ] On January 30, 2012, an uncontested trial took place before Justice Snowie. In her judgment, after the uncontested trial, Justice Snowie fixed section 7 arrears in the amount of $32,129.05 and ordered child support to be paid in the amount of $847 per month for two children commencing on February 1, 2012, and monthly thereafter based on an income imputed to the respondent in the amount of $56,276.31. Justice Snowie fixed child support arrears in the amount of $20,202. Justice Snowie ordered $447 per month to be paid for section 7 expenses commencing on February 1 st and monthly thereafter. She further ordered spousal support in the amount of $1,200 per month and fixed spousal support arrears in the amount of $30,000. In addition, she made orders with respect to the obligation of the respondent father to provide health insurance coverage for the two children and to obtain life insurance as security for child and spousal support obligations. Justice Snowie fixed costs payable to the applicant in the amount of $4,000, and ordered costs to be treated as arrears of child and spousal support in order to have the costs order enforced by FRO.

[ 24 ] In his motion to set aside the judgment of Justice Snowie, the respondent father deposed that he was unaware that he had to file a response to the application and that the file had been in place for approximately three years and had been before the court both in Guelph and in Milton since the applicant mother had originally brought her motion to change the divorce order dated March 25, 2008.

Analysis

[ 25 ] In this case, there is little doubt that a miscarriage of justice has occurred. The respondent has participated actively in this case since the initial motion to change was commenced in March 2009. Five volumes of continuing record are evidence of his active participation.

[ 26 ] Notwithstanding the formal language of the new application issued on December 5, 2011 which states that an answer must be filed within 30 days, it is not surprising that the respondent father did not understand that he had to file material in response to an application which claimed virtually the same relief as had been claimed by the applicant mother in her original motion to change the divorce order.

[ 27 ] It is true that when the respondent had Mr. McCann as counsel, Mr. McCann raised a question about the propriety of the applicant mother using a motion to change the divorce order to obtain corollary relief. Well after Mr. McCann had raised procedural concerns on behalf of the respondent, Justice Herold, on November 10, 2011, made a partial final order relating to custody and access without requiring an application as a condition precedent to the granting of such relief.

[ 28 ] After the November 10, 2010 order of Herold J., trial management conferences were scheduled to deal with the motion to change which was before the court and no new application was commenced by the applicant mother. Trial management conferences were held before Justice Coats on February 16, 2011 and adjourned by her to continue on March 9, 2011. On March 9, 2011, the TMC did not proceed and Justice Coats ordered the TMC to be rescheduled by the trial coordinator. It is not clear that any further TMC was ever scheduled.

[ 29 ] As can be seen, the applicant’s motion to change had proceeded in the court for almost three years as if no new application was necessary. The issue of whether the applicant mother was using the correct procedure had been raised before a number of judges who had continued to refer the original motion to change to settlement and trial management conferences without requiring any new application.

[ 30 ] At the time the applicant mother issued her application on December 5, 2011, it would have been reasonable for the respondent father to assume that the next step in the process of dealing with the issues of spousal and child support and section 7 expenses would be a trial management conference to be set by the trial coordinator as ordered by Coats J.

[ 31 ] In short, when the application dated December 5, 2011 was served on him, I find as a fact that the self-represented respondent did not appreciate that a new process had been started which required an answer in order to protect his right to participate. For almost three years the respondent father had been fully engaged in multiple court appearances responding to the motion to change initiated by the applicant in March 2009, which dealt with the very same issues as were raised in the new application. He attended trial management conferences which were supposed to be a prelude to a trial of the issues raised in the applicant mother’s motion to change.

[ 32 ] Justice Herold, in his handwritten endorsement of November 10, 2010, did refer to an “amendment of pleadings” in accordance with the notice of motion dated November 2, 2010. In her motion dated November 2, 2010, the applicant mother had formally asked for the following relief: “The applicant mother shall be permitted to amend the pleadings and proceed with her claim by way of an application.” I do not find it surprising that this unrepresented respondent would not know whether the applicant mother was entitled to proceed by way of an amendment of existing motion material or by commencing a new procedure by way of application or by having her motion converted to an application. Through no fault of Justice Herold, this part of his order was difficult to construe. Certainly, there was never any indication to the respondent father that he would have to file an answer or be at risk that the applicant mother's case would proceed to an uncontested trial.

[ 33 ] The formal order of Justice Herold was not taken out until September 15, 2011, almost one year after Justice Herold made the order on November 10, 2010. In the meanwhile, notwithstanding the endorsement of Justice Herold on November 10, 2010, the initial motion to change brought by the applicant proceeded to be dealt with by a number of judges and sent to trial management and settlement conferences as if no change or amendment or new application was required. The judiciary also dealt with the initial motion to change as if no amendment or new application was required.

