ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-94/00-02

DATE: 2012/10/05

BETWEE N:

JOSEPHINE GOTKOWSKI

Self, for the Applicant

Applicant

• and -

STANLEY ROGER GOTKOWSKI

P. M. Stillman, for the Respondent

Respondent

HEARD: September 28, 2012

The Hon. Mr. Justice H.S. Arrell

JUDGMENT

INTRODUCTION:

[ 1 ] The applicant is before me seeking an order setting aside the Judgment of Kent, J. dated September 15, 2011 in which he varied his previous Judgment of September 29, 2000 by terminating spousal support and eliminating all arrears. The respondent is opposed.

FACTS:

[ 2 ] The parties, with counsel, had a four day trial before Kent, J. and he issued Judgment on September 29, 2000 whereby spousal support to the applicant was ordered at $1,200.00 per month commencing October 1, 2000.

[ 3 ] The respondent commenced these particular proceedings on June 2, 2011 to vary Kent, J.’s Judgment seeking to terminate any further spousal support and eliminating all arrears. This application was in response to enforcement proceedings FRO had commenced some time earlier in Provincial Court whereby it had suspended the respondent’s driver’s license.

[ 4 ] The respondent seeks a change in support because of a change in income over the years, he alleges, resulting in him falling into arrears and his driving privileges being suspended.

[ 5 ] Significantly, he swears “he didn’t understand he had a right to bring a motion to vary spousal support”. Hence, he alleges the reason for the delay in doing so. The difficulty with that statement is that he had previously brought a similar motion to vary on April 28 th , 2010.

[ 6 ] It is also significant that he admits in his affidavit before me that in 2010 he had income of $61,700.00, almost identical to his income when before Kent, J. in 2000. The years in between all show a loss in income. The respondent appears to work at a job and run an office retail business.

[ 7 ] The respondent alleges the applicant was personally served with this motion to vary on June 3, 2011. The applicant did not file a response and the matter went before Kent, J. on September 15, 2011 as an uncontested trial. The respondent was successful in having spousal support stopped and arrears of approximately $11,500.00 eliminated.

[ 8 ] The applicant, on learning of the order of Kent, J., began a motion on November 14, 2011 to set aside Kent, J.’s judgment of September 15, 2011.

[ 9 ] The delay in hearing this motion appears to be the result of a delay by counsel for the respondent arranging cross-examinations which he had requested.

[ 10 ] This matter had been proceeding in Provincial Court for the enforcement of arrears by FRO whereby the respondent’s license had been suspended. Counsel for the respondent has produced transcripts of April 1, 2011, June 5, 2011 and September 2, 2011, from that court.

[ 11 ] On April 1, 2011 the matter was adjourned to June 3, 2011 at which time Provincial Court was advised that a motion to vary had been filed in Superior Court the day before, being June 2. The matter was adjourned to September 2, 2011.

[ 12 ] On September 2, 2011 the applicant is listed as being represented by duty counsel. The court is advised she had not responded to the motion to vary. The court was also advised no date had been set for the hearing of the matter in Superior Court. The transcript reveals a statement from the applicant “I haven’t received a motion to change, Your Honour ”. The judge at that time stood the matter down to allow the parties to attend Superior Court and obtained copies of the appropriate documents. They re-attended court and after looking at documents in Superior Court acknowledged she had been served. Duty counsel submitted that she did not believe she had to act on something served by mail. Through counsel she advised she thought she had not been served personally. The court was told categorically that she wished to file a response. The respondent was in court and would have heard this submission. The judge made the comment “...I take the position she hasn’t been properly served”. Both parties would have heard that pronouncement of the court. It was a mistake by the judge because he was advised the applicant had been served by mail when in fact there is an affidavit by the process server before me that service was effected personally. The court then endorsed the record that the matter was to be adjourned to October 7, “...for Ms. Gotkowski to be re-served with the Superior Court motion to vary by way of personal service...”. The court also ordered that a copy of that endorsement be put in counsel for the respondent’s file folder, as he was not in court, and his partner who was in the building that day was to be advised.

