Superior Court of Justice - Ontario

CITATION: Roy v. Easter, 2013 ONSC 4888

COURT FILE NO.: FS3012-11

DATE: 20130722

RE: Courtney Roy v. Marc Easter

BEFORE: Ellies J.

COUNSEL: William A. Sangster, for the applicant Edward Rae, for the respondent

HEARD: July 19, 2013

ENDORSEMENT

[1] In the motion at Tab 14 of the continuing record, Mr. Easter seeks to set aside the temporary order of Valin J. dated January 4, 2013 in which he ordered Mr. Easter to pay spousal support to Ms. Roy in the amount of $1,000 per month, amongst other things. Mr. Easter contends that he did not appear at the hearing of the earlier motion (found at Tab 9) because he was out of the country when it was served at his parents’ home.

[2] Rule 25(19) of the Family Law Rules permits the court to change an order that was made without notice or, if made with notice, where the affected party was not present because the notice was inadequate or for some other satisfactory reason. Rule 25(19) does not explicitly require that the motion to set aside the order be brought forthwith after the order comes to the attention of the affected party, in the way that Rule 37.14 of the Rules of Civil Procedure does. Nonetheless, it seems to me that delay in bringing the motion is relevant under Rule 25(19). Unexplained or undue delay in moving to set aside the order may demonstrate acquiescence on the part of the affected party. Where that is the case, the court must be careful not to allow the affected party to avoid the higher threshold considerations involved in varying or appealing an interim order by permitting that party to have the order set aside under Rule 25(19).

[3] In my view, Mr. Easter has not satisfactorily explained the delay in moving to set aside Valin J.’s order. There is no suggestion that the material which was served at his parents’ home did not come to Mr. Easter’s attention immediately upon his return to Canada on January 8, 2013. He deposes that he tried unsuccessfully to retain counsel from Sudbury or Ottawa before retaining his present lawyer, who first appeared on the record in May of 2013. However, no details were provided concerning Mr. Easter’s efforts at retaining counsel, such as who he contacted, when, why any particular lawyer was not retained, or why he felt he required counsel from outside of North Bay. Mr. Easter was represented previously by North Bay counsel and is now again represented by North Bay counsel.

[4] For this reason, the motion to set aside Valin J.’s order is denied.

[5] Because the applicant may only be entitled to limited support given the short duration of their cohabitation, her age, and other factors, this matter should proceed as quickly as possible to a settlement conference. The parties are ordered, therefore, to set a date for settlement conference through the office of the trial coordinator by no later than August 2, 2013. Ms. Roy is further ordered to provide copies of her income tax returns, or affidavit evidence explaining why that is not possible, for the years through 2007 to 2010 by that same date.

[6] Costs are fixed in the amount of $750 payable at the discretion of the trial judge.

Ellies J.

Date: 20130722