[ 34 ] In my respectful opinion, this trial ought not to have proceeded on an uncontested basis without some specific warning to the respondent father that it would so proceed unless he filed an answer to the application.

[ 35 ] In the unique circumstances of this case, it is unreasonable to conclude that this respondent father, who had fully engaged in responding to the very issues that had been before the court for almost three years, would understand that the same issues raised by the applicant mother in her application would proceed to an uncontested trial without his participation and without notice to him unless he filed an answer.

[ 36 ] In this case, it is highly likely that if the respondent father had participated in the trial the result would have been different. For example, Justice Snowie ordered child support payable for two children, Nicholas and Alexander. It is agreed by the parties that Nicholas has not lived with his mother since before the date of separation and therefore child support pursuant to the Guidelines would not be payable for Nicholas. There may well have been significant section 7 expenses but basic child support would not be payable for two children when only one child was living at home with the applicant mother. The respondent father acted with diligence when he found out about the judgment of Justice Snowie and brought his motion to set aside the judgment within a reasonable time. I make these observations notwithstanding that the respondent does not have to prove that the trial would likely have resulted in a different decision if he had participated. In this regard, the case is different from West v. West , 2001 28216 (ON SC) , [2001] O.J. No. 2149.

[ 37 ] This is a case of denial of natural justice and of basic fairness to the respondent. It would be unjust not to set aside the judgment of Justice Snowie. In this regard, I refer to the decision of the Supreme Court of Canada in Cardinal v. Director of Kent Institution , 1985 23 (SCC) , [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 in which Le Dain J., writing for the court, said at p. 661 S.C.R., p. 57 D.L.R.:

. . . I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.

Conclusion

[ 38 ] The judgment of Justice Snowie, dated January 30, 2012, is set aside.

[ 39 ] The respondent father, as a sign of good faith, agreed that pending trial he would make child support and spousal support payments in accordance with the order of Justice Snowie provided that such payments are made without prejudice so that if, after trial, there has been an overpayment by him of child support and/or spousal support as determined by the trial judge, then such overpayment shall be credited against past or future support obligations.

THEREFORE IT IS ORDERED THAT:

1. the judgment of Justice Snowie dated January 30, 2012 is set aside;

2. the respondent father shall serve on the applicant mother and file an answer to the application within a period of 30 days from the date of this decision;

3. the respondent father shall pay child support in the amount of $847 per month on the 1st of May, 2012 and on the first of each and every month thereafter until trial or further order of this court;

4. the respondent father shall pay spousal support to the applicant mother in the amount of $1,200 per month on the 1st of May, 2012 and on the first of each and every month thereafter until trial or further order of this court;

5. the child support and spousal support payments ordered by this decision are made without prejudice to the respondent and if, after trial, it is determined that there has been an overpayment of child support and/or spousal support as determined by the trial judge, then such overpayment shall be credited against past or future support obligations of the respondent;

[ 40 ] Both parties agreed that an order should issue requiring them to provide the information ordered by Price J. on March 22, 2010. Some of the information required related to custody issues which have now been settled. I have therefore modified the order and ordered other information to be updated where appropriate.

THEREFORE IT IS FURTHER ORDERED THAT:

6. Gabrijela Schryver shall provide to Brian Franklin Schryver:

a) a copy of her 2008 tax return and attachments and a copy of her 2008 notice of assessment;

b) a copy of her 2009, 2010, and 2011 tax returns and attachments and notices of assessment for 2009, 2010, and 2011.

c) a copy of any documents in her possession power or control regarding applications for or benefits received from:

• ODSP (Ontario Disability Support Pension)

• SSAH (special services at home)

• ACSD (assistance for children with severe disabilities)

• copies of the policies governing such assistance

d) a copy of any other document that Mrs. Schryver intends to rely on at trial.

7. Brian Franklin shall provide to Gabrijela Schryver:

a) a copy of his pay stubs for the current year to date;

b) a copy of his income tax returns and attachments and notices of assessment for 2009, 2010 and 2011;

c) a copy of all bank statements for all bank accounts operated from January 2006 to the present;

d) a copy of records and receipts since the date of separation of expenses incurred in connection with rentals;

e) a copy of any other document that Mr. Schryver intends to rely on at trial.

[ 41 ] The trial coordinator in Milton shall set this matter down for a fixed date trial, estimated to be two days, as soon as is reasonably practicable after the expiry of the 30 day period within which the respondent is to file his answer.

MURRAY J.

Date: April 12, 2012