SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 44638-10
DATE: 2012-01-27

RE: Rema Fiorenzini, Applicant

AND:
Carmen Fiorenzini, Respondent

BEFORE: The Honourable Mr. Justice D. A. Broad

COUNSEL: Filomena Andrade, for the Applicant

David P. Olsen, for the Respondent

HEARD: January 26, 2012

ENDORSEMENT

[ 1 ] This is a Motion by the Respondent husband to set aside the final Divorce Order of Justice Campbell dated September, 2011, which was made on default.

[ 2 ] The husband deposes that he was not able to file his Answer and Financial Statement because of a delay in obtaining his 2009 Notice of Assessment from CRA. Counsel for the Applicant wife Ms. Andrade provided a number of indulgences and extensions, but did provide a clear and unequivocal warning to the lawyer acting for the Respondent, Mr. Grant, by letter dated February 24, 2011, that if the Respondent did not file his material by March 4, 2011 he would be noted in default. That date was extended to March 25, 2011 by agreement. However, that date passed, and the Respondent still did not file the material nor move for an order to dispense with the Notice of Assessment.

[ 3 ] Counsel for the Applicant waited for some time before proceeding by default, but ultimately did note the Respondent in default and proceeded with an uncontested trial.

[ 4 ] The affidavit for the uncontested trial was forthright and candid with respect to the circumstances.

[ 5 ] It appears from the material that there were some informal discussions, after the extended deadline, between Ms. Andrade and Mr. Grant, however, Mr. Grant does not go so far in his letter or his Affidavit to suggest that Ms. Andrade provided any assurance that his client would not be noted in default or that she was in any way waiving the default or granting any further extensions. All he says is that in the circumstances he was “surprised” that she did proceed by default.

[ 6 ] Mr. Olsen, on behalf of the Respondent, argues that the delay in proceeding with the default after the extended deadline, combined with the informal discussions between counsel after the deadline, had an effect on the deadline, by requiring it to be renewed before it could be acted upon, thereby placing the onus on Ms. Andrade to initiate something to deal with the continued delay, rather than on the Respondent and his lawyer.

[ 7 ] Mr. Olsen argues that his client does have an arguable defence on the merits, and if the full financial facts were before the court, the property equalization would be very different, if not reversed, and the support would be much less.

[ 8 ] These circumstances present a difficult dilemma for the court. It is clear that Ms. Andrade and her client are blameless in this situation, and indeed Ms. Andrade acted completely professionally and granted indulgences beyond the minimum which might be regarded as being required in the circumstances. The court is left to balance the policy in favour of having disputes between parties determined on their merits, rather than summarily, against the policy in favour of the finality of court proceedings, not only in the interest of the parties, but also in the public interest.

[ 9 ] In the circumstances, I have determined that the policy in favour of a determination on the merits should take precedence, particularly since the support order will have continuing and potentially long-lasting effect.

[ 10 ] However, the Applicant wife has suffered as a result of the dilatory conduct of the Respondent and the rather cavalier approach taken by his former lawyer, which should be considered in the disposition of this Motion.

[ 11 ] It is therefore ordered that:

a) the order for equalization at paragraphs 3 of the Divorce Order dated September 19, 2011 be set aside;

b) the order for spousal support for $676.00 per month retroactive to November 1, 2010 shall remain in effect as an interim Order pending trial;

c) paragraph 4 of the Divorce Order shall remain in effect as an interim Order pending trial;

d) paragraph 5 of the Divorce Order respecting costs shall remain in effect;

e) paragraph 6 of the Divorce Order respecting interest on the support and costs shall remain in effect;

f) the Respondent shall file his Answer and Financial Statement within ten (10) days hereof; and

g) the Respondent shall pay the Applicant’s costs of this motion fixed in the sum $1,500.00 plus HST forthwith.

D. A. Broad J.

Date: January 27, 2012