[ 13 ] The final transcript I have is the cross-examination of the applicant on August 1, 2012. This occurred almost a year later. To say she was confused about service, when, and how would be an understatement.

[ 14 ] The applicant has been self-represented since the matter with FRO first commenced in Provincial Court until today. She has been treated for depression and anxiety since 1998 based on a letter filed by her psychiatrist dated August 20, 2012.

[ 15 ] In essence her material indicates a complete misunderstanding and total confusion of the whole process.

[ 16 ] It appears there was a prior motion to vary by the respondent dated April 28, 2010. She responded to that matter. At a case conference on July 6, 2010 I ordered financial disclosure from the respondent and adjourned the matter. I further ordered no motion to be brought until that disclosure was complete and a further case conference was held. Justice Taliano ruled at a subsequent case conference that the respondent had not complied with my earlier order. He denied the motion to vary without prejudice to him fulfilling my order and renewing his motion. The applicant swears she received no further financial documents.

[ 17 ] At the same time the first motion to vary was occurring FRO had the respondent’s license suspended in September 2010 for non-payment of support.

[ 18 ] The FRO matter continued in Provincial Court through 2010 and 2011, with the applicant being present and represented, she assumed, by the lawyer for FRO.

[ 19 ] The applicant states she first became aware of the Order of Kent, J. when she re-attended Provincial Court on October 7, 2011 on the FRO matter. She was able to get some legal advise at a clinic a month later and shortly after commenced this motion.

[ 20 ] I note that the applicant has filed a copy of the driver’s license of her son Edward Gotkowski who works with the respondent in the furniture retail business. It is a class B license which allows him to operate trucks used in the business. This is significant because the respondent advised the judge in Provincial Court on April 1, 2011when his license was suspended that no one else in his business could drive the truck. It appears his credibility may be as suspect as his counsel wishes me to conclude is the applicants.

ANALYSIS:

[ 21 ] Rule 25(19)(e) of the Family Law Rules allow me to set aside the order of Kent, J. if notice to the applicant was inadequate on her reason for not attending court “is satisfactory to the court”.

[ 22 ] I conclude that the applicant was served personally on June 2, 2011 as per the affidavit of the process server.

[ 23 ] I am satisfied, however, that her explanation for not attending the hearing before Kent, J. on September 15, 2011 is satisfactory.

[ 24 ] The applicant is self-represented. She is under a doctor’s care. She has very limited income. She had a FRO matter proceeding in provincial Court. She had responded to an earlier motion to vary which appeared to be on hold pending disclosure by the respondent. I accept her explanation that she was simply confused given the multiplicity of proceedings and the endorsement of the Provincial Court Judge that she was to be re-served.

[ 25 ] It is clear from the transcript of September 2, 2011 that the respondent knew the applicant intended to respond, knew no court date had been set for the motion to vary and was told by the presiding judge that she would have to be re-served with the Superior Court motion to vary. She accepted that as I think would any lay person. The respondent was well aware of this endorsement and that the applicant wanted to respond and in spite of this he allowed his lawyer to arrange an uncontested trial without advising the applicant. I have no evidence as to what he told his own lawyer or Justice Kent but can only assume neither knew of this endorsement or the clear intentions of the applicant, before proceeding with an uncontested trial which resulted in such significant repercussions to her.

[ 26 ] The motion of the applicant to set aside the order of Kent, J. dated September 15, 2011 is granted. This matter deserves to be determined on the merits and not on a technicality under the rules. The applicant will have 30 days to serve and file her response to this motion. The parties may then arrange a case conference with the Trial co-ordinator. Enforcement of Kent, J.’s order of September 29, 2000 by FRO is suspended until further order of this court.

ARRELL, J.

[ 27 ] Released: October 5, 2012

COURT FILE NO.: FS-94-00-02

DATE: 2012/10/05

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: JOSEPHINE GOTKOWSKI Applicant - and - STANLEY ROGER GOTKOWSKI Respondent REASONS FOR JUDGMENT ARRELL, J.

Released: October 5, 2012