ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FC-11-1856
DATE: 2012/12/19
BETWEEN:
Peter Dnistrianskyj Applicant – and – Rachel Savard Respondent
Michael A. Chambers, for the Applicant
Rachel Savard, Self-represented
HEARD: December 10, 2012 (Ottawa)
ENDORSEMENT
MÉTIVIER J.
[ 1 ] The issue is whether or not the Court ought to exercise its discretion to set aside the Divorce Order granted at an uncontested hearing on May 28, 2012.
[ 2 ] The respondent is the moving party and represents herself.
[ 3 ] She was served with a Divorce Application on August 27, 2011. She noted that the front page read: “The first court date is ‘TO BE SET’.” She submits that she believed this meant she would be notified of a court date.
[ 4 ] She did nothing about filing an Answer.
[ 5 ] She did, however, attend a MIP session because, she says, that was clearly set out as a requirement.
[ 6 ] Eventually, she was noted in default; the matter was permitted to proceed to an uncontested hearing. No notice of either step was required or provided.
[ 7 ] During the months that elapsed after service of the documents, Ms. Savard was in communication with the applicant Mr. Dnistrianskyj over various issues, but nothing was said by him as to the progress of the litigation.
[ 8 ] She eventually was served with the Divorce Order and obtained the supporting documents on June 24, 2012. She immediately moved to set it aside on June 27, 2012.
[ 9 ] Ms. Savard had difficulty getting legal advice. She sets out that she had only 72 hours from the time she learned of the Divorce to the expiry date of the time limit for an Appeal.
Background
[ 10 ] The wife (for the sake of convenience the parties are referred to as husband and wife) was born in 1968 and worked as a babysitter for the husband and his first wife from the time she was approximately 12 years old.
[ 11 ] The first wife died in January 1986, when Ms. Savard was 16 years old. Mr. Dnistrianskyj was 36 years old. The parties began a sexual relationship shortly thereafter and started cohabitating in approximately July 1986.
[ 12 ] They married on May 28, 1989 and separated in 2008.
[ 13 ] On June 22, 2012, the wife sent the following e-mail to the husband’s counsel:
[ 14 ] The Divorce Order deals only with equalization issues and has preserved the wife’s right to claim spousal support. I note that the documentary evidence in support of the equalization was thorough and fulsome, although I am unable to determine if it was complete. Ms. Savard objects to the equalization arrived at and claims that she has a different view as to certain accounting for assets. She states that there are errors and omissions in the calculations. She claims her husband paid interim spousal support to her of $2,172 per month (2009 or 2010) but then reduced that to $800 unilaterally and then eliminated it all together in July of 2011. As a direct result of this, she says, her ability to defend herself was impacted negatively.
[ 15 ] She has accumulated debt as a full‑time student in an attempt to become self-supporting.
[ 16 ] The wife claims she has been diagnosed with hypochromic and microcytic anemia, which causes fatigue and inability to concentrate.
[ 17 ] I agree that setting aside an Order obtained in default in a family law proceeding must, by analogy, meet the requirements of Rule 19.08 of the Rules of Civil Procedure as is permitted by Rule 1(7) of the Family Law Rules. See Page-Cole v. Cole, 2009 57152 (ON SC), [2009] O.J. 4386 (Ont. S.C.J.) at para. 27 quoting Diciaula v. Mastrogiacomo (2006) 2006 11928 (ON SCDC), 25 C.P.C. (6th) 107.
[ 18 ] There are three criteria to the test for so doing:
- The motion to set aside a default judgment should be made as soon as possible after the party becomes aware of the judgment.
The counsel for the husband concedes this point.
- The material must set out the circumstances under which the default arose that give a plausible explanation for the default.
I find that the wife has given a reasonable explanation.
- The material must set forth facts to show there is at least an arguable case to present on its merits.
I find that this has been done, although the evidence does have some weaknesses given the wife’s self-representation and her lack of clarity on the correct legal position on certain issues.
[ 19 ] Overall, however, there is sufficient evidence to require a more thorough accounting for equalization purposes.
[ 20 ] This is particularly so, given the live support issues, which would benefit from consideration at the same time.
[ 21 ] I set aside the noting of default and the Divorce Order and order that the parties proceed to a Settlement Conference, which will provide adequate time to review the evidence and delineate the issues for trial. The wife shall serve and file an Answer and any other required documents in proper form within 20 days of this Endorsement. These will deal with support as well as equalization.
[ 22 ] Costs of this motion will be fixed on receipt of written submissions (maximum two pages) within 10 days of the issue of this Endorsement.
Madam Justice Monique Métivier
Released: December 19, 2012
COURT FILE NO.: FC-11-1856
DATE: 2012/12/19
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Peter Dnistrianskyj Applicant – and – Rachel Savard Respondent endorsement Métivier J.
Released: December 19, 